Amicus Curiae Brief — Philip Morris USA v. Williams

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OFFICE QF THE CLERK

No. 05-1256

IN THE

SFapwome Court of the United Thates

PHILIP Morris U.S.A,

Petitioner,

Vv.

MAYOLA WILLIAMS,

Respondent.

On Writ Of Certiorari To The

Supreme Court of Oregon

—

BRIEF OF AMICUS CURIAE

CENTER FOR A JUST SOCIETY

IN SUPPORT OF THE RESPONDENT

BRIAN G. BROOKS

(Counsel of Record)

Brian G. Brooks, Attorney at Law, PLLC

P.O. Box 605

Greenbrier, Arkansas 72058

(501) 733-3457

(501) 376-0951 (facsimile)

Attorney for Amicus Curiae

TABLE OF CONTENTS

CEs GS FFE Ec tenccerecerrssrctcersnecemmeverensemannmmeonnnans ii

INTEREST OF THE AMICUS CURIAE ........cccccscssresseesereevess 1

SUMMARY OF ARGUMENT............0:..cccsccsssecsscossssoccssesssenes 2

ARGUMENT

I. THIS CASE REPRESENTS FUNDAMENTAL

CORPORATE EXCESS AT THE EXPENSE OF

SEREES EEF edenssscersssisonsnenssnsnsenuiapinenitnninennnnneemneges 4

IL THE DIGNITY OF HUMAN LIFE SHOULD BE

GIVEN THE UTMOST IMPORTANCE IN THIS

TIT: seunscaseemssutetesatibannnemnetonmenpetinneitnineiavaieiaemenianenes 10

Il. THE COMMUNITY STANDARD ANNOUNCED BY

THE JURY SHOULD BE UPHELD. ..............ccceceeseeeeee 15

ST ceeresinscstininictintinsictiiapeiiuiiiepeitaittinaeiadanti sinabedeennennnes 17

TABLE OF AUTHORITIES

Cases

Advocat, Inc. v. Sauer 111 S.W.3d 346 (Ark. 2003),

cert. denied, 540 U.S. 1012 (2003) .........cscsssessesessereeserseres 6-7

Balzac v. Porto Rico, 258 U.S. 298 (1922).......ssssseserseeseeeeeees 17

BMW of North America, Inc. v. Gore, 517 U.S. 559

GED. -—«—=s eran ataneneennstuineasanananniinsucnteanenieningmaniiesaneai 4,11-13

- Forsythe ov. Clark USA, Inc., 836 N.E.2d 850

GE, Ce, De. TI ccccecnentccerscsrssscevinnsnsmecintntonsecscenossesnocsneen 7,8

Grimshaw v. Ford Motor Co., 174 Cal. Rptr. 348 (1981) ......9

Gryc v. Dayton-Hudson Corp., 297 N.W.2d 727 3

II, TI ecncnccciseresersesesesercsnateantsennenetnnncienmmnnennnnnentian 9

(NSERC Fee Oe ea oe POV ee eee Er Dae? 9

Holmes v. Bridgestone/Firestone, 891 So.2d 1188

(Fla. Ct. App. 2005) .....ccscsecsccecocccssecesseocseerevensecssececsocsocsonsoees 9

Huckle v. Money, 2 Wils. K.B. 205, 95 Eng. Rep.

FOB COP... UF GB) cccccoccocecssessesesessocevescsnosevsresnssossssvescssseseesestests 15

Mathias v. Accor Economy Lodging, 347 F.3d 672

FO CD. DBD eccccscercssssnrsesnssnesnsoesensnevsvescsstassesensnnsssssessecsis 11-12

Miller v. Levering Regional Health Center, ED 86993

(Mo. Ct. App. July 11 2006) ........-.-ccsseeseeseesereeseneereennenseneees 7

iti

Orkin Exterminating Co. of So. Fla. v. Truly Nolen, Inc.,

117 So.2d 419, 423 (Fla. 1960) .........--sscssssesssereerersensereesnens 16

Pacific Mutual Life Insurance Co. v. Haslip,

GIO US. 3 CRG I) wccccacnsiecccnnsrcccscseseseanesemanes cecncnnetinemanqaneatiaien 11

Pizitz Co. v. Yeldell, 214 U.S. 112 (1927).....seseseereeseecereneeens 14

State Farm Mutual Insurance Co. v. Campbell,

SEB UG. GIB CREED cccccccccsrsscscsscccsevscscnsesmenssrnvotsessocscocnes 4,11,12

St. Louis & Iron Mountain Ry. v. Taylor,

ZIBULG. FEE (RGGI occccccccnsnsnceccsssnsccsosascevenncscssessonsonsneeseaseoste 14

Texas & Pacific Ry. v. Rigsby, 241 U.S. 33 (1916).....-.....++ 14

Union Pacific Railroad Co. v. Barber, 149 S.W.3d 325

A, TID erncertesensessteseveememnnasninsctennmaninennenninngnipiansmneniaes 8

Williams v. Philip Morris, Inc., 127 P.3d 1165 (Or. 2005)....5

Wilmington Mining Co. v. Fulton, 205 U.S. 60 (1907) ....... 14

Other Authority:

Appropriateness of Minimum Nurse Staffing Ratios

In Nursing Homes — Report to Congress, Ch. 6..+-.+s+esees+e i

Borowsky and Nicolaisen, Punitive Damages in

California: The Integrity of Jury Verdicts, 17 U.S.F. L.Rev.

BEF TE GRID cescnsecsonenssnventsceniccatensiminsncessoesnetmimenineoanenees 15,16

Elder Abuse in Residential Long-Term Care Facilities:

Cause and Prevention: Testimony Before U.S. Senate

iv

Committee on Finance, Statement of Catherine Hawes,

es GD FER Fe ecercscesorccscesesiocnccspatinesssinimniemenmaladamaias 7

Galligan, Disaggregating More-Than-Whole Damages

in Personal Injury Law: Deterrence and Punishment,

FE TOR, LRU. BET CD coscsscccsncccsenscsnsmesvensenimnscssmtini 11-12

Owen, The Moral Foundations of Punitive Damages,

49 Ala. L.Rav. 795 (1909) ..10.c.cscocscovscinecssicesesssssnsesccesosososisasis 11

Owen, Punitive Damages in Products Liability Litigation’

74 Mich. L.Rev. 1257 (1976) .......-sccccceseesensesnereeseereeeneenes 10, 11

INTEREST OF THE AMICUS CURIAE!

The Center for a Just Society (CJS or the Center)

advances and defends the Judeo-Christian principles of

human dignity and social justice in law, policy and the

public square. CJS works to improve the quality of life

of the citizens of this Nation through research,

education and advocacy. CJS brings attention and an

alternative voice to issues of social justice.

The Center’s approach to issues is shaped by a

Judeo-Christian point of view that offers the greatest

protections and the greatest freedoms for all members

of our pluralistic society, not just people of faith.

Under this point of view, human dignity is of equal

importance to the unborn, the elderly, and individuals

at all stages of life, and each individual is equa] before

the law regardless of societal status. This point of view

holds individuals, businesses, and public institutions

accountable for their actions.

A just society orders itself based on moral and

ethical views of its people, and all laws invariably

refiect a moral and ethical point of view. The case

before this Court is an expression of a moral and ethical

point of view. The people of the State of Oregon have

spoken firmly regarding their views on the dignity of

human life and the repugnance of corporate greed that

seeks to deprive that dignity. CJS believes that

Oregon’s expression of its moral and ethical point of

1 Letters of consent to the filing of this brief have been filed

with the Clerk. No counsel for any party authored the brief in

whole or in part, and no person or entity other than amicus curiae

made any monetary contribution to its preparation or submission.

2

view, placing human life and dignity over corporate

greed and wrongdoing, is appropriate, and that this

expression cannot be analyzed as a mathematical

formula. CJS submits this brief in order to aid the

Court and to express this moral and ethical view

supporting the expression of the People ot Oregon.

SUMMARY OF THE ARGUMENT

The issues in this case are very different from the

Court’s previous pronouncements on due-process

limits to punitive damages. In this case, the loss at

issue is a human life. The actions that caused that loss

are typified by a corporate emphasis on profit at the

expense of human life.

The corporate excesses that led to this death are not

atypical. Cases around the nation regularly examine

instances of corporate greed that result in the loss of

life. A strong and powerful message should be sent,

and is sent by the verdict in this case, that life-is

important, and the consequences of taking life to

advance rapacious greed are weighty.

Punitive damages exist on 2 firm moral and legal

foundation. That moral and legal foundation counsels

that greater sums must be paid for greater harms, and

that the more reprehensible the conduct, the greater the

penalty should be. This Court has previously affirmed,

in clear and cogent language, the importance of

preventing the evil of wrongful death by way of tort

law. It should do so again in this case.

The jury in this case expressed its community's

standard for reasonable behavior, and also expressed in

3

strong terms the value it places on human life. The jury

is the best entity in our system of government for

setting this standard, consisting as it does of ordinary

people from the community brought together at

random to hear the evidence and make a

determination. The jury is the essence of the judicial

system, and this jury’s pronouncement of its

community standard should be respected and upheld.

The decision of the Oregon Supreme Court to

uphold the verdict in this case was appropriate. The

Oregon Court showed deference to human life and to

the jury system. This Court should do likewise and

affirm this case.

4

ARGUMENT

I. THIS CASE REPRESENTS FUNDAMENTAL

CORPORATE EXCESS AT THE EXPENSE. OF

HUMAN LIFE.

This case is not about the quality of paint on a

doctor’s luxury automobile. BMW of North America, Inc.

v. Gore, 517 U.S. 559 (1996). It is not about the wrong

visited on an individual when his insurance company

fails to pay a claim. State Farm Mutual Insurance Co. v.

Campbell, 538 U.S. 408 (2003). Rather, this case concerns

the consequences that must be faced when corporate

excess results in the loss of human life. Therefore, this

case is, at its core, very different from this Court's

previous precedents examining the propriety of

punitive damages.

As this Court is fully aware, neither Gore nor

Campbell concerned the loss of human life or personal

injury. Gore addressed the appropriate level of

punitive damages when a corporation misled

consumers about whether the paint on a luxury

automobile was original or not. Campbell addressed the

appropriate level of punitive damages when an

insurance company failed to pay a claim by an insured,

and thus inflicted emotional distress on the insured.

This case is very different. The defendant, Philip

Morris Incorporated, engaged in a decades-long

campaign of deceit and trickery aimed at enticing

smokers to continue to use its deadly products, all the

5

time aware that cigarettes cause serious health

problems and death. Williams v. Philip Morris Inc., 127

P.3d 1165 (Or. 2005). Indeed, as the Oregon Supreme

Court’s opinion below makes clear, Philip Morris and

other tobacco companies initiated a campaign as early

as 1954 that sought to undercut reports that tobacco use

caused cancer, and to place doubt in the minds of

consumers regarding negative reports. This campaign

included pharitom research efforts into the effects of

tobacco that took place while manufacturers were

working to manipulate the delivery of nicotine so as to

achieve the maximum addictive effect.

Implicit in these facts is that Philip Morris and

other tobacco manufacturers engaged in this scheme of

deception for one simple reason: greed. Simply put,

Philip Morris could not make money if smokers quit

smoking. Reports that cigarettes caused serious health

problems and death would lead to fewer people

smoking. Thus, Philip Morris had to stem the tide and

find a way to maintain sales. Its decision to do so

placed its bottom line over the lives of those who used

its products.

The result was predictable. Jesse Williams,

according to this jury, accepted Philip Méorris’s

campaign of deception and did not quit smoking.

Eventually, lung cancer caused by cigarettes killed him.

His death was the direct result of Philip Morris's

conscious efforts to keep Jesse Williams and others

smoking and using its products regardless of its

knowledge that serious health problems and death

could result.

Unfortunately, Philip Morris’s actions are

exemplary of an all-too-ccommon theme. Certainly,

most corporations in this nation are good corporate

citizens, and nothing written here is meant to indict the

whole of America’s corporate community. However,

many corporations today are driven by seemingly

unrestrained excess. This excess, in greater frequency,

is resulting in injury and death, often to the most

vulnerable members of our society. An examination of

just a few precedents from the states is useful to see this

trend. Notably, each of these cases was decided after

this Court decided Campbell, thus highlighting the

currency of the problem.

Few would question that those residing in our

institutions of long-term-care, otherwise known as

nursing homes, are among the most vulnerable in our

society. Unfortunately, these individuals are also

among the most abused. Such abuse visited on 94-year-

old Margaretha Sauer in Mena, Arkansas resulted in a

large punitive-damages verdict against a nursing-home

conglomerate in Advocat, Inc. v. Sauer, 111 S.W.3d 346

(Ark 2003), cert. denied, 540 U.S. 1012 (2003).

The Sauer plaintiff's theory of liability was simple

and similar to that advanced by the plaintiff in this

case. The Sauer plaintiff asserted that the nursing-home

conglomerate that owned the facility placed profit over

quality care and caused injury to Mrs. Sauer including

her death. This theory was supported by evidence of

short staffing, altering medical records, “staffing up”

during government inspections (called surveys) Id. at

7

354 and, perhaps most importantly, the testimony of a

former vice president who described a “change in

corporate philosophy in 1996 stressing profits over

care.” Id. at 352, 354.

Likewise, in Miller v. Levering Regional Health

Center, ED 86933 (Mo. Ct. App. July 11, 2006), the

Missouri Court of Appeals just recently upheld a

purtitive verdict against a residential facility where

elderly, mentally ill Ocie Birkhead died due to the

facility’s failure to monitor her condition after she fell

and hit her head. Central to the plaintiff’s theory of

recovery was the fact that the facility was understaffed.

Staffing, in turn, is a major expense of such facilities.

Lower staffing increases profits, but it also decreases

care and causes death and_ serious injury.

Appropriateness of Minimum Nurse Staffing Ratios in

Nursing Homes — Report to Congress, Ch. 6.; Elder Abuse in

Residential Long-Term Care Facilities: What is Known

About Prevalence, Cause and Prevention: Testimony Before

the U. S. Senate Committee on Finance, Statement of

Catherine Hawes, Ph.D. (June 18, 2002). Ocie Birkhead

was left unattended until she had vomited on herself

and suffered an irreparable hemorrhage that killed her.

The Missouri Court of Appeals correctly referred to this

conduct as reprehensible.

Cases of corporate excess leading to injury and

death are not, however, limited to long-term-care

specifically or medical care generally. For example, in

Forsythe v. Clark USA, Inc., 836 N.E.2d 850 (Ill. Ct. App.

2005), the Illinois Court of Appeals examined whether

allegations of a corporate philosophy emphasizing

profits over employee safety stated a cause of action for

direct liability against a parent corporation. In that

case, two maintenance workers were killed when a fire

erupted in a refinery while they were on their lunch

breaks. Their~ estates sued the refinery’s parent

company alleging direct liability for the parent’s

“overall business strategy” that “focused on

minimizing operating costs and limiting capital

expenditures” at the cost of safety. Id. at 851. The

Illinois Court held that a cause of action was stated.

The evidence relied on by the plaintiffs is telling.

They pointed to a series of “cutbacks. . . that

undermined safety, training, and maintenance. . . and. .

. created an unreasonable risk of harm to others... . .”

Id. at 853. As part of an overall cutback in the budget |

and capital expenditures, the refinery had to “cut back

its maintenance department staff and cancel its training

program for new operators, causing both a

deteriorization of the infrastructure at the refinery . . .

and an overload of work on the undermanned crews.”

Ibid. These conditions, in turn, caused the explosion

when untrained, unqualified crews tried to > replace a

valve. Id. at 851.

These cases are in no way meant to be exhaustive.

They are merely examples of cases, like the one before

this Court, where unbridled, rapacious corporate greed

led to personal injury and death. 2 They are

2 Both before and after Campbell, state courts have emphasized that

a conscious decision by a corporation to emphasize profit over

safety justifies a substantial award of punitive damages. See, e.g.,

Union Pacific Railroad Co. v. Barber, 149 S.W.3d 325 (Ark. 2004) (the

9

exceedingly relevant to the questions before this Court.

According to Philip Morris and the amici supporting it,

no award of punitive damages can exceed a certain

mathematical limit and satisfy due process, no matter

how egregious the conduct and no matter how

devastating the injuries caused. They similarly argue

that a jury cannot base its award on the widespread

devastation caused by the practices at issue because to

do so would punish Philip Morris for damage done to

those not before the court.

These positions should not prevail. Each point

ignores the importance of human dignity and opens the

door for corporate excess unchecked, or inadequately

checked, by moral and ethical standards of behavior.

record in this case reflects the development of a corporate policy at

Union Pacific that put company profits before public safety.”);

Grimshaw v. Ford Motor Co., 174 Cal. Rptr. 348, 384 (1981) ("There

was evidence that Ford could have corrected the hazardous design

defects at minimal cost but decided to defer correction of the

shortcomings by engaging in a cost-benefit analysis balancing

human lives and limbs against corporate profits. Ford's

institutional mentality was shown to be one of callous indifference

to public safety.”); Holmes v. Bridgestone/Firestone, 891 So.2d 1188,

1191-92 (Fla. Ct. App. 2005) (“the proffer reflected facts from

which it could be found that Firestone knew about the tread

separation, but delayed warning the public in order to protect its

own financial interests. Such a finding would support punitive

damages”); Hodder v. Goodyear Tire & Rubber Co., 426 N.W.2d 826,

835-36 (Minn. 1988)(concluding that Goodyear's inadequate

distribution of warnings about the danger of exploding rims, based

on a corporate policy to restrict advertising dollars for projects that

are not promoting product sales, was “willful indifference to the

safety of others."); Gryc v. Dayton-Hudson Corp., 297 N.W.2d 727

(Minn. 1980) (upholding a punitive damages award against a

manufacturer who continued, for profit reasons, to supply

flammable nightwear when nonflammable material was available).

10

The end result of such unchecked excess is more than

twice-painted BMWs and unpaid insurance claims. It is

the loss of human life.

The jury system serves as a check and balance on

reckless conduct like that demonstrated by Philip

Morris. The People of the State of Oregon have spoken

regarding the importance of human life and dignity by

way of the punitive-damage award in this case. The

message they have delivered is that human life

deserves the utmost respect, and that corporate excess

that places profit over life cannot be tolerated in a

civilized society..._This statement of public policy

delivered by ‘perhaps the most representative of all

_ arms of government itself deserves respect. Affirming

the decision of the Oregon Courts affirms that respect,

and it also affirms the basic moral and ethical message

that human life is more important than corporate

interests.

Il. THE DIGNITY-OF HUMAN LIFE SHOULD BE

GIVEN THE UTMOST IMPORTANCE IN THIS

CASE.

A reading of the briefs filed by Philip Morris and

amici supporting its position reveals a desire to limit

punitive damages to a predictable, business-planning

range. Completely absent from this analysis is any

discussion of the importance of human life and dignity

or the moral basis for punitive damages. This oversight

skews the question. This case should not be decided

without thorough consideration of the human and

moral element of the punitive-damages award made in

ll

this case. Indeed, that element should be the

overriding issue in the analysis.

Punitive damages clearly have a moral basis.

Owen, The Moral Foundations of Punitive Damages, 40

Ala. L.Rev. 705 (1989) (hereafter Moral Foundations).

These moral foundations focus on retribution for the

wrong done, and deterrence of future, like wrongs.

Campbell, 538 U.S. at 416; Gore, 517 U.S. at 568; Pacific

Mutual Life Insurance Co. v. Haslip, 499 U.S. 1, 19 (1991).

See also Owen, Punitive Damages in Products Liability

Litigation, 74 Mich. L.Rev. 1257 (1976) (examining

retribution and deterrence as justifications for punitive

damages generally and in the products-liability

context); Galligan, Disaggregating More-Than-Whole

Damages in Personal Injury Law; Deterrence and

Punishment, 71 Tenn. L.Rev. 117 (2003) (advocating a

separation or disaggregation of the deterrence and

retribution elements of punitive, or more-than-whole,

damages) (hereafter Disaggregating the Whole). Both

goals are morally, ethically and legally appropriate.

Moral Foundations at 707 (noting that the legal

legitimacy of punitive damages is dependent on their

moral legitimacy. That moral legitimacy is grounded

on ideals of freedom, utility, power, truth and trust).

These moral imperatives dictate that the amount of

punitive damages, in the words of Judge Posner,

“should be proportional to the wrongfulness of the

defendant’s actions.” Mathias v. Accor Economy Lodging,

347 F.3d 672, 676 (7 Cir. 2003). A corollary of this idea

is “that sanctions should be based on the wrong done

rather than on the status of the defendant,” a notion

12

Judge Posner describes as “the core of the Aristotelian

notion of corrective justice.” Ibid: This guidance as to

“amount” is further informed by the notion that the

“award of punitive damages” in a particular case can

serve “the additional purpose of limiting a defendant's

ability to profit from its fraud by escaping detection

and (private) prosecution. If a tortfeasor is ‘caught’

only half the time he commits torts, then when he is

caught he should be punished twice as heavily in order

to make up for the times he gets away.” Id. at 677: See

also Disaggregating the Whole at 132-146 (examining the

reasons why punitive conduct will be under prosecuted

and under deterred if only the actions and individuals

before the court in a particular case inform the punitive

verdict). Judge Posner, it seems, speaks directly to the

excesses caused by an unrelenting, unchecked pursuit

of profit at the expense of human life described in this

brief, and to the notion that such actions merit

increased punitive awards.

_ These ideas of increased punitive-damages awards

for greater harms, more reprehensible actions, and

repeated yet possibly unprosecuted behavior fit neatly

within this Court’s recent precedents describing the

due-process limits on such awards. In both Gore and

Campbell, this Court counseled that “the most

important indicium of the reasonableness of a punitive

damages award is the degree of reprehensibility of the

defendant’s conduct.” Campbell, 538 U.S. at 419

(quoting Gore, 517 U.S. at 574). This “reprehensibility”

analysis, in turn, focuses on the very issues described

above that form the moral basis for punitive damages:

the type of harm caused, whether the tortious actions

were exemplified by a disregard for the health and

13

safety of others, the vulnerability of the victim, the

repetition of the tortious actions, and whether those

actions evidenced “malice, trickery or Ceceit.” Ibid

(citing Gore, 517 U.S. at 576-77).

In a case like the one before this Court, these moral

and legal issues should rightly dominate the debate.

_ Again, this case does not focus on mere economic loss.

Indeed, the pure economic loss determined by the jury

was minimal, only $21,485.80. Rather, the focus in this

case is repeated, deceptive, calculated conduct that

caused the death of Jesse Williams. This loss cannot be

reduced to a neat mathematical formula, reduced to

present value, that “compensates” the victims and

rights the wrongs.

The value of human life has guided this Court in

the past where even benign corporate interests have

sought to avoid liability by shielding themselves

behind a beneficial interpretation of the due-process

clause. Seventy-nine years ago, this Court passed on a

corporation’s due-process challenge to Alabama’s

wrongful-death statute that imposed respondeat superior

liability on an employer whose employee caused a

negligent death. Writing for the Court, Mr. Justice

Stone held:

As interpreted by the state court, the aim of the

present statute is to strike at the evil of the

negligent destruction of human life by

imposing liability, regardless of fault, upon

those who are in some substantial measure in a

14

position to prevent it. We cannot say that it is

beyond the power of a legislature, in effecting

such a change in the common law rules, to

attempt to preserve human life by making

homicide expensive. It may impose an

extraordinary liability such as the present, not

only on those at fault but upon those who,

although not directly culpable, are able

nevertheless, in the management of their

affairs, to guard oubetantialy against the evil to

be prevented.

Pizitz Co. v. Yeldell, 214 U.S. 112, 116 (1927) (citing St.

Louis & Iron Mountain Ry. v. Taylor, 210 U.S. 281 (1908);

Texas & Pacific Ry. v. Rigsby, 241 U.S. 33 (1916);

Wilmington Mining Co. v. Fulton, 205 U.S. 60 (1907)).

This Court did not shy away from the moral

mandate before it in 1927, and it should not do so now.

The corporate interests at stake in this case are anything

but benign. The value and dignity of human life, and

the efficacy of the tort system in protecting it, hang in

the balance. Philip Morris seeks a system where its

wrongs can never be punished more than a definitive

multiplier above the damage it causes to a single victim

regardless of the number of times the harm is caused

and regardless of the reprehensibility of the conduct.

This approach would ignore the states’ interest in

attempting “to preserve human life by making

homicide expensive.”

15

The Supreme Court of Oregon was right. Philip

Morris’s conduct was reprehensible in every respect.

The result of that conduct was as damaging as damage

can be, the death of a human being. Moreover, it does

not stretch credibility to write that the “evil” was much

more than “the negligent destruction of human life.”

Malicious and reckless, at minimum, are much more

apt terms. The Oregon Court should be affirmed.

Ill. THE COMMUNITY STANDARD ANNOUNCED

BY THE JURY SHOULD BE UPHELD.

The jury spoke clearly in this case. That voice

should be heard and affirmed. The importance of trial

by a jury in this nation is well established. When the

Founders listed their grievances against “the present

King of Great Britain” in the Declaration of

Independence, they included among them “depriving

us in many cases, of the benefit of Trial by Jury.” The

Bill of Rights and state constitutions, of course,

expressly include the right to trial by jury. Juries are so

important in this nation that criminals do not go to

prison if juries so determine.

With respect to awards of punitive damages, early

decisions “show both a respect for the jury’s discretion

and a hesitancy to interfere with its judgment.”

Borowsky and Nicolaisen, Punitive Damages in

California: The Integrity of Jury Verdicts, 17 U.S.F. L.Rev.

147, 152 (1983) (hereafter The Integrity of Jury

Verdicts)(citing Huckle v. Money, 2 Wils. K.B. 205, 95

Eng. Rep. 768 (C.P. 1763)). Juries, such as this jury, are

16

made up of local citizens, and their composition is not

known until the trial begins. Neither side pays juries,

and the evidence they hear must meet a threshold of

reliability. Neither side can approach a jury outside the

presence of the other. Thus, the system under which —

the jury makes its decision is perhaps the most fair of

any yet devised.

Historically, courts and legislatures have respected

this community voice and deferred to juries’

pronouncements on punitive damages, and with good

reason:

An examination of judicial opinions and

statutory law reveals that the jury’s power to

award punitive damages proceeds from its

ability to speak for the community. As a

group, the jury is in the best possible position

to function as the community’s conscience. A

_ jury’s reactions of shock and outrage

presumably mirror those of the community as a

whole. Thus when the jury decides to make a

punitive award, it is expressing society’s

disapproval; and when it sets the amount of an

award, it measures society’s outrage and

determines the degree of punishment that

society believes will deter the defendant and

others like him.

The Integrity of Jury Verdicts, at 152-53 (citing Orkin

Exterminating Co. of So. Fla. v. Truly Nolen, Inc., 117

So.2d 419, 423 (Fla. 1960)).

17

Jurors function as part of the judicial branch. See,

e.g., Balzac v. Porto Rico, 258 U.S. 298, 310 (1922) (Taft,

C.J., for the Court). As Chief Justice Taft noted,”[t]he

jury system postulates a conscious duty of participation

in the machinery of justice which it is hard for people

not brought up in fundamentally popular government

at once to acquire. One of its greatest benefits is in the

security it gives the people that they, as jurors, actual or

possible, being part of the judicial system of the

country, can prevent its arbitrary use or abuse.” Ibid.

The corollary, of course, is also true. Through the jury

system, people at the local level decide what is

reasonable and acceptable in their own communities.

This approach is especially appropriate in the tort

system where the entire question is what is reasonable

under the circumstances.

This Oregon jury decided what is reasonable in

Oregon. It clearly mandated that a scheme whereby

users Of a dangerous product were duped into

believing that reports about its danger were false or

exaggerated, when the purveyors of the scheme knew

otherwise, will not be tolerated. That common-sense

determination deserves great deference where, as here,

human life hangs in the balance. The Oregon Court’s

decision to uphold that verdict should be affirmed.

CONCLUSION

The decision of the Oregon Supreme Court should

be affirmed.

18

Respectfully submitted,

Brian G. Brooks

(Counsel of Record)

Brian G. Brooks, Attorney at Law, PLLC

P.O. Box 605

Greenbrier, Arkansas 72058

(501) 733-3457 |

(501) 376-0951 (Facsimile)

Attorney for Amicus Curiae

September 15, 2006