Amicus Curiae Brief — Philip Morris USA v. Williams

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No. 05-1256

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FIL22

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JUL 23 2S |

2 3 CT ERK

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IN THE

Supreme Court of the United States

PHILIP MorRIS USA,

Petitioner,

Vv.

MAYOLA WILLIAMS,

Respondent.

On Writ Of Certiorari To The Supreme Court Of Oregon

BRIEF OF THE PRODUCT LIABILITY

ADVISORY COUNCIL AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

Of Counsel:

HUGH F. YOUNG, JR.

PRODUCT LIABILITY

ADVISORY COUNCIL, INC.

1850 Centennial! Park Drive

Suite 510

Reston, VA 20191

(703) 264-5300

THEODORE B. OLSON

Counsel of Record

THOMAS H. DUPREE, JR.

AMIR C. TAYRANI

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, NW

Washington, DC 20036

(202) 955-8500

THEODORE J. BOUTROUS, JR.

DOMINIC LANZA

GIBSON, DUNN & CRUTCHER LLP

333 South Grand Avenue

Los Angeles, CA 90071

(213) 229-7000

Counsel for Amicus Curiae

ee

QUESTION PRESENTED

This case involves a $79.5 million punitive damage

award to a single individual in a product liability case recast

as a “fraud” claim. Although the products at issue are to-

bacco products manufactured by petitioner, some variant of

the due process questions presented by this case arises in vir-

tually all product liability cases in which punitive damages

are sought.

Amicus will address (1) the special dangers in the prod-

uct liability context of the Oregon Supreme Court’s approach

allowing the reprehensibility guidepost to “override” the ratio

guidepost when applying ‘he due process standards estab-

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

(1996), and State Farm Mutual Automobile Insurance Co. v.

Campbell, 538 U.S. 408 (2003); and (2) the reasons why due

process requires that juries be instructed that punitive dam-

ages must bear a reasonable relationship to the plaintiffs

harm and that they may not be imposed to punish the defen-

dant for alleged harm to individuals other than the plaintiff.

il

TABLE OF CONTENTS

Page

QUESTION PRESENTED. .......cccscsssssssessesssessesssessecsvesees i

TABLE OF AUTHORITIES. .......scsssssssessssssesseessesseesees iii

INTEREST OF AMICUS CURIAE vssessssssessssssesssessessees 1

iii sti siessidncinssiceccninbudintbiasieesei tied 2

SUMMARY OF ARGUMENT ........cscssscssesssessessseeseesees 3

PS RENEE SS SUEDE S GS CRN TT LT aN 5

I. PRODUCT LIABILITY CASES POSE

SPECIAL DANGERS OF ARBITRARY

PUNITIVE DAMAGE AWARDS THAT

REQUIRE RIGOROUS APPLICATION OF

THE RATIO GUIDEPOST .........:cccccsccessereeeeeeereeeees 5

Il. DUE PROCESS REQUIRES THAT

JURORS BE INSTRUCTED THAT

PUNITIVE DAMAGES MUST BEAR A

REASONABLE RELATIONSHIP TO THE

PLAINTIFF’S HARM AND CANNOT BE

BASED ON ALLEGED HARM TO THIRD

PPAR E EER ccccsccccsesescccessececossnccseescsoscosoosocssesonesoseosspe 15

OI iN ccccscccscsoscscesccscescoscccsnssoescossnosossosossesesie 22

iil

TABLE OF AUTHORITIES

Page(s)

Cases

Adams v. Murakami, 813 P.2d 1348 (Cal. 1991) .......-...ceseeee 9

Bankers Life & Cas. Co. v. Crenshaw,

GB URI. TE CIID cs ccecesscsncsscsecenccesersnsensosscccsevsstesoswensese 17

Blanchard v. Morris, 15 Tl. 35 (1853)..........:esccceeserseeereeeeeees 6

BMW of N. Am., Inc. v. Gore,

FEF Ces Sa CIID ccctcecexsssressccesenccscocnnsenennnecesoosens passim

Buell-Wilson v. Ford Motor Co.,

2006 WL 2002858

(Cal. Ct. App. July 19, 2006) ...........cccscesseeereeeees 10, 12, 13

Cabana v. Bullock, 474 U.S. 376 (1986)......c.0cccecseesseeeeeeees 16

Carroll v. Otis Elevator Co.,

896 F.2d 210 (7th Cir. 1990)...........ccccccssessserrsseresseeeeees 8

Carter v. Kentucky, 450 U.S. 288 (1981)........scccccceseeceseeeenes 16

Castano v. Am. Tobacco Co.,

84 F.3d 734 (Sth Cir. 1996)........cccsccsessssssesseerereeresennees 21

Clark v. Chrysler Corp.,

436 F.3d 594 (6th Cir. 2006)...........:ccccecrecsecssseessesereeseees 10

Cooper Indus., Inc. v. Leatherman Tool Group,

I 2,17

Corrosion Proof Fittings v. EPA,

947 F.2d 1201 (Sth Cir. 1991)... ee cecsteeeeeteeeeteneenees 10

Ex Parte Lange, 85 U.S. (18 Wall.) 163 (1873)..............0008 18

Flax v. DaimlerChrysler Corp., No. 02C-1288

Gs Sirens WEALD schssitehbcieieehibeieictetiniettlensiehatcnesidiel 8

iV

Greenman v. Yuba Power Prods.,

EF ECD weniccicinsitenevnntinaesinnieiniitaseiniiiadiiaatel 6

Honda Motor Co. v. Oberg,

FOR es SEP CR centers ccimeiveesinnvenpiitimnnaeneianiiens 7,9,17

Interstate Southwest Ltd. v. Avco Corp.,

No. 29,385 (Tex. Dist. Ct. 2005)..........c:cccsseseesseeseeeeeeees 14

Jimenez v. DaimlerChrysler Corp.,

269 F.3d 439 (4th Cir. 2001) 0.0... cccesccessseeesseeeceseeeeeseneees 9

Johnson v. Ford Motor Co.,

SED PB Ee Ce, Bi osc ncveccctescncsceccssesnessoeescenes 18, 19, 20

Johnson v. Hugo’s Skateway,

974 F.2d 1408 (4th Cir. 1992) 0... ccceeccseeeteeeeneeseeeennes 21

Landgraf v. USI Film Prods.,

Be Shale OCD ctcttcicnsesenincenssencseniniunancisensiuinnianiinbh 8,9

Masson v. New Yorker Magazine, Inc.,

FOe CE, GIG CEG N ) nvcessecintorevsccccescccevesecssesnevsesominennnseiie 16

Mattison v. Dallas Carrier Corp.,

947 F.2d 95 (4th Cir. 1991) ........ccccssccssceseeseseecesseesesseeees 21

Medtronic Inc. v. Lohr, 518 U.S. 470 (1996) ............ceseeeeeees 12

Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971)........--000+ 16

Pac. Mut. Life Ins. Co. v. Haslip,

GE Eee 8 CRED vecestctecnietennitvinnecsnseunninssectpiminiien 7,21

Rummel v. Estelle, 445 U.S. 263 (1980) .......cccscseerereeeereeeees 9

Sandoz Pharms. Corp. v. Gunderson,

2005 WL 2694816

(Ky. Ct. App. 2005)........0s:r0ccccrrercoscescossccsccsensossresssosesess 14

Seffert v. L.A. Transit Lines,

SEG POG S57 CE; TBG1 ) .sccececocecccscsccsececsevcsnssvsesessesvesestees 6

Simmons y. South Carolina,

SIZ US. 1546 (IDPS) ....ccccccccersccoccecresceececeseccesessosssoonecsses 16

State Farm Mutual Auto. Ins. Co. v. Campbell,

Fe te Ge CI cccetecercsccecnccssccccesecnczsccerenrecseseees passim

Taylor v. Kentucky, 436 U.S. 478 (1978).....cc.scceecereeees 15, 16

TXO Prod. Corp. v. Alliance Res. Corp.,

I I in sndriebesensenenmsasuncncncneetenccanareees 9

W. Union Tel. Co. v. Pennsylvania,

ey 0S Ci etetetesccccsccoccssecescscsevscccsnscqssecsseveqeosees 18

Williams v. ConAgra Poultry Co.,

378 F.3d 790 (8th Cir. 2004)..........cccccseesseereeeeeeeeeees 19, 20

Constitutional Provisions

U.S. Const. amend. XIV, § 1 (Due Process Clause).... passim

Other Authorities

Alex Berenson, For Merck, Vioxx Paper Trail

Won’t Go Away, N.Y. Times,

| ce 14

Stephen Breyer, Breaking the Vicious Circle:

Toward Effective Risk Regulation (1992) ..........+. 8, 10, 13

Thomas B. Colby, Beyond the Multiple

Punishment Problem: Punitive Damages as

Punishment for Individual, Private Wrongs,

87 Minn. L. Rev. 583 (2003)...........cccseesseeresseereseeers 20, 21

Paul V. Niemeyer, Awards for Pain and

Suffering: The Irrational Centerpiece of Our

Tort System, 90 Va. L. Rev. 1401 (2004)..........c:cccceeees 13

David G. Owen, Problems in Assessing Punitive

Damages ~gainst Manufacturers of

Defective Products,

Fe Car Bn BIW. B C0 FB ccccecccccccccesessesccenscseccscocesseseee 11

Restatement (Second) of Torts (1965) ......cvs-sssesseseessseeveees 11

vi

Jane Spencer & Cynthia Crossen, Why Do

Americans Believe Danger Lurks

Everywhere? How a Fixation on Risk, Fed

by Labs, Law and Media, Haunts World's

Safest Nation, Wall St. J., Apr. 24, 2003,

at Al

BRIEF OF THE PRODUCT LIABILITY

ADVISORY COUNCIL AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

INTEREST OF AMICUS CURIAE!

The Product Liability Advisory Council, Inc. (PLAC) is

a non-profit association with 133 corporate members repre-

senting a broad cross-section of American and international

product manufacturers. These companies seek to contribute

to the improvement and reform of law in the United States

and elsewhere, with emphasis on the law governing the li-

ability of manufacturers of products. PLAC’s perspective is

derived from the experiences of a corporate membership that

spans a diverse group of industries in various facets of the

manufacturing sector. In addition, several hundred of the

leading product liability defense attorneys in the country are

sustaining (non-voting) members of PLAC. Since 1983,

PLAC has filed over 725 briefs as amicus curiae in both state

and federal courts, including this Court, presenting the broad

perspective of product manufacturers seeking fairness and

balance in the application and development of the law as it

affects product liability. A list of PLAC’s corporate mem-

bers is attached in the Addendum.

The due process questions presented by this case are not

unique to Philip Morris or the tobacco industry. Virtually all

corporations are vulnerable to arbitrary and excessive puni-

tive damage awards when juries are not given adequate in-

structions, and reviewing courts decline to enforce the due

process guideposts that help ensure reasonableness and pro-

portionality. Because plaintiffs routinely seek punitive dam-

ages in product liability cases, and such cases present special

1 Pursuant to this Court’s Rule 37.3(a), letters of consent from all par-

ties to the filing of this brief have been filed with the Clerk. Pursuant to

Rule 37.6, PLAC states that this brief was not authored in whole or in

part by counsel for any party, and that no person or entity other than

PLAC or its counsel made a monetary contribution to the preparation or

submission of this brief.

dangers and concerns, the fair administration of punitive civil

sanctions is an issue of great importance to product manufac-

turers, and PLAC has filed amicus briefs in this Court’s three

most recent decisions involving constitutional excessiveness

challenges to punitive damage awards: BMW of North Amer-

ica, Inc. v. Gore, 517 U.S. 559 (1996); Cooper Industries,

Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001);

and State Farm Mutual Automobile Insurance Co. v. Camp-

bell, 538 U.S. 408 (2003).

STATEMENT

Respondent Mayola Williams, the widow of a smoker,

sued petitioner Philip Morris USA, asserting fraud and negli-

gence claims in connection with the death of her husband

from lung cancer. Petitioner’s Appendix (“Pet. App.”) la.

An Oregon jury awarded respondent $821,485 in compensa-

tory damages— including $800,000 in non-economic dam-

ages—and $79.5 million in punitive damages. /d. at 9a.

Although the trial court remitted the punitive damage

award as excessive under the federal constitutional guide-

posts, the Court of Appeals reinstated the award in full, 48

P.3d 824 (Or. Ct. App. 2002), and the Oregon Supreme Court

denied review. 61 P.3d 938 (Or. 2002). This Court then

granted certiorari, vacated the Court of Appeals’ judgment,

and remanded for reconsideration in light of State Farm. 540

U.S. 801 (2003). On remand, the Court of Appeals again

held that the full award must be reinstated, notwithstanding

the more rigorous State Farm standards. Pet. App. 35a.

The Oregon Supreme Court affirmed. The court empha-

sized that it was required to construe “all facts” in the light

most favorable to plaintiff, and that so construed “there can

be no dispute that Philip Morris’s conduct was extraordinar-

ily reprehensible.” Pet. App. 23a.

The court acknowledged that the 97:1 ratio of punitive to

compensatory damages exceeded the constitutional limits set

forth in State Farm, stating that the ratio “substantially ex-

ceed[s] the single-digit ratio (9:1) that the Court has said or-

dinarily will apply in the usual case.” Pet. App. 3la. None-

theless, the court reasoned that Philip Morris’s allegedly high

level of reprehensibility sufficed to “overrid{e]” the ratio

guidepost, explaining:

Single-digit ratios may mark the boundary in

ordinary cases, but the absence of bright-line

rules necessarily suggests that the other two

guideposts—treprehensibility and comparable

sanctions—can provide a basis for overriding

the concern that may arise from a double-digit

ratio. |

Id. at 33a. The court concluded that “the jury’s $79.5 million

punitive damage award against Philip Morris comported with

due process.” /d. at 2a, 33a. The court also held that Philip

Morris was not entitled to a jury instruction providing, in

part, that “[t]he size of any punishment should bear a reason-

able relationship to the harm caused to [respondent’s hus-

band] Jesse Williams by the defendant’s punishable miscon-

duct” and that would have barred the jury from “punish[ing]

the defendant for the impact of its alleged misconduct on

other persons.” Jd. at 17a. -

SUMMARY OF ARGUMENT

1. The Oregon Supreme Court’s ruling that the repre-

hensibility factor can “override” the ratio guidepost’s propor-

tionality requirement contradicts State Farm and Gore. This

approach would deprive the due process guideposts of any

real meaning in many product liability cases, including cases

like this one, where the plaintiff has advanced a novel fraud-

based cause of action as the basis for punitive damages.

Product liability cases have common features, and pose

special dangers, that require especially rigorous application -

of the ratio guidepost. These cases are a modern develop-

ment that did not exist when the Fourteenth Amendment was

ratified. They often present tragic factual circumstances in-

volving death or serious injury, and the risks that juror pas-

sion or prejudice or sympathy will result in an unwarranted

or arbitrary punishment against a manufacturer are particu-

larly high. The compensatory damages are often quite sub-

stantial, and include significant non-economic damage com-

ponents.

Moreover, because the products are mass produced,

plaintiffs’ attorneys almost always argue, as in this case, that

the jury should use its verdict to protect, and vindicate the

rights of, other consumers who are not before the court. And

jurors are often encouraged to impose punitive damages for

the purpose of regulating public safety.

This Court’s previous decisions analyzing due process

challenges to punitive damages were rendered in the com-

mercial sphere and thus the Court has not delineated in any

detail the factors that should be considered in analyzing rep-

rehensibility in the personal injury context. To date, most

courts have taken a very superficial approach, based on a

highly deferential standard of review and the jury’s findings

of “malice.” They simply note that the company “knew” its

product posed unreasonable risks of harm and that physical

injury resulted, making the conduct highly reprehensible.

But this approach ignores the fact that virtually a// products

pose risks that persons will be injured or killed when using

the products and provides no meaningful protection against

unconstitutional punishments.

For all of these reasons, the Court should reject the Ore-

gon Supreme Court’s holding that the reprehensibility factor

can override the ratio guidepost and confirm that where, as

here, the compensatory damages are substantial and contain a

component for emotional distress, a ratio of 1:1 or lower of-

ten will be required.

2. The Oregon Supreme Court further erred in refusing

to instruct the jury that it could not punish Philip Morris for

harm to nonparties—and that any award of punitive damages

must be reasonably related to the compensatory damage

award. This Court has long held that proper jury instructions

are necessary to ensure that verdicts are consistent with con-

stitutional limits on state authority. In its punitive damages

5

jurisprudence, the Court has condemned vague instructions

and emphasized that jury instructions are a critical bulwark

against arbitrary and excessive awards.

The refusal to give a “harm to nonparties” instruction

violates State Farm and can transform a case into a pseudo-

class action, in that it enables a single plaintiff to obtain what

amounts to classwide relief—without having to satisfy the

procedural requirements of a legitimate class action. Particu-

larly in a products case, where plaintiffs often exhort the jury

to vindicate the rights of al/ users of a mass-marketed prod-

uct, such an instruction helps ensure that the resulting award

stays within constitutional limits.

A “reasonable relationship” instruction is warranted as

well. The principle of proportionality—that a civil sanction

must be reasonable and proportionate to the harm committed

by the defendant—has a long pedigree in American constitu-

tional and common law. An instruction that focuses the jury

on the need for a reasonable relationship between the puni-

tive damage award and the harm to the plaintiff helps guide

the jury in assessing the proper amount of a punitive sanc-

tion, and reduces the likelihood of an arbitrary punishment.

ARGUMENT

I. PRODUCT LIABILITY CASES POSE

SPECIAL DANGERS OF ARBITRARY

PUNITIVE DAMAGE AWARDS THAT

REQUIRE RIGOROUS APPLICATION OF

THE RATIO GUIDEPOST

This Court has repeatedly recognized that “punitive

damages pose an acute danger of arbitrary deprivation of

property,” and “it is well established that there are procedural

and substantive constitutional limitations on these awards.”

State Farm, 538 U.S. at 416-17 (quotation marks omitted).

State Farm and Gore held that the due process analysis

should be conducted by reference to three guideposts: the

reprehensibility of the defendant’s conduct; the ratio between

punitive and actual or potential damages; and the difference

between the award and the civil penalties authorized or im-

posed in comparable cases. State Farm, 538 U.S. at 418.

“The[se] principles ... must be implemented with care, to

ensure both reasonableness and proportionality.” Jd. at 428.

The Oregon Supreme Court’s holding that the reprehen-

sibility guidepost can “override” the ratio guidepost is wrong

and would drain the vue process guideposts of any constrain-

ing force in many product liability cases. Indeed, product

cases bear special characteristics and pose special dangers

that call for rigorous application of the ratio guidepost to “en-

sure that the measure of punishment is both reasonable and

proportionate to the amount of harm to the plaintiff and to the

general damages recovered.” State Farm, 538 U.S. at 426.

1. Product liability claims were not known at common

law and at the time of the ratification of the Fourteenth

Amendment. Mass-marketed products are a modern devel-

opment, and the modern product liability doctrine was not

recognized until the second half of the twentieth century. See

Greenman v. Yuba Power Prods., 377 P.2d 897 (1963).

In the physical injury context, punitive damages at

common law were reserved for cases involving intentional

violence. Cf Gore, 517 U.S. at 575 n.24 (quoting Blanchard

v. Morris, 15 Ill. 35, 36 (1853) (“*We cannot say [the exem-

plary damages] are excessive under the circumstances; for

the proofs show that threats, violence, and imprisonment,

were accompanied by mental fear, torture, and agony of

mind’”)). But the modern law of product liability focuses not

on the mental state of the defendant but on a retrospective

balancing of societal risks and benefits and the spreading of

losses; the infliction of any punishment through the tort sys-

tem was questioned early on by one of the judicial architects

of this product liability doctrine. See Seffert v. L.A. Transit

Lines, 364 P.2d 337, 345 (Cal. 1961) (Traynor, J., dissenting) ~

(“Such damages originated under primitive law as a means of

punishing wrongdoers and assuaging the feelings of those

who had been wronged.... They become increasingly

anomalous as emphasis shifts in a mechanized society from

ad hoc punishment to orderly distribution of losses through

insurance and the price of goods or of transportation.”). And

the novel “fraud” claim advanced by respondent here as the

basis for punitive damages—attacking statements of a manu-

facturer defending its product in litigation and other public

fora—is “new,” as the trial court itself recognized. 14B Tr.

109 (characterizing the claim as “something new” and noting

that “we haven’t seen this particular approach to a fraud

claim in Oregon law. And it’s a tough one.”).

In short, this practice—which allows juries to inflict

unlimited punishments against product makers for their mass

marketing of a lawful product—was unknown at common

law and is a departure from the traditional uses of the civil

justice system at the time the Fourteenth Amendment was

ratified. See Pac. Mut. Life Ins. Co. v. Haslip, 499 US. 1,

61-62 (1991) (O’Connor, J., dissenting) (citing “the advent of

product liability” as a reason for the “[rJecent . . . explosion

in the frequency and size of punitive damages awards”).

This fact should inform any due process analysis of the pun-

ishment in this case and product liability cases more gener-

ally. See Honda Motor Co. v. Oberg, 512 U.S. 415, 430

(1994) (noting that the Court has “stated from its first due

process cases, [that] traditional practice provides a touch-

stone for constitutional analysis”); id. at 436 (Scalia, J., con-

curring) (concluding that by eliminating protections “tradi-

tionally accorded at common law,” Oregon “violate[d] the

Due Process Clause”).

2. Cases alleging that a defective product injured a con-

sumer pose heightened risks of arbitrary and excessive puni-

tive damage awards, including where, as here, the punitive

damage claim is pegged to a new brand of fraud claim. Such

cases Often involve tragic personal injuries likely to provoke

passion, prejudice and sympathy, and jurors are asked to

make an evaluation—in hindsight and on the basis of arcane

expert testimony and a complex factual record—as to

whether a product design posed an “unreasonable” risk.

As Judge Easterbrook explained in a products case in-

volving an alleged design defect in the emergency stop but-

ton on an escalator:

The ex post perspective of litigation exerts a hydrau-

lic force that distorts judgment. ... [N]o matter how

conscientious jurors may be, there is a bias in the ~

system. Ex post claims are overvalued and technical

arguments discounted in the process of litigation.

And the claims of crippled neighbors receive more

weight than do potential injuries to be felt by pas-

sengers (and stockholders) in other states.

Carroll v. Otis Elevator Co., 896 F.2d 210, 215-16 (7th Cir.

1990) (Easterbrook, J., concurring) (citation omitted). As

Justice Breyer has noted, our tort system “leaves the determi-

nation of ‘too much risk’ in the hands of tens of thousands of

different juries who are forced to answer the question not in

terms of a statistical life, but in reference to a very real victim

needing compensation in the courtroom before them,” result-

ing in “a system much criticized for its random, lottery-like

results.” Stephen Breyer, Breaking the Vicious Circle: To-

ward Effective Risk Regulation 59 (1992).

Moreover, as exemplified by the novel fraud claim as-

serted by respondent, theories of liability are constantly

evolving. This evolutionary process can result—as it did

here—in the imposition of punitive damages based on new

causes of action that did not exist at the time of the conduct

being punished. See, e.g., Flax v. DaimlerChrysler Corp.,

No. 02C-1288 (Tenn. Cir. Ct. 2005) (jury awarded punitive

damages on the basis of a post-sale failure-to-warn theory

never before recognized under Tennessee law). This feature

of product liability law not only bears on reprehensibility but

also calls into question whether, as a matter of due process,

any punitive damages at all can be imposed. See State Farm,

538 U.S. at 417 (“‘[e]lementary notions of fairness enshrined

in our constitutional jurisprudence dictate that a person re-

ceive fair notice . . . of the conduct that will subject him to

punishment’” (quoting Gore, 517 U.S. at 574)); Landgraf v.

USI Film Prods., 511 U.S. 244, 281 (1994) (“Retroactive

imposition of punitive damages would raise a serious consti-

tutional question.”). Notwithstanding these constitutional

concerns, courts have permitted juries to impose huge pun-

ishments in such cases.

Furthermore, “{j]ury instructions typically leave the jury

with wide discretion in choosing amounts, and the presenta-

tion of evidence of a defendant’s net worth creates the poten-

tial that juries will use their verdicts to express biases against

big businesses, particularly those without strong local pres-

ences.” State Farm, 538 U.S. at 417 (quoting Oberg, 512

U.S. at 432). As a result, juries sometimes impose massive

punitive damage verdicts where there is legally insufficient

evidence to impose any punitive damages at all. See, e.g.,

Jimenez v. DaimlerChrysler Corp., 269 F.3d 439 (4th Cir.

2001) (reversing $250 million punitive damage award in a

design defect case based on insufficiency of evidence).

3. Justice Breyer explained in his concurrence in Gore

that some courts “make ‘reprehensibility’ a concept without

constraining force.” 517 U.S. at 590. And “[w]ithout objec-

tive criteria on which to rely, almost any decision regarding

proportionality will be a matter of personal preference.”

TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443, 480-

81 (1993) (O’Connor, J., dissenting) (quoting Rummel v.

Estelle, 445 U.S. 263, 274-75 (1980)) (quotation marks omit-

ted); see also Adams v. Murakami, 813 P.2d 1348, 1352 (Cal.

1991) (“The determination of whether an award is excessive

is admittedly more art than science. The channeling of just

the correct quantum of bile to reach the correct level of puni-

tive damages is, to put it mildly, an unscientific process

complicated by personality differences.”) (quotation marks

omitted). These observations are especially true in product

liability cases.

Indeed, many courts in product cases ignore all objective

criteria in judging reprehensibility, instead focusing solely on

the fact the jury found malice and that serious injury resulted.

See Pet. App. 23a-24a (emphasizing that “[t]he harm to Wil-

10

liams was physical” and that this fact helps support “a very

significant punitive damage award”); Buell-Wilson v. Ford

Motor Co., 2006 WL 2002858, at *30 (Cal. Ct. App. July 19,

2006) (concluding that Ford acted reprehensibly in part be-

cause “[t]he evidence ... supports a finding that Ford’s ac-

tions were the result of intentional conduct and deliberate

decisions by Ford’s management,” and upholding $55 mil-

lion in punitive damages—plus an additional $23 million in

non-economic damages—based on an alleged design defect

in a vehicle, even though the vehicle fully complied with all

federal safety standards and even though the verdict had been

preceded by 13 consecutive defense verdicts in other cases

alleging the same defect).2

But this approach ignores that thousands of injuries are

caused annually by pillows, books, crayons, nails and electric

Christmas decorations, among other common household

products. See Jane Spencer & Cynthia Crossen, Why Do

Americans Believe Danger Lurks Everywhere? How a Fixa-

tion on Risk, Fed by Labs, Law and Media, Haunts World's

Safest Nation, Wall St. J., Apr. 24, 2003, at Al; Breyer, su-

pra, at 3 (“We regulate only some, not all, of the risk that

fills the world. Any one of us might be harmed by almost

anything—a rotten apple, a broken sidewalk, an untied shoe-

lace, a splash of grapefruit juice, a dishonest lawyer.”). Even

manufacturers of toothpicks “know” that people will be fa-

tally injured when using their products. See Corrosion Proof

Fittings v. EPA, 947 F.2d 1201, 1223 n.23 (Sth Cir. 1991)

(“over the next 13 years, we can expect more than a dozen

deaths from ingested toothpicks”). Thus, the fact that a prod-

uct—including a tobacco product——-has some harmful effects

2 But see Clark v. Chrysler Corp., 436 F.3d 594, 603 (6th Cir. 2006)

(reducing $3 million punitive damage award to $470,000 in wrongful

death case, and concluding that “because there is a good-faith dispute

over whether [{the] testing {advocated by plaintiff's expert] is necessary,

... Chrysler’s conduct does not evince a level of indifference to or reck-

less disregard for the safety of others” sufficient to justify a $3 million

verdict).

11

does not necessarily mean that it is unreasonably dangerous.

See Restatement (Second) of Torts § 402A cmt. i (1965)

(“[g]ood tobacco is not unreasonably dangerous merely be-

cause the effects of smoking may be harmful”).

Unlike traditional cases involving punitive damage

claims at common law, modern product liability cases do not

involve intentional efforts by the defendant to inflict injury

on the plaintiff. For example, in a product case, there is often

no dispute that the manufacturer knew the facts upon which

the plaintiff's experts base their conclusion that the product is

defective. The real dispute is one of policy rathe- than facts,

e.g., whether the undisputed facts render the product unrea-

sonably dangerous, whether the tests recommended by the

plaintiffs are a proper way to evaluate the risks, or whether

the utility of the challenged design outweighs the risk. See

David G. Owen, Problems in Assessing Punitive Damages

Against Manufacturers of Defective Products, 49 U. Chi. L.

Rev. 1, 37 (1982) (“The very notion of how much design

safety is enough”—and which design strikes the proper bal-

ance among competing interests—is often complex and rests

upon a “morass of conceptual, political and practical issues

on which juries, courts, commentators and legislatures

strongly disagree.”’).

As a result of the very nature of product liability claims,

once a jury concludes from the facts that the product was un-

reasonably dangerous, it is all too easy for a plaintiff to per-

suade a jury to take the next step and find that the manufac-

turer—simply by virtue of the fact that it knew that injuries

would occur and that the product might have been designed

differently to prevent some of those injuries—also “knew”

that the product was unreasonably dangerous and thus acted

with malice or “fraud” sufficient to support an award of puni-

tive damages. And once such findings are made, courts defer

to them and then often automatically deem the conduct

“highly reprehensible.”

In this regard, the Oregon Supreme Court’s decision to

“construe all facts in favor of plaintiff, the party in whose

12

favor the jury ruled” for purposes of reviewing punitive dam-

ages, Pet. App. 23a, is particularly troubling but all too famil-

iar. See Pet. for Cert. at 22-28. While the Court did not grant

review on this question, the extraordinarily deferential stan-

dard of review applied below is another reason to reject any

approach that authorizes using the reprehensibility analysis to

trump the ratio guidepost. This standard of review permits a

court, as the Oregon court did here, to defer to the plaintiff's

version of events, deem the defendant to have engaged in

“highly reprehensible” conduct based on that skewed depic-

tion and phantom findings that the jury never actually made,

and then declare the ratio guidepost inapplicable. Other

courts use a similar standard of review. See, e.g, Buell-

Wilson, 2006 WL 2002858, at *4 (“disregarding contrary

evidence submitted by” the defendant, even where uncontro-

verted).

A regulatory agency that set public policy on the basis of

such a distorted view of reality would correctly be seen to be

acting irresponsibly. But courts like the Oregon Supreme

Court assume that it is perfectly acceptable to make public

policy based on just such a view of the evidence. If this is

nevertheless an appropriate way for an appellate court to

view the evidence, the potential for serious error as a result

cuts strongly against any due process rule that als the rep-

rehensibility analysis to override the ratio guidepost.

4. Many products, including tobacco, are subject to in-

tense government regulation and scrutiny. See Medtronic

Inc. v. Lohr, 518 U.S. 470, 489 n.9 (1996) (noting congres-

sional finding that government-mandated warnings on ciga-

rette packages are “sufficient” to alert the public to the msks

of smoking). Yet plaintiffs’ lawyers often ask junes to act as

a “super-regulator” and to impose huge punishments to cause

the company to change its behavior, to protect the nghts of

consumers not before the court, and to counteract what the

plaintiff's lawyer will claim is inadequate government regu-

lation and enforcement. Although this Court condemned this

13

practice in State Farm,> it has continued, as the decision be-

low and other recent rulings demonstrate. See Pet. App. 17a-

21a; Buell-Wilson, 2006 WL 2002858, at *24 (“[P]unitive

damages are permitted in product liability actions precisely

because ‘[glovernmental safety standards and the criminal

law have failed to provide adequate consumer protection

against the manufacture and distribution of defective prod-

ucts. Punitive damages thus remain as the most effective

remedy for consumer protection against defectively designed

mass produced articles.’”) (citation omitted). This type of

argument necessarily distracts the jury’s attention away from

the conduct at issue and the actual! harm to the plaintiff—key

factors identified in State Farm—and the practice of permit-

ting such arguments is an additional reason for enforcing, not

overriding, the ratio guidepost in product liability cases.

5. Finally, product liability cases often produce very

substantial compensatory damage verdicts, including large

non-economic damage awards for pain and suffering and

emotional distress4 See, e.g., Buell-Wilson, 2006 WL

2002858, at *24 (affirming $23 million non-economic dam-

3 In State Farm, the Court condemned the plaintiffs’ effort to persuade

the jury to act as a national insurance regulator by imposing a large puni-

tive award. Counsel had argued to the jury that “[yJou're going to hear

evidence that even the insurance commission in Utah and around the

country are unwilling or inept at protecting people against abuses,” and

that “you, here, are going to be evaluating and assessing, and hopefully

requiring [the defendant] to stand accountable for what it’s doing across

the country.” 538 U.S. at 420 (quotations omitted); see also Breyer, su-

pra, at 59 (“Whatever its merits and problems, I do not believe the tort

system can serve as a substitute for government regulation.”’).

4 As Judge Niemeyer has recognized, non-economic damages are now

plagued by the same problems as punitive damages, such as inadequate

guidance to juries, which leads to radically varying and arbitrary awards.

See Paul V. Niemeyer, Awards for Pain and Suffering: The Irrational

Centerpiece of Our Tort System, 90 Va. L. Rev. 1401, 1417 (2004)

(“without rational criteria or defined limits, the pain and suffering award

becomes the same arbitrary deprivation of property as were punitive dam-

age awards before” State Farm and Gore).

14

age award (reduced from $118 million verdict), plus $55 mil-

lion punitive award (reduced from $246 million)); Alex Ber-

enson, For Merck, Vioxx Paper Trail Won't Go Away, N.Y.

Times, Aug. 21, 2005, at 1 (Texas jury assessed $24 million

in compensatory damages and $229 million in punitive dam-

ages against Merck based upon a death allegedly caused by

the drug Vioxx); Sandoz Pharms. Corp. v. Gunderson, 2005

WL 2694816 (Ky. Ct. App. 2005) (Kentucky jury assessed

$7.8 million in compensatory damages and $11.25 million in

punitive damages against a drug manufacturer); see also In-

terstate Southwest Ltd. v. Avco Corp., No. 29,385 (Tex. Dist.

Ct. 2005), appeal pending (trial court approved jury verdict

imposing $86.4 million in punitive damages and $1.7 million

consisting of alleged increase in insurance premiums in case

involving commercial dispute over cause of a defect in

crankshafts used in propeller-driven aircraft engines manu-

factured by the defendant).

This too militates strongly in favor of meticulous appli-

cation of the ratio guidepost in product cases, even where a

court finds high reprehensibility, as such large compensatory

awards serve a deterrent and even punitive function and re-

duce the need for a high ratio. State Farm, 538 U.S. at 426

(“The compensatory damages for the injury suffered here .. .

likely were based on a component which was duplicated in

the punitive award. Much of the distress was caused by the

outrage and humiliation the [plaintiffs] suffered at the actions

of their insurer; and it is a major role of punitive damages to

condemn such conduct. Compensatory damages, however,

already contain this punitive element.”).

Indeed, as the Court held in State Farm, where “com-

pensatory damages are substantial, then a lesser ratio, per-

haps only equal to compensatory damages, can reach the out-

ermost limit of the due process guarantee.” 538 U.S. at 425.

For all of the reasons discussed above, this observation car-

ries special force in the product liability context, and it can-

not be swept aside by a court based on a subjective finding,

construing all facts in favor of the plaintiff, that the conduct

at issue was highly reprehensible.

15

Il. DUE PROCESS REQUIRES THAT JURORS

BE INSTRUCTED THAT PUNITIVE

DAMAGES MUST BEAR A REASONABLE

RELATIONSHIP TO THE PLAINTIFF’S

HARM AND CANNOT BE BASED ON

ALLEGED HARM TO THIRD PARTIES

As mentioned above, plaintiffs in product cases often

exhort the jury to punish the defendant for harming individu-

als other than the plaintiff by widely marketing their products

to consumers. Sometimes this argument is framed as a de-

mand for “disgorgement,” i.e., that the amount of punitive

damages should be sufficient to force the defendant to relin-

quish all the profit it made from the product in question—

which, in the case of a mass-marketed product, is usually a

substantial amount. And sometimes the argument is pre-

sented as it was here, as a demand that the jury punish the

defendant for its conduct as to a// consumers in the State.

The Oregon Supreme Court erred in refusing to instruct

the jury that punitive damages must bear a reasonable rela-

tionship to the plaintiff's harm and that it could not punish

Philip Morris for conduct that harmed persons other than the

plaintiff. This Court should hold that this instruction was

required as a matter of federal constitutional law, just as it

held in State Farm that juries must be instructed on the con-

stitutionally-imposed territorial limitations on punitive dam-

age awards. See 538 U.S. at 422 (“[a] jury must be in-

structed ... that it may not use evidence of out-of-state con-

duct to punish a defendant for action that was lawful in the

jurisdiction where it occurred”) (emphasis added).

1. In both criminal and civil cases, this Court has held

repeatedly that proper instructions are crucial procedural pro-

tections that ensure that jury verdicts are consistent with con-

stitutional limits on state authority. In Taylor v. Kentucky,

436 U.S. 478 (1978), for example, this Court held that a state

court had erred in not instructing the jury on the presumption

of innocence, a constitutional safeguard required by due

process. In rejecting the argument that no instruction was

16

required because counsel had argued the point, this Court ex-

plained that “[i]t was the duty of the court to safeguard peti-

tioner’s rights, a duty only it could have performed reliably.”

Id. at 489; see also Carter v. Kentucky, 450 U.S. 288, 304

(1981) (“[MJost certainly, defense counsel’s own argument

... Cannot have had the . . . effect that an instruction from the

judge would have had.”’).

Similarly, in Cabana v. Bullock, 474 U.S. 376 (1986),

this Court held that “a jury’s verdict cannot stand if the in-

structions provided the jury do not require it to find each

element of the crime under the proper standard of proof.” Jd.

at 384. Indeed, as demonstrated by a long list of capital pun-

ishment cases, this Court has consistently required that jury

instructions clearly reflect the limitations that the Constitu-

tion places on jury discretion. See, e.g., Simmons v. South

Carolina, 512 U.S. 154, 163-64 (1994) (plurality op. of

Blackmun, J.) (where a State makes “future dangerousness”

relevant to capital sentencing, due process requires that the

jury be informed that a life sentence would render defendant

ineligible for parole).

This Court has followed a similar course in civil cases.

In Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971), for ex-

ample, this Court found fault in a trial court’s instruction to

the jury on the issue of whether information on a political

candidate*s criminal past was “relevant” because the flawed

jury instruction “left the jury far more leeway to act as cen-

sors than is consistent with the protection of the First and

Fourteenth Amendments.” Jd. at 275; see also Masson vy.

New Yorker Magazine, Inc., 501 U.S. 496, S11 (1991)

(“[T}he term [actual malice] can confuse as well as enlighten.

... In place of the term actual malice, it is better practice that

jury instructions refer to publication of a statement with

knowledge of falsity or reckless disregard as to truth or fal-

sity.”’).

The same need to confine jury discretion within appro-

priate limits requires that juries be instructed on governing

constitutional principles in punitive damages cases. “Vague

17

instructions . . . do little to aid the decisionmaker in its task

of assigning appropriate weight to evidence that is relevant

and evidence that is tangential or only inflammatory.” State

Farm, 538 U.S. at 418. As this Court has emphasized, jury

instructions are “a well-established and, of course, important

check against excessive awards.” Oberg, 512 U.S. at 433;

see also Bankers Life & Cas. Co. v. Crenshaw, 486 U.S. 71,

88 (1988) (O’Connor, J., joined by Scalia, J., concurring in

part and concurring in judgment) (noting that a court’s failure

to give the jury proper standards for imposing punitive dam-

ages “appears inconsistent with due process”). Proper jury

instructions will also help eliminate the need for appellate

courts to review for excessiveness.

2. The Oregon Supreme Court held that the trial court

properly denied Phili; Morris’s request for an instruction that

the jury could “not punish the defendant for the impact of its

alleged misconduct on other persons, who may bring lawsuits

of their own in which other juries can resolve their claims.”

Pet. App. 17a-18a. The Oregon Supreme Court held that this

instruction did not “correctly state federal due process law,”

asserting that Philip Morris could be punished for harm to

nonparties so long as “those other persons were Oregonians

who were harmed by the same conduct that had harmed Wil-

liams.” /d. at 20a-21a.

This was error. In State Farm, this Court squarely re-

jected the argument that an individual plaintiff may seek to

base a punitive damage award on alleged injuries to third par-

ties not before the court: “A defendant should be punished

for the conduct that harmed the plaintiff, not for being an un-

savory individual or business. Due process does not permit

courts, in the calculation of punitive damages, to adjudicate

the merits of other parties’ hypothetical claims against a de-

fendant under the guise of the reprehensibility analysis.” 538

U.S. at 423 (emphasis added). The Court emphasized that

“[p]unishment on these bases creates the possibility of multi-

ple punitive damages awards for the same conduct [because]

in the usual case nonparties are not bound by the judgment

18

some other plaintiff obtains.” Jd. (citing Gore, 517 US. at

593 (Breyer, J., concurring)).

This case vividly illustrates these concerns. At trial, re-

spondent failed to put on any specific evidence to show that

any particular person (other than Williams) continued smok-

ing because of the alleged fraud. Yet despite this evidentiary

void, respondent’s counsel urged the jury to assume that ten

out of every hundred smokers in Oregon would get cancer—

and that three or four of those ten would be Marlboro smok-

ers—and then exhorted the jury to use its punitive damage

award to punish Philip Morris for the harm caused to these

thousands (or more) of unidentified Oregon residents over

the span of forty years.

Imposing punitive damages on this basis creates a grave

risk of excessive, duplicative punishment for the same con-

duct. Indeed, because this was not a class action, nothing

would prevent each of the thousands of unidentified Orego-

nians whose rights respondent purported to vindicate from

filing his or her own individual action against Philip Morris

and advancing the same (unproven) assertions of widespread

harm that were advanced in this case. And nothing would

prevent each individual plaintiff from recovering the same

$79.5 million award of punitive damages that respondent re-

ceived here. Due process forbids such an unfair result. See

W. Union Tel. Co. v. Pennsylvania, 368 U.S. 71, 75 (1961) (a

property owner “is deprived of due process of law if he is

compelled to relinquish it without assurance that he will not

be held liable again in ... another jurisdiction or in a suit

brought by a claimant who is not bound by the first judg-

ment”); Ex Parte Lange, 85 U.S. (18 Wall.) 163, 168-69

(1873) (noting “the maxim” in civil cases “that no man shall

be twice vexed for one and the same cause”).

Other courts around the country have condemned this

approach. For example, in Johnson v. Ford Motor Co., 113

P.3d 82 (Cal. 2005), the plaintiffs—purchasers of a used

car—brought an individual fraud action challenging Ford’s

corporate resale policy. /d. at 85. Although the plaintiffs

—

19

suffered less than $18,000 in harm, they persuaded the jury to

punish Ford by “disgorging” the $10,000,000 in profits that

Ford supposedly earned from “a thousand or more” similar

transactions with other California consumers over a two-year

period. Jd at 95. No individualized proof was presented,

however, that any other consumer actually suffered harm

from Ford’s policy. /d. at 96.

The California Supreme Court emphatically rejected the

notion that a jury may award punitive damages in an individ-

ual action to punish the defendant for its conduct toward third

parties. It explained that punishing a defendant in this man-

ner would “‘create[] the possibility of multiple punitive dam-

ages awards for the same conduct,”’” and thus “create[] possi-

bilities for unfairness—to the defendant aiid other possible

claimants both—which may be of constitutional dimension.”

Id. at 94 (quoting State Farm, 538 U.S. at 423). The court

also recognized that assessing punitive damages in this man-

ner would impose on a defendant all of the burdens, but none

of the benefits and procedural protections, of a class action.

It noted that, in a true class action, “once the issues common

to the class have been tried, and assuming some individual

issues remain, each plaintiff must still by some means prove

up his or her claim, allowing the defendant an opportunity to

contest each individual claim on any ground not resolved in

the trial of common issues.” Jd. at 95. By contrast, the court

explained, the plaintiffs’ approach would permit an individ-

ual plaintiff to seek “a large punitive damages award on prof-

its earned from transactions with a large class of similar

claimants, but . . . without ever proving the specifics of those

‘hypothetical claims.’” Jd. (quoting State Farm, 538 U.S. at

423). Such an award would encompass gains “not necessar-

ily related” to the individual plaintiff's harm, and would

“therefore [be] likely to be disproportionate to the individual

plaintiff's compensatory award.” /d.

The Eighth Circuit applied the same logic in Williams v.

ConAgra Poultry Co., 378 F.3d 790 (8th Cir. 2004), where it

explained that awarding punitive damages to the non-class-

action plaintiff for ConAgra’s “similar conduct” toward other

20

employees would unfairly expose ConAgra to the threat of

duplicative punishment:

Where there has been a pattern of illegal conduct re-

sulting in harm to a large group of people, our sys-

tem has mechanisms such as class action suits for

punishing defendants. Punishing systematic abuses

by a punitive damages award in a case brought by an

individual plaintiff, however, deprives the defendant

of the safeguards against duplicative punishment that

inhere in the class action procedure.

Id. at 797. Because the judgment in such a pseudo-class ac-

tion is not binding on anyone other than the individual plain-

tiff, it takes only one award of punitive damages to wipe out

prior and subsequent victories. The California Supreme

Court characterized this as the “problem of ‘successive

prosecution’ in which a defendant that loses a single case

would also lose the benefit of all previous victories against

the same claim of misconduct.” Johnson, 113 P.3d at 94-95.

This concern is not merely hypothetical. By purporting

to elevate the single jury verdict here as the sole arbiter of the

relative merits of Philip Morris’s conduct with respect to

thousands of third parties, the Oregon Supreme Court’s ap-

proach would allow this verdict to erase and nullify the many

verdicts that have already been returned in favor of Philip

Morris relating to the same conduct.

The Oregon Supreme Court’s approach also places on

defendants the unfair burden of defending not only against

the underlying cause of action, but also against allegations

that thousands of individuals not before the court were sub-

jected to—and harmed by—the same conduct. In practical

terms, it is nearly impossible to mount such a defense, as ad-

dressing each claim would consume enormous resources and

“unacceptably fragment[] the proceeding into an endless se-

ries of ‘mini-trials,’ distracting the jury from the primary fo-

cus of the dispute.” Thomas B. Colby, Beyond the Multiple

Punishment Problem: Punitive Damages as Punishment for

21

Individual, Private Wrongs, 87 Minn. L. Rev. 583, 654

(2003).

Indeed, certification is often denied in actual class ac-

tions for this very reason. See, e.g., Castano v. Am. Tobacco

Co., 84 F.3d 734 (Sth Cir. 1996). It is anomalous, to say the

least, that the respondent in this case—by choosing to file an

individual action in the first instance, and thus avoiding the

onerous burdens of class certification and proving individual-

ized harm that arose in Castano and other cases—was

thereby effectively permitted to seek punitive damages on

behalf of a class of thousands.

3. The Oregon Supreme Court compounded its error by —

holding that the trial court properly denied the other portion

of Philip Morris’s requested instruction: that “[t]he size of

any punishment should bear a reasonable relationship to the

harm caused to Jesse Williams by the defendant’s punishable

misconduct.” Pet. App. 17a.

This was undeniably a correct statement of law. See

State Farm, 538 U.S. at 426; Gore, 517 U.S. at 581. Indeed,

the Fourth Circuit has held that this instruction must be given

when a jury is considering punitive damages under Virginia

_ or South Carolina law. See Johnson v. Hugo’s Skateway, 974

F.2d 1408, 1415, 1418 (4th Cir. 1992) (en banc) (holding

Virginia’s punitive damage charge unconstitutional because

the jury was not required to be instructed that punitive dam-

ages must be proportional to compensatory damages); Matti-

son v. Dallas Carrier Corp., 947 F.2d 95, 109-10 (4th Cir.

1991) Gury imposing punitive damages under South Carolina

law must be instructed that “any penalty imposed should bear

a relationship to the nature and extent of the conduct and the

harm caused”).

Such an instruction is an important procedural protection

that helps cabin jury discretion and reduces the likelihood of

the jury returning an arbitrary and unconstitutional punish-

ment. See Haslip, 499 U.S. at 18 (warning that “unlimited

jury discretion . . . in the fixing of punitive damages may in-

22. -

vite extreme results that jar one’s constitutional sensibili-

ties”) (citation omitted).

CONCLUSION

The judgment below should be reversed.

Respectfully submitted.

Of Counsel: THEODORE B. OLSON

HUGH F. YOUNG, JR. Counsel of Record

PRODUCT LIABILITY THOMAS H. DUPREE, JR.

ADVISORY COUNCIL, INC. AMIR C. TAYRANI

1850 Centennial Park Drive GIBSON, DUNN & CRUTCHER LLP

Suite 510 1050 Connecticut Avenue, NW

Reston, VA 20191 Washington, DC 20036

(703) 264-5300 (202) 955-8500 ‘

THEODORE J. BOUTROUS, JR.

DOMINIC LANZA

GIBSON, DUNN & CRUTCHER LLP

333 South Grand Avenue

Los Angeles, CA 90071

(213) 229-7000

Counsel for Amicus Curiae

July 28, 2006

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CORPORATE MEMBERS OF

THE PRODUCT LIABILITY ADVISORY COUNCIL

3M

A.O. Smith Corporation

Altec Industries

Altria Corporate Services, Inc.

American Suzuki Motor Corporation

Amgen Inc.

Anheuser-Busch Companies

Appleton Papers, Inc.

Arai Helmet, Ltd.

Astec Industries

BASF Corporation

Bayer Corporation

Bell Sports

Beretta U.S.A Corp.

BIC Corporation

Biro Manufacturing Company, Inc.

Black & Decker (U.S.) Inc.

BMW of North America, LLC

Boeing Company

Bombardier Recreational Products

BP America Inc.

Bridgestone Americas Holding, Inc

Briggs & Stratton Corporation

Brown-Forman Corporation

CARQUEST Corporation

Caterpillar Inc.

Chevron Corporation

Continental Tire North America, Inc.

Cooper Tire and Rubber Company

Coors Brewing Company

Crown Equipment Corporation

DaimlerChrysler Corporation

The Dow Chemical Company

E & J Gallo Winery

2a

E.I. DuPont De Nemours and Company

Eaton Corporation

Eli Lilly and Company

Emerson Electric Co.

Engineered Controls International, Inc.

Estee Lauder Companies

Exxon Mobil Corporation

Ford Motor Company

Freightliner LLC

Genentech, Inc.

General Electric Company

General Motors Corporation

GlaxoSmithKline

The Goodyear Tire & Rubber Company

Great Dane Limited Partnership

Guidant Corporation

Harley-Davidson Motor Company

The Heil Company

Honda North America, Inc.

Hyundai Motor America

ICON Health & Fitness, Inc.

Illinois Tool Works, Inc.

International Truck and Engine Corporation

Isuzu Motors Afnerica, Inc.

Jarden Corporation

Johnson & Johnson

Johnson Controls, Inc.

Joy Global Inc., Joy Mining Machinery

Kawasaki Motors Corp., U.S.A.

Kia Motors America, Inc.

Koch Industries

Kolcraft Enterprises, Inc.

Komatsu America Corp.

Kraft Foods North America, Inc.

Lincoln Electric Company

Magna International Inc.

Masco Corporation

3a

Mazda (North America), Inc.

Medtronic, Inc.

Mercedes-Benz of North America, Inc.

Merck & Co., Inc.

Michelin North America, Inc.

Microsoft Corporation

Mine Safety Appliances Company

Mitsubishi Motors North America, Inc.

Nintendo of America, Inc.

Niro Inc.

Nissan North America, Inc.

Novartis Consumer Health, Inc.

Novartis Pharmaceuticals Corporation

Occidental Petroleum Corporation

PACCAR Inc

Panasonic

Pentair, Inc.

Pfizer Inc.

Porsche Cars North America, Inc.

PPG Industries, Inc.

Purdue Pharma L.P.

Putsch GmbH & Co.KG

The Raymond Corporation

Raytheon Aircraft Company

Remington Arms Company, Inc.

Rheem Manufacturing

RJ Reynolds Tobacco Company

Sanofi-Aventis

Schindler Elevator Corporation

SCM Group USA Inc.

Shell Oil Company

The Sherwin-Williams Company

Smith & Nephew, Inc.

St. Jude Medical, Inc.

Sturm, Ruger & Company, Inc.

Subaru of America, Inc.

Synthes (U.S.A.)

4a

Terex Corporation

Textron, Inc.

TK Holdings

The Toro Company

Toshiba America Incorporated

Toyota Motor Sales, USA, Inc.

TRW Automotive

Tyson Foods, Inc.

Vermeer Manufacturing Company

Volkswagen of America, Inc.

Volvo Cars of North America, Inc.

Vulcan Materials Company

Water Bonnet Manufacturing, Inc.

Watts Water Technologies, Inc.

Whirlpool Corporation

Wyeth

Yamaha Motor Corporation, U.S.A.

Yokohama Tire Corporation

Zimmer, Inc. ;