Amicus Curiae Brief — Ford Motor Co. v. Estate of Smith

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o/ | APR 7 2003 |

No. 02-1096 |

In the Supreme Court of the Awited-States————-

FORD MOTOR COMPANY,

Petitioner,

V.

ESTATE OF TOMMY SMITH ET AL.,

Respondents.

On Petition for a Writ of Certiorari to the

Supreme Court of the Commonwealth of Kentucky

BRIEF FOR THE PRODUCT LIABILITY ADVISORY COUNCIL, INC.,

THE CHAMBER OF COMMERCE OF THE UNITED STATES, THE

CALIFORNIA CHAMBER OF COMMERCE, FLORIDA CHAMBER OF

COMMERCE, INC., THE NATIONAL ASSOCIATION OF MANUFAC-

TURERS, AMERICAN CHEMISTRY COUNCIL, GENERAL AVIATION

MANUFACTURERS ASSOCIATION, PHARMACEUTICAL RESEARCH

AND MANUFACTURERS OF AMERICA, SPORTING GOODS

MANUFACTURERS ASSOCIATION, THE AMERICAN TORT REFORM

ASSOCIATION, THE CIVIL JUSTICE ASSOCIATION OF CALIFOR-

NIA, AND THE ILLINOIS CIVIL JUSTICE LEAGUE AS AMICI CURIAE

IN SUPPORT OF PETITIONER

HUGH F. YOUNG, JR. ANDREW L. FREY

Product Liability Advisory EVAN M. TAGER

Council, Inc. Counsel of Record

1850 Centennial Park Drive RICHARD B. KATSKEE

Suite 510 Mayer, Brown, Rowe & Maw

Reston, VA 2019] 1909 K Street, NW~

Washington, DC 20006

Counsel for amicus Product (202) 263-3000

Liability Advisory Council, Inc. Counsel for all amici

Additional Counsel Listed On Inside Cover

, Ri ae

ROBIN S. CONRAD

National Chamber Litigation

Center, Inc.

1615 H Street, NW

Washington, DC 20062

Counsel for amicus the Chamber of

Commerce of the United States

FRED MAIN

Senior Vice President & General

Counsel

California Chamber of Commerce

1215 K Street, Suite 1400

Sacramento, CA 95814

Counsel for amicus the California

_ Chamber of Commerce

Roy C. YOUNG

General Counsel

Florida Chamber of Commerce,

Inc.

225 S. Adams St., Ste. 200

Tallahassee, FL 32301

Counsel for amicus Florida

Chamber of Commerce, Inc.

JAN S. AMUNDSON

General Counsel

QUENTIN RIEGEL

Deputy General Counsel

National Association of

Manufacturers

1331 Pennsylvania Ave., NW

Washington, DC 20004

Counsel for amicus the National

Association of Manufacturers

DAVID F. ZOLL

DONALD EVANS

American Chemistry Council

1300 Wilson Blvd.

Arlington, VA 22209

Counsel for amicus American

Chemistry Council

JEFFREY R. SURAL

General Counsel

General Aviation Manufacturers

Association

1400 K Street, NW, Ste. 801

Washington, DC 20005

Counsel for amicus General

Aviation Manufacturers Association

Marjorie E. Powell

Senior Assistant General Counsel

PhRMA

1100 Fifteenth St., NW

Washington, DC 20005

Counsel for amicus the Pharmaceu-

tical Research and Manufacturers of

America

VICTOR E. SCHWARTZ

Shook, Hardy & Bacon LLP

600 14th St., NW, Ste. 800

Washington, DC 20005

SHERMAN JOYCE

American Tort Reform Association

1850 M St., NW, Ste. 1095

Washington, DC 20036

Counsel for amicus the American

Tort Reform Association

FRED J. HIESTAND

The Civil Justice Association

of California

1121 L Street, Ste. 404

Sacramento, CA 95814

Counsel for amicus the Civil

Justice Association of California

Katalin dnt. aCe “tbe

a TT |

TABLE OF CONTENTS

Page

TARE OF AUTIOORITIES «oo. cece ever wecescsces 1]

INTEREST OF THE AMICI CURIAE ................ ]

INTRODUCTION AND SUMMARY OF ARGUMENT . 1

“estes daminss zis ER ee 3

A. The Lower Courts Are Systematically Misapplying

The First Guidepost By Treating The Marketing Of

Products Entailing Risk Of Personal Injury As

ee ee 5

B. The Lower Courts Are Systematically Misapplying

The Second Guidepost By Viewing High

Compensatory Damages As Automatically Justifying

High Ratios And Large Punitive Awards .......... 10

C. The Lower Courts Need Guidance Regarding The

Proper Application Of The BMW Guideposts When

The Plaintiff Has Encouraged The Jury To Punish

The Defendant For The Effects Of Its Design

Decision On Individuals Who Are Not Before The

See epee ere ey en nee 15

(I)

il

TABLE OF AUTHORITIES

Page(s)

Cases:

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

SET UG. SEP Ce x sv eked epeaseneeeee passim

Burton v. R.J. Reynolds Tobacco Co.,

205 F. Supp: 2d 1253 (D. Kan. 2002) ......... Sem

Carroll v. Otis Elevator Co., 896 F.2d 210

(TA. TORE gon nest eeseee eee ee 6

Clark v. Chrysler Corp., 310 F.3d 461 (6th Cir. 2002) .. 10

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

S32 UB. SGA. 8 ces ewe een teens 1,2

Cooper Tire & Rubber Co. v. Tuckier,

826 So. 2d 679 (Miss.), cert. denied,

123 B. 4 FF ee ix oe Ee eee ens 10

Ford Motor Co. v. Ammerman, 705 N.E.2d 539

Gane. CX. Aah. BHP a kssvereseeeniaeeuen 11, 12, 17

Honda Motor Co. v. Oberg, 512 U.S. 415 (1994) ....... 2

Maiorino v. Schering-Plough Corp.,

695 A.2d 353 (N.J. Super. Ct. App. Div. 1997) .. 14,15

Memphis Cmty. Sch. Dist. v. Stachura,

ATT ULE. GPG x 6c eee eee en eek ans ook ens 14

North Am. Refractory Co. v. Easter,

988 S.W.2d 904 (Tex. Ct. App. 1999) ............ 10

Le ee

ill

TABLE OF AUTHORITIES — Continued

Page(s)

Owens-Corning Fiberglas Corp. v. Ballard,

739 So. 2d 603 (Fila. Dist. Ct. App. 1998),

approved 749 So. 2d 483 (Fla. 1999) ............. 17

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

PE OEOOED oecce dap evecvenccssrenscene ae

Romo v. Ford Motor Co., 122 Cal. Rptr. 2d 139

(Cal. Ct. App. 2002), pet. for cert. pending,

ee aera ees he ae eN aOR He $48 ORK O 9s 10

San Diego Bldg. Trades Council v. Garmon,

ee 14

Sand Hill Energy, Inc. v. Ford Motor Co.,

$3 5.W.30 483 (Ky. 2002) .........2008. jaa weees 11

Soule v. General Motors Corp., 882 P.2d 298

eee ee re 6

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

NEO OEE ox vos vi veo ee vee ves bs san weus l

Waddill v. Anchor Hocking, Inc., 27 P.3d 1092

te rere 10, 11

White v. Ford Motor Co., 312 F.3d 998 (9th Cir. 2002) . 16

Williams v. Philip Morris Inc., 48 P.3d 824

re er ree Li, 17

Rules:

ee 1

iV

TABLE OF AUTHORITIES — Continued

Page(s)

Miscellaneous:

Richard C. Ausness, Retribution and Deterrence:

The Role of Punitive Damages in Products Liability

Littpotion, TATY.6.5. EGHRGS) «sc sasccscsvnsss 7,8

Andrew C. Clausen & Annette M. Carwie,

Problems Applying the Life of Georgia v.

Johnson Case in the Liability Setting:

Where Do We Go With Punitive Damages

After BMW v. Gore?, 58 ALA. LAW. 46 (1997) ...... 8

Thomas B. Colby, Beyond the Multiple

Punishment Problem: Punitive Damages as

Punishment for Individual, Private Wrongs,

ee ee eee eee ee 17

David G. Owen, Problems in Assessing Punitive

Damages Against Manufacturers of Defective

Products, 49 U. CHI. L. REV. 1 (1982) ......... 6, 8,9

A. Mitchell Polinsky & Steven Shavell,

Punitive Damages: An Economic Analysis, |

111 HARV. L. BV. BOP CISFE) .. ww ccc eee ecss 13’

George L. Priest, Punitive Damages Reform:

The Case of Alabama, 56 LA. L. REV. 825 (1996) ... 15

Cass R. Sunstein et al., Assessing Punitive

Damages (With Notes on Cognition and Valuation in

ee gs eS |) eer eee re ere 15

Vv

TABLE OF AUTHORITIES — Continued

Page(s)

Aaron D. Twerski, Punitive Damages:

Through the Five Prisms, 39 VILL. L. REV. 353 (1994) 8

W. Kip Viscusi, Corporate Risk Analysis:

A Reckless Act?, 52 STAN. L. REV. 547 (2000) ... 6, 8,9

W. Kip Viscusi, Jurors, Judges, and the

Mistreatment of Risk by the Courts,

30 J. LEGAL STuD. 107, 116 (2001) ............... 6

INTEREST OF THE AMICI CURIAE

Amici Curiae are organizations that together represent

business companies and associations of businesses engaged in

all forms of manufacturing and other commerce throughout the

United States and around the world. In this era of expansive

tort litigation against corporations and even entire industries,

amici’s members have been forced to defend against products

liability lawsuits seeking millions and sometimes billions of

dollars in jury-imposed punitive damages. It has been amici’s

experience that, in such cases, the lower courts routinely have

been misapplying and, indeed, effectively nullifying the three

excessiveness guideposts identified by this Court in BMW of

North America, Inc. v. Gore, 517 U.S. 559 (1996). Amici are

uniformly of the view that the lower courts need guidance from

this Court as to the proper application of the BMW guideposts

in the products liability context and have joined together in both

this case and Ford Motor Co. v. Romo, No. 02-1097, to urge the

Court to grant plenary review in one or both of these cases to

provide that needed guidance.’

INTRODUCTION AND SUMMARY OF ARGUMENT

Over the last dozen years, this Court has addressed (or will

address) excessiveness challenges to punitive awards in five

cases — Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1 (1991);

TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443 (1993);

BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996); Cooper

Indus. Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 441-

' Letters of consent from both parties have been filed with the Clerk

of the Court. Pursuant to Rule 37.6, amici state that no counsel for

a party authored this brief in whole or in part, and that preparation

and submission of this brief was funded entirely by amicus curiae the

Product Liability Advisory Council, Inc. (“PLAC”). PLAC is a non-

profit association with 131 corporate members who seek to contribute

to the improvement and reform of the law governing the liability of

product manufacturers. A complete list of PLAC’s members is

attached hereto as Appendix A.

2

443 (2001); State Farm Mut. Auto. Ins. Co. v. Campbell, No.

01-1289 (argued Dec. 11, 2002).

Significantly, none of these cases involved a products

liability claim.* As a consequence, lower courts have found a

lack of clear guidance as to the proper application of the BMW

guideposts in the products liability context. Left to their own

devices, many courts have, like the court below, misapplied or,

like the California Court of Appeal in Romo, refused outright

to apply the guideposts, essentially on the ground that death (or

serious personal injury) is different. Ironically, there is no

context in which it is more important to ensure that punitive

damages are not arbitrary and do not exceed society’s interest

in rational deterrence than this one. Products are the lifeblood

of the American economy. Multimillion dollar punitive awards

rendered against manufacturers who have made good-faith

design decisions and whose products have been investigated

and found non-defective by expert federal safety agencies

deprive product manufacturers of property without fair notice

but have the inevitable effect of chilling innovation,

encouraging excessive precautions, and increasing the priceof ~-

products beyond the means of many potential purchasers.

Amici believe, therefore, that it is vitally important for the

Court to grant plenary review in a products liability case to

supply needed guidance as to the proper excessiveness inquiry

in this context. We further submit that this case and Ford v.

Romo are ideal for providing this needed guidance. Together,

these two cases provide the Court with the opportunity to

explain (i) the criteria that should be considered in determining

when a product manufacturer’s decision to employ a design

later found by a jury to be defective should be treated as

sufficiently reprehensible to warrant “a punitive sanction that

is tantamount to a severe criminal penalty” (BMW, 517 U.S. at

? The Court has used a product liability case to address the

procedural requirements for administration of punitive damages. See

Honda Motor Co. v. Oberg, 512 U.S. 415 (1994).

es

3

585); (ii) the role of the ratio guidepost when compensatory

damages are high, the probability of escaping liability for

tortious conduct is low, and the compensatory damages exceed

the defendant’s “gain” from choosing the design at issue over

the supposedly safer one proposed by the plaintiff; (iii) the

proper application of the comparative fines guidepost when the

plaintiff seeks to analogize the defendant’s tort to criminal

conduct;* and (iv) the significance of the fact that, when the

conduct involves the design of a mass-produced product, other

juries may either vindicate the defendant or seek to punish it for

the same design decision. As we discuss below, each of these

four issues recurs in products liability litigation and is well

illustrated in one or both of the two Ford cases that are now

before the Court.

ARGUMENT

Only seven years ago, this Court observed that a $2 million

punitive damages award is “tantamount to a severe criminal

penalty” and suggested that punishment of this magnitude must

be reserved for “egregious” misconduct. BMW, 517 U.S. at

585. While many courts have taken that admonition to heart in

cases that have not involved personal injury by ordering

remittiturs of large punitive awards to mere fractions of

themselves, we are aware of no post-BMW products liability

case in which a reviewing court has ordered a remittitur of a

* Although the Kentucky Supreme Court (unlike the California

Court of Appeal in Romo) did not analogize Ford’s conduct to a

crime, it misapplied the third guidepost in another way. As pointed

out in Ford’s petition (at 29-30), the Kentucky Supreme Court’s

effort to justify a $15 million punishment by comparing it to punitive

awards that post-dated the conduct is utterly inconsistent with the fair

notice concern that underpins the BMW guideposts. We fully endorse

Ford’s suggestion that review is warranted to make clear that, to the

extent the third guidepost invites consideration of other approved

punitive awards, it requires that those awards pre-date the defendant’s

tort and involve “comparable” conduct.

4

punitive award to less than seven figures.* In other words, in

every post-BMW products liability case involving a sustainable

-finding of punitive liability, the reviewing court concluded that

the defendant warranted a punishment “tantamount to a severe

criminal penalty.” These penalties have ranged from a $1.09

billion dollar punitive award (reduced from $4.8 billion) in a

case alleging that General Motors defectively designed its gas

tanks by placing them behind instead of above the rear axle to

the $290 million penalty in Romo to a $79.5 million penalty in

an individual smoker’s tobacco case to the $15 million

punishment in this case to a $1 million penalty in the case of a

fish bowl that shattered while being carried. It defies common

sense, however, to suggest that every products liability case in

which there is sufficient evidence to support some amount of

punitive damages is one in which a penalty of millions or

hundreds of millions of dollars is warranted. See BMW, 517

U.S. at 580 (“That conduct is sufficiently reprehensible to give

rise to tort liability, and even a modest award of exemplary

damages does not establish the high degree of culpability that

warrants a substantial punitive damages award.”). As this case

and Romo both well illustrate, the lower courts are routinely

misapplying the BMW guideposts to uphold seven, eight, and

nine-digit punitive awards precisely because the cases involve

products liability. The two cases are thus excellent vehicles for

providing the lower courts with much- needed guidance as to

the proper excessiveness analysis in the products liability

context.

* A list of post-BMW cases in which courts have reduced

multimillion dollar punitive awards to $500,000 or less is included as

Appendix B. Notably, not one of these cases arose in the products

liability context.

5

A. The Lower Courts Are Systematically Misapplying The

First Guidepost By Treating The Marketing Of

Products Entailing Risk Of Personal Injury As

Reprehensible Per Se.

“Perhaps the most important indicium of the reasonableness

of a punitive damages award” (BMW, 517 USS. at 575), the

degree of reprehensibility of the defendant’s conduct is also the

guidepost most susceptible to misapplication in products

liability actions. The linchpin of this guidepost is “the accepted

view that some wrongs are more blameworthy than others.”

Ibid. This guidepost thus requires reviewing courts tu locate

the conduct on a spectrum of reprehensibility, with a “high

degree of culpability” necessary for “a substantial punitive

damages award” (id. at 580). Reviewing courts have gone

astray by treating products liability as a category that uniformly

resides at the high end of the reprehensibility spectrum —

without any serious effort at intra-category comparison —

merely because such cases tend to involve serious personal

injury.

Unlike many other classes of torts, products liability claims

by definition involve physical injuries or death. Looking

through the virtually inescapable lens of hindsight bias at a

seriously injured plaintiff on the one hand and a large corporate

defendant that balanced safety against other benefits such as

product usefulness, attractiveness, and cost to consumers on the

other, juries are easily provoked to a state of outrage that leads

them to award astounding sums in punitive damages

irrespective of the true culpability of the defendant’s conduct or

the need for punishment and deterrence. As Judge Easterbrook

has explained in a case involving the design of the emergency

stop button on an escalator:

The ex post perspective of litigation exerts a hydraulic

force that distorts judgment. Engineers design

[complex products] to minimize the sum of

construction, operation, and injury costs. * * *

6

Come the lawsuit, however, the passenger injured

by a stop presents himself as a person, not a probability.

Jurors see today’s injury; persons who would be injured

if buttons were harder to find and use are invisible.

Although witnesses may talk about them, they are

spectral figures, insubstantial compared to the injured

plaintiff, who appears in the flesh. * * * [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 passengers (and

stockholders) in other states.

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

1990) (Easterbrook, J., concurring) (citation omitted); see also

W. Kip Viscusi, Jurors, Judges, and the Mistreatment of Risk

by the Courts, 30 J. LEGAL Stub. 107, 116 (2001)

(corporations’ “superior ex ante risk judgments may be

outweighed by the ex post reality of the accident victim”); W.

Kip Viscusi, Corporate Risk Analysis: A Reckless Act?, 52

STAN. L. REV. 547, 552 (2000) (mock juror study revealed that

even proper corporate balancing of risks against costs leads to

inflated punitive damages awards). Such hindsight bias is

compounded substantially when the plaintiff is able to show

that the defendant employed cost-benefit analysis in selecting

one particular design rather than another — that the defendant

“traded lives for dollars.” See David G. Owen, Problems in

Assessing Punitive Damages Against Manufacturers of

Defective Products, 49 U. Cul. L. REV. 1, 11 (1982)).°

* Tronically, the corporate cost-benefit analysis that drives juries to

award massive punitive damages is the very same risk-utility test that

jurors are instructed to apply in making the underlying liability

determination. See Soule v. General Motors Corp., 882 P.2d 298,

311 (Cal. 1994) (jury must evaluate allegedly defective automobile

design by balancing and weighing “such competing design

considerations as risk, benefit, feasibility, and cost’).

7

As this Court has recognized, appellate review can play a

vital role in filtering out such bias and helping to ensure that

punitive awards comport with the requirements of due process.

See Haslip, 499 U.S. at 21 (“appellate review makes certain

that the punitive damages are reasonable in their amount and

rational in light of their purpose to punish what has occurred

and to deter its repetition”). But when appellate courts

evalua ing reprehensibility make precisely the same errors that

infected the underlying jury verdicts, such review does nothing

to ameliorate the constitutional violations.

The present case is illustrative. Nominally applying the

reprehensibility guidepost, the court below found the degree of

reprehensibility of Ford’s conduct to be “substantial.” Pet.

App. 17a. It could do so, however, only by giving no weight to

the undisputed facts that (i) NHTSA had repeatedly

investigated Ford’s transmission without ever finding it to be

defective; (11) many other manufacturers had utilized the same

design; and (iii) numerous other juries had found the design not

be defective. Jbid.; Pet. for Cert. 6-7. Instead, it relied

exclusively on evidence purportedly showing that “for at least

seven years after Ford knew of the dangerous propensities of

the C-6 transmission, it continued producing and installing it in

vehicles.” Pet. App. 17a.

In other words, the court below held that Ford’s conduct

was at the high end of the reprehensibility spectrum merely

because Ford knowingly (i.e., intenticnally) mass produced and

sold a product that, although useful and highly desirable to

consumers, also entailed some risk of harm. In so doing, the

court turned on its head the first principle of products liability

law — that because most products entail some risk of harm, the

task of a responsible manufacturer is to strike a reasonable

balance between safety and a host of other considerations,

including “marketability, appearance, ease of operation,

durability, freedom from maintenance or repair, ease of

manufacture, and economics of materials and labor.” Richard

C. Ausness, Retribution and Deterrence: The Role of Punitive

8

Damages in Products Liability Litigation, 74 Ky. L.J. 1, 88-89

(1985). Thus, the same activities that are the hallmark of good

corporate behavior and should generally insulate the defendant

from all liability (see note 5, supra) — or, at most, should be a

basis for compensatory damages only — were treated as an

aggravating factor supporting a jaw-dropping nine-figure

punitive exaction.°

By conflating intentional conduct — i.e., cost-benefit

analysis in design decisions and the marketing of products —

with intentional harm — i.e., “affirmative acts of misconduct”

(BMW, 517 U.S. at 576) — the court below deprived the

reprehensibility guidepost of any constraining force in the

products liability context. As one commentator has explained,

design defect cases inevitably involve “‘conscious design

choice[s]’ * * * implicat[ing] a manufacturer’s decisionmaking

process concerning risk-utility”; “[ujnlike the standard

negligence case of yesteryear, the modern products liability

case comes with ‘intent’ built in.” Aaron D. Twerski, Punitive

Damages: Through the Five Prisms, 39 VILL. L. REV. 353, 356

(1994).’ The consequence of equating complex design

° Cf. Andrew C. Clausen & Annette M. Carwie, Problems Applying

the Life of Georgia v. Johnson Case in the Liability Setting: Where

Do We Go With Pinitive Damages After BMW v. Gore?, 58 ALA.

LAw. 46, 49 (1997) (“Regardless of how high the manufacturer sets

the design safety standard, when an accident does occur, the

plaintiff’s lawyer will have an expert to testify the product could have

been made safer, and the injury prevented, if the manufacturer had

just been willing to spend some additional money. As a result, an

argument for reprehensibility can be supported in virtually every

case.”’).

” See also, e.g., Viscusi, Corporate Risk Analysis, supra, 52 STAN.

L. REV. at 566 (“undertaking [cost-benefit] analysis and making a

conscious [and correct] decision to forego the improvement will

subject a company to the charge that it ‘deliberately intended to injure

the plaintiff”); Owen, supra, 49 U. CHI. L. REv. at 26 (“a

manufacturer’s choices involving necessary safety trade-offs and

9

decisions for inherently dangerous products like automobiles

with intentionally harming the injured plaintiff is that “every

actor could be held strictly liable [under that standard] for

punitive, in addition to compensatory, damages for any

consequence to any person that was contemplated in advance

of any course of action.” Owen, supra, 49 U. CHI. L. REV. at

22: see also id. at 23 (“The decision to market a product in a

certain condition with certain risks may have been a good one

because the expected benefits were great, and the product may

not have been legally defective at all, yet under this standard

the manufacturer remains subject to punishment for

‘disregarding’ the lesser risks by proceeding to sell the product

with any danger whatsoever’).

When that distorted view of intentionality is imported into

the reprehensibility analysis, any attempt by a manufacturer to

“think about risks in a systematic manner and to undertake

[cost-benefit] calculations to ensure that there is appropriate

risk balancing that is sufficiently protective” (Viscusi,

Corporate Risk Analysis, supra, 52 STAN. L. REV. at 550) will

be seen as the egregious misconduct justifying severe

punishment-under BMW. And the resulting sky’s-the-limit

punitive awards will deter the socially responsible commercial

behavior that products liability law was designed to foster.

Unfortunately, the Kentucky Supreme Court’s simple-

minded equation of knowledge that a product can cause death

or physical injury with high reprehensibility — while sloughing

off such objective indicia of low reprehensibility as the failure

of the expert safety agency to find the product defective after

thorough investigation, the consistency of the design with

industry standards and practice, the existence of room for

disagreement among experts, and the existence of prior

statistically inevitable risks always can be viewed in a sense as

intentional wrongs to consumers hurt by such products, as safe on

balance as such products may actually be”) (footnote omitted).

10

exonerations by other juries — is not unique.® To the contrary,

we are unaware of a single published post-BMW opinion

concluding that a manufacturer’s conduct was not sufficiently

egregious to warrant the penalty imposed. This Court’s

guidance as to the proper application of the reprehensibility

guidepost in the products liability context is therefore urgently

needed.

B. The Lower Courts Are Systematically Misapplying The

Second Guidepost By Viewing High Compensatory

Damages As Automatically Justifying High Ratios And

Large Punitive Awards.

In BMW, this Court quite properly rejected a “categorical

approach” to the ratio guidepost, reminding bench and bar that

it is impossible to “draw a mathematical bright line between the

® See, e.g., Clark v. Chrysler Corp., 310 F.3d 461, 482 (6th Cir.

2002) (“Chrysler’s conduct resulted in the loss of life, which clearly

evidences a greater disregard for the rights and safety of others than

failure to reveal that a car has been repainted.”); Romo v. Ford Motor

Co., 122 Cal. Rptr. 2d 139, 165 (Cal. Ct. App. 2002) (finding Ford’s

design decision to be “grossly reprehensible” notwithstanding fact

that the design complied with federal safety standards and was

consistent with industry standard and customs), pet. for cert. pending,

No. 02-1097; Cooper Tire & Rubber Co. v. Tuckier, 826 So. 2d 679,

690 (Miss.) (holding that, although only 1 out of 66,000 tires was

defective, “[w]hen this one defective tire results in a person’s death,

there is sufficient evidence to establish” reprehensibility), cert.

denied, 123 S. Ct. 97 (2002); Waddill v. Anchor Hocking, Inc., 27

P.3d 1092, 1098 (Or. Ct. App. 2001) (“‘conscious indifference to the

possibility that the fishbowl] could injure someone during ordinary

use and the failure to warn of that possibility * * * implies a wilful

disregard of a known risk to consumer safety’’), pet. for cert. pending,

No. 02-370; North Am. Refractory Co. v. Easter, 988 S.W.2d 904,

919 (Tex. Ct. App. 1999) (reprehensibility guidepost satisfied even

though defendant “believed that its products were safe,” because its

product “endangered the health and safety of at least three

individuals”).

11

constitutionally acceptable and the constitutionally

unacceptable that would fit every case.” 517 U.S. at 582-583.

Unfortunately, many lower courts have construed this

pronouncement to be an invitation to disregard the ratio

guidepost rather than to build an analytical framework through

case-by-case development. Nowhere is this problem more

evident than in the products liability context. Not only do some

courts employ a mathematical bright line rule that single-digit

ratios are per se indicative of a constitutionally permissible

punishment — no matter how large the compensatory damages

may be — but others have simply cast aside the reasonable

relationship requirement on the ground that the injuries were

severe.”

> See, e.g., Burton v. R.J. Reynolds Tobacco Co., 205 F. Supp. 2d

1253, 1263 (D. Kan. 2002) (allowing $15 million in punitive

damages, or 76.4 times compensatory damages, on theory that

personal injuries warrant greater ratios than economic injuries); Sand

Hill Energy, Inc. v. Ford Motor Co.,83 S.W.3d 483, 494 (Ky. 2002)

(affirming punitive damages of 5 times multimillion dollar

compensatory award because “[t]he harm to Tommy Smith was

death. The harm to his estate was the total destruction of his power

to labor and earn money. It would be impossible to overstate the

degree of harm.”); Williams v. Philip Morris Inc., 48 P.3d 824, 840-

842 (Or. Ct. App. 2002) (affirming punitive damages award of $79.5

million, or 97 times compensatory damages, because “the jury could

have found that defendant’s actions resulted in Williams’ death;

based on that finding, it could have believed, in light of defendant’s

profits, that only a large award would be proportionate to the harm

that defendant caused”); Waddill, 27 P.3d at 1099 (“It is common

knowledge that broken glass is dangerous and can cause serious

injuries. We cannot say that it is excessively disproportionate to

punish a company that makes glass products that can cause the degree

of damage that plaintiff suffered by an award that is no more than ten

times the actual injury that its actions caused.”); Ford Motor Co. v.

Ammerman, 705 N.E.2d 539, 562 (Ind. Ct. App. 1999) (affirming

ratio of 2.73:1 on $4 million compensatory award and 18.25:1 on

$400,000 compensatory award because, “[u]nlike Gore the injuries

suffered by the plaintiffs in this case are physical, permanent, and

12

The present case exemplifies the former problem. Though

not expressly jettisoning the ratio guidepost entirely, the

Kentucky Supreme Court disregarded this Court’s statement in

BMM that there 1s no single ratio that fits all cases, apparently

believing that it had discharged its duty under BMW by

reducing the punitive award from a ratio of approximately 7:1

to 5:1. See Pet. App. 20a-2la. It accordingly gave no

consideration to whether a 5:1 ratio that yields a $15 million

punitive exaction is indicative of excessiveness in view of such

factors as the absence of a financial motive for designing the

transmission as Ford did, the fact that Ford’s design was

identical to those of most other automakers, the fact that

NHTSA repeatedly has found the design not to be defective,

and the fact that numerous juries have exonerated Ford of even

compensatory liability for the design. See Pet. for Cert. at 6-7.

Romo exemplifies the latter problem. There, the court of

appeal expressly reasoned that “the importance of the [ratio]

factor is somewhat reduced” and affirmed the $290 million

punitive exaction notwithstanding the 63:1 ratio on the ground

that the multimillion dollar “wrongful death compensatory

damages do not fully reflect the harm to the victims.” 122 Cal.

Rptr. 2d at 166. In other words, the court evaded the ratio

guidepost by beginning with an already large compensatory

award and then positing that, because people died, the

compensatory damages necessarily understate the actual harm

to the plaintiffs — this despite the fact that California imposes

no cap on either economic or non-economic damages.

This Court already has indicated that high ratios like the one

in BMW weigh in favor of a finding of excessiveness when

damages are not small and the conduct, albeit an intentional

tort, is not egregious. It also has identified several

circumstances in which a high ratio of punitive to

compensatory damages may be justified: when “a particularly

egregious act has resulted in only a small amount of economic

severe’).

13

damages”; when “the injury is hard to detect,” suggesting that

the defendant could have expected to escape liability for its

conduct and be underdeterred as a result; and when “the

monetary value of noneconomic harm might have been difficult

to determine,” prompting concern that the defendant has not

been made to internalize the full social costs of its conduct and

thus has been underdeterred. BMW, 517 U.S. at 582. See A.

Mitchell Polinsky & Steven Shavell, Punitive Damages: An

Economic Analysis, 111 HARV. L. REV. 869, 877-900 (1998)

(explicating economic theory of deterrence). The Court has

not, however, had the opportunity to fill in other boxes in the

matrix. Most notably, it has not addressed the situation

presented here and in other products liability cases in which the

harm is not intentional, the compensatory damages are

themselves in the seven figures and far exceed any rational (and

fairly apportioned) measure of the defendant’s “ill-gotten” gain

from its conduct, and there is no possibility that the harm would

go undetected.

The present case and Ford v. Romo together present this

Court with an ideal opportunity to provide further guidance

regarding proper application of the ratio guidepost in this

recurring context. Although the ratios in the two cases are

dramatically different — 5:1 and 63:1 — both cases afford the

Court the opportunity to expound on the circumstances in

which even a modest ratio may be indicative of an excessive

punishment. In both cases, the defendant concededly did not

act with malicious intent; in both cases, the source of the harm

was not difficult to detect, obviating any concern that the

defendant might escape liability for tortious conduct; in both

cases, the compensatory damages are largely noneconomic and

run into the millions of dollars, making it unlikely that the

award understated the injury; and in both cases, the

compensatory damages far outstrip the amount the defendant

could be said to have “gained” by virtue of choosing the design

at issue over the one proffered by the plaintiffs’ expert.

In this case, for example, it is a matter of common sense

\

14

that Ford saved nothing by choosing to locate the point of

hydraulic release where it did. In Romo, the evidence was that

the cost of including a roll bar in 1978 and 1979 Broncos would

have been $10 to $12 per vehicle. When multiplied by the total

number of Broncos sold without a roll bar, the amount that Ford

can be said to have saved by choosing the design that it did

rather than the alternative design proposed by plaintiffs’ expert

is in the range of $1,485,000 to $1,782,000 — a fraction of the

$6.2 million in compensatory damages that plaintiffs received,

even without any additional punitive award."°

It is a matter of common sense and wide judicial and

scholarly recognition that, in such circumstances, the

compensatory damages ordinarily suffice to achieve appropriate

deterrence.'’ It follows that even a 1:1 ratio may therefore

'© Although for purposes of illustrating our point, we have calculated

the “gain” by reference to the total number of 1978 and 1979 Broncos

sold nationwide, we do not mean to suggest that it would be

permissible for a jury in an individual case, applying the law of a

single state, to seek to remove the entire gain from the nationwide

sale of a product. Not only would that violate the prohibition against

extraterritorial punishment articulated in BMW; it also would fail to

account for the exoneration and excessive aggregate punishment

problems discussed in Section C, infra.

'! See, e.g., Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 307

(1986) (“[d]eterrence * * * operates through the mechanism of

damages that are compensatory”) (emphasis omitted); San Diego

Bldg. Trades Council v. Garmon, 359 U.S. 236, 247 (1959) (“The

obligation to pay compensation can be, indeed is designed to be, a

potent method of governing conduct and controlling policy.”):

Maiorino v. Schering-Plough Corp., 695 A.2d 353, 370 (N.J. Super.

Ct. App. Div. 1997) (concluding that “the large compensatory

damage award to Maiorino of $435,000 by itself provided significant

deterrence even to an employer as large as Schering” and holding

therefore that “[a]n $8,000,000 punitive damage award was not

necessary to punish Schering or to deter it and other employers from

engaging in the type of conduct found to be discriminatory by the

15

reflect that the punitive award is excessive in relation to the

State’s interest in deterrence. Self-evident though these

concepts may seem, however, not a single reviewing court

confronted with a punitive award in the products liability

context has even contemplated the possibility that the factors

present in such a case may mandate that a lower ratio be

regarded as the dividing line between a permissible and an

unconstitutional punishment. Review is warranted to provide

needed guidance with respect to this guidepost.

C. The Lower Courts Need Guidance Regarding The

Proper Application Of The BMW Guideposts When The

Plaintiff Has Encouraged The Jury To Punish The

Defendant For The Effects Of Its Design Decision On

Individuals Who Are Not Before The Court.

Another feature of products liability cases that renders it

essential for this Court to give plenary consideration to such a

case is the fact that hundreds of thousands if not millions of

other people will have used or come into contact with the

product for which the plaintiff is seeking to impose punishment.

Indeed, the recitation of the number of other units on the market

jury”); Cass R. Sunstein et al., Assessing Punitive Damages (With

Notes on Cognition and Valuation in Law), 107 YALE L.J. 2071,

2082 (1998) (“Compensatory damages work well for deterrence if

and only if it is easy to identify the injurer, bring suit, and collect full

damages. Under these conditions, the wrongdoer faces liability for

the full social costs of the wrong. Thus there is no need for additional

damages if the probability of detection and successful suit for

compensation is 100%.”); George L. Priest, Punitive Damages

Reform: The Case of Alabama, 56 La. L. Rev. 825, 831 (1996)

(“[T]he strongest theory in the moder tort academy is that full

compensatory damages generate exactly the optimal level of

deterrence of accidents — not too little and not too much. For

purposes of deterrence or accident prevention, there is no need for

punitive damages of any dimension, not to mention unlimited

punitive damages, given the availability of full compensatory

damages.”’) (footnote omitted).

—————

16

or other people injured by the product is a routine feature of

closing arguments in such cases, as both the present case and

Ford v. Romo well illustrate. See Pet. for Cert. at 5, 15-16; Pet.

for Cert. at 3-4, 25 n.12, Ford Motor Co. v. Romo, No. 02-

1097. But, with the encouragement of plaintiffs’ counsel, juries

and reviewing courts consistently act as if the case before them

is the only one in which the defendant will be or has been sued,

while paradoxically assuming that the product is injuring or is

likely to injure multiple people, for which fact the defendant

should be severely punished.

This kind of approach presents twin problems of

constitutional magnitude. On the one hand, if a verdict that is

not limited to punishing for the injury caused to the particular

plaintiff is aberrational — either because the product has not in

fact injured anyone else or because the defendant has been

vindicated in the preponderance of other cases alleging the

same defect — it necessarily will overpunish the defendant in

violation of due process. In addition, to the extent it overrides

the determinations of juries in other states, such a verdict

violates the deeply embedded constitutional principle that states

are co-equal sovereigns. BMW, 517 U.S. at 571-573; see also

White v. Ford Motor Co., 312 F.3d 998, 1013-1020 (9th Cir.

2002). On the other hand, if other juries have in the past or

could in the future impose punitive damages against the

defendant for the same design, allowing the punishment to be

predicated on or sustained on the basis of statistics about the

number of units sold or the number of people injured is a recipe

for an excessive aggregate punishment that violates the

defendant’s due process rights.’

a

'? For a more detailed treatment of these and related problems

associated with the propensity of courts to allow punishment to be

based on the fact that the defendant’s conduct may have affected

other individuals who are not before the court, see Brief for the

Chamber of Commerce of the United States of America as Amicus

Curiae in Support of Petitioner, State Farm Mutual Automobile

Insurance Co. v. Campbell, No. 01-1289 (argued Dec. 11, 2002). For

17

Once again, the present case and Ford v. Romo are perfect

illustrations of these dual problems.'’ In the present case, the

record reflects that numerous other juries had vindicated Ford

in cases in which plaintiffs had claimed a defect in the design

of its transmission. See Pet. for Cert. at 7. In addition,

NHTSA, the expert federal agency, has repeatedly declined to

find the very defect upon which respondent’s judgment rests.

Id. at 6-7, 23 n.9. In such circumstances, it is the height of

unfairness to allow a litigant in an individual case to deprive

Ford of its vindications by prevailing upon the jury to punish it

on behalf of all 200 people who plaintiff alleged were killed as

a result of Ford’s design choice.

In Romo, it is undisputed that no other court or jury — in 25

a recent scholarly treatment of this subject, see Thomas B. Colby,

Beyond the Multiple Punishment Problem: Punitive Damages as

Punishment for Individual, Private Wrongs, 87 MINN. L. REV. 583

(2003) (arguing that there is no historical basis for — and the

Constitution forbids — allowing juries to impose punitive damages

for injuries to individuals other than the plaintiff).

'’ There are many other examples of cases in which courts

demonstrated no concern about the aberrational verdict and excessive

aggregate punishment problems. See, e.g., Williams, 48 P.3d at 839,

841 (reinstating $79.5 million punitive award in tobacco case in part

because it was “reasonably inferable from the evidence that

defendant’s products * * * caused a significant number of deaths each

year in Oregon during the pertinent time period,” while giving no

weight to fact that other juries in both Oregon and elsewhere had

been and would continue to be asked to punish defendant for the

same conduct); Ammerman, 705 N.E.2d at 560-564 (upholding $13.8

million punitive award derived from emount it would have cost

defendant to retool its factories in order to remedy the defect,

notwithstanding fact that other juries had exonerated defendant);

Owens-Corning Fiberglas Corp. v. Ballard, 739 So. 2d 603, 607

(Fla. Dist. Ct. App. 1998) (giving no weight to fact that defendant

had 7,000 pending claims against it, in course of upholding $31

million punitive award), approved, 749 So. 2d 483 (Fla. 1999).

18

years — has ever found the design defect alleged here. See Pet.

for Cert. at 4n.2, Ford Motor Co. v. Romo, No. 02-1097. Yet

plaintiffs sought and received a punishment that removed the

total profits from the saie of all 1978 and 1979 Broncos three

times over. In upholding the $290 million punitive exaction,

the court of appeal took no account of the fact that the verdict

might have been an aberration; nor did it consider the

possibility that, if anyone else ever were to be injured as a

result of the roof design, that person might be entitled to his or

her own punitive damages award, presumably again calculated

with reference to the number of vehicles marketed with this

design.

The consequence of allowing any one jury that power is to

ensure that, sooner or later, every manufacturer of any product

that is involved in a non-negligible number of injuries will be

subjected to at least one and maybe several enormoys punitive

exactions — even if, as in this case, the vast majority of juries

have concluded not only that the defendant did not act with an

egregious mental state but that the product was not defective at

all or, as in Romo, it appears that no other person has ever

alleged the defect found by the jury. In other words, a run-

away jury in a single case could arrogate to itself the power to

make a once-and-for-all determination that a product should

never have been placed on the market — thus wiping out all of

the other jury verdicts and regulatory findings exonerating the

defendant. Review is warranted to provide the lower courts

with needed guidance regarding this important, recurring issue

in products liability cases.

CONCLUSION

The petition for certiorari should be granted.

Respectfully submitted.

ANDREW L. FREY

EVAN M. TAGER

Counsel of Record

RICHARD B. KATSKEE

Mayer, Brown, Rowe & Maw

1909 K Street, NW

Washington, DC 20006

(202) 263-3000

—

APRIL 2003

APPENDIX

la

Appendix A

CORPORATE MEMBERS OF THE PRODUCT

LIABILITY ADVISORY COUNCIL, INC.

3M

Allegiance Healthcare Corporation

Altec Industnes

Altria Group, Inc.

American Household, Inc.

American Suzuki Motor Corporation

Andersen Corporation

Anheuser-Busch Companies

Ansell Healthcare, Inc.

Appleton Papers, Inc.

Astec Industries

Aventis Pharmaceuticals

BASF Corporation

Baxter International, Inc.

Bayer Corporation

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 Amoco Corporation

Bridgestone/Firestone, Inc.

Briggs & Stratton Corporation

Bristol-Meyers Squibb Company

Brown and Williamson Tobacco

Brown-Forman Corporation

Caterpillar Inc.

CCA Industries, Inc.

Centerpulse USA Inc.

Chevron Corporation

2a

Compaq

Continental Tire North America, Inc.

Cooper Tire and Rubber Company

Coors Brewing Company

Crown Equipment Corporation

DaimlerChrysler Corporation

Dana Corporation

Deere & Company

Delphi Corporation

Dorel Juvenile Group, Inc.

E & J Gallo Winery

E.I. DuPont de Nemours and Company

Eaton Corporation

Eli Lilly and Company

Emerson Electric Co.

Engineered Controls International, Inc.

Estee Lauder Companies

ExxonMobil Corporation

FMC Corporation

Ford Motor Company

Freightliner LLC

General Electric Company

General Motors Corporation

Georgia-Pacific Corporation

GlaxoSmithKline

GLOCK, Inc.

Great Dane Limited Partnership

Guidant Corporation

Harley-Davidson Motor Company

Harsco Corporation

Honda North America, Inc.

Hyundai Motor America

ICON Health & Fitness, Inc.

International Truck and Engine Corporation

Isuzu Motors America, Inc.

Johnson & Johnson

Johnson Controls, Inc.

3a

Joy Global, Inc.

Kawasaki Motors Corp., U.S.A.

Kia Motors America, Inc.

Kolcraft Enterprises, Inc.

Kraft Foods North America, Inc.

Lincoln Electric Company

Masco Corporation

Mazda (North America), Inc.

McNeilus Truck and Manufacturing, Inc.

Medtronic, Inc.

Mercedes-Benz of North America, Inc.

Michelin North America, Inc.

Miller Brewing Company

Mitsubishi Motors North America, Inc.

Niro Inc.

Nissan North America, Inc.

Novartis Pharmaceuticals Corporation

PACCAR Inc.

Panasonic

Pentair, Inc.

Pfizer Inc.

Pharmacia Corporation

Polaris Industnes, Inc.

Porsche Cars North America, Inc.

Purdue Pharma L.P.

Raymond Corporation

Raytheon Aircraft Company

Remington Arms Company, Inc.

Rheem Manufacturing

RJ Reynolds Tobacco Company

Schindler Elevator Corporation

SCM Group USA Inc.

Sears, Roebuck and Co.

Shell Oil Company

Siemens Corporation

Smith & Nephew, Inc.

Snap-on Incorporated

|

4a

Sofamor Danek, Medtronic Inc.

Solutia Inc.

Sturm, Ruger & Company, Inc.

Subaru of America, Inc.

Synthes (U.S.A.)

Textron Inc.

The Dow Chemical Company

The Goodyear Tire & Rubber Company

The Heil Company

The Procter & Gamble Company

The Sherwin-Williams Company

Thomas Built Buses, Inc.

Toro Company

Toshiba America Incorporated

Toyota Motor Sales, USA, Inc.

TRW, Inc.

UST (U.S. Tobacco)

Volkswagen of America, Inc.

Volvo Cars of North America, Inc.

Vulcan Materials Company

Water Bonnet Manufacturing, Inc.

Whirlpool Corporation

Wilbur-Ellis Company

Wyeth

Yamaha Motor Corporation, U.S.A.

Zimmer, Inc.

(This list is current as of March 24, 2003)

Sa

Appendix B

Punitive Awards in Excess of $1 Million Reduced

to $500,000 or Less After BMW

Leatherman Tool Group, Inc. v. Cooper Indus., Inc., 285 F.3d

1146 (9th Cir. 2002) (reducing $4.5 million punitive award to

$500,000 in unfair competition case); Morse v. Southern Union

Co., 174-F.3d 917 (8th Cir. 1999) (affirming remittitur of

$6,250,000 million punitive award to $400,000 in age

discrimination case); EEOC v. HBE Corp., 135 F.3d 543 (8th

Cir. 1998) (reducing aggregate punitive award from $4.8

million to $480,000 in race discrimination case); FDIC v.

Hamilton, 122 F.3d 854 (10th Cir. 1997) (reducing $1.2 million

punitive award to $264,000 in fraud case); Kimzey v. Wal-Mart

Stores, 107 F.3d 568 (8th Cir. 1997) (reducing $50 million

punitive award to $350,000 in sexual harassment/constructive

discharge case); Hill v. Airborne Freight Corp., 212 F. Supp.

2d 59 (E.D.N.Y. 2002) (reducing $1.8 million punitive award

to $800,000 in race discrimination case); Murray v. Solidarity

of Labor Org. Int’l Union Benefit Fund, 172 F. Supp. 2d 1134

(N.D. Iowa 2001) (reducing $2.5 million punitive award to

$200,000 in libel case); Komlosi v. Fudenberg, 2000 WL

351414 (S.D.N.Y. Mar. 31, 2000) (reducing $10 million

punitive award to $500,000 in case in which defendant was

held liable for making false allegations of sexual misconduct

against plaintiff); Food Lion, Inc. v. Capital Cities/ABC, Inc.,

984 F. Supp. 923 (M.D.N.C. 1997) (reducing $4 million and

$1.5 million punitive awards to $50,000 and $250,000 in fraud

case), rev'd on other grounds, 194 F.3d 505 (4th Cir. 1999);

Leab v. Cincinnati Ins. Co., 1997 WL 360903 (E.D. Pa. June

26, 1997) (reducing $5.5 million punitive award to $35,000 in

insurance bad faith case); Rush v. Scott Specialty Gases, 930 F.

Supp. 194 (E.D. Pa.. 1996) (reducing $3 million punitive award

to $300,000 in sex discrimination/sexual harassment case),

rev’d on other grounds, 113 F.3d 476 (3d Cir. 1997); Strickland

v. Liberty Nat’l Ins. Co., 710 So. 2d 423 (Ala. 1998) (affirming

6a

reduction of $5 million punitive award to $37,500 in case

alleging fraud in the sale of insurance); BMW of N. Am., Inc. v.

Gore, 701 So. 2d 507 (Ala. 1997) (reducing what initially was

$4 million punitive award to $50,000 in case alleging

fraudulent nondisclosure); Foremost Ins. Co. v. Parham, 693

So. 2d 409 (Ala. 1997) (reducing aggregate punitive award of

$15 million to $348,000 in case alleging fraud in the sale of

insurance); Norcon, Inc. v. Kotowski, 971 P.2d 158 (Alaska

1999) (reducing $3,770,261 punitive award to $500,000 in

sexual harassment case); Clifton v. Massachusetts Bay Transp.

Auth., 11 Mass. L. Rptr. 621 (Mass. Super. Ct. 2000) (reducing

$5 million punitive award to $500,000 in racial

discrimination/hostile environment case); Bell v. Helmsley,

2003 WL 1453108 (N.Y. Sup. Ct. Mar. 4, 2003) (reducing $10

million punitive award to $500,000 in employment

discrimination case); Apache Corp. v. Moore, 960 S.W.2d 746

(Tex. Ct. App. 1997) ($1,687,500 punitive award reduced to

$43,370 in case alleging that negligence in construction of gas ©

well caused it to “blow out”). See also Jnter Med. Supplies,

Ltd. v. EBI Med. Sys., 181 F.3d 446 (3d Cir. 1999) (reducing

what initially was $100,600,000 punitive award to $1 million

in case involving various business torts).