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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1051%3A5

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2003
- **Citation:** 538 U.S. 1028

## Text

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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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1051%3A5. Public record. Not legal advice.