Petition for Writ of Certiorari — Ford Motor Co. v. Ramon Romo

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Supreme Court. U.S.

FILED

(4 } 021097 Jan 21 2003

OPMOE OF THE CLERK

No.

IN THE

Supreme Court of the Anited States

FORD MOTOR COMPANY,

Petitioner,

Ws

JUAN RAMON ROMO ET AL.,

Respondents.

On Petition For A Writ Of Certiorari

To The California Court Of Appeal,

Fifth Appellate District

PETITION FOR A WRIT OF CERTIORARI

JOHN M. THOMAS THEODORE J. BOUTROUS, JR.

MICHAEL J. O’ REILLY Counsel of Record

FORD MOTOR COMPANY THOMAS G. HUNGAR

Parklane Towers West MIGUEL A. ESTRADA

Three Parklane Boulevard THOMAS H. DUPREE, JR.

Suite 300 WILLIAM E. THOMSON

Dearborm, MI 48126-2568 GIBSON, DUNN & CRUTCHER LLP

(313) 337-2515 1050 Connecticut Avenue, NW

Washington, DC 20036-5306

(202) 955-8500

Counsel for Petitioner

(Additional counsel listed on inside cover)

WALTER DELLINGER

BRIAN D. BOYLE

JONATHAN D. HACKER

MATTHEW M. SHORS

O’MELVENY & MYERS LLP

555 13th Street, N.W.

Washington, D.C. 20004

(202) 383-5300

Additionai Counsel for Petitioner

QUESTIONS PRESENTED

This case involves the largest personal injury award af-

firmed on appeal in United States history: a $290 million pu-

nitive damage verdict in a product liability lawsuit that arose

from a single traffic accident, and that was based on an al-

leged defect in a vehicle designed more than a quarter-

century ago. The award is 63 times the compensatory award,

362 times the maximum available civil fine, and 29,000

times the maximum available criminal fine. The questions

presented are:

1. Whether, in reinstating a $290 million verdict to pun-

ish an automaker for a 25-year-old design feature that sur-

passed federal safety standards, comported with industry cus-

tom, and had never before been found defective, the Califor-

nia Court of Appeal improperly nullified the three eXcessive-

ness guideposts articulated in BMW vy. Gore, 517 U.S. 559

(1996), and produced an award that violates due process.

2. Whether the California Court of Appeal erred by

holding, in conflict with BMW and White vy. Ford Motor Co.,

312 F.3d 998 (9th Cir. 2002), that a single California jury

could use its verdict to deprive petitioner of its total nation-

wide profits from sales of the product at issue.

3. Whether, in applying the BMW guideposts de novo as

required by Cooper Industries, Inc. v. Leatherman Tool

Group, Inc., 532 U.S. 424 (2001), the California Court of

Appeal erred by holding, contrary to the decisions of other

courts, that reviewing courts should give conclusive weight

to all findings of fact that the jury might have made, rather

than findings the jury must have made, and by deferring to

what the court acknowledged was a “huge” and “somewhat

arbitrary” punishment.

ll

PARTIES TO THE PROCEEDINGS

AND RULE 29.6 STATEMENT

Plaintiff Juan Romo, in addition to bringing suit in his

individual capacity, is proceeding as guardian ad litem for his

sisters Evangelina and Maria Romo, and as administrator of

the Estates of Ramon, Salustia and Ramiro Romo.

Ford Motor Company has no parent corporation, and no

publicly held company owns ten percent or more of its stock.

ili

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .......ssssssssccscsssesesssssssssseseeeecececccec.. i

PARTIES TO THE PROCEEDINGS AND RULE

Gut +b hint 6 actag + ae ii

WOME Pe PRT CRON TI onan ccosensseseeseorscsscess...,.. v

OPINIONS AND ORDERS BELOW.....eeeeccccsscssssseeeeeeecccce... ]

oa EEE l

CONSTITUTIONAL PROVISIONS INV IN II ccccdicnsieccencs l

STATEMENT OF THE CASE .oeee..sccscecsccssssssssssccsesczeeecccccc.. l

REASONS FOR GRANTING THE WRIT ooeeeeccccscssseecce--.. 7

I. REVIEW IS WARRANTED TO PREVENT

NULLIFICATION OF BMW IN PRODUCT

RES aE 9

A. The Court Of Appeal’s Per Se “Gross

Reprehensibility” Rule Contradicts

BMW And Other Decisions .0.........cccccceccc--.--...., 9

B. The Court Of Appeal’s Disregard For

The Ratio Guidepost Contradicts BMF’

And Other Decisions..............0..ceccecs0e.0..--........ 16

C. The Court Of Appeal’s Holding That

The Comparable Penalties Guidepost Is

“Inapplicable” Contradicts BMW And

MPR SPOCIINOONE 5. sesscessisenssecsssscesrseeseseseces..... 17

D. The Court Of Appeal’s Use Of Ford’s

Overall “Wealth” To Trump The BMW

Guideposts Contradicts BMW And

I a 19

iv

Il. REVIEW IS WARRANTED TO CLARIFY

THE CONSTITUTIONAL LIMITS ON

ONE STATE’S POWER TO PUNISH.

BASED ON OUT-OF-STATE SALES AND

PEG Rie ncn vinetthvainieeenniiinaianynniebinndninntnnienemmnesnenentens 23

Il. REVIEW IS WARRANTED TO

DETERMINE HOW COOPER

INDUSTRIES DE NOVO STANDARD

APPLIES TO REVIEW OF A JURY’S

TABLE OF AUTHORITIES

Pages

CASES

Ace v. Aetna Life Ins. Co., 139 F.3d 1241.

GONE BOM cosesicioiieneeeeee i Ses ave oS 19

Aken v. Plains Elec. Generation & Transmission

Coop., Inc., 49 P.3d 662 (N.M. SRR Nemes 28

Alley v. Gubser Dev. Co., 785 F.2d 849

SP Ge IS aitbcieredaeeaner ee Pit 14

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

Oe Ras WO ace i es 20

Barber v. Nabors Drilling USA, Inc., 130 F.3d

Fae We initia es low Rae

Bielicki v. Terminix Int’l Co., 225 F.3d 1159

SIAL TM Aichi as nh ad in 18

BMW v. Gore, 517 U.S. 559 (1996) ...c.cecccseccssssosceseecoee. assim

Bowden v. Caldor, Inc., 710 A.2d 267

Oe ei lnabdensicrtiadte cut ere hs 15. ists 21

Browning-Ferris Indus. of Vermont, Inc. v.

Kelco Disposal, Inc.,-492 U.S. 257 ( Se besiciseicreses 19, 29

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

No. 981564, 2001 WL 1246676 (Utah Oct.

19, 2001), cert. granted, 70 U.S.L.W. 3580

(U.S. June 3, 2002) (No. 01-1289) ......ececcecccscscecese. passim

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

ba LS AD. eal ny ene a eae ee ee 15

Central Bering Sea Fishermen’s Ass'n v.

Anderson, 54 P.3d 271 (Alaska 2002).......cccecssscecsescsooees 27

Clark v. Chrysler Corp., 310 F.3d 461

Ce re NE nahin is aeeticatnsaidhineapibibieciiinninnciiatiieaiaiitens 10

Continental Trend Resources, Inc. v. OXY USA,

BR BOE FPG Ce Cale BI sci cccennscsssenssscsciressoons 21

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

BUD ig, FI Seti TT TD cinerecittcenndtpnntianitneniaiiianii passim

Corrosion Proof Fittings v. E.P.A., 947 F.2d

CBOE Cae RU siihiscccclnctiainsiealttanteiscceiaiicincncibnanitaninn 14

Davis v. Rennie, 264 F.3d 86 (1st Cir. 2001),

cert. denied, 122 S. Ct. 1909 (2002) .............cseeeseeseeeeees 19

Devlin v. Kearney Mesa AMC/Jeep/Renault,

Reb. 255 Cae. Ras FE Bee Ca aiteaiieesesecciinersinnsiienic 29

Drabik v. Stanley-Bostitch, Inc., 997 F.2d 496

CINE IRE: EN acini cnstacinesaneepnssncuscaiaiiaiieiitic leiclabiatiniae 14

FDIC v. Hamilton, 122 F.3d 854

(RGR: CAE: SED tiniictckenicnesstactniceincnsonidebbiilicasiieiial ei 16

Granite Constr. Co. v. Superior Court, 149 Cal.

Sa, FIT Cee vicieaceaneinaiiiisaisnnitiastaebaiieaiiieaiicliitiaio 18

Harte-Hanks Communications, Inc. v.

Connaughton, 491 U.S. 657 (1989) .........cccesceseseeeeeeeeees 29

Hillrichs v. Avco Corp., 514 N.W.2d 94

CRIN FOOD cncicctnncieistinniectanticgieibissiedpbiniainiaiiomuiiiitcinns 12

Honda Motor Ce. v. &Serg, 512 U.S. 415

CRG) ..cxssiniscnsiasiemeticaieniidialiaeiinaiiidaiaaimagiiiiaieiaiaibeii 15, 28, 29

In re Exxon Valdez, 270 F.3d 1215

CUR CD, IE Dicsceivitetitecteelnncetlairaticaeeiaiteiiaiiatiiisiiuinliia 19, 28

In re Exxon Valdez, No. A89-0095-CV, 2002

WL 31761256 (D. Alaska Dec. 9, 2002)............ccsseeseees 18

Jenkins v. Ohio Cas. Ins. Co., 794 So. 2d 228

Vii

Johansen v. Combustion Eng’g, Inc., 170 F.3d

tg RSE eat Se ee 20

Kimzey v. Wal-Mart Stores, Inc., 107 F.3d 568

cin | ETS RO. RR ETE ee ae 19

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

Inc., 285 F.3d 1146 (9th Cir. 2002)........ceccececseseeeees 21, 28

Lee v. Edwards, 101 F.3d 805 (2d Cir. 1996) ....c.cceccesssssssee. 19

Letz v. Turbomeca Engine Corp., 975 S.W.2d

Par TTON Siac HUD, BED iicscbctstsnvneenecrsenednssscdssadesesnerceses 17

Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S.

UE Witioiioniiteiethiniialalinda dt 16

Mosing v. Domas, 830 So. 2d 967 (La. RRS see 18

Owens-Corning Fiberglas Corp. v. Ballard, 739

So. 2d 603 (Fla. Dist. Ct. App. 1998)........cccccsccscseseeosee. 24

Owens-Corning Fiberglas Corp. v. Malone, 972

cant oe. sch, py ECR RET A 11

Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1

UTE Divssadiirinnsibnininaitiniiplilals Nadas 16, 30

Patterson v. P.H.P. Healthcare Corp., 90 F.3d

og Le S| Canes 7 Teen sili 16, 19

People v. Rowland, 4 Cal. 4th 238 EE ae, 3

Pulla v. Amoco Oil Co., 72 F.3d 648

SEER STIL Ee ol 21

Richards v. Michelin Tire Corp., 21 F.3d 1048 -

tech ase lie eset At aE CRA TIL 13

Satcher v. Honda Motor Co., 52 F.3d 1311

I 12, 14

Sheldon v. Vermonty, No. 98-2277, 2002 WL

31498908 (D. Kan. Nov. 8, 2002) .......cccccccsscscssesecsesoeeee. 25

viii

Smith v. Ford Motor Co., 83 S.W.3d 483

SI BE eleeciitnnciipasstiininataieiteenestinnirghiiiihiniatttamienin eeahed passim

Smith v. Ingersoll-Rand Co., 214 F.3d 1235

CEG Be ate cintccllenanintistincinneavinietittianmnicniniiinsens 24

Gada v. Tame, SER TEE, BP CIGES) sccssescccsicesssrssessecnecerseseeess 17

Southwestern Tel. & Tel. Co. v. Danaher,

Fe hs FN cntetcaniittnaiitlitntihenninenenhnstiinimienerivatis 13

Summers v. A.L. Gilbert Co., 69 Cal. App. 4th

Re I cesieitninentaiehschiiiecilaleatiibvinebiiniibiininianeniinttininkakeieneese 3

TXO Production Corp. v. Alliance Resources

Gig FR ee a i aaitithntitinctinicanssnhiivtninenictinmeeen 9

United States v. Bajakajian, 524 U.S. 321

a cciktibesheiitl lites diniiitnesatchtanaidaaielaiaiidiaasniesinaiiinecigggts 19

United States v. Powell, 423 U.S. 87 (1975).......cccssseeeseeeeee 13

White v. Ford Motor Co., 312 F.3d 998

RERUN passim

. Wightman v. Consolidated Rail Corp..,

op fF 8 gE Eee tee 11

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

ee Gas Aas OTE tnbeeipernnenceninnintinenicimegas 11, 20, 27

Wilson v. IBP, Inc., 558 N.W.2d 132

SUITE SUID scistlcirsccichacinmeeiaeeienciptensnsisicetsinihaiinhchiiaaintaineniattn 20

CONSTITUTIONAL PROVISIONS

re IR rs Wee os OF Mitaeccicrentncensesneccenetnscccenteceincess l

Ei, Seen, Ss Wi, UF Te OU: ot ceiensercineeninctcenhaplotendantiaealouninabdicte |

STATUTES

BO UES. © Be iciteciattenrstinitsitrisidaerestlpbannenstacisvnmeses l

SE I i taceatiidsitaennnnaiididate 18

Ck. CT SII csecescsscntsisenncenessvietenennenenunntasstero, 5, 28

OTHER AUTHORITIES

2 American Law Institute, Enterprise

Responsibility for Personal Injury:

Reporter's Staaddy (1991) ...2...r0rersersccccesererersesesseeseseeeeseeses 22

Stephen Breyer, BREAKING THE VICIOUS

CIRCLE: TOWARD EFFECTIVE RISK

RRBGULA TION (1992) ...-ccccccocecerescseccoesescsceseceses Sitakteceinobens 15

2 California Book of Approved Jury

Instructions, § 14.71 (9th ed. 2002).......cccccccsecsccecseseoeees 29

Reid Hastie et al., Looking Backward in

Punitive Judgments: 20-20 Vision? in Cass

R. Sunstein et al., PUNITIVE DAMAGES: How

"PRM IIE CII snscernsctassisensosieencecinsicancssssssese occas. 15

W. Page Keeton et al., PROSSER AND KEETON ON

THE LAW OF TORTS § 36 (Sth ed. 1984)... cceccessesssssses 13

David G. Owen, Problems In Assessing Punitive

Damages Against Manufacturers Of

Defective Products, 49 U. Cui. L. REV. 1

era ielsasicssdatcienta tps scmsiiienctraidribnecesebiceaseLosias-des css, 15

David G. Owen, Punitive Damages in Products

Liability Litigation, 74 MICH. L. REV. 1257

Ci prn eicbesbcienibinssabitbcnsiNdindabbiibetindiciiiie ei 19

RESTATEMENT (THIRD) OF TORTS: PRODUCTS

UU 14

W. Kip Viscusi, Corporate Risk Analysis: A

Reckless Act?, 52 STAN. L. REV. 547 (2000) ....cseecseessse. 15

PETITION FOR A WRIT OF CERTIORARI

Petitioner Ford Motor Company (“Ford”) respectfully

petitions this Court for a writ of certiorari to review the

judgment of the California Court of Appeal in this case.

OPINIONS AND ORDERS BELOW

The court of appeal’s June 28, 2002 opinion reinstating

the $290 million verdict (Pet. App. 1a-41a) is reported at 99

Cal. App. 4th 1115. The trial court’s new trial order setting

aside that verdict (Pet. App. 42a-46a) is unreported.

JURISDICTION

The court of appeal entered its judgment on June 28,

2002. The California Supreme Court denied Ford’s timely

petition for review on October 23, 2002. This Court has ju-

risdiction pursuant to 28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

The Due Process Clause provides: “No State shall ...

deprive any person of life, liberty, or property without due

process of law.” U.S. CONST., amend. XIV, § 1.

The Commerce Clause provides: “The Congress shall

have Power ... [t]o regulate Commerce ... among the sev-

eral States.” U.S. CONST., art. I, § 8, cl. 3.

STATEMENT OF THE CASE

This case, along with the petition in Ford Motor Co. v.

Smith, No. 02-_____ (“Ford’s Smith Pet.”), which is being .

filed contemporaneously, graphically illustrates how, in the

product liability context, lower courts are nullifying this

Court’s decisions in BMW and Cooper Industries.

Adopting the approach of many lower courts, the court

of appeal invoked the fact that this is a product liability case

involving personal injury to justify its evasion of all three

BMW guideposts, and it then reinstated a $290 million ver-

dict that the trial judge had overturned as “fundamentally

suspect” and tainted by juror misconduct reflecting bias and

prejudice. The court branded Ford’s conduct “grossly repre-

hensible” without regard to Ford’s good faith basis for be-

lieving its design decisions we12 lawful. Pet. App. 38a. The

court held that the BMW ratio guidepost is of “reduced ...

importance” in wrongful death cases, and pronounced the

third guidepost—comparable penalties—wholly “inapplica-

ble.” Pet. App. 39a. The court held that Ford’s “enormous

monetary resources” provided “fair notice” that such a huge

fine could be imposed (id. at 36a)—contradicting other

courts in the process—and expressly rejected Ford’s argu-

ment that it violated BMW’s ban on extraterritorial punish-

ment to premise the punitive award on Ford’s nationwide

sales and overall profits on the vehicle, Pet. App. 38a-39a &

n.3, thus creating a direct conflict with the Ninth Circuit’s

recent decision in White, 312 F.3d 998. The California Su-

preme Court denied review by a 4-3 vote. Pet. App. 47a-48a.

This Court’s ruling in State Farm Mutual Automobile In-

surance Co. v. Campbell, No. 01-1289 (argued December 11,

2002), may well address many of the issues raised by this

petition, and the Court should at the very least hold this case

pending its decision in State Farm. But this case also pre-

sents the Court with a unique opportunity to resolve impor-

tant, recurring, and distinct questions that have divided and

confused the lower courts regarding the meaning of BMW in

the product liability context, an area where juries have re-

turned a flood of massive punishments in recent years. Ple-

nary review by this Court is warranted.

1. This case arises from a single accident involving a

15-year-old used 1978 Ford Bronco. On June 20, 1993, the

Romo family had been driving all night when another vehicle

cut off their Bronco on a California highway. The Bronco’s

driver, Juan Romo, swerved to the right, then back to the left,

crossing both lanes of traffic at about 65 miles per hour and

plowing onto the dirt shoulder of the road along the median.

When he jerked the Bronco sharply to the nght at aboui 50

miles per hour, it rolled over “several times.” Pet. App. 2a.

Ramon and Salustia Romo and their son Ramiro were killed,

and Juan, Evangelina, and Maria Romo were injured.

Plaintiffs brought strict product liability and negligence

claims against Ford, alleging that the Bronco’s roof was

defectively designed and manufactured because it did not

withstand the forces generated by the rollovers. Plaintiffs

also alleged that Ford had negligently failed to warn consum-

ers of that purported defect.

It was not disputed that the 1978 Bronco’s roof—the

front third of which was made of metal, the rear two-thirds of

removable fiberglass—was comparable to the designs of

other sport utility vehicles (“SUVs”) of that era, including the

Jeep and the International Harvester Travelall. Reporter’s

Transcript (“RT”) 2517-19, 2592, 6815-16. Further, al-

though the 1978 Bronco had been designed a quarter-century

before trial, at a time when there was no federal roof strength

requirement for SUVs such as the Bronco, it was undisputed

that the 1978 Bronco’s roof was strong enough to surpass by

100 percent the federal government’s then-existing roof

strength requirements for passenger cars. RT 6864-67. In

fact, the 1978 Bronco outperformed by 30 percent today’s

roof strength standard for SUVs, which the National High-

way Traffic Safety Administration (“NHTSA”) did not

promulgate until 1994. RT 6866-67.

The trial court rejected Ford’s proposed jury instructions

that would have informed the jury of the relevance of these

and other factors to the punitive damages calculation. Pet.

App. 49a-53a; RT 9449-50. The court also denied Ford’s

motion in limine to exclude under BMW evidence of its

wealth and out-of-state sales and profits. Clerk’s Transcript

(“CT”) 177-86; RT 343-46.! As a result, plaintiffs’ counsel

was free to, and did, argue that the jury shouid inflict a pun-

ishment based on Ford’s worldwide wealth and nationwide

sales.of the Bronco, sufficient to change the behavior of Ford

and consumers throughout the Nation. F or instance, plain-

tiffs’ counsel asserted that Ford had made $160 million in

1 Under California law, Ford’s motion in limine sufficed to preserve its

objection. People v. Rowland, 4 Cal. 4th 238, 263-64 n.3 (1992); Sum-

mers v. A.L. Gilbert Co., 69 Cal. App. 4th 1155, 1184 (1999).

profits on nationwide sales of 1978-79 Broncos, and urged

jurors to award “a billion dollars in punitive damages” to

make “the front page of U.S.A. Today ... the front page of

the New York Times ... [and] the front page of the Wall

Street Journal.” RT 9585-88. He told jurors that “[y]ou’ve

got to say a number that gets on the front page of every

newspaper in the country” and “get[s] the world’s attention.”

RT 9588-89.

Even though the case involved a single accident, even

though the roof design was incozporated in 140,000 vehicles

and had never been found to have caused any other injury in

25 years,2 even though no person had ever- petitioned

NHTSA to find the design unsafe, and even though NHTSA

had been regulating roof-crush performance and evaluating

accident data for decades, plaintiffs’ counsel urged the jury to

“educate NHTSA” by returning a huge verdict against Ford.

RT 9591. Counsel insisted that “[iJt isn’t just government”

that can “change the vehicles,” and incited the California jury

to “[t]ake this car out of its existence” and “stop that mother

in Montana from putting her children in the back of the car.”

Id. at 9999-10000. He emphasized that this was “an impor-

tant verdict for .. . the whole country.” Jd. at 9473.

The jury acted accordingly. Although it rejected plain-

tiffs’ failure to warn claim, it returned a verdict for plaintiffs

on their manufacturing and design defect claims, holding

Ford 78 percent responsible for plaintiffs’ injuries (and allo-

cating 10 percent of the fault to Juan Romo, and 12 percent

to the other driver). Pet. App. 3a. It awarded $6.2 million in

compensatory damages, $4.6 million of which was assessed

against Ford. Jd. Then, by a vote of 9-3—the minimum nec-

2 Plaintiffs’ counsel admitted during closing argument that “there’s no

evidence that there’s any lawsuits with respect to 1978-79 Broncos be-

fore. .. . There’s been no evidence of that.” RT 9990.

essary for a verdict—the jury found Ford guilty of “malice”

and imposed $290 million in punitive damages. Jd.3

2. In its post-trial motions, Ford, inter alia, reiterated its

Due Process and Commerce Clause arguments, asserted that

the $290 million verdict was unconstitutionally excessive,

and moved for a new trial on juror misconduct grounds.

Supplemental CT 1-37; CT 3400-20.

The court, finding that prejudicial juror misconduct oc-

curred during deliberations, granted a new trial on punitive

damages. The court found that one juror, in violation of the

court’s admonitions, had “told other jurors of a ‘60 Minutes

I’ program which aired [during the trial] and that featured

alleged fire problems from rear-end collisions involving

older Ford Mustangs” as well as “graphic depictions of the

burn injuries suffered” by passengers. Pet. App. 44a. The

court had excluded evidence of Mustang and other rear-

impact fires as irrelevant and unduly prejudicial in this non-

fire, non-rear-impact case. RT 329-33, 6360-62, 6377-82.

The same juror also (inaccurately) told other jurors that

Lee Iacocca, who had been Ford’s president during the

Bronco’s development and had often been mentioned during

trial, had said on the show that Ford’s policy was to defend

or settle lawsuits rather than recall vehicles or correct de-

fects.4 Pet. App. 44a. This juror “actually stated that the in-

terview with Lee Iacocca showed Ford’s malice,” CT 1649,

justifying punitive damages. Pet. App. 44a.

Another juror, “after repeatedly telling the jurors that

they needed to ‘save the babies,’ . . . told the jury in great de-

tail of a morbid nightmare she supposedly had the night be-

fore in which her child and the other jurors’ children were

killed by a repeatedly rolling-over Bronco while the Ford at-

- 3 Inan unintentional tort case, California defines “malice” as “despi-

cable conduct” carried on with a “willful and conscious disregard for the

rights or safety of others.” CAL. CIVIL CODE § 3294(c).

4 As the trial court found, Iacocca made no such statement on the pro-

gram. Pet. App. 44a.

é

torneys and witnesses, armed with guns, mockingly chanted,

“Where’s the proof, where’s the proof?’” Pet. App. 44a.

This juror also repeatedly told her fellow jurors that they “did

not need to follow the law because saving babies was too im-

portant.”” Jd. (quotation marks omitted).

The trial court ruled that, in light of this misconduct,

“{flaimess dictates a new trial on the issues of malice and

punitive damages.” Pet. App. 45a. The court explained: “Ju-

ror misconduct occurred by virtue of the injection of external

evidence and influences, prejudgment of the case, and a re-

fusal to follow the law.” Jd. The court found that “the delib-

erative process on [punitive damages] was presumptively in-

fested with passion and prejudice,” rendering the verdict

“fundamentally suspect.” Jd.

3. The court of appeal reversed. The court rejected the

trial court’s conclusions regarding juror misconduct by sim-

ply “presum[ing]” that the trial court’s generic instructions

and the foreperson’s admonitions would have cured any

prejudice. Pet. App. 14a. In addition, although the court

recognized that the unprecedented amount of the award was

“somewhat arbitrary,” id. at 37a, it nevertheless reinstated the

entire $290 million penalty.

In applying BMW, the court performed what it character-

ized as a de novo review under Cooper Industries. In fact,

however, the court simply incorporated its highly deferential

“substantial evidence” review under state law, assuming that

the jury resolved every contested factual issue against Ford.

Pet. App. 20a. The court also disregarded Ford’s undisputed

compliance with federal safety standards and industry cus-

tom. Even though it could not point to any evidence that any

individual Ford employee had acted with malice or believed

that the company was “compromis[ing] consumer safety”

when designing the Bronco, id. at 32a, the court deemed

Ford’s conduct “grossly reprehensible” and “despicable” be-

cause it resulted in personal injury. Jd. at 30a, 38a.5

Although conceding that the “great disparity between the

compensatory and punitive damages award” supported an

excessiveness finding, the court deemed that great disparity

to be immaterial “because wrongful death compensatory

damages do not fully reflect the harm to the victims.” Jd. at

39a. Similarly, the court held BMW’s “comparable penal-

ties” guidepost wholly “inapplicable” because the “malicious

conduct could have resulted in substantial imprisonment if

committed by an individual rather than a corporation.” Pet.

App. 39a.

The court also rejected Ford’s argument that BMW pre-

cluded punishing Ford based on nationwide sales of the

Bronco, and punished Ford based on its “over $100 million”

in profits from such sales. Pet. App. at 36a. The court

claimed this was justified because “the interest California

_ Seeks to protect—individual human lives—is neither unique

to California nor limited to its own citizens.” Jd. at 38a-39a

& n.3.

Citing Ford’s financial status at the time of trial in 1999,

the court held that Ford “has been on notice ‘for more than a

century’ that California regards it as necessary to impose

penalties related to the wealth of the defendant,” and thus

upheld the $290 million award because Ford “is a huge com-

pany with enormous monetary resources.” Jd. at 36a, 40a.

REASONS FOR GRANTING THE WRIT

In BMW, this Court held that the Due Process Clause

forbids “grossly excessive” punitive damage awards, and that

claims of excessiveness are to be evaluated by reference to

three “guideposts”——reprehensibility, ratio, and comparable

penalties—to determine whether the defendant had “fair no-

tice” of the severity of the punishment that could be imposed.

5 The court even went so far as to deem Ford’s safety improvement to

the 1980 Bronco’s roof design further proof of Ford’s reprehensibility as

to the 1978 model. Pet. App. 35a.

517 U.S. at 574-85. Notwithstanding that clear directive, the

court below held that the three BMW guideposts are either

inapplicable or essentially meaningless in product liability

cases. With respect to the reprehensibility prong, for exam-

ple, the court held that mere awareness that a product poses a

potential risk of personal injury (no matter how small) suf-

fices to establish gross reprehensibility, notwithstanding the

defendant’s compliance with government and industry stan-

dards and its good faith belief that the risk was not unreason-

able. As shown below, that holding is irreconcilable with

BMW, and contradicts longstanding punitive damage doctrine

applied by state and federal courts around the country.

The court of appeal created a further conflict by holding

that the ratio prong has reduced significance in wrongful

death cases, and that a punitive damage award that is 63

times the very substantial compensatory award suffers from

no constitutional infirmity. In addition, the court of appeal

squarely held that the comparable penalties prong is “inappli-

cable” whenever the underlying conduct could result in im-

prisonment if committed by an individual—a holding that is

_ directly at odds with numerous decisions of other courts, in-

cluding the Ninth Circuit, the regional circuit whose jurisdic-

tion includes California. Further compounding its errors and

the conflict among lower courts, the court below concluded

that the constitutional requirement of “fair notice” was satis-

fied by Ford’s wealth, which purportedly sufficed to put Ford

on notice that it could be subjected to a massive punitive

damage award at the whim of a California jury based on con-

dvct that occurred a quarter-century ago. Moreover, the

court’s holding that a single jury could deprive Ford of its

total nationwide profits from the 1978 Bronco conflicts with

White v. Ford Motor Co., in which the Ninth Circuit rejected

such an approach as unconstitutional.

In reinstating the punishment, the court denied Ford any

meaningful appellate review. Applying California’s exceed-

ingly deferential “substantial evidence” standard, the court

characterized its skewed depiction of the “facts” hypotheti-

cally found by the jury as the de novo review mandated by

Cooper Industries, and then deferred to the arbitrary punish-

ment that the jury picked from thin air.

The court of appeal’s ruling defies the constitutional

limitations on punitive damages that this Court has repeat-

edly recognized, and creates or compounds numerous splits

among the lower courts concerning the applicability of BMW

and Cooper Industries in the context of product liability

cases. There are obvious and straightforward solutions to

these problems and conflicts, but only this Court can provide

them. Plenary review is warranted. Alternatively, the Court

should hold this case pending its decision in State Farm.

I. REVIEW IS WARRANTED TO PREVENT

NULLIFICATION OF BMW IN PRODUCT

LIABILITY CASES

The court of appeal interpreted BMW in a way that evis-

cerates all three due process guideposts in product liability

cases involving large corporate defendants. Its reasoning

typifies the approach followed by many lower courts, con-

flicts with BMW itself and other decisions, and underscores

the urgent need for guidance from this Court.

A. The Court Of Appeal’s Per Se “Gross

Reprehensibility” Rule Contradicts BMW

And Other Decisions

1. This Court’s prior decisions analyzing punitive dam-

ages for excessiveness have involved intentional torts such as

fraud and unfair competition; this case, by contrast, alleges a

negligently designed vehicle roof. As Justice Kennedy rec-

ognized in TXO Production Corp. v. Alliance Resources

Corp., punitive damages that would be appropriate in the

context of an intentional tort may not be appropriate in “a

case of negligence [or] strict liability.” 509 U.S. 443, 468

(1993) (Kennedy, J., concurring).

The court of appeal acknowledged that Ford “did not in-

tend” to cause harm, and even applying the deferential “sub-

stantial evidence” test, the court could not point to any evi-

dence that any individual Ford employee had acted with

ed

10

“malice.” Pet. App. 32a, 38a. Instead, the court held that the

jury was entitled to “infer” malice “by piecing together

knowledge and acts” of various unidentified Ford personnel

stretching back for decades. Jd. at 25a. The court recognized

that there was no evidence that the Bronco’s roof design had

ever previously been deemed defective; indeed, plaintiffs’

counsel had admitted that, despite a quarter-century’s use of

over 140,000 of these vehicles, there was no evidence of

other lawsuits even alleging this design defect. And the evi-

dence is uncontroverted that the design both comported with

industry custom and surpassed the federal standards that ex-

isted at the time of the design—and that exist today.

The court of appeal, however, rejected these facts as ir-

relevant to reprehensibility. The court instead invoked the

fact that the plaintiffs alleged personal rather than economic

injury as a basis for evading BMW, Pet. App. 38a (“the award

here cannot be compared to cases involving a business fraud

resulting only in economic harm’) (citation omitted), and it

deemed Ford’s conduct grossly reprehensible and “despica-

ble” because, for purposes of making a profit, Ford marketed

a product that “could kill people.” Jd. at 25a-26a (emphasis

added); id. at 38a (Ford’s conduct “involved mass production

and marketing” of a product “purely for defendant’s eco-

nomic betterment’’).

Other courts, like the court of appeal here, have adopted

a rule that design defects per se reflect serious reprehensibil-

ity under BMW because the manufacturers “knew” that their

products were capable of causing serious injury. See, e.g.,

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

(finding “substantial” reprehensibility where NHTSA had

declined to find 1977 design defective and design complied

with industry standards, but personal injury resulted many

years after design); Clark v. Chrysler Corp., 310 F.3d 461,

482 (6th Cir. 2002) (finding negligent design that comported

with federal safety standards reprehensible because it “re-

sulted in the loss of life’); Williams v. Philip Morris, Inc., 48

P.3d 824, 840 (Or. Ct. App. 2002) (reprehensible to market

product “that could cause serious illness or death”) (emphasis

11

added); Owens-Corning F; iberglas Corp. v. Malone, ‘972

S.W.2d 35, 46 (Tex. 1998) (“[c]onduct that endangers a per-

son’s health or safety merits more punishment than purely

economic harm”) (emphasis added); cf. Wightman v. Con-

solidated Rail Corp., 715 N.E.2d 546, 554 (Ohio 1999) (“this

case distinguishes itself ... from BMW” because it involves

“massive property damage” and “physical injuries”).

Thus, while this Court in BMW stated that “Teprehensi-

bility” is “[p]erhaps the most important indicium” of exces-

siveness, 517 U.S. at 575, these lower courts have rendered

that factor meaningless in product liability cases. These

courts have misconstrued a passage in BMW observing that

the harm in that case was “purely economic in nature” and

that the defendant “evinced no indifference to or reckless dis-

regard for the health and safety of others” (id. at 576) to

mean that, where conduct results in personal injury, BMW

does not require meaningful, objective judicial review of rep-

rehensibility. But this approach “make[s] ‘reprehensibility’ a

concept without constraining force, i. é., [it] deprive[s] the

concept of its constraining power to protect against serious

and capricious deprivations.” BMW, 517 U.S. at 590

(Breyer, J., concurring) (discussing Alabama standard).

2. The court of appeal’s refusal to consider Ford’s rea-

sonable, good faith belief that its conduct was lawful, based

(among other things) on its compliance with federal safety

standards and industry custom, squarely conflicts with BMW.

In BMW, for example, the jury found that defendant’s policy

with respect to the disclosure of factory repairs constituted

“gross, oppressive, or malicious’ fraud” even though that

policy was consistent with statutes defining disclosure obli-

gations in about 25 States. 517 U.S. at 565. Alabama had no

such disclosure statute, and this Court “accept[ed] . . . the

jury’s finding that BMW Suppressed a material fact which

Alabama law obligated it to communicate.” 517 U.S. at 579-

80. Nevertheless, this Court recognized that BMW, in at-

tempting to determine what it was required to disclose,

“could reasonably rely on [other] state ... statutes for guid-

ance.” Jd. at 579. The Court also noted that the “diversity”

12

of state laws “demonstrates that reasonable people may dis-

agree about the value of a full disclosure requirement.” Jd. at

570. The Court concluded that a failure to disclose is “less

reprehensible . . . when there is a good faith basis for believ-

ing that no duty to disclose exists,” id. at 579-80, and when

“a corporate executive could reasonably interpret” the law to

allow nondisclosure. Jd. at 578.

This same analysis is equally applicable in product li-

ability cases like this one. Even if some amount of punitive

damages can be imposed because plaintiffs’ paid experts dis-

agree with Ford—and with Ford’s experts, the federal gov-

ernment, and the entire motor vehicle industry concerning

roof design—the existence of grounds for reasonable people

to disagree on this issue, and of strong objective indicators

that Ford’s conduct was both lawful and reasonable, surely is

relevant to the reprehensibility analysis, just as the state dis-

closure statutes were relevant to that issue in BMW. The

court of appeal, however, rejected any such inquiry here, de-

claring that “it avails [Ford] nothing that other auto manufac-

turers also used fiberglass roofs on contemporaneous fiber-

glass utility vehicles” and dismissing the fact that the 1978

Bronco surpassed 1994 federal roof strength standards by 30

percent as “merely coincidental.” Pet. App. 29a, 35a-36a.

The decision below also conflicts with the traditional

approach taken by most state and federal courts. Most courts

recognize that where there is ground for reasonable dis-

agreement about legal obligations, punitive damages are pro-

hibited. See, e.g., Satcher v. Honda Motor Co., 52 F.3d

1311, 1317 (Sth Cir. 1995) (vacating award in defective de-

sign case where “there is a genuine dispute in the scientific

community as to” the reasonableness of the design); Hillrichs

v. Avco Corp., 514 N.W.2d 94, 100 (lowa 1994) (punitive

damages inappropriate where “reasonable disagreement” ex-

ists over risks and utilities of product); Jenkins v. Ohio Cas.

Ins. Co., 794 So. 2d 228, 234 (Miss. 2001) (punitive damages

barred where insurer “had an arguable or legitimate basis for

denying the claim’). In fact, this proposition is so basic to

the law of punitive damages that the Fifth Circuit has held

13

that it is “plain error”—i.e., “an error so fundamental as to

result in a miscarriage of justice”—to permit a jury to award

punitive damages where the evidence “demonstrated a good

faith dispute” as to whether the defendant’s conduct was law-

ful. Barber v. Nabors Drilling USA, Inc., 130 F.3d 702, 710

(Sth Cir. 1997).6

Accordingly, some courts not only deem compliance

with government safety standards relevant, but hold that it is

wrongdoing that it bars the imposition of punitive damages

altogether. See, e.g., Richards v. Michelin Tire Corp., 21

F.3d 1048 (llth Cir. 1994) (punitive damages prohibited

ture); W. Page Keeton et al., PROSSER AND KEETON ON THE

LAW OF TorTs § 36, at 233 n.41 (Sth ed. 1984) (“In most

Danaher, 238 U.S. 482, 490 (1915) ($6,300 civil penalty violated due

Process where defendant was “well justified in regarding [its conduct] as

pert. Such a law would violate due process because it would be unconsti.

tutionally vague. See, €.g., United States v. Powell, 423 U.S. 87, 93

(1975) (explaining why prohibition against charging an “unreasonable”

Price for sugar was unconstitutionally vague: “Engaged in a lawful! busi-

ness which Congress had in no way sought to proscribe, [the defendant]

could not have charged any price with the confidence that it would not

later be found unreasonable.”) (emphasis omitted).

Likewise, many courts hold that “[c]ompliance with in-

dustry standard and custom serves to negate conscious disre-

gard and to show that the defendant acted with a nonculpable

state of mind.” Drabik v. Stanley-Bostitch, Inc., 997 F.2d

496, 510 (8th Cir. 1993); see also Satcher, 52 F.3d at 1316-

17 (vacating punitive damage award where defendant’s de-

sign was consistent with that of other manufacturers); Alley v.

Gubser Dev. Co., 785 F.2d 849, 856 (10th Cir. 1986) (puni-

tive damages inappropriate where defendant’s conduct was

consistent with industry practice).

The decision below thus conflicts with both BMW and

the approach followed in all of these cases, and effectively

erases the reprehensibility factor from the constitutional cal-

culus in product liability cases.’

3. Review by this Court is imperative if manufacturers

are not to be subject to huge punitive damage awards every

time a jury, in hindsight, finds a product to be defective. To

say, as the court did here, that a manufacturer, to make a

profit, marketed a product that “could kill people,” simply

begs the question as to reprehensibility. That is because all

manufacturers sell products to make a profit, a/] products can

and do cause injury, and a// design decisions reflect a balance

of risks, costs and utility. See, e.g., Corrosion Proof Fittings

v. E.P.A., 947 F.2d 1201, 1223 n.23 (Sth Cir. 1991) (“over

the next 13 years, we can expect more than a dozen deaths

from ingested toothpicks”); RESTATEMENT (THIRD) OF

TORTS: PRODUCTS LIABILITY § 2 cmt. a (1998).

Many products, like automobiles, by their very nature

pose risks of serious injury and death that cannot be materi-

ally reduced without significant cost to society in the form of

increased prices, less convenience or utility, or even less

7 The court’s misunderstanding of reprehensibility in the product li-

ability context is further demonstrated by its erroneous reliance on Ford’s

subsequent design improvement as an aggravating, rather than mitigating,

factor (Pet. App. 35a) and by its finding of gross reprehensibility absent

any evidence that any individual Ford employee even acted maliciously

(id. at 32a).

15

safety in other circumstances. See generally W. Kip Viscusi,

Corporate Risk Analysis: A Reckless Act?, 52 STAN. L. REV.

547, 550 (2000). The decision as to which design strikes the

proper balance among competing interests is often complex

and rests upon a “morass of conceptual, political and practi-

cal issues on which juries, courts, commentators and legisla-

tures strongly disagree.” David G. Owen, Problems In As-

sessing Punitive Damages Against Manufacturers Of Defec-

tive Products, 49 U. CHI. L. REV. 1, 37 (1982).

Compounding the problem, jurors are confronted with

deciding whether a product creates “too much risk” in the

context of individual cases involving tragic personal injuries,

using hindsight, on the basis of a highly technical record and

arcane and often conflicting opinion testimony from engi-

neers and scientists. Stephen Breyer, BREAKING THE VICIOUS

CIRCLE: TOWARD EFFECTIVE RISK REGULATION 59 (1992);

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

1990) (Easterbrook, J., concurring).8 The result is that prod-

uct liability cases like this one, and like Smith, pose great

danger that juries will “use their verdicts to express biases

against big businesses,” Honda Motor Co. y. Oberg, 512 U.S.

415, 431-32 (1994), even more so than in cases involving

intentional economic torts, such as the fraud claim in BMW.

Consequently, guidance from this Court on the “Tepre-

hensibility” analysis in product liability cases is especially

necessary, because such cases pose the greatest risk that the

jury will be overcome by sympathy, bias, passion and preju-

dice and, as one of the jurors here urged, disregard the law

“because saving babies [is] too important.” Pet. App. 44a.

8 See also Viscusi, 52 STAN. L. REV. at 586-90 (noting that jurors of-

ten demonstrate bias against companies that engage in risk-safety balanc-

ing); Reid Hastie et al., Looking Backward in Punitive Judgments: 20-20

Vision?, in Cass R. Sunstein et al., PUNITIVE DAMAGES. HOw JuRIES

DECIDE 96, 108 (2002) (concluding that “hindsight bias is almost inevita-

ble when jurors make punitive damages decisions”).

16

B. The Court Of Appeal’s Disregard For The

Ratio Guidepost Contradicts BMW And

Other Decisions

The court of appeal similarly eviscerated the second

BMW guidepost—the ratio of punitive to compensatory dam-

ages—on the ground that this case involves personal injury.

The court acknowledged the “great disparity between the

compensatory and punitive damages award,” and conceded

that “this factor weighs in favor of a finding of excessive-

ness,” but asserted that ordinary ratio analysis simply did not

apply because “wrongful death compensatory damages do

not fully reflect the harm to the victims.” Pet. App. 39a.

The 63:1 ratio is unconstitutional on its face. This Court

held in BMW that “exemplary damages must bear a ‘reason-

able relationship’ to compensatory damages.” 517 U.S. at

580. Although this Court has eschewed ““‘a simple mathe-

matical formula’” governing excessiveness, it has recognized

that historical penalties typically “provided for double, treble,

or quadruple damages” and that a 4:1 ratio is “close to the

line,” 517 U.S. at 581-82 (quoting Pacific Mut. Life Ins. Co.

v. Haslip, 499 U.S. 1, 23-24 (1991)). Numerous courts of

appeals have followed this Court’s reasoning in rejecting

similar ratios. See, e.g., FDIC v. Hamilton, 122 F.3d 854,

861 (10th Cir. 1997) (holding that punitive damages gener-

ally cannot exceed a 10:1 ratio, and noting that ratios in ex-

cess of 4:1 will rarely be upheld); Patterson v. P.H.P.

Healthcare Corp., 90 F.3d 927, 943-44 (Sth Cir. 1996) (hold-

ing a 6.5:1 ratio excessive).

In fact, in product liability cases, where juries frequently

award high compensatory damages that far outstrip any

“gain” from the alleged misconduct, see infra pp. 22-23, and

where the harm caused by the defective design is readily ap-

parent and thus unlikely to escape detection, even a 1:1 ratio

will often be grossly excessive because the compensatory

award itself is sufficient to deter the misconduct. See, e.g.,

Memphis Cmty. Sch. Dist. v. siachura, 477 U.S. 299, 307

(1986) (“Deterrence ... operates through the mechanism of

17

damages that are compensatory.”) (emphasis omitted); Smith

v. Wade, 461 U.S. 30, 94 ( 1983) (O’Connor, J., dissenting)

(“awards of compensatory damages and attorney’s fees al-

ready provide significant deterrence”).

This Court recognized no “wrongful death” exception to

the ratio guidepost in BMW, and there is no basis for such an

approach. In Letz v. Turbomeca Engine Corp., 975 S.W.2d

155, 179 (Mo. Ct. App. 1998), for example, the court held

that a 27:1 1atio was unconstitutionally excessive in a design

defect/wrongful death case when compensatory damages

were “large, up to $2.5 million.” Here too, plaintiffs received

a large $4.6 million compensatory award, and BMW’s ratio

analysis is fully applicabie.

This Court recognized in BMW that “perhaps [the] most

commonly cited indicium of an unreasonable or excessive

punitive damages award is its ratio to the actual harm in-

flicted on the plaintiff.” 517 U.S. at 580. The court of ap-

peal’s approach effectively nullifies in wrongful death cases

a long-recognized, objective and readily ascertainable indica-

tor of excessiveness. This Court’s review is warranted.

C. The Court Of Appeal’s Holding That The

Comparable Penalties Guidepost Is

“Inapplicable” Contradicts BMW And

Other Decisions

The court of appeal improperly rejected the comparabie

penalties guidepost by focusing, once again, on the presence

of personal injuries. The court likened Ford’s design of the

Bronco roof to “inv: juntary manslaughter,” which in Cali-

fornia carries a maximum fine of $10,000 against a corpora-

tion, but pronounced the comparable penalties guidepost “in-

applicable” because such a comparison “is inappropriate

wien the malicious conduct could result in substantial im-

prisonment if committed by an individual instead of a corpo-

ration.” Pet. App. 39a. By declaring this guidepost simply

“inapplicable,” the court eliminated from consideration both

the most analogous penalty under state law and a directly ap-

plicable federal civil penalty that could have been imposed

18

for a design defect. Both at the time of the conduct at issue

and at the time of trial, that civil penalty was $1,000 per ve-

hicle, up to a maximum of $800,000 for a defective fleet of

vehicles. See 49 U.S.C. § 30165(a).

The court’s reasoning cannot be reconciled with BMW.

In BMW itself, the conduct in question—repainting new ve-

hicles without telling consumers—was alleged to have con-

stituted fraud, an offense for which an individual could be

sentenced to jai! Given that most torts that furnish a predi-

cate for punitive damages—e.g., fraud, battery, wrongful

death—could also theoretically subject an individual tortfea-

sor to imprisonment, the court of appeal’s holding would

render the “comparable penalties” guidepost a nullity in the

vast majority of punitive damage cases. Moreover, legisla-

tures know full well that corporations cannot be imprisoned

when they establish the maximum fines governing corporate

conduct. See Granite Constr. Co. v. Superior Court, 149

Cal. App. 3d 465 (1983) (discussing California’s involuntary

manslaughter statute).

Other courts have nonetheless taken the same approach

as the court below. For example, in Bielicki v. Terminix In-

ternational Co., the Tenth Circuit held that although a “puni-

tive damages award [may be] exceptional when compared

only to the applicable fines, the authorization of imprison-

ment in the criminal context can justify a higher award.” 225

F.3d 1159, 1166 (10th Cir. 2000); see also Mosing v. Domas,

830 So. 2d 967, 982 (La. 2002) (“While the possible criminal

monetary penalty is significantly less than the exemplary

damage award in this case, the fact that the offense carries a

term of imprisonment makes the difference in monetary pen-

alties less relevant.”); Campbell v. State Farm Mut. Auto. Ins.

Co., No. 981564, 2001 WL 1246676, at *17 (Utah Oct. 19,

2001) (“Possible imprisonment for [the challenged] conduct

is a strong indication that [it] warrants high punitive dam- ,

ages.”), cert. granted, 70 U.S.L.W. 3580 (U.S. June 3, 2002)

(No. 01-1289); In re Exxon Valdez, No. A89-0095-CV, 2002 |

WL 31761256, at *18 (D. Alaska Dec. 9, 2002). _

OR Re eg a et ee See eee

Pe ee ae Pee Se eee

——————e

19

These decisions squarely conflict with rulings from the

many courts that have looked to comparable fines even when

the challenged conduct could have resulted in imprisonment.

For example, the Ninth Circuit has held that, under BMW,

“{c]riminal fines are particularly informative because puni-

tive damages are quasi-criminal.” Jn re Exxon Valdez, 270

F.3d 1215, 1245 (9th Cir. 2001); see also Ace v. Aetna Life

Ins. Co., 139 F.3d 1241, 1248-49 & n.23 (9th Cir. 1998)

($16.5 million punitive damage award is excessive where it

“far exceeds” Alaska’s general criminal fine for “scheming to

defraud”); Lee vy. Edwards, 101 F.3d 805, 811-12 (2d Cir.

1996) (considering general criminal fine for “making of a

false statement”). Cf United States v. Bajakajian, 524 U.S.

321, 334-35 (1998) (applying “comparable penalty” analysis

under Excessive Fines Clause where conduct gave rise to im-

prisonment). The need for review is particularly compelling

here, given the conflicts between the state and federal appel-

late courts in California.9

D. The Court Of Appeal’s Use Of Ford’s

Overall “Wealth” To Trump The BMW

Guideposts Contradicts BMW And Other

Decisions

1. The relevance, if any, of a defendant’s wealth under

BMW is a question that has confused and divided the lower

9 The court of appeal also rejected the relevance of prior awards af-

firmed in California when the conduct occurred, once again contradicting

the holdings of other courts. See, e.g., Davis v. Rennie, 264 F.3d 86, 117

(1st Cir. 2001), cert. denied, 122 S. Ct. 1909 (2002); Kimzey v. Wal-Mart

Stores, Inc., 107 F.3d 568, 577 (8th Cir. 1997); Patterson, 90 F.3d at 943.

The $290 million punitive damage verdict here is /,000 times larger than

any other award in a product liability case ever affirmed in California

(and U.S.) history at the time of the Bronco’s design in the mid-1970s.

See Browning-Ferris Indus. of Vermont, Inc. v. Kelco Disposal, Inc., 492

U.S. 257, 282 (1989) (O’Connor, J., concurring in part and dissenting in

part) (“As recently as a decade ago, the largest award of punitive dam-

ages affirmed by an appellate court in a products liability case was

$250,000.”) (citing David G. Owen, Punitive Damages in Products Li-

ability Litigation, 74 MICH. L. REV. 1257, 1329-32 (1976)).

20

courts and warrants this Court’s review. In BMW, this Court

rejected the claim that a defendant’s wealth could justify a

heightened penalty: “The fact that [a defendant] is a large

corporation rather than an impecunious individual does not

diminish its entitlement to fair notice of the demands that the

several States impose on the conduct of its business. Indeed,

[a corporation’s] status as an active participant in the national

economy implicates the federal interest in preventing indi-

vidual States from imposing undue burdens on interstate

commerce.” 517 U.S. at 585.

The court of appeal, however, ultimately upheld the

award in this case not on the basis of any of the BMW guide-

posts but by reference to Ford’s overall wealth. The court

justified its disregard of the BMW guideposts by holding that

Ford’s purported wealth provided “adequate notice of the po-

tential for the punitive damages awarded in this case.” Pet.

App. 40a. According to the court, Ford “is a huge company

with enormous monetary resources” and it should have

known that “California regards it as necessary to impose

penalties related to the wealth of the defendant in order to

achieve the goals of punishment and deterrence.” Jd. at 36a,

40a. Numerous other courts follow this approach.!0

10 See, e.g., State Farm, 2001 WL 1246676, at *8 (reinstating punitive

award in part because “State Farm’s wealth is enormous” and “the jury’s

punitive damage award of $145 million is only 0.26 of one percent of

State Farm’s wealth”); Williams v. Philip Morris, Inc., 48 P.3d 824, 841

(Or. Ct. App. 2002) (holding that “the defendant’s wealth is an important

consideration” in determining excessiveness, and reinstating a $79.5 mil-

lion punitive damage award on the ground that the award “is equal to a

little more than two and a half weeks’ profit”); Johansen v. Combustion

Eng’g, Inc., 170 F.3d 1320, 1338-39 (11th Cir. 1999) (upholding award

under BMW and noting that “[defendant] is a large and extremely wealthy

international corporation”); Ammerman v. Ford Motor Co., 705 N.E.2d

539, 563 (Ind. Ct. App. 1999) (“Ford knew or should have known” of the

potential for a $13.8 million punitive damage award “given that Ford’s

economic wealth ... is a factor to be considered in assessing punitive

damages”); Wilson v. IBP, Inc., 558 N.W.2d 132, 148 (Iowa 1996) (up-

holding punitive damage award against a BMW challenge on the basis of

21

The court of appeal’s holding that Ford “has been on no-

tice since at least 1971 that a week’s profits amounting to

about 1 percent of net wealth are not excessive punitive dam-

ages,” Pet. App. 40a, directly conflicts with Continental

Trend Resources, Inc. v. OXY USA, Inc., in which the Tenth

Circuit concluded that ‘a large punitive damage award

against a large corporate defendant may not be upheld on the

basis that it is only one percent of its net worth or a week’s

corporate profits.” 101 F.3d 634, 641 (10th Cir. 1996).

Many courts have similarly held that a corporate defendant’s

wealth cannot trump the BMW standards. See, e.g., Leather-

man Tool Group, Inc. vy. Cooper Indus., Inc., 285 F.3d 1146,

1152 (9th Cir. 2002) (on remand) (holding that “in view of

the [BMW] factors, we cannot conclude that this considera-

tion [of defendant’s wealth] renders the amount awarded by

the jury constitutional”); Bowden vy. Caldor, Inc., 710 A.2d

267, 279 (Md. 1998) (“merely because a defendant may be

able to pay a very large award of punitive damages .. . does

not justify an award which is disproportionate to the hei-

nousness of the defendant’s conduct” ; see also Pulla y.

Amoco Oil Co., 72 F.3d 648, 659 n.16 (8th Cir. 1995) (retired

Justice White, sitting by designation) (“a defendant’s wealth

cannot alone justify a large punitive damage award”).

This Court should grant certiorari and reject this ap-

proach as nothing less than an end-run around BMW. The

court of appeal’s ruling demolishes the concept of due proc-

ess by automatically deeming large corporations to have had

“fair notice” of virtually any monetary punishment that a jury

conceivably could impose. The implicit premise—that if you

have money, you are deemed to be on notice that a jury could

impose a huge punishment on you—leaves wealthy defen-

dants bereft of meaningful constitutional protection. Even

accepting the court of appeal’s faulty premise that wealth is a

[Footnote continued from previous page]

the defendant’s “net sales” and “net worth,” and asserting that “{ojne of

the factors approved by the Supreme Court .. . for assessing the imposi-

tion of punitive damages is the financial Position of the defendant”).

22

proxy for notice, it is plainly incorrect to say that Ford was

on notice in the 1970s of what its net worth would be at the

turn of the century, and thus had fair notice of the penalty

that could be imposed retroactively over two decades later.

2. In analyzing the excessiveness of a punitive damage

award against a corporation, the relevant financial informa-

tion, if any, is the monetary “gain,” within the State, attribut-

able to the defendant’s wrongful conduct. Scholars uni-

formly recognize that this figure, unlike overall wealth, is

rationally related to the societal objective of deterrence where

the defendant is a corporation. See, e.g., 2 American Law

Institute, Enterprise Responsibility for Personal Injury: Re-

porter’s Study 254-55 (1991) (“In determining the size of the

award that is sufficient for [deterrence], what is relevant is

not the defendant’s overall wealth, but rather profit it realized

from the particular tortious activity in question.”). Indeed,

common sense suggests that a profit-motivated entity is not

likely to engage in conduct it knows will not be profitable.

And as long as any one State does not attempt to deprive the

defendant of gain attributable to conduct in other States, there

are no extraterritoriality concerns.!!

In Cooper Industries, the Court expressly recognized

that a punitive damages award must be tethered to the profits

generated by the misconduct at issue, not the defendant’s en-

tire profits on the sale of a product. In that case, the wrong-

ful conduct was using a photograph of a competitor’s product

to market the defendant’s similar product. The district court,

in affirming a $4.5 million punitive award, might have relied

upon the plaintiffs’ calculation that the defendant anticipated

“gross profits of approximately $3 million” from its sale of

its product in the first five years. 532 U.S. at 442. But, as

this Court recognized, that was not the proper analysis, be-

cause “it would be unrealistic to assume that all of [the de-

fendant’s] sales ... would have been attributable to its mis-

11 Due process might, however, prohibit a State from permitting multi-

ple plaintiff$ within the State to each recover all of the defendant’s state-

wide gain from the wrongful conduct.

23

conduct.” Jd. In other words, the defendant’s “wrongdoing

surely could not be treated as the principal cause of [the de-

fendant’s] entire sales volume for a 5-year period.” Jd.

Here, the court of appeal relied on Ford’s total profits on

sales of 1978-1979 Broncos, and reinstated a fine that de-

prives Ford of nearly triple that amount. Pet. App. 36a. But

there is no evidence that Ford’s allegedly defective roof de-

Sign was the principal cause of its entire sales volume of the

1978 and 1979 Broncos. Instead, the record reflects that

Ford’s total “gain” from choosing the design it did over the

alternative preferred (in hindsight) by plaintiffs’ experts

amounts to less than $1.8 million nationwide, and far less in

California. See Exh. 133.10 (Ford sold 72,700 1978 Broncos

and 75,800 1979 Broncos); RT 9532 (cost of design change

plaintiffs advocated is $10 to $12 per unit). The court of ap-

peal’s decision, by relying on Ford’s overall wealth and prof-

its, contradicts Cooper Industries and merits review.

Il. REVIEW IS WARRANTED TO CLARIFY

THE CONSTITUTIONAL LIMITS ON ONE

STATE’S POWER TO PUNISH BASED ON

OUT-OF-STATE SALES AND PROFITS

As shown above, the court of appeal’s reliance on Ford’s

overall profits is contrary to Cooper Industries. The court’s

reliance on Ford’s nationwide profits defies the federalism,

due process and Commerce Clause limits recognized in BMW

and directly conflicts with the Ninth Circuit’s recent decision

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

In BMW, this Court explained that “each State has ample

power to protect its own consumers, [and] none may use the

punitive damages deterrent as a means of imposing its regu-

latory policies on the entire Nation.” 517 U.S. at 585. To

safeguard other States’ autonomy, a punishment therefore

“must be analyzed in the light of [in-state conduct], with con-

sideration given only to the interests of [the State’s] consum-

ers, rather than those of the entire Nation.” Jd. at 574.

24

The court of appeal held that it could impose extraterri-

torial punishment because it concluded that, “[u]nlike [the

conduct in] BMW,” Ford’s conduct was “unlawful in all

states.” Pet. App. 38a-39a & n.3. But it is wrong to assume

that product liability and punitive damage laws are uniform.

These laws vary dramatically. Cf White, 312 F.3d at 1017-

19 (noting differences in failure-to-warn and punitive dam-

age laws). Accordingly, the court lacked any basis for con-

cluding that the Bronco’s roof design would be deemed de-

fective and punishable in any other State, and in fact that de-

sign has never before been found defective since its introduc-

tion nearly a quarter-century ago.

The decision below directly conflicts with the Ninth Cir-

cuit’s recent ruling in White, creating a split between Califor-

nia’s state and federal courts, and worsening an existing con-

flict throughout the country. Some courts, like the court be-

low, have rejected the argument that BMW limits their ability

to impose punitive damages based on a defendant’s out-of-

state conduct or profits. For example, in Smith v. Ingersoll-

Rand Co., the-Tenth Circuit approved such punishment be-

cause “the manufacture of defective products is not a lawful

activity in any of the jurisdictions where the other incidents

occurred.” 214 F.3d 1235, 1253 (10th Cir. 2000); Owens-

Corning Fiberglas Corp. v. Ballard, 739 So. 2d 603, 606

(Fla. Dist. Ct. App. 1998) (“where the defendant’s conduct is

considered tortious in all 50 states ... the same due process

concerns implicated in BMW do not arise”).

The Ninth Circuit rejected this approach in White, where

the plaintiffs’ counsel made arguments identical to those ad-

vanced by plaintiffs’ counsel here. In White, the plaintiffs

alleged a design defect in a different Ford vehicle and urged

the Nevada jury to award punitive damages “that would pun-

ish Ford for its conduct toward consumers in all states.” 312

F.3d at 1015. Just as in this case, “[t]he evidence focused on

the number of vehicles Ford sold nationally.” Jd. Indeed,

“(t]he entire thrust of [the plaintiffs’] argument was that this

Nevada jury now should vindicate the interests of all Ford

truck owners everywhere with a verdict that would make the

25

front page of every newspaper in the country” (id).—

precisely the same argument plaintiffs’ counsel made here.

See RT 9589 (“You’ve got to say a number that gets on the

front page of every newspaper in the country.”),12

The Ninth Circuit, however, reversed the punitive dam-

age award in White, holding that under BMW, “we may not,

as a matter of federal law, permit one state to punish ... na-

tionwide manufacturers for their conduct—actual or hypo-

thetical—in other states.” 312 F.3d at 1014 n.62. The court

recognized that “BMW imposed a territorial limitation on pu-

nitive damages in the interest of federalism,” and stated that

allowing the jury “to measure damages by [the alleged] harm

to the whole country” was a “substantive error .. . of federal

constitutional law.” Jd. at 1013, 1015-16 & n.69. See also

Sheldon v. Vermonty, No. 98-2277, 2002 WL 31498908, at

*8 (D. Kan. Nov. 8, 2002) (out-of-state injuries irrelevant to

excessiveness analysis because “there was no testimony that

the people were either from Kansas or harmed in Kansas”).

Permitting one State to impose punishment based on

. profits from sales in other States subjects the defendant to

multiple and duplicative penalties on the basis of the same

challenged design feature, thus negating all prior and subse-

quent exonerations. Moreover, this approach invites lay ju-

nes to act as national safety regulators. Here, plaintiffs’

counsel explicitly urged the jury to “educate NHTSA,” over-

tule the conclusions of the government’s experts, and use its

punitive damage verdict to force Ford to “[t]ake this car out

12 See also RT 9588 (urging verdict that would generate headlines on

“the front page of U.S.A. Today ... the front page of the New York

Times ... the front page of the Wall Street Journal. We’ve got some-

body’s attention. We’ve got them talking about it in the boardrooms.”);

RT 9588 (“Billion dollars, why? . . . Number one, we get Ford’s atten-

tion, get the world’s attention and we get those people’s attention who are

still driving that car. There’s 50 to 70 to 80,000 1978-79 Broncos in peo-

ple’s garages with kids right now.... Someplace somewhere some

mother is taking their kid and strapping them in the back of a 1978

Bronco today.”).

26

of its existence . . . . [and] stop that mother in Montana from

putting her children in the back of that car.” RT 9591, 9999.

The Smith case also vividly illustrates the problem. In

Smith, the Kentucky courts actually permitted a Kentucky

jury to punish Ford for the sale of vehicles in other States in

which juries had rejected the very same claim of defect.

Ford’s Smith Pet. at 17. This case is different from Smith

only because Ford has had fewer opportunities to litigate the

issue, and therefore fewer opportunities for defense verdicts.

As plaintiffs’ counsel conceded in closing argument, there

was no evidence that Ford, in the quarter-century since the

1978 Bronco was introduced, had ever been sued for alleged

defects in the 1978 Bronco’s roof.

This Court’s review is necessary to make clear that the

territorial limits on punitive damage awards prevent one jury

in a single State from effectively regulating vehicle design on

a national scale and displacing and disrupting federal safety

regulation and the policies of other States.

Ill. REVIEW IS WARRANTED TO DETERMINE

HOW COOPER INDUSTRIES’ DE NOVO

STANDARD APPLIES TO REVIEW OF A

JURY’S VERDICT

In Cooper Industries, this Court held that appellate

courts must review a trial court’s ruling on a BMW exces-

siveness challenge under a de novo standard. 532 US. at

431. The Court also indicated that a reviewing court must

generally respect the jury’s “specific findings of fact,” id. at

440 n.12, but it did not elaborate on this point. Although this

Court’s decisions in BMW, Cooper Industries and other cases

implicitly reject the highly deferential approach followed by

the court here, the meaning and application of de novo re-

view has divided the lower courts and warrants review.

1. The decision below implicates a direct conflict among

the lower courts. The court first reviewed the award under

California law “in the light most favorable to the verdicts.”

Pet. App. 35a. While recognizing that the jury’s award was

27

“somewhat arbitrary” and a “huge windfall,” the court em-

phasized that (for purposes of review under California law)

the amount was “‘in the discretion of the jury” and it rein-

stated the $290 million verdict without considering whether

any lesser amount would be sufficient to vindicate Califor-

nia’s interests. Jd. at 33a, 36a-37a. The court then incorpo-

_ Tated this same standard in rejecting Ford’s BMW challenge,

Stating that “/aJs we have already discussed, defendant’s

conduct was grossly reprehensible.” Pet. App. 38a (emphasis

added). As a result, the court reviewed “the evidence in the

light most favorable to the prevailing party, giving it the

benefit of every reasonable inference and resolving all con-

flicts in its favor,” Pet. App. 20a-21a (citation Omitted), and

thus deferring to presumed factual “ dings” that the jury

never made and was not required to make.13

and reinstating $79.5 million punitive damages award on ba-

sis of what “[t]he jury could find from the evidence”).

But other courts have rejected this approach. For exam-

ple, the New Mexico Supreme Court has expressly recog-

nized—in sharp conflict with the court of appeal in this

case—that the de novo review required by Cooper Industries

is different than the substantial evidence standard typically

employed by state courts. Under the State-law standard,

“evidence is viewed in the light most favorable to the prevail-

13 For example, the court declared that Ford’s “malice” was demon-

strated by “the total absence of preproduction testing” of the Bronco. Pet.

App. 29a. Not only was this “fact” never found by the jury—which ren-

dered findings only as to the ultimate questions of defect and malice—but

it directly contradicts the record, which establishes that Ford ran its entire

“standard menu” of tests for light trucks and utility vehicles “prior to pro-

duction.” RT 6099, 6110.

28

ing party and all inferences arising from the factual findings

of a trial court are indulged in.” Aken v. Plains Elec. Gen-

eration & Transmission Coop., Inc., 49 P.3d 662, 668 (N.M.

2002). In contrast, the Aken court held, under the de novo

review required by Cooper Industries, “we are to make an

independent assessment of the record,” and “[a]nytime the

record clearly shows that the jury should not have concluded

as it did, the appellate court may, exercising its de novo

power, set aside the award.” Jd. at 668, 669; see also, e.g.,

Exxon Valdez, 270 F.3d at 1239 (“a hands-off appellate def-

erence to juries, typical of other kinds of cases and issues, is

unconstitutional for punitive damages awards”); Leatherman

Tool Group, Inc., 285 F.3d at 1150 (declining to “speculate”

as to jury’s unstated motivations and _ reviewing

reprehensibility independently). Cf Honda, 512 U.S. at 429

(review limited to a “no substantial evidence” test “provides

no assurance that those whose conduct is sanctionable by

punitive damages are not subjected to punitive damages of

arbitrary amounts’). Review by this Court is warranted to

resolve this conflict and confusion.

2. Review also is warranted because the decision below

contradicts BMW, Cooper Industries, and this Court’s deci-

sions in analogous areas applying de novo review. When this

Court reviewed the punitive damage award in BMW, it did

not, for example, simply assume (consistent with the large

punitive verdict) that the jury had found that BMW had no

reasonable basis for believing that its disclosures were ade-

quate; on the contrary, this Court reached its own independ-

ent conclusion on this issue, holding that state disclosure stat-

utes outside of Alabama gave BMW reasonable grounds for

believing that it had met its disclosure obligations in Ala-

bama. 517 U.S. at 579-80. Thus, the Court deferred only to

findings of fact that the jury must have made (i.e., that BMW

suppressed a material fact), while making its own independ-

ent determination on a critical, fact-dependent issue on which

the jury did not necessarily make any finding at all (whether

BMW had reasonable grounds to conclude its conduct was

lawful). In Cooper Industries, when the Court stated that a

a, cease

reviewing court should respect “spécific findings of fact”

made by the jury, 532 U.S. at 440 n.12, it specifically cited

these precise pages of BMW. 5 17 U.S. at 579-80,

The Court followed the Same basic approach to inde-

pendent appellate review in considering a First Amendment

challenge to a state libe] verdict in Harte-Hanks Communica-

tions, Inc. v. Connaughton, 491 U.S. 657 (1989). The Court

held that de novo review means that, “[ijn determining

whether the constitutional Standard has been Satisfied, the

reviewing court must consider the factual record in full” and

“examine for [itself] the statements in issue and the circum-

Stances under which they were made.” 491 U.S. at 688 (cita-

tion omitted). For Purposes of the constitutional determina-

tion, the Court took into account not the facts the jury “may

have” found, but only those facts the jury “must have” found,

“alongside the undisputed evidence.” Jd. at 690-91.

3. Such review is especially crucial to protect against

“lawless, biased, or arbitrary verdict[s],” Honda, 512 U.S. at

433, in a system that, like California’s, provides no meaning-

ful guidance to juries in calculating punitive damages. “Jury

instructions typically leave the jury with wide discretion in

choosing amounts.” Jd. at 432. In most States, like Califor-

nia, jurors are told “little more than . . . to do what they think

is best” and are “left largely to themselves in making this im-

portant, and potentially devastating, decision.” Browning-

Ferris Indus. of Vermont, Inc. v. Kelco Disposal, Inc., 492

U.S. 257, 281 (1989) (Brennan, J., concurring).!4 Without

defendant’s financial condition, and that there are “no fixed standards as

to the amount... . of punitive damages”). Thus, in California, as one

court has explained, “[t]he channeling of just the correct quantum of bile

to reach the correct level of Punitive damages is, to put it mildly, an un-

scientific process complicated by personality differences. . . . And, we

have concluded, that is Properly so.” Deviin y. Kearney Mesa

AMC/Jeep/Renault, Inc., 155 Cal. App. 3d 381, 388 (1984).

30

clear and objective standards restricting the jury’s discretion,

and in the absence of specific findings of fact, it is rank

speculation to assume that the jury premised its fine on cer-

tain findings. Here, Ford requested detailed instructions on

the amount of punitive damages, but they were rejected. See

Pet. App. 49a-53a (rejected instructions), 54a (actual instruc-

tions). As Justice Breyer explained in BMW, “where iegal

standards offer virtually no constraint, . . . this lack of con-

straining standards warrants this Court’s detailed examina-

tion of the award.” 517 U.S. at 596 (Breyer, J., concur-

ring).!5

This case compellingly demonstrates the need for “thor-

ough, independent review,” Cooper Indus., 532 U.S. at 441,

of punitive damage verdicts. “A verdict returned by a biased

or prejudiced jury no doubt violates due process.” Haslip,

499 US. at 41 (Kennedy, J., concurring). But here, notwith-

standing the trial court’s findings that the jury was biased and

prejudiced, the court of appeal simply assumed that that same

jury had decided every fact against Ford, and that those

imagined “findings” were written in stone. The court of ap-

peal then aggravated its error by relying on its assumption

that the-trial court “impliedly” endorsed those nonexistent

jury findings, even though that same trial court had over-

turned the jury’s verdict as “fundamentally suspect.” Pet.

App. 37a, 45a. This form of appellate review is irrational

and unconstitutional, and warrants this Court’s review.

CONCLUSION

The Court should grant certiorari and set this case for

plenary consideration or, in the alternative, hold this petition

= pending its decision in State Farm. Respectfully submitted.

15 “[Tyhe level of punitive damages is not really a ‘fact’ tried by the

jury.” Cooper Indus., 532 U.S. at 437 (quotation omitted). Thus, the

court below had no more reason to defer to the “huge” and “somewhat

arbitrary” amount chosen by the jury than to the hypothetical factual find-

ings the jury never made.

icieaanieiemiataiaiaaetaiitaaiieaaaiaitade a

JOHN M. THOMAS

MICHAEL J. O’ REILLY

FORD MOTOR COMPANY

Parklane Towers West

Three Parklane Doutavert

Suite 300

Dearbom, MI 48126-2568

(313) 337-2515

THEODORE J. BOUTROUS, JR.

Counsel of Record

THOMAS G. HUNGAR

MIGUEL A. ESTRADA

THOMAS H. DUPREE, JR.

WILLIAM E. THOMSON

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, NW

Washington, DC 20036-5306

(202) 955-8500

WALTER DELLINGER

BRIAN D. BOYLE

JONATHAN D. HACKER

MATTHEW M. SHoRS

O’MELVENY & MYERS LIP

555 13th Street, N.W.

Washington, D.C. 20004

(202) 383-5300

Counsel for Petitioner

January 21, 2003

la

APPENDIX A

IN THE COURT OF APPEAL OF THE

STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

JUAN RAMON ROMO,

individually and as Administrator,

etc., et al., Plaintiffs and Appellants,

¥.

FORD MOTOR COMPANY,

Defendant and Appellant.

No. F034241

(Super. Ct. No. 8231 8)

Court of Appeal, Fifth District, California

June 28, 2002

APPEAL from a judgment of the Superior Court of

Stanislaus County. Roger M. Beauchesne, J udge.

Counsel:

Law Offices of Joseph W. Carcione, Jr., Joseph W. Car-

cione, Jr., Gerald K. Okimoto and Gary W. Dolinski for

Plaintiff and Appellant Juan Ramon Romo.

Drivon & Tabak and Lawrence E. Drivon for Plaintiffs

and Appellants Maria Irene Romo and Evangelina Romo.

Snell & Willmer, Douglas W. Seitz, Richard A. Derevan,

Barry C. Toone; Gibson, Dunn & Crutcher, Theodore J.

Boutrous, Jr., Mark A. Perry, Tanya M. Acker, William E.

Thompson; Dryden, Margoles, Schimaneck, Kelly & Wait

and Frank P. Kelly III for Defendant and Appellant.

2a

VARTABEDIAN, Acting P.J.

This case involves an appeal and a cross appeal after the

trial court granted in part and denied in part defendant Ford

Motor Company’s posttrial motions. The court denied de-

fendant’s motion for new trial on liability and compensatory

damages; denied defendant’s motion to reduce punitive dam-

ages as excessive; and denied defendant’s motion for judg-

ment notwithstanding the verdict (INOV). From these orders

defendant appeals. The court granted defendant’s motion for

new trial on punitive damages grounded on juror misconduct;

from this order plaintiffs appeal.

We will affirm the judgment for compensatory damages

as modified by the trial court. We will affirm the trial court’s

denial of the JNOV motion. We will conclude the punitive

damages award was not excessive. However, we will con-

clude the trial court erred in granting the new tnal motion on

punitive damages grounded on juror misconduct.

FACTS AND PROCEDURAL HISTORY

Ramon Romo bought a used 1978 Ford Bronco in 1992.

On June 20, 1993, Ramon’s son, plaintiff Juan Ramon Romo,

was driving the Bronco; other members of the family—

Ramon, his wife, Salustia, and his children Ramiro, Evange-

lina, and Maria—were passengers. Juan and Ramon were

seated in the front, wearing seat belts. Salustia and Ramiro

were in the back seat, also belted. Evangelina and Maria

were asleep in the rear of the Bronco, unbelted.

Juan was involved in an accident and the Bronco rolled

over several times. The 1978 Bronco had a steel roof over

the front one-third of the passenger compartment. The rear

two-thirds was made of fiberglass. As the Bronco rolled, the

steel roof collapsed, killing Ramon Romo. The fiberglass

roof broke loose, striking and killing Salustia and Ramiro

Romo. Evangelina and Maria Romo-were thrown from the

car and injured. Juan remained in the car and was injured.

3a

Defendant did not request a bifurcated trial on the amount

of punitive damages. (See Civ. Code, § 3295, subd. (d).)

The unified trial lasted from March 1999 through July

1999. At the conclusion of trial, the matter was submitted to

the jury for deliberation on all issues. The jury deliberated

for a week and returned a verdict for plaintiffs and against

defendant. The jury awarded $6,226,793 in compensatory

damages and $290 million in punitive damages. In accor-

dance with the jury’s allocation of fault (the jury concluded

plaintiff Juan Romo was 10 percent at fault, defendant was

78 percent at fault, and the driver of a second vehicle was 12

percent at fault) and based on certain technical issues con-

cerning damages awarded to the estates, the court reduced the

conduct, which we will discuss in more detail] below, the

court granted defendant’s motion for new trial on the issue of

The parties filed timely notices of appeal.

DISCUSSION

I. Plaintiffs’ Cross-appeal of Juror Misconduct

Determination

Plaintiffs have appealed, primarily, from the court’s order

granting defendant’s motion for new trial on punitive dam-

ages. Second, plaintiffs contend the “jury’s punitive damage

award was not excessive as a matter of California or Federal

law.” The trial court did not grant the new trial based on ex-

cessiveness of damages; instead, it denied the new trial mo-

tion “on all other grounds specified” in defendant’s notice of

4a

motion for new trial. Plaintiffs, therefore, were the prevail-

ing parties on this issue. We address the issue of excessive-

ness of damages only in defendant’s appeal, in part II of this

opinion. In part I, we address the order for new trial on puni-

tive damages based on the trial court’s finding of juror mis-

conduct.

A. Standard of Review

As recently reiterated by the Supreme Court, an order

granting a new trial under Code of Civil Procedure 657

““must be sustained on appeal unless the opposing party

demonstrates that no reasonable finder of fact could have

found for the movant on [the trial court’s] theory.’ [Cita-

tion.]” (Lane v. Hughes Aircraft Co. (2000) 22 Cal. 4th

405, 409.) “The reason for this deference ‘is that the trial

court, in ruling on [a new trial] motion, sits ... as an inde-

pendent trier of fact.’ [Citation.] Therefore, the trial court’s

factual determinations, reflected in its decision to grant the

new trial, are entitled to the same deference that an appellate

court would ordinarily accord a jury’s factual determina-

tions.” (/d. at p. 412.)

In the context of an order granting or denying a new trial

motion on the basis the verdict is “contrary to law or evi-

dence” (Pen. Code, § 1181, subd. 6), the trial court has broad

discretion “and there is a strong presumption that it properly

exercised that discretion.” (People v. Davis (1995) 10 Cal.

4th 463, 524.)

When the trial court’s order is based on a finding of juror

misconduct, however, our deference to the trial court’s order

is more limited. “We accept the trial court’s credibility de-

terminations and findings on questions of historical fact if

supported by substantial evidence. ([Citations.] Whether

prejudice arose from juror misconduct, however, is a mixed

question of iaw and fact subject to an appellate court’s inde-

pendent determination.” (People v. Nesler (1997) 16 Cal.

4th 561, 582.)

j

;

Sa

Defendant contends the Standard of review of the order

granting a new trial is abuse of discretion. Quoting Mal-

kasian v. Irwin (1964) 61 Cal. 2d 738, 748, defendant con-

tends, “A trial court’s decision granting (as opposed to deny-

ing) a new trial on the ground of jury misconduct may be re-

versed ‘only in rare instances and on very strong grounds.’”

Reliance by defendant upon Malkasian is misplaced:

that case involved misconduct of counsel during the trial.

(Malkasian y. Irwin, supra, 61 Cal. 2d at pp. 745-747.) In

evaluating the misconduct of counsel committed in the trial

court’s presence, that court certainly is in a better position

than the appellate court to determine the net effect of such

misconduct in the overal] context of the trial. By contrast, in

the case of juror misconduct occurring outside the presence

of the trial court, the Supreme Court specifically has in-

structed that the reviewing court must independently apply an

objective standard to determine whether the misconduct was

prejudicial. (Jn re Hamilton (1999) 20 Cal. 4th 273, 296.)

Likewise, defendant’s reliance on Lane y. Hughes Air-

craft Co., supra, 22 Cal. 4th 405 is misplaced. In that case,

the court considered the Standard of review for a grant of new

trial based on excessive damages and insufficiency of the

evidence. (Id. at p. 412.) In such a case, the trial court sits as

an independent trier of fact and, as in the context of Mal-

kasian vy. Irwin, supra, 61 Cal. 2d 738, the trial court “sits

much closer to the evidence, .. . watching and hearing as the

evidence unfolds. The trial court, therefore, is in the best po- |

sition to assess the reliability of a jury’s verdict and, to this |

end, the Legislature has granted trial courts broad discretion |

to order new trials.” (Lane vy, Hughes Aircraft Co., supra,

22 Cal. 4th at p. 412.)

The abuse of discretion test is inapplicable in cases of ju-

ror misconduct and, in light of the more recent Supreme

Court statements on this point (see also People v. Cromer

(2001) 24 Cal. 4th 889, 901), we must disagree with the

statement in Bell v. State of California (1998) 63 Cal. App.

| 4th 919, 930-931, to the contrary. We now turn to the evi-

| dence upon which we exercise our independent review.

B. The Juror Declarations

1. The Television Program

Both parties submitted juror declarations in connection

with the posttrial motions. The declarations established, and

the trial court found, that one juror, Ms. S., brought to the

attention of the remaining jurors a segment of the television

program 60 Minutes IJ dealing with fires in older Ford Mus-

tangs. Uncontested portions of the declarations established

that S.’s discussion of the television program occurred during

the jury’s discussion of the issue of malice, after all issues

concerning liability and compensatory damages had been re-

solved in plaintiffs’ favor by unanimous vote of the jury.

Uncontested portions of the declarations established that

S. reported to the jury that in the course of the program for-

mer Ford president Lee Iaccoca stated that Ford had a policy

of contesting or settling lawsuits involving the Mustangs be-

cause it was less costly than recalling the vehicles and repair-

ing them. Uncontested portions of the declarations estab-

lished that S. mentioned the program on one occasion and

that her discussion of the program took less than five min-

utes. Uncontested portions of the declarations established

that the jury foreperson, Ms. B., told S. the program was not

evidence in the present case and should not be discussed fur-

ther. S. told the other jurors she agreed and the matter was

never raised again.

The trial court made no findings contrary to these undis-

puted portions of the declarations, although the trial court did

find that other persons interviewed in the 60 Minutes II

segment, and not Ford representatives, actually made the

claims concerning the decision not to recall the Mustangs.

context in which S.’s comments were made. The declara-

tions agreed the jurors were in conflict over the type of evi-

dence necessary to show malice, some contending that

documentary evidence was necessary. Most declarations

interpreted two other declarations to state that S. proffered

Iacocca’s statements as evidence of malice in the present -

case. The trial court did not resolve the conflicts in the evi-

dence, finding only that the declarations “alleged” that S. had

made the various statements attributed to her.

The declarations also established that at some point after

S. made her statements about the television program, several

jurors expressed the belief that the testimony of a particular

Ford witness (Mr. Darold) was highly relevant—and damag-

ing to defendant—on the issue of malice. The jury requested

tion and after the read-back of testimony did the jury vote,

nine to three, in favor of a finding of malice.

2. The Dream

8a

the proof?” She recounted the dream only one time, during

deliberations on the issue of malice; the dream was not dis-

cussed at any other time. Z.’s telling of the dream occurred

on the fourth day of deliberations, after the votes on liability

and compensatory damages, but before the vote on malice.

The declarations conflicted about whether Z. described

the dream as an “omen.” The trial court did not resolve the

conflict in the evidence. Although defendant asserts the trial

court “specifically credited evidence that [Juror Z.] . . . relied

(and encouraged her fellow jurors to rely) on that dream in

determining Ford’s liability for punitive damages,” the trial

court made no such finding. Rather, the court simply set

forth the evidence: “This same juror allegedly also told her

fellow jurors that her dream was an ‘omen,’ thereby suggest-

ing that it had some sort of mystical significance regarding

how to vote in the case.”

Even if we disregard the trial court’s use of the word “al-

legedly’—which is the antithesis of “specifically credit{ing]”

the evidence!—there is no statement in any of the declara-

tions that Z. claimed her dream had mystical significance.

The only statement even marginally related to such a claim

was this statement in B.’s first declaration: “In other words,

Juror [Z.] personalized her dreams to include, not only her

own children, but other jurors’ children, and as above stated,

stated that [the jury’s] job was not about following the law,

but ‘saving children.”” This statement does not constitute

substantial evidence that Z. attached mystical significance to

1 For example, in defendant’s response brief filed in the cross-appeal,

counsel write (with our italics added): “It is also undisputed that during

deliberations, Ms. [S.] misattributed the extremely prejudicial quote about

settling cases rather than recalling allegedly defective vehicles to Mr.

Iacocca.”

9a

the dream and used it as the basis—in disregard of the law

and the evidence—for her votes on punitive damages.

3. Prejudgment by a Juror

Although the declarations conflicted greatly on the de-

tails, most of the declarations agreed that Z. repeatedly said

during deliberations that the jury must “save the babies” by

finding defendant liable.

Juror declarations submitted by defendant tied this state-

ment to statements by Z. to the effect that Saving lives was

ments on the first two days of deliberations only (Juror B.).

Various of the declarations alleged and denied that 7.

Said she had made up her mind about the case during the trial

and that the jury should treat “as evidence” the Statements of

one of plaintiffs’ attorneys.

10a

The trial court did not expressly resolve the conflicts in

the evidence, although the court did state its conclusion that

“{j]uror misconduct occurred by virtue of the injection of ex-

ternal evidence and influences, prejudgment of the case and a

refusal to follow the law. The alleged misconduct occurred

on the second day of deliberations.”

C. The Trial Court’s Conclusion

In its written order granting a new trial on punitive dam.

ages, the trial court recounted in detail the contents of the

three juror declarations submitted by defendant. The court

then wrote:

“The Court finds that the counter-declarations

submitted by plaintiffs fail to rebut the pre-

sumption of prejudice in this case. Juror mis-

conduct occurred by virtue of the injection of

external evidence and influences, prejudgment

of the case and a refusal to follow the law.

The alleged misconduct occurred on the sec-

ond day of deliberations. The jury voted 12-0

on the issues of liability and compensatory

damages. However, the jury voted 9-3 on the

issues of malice and the amount of punitive

damages.

“Because there was a bare majority on the is-

sues of malice and the amount of punitive

damages and because the standard of proof as

to malice is so high, the Court finds the delib-

erative process on these two (2) issues was

presumptively infested with passion and

prejudice as to render the verdict on punitive

damages fundamentally suspect. If not singly,

then in combination, the juror misconduct de-

scribed above was presumptively prejudicial

and such presumption has not been rebutted.

|

lla

“Despite admonitions from the Court, in es-

sence, not to consider anything but the facts

and the law, and despite other jurors’ admoni-

tions not to consider the external evidence and

influences discussed above, the jury was being

told not to think of the proverbial pink ele-

phant. The damage was presumptively done.”

D. The Issue of. Presumptions

Jury deliberations are secret while they are occurring. No

verbatim transcript or other record of the deliberations nor-

mally exists. Declarations seeking to reconstruct delibera-

tions after the fact may be colored by the jurors’ natural in-

clination to protect or attack the process that resulted in the

verdict, depending on whether the juror agreed or disagreed

with the verdict. (See Weathers y. Kaiser Foundation

Hospitals (1971) 5 Cal. 3d 98, 108-109.) Yet, the parties’

right to a jury trial is one of constitutional dimension, and we

give great deference to a verdict issued by a properly in-

structed jury—in the normal case, without any inquiry what-

Soever into the processes used to reach that verdict. Even

when there are allegations of jury misconduct, evidence of

the jurors’ mental processes is, “with narrow exceptions,”

excluded from consideration of the right to a new trial. (In

re Hamilton, supra, 20 Cal. 4th at pp. 294-295.)

Common experience requires that we recognize that

while the “jury system is .. . legally fundamental .. . [it is]

also fundamentally human.” (People v. Marshall (1990) 50

Cal. 3d 907, 950.) Jurors bring to their deliberations knowl-

edge, beliefs, personalities, and intellectual Capacities, which

the judicial system must accept as both a strength and a

weakness of the jury system. (Ibid.; see also People y.

Keenan (1988) 46 Cal. 3d 478, 541.)

Faced with the twin facts that jurors are allowed great

freedom in their conduct of deliberations and that a court can

never know exactly what influences resulted in a particular

12a

verdict, our judicial system has established certain presump-

tions for reviewing allegations of juror misconduct.

Jurors ordinarily are presumed to have followed the

court’s instructions. (People v. Sanchez (2001) 26 Cal. 4th

834, 852; Craddock v. Kmart Corp. (2001) 89 Cal. App. 4th

1300, 1308.) “The California Supreme Court has consis-

tently stated that on appeal, ‘[w]e must, of course, presume

that the jury followed [the trial court’s] instructions ....’

(People v. Chavez (1958) 50 Cal. 2d 778, 790.) ... ‘In the

absence of evidence to the contrary, the presumption [that the

jury adhered to the limiting instructions] will control.’ (Peo-

ple v. Beach (1983) 147 Cal. App. 3d 612, 625.)” (People v.

Zack (1986) 184 Cal. App. 3d 409, 416.)

On the other hand, “[jJuror misconduct, such as the re-

ceipt of information about a party or the case that was not

part of the evidence received at trial, leads to a presumption

that the defendant was prejudiced thereby and may establish

juror bias.” (People v. Nesler, supra, 16 Cal. 4th at p. 578.)

“To succeed [on a claim of jury misconduct, a party] must

show misconduct on the part of a juror; if he does, prejudice

is presumed; [the opposing party] must then rebut the pre-

sumption or lose the verdict.” (People v. Marshall, supra, 50

Cal. 3d at p. 949.)

The presumption of prejudice in a civil case is rebutted if

the reviewing court reaches one of three conclusions: (1) the

record establishes the absence of prejudice; (2) a review of

the entire record shows there is no reasonable probability of

actual harm to the complaining party under the constitutional

standard of People v. Watson (1956) 46 Cal. 2d 818, 836

(see Hasson v. Ford Motor Co. (1982) 32 Cal. 3d 388, 416-

417; McDonald v. Southern Pacific Transportation Co.

(1999) 71 Cal. App. 4th 256, 265); or (3), in the case of pos-

sible “actual bias” of a juror whose vote may have been de-

terminative of the verdict, there is no substantial likelihood

that at least one juror was impermissibly influenced. (See

13a

Province v. Center for Women’s Health & Family Birth

(1993) 20 Cal. App. 4th 1673, 1679-1680, disapproved on

other grounds in Heller v. Norcal Mutual Ins. Co. (1994) 8

Cal. 4th 30, 41; see also Weathers v. Kaiser Foundation Hos-

pitals, supra, 5 Cal. 3d 98, 110.)

The interaction of the two foregoing presumptions is seen

in People v. Marshall, supra, 50 Cal. 3d 907. In that death

penalty case, during the jury’s penalty phase deliberations, a

juror claiming a law enforcement background stated to the

other jurors that the absence of a known criminal record for

the defendant was not determinative because ““‘juvenile re-

cords are automatically sealed at 18 years of age.” (Id. at p.

949.) The Supreme Court concluded that this was miscon-

duct that raised a presumption of prejudice. (Jd. at p. 951.)

However, the court then applied the presumption that the jury

would understand and follow the instructions from the court;

those instructions, in this particular case, rendered the issue

of a prior criminal record immaterial to the penalty determi-

nation. (/d. at p. 952.) Accordingly, the court held, the re-

cord established that the presumption of prejudice was rebut-

ted. (Id. at p. 951.)

E. Analysis

As noted, the trial court did not expressly resolve the

many factual conflicts presented by the various declarations.

Implicit in the court’s conclusion, however, is a finding that

the declarations submitted by plaintiffs were credible at least

to the extent they described the verbal response of other ju-

rors, the timing of the remarks by S. and Z., and the uncon-

tradicted fact that the remarks were not the subject of discus-

sion after the read-back of the testimony of the Ford em-

ployee, Darold. Thus, the court concluded: “Despite admoni-

tions from the Court, in essence, not to consider anything but

the facts and the law, and despite the other jurors’ admoni-

tions not to consider the external evidence and influences

discussed above, the jury was being told not to think of the

en re et

14a

proverbial pink elephant. The damage was presumptively

done.” The only claims that other jurors admonished Jurors

S. and Z. were contained in the declarations submitted by

plaintiffs.

Despite this finding concerning jury self-admonition, it

appears to us the trial court applied only the presumption that

jury misconduct is prejudicial and, without any evidentiary

basis for doing so, failed to consider and apply the presump-

tion that jurors have followed the instructions they were

given. In our independent review of the issues of prejudice

and rebuttal of the presumption of prejudice, we conclude the

record provides no basis to reject the normal presumption the

jury followed the instructions. Accordingly, as we explain,

we conclude the presumption of prejudice is rebutted.

The declarations establish that S. made her comments

about the 60 Minutes IJ segment on Thursday or Friday.

Also prior to the weekend, the jury asked the court for a read-

back of a portion of Darold’s testimony concerning Ford’s

state of knowledge. Over the course of the ensuing weekend,

there was substantial news coverage of a massive punitive

darnages verdict rendered in a case against General Motors

during the previous week. As a result of concern that the

jury might be influenced by the size of the General Motors

verdict, the court—without any explanation to the jury about

why it was doing so—instructed the jury prior to the com-

mencement of deliberations on the following Monday, July

12, 1999:

“Ladies and gentlemen, you’re going to resume your de-

liberations here shortly, but just a reminder to you: During

the course of the trial, the Court admonished you that you are

not to read or listen to or pay attention to any news accounts

concerning this case; that you are to decide this case based on

the law and the facts of the evidence that was presented to

you during the course of the trial. The Court wanted to re-

peat that admonition to you that again you are to decide this

15a -

case based on the law, the facts and the evidence that are pre-

sented to you during the course of the evidence in the trial.

You are not to read or listen to or consider, if you have, taken

[sic] into account any newspaper articles concerning this

Case, any radio accounts or any television or any other media

accounts concerning this case or any other case. You are to

decide this case based on the facts and the law and the evi-

dence presented during the course of this trial; okay?”

In addition, there is no conflict in the evidence showing

the foreperson of the jury admonished S. that the 60 Minutes

I segment could not be used as evidence in the present Case,

nor is there conflict in the evidence showing S. expressly

agreed with this admonition. There is no conflict in the evi-

dence showing that the 60 Minutes IT issue was never men-

tioned again after this exchange between the foreperson and

S. Because the jury is presumed to have followed the court’s

Subsequent instruction to decide the case only on the evi-

dence and law presented, and because there is no evidence to

overcome that presumption, we conclude the presumption of

prejudice from mention of the 60 Minutes IT segment is re-

butted by the record. (People v. Marshall, supra, 50 Cal. 3d

at p. 952.)

Similarly, Z.’s dream was never the subject of discussion

after the court’s admonition of Monday, July 12, 1999. We

digress to note that defendant has not cited any cases for the

Proposition that having or talking about a dream while serv-

ing on a jury constitutes misconduct. Having a dream, in it-

self, cannot be considered the receipt of extrinsic evidence by

the dreamer, since the dream is entirely an internal affair.

The report of the dream—Z.’s Statements to her fellow ju-

Tors—seems to us well within the realm of permissible rhe-

torical devices, merely another way of saying that the speaker

finds the evidence very persuasive and that she fears other

similar accidents if the product were not to be recalled by the

manufacturer. Certainly such a statement in the latter terms

Nn ee

16a

would not constitute misconduct. No reason occurs to us

why the use of the dream formulation to increase the rhetori-

cal impact of the statements would be any less permissible.

(Cf. Iwekaogwu v. City of Los Angeles (1999) 75 Cal. App.

4th 803, 819.)

To return to our main point: even assuming the dream

statements constituted misconduct, they were brief, the

dream was not claimed to be evidence, and the dream was

not discussed after the July 12, 1999, admonition. Because

the jury is presumed to have followed the instruction to de-

cide the case only on the evidence and law presented, and

because there is no evidence to overcome that presumption,

we conclude any presumption of prejudice from the dream

statements is rebutted by the record. (People v. Marshall,

supra, 50 Cal. 3d at p. 952.)

The greatest level of conflict in the declarations concerns

the claims that Z. said she had prejudged the case and said

the jury did not “need to follow the law” because of an over-

riding responsibility to “save the babies.” Those jurors who

claimed Z. voiced an intention to disregard the law all said

she made these statements on the first day or the first couple

of days of deliberations. It was during this time that the jury

deliberated the issues of liability and compensatory damages.

There is no indication in any of the declarations that Z. made

similar statements during the more contentious punitive dam-

ages deliberations. In fact, it is uncontradicted that the

statements ceased well before the court’s July 12, 1999, ad-

monition to decide the case on the evidence alone. Because

the jury is presumed to have followed the instruction to de-

cide the case only on the evidence and law presented, and

because there is no evidence to overcome that presumption,

we conclude the presumption of prejudice from Z.’s possible

expressions of prejudice and refusal to follow the law is re-

butted by the record. (People v. Marshall, supra, 50 Cal. 3d

at p. 952.)

}

}

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ee

17a

A similar issue arose in People v. Harper (1986) 186 Cal.

App. 3d 1420. In that murder case, the jury was having trou-

ble interpreting the instructional definition of murder. A ju-

ror brought in a dictionary and read to the other members the

dictionary definition of murder. That juror “was immediately

cautioned by other members of the jury that his definition

could not be considered.” (/d. at p. 1428.) Seeking further

instruction from the trial court, the jury sent out a note that

disclosed that the juror had consulted the dictionary. (Jbid.)

The trial court then brought out the jury, explained generally

why dictionary definitions are not applicable in criminal

prosecutions, and admonished the jury to “put aside any dis-

cussion or consideration” of the dictionary definition. (Id. at

p. 1429.)

The appellate court held: “Absent evidence to the con-

trary, a jury is presumed to follow the instructions of the trial

court. Having been given a specific admonishment in light

of misconduct by one of their members, it seems probable the

jurors would more closely adhere to the instructions of the

trial court and thus reduce the chance for prejudice.” (People

v. Harper, supra, 186 Cal. App. 3d at pp. 1429-1430.)

Agreeing with the trial court’s conclusion, the reviewing

court stated: “[I]t was unnecessary to rely on a presumption

the jurors . . . followed the admonition when the declarations

[of the jurors] made clear there was no further discussion of

the dictionary definition.” (/d. at p. 1430.) The court con-

cluded the presumption of prejudice arising from the juror’s

misconduct had been rebutted. (/bid.; see also People y. Pin-

" holster (1992) 1 Cal. 4th 865, 925.)

In the present case, of course, the jury did not inform the

trial court that there had be 2n reference by a juror to a televi-

sion program and an appeal by another juror to the overriding

moral necessity of saving the lives of children. Nevertheless,

the court fortuitously instructed the jury to confine its delib-

erations and consideration of the case solely to the evidence

18a

presented at trial. The instruction did not mention the Gen-

eral Motors verdict that had caused the parties to request it;

for all the members of this jury knew, the court somehow had

ascertained that extraneous materials were being mentioned

in the jury room. In any event, the record is clear that none

of the misconduct was repeated in any manner after the

court’s admonition. As in People v. Harper, supra, 186 Cal.

App. 3d at page 1430, the record rebuts the presumption of

prejudice arising from the jury misconduct in this case.

Finally, we consider whether the evidence establishes

that, even if the record rebuts the presumption of prejudice as

to the jury as a whole, there is a substantial likelihood that a

juror necessary to the punitive damages verdict prejudged the

case. (See Province v. Center for Women’s Health & Family

Birth, supra, 20 Cal. App. 4th at pp. 1678-1679.) “For a ju-

ror to prejudge the case is serious misconduct.” (Clemens v.

Regents of University of California (1971) 20 Cal. App. 3d

356, 361.) Thus, where a juror initially failed to disclose his

prejudgment of the case during voir dire and subsequently

repeated that prejudged position throughout the trial and de-

liberations, the court found prejudicial misconduct. (See id.

at pp. 365- 366.) Similarly, where a juror prejudged the case

and coerced the rest of the jury into an immediate vote with-

out any deliberation, the court found prejudicial misconduct.

(Province v. Center for Women’s Health & Family Birth, su-

pra, 20 Cal. App. 4th at pp. 1678, 1680.)

In this case, the trial court impliedly found that Juror Z.

stated to the other jurors that she had made up her mind about

the case prior to the completion of all the testimony.

For reasons similar to those stated above, however, we

find that Z.’s initial statements concerning readiness to de-

cide the case without regard to the law does not rise to the

level of prejudicial misconduct found in the foregoing cases.

Rather, the record establishes that while early in the delibera-

tions Z. may have misunderstood the nature of the jury’s

—————— kaw

19a

function, the other jurors—particularly the foreperson, identi-

fied as a deputy district attorney—admonished her concern-

ing the necessity to follow the law as instructed by the court.

None of the juror declarations contend Z. persisted in a re-

fusal to consider the law and the evidence, and several

declarations— including Z.’s—state that she affirmatively

agreed that the jury needed to follow the law. On this record,

it is not substantially likely that Z. prejudged the case and

failed to decide the case on the law and evidence presented at

trial. (Jn re Hamilton, supra, 20 Cal. 4th at p. 296.)

F. Conclusion

Defendant urges that we adopt what amounts to a rigid

tule that prejudicial misconduct cannot be cured either by

"jury self-admonition or by admonitions from the trial court.

Such a contention ignores the very purpose of permitting and

requiring jury deliberations: through group discussion of the

law and the evidence, our common law system trusts that ju-

rors who express wrong ideas about the evidence, the law,

and their duty as jurors will be guided to a correct view of the

case. In the absence of an Opportunity for jurors to express

such wrong conceptions and thereafter change their thinking,

a jury trial might just as well conclude with the submission of

ballots from the jury box at the Close of the case.

Despite defendant’s consistent attempts to portray this as

a case of jurors run amok, the misconduct in the present case

conduct that resulted in reversal in such cases as People y.

Nesler, supra, 16 Cal. 4th 561, Province v. Center for

Women’s Health & Family Birth, supra, 20 Cal. App. 4th

1673, and Clemens y. Regents of University of California,

supra, 20 Cal. App. 3d 356. Instead, in the present case, by

all of the evidence in the record, the collective process of jury

deliberation resulted in disabusing jurors S. and Z. of any

misconceptions they may have had concerning their duty as

|

20a

jurors to follow the law and consider only the evidence at

trial. As such, the presumption of prejudice was rebutted.

Il. Defendant's Appeal

Defendant appeals from the trial court’s order denying its

motion for JNOV on the issue of punitive damages. Defen-

dant also appeals from the trial court’s denial of defendant’s

new trial motion on liability and compensatory damages.

Finally, defendant contends the punitive damages award is

the “grossly excessive product of bias, passion and preju-

dice.”

We will address these issues in the following order.

First, we will consider whether substantial evidence supports

the jury’s finding on malice, the linchpin of its punitive dam-

ages verdict. Next, we will address the issue of excessive-

ness of punitive damages. Because we have found there was

no prejudicial jury misconduct, the claim that the tal court

erred in denying a new trial on liability and compensatory

damages—a claim premised on the same allegations of jury

misconduct—is moot.

A. Substantial Evidence

Defendant contends “plaintiffs failed as a matter of law to

prove that Ford can be held liable for punitive damages.”

“This argument calls for our determining whether substaatial

evidence supported the jury’s verdict.” (Hardison v. Bush-

nell (1993) 18 Cal. App. 4th 22, 25-26.)

1. Standard of Review

“Where findings of fact are challenged on a civil appeal,

we are bound by the “elementary, but often overlooked prin-

ciple of law, that ... the power of an appellate court begins

and ends with a determination as to whether there is any sub-

stantial evidence, contradicted or uncontradicted,” to support

the findings below. (Crawford v. Southern Pacific Co.

(1935) 3 Cal. 2d 427, 429.) We must therefore view the evi-

2la

dence in the light most favorable to the prevailing party, giv-

ing it the benefit of every reasonable inference and resolving

all conflicts in its favor in accordance with the standard of

review so long adhered to by this court.’ (Jessup Farms y.

Baldwin [(1983)] 33 Cal. 3d [639,] 660.)” (7; hompson.y.

Tracor Flight Systems, Inc. (2001) 86 Cal. App. 4th 1156,

1166.)

On appeal from an order denying judgment notwithstand-

ing a jury’s verdict, we independently apply the same stan-

dard as the trial court, that is, the substantial evidence test

Stated above. (Osborn v. Irwin Memorial Blood Bank

(1992) 5 Cal. App. 4th 234, 259.) Thus, where the trier of

fact has concluded “that the Clear and convincing standard

then we must affirm.” (Mike Davidov Co. v. Issod (2000) 78

Cal. App. 4th 597, 606.)

Our standard of review is no different where, as here, the

challenge to the sufficiency of the evidence arises in the con-

text of a punitive damages verdict. Defendant seeks support

for a heightened standard of review by relying upon the

maxim that California law “disfavors punitive damages.”

That reliance is unavailing.

Defendant’s premise is correct, in a limited way: When

the issue is whether to permit administrative agencies to

award such damages in the absence of a legislative mandate

(see Dyna-Med, Inc. v. Fair Employment & Housing Com.

(1987) 43 Cal. 3d 1379, 1392) or to permit lost punitive

damages as a component of compensatory damages in legal

malpractice suits (see Piscitelli y. Friedenberg (2001) 87 Cal.

App. 4th 953, 981-982), the common law indeed disfavors

expanding the availability of punitive damages.

Where the Legislature has provided for such damages

under specified conditions, however, it is the function of the

judiciary to review a jury verdict pursuant to the law as writ-

ten—not to favor or disfavor, approve or disapprove, the

22a

Legislature’s choice in providing for such damages. “The

judiciary, in reviewing statutes enacted by the Legislature,

may not undertake to evaluate the wisdom of the policies

embodied in such legislation; absent a constitutional prohibi-

tion, the choice among competing policy considerations in

enacting laws is a legislative function.” (Superior Court v.

County of Mendocino (1996) 13 Cal. 4th 45, 53.) (We con-

sider defendant’s constitutional arguments later.)

Defendant also suggests our review of the verdict and of

the order denying the JNOV motion must be elevated beyond

ordinary substantial evidence review because the punitive

damages statute (Civ. Code, § 3294) requires proof of malice

by clear and convincing evidence. This contention is wrong

if, by it, defendant means to imply that we give less defer-

ence to the facts and inferences found by the trier of fact.

Defendant’s contention, understood in this way, ignores

the fact that courts routinely apply the substantial evidence

standard in criminal cases, where the burden of proof is be-

yond a reasonable doubt. (See, e.g., People v. Lewis (2001)

25 Cal. 4th 610, 642; People v. Marshall (1997) 15 Cal. 4th

1, 34; People v. Johnson (1980) 26 Cal. 3d 557, 578.)

We reiterate, then, that in reviewing a punitive damages

verdict, just as in reviewing a criminal verdict or an ordinary

civil verdict, we give full deference to the trier of fact. Thus,

even though the Legislature added a “clear and convincing

evidence” requirement to the punitive damages statute, it did

not alter “the standard of our review (all we are required to

find is substantial evidence to support a determination by

clear and convincing evidence [citation]) ....” (Tomaselli

v. Transamerica Ins. Co. (1994) 25 Cal. App. 4th 1269,

1287.)

2. Corporate State of Mind

Defendant contends the evidence was insufficient to

prove it acted with malice in designing and manufacturing

}

;

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23a

the 1978 Bronco or in failing to warn consumers about the

absence of rollover protection. Underlying this argument is a

fundamental .misconception of the required proof, stated in

defendant’s reply brief as follows: “Section 3294 [authoriz-

ing punitive damages] makes absolutely clear that plaintiffs

were required to introduce clear and convincing proof that at

least one particular Ford employee, officer, director or man-

aging agent had the requisite malicious state of mind in

1978.” (Italics in original.)

Since 1980, Civil Code section 3294, subdivision (b), has

provided, in relevant part: “With respect to a corporate em-

ployer, the advance knowledge and conscious disregard, au-

thorization, ratification or act of oppression, fraud, or malice

must be on the part of an officer, director, or managing agent

of the corporation.” The purpose of the amendment was to

clarify the existing common law requirement that corporate

malice occur at the level of “employees [who] exercised sub-

stantial discretionary authority over decisions that resulted in

an ‘ad hoc formulation of policy’ ....” (White v. Ultra: if,

Inc. (1999) 21 Cal. 4th 563, 571, citation omitted.)

In adopting the amendment, the Legislature sought lan-

guage that would express the requirement that punitive dam-

ages liability for employers requires more direct involvement

by the employer than ordinary respondeat superior liability,

but also sought to make clear that such liability did not attach

only to the acts of those “employed in a managerial Capac-

ity.” (See White v. Ultramar, Inc., supra, 21 Cal. 4th at pp.

571, 576.) The adopted language reflects a legislative intent

“that principal liability for punitive damages not depend on

employees’ managerial level, but on the extent to which they

exercise substantial discretionary authority over decisions

that ultimately determine corporate policy. Thus, supervisors

who have broad discretionary powers and exercise substan-

tial discretionary authority in the corporation could be man-

aging agents.” (/d. at pp. 576-577.)

|

24a

In White v. Ultramar, Inc., supra, the Supreme Court

concluded that the present version of Civil Code section

3294, subdivision (b), sought to preserve the pragmatic

stance adopted in Egan v. Mutual of Omaha Ins. Co. (1979)

24 Cal. 3d 809, 822-823. “Egan observed that a corporate

defendant should not be able to shield itself ““from liability

by giving an employee a nonmanagerial title and relegating

to him crucial policy decisions.”” (White v. Ultramar, Inc.,

supra, 21 Cal. 4th at p. 571.) The operative inquiry is

whether the employee’s exercise of discretion results in ac-

tual, even if “ad hoc,” corporate policy. (Jbid.)

In most of the cases in which the “managing agent” issue

has resulted in reversal of a punitive damages award, initial

liability arises from a particular tortious act of an employee

of the corporation. (See, e.g., Cruz v. HomeBase (2000) 83

Cal. App. 4th 160, 167; see also White v. Ultramar, Inc., su-

pra, 21 Cal. 4th at p. 577.) Defendant has cited no case, and

our own research has failed to disclose any case, in which a

series of corporate actions and decisions, such as the design,

production, and marketing of an automobile, has been found

inadequate to support an award of punitive damages on the

basis that the multitude of employees involved in various as-

pects of the process were not high enough in the corporate

chain of command. When the entire organization is involved

in the acts that constitute malice, there is no danger a blame-

less corporation will be punished for bad acts over which it

had no control, the primary goal of the “managing agent” re-

quirement. (Cf. Grimshaw v. Ford Motor Co. (1981) 119

Cal. App. 3d 757, 814.)

There is no requirement that the evidence establish that a

particular committee or officer of the corporation acted on a

particular date with “malice.” A corporate defendant cannot

shield itself from liability through layers of management

committees and the sheer size of the management structure.

It is enough if the evidence permits a clear and convincing

eee

25a

inference that within the corporate hierarchy authorized per-

sons acted despicably in “willful and conscious disregard of

the rights or safety of others.” (See Civ. Code, § 3294, subd.

(c)(1).)

A plaintiff may satisfy the “Managing agent” requirement

of Civil Code section 3294, subdivision (b), through evi-

dence showing the information in the possession of the cor-

poration and the structure of management decisionmaking

that permits an inference that the information in fact moved

upward to a point where corporate policy was formulated.

These inferences cannot be based merely on speculation, but

they may be established by circumstantial evidence, in ac-

cordance with ordinary standards of proof.

Defendant contends, in addition, that plaintiffs failed to

prove defendant engaged in “despicable” conduct within the

meaning of Civil Code section 3294, subdivision (c)(1). This

argument focuses on individual acts and decisions of defen-

dant’s employees, while complaining that plaintiffs attempt

to “create a composite picture of alleged ‘maliciousness’ by

imputing to some fictional monolith bits and pieces of sup-

posed knowledge of many different people on many different

topics through many different decades.”

Stripped of pejorative innuendo, defendant clearly is a

“fictional monolith”: corporations are legal constructs—legal

fictions (Francis T. y. Village Green Owners Assn. (1986) 42

Cal. 3d 490, 507)—and defendant is a single such construct.

It is difficult to imagine how corporate malice could be

Shown in the case of a large corporation except by piecing

together knowledge and acts of the corporation’s multitude of

managing agents.

Defendant also asserts that plaintiffs are “unable to pre-

sent evidence of any ‘malicious or despicable’ conduct with

respect to the design and production of the 1978 Bronco.”

This ignores the fact that the design and production of the

vehicle was the despicable conduct: we think it obvious that

eae er

26a

putting on the market a motor vehicle with a known propen-

sity to roll over and, while giving the vehicle the appearance

of sturdiness, consciously deciding not to provide adequate

crush protection to properly belted passengers (in the words

of a corporate memo introduced in evidence, “penalizing”

passengers for wearing a seatbelt) constitutes despicable

conduct. Such conduct could kill people. The question is not

whether the conduct, if it occurred, was despicable, the ques-

tion is whether there is sufficient evidence from which a ra-

tional trier of fact could find that the knowing conduct oc-

curred.

Defendant’s attack on the sufficiency of the evidence in-

cludes discussions of the evidence of a manufacturing defect

and of defendant’s failure to include rollover warnings with

the 1978 Bronco. We will not examine this evidence, since

plaintiffs did not rely on it to prove malice. Instead, we will

turn directly to the third component of plaintiffs’ case, proof

of a design defect.

Attacking the sufficiency of the evidence of design de-

fect, defendant contends plaintiffs’ ow... evidence showed

“conclusively” that negligent manufacture of the Bronco, not

negligent design, caused the deaths and injuries involved in

this case. Had it not been for defective welds along the roof

pillar, “the metal portion of the roof would not have

crushed,” according to defendant; “if the roof had not

crushed in the entire Romo family ... would have ‘walked

away” from the accident.” This claim wholly ignores the re-

quirement that we view the evidence in the light most favor-

able to the verdict, as we will explain.

Plaintiffs did present evidence that the Bronco was not

only poorly designed but that it also was negligently manu-

factured. Plaintiffs presented testimony from a metal-

lurgy/materials-failure expert, Dean Jacobson, to the effect

that the front roof pillar was negligently welded. And he tes-

tified that those welds failed and caused the passenger side of

27a

the Bronco’s roof to “splay out” as it collapsed. But he also

testified that if the welds had been good, only the passenger

side of the steel roof “would have Stayed up. It would have

mitigated the amount of intrusion on the right side [of the

steel roof] and I believe basically the right side would have

Stayed up.”

Jacobson did not testify that, in the absence of faulty

welds, the entire Romo family would have walked away from

the accident. To the contrary, defendant objected to Jacob-

son’s expressing any opinions at all about the cause of the

Passengers’ injuries, since he was not a biomechanics expert.

However, Jacobson testified that the rear roof—the molded

fiberglass roof—“would have been gone” even if the welds

had been in accordance with the design specification. Of

equal importance, Jacobson testified that if defendant had

installed the type of integrated roll bar it initially planned for

the 1978 Bronco and had installed the type of steel roll bar at

the rear of the fiberglass roof that defendant did include on

the 1980 Bronco, the roof would not have crushed despite the

negligent welds. Thus, in essence, Jacobson testified that the

design defects were a sufficient independent cause of the

steel roof’s collapse during the rollover.

Defendant’s quotation from the record concerning the

“entire Romo family” walking away from the accident if the

roof did not collapse came from a different witness, plain-

tiffs’ biomedical engineering expert, Martha Bidez. Her tes-

timony had nothing to do with the causes for the collapse of

the roof. Instead, she took the sequence of events established

by the accident reconstruction expert and opined concerning

the manner in which the various victims’ injuries occurred

during the course of the accident. For example, after the wit-

ness described the mechanism by which the minor victims

Were injured, she was asked, “Why didn’t they sustain skull

fractures like other members of the family?” Bidez an-

swered, “The children in the back did not sustain skull frac-

OE ———

28a

tures because the roof did not crush in on top of them and the

roof did not strike them in the head. [§]] The roof struck their

mother and their brother, and [the girls] were able to simply

be deposited out on the highway. There was no roof crush;

that is what caused the death of their father.”

To provide a summarization of Bidez’s testimony, coun-

sel asked, “If the roof doesn’t crush in, what happens to the

members of this family?” Bidez answered, “If the roof

doesn’t crush in . . . the Romo family stays intact. Every one

of the family members . . . walk away from this collision.”

We have engaged in this rather extended exposition of

the evidence to demonstrate a point defendant repeatedly ig-

nores in its briefs: substantial evidence review requires ex-

amination of all the evidence, not just selective portions of

the evidence favorable to the appellant, and it requires

evaluation of that evidence in the light most favorable to the

verdict, not an interpretation that ignores the inferences

drawn by the trier of fact. (Jessup Farms v. Baldwin (1983)

33 Cal. 3d 639, 660.) We will not repeat the exercise of fully

demonstrating defendant’s selective use of the evidence in

each instance as we discuss its arguments; it will suffice to

say that defendant’s briefs repeatedly ignore this “elemen-

tary, but often overlooked principle” (Crawford v. Southern

Pacific Co., supra, 3 Cal. 2d 427, 4290) of appellate law.

Further attacking the sufficiency of the evidence of de-

sign defect, defendant contends the metal portion of the 1978

Bronco roof was “ahead of its time regarding roof strength.”

It contends the evidence established that there was no federal

standard for roof strength when the Bronco was manufac-

tured, but that the vehicle far exceeded the passenger car

standard that existed then and exceeded the current light

truck standard. “These facts, as a matter of law, preclude the

imposition of punitive damages,” according to defendant.

Viewing the evidence in the light most favorable to the

verdict, however, a rational trier of fact could conclude that it

29a

~

was merely coincidental that the Bronco met the later federal

standards, and that this coincidence—occurring years after

the design and production of the 1978 Bronco—did not re-

flect the corporate state of mind prevailing at. the time in

(1979) 24 Cal. 3d 890, 894); the question of such malice does

not turn on whether the relevant conduct is or is not reason-

able in light of later-developed standards of Care.

Instead, substantial evidence permits an inference that de-

fendant’s policymakers were strongly motivated to bring the

1978 Bronco to market and knew they could not do so if they

followed the routine practice of preproduction testing and

development. Substantial evidence supports an inference

that, in order to bring the product to market, defendant’s

policymakers decided to disregard established policies by

which defendant had determined that crush resistance needed

to be higher (the twice-the-curb-weight Standard) and that

fiberglass or molded plastic should not be used for compo-

nents comprising the passenger compartment unless under-

lain by a steel skeleton. Given the existence of these corpo-

rate standards and the total absence of preproduction testing,

a rational finder of fact could infer that the failure to design

and test the 1978 Bronco to meet these standards reflected “a

willful and conscious disregard of the .. . safety” (Civ. Code,

§ 3294, subd. (c)(1)) of those who would travel in the

Bronco.

In a similar manner, defendant attacks the sufficiency of

the evidence of design defect of the fiberglass portion of the

roof by pointing out plaintiffs’ expert testimony that having a

30a

removable roof on the Bronco was reasonable? and that de-

fendant’s designated “most knowledgeable” representative

testified that, like a convertible’s cloth top, the fiberglass roof

was not designed to survive a rollover accident.

However, other evidence permitted a reasonable trier of

fact to conclude that defendant’s decision to put the unrein-

forced fiberglass roof was despicable because defendant

knew that:

—unlike convertible passenger cars, the high

center of gravity of truck-based utility vehi-

cles made them more likely than passenger

cars to roll over;

—defendant’s safety engineers previously had

concluded unreinforced fiberglass should

never be used for a part of a vehicle intended

to enclose the passenger compartment and had

concluded no utility vehicle should be pro-

duced without a roll bar—and that the original

design for the 1978 Bronco, in fact, included a

roll bar as standard equipment;

—the competitor’s removable fiberglass roof

did contain metal reinforcement;

—defendant’s own testing conducted after

production and delivery of the 1978 Bronco

2 The expert did not testify that an unreinforced fiberglass roof was

reasonable. He merely testified that a removable roof was reasonable.

The earlier version of the Bronco, for example, had a removable steel

roof. He was highly critical of the use of unreinforced fiberglass, com-

bined with the absence of a roll bar, for the 1978 Bronco. In other words,

contrary to the implication of defendant’s excerpt, plaintiffs’ expert did

not express approval of the fiberglass roof on this vehicle.

3la

(testing defendant consciously decided not to

undertake in order to bring the product to

market more quickly, despite such testing as a

routine part of product development for other

vehicles) showed the roof failed to meet de-

fendant’s safety standards and led defendant

to include steel reinforcement in the 1980

Bronco.

In light of this credible evidence, it is frivolous to con-

tend, based on defendant’s excerpts from the record, that

“Ford’s decision to incorporate a fiberglass roof into certain

vehicles—even if retrospectively deemed incorrect two dec-

ades after the fact—was not, as a matter of law, a ‘vile’ or

‘loathsome’ act that can Support an award of punitive dam-

ages,” as defendant says in its opening brief.

Finally, defendant contends that the decision to use an

unreinforced fiberglass top on the 1978 Bronco was never

disclosed to “top management,” citing the testimony of a

former Ford executive who testified on behalf of plaintiff.

The testimony of the former Ford executive, Thomas Fea-

heny, was somewhat different than represented by defendant.

Feaheny testified: “The decision to put [the fiberglass top] on

that vehicle was not a top management decision. It was made

in the truck operations and the truck department. And I guess

I’m fairly confident that they never disclosed to higher man-

agement that there was this risk” that the fiberglass roof “al-

most inevitably” would fail in a rollover accident.

Nevertheless, Feaheny testified that in the ordinary

course of business, the responsible executives within the light

truck division would have known about the safety engineers’

conclusions concerning the use of unreinforced fiberglass for

passenger compartment panels. These executives Clearly had

the power within the corporation to enforce or not enforce as

company policy the safety engineers’ findings.

32a

As stated previously, the test for whether malicious con-

duct is attributable to a corporation is whether the acts were

done by a person or persons with authority to make ad hoc

policy decisions on behalf of the corporation. (White v. UI-

tramar, Inc., supra, 21 Cal. 4th at p. 577.) Defendant does

not contend, nor could it, that employees on the assembly

line decided what roof to put on the Bronco or to delete the

roll bar as standard equipment. Such decisions obviously

were made with the input of many persons, but ultimately

became policies of the corporation despite corporate knowl-

edge that the choices entailed risk of death and serious injury.

The statutory standard for corporate malice does not re-

quire, as defendant contends, that a “Ford officer, director, or

managing agent believed that the company was compromis-

ing consumer safety by reducing costs or expediting produc-

tion.” It will suffice if the evidence, in the light most favor-

able to the verdict, establishes that corporate policymakers in

fact compromised consumer safety by reducing costs or ex-

pediting production in willful and conscious disregard of

consumer safety. “[MlJalice does not require actual intent to

harm .... Conscious disregard for the safety of another may

be sufficient where the defendant is aware of the probable

dangerous consequences of his or her conduct and he or she

willfully fails to avoid such consequences.” (Angie M. v. Su-

perior Court (1995) 37 Cal. App. 4th 1217, 1228.)

In the present case, the direct and circumstantial evi-

dence, together with the inferences therefrom, is sufficient to

permit a rational trier of fact to clearly and convincingly con-

clude that defendant acted with malice in its design and in-

troduction into the market of the 1978 Bronco. _

B. Claim of Excessiveness of Punitive Damages

The trial court denied defendant’s motion for a new trial

on “all other grounds” stated in defendant’s motion, apart

from the jury misconduct basis upon which it granted the

motion. Among those grounds upon which the motion was

33a

denied was the claim that the amount of punitive damages

was excessive. On appeal, this claim has three components:

(1) The jury improperly was permitted to consider defen-

dant’s overall size and worth in Setting the amount of the

award; (2) the amount of the award is factually insupport-

able; and (3) the “unprecedented” size of the award violates

defendant’s due process right to notice of the penalty that it

might incur at the time it acts maliciously.

1. Review Under California Law

“The amount of punitive damages is determined in the

discretion of the jury. An appellate court will not reverse the

jury’s determination unless the award as a matter of law is

excessive or appears so grossly disproportionate to the rele-

vant factors that it raises a presumption it was the result of

passion or prejudice .... In reviewing the verdict the appel-

late court is guided by three main factors: the reprehensibility

of the defendant’s conduct, the actual harm suffered by the

victims, and the wealth of the defendant.” (Rufo v. Simpson

(2001) 86 Cal. App. 4th 573, 623, citing Neal v. Farmers Ins.

Exchange (1978) 21 Cal. 3d 910, 927-928; see also Zaxis

Wireless Communications, Inc. y. Motor Sound Corp. (2001)

89 Cal. App. 4th 577, 583.)

The second of the three considerations as set out in Rufo

v. Simpson, supra, 86 Cal. App. 4th at page 623, harm to the

victims, is-sometimes described instead as “the amount of

damages.” (See Lane vy. Hughes Aircraft Co., supra, 22 Cal.

4th at p. 417 (conc. opn. of Mosk, J.).) The “amount of dam-

ages” in many cases provides an adequate and convenient

measure of the harm to the victims. In some instances, how-

ever, tort law, for historical reasons, undervalues non-

economic damages and the compensatory damages award is

not a reliable measure of the injury to the victims. Wrongful

death is among such instances: “In an action by the represen-

tative of a decedent’s estate, the punitive damages must be

compared to the actual harm suffered by the decedent, not the

34a

limited economic damages recoverable by the estate.” (Rufo

v. Simpson, supra, 86 Cal. App. 4th at p. 623, fn. 15; see also

Neal v. Farmers Ins. Exchange, supra, 21 Cal. 3d at p. 929.)

Therefore, we look to the “actual harm” suffered by the vic-

tims as a result of defendant’s malicious conduct in our re-

view of the punitive damages award. (/d. at p. 928.)

While we clearly must consider the degree of injury to

the victims as part of our review of the punitive damages

award for excessiveness, neither the Legislature nor the judi-

ciary has established a fixed ratio between the compensatory

and punitive damages that provides a standard for determin-

ing excessiveness. (See Lane v. Hughes Aircraft Co., supra,

22 Cal. 4th at p. 417 (conc. opn. of Mosk, J.); id. at p. 428

(conc. opn. of Brown, J.).) Rather than focus on any one of

the three factors specified by the Supreme Court in Neal, our

task is to evaluate all three factors in light of the entire re-

cord. (Adams v. Murakami (1991) 54 Cal. 3d 105, 110.)

“(T]he key question before the reviewing court is whether the

amount of damages ‘exceeds the level necessary to properly

punish and deter.’” (/bid., quoting from Neal v. Farmers Ins.

Exchange, supra, 21 Cal. 3d at p. 928.)

We also note that the trial court, sitting as an independent

trier of fact (see Sierra Club Foundation v. Graham (1999)

72 Cal. App. 4th 1135, 1160), rejected the claim that the pu-

nitive damages were excessive. The trial court’s evaluation

of the evidence gives added weight to the jury’s determina-

tion that $290 million is an appropriate award to punish and

deter this defendant: The trial court “sits much closer to the

evidence than an appellate court. Even the most comprehen-

sive study of a trial court record cannot replace the immedi-

acy of being present at the trial, watching and hearing as the

evidence unfolds. The trial court, therefore, is in the best po-

sition to assess the reliability of a jury’s verdict and, to this

end, the Legislature has granted trial courts broad discretion”

in deciding whether to order a new trial, including a new trial

,

35a

on the excessiveness of punitive damages. (Lane vy. Hughes

Aircraft Co., supra, 22 Cal. 4th at p. 412.)

We turn now to the factors prescribed by the Supreme

Court in Neal v. Farmers Ins. Exchange, supra, 21 Cal. 3d at

page 928.

Rather incredibly, defendant contends its conduct—even

viewed in the light most favorable to the verdicts—“was at

the very lowest end of the reprehensibility spectrum.” We

disagree.

Involuntary manslaughter is the unlawful killing of a hu-

man being, inter alia, “in the commission of a lawful act

which might produce death .. . without due caution and cir-

cumspection.” (Pen. Code, § 192.) Involuntary manslaugh-

ter is a felony. As we have concluded above, the evidence

Supports the jury’s conclusion that defendant willfully and

consciously ignored the dangers to human life inherent in the

1978 Bronco as designed, resulting in the deaths of three per-

sons. Such corporate conduct can constitute involuntary

manslaughter (see Granite Construction Co. y. Superior

Court (1983) 149 Cal. App. 3d 465) and, when viewed in the

context of a mass-produced vehicle sold to the public, cer-

tainly is seriously reprehensible conduct.

Further, defendant ignored its own internal safety stan-

dards while leaving the Bronco with the appearance of incor-

porating a roll bar into the vehicle’s roof structure. Defen-

dant declined to test the strength of the Bronco’s roof before

placing the vehicle in production, and when it did test the

roof strength in conjunction with the redesign of the Bronco

for the 1980 product line, defendant concluded the roof in

fact failed to meet its own standards. Defendant modified the

roof for the 1980 Bronco, but it did nothing to remedy the

text—in contrast to the issue of defendant’s underlying neg-

ligence, not contested on this appeal—it avails defendant

36a

nothing that other auto manufacturers also used fiberglass

roofs on contemporaneous fiberglass utility vehicles.

The harm to the victims is obvious and severe. Defen-

dant does not contend otherwise.

The final issue is whether the punitive damages award is

excessive in light of defendant’s financial condition. There is

no doubt that $290 million is a lot of money. It is also true,

however, that defendant is a huge company with enormous

monetary resources. At the time of trial, defendant had daily

after-tax profits of $20 million and its net worth was $25 bil-

lion, of which $14 billion was in cash on hand. Defendant

earned well over $100 million in profit from the 1978 and

1979 Bronco. As far as the present record shows (see Ste-

vens v. Owens-Corning Fiberglas Corp. (1996) 49 Cal. App.

4th 1645, 1660-1661), defendant had enjoyed the use of that

profit for more than two decades without being penalized in

any case for punitive damages arising from the design of the

1978-1979 Bronco.

There is no doubt that $290 million would be a huge

windfall to the Romo family. (See College Hospital Inc. v.

Superior Court (1994) 8 Cal. 4th 704, 712.) The windfall to

victims of malicious torts, however, is simply a side effect of

our common law system for punishing and deterring wrong-

doers. The fact that such damages are a windfall is not ir-

relevant: it was a major consideration in the Supreme Court’s

decision to place the burden of proof for punitive damages

upon the plaintiff. (Adams v. Murakami, supra, 54 Cal. 3d at

p. 120.) The windfall nature of the damages is not, however,

a consideration in determining whether such damages are ex-

cessive as a matter of law. (Cf. Neal v. Farmers Ins. Ex-

change, supra, 21 Cal. 3d at p. 929.)

It is empirically impossible, of course, to know exactly

the level of punitive damages that would have a sufficient

punitive and deterrent effect without unduly stifling innova-

tion and competition in the marketplace. Any determination

37a

of an amount of punitive damages by a jury or by this court

On appeal is, in this sense, somewhat arbitrary. The jury and

the trial court each concluded $290 million provided suffi-

cient punishment and deterrence. That damages award is 1.2

percent of defendant’s net worth and nine days of its profits

at the time of trial. Although these amounts are slightly

higher than the award approved in Neal v. Farmers Ins. Ex-

change, supra, 21 Cal. 3d at page 929, when we consider that

defendant had the use of its 1978-1979 Bronco profits of over

$100 million for 20 years prior to the verdict, we cannot con-

clude the level of damages is excessive.

2. Review Under Federal Constitution

In the recent case of Cooper Industries, Inc. v. Leather-

man Tool Group, Inc. (2001) 532 U.S. 424, 431-433 [121 S.

Ct. 1678, 1683], the United States Supreme Court held that a

party raising due process challenges to a punitive damages

verdict is constitutionally entitled to de novo review by the

appellate court. Such review is limited to the constitutional

issues raised. Determinations of fact by the jury (and impli-

edly reaffirmed by the trial court in denying the new trial mo-

tion on excessiveness of damages) are accepted on appeal

unless not supported by substantial evidence.

This due process limitation, apparently arising from both

the excessive fines clause of the Eighth Amendment and

from the due process clause of the Fourteenth Amendment

(see Cooper Industries, Inc. v. Leatherman Tool Group, Inc.,

supra, 532 U.S. at p. 434 [121 S. Ct. at Pp. 1684]), requires a

reviewing court to determine whether the damages award is

“grossly excessive.” (Jbid.) “Only when an award can fairly

be categorized as ‘grossly excessive’ in relation to the

[state’s legitimate interests in punishment and deterrence]

does it enter the zone of arbitrariness that violates the Due

Process Clause of the Fourteenth Amendment.” (BMW of

North America, Inc. v. Gore, (1996) 517 U.S. 559, 568

[BMW}.) In order to avoid such arbitrariness, even when the

38a

state has a strong interest in preventing particular conduct,

state law must provide notice not only of “the conduct that

will subject [a defendant] to punishment, but also of the se-

verity of the penalty that a State may impose.” (Jd. at p. 574;

see also Cooper Industries, Inc. v. Leatherman Tool Group,

Inc., supra, 532 U.S. at p. 434 [121 S. Ct. at p. 1684].)

In BMW, the Supreme Court noted certain “guideposts”

to assist its determination whether the defendant had received

adequate notice of the severity of the penalty that might be

imposed on it. Those were “the degree of reprehensibility of

the [conduct]; the disparity between the harm or potential

harm suffered by [plaintiff] and his punitive damages award;

and the difference between [the punitive damages award] and

the civil penalties authorized or imposed in comparable

cases.” (BMW, supra, 517 U.S. at p. 575.) As noted, how-

ever, the ultimate question is whether the award is grossly

excessive in relation to the interests the state seeks to protect

through the award. (/d. at p. 568.)

As we have already discussed, defendant’s conduct was

grossly reprehensible. While defendant did not intend the

death to the victims, the award here cannot be compared to

cases “involving a business fraud resulting only in economic

harm.” (Rufo v. Simpson, supra, 86 Cal. App. 4th at p. 624.)

Further, the malicious conduct involved mass production and

marketing of the dangerous vehicle purely for defendant’s

economic betterment. (See Grimshaw v. Ford Motor Co.,

supra, 119 Cal. App. 3d at pp. 819-820.) Unlike BMW,

where the defendant’s conduct was not even unlawful in all

states and involved only economic consequences, the conduct

here placed tens of thousands of lives at risk and actually

claimed three such lives in the present case. The BMW court

was able to conclude: “In this case, none of the aggravating

factors associated with particularly reprehensible conduct is

present. The harm BMW inflicted on Dr. Gore was purely

economic in nature.” (BMW, supra, 517 U.S. at p. 576.) In

39a

the present case, by contrast, the reprehensibility factor

weighs heavily against a finding that the punitive damages

award is grossly excessive. :

There is a great disparity between the compensatory and

punitive damages award. While this factor weighs in favor

of a finding of excessiveness, the importance of the factor is

somewhat reduced, as we have explained above, because

wrongful death compensatory damages do not fully reflect

the harm to the victims.

Finally, the nature of the conduct involved in the present

case makes inapplicable the third BMW factor, comparison

with civil fines for similar conduct. Such a comparison is

appropriate when the conduct to be punished cannot result in

imprisonment if committed by an individual, but is inappro- -

priate when the malicious conduct cou!d result in substantial

imprisonment if committed by an individual instead of a cor-

poration. (See BMW, supra, 517 US. at pp. 583-584, distin-

guishing Pacific Mutual Life Insurance Co. v. Haslip ( 1991)

499 U.S. 1, 22.)3

3 Defendant also contends that a California plaintiff seeking a punitive

damages award based, in part, on a defendant’s financial condition must

prove the defendant’s profits from California only and in some manner

allocate the defendant’s net worth to its California operations. In BMW,

supra, 517 U.S. at page 585, the individual state’s punitive damages

award effectively sought to impose Alabama’s unique “regulatory poli-

cies on the entire Nation.” If the issue in the present case were an avto-

maker’s willful disregard of California’s unique and stringent emission

standards, there might be merit to defendant’s contention that the finan-

cial condition evidence should target only defendant’s California opera-

tions. Here, by contrast, the interest California seeks to protect—

individual human lives—is neither unique to California nor limited to its

own citizens: any 1978 Bronco operated on California highways creates

the same risks to its occupants no matter where the vehicle was sold nor

where its occupants reside.

40a

Defendant contends that no California case has awarded

anywhere near $290 million in punitive damages and, ac-

cordingly, defendant lacked notice of “the severity of the

penalty that a State may impose,” as required by BMW. (See

BMW, supra, 517 U.S. at p. 574.) The Penal Code, in lan-

guage unchanged since its initial adoption in 1872, however,

provides clear notice that killing a human being “in the

commission of a lawful act which might produce death ...

without due caution and circumspection” is manslaughter.

(Pen. Code, § 192, subd. (b).) Defendant has been on notice

“for more than a century” that California regards it as neces-

sary to impose penalties related to the wealth of the defen-

dant in order to achieve the goals of punishment and deter-

rence. (See College Hospital Inc. v. Superior Court, supra, 8

Cal. 4th 704, 712.) And defendant has been on notice since

at least 1971 that a week’s profits amounting to about 1 per-

cent of net wealth are not excessive punitive damages. (See

Neal v. Farmers Ins. Exchange, supra, 21 Cal. 3d at p. 929,

citing Wetherbee v. United Ins. Co. of America (1971) 18

Cal. App. 3d 266, 271.) Taken altogether, these factors pro-

vided defendant adequate notice of the potential for the puni-

tive damages awarded in this case.

We note that neither the United States Supreme Court nor

any California court has held that a jury’s consideration of

the size and resources of a defendant invalidates a punitive

damages award. Rather, the courts recognize that a defen-

dant’s wealth cannot be the sole criterion for the size of a pu-

nitive damages award: ability to pay an award cannot justify

an otherwise excessive punitive damages award. (See BMW,

supra, 517 U.S. at p. 585.)

Here, the punitive damages verdict was not “otherwise

excessive”; instead, consideration of the size and net worth of

a corporate defendant was necessary if the jury was to appro-

priately vindicate the state’s interest in protecting the lives of

its citizens.

4la

DISPOSITION

The order granting defendant’s motion for new trial is re-

versed. In all other respects, the judgment is affirmed. Plain-

tiffs are awarded costs on appeal.

VARTABEDIAN, Acting P. J.

WE CONCUR:

Buckley, J.

Cornell, J.

42a

APPENDIX B

STANISLAUS COUNTY SUPERIOR COURT,

STATE OF CALIFORNIA

JUAN RAMON ROMO, et al.,

vs

FORD MOTOR COMPANY

NATURE OF HEARING: LAW AND MOTION

CASE NO. 82318

JUDGE: ROGER M. BEAUCHESNE

Bailiff: L. Weaver

Clerk: P. Murray

Reporter: | None

Date: Sept. 15, 1999

MODESTO, CA

Appearances:

None

This matter came on calendar on September 10, 1999

upon defendant Ford Motor Company’s Motion for Judgment

Notwithstanding the Verdict, Motion for a New Tnal, and

Motion to Tax Costs.

Upon due consideration of the written Points and Au-

thorities submitted by counsel and the oral arguments prof-

fered on September 10, 1999, the Court renders the following

decisions on the Motion for Judgment Notwithstanding the

Verdict and Motion for a New Trial. There having been in-

sufficient time to hear the arguments on Ford’s Motion to

43a

Tax Costs, said motion is continued to October 8, 1999 at

8:30 a.m. in Department 5.

I

Motion for Judgment Notwithstanding the Verdict

The Court DENIES defendant Ford Motor Company’s

Motion for Judgment Notwithstanding the Verdict in its en-

tirety.

‘IL

Motion for New Trial

(A) The COURT GRANTS Ford Motor Company’s Mo-

tion for a New Trial on the issue of punitive damages; i.e., on

both the issue of whether Ford was guilty of malice and the

amount of punitive damages, if a subsequent jury finds mal-

ice.

(B) The COURT GRANTS Ford Motor Company’s Mo-

tion for a New Trial on the issue of compensatory damages

(economic damages) for the Estates of Ramon Romo and

Salustia Romo subject to the condition that the motion for a

new trial on this issue is DENIED if plaintiff(s) consent(s) to

a reduction to $5,000.00 as to each of the estates.

(C) The COURT DENIES Ford Motor Company’s Mo-

tion for a New Trial on all other grounds specified in its No-

tice of Motion for a New Trial.

I.

Specification of Grounds and Reasons for Granting a

New Trial On the Issue of Punitive Damages

The COURT grants Ford Motor Company’s motion for a

New Trial on the issue of malice and punitive damages based

upon misconduct of the jury. (CCP section 657(2)). Decla-

rations submitted by both plaintiffs and defendant established

that the jurors were exposed to, and injected into the jury

room, a television program regarding allegations of defective

Ford vehicles. One juror, even if not having seen the pro-

gram, told other jurors of a “60 Minutes I’ program which

aired on May 19, 1999 and that featured alleged fire prob-

lems from rear-end collisions involving older Ford Mustangs

in which drop-in fuel tanks were punctured. This juror alleg-

edly told the other jurors that Ford’s former president, Lee

Ioccoca—who headed Ford while the Bronco was being de-

veloped and whose name was mentioned frequently during

trial—said on the program that Ford had a policy to defend or

settle lawsuits rather than recalling or correcting vehicles. In

fact, the Court’s review of the exhibit (the videotape) reveals

Mr. Ioccoca made no such comment. The 60 Minutes pro-

gram also featured graphic depictions of the burn injuries

suffered by victims of Ford’s alleged misconduct.

At least two (2) juror declarations state that the juror who

mentioned the 60 Minutes program told the other jurors that

the program was evidence of Ford’s malice regarding the

1978 Bronco.

Additionally, after repeatedly telling the jurors that they

needed to “save the babies”, another juror told the jury in

great detail of a morbid nightmare she supposedly had the

night before in which her child and the other jurors’ children

were killed by a repeatedly rolling-over Bronco while the

Ford attorneys and witnesses armed with guns, mockingly

chanted, “Where’s the proof, where’s the proof?” This same

juror allegedly also told her fellow jurors that her dream was

an “omen”, thereby suggesting that it had some sort of mysti-

cal significance regarding how to vote in the case. She alleg-

edly also urged her fellow jurors that they “did not need to

follow the law because saving babies was too important.”

This same juror allegedly stated that what one of the plain-

tiffs’ attorneys said “should be considered as evidence.”

A litigant is entitled to a fair trial, not necessarily a per-

fect trial. A fair trial encompasses a fair deliberative process

by the trier of fact—in this case a jury of twelve (12) persons.

The Court finds that the counter-declarations submitted by

45a

plaintiffs fail to rebut the presumption of prejudice in this

case. Juror misconduct occurred by virtue of the injection of

external evidence and influences, prejudgment of the case

and a refusal to follow the law. The alleged misconduct oc-

curred on the second day of deliberations. The jury voted 12-

0 on the issues of liability and compensatory damages.

However, the jury voted 9-3 on the issues of malice and the

amount of punitive damages.

Because there was a bare majority on the issues of malice

and the amount of punitive damages and because the stan-

dard of proof as to malice is so high, the Court finds the de-

liberative process on these two (2) issues was presumptively

infested with passion and prejudice as to render the verdict

on punitive damages fundamentally suspect. If not singly,

then in combination, the juror misconduct described above

was presumptively prejudicial and such presumption has not

been rebutted.

Despite admonitions from the Court, in essence, not to

consider anything but the facts and the law, and despite other

jurors’ admonitions not to consider the external evidence and

influences discussed above, the jury was being told not to

think of the-proverbial pink elephant. The damage was pre-

sumptively done.

Fairness dictates a new trial on the issues of malice and

punitive damages.

IV.

Specification of Grounds and Reasons for Grantin

Conditional New Trial on the Issue of Compensato

Damages (Economic Damages) for the Estates

of Ramon Rome and Salustia Romo

The Court grants a conditional new trial on this issue on

the ground that the damages awarded were excessive. (CCP

section 657(5)). As a matter of law, the estates of Ramon

and Salustia Romo are limited to recovering damages suf-

CO —

46a

fered during the period between the accident and death.

(CCP section 377.34). Therefore, the awards of $183,988.00

and $295,645.00 in economic damages to the estates have no

legal or evidentiary foundation. They are excessive and im-

proper.

Therefore, the Court grants Ford Motor Company’s Mo-

tion for a New Trial on the issue of compensatory damages

(economic damages) for the Estates of Ramon Romo and

Salustia Romo subject to the condition that the motion for a

new trial on this issue is denied if plaintiff(s) consent(s) to a

reduction to $5,000.00 as to each of the estates (CCP section

662.5(b)).

IT IS SO ORDERED.

Date:_Sept. 15, 1999 /s/

ROGER M. BEAUCHESNE

Judge of the Superior Court

Stanislaus County

cc: Joseph W. Carcione, Jr., Esq.

Lawrence Drivon, Esq.

Douglas Seitz, Esq.

MINUTE ORDER

47a

APPENDIX C

Court of Appeal, Fifth Appellate District - No. F034241

S$108991

IN THE SUPREME COURT OF CALIFORNIA

En Banc

SUPREME COURT

FILED

OCT 23 2002

Frederick K. Ohlrieh Clerk

Deputy

JUAN RAMON ROMO et al.,

Plaintiffs and Appellants,

¥.

FORD MOTOR COMPANY,

Defendant and Appellant.

Petition for review DENIED.

Kennard, J., Baxter, J., and Brown, J., are of the opinion

the petition should be granted. ~

The requests for an order directing depublication of the

opinion are denied.

48a

/s/

Chief Justice

49a

APPENDIX D

FORD’S PROPOSED JURY INSTRUCTION NO. 75

ELA INS ERUCTION NO. 75

Requested by Plaintiff Requested by Defendant | V

Given as Requested Given as Modified

Given on Court’s Motion

Withdrawn

Refused X Judge

Punitive damages are an extraordinary remedy. They are

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