# Amicus Curiae Brief — Shell Oil Co. v. Hebble > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2466%3A7 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2010 - **Citation:** 562 U.S. 1124 ## Text AG (9) | Supreme Co.'h. US \ f FILED NOV_1 2 20)0 IN THE | oF rice On PE CLERK | Supreme Court of the Anited States No. 10-349 SHELL OIL COMPANY, and SWEPI LP (As Successor-in-Interest to SHELL WESTERN E & P, INC.), Petitioners, Ve NANCY FULLER HEBBLE, et al., Respondents. On Petition for Writ of Certiorari to the Court of Civil Appeals for the State of Oklahoma BRIEF OF PRODUCT LIABILITY ADVISORY COUNCIL, INC. AS AMICUS CURIAE IN SUPPORT OF PETITIONERS Of Counsel: TERRI S. REISKIN Counsel of Record WALLACE KING DOMIKE & REISKIN, PLLC 2900 K Street, NW Suite 500 Washington, DC 20007 (202) 204-1000 treiskin@wallaceking.com HUGH F. YOUNG, JR. PRODUCT LIABILITY ADVISORY COUNCIL, INC. 1850 Centennial Park Drive Reston, Virginia 20191 (703) 264-5300 Attorneys for Amicus Curiae November 12, 2010 WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D.C. 20002 TABLE OF CONTENTS Page DER aks OF AUT TICE E LEIS oiccescsssccssersrecevesavszesse ii INTEREST OF THE AMICUS CURIAE............ ] SUMMARY OF ARGUMENT ..............0.......000 3 I aires kira hansacivecnckabixaksataesdiecsnsidsansdexess 5 I. IN THE WAKE OF STATE FARM, PUNITIVE DAMAGES AWARDS CON- TINUE TO BE UNPREDICTABLE AND ARBITRARY IN VIOLATION OF DUE PN irc der atncaiearitaparhatiidssadaveababexeweays A. In Small Compensatory Damages Cases, Reprehensibility is Used as the Rationale for Grossly Excessive PSUR CIE ie cecacsctvicasserevsatincaseece 8 B. The Use of Potential Harm in Place of Actual Damages’ Encourages Speculation and Subverts the Role of EO” EEL a et RAR eT ee a 12 C. Courts Improperly Exceed the 1:1 Ratio Even when Compensatory Damages are Substantial.................... 14 | D. Geographic and Jurisdictional Varia- bility in Application of the Ratio Guidepost Adversely Affects the COUREIEY OF PUBCIOS, .......cccccsescrcossccssesecess 16 Il. THE PROBLEM OF UNPREDICTABLE APPLICATION OF THE GUIDEPOSTS IS COMPOUNDED BY INCONSIS- TENT DEFINITIONS OF “COMPEN- SATORY” DAMAGEG...........cccssesssseeseeeesees 19 (i) il TABLE OF CONTENTS—Continued Page Ill. PRODUCT MANUFACTURERS ARE ADVERSELY AFFECTED BY UNPRE- DICTABLE AND ARBITRARY PUNI- TIVE DAMAGES AWARDS ....................- 20 IIIT ip cesiscccnlaccatsscusdisachitelasiwbindcanatesnees 24 APPENDIX A: Corporate Members of the Product Liability Advisory Counci!, Inc. as of IIE << 1.2 ccs saver canes cavacesantsans masexeuvesisenveneie la ill TABLE OF AUTHORITIES CASES Page Austin v. Stokes-Craven Holding Corp., 691 8.E.3d 135 (S.C. 2010) ........cerccecoerseces 10 Bains LLC v. Arco Products Co., 405 F.3d Te Tee Ge, Sains 16 Bennett v. Reynolds, 315 S.W.3d 867 (Tex. SD sn angiskixnniendiceceneniuhd aca aa 12 BMW N. Am., Inc. v. Gore, 517 U.S. 559 GD iessacnsnnsnonvatsinseanarmisscnteacsoraaeee passim Bronakowski v. Lindhurst, _S.W.3d ___, 2009 Ark. App. 513 (2009)............... 6 Campbell v. State Farm Mut. Auto. Ins. Co, 98 P.3d 409 (Utah 2004)..........0..00000... 14 Craig Outdoor Adver., Inc. v. Viacom Outdoor, Inc., 528 F.3d 1001 (8th Cir. FI initinprestiecressssiesncaaccnaeneen ee 14 Exxon Shipping Co. v. Baker, 128 S. Ct. Be SI ciishttsttisarsisninanaiinaeann 5 Flax v. DaimlerChrysler Corp., 272 S.W.3d By CU IED vickscsccncencresentansaceanenal 7,15, 18 Gober v. Ralphs Grocery Co., 137 Cal. App. GA BP CD cntaddcntncdesincnssetecseecsieetaae 15,17 Hangarter v. Provident Life & Accident Ins. Co., 373 F.3d 998 (9th Cir. 2004)...... 7,17 Honda Motor Co. v. Oberg, 512 U.S. 415 CR cventoossenisestacscaniscseciaasaa eee 24 Kemp v. Am. Tel. & Tel. Co., 393 F.3d 1354 (11th Cir. 2004) ...ccccccccccscscesessesceesssseeeeee on 6, 10 Krysa v. Payne, 176 S.W.3d 150 (Mo. App. ee ORT TO ene 88) 6, 10 Mathias v. Accor Economy Lodging, Inc., 347 F.3d 672 (7th Cir. 2003).............:eeee 6, 11 Modern Management Co. v. Wilson, 997 PB SF CAs Dr easiscrsiectittisgssadnecoaan 20 iv TABLE OF AUTHORITIES—Continued Page Pacific Mut. Life Ins. Co. v. Haslip, 499 Nee cre ssckdrasepaseressncgeissnsesensess 15 Roby v. McKesson Corp., 101 Cal. Rptr. 3d eg A TS) |) 20 Selizer v. Morton, 154 P.3d 561 (Mont. ears iastsnccacsnsenesessscessoessesceses 14,17 State Farm Mut. Auto Ins. Co. ov. Campbell, 538 U.S. 408 (2008)................. passim Superior Fed. Bank v. Jones & Mackey Const. Co., LLC, 219 S.W.3d 643 (Ark. IED is ccosscsusssesesccncesscssscsveccssccesees 11 Trinity Evangelical Lutheran Church and School-Freistadt v. Tower Ins. Co., 661 N.W.2d 789 (Wis. 2003) ..................44. 8,9, 11,13 TXO Prod. Corp. v. Alliance Resources Corp., 509 U.S. 443 (1993)................ccceee 12 Vasquez-Lopez v. Beneficial Oregon, Inc., 152 P.3d 940 (Or. Ct. App. 2007) ........... 13 Williams v. Conagra Poultry Co., 378 F.3d EE TEE, UIE) ccccsssecssscsssesveccssecsvcccceees 6 Willow Inn, Inc. v. Public Service Mut. Ins. Co., 399 F.3d 224 (3d Cir. 2005)............... 20 Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020 (9th Cir. 2003)...........cccccccssescccssssceees 15, 17 MISCELLANEOUS Alison F. Del Rossi and W. Kip Viscusi, The Changing Landscape of Blockbuster Punitive Damages Awards, 12 Am. L. & Econ. Rev. 116 (2010) ...............cceeeeeeeeeeees 16, 22 Royal Furgeson, Civil Jury Trials R.J.P.? Can it Actually Happen in America?, 40 St. Mary’s L.J. 795 (2009)............... eee 23 Vv TABLE OF AUTHORITIES.—Continued Marc Galanter, The Hundred-Year Decline of Trials and the Thirty Years War, 57 Stan. L. Rev. 1255 (20085) ................:0sse00 Richard L. Manning, Changing Rules in Tort Law and the Market for Childhood Vaccines, 37 J.L. & Econ, 247 (1994)....... David G. Owen, Problems in Assessing Punitive Damages Against Manufac- turers of Defective Products, 49 U. Chi. Has BGs: Ie CUE ncadschicconanedccascamasenseubaniniacues Hon. Sam Sparks and George Butts, Disappearing Juries and Jury Verdicts, 39 Tex. Tech L. Rev. 289 (2007)............... U.S. GEN. ACCOUNTING OFFICE, GAO/ AIMD-95, MEDICAL LIABILITY: IM- PACT ON HOSPITAL AND PHYSI- CIAN COSTS EXTENDS BEYOND INSURANCE 16 (1995) ......... cc ccceeeeeeeees W. Kip Viscusi, Corporate Risk Analysis: A Reckless Act?, 52 Stan. L. Rev. 547 CRIN coiarscskceetasnoexiatccucdchiseckeiatermaciseatanaaes Page 23 22 21 23 22 21 IN THE Supreme Court of the United States No. 10-349 SHELL OIL COMPANY, and SWEPI LP (As Successor-in-Interest to SHELL WESTERN E & P, INC.), Petitioners. V. NANCY FULLER HEBBLE, et al., > Respondents On Petition for Writ of Certiora2ri to the Court of Civil Appeals for the State of Oklahoma BRIEF OF PRODUCT LIABILITY ADVISORY COUNCIL, INC. AS AMICUS CURIAE IN SUPPORT OF PETITIONERS INTEREST OF AMICUS CURIAE ' The Product Liability Advisory Council, Inc (PLAC) is a non-profit association with 100 corporate members representing a broad cross-section of American and international product manufacturers. ' Pursuant to Rule 37.6, amicus states that no counsel for a party has authored this brief in whole or in part, and no person or entity other than amicus, its members and their counse! has made a monetary contribution to fund the preparation or submission of this brief. Pursuant to Rule 37.2(a), al) parties received timely notice and have consented to the filing of this brief y 2 a These companies seek to contribute to the improve- ment and reform of law in the United States and elsewhere, with emphasis on the law governing the liability of manufacturers of products. PLAC’s perspective is derived from the experiences of a corporate membership that spans a diverse group of industries in various facets of the manufacturing sector. In addition, several hundred of the leading product liability defense attorneys in the country are sustaining (non-voting) members of PLAC. — Since 1983, PLAC has filed over 900 briefs as amicus curiae in both state and federal courts, including this Court, presenting the broad perspective of product manufac- turers seeking fairness and balance in the application and development of the law as it affects product liability. A list of PLAC’s corporate members is attached as Appendix A. PLAC is particularly interested in the issues raised by this case, because product manufacturers are disproportionately affected by punitive damages awards. The due process protections afforded by the United States Constitution are essential to ensure that punitive damages awards are rendered in a manner that is scrupulously fair to the defendant. State and federal courts have interpreted the puni- tive damages guideposts set out by this Court in a wildly inconsistent fashion. Whether this is the result of confusion or a willful attempt to circumvent the Court’s dictates, product manufacturers and others are routinely subject to arbitrary and grossly excessive punitive damages awards. PLAC believes its viewpoint will assist in the Court in achieving a better understanding of the nature of the problem and the reasons why it is critical for the Court to provide additional clarification regarding the rela- tionship among the guideposts and the proper appli- 3 cation of the ratios between compensatory and puni- tive damages. SUMMARY OF ARGUMENT In the more than seven years since this Court decided State Farm Mut. Auto Ins. Co. v. Campbell, 538 U.S. 408 (2003), the punitive damages guideposts and the ratios between compensatory and punitive damages set out by the Court have proven to be of little use in ensuring a system of justice in which defendants can be reasonably apprised of the penal- ties they may face. The relationship among the guideposts is unclear, allowing courts to use the reprehensibility guidepost to trump the others. Courts are also confused about application of the ratios, and have defaulted to the position that a 9:1 or lower ratio will always pass muster, despite this Court’s holding that in cases with substantial compensatory damages, a ratio of 1:1, and in almost all other cases, a ratio of 4:1, approaches the outer limits of due process. Since State Farm, courts have applied ratios from 1:1 to 2172:1, and all levels in between. In some courts, the perceived reprehensibility of the conduct is used to justify extremely high ratios. In others, the “potential harm”—often loosely defined—is substi- tuted for the jury’s actual damages award, so as to transform a very large ratio into a much smaller one. Courts routinely exceed a 1:1 ratio between compen- satory and punitive damages, although the compen- satory award is unquestionably substantial. Even more troubling is the fact that courts in different Circuits have interpreted State Farm in different ways. In short, the outer limits of due process differ greatly depending on the fortuity of where and in what court a case happens to be decided. This is 4 inconsistent with our constitutional guarantees, which should be applied similarly regardless of what court is meting out justice. Even when ratios are applied in a manner gener- ally consistent with State Farm’s ruling, courts have applied different approaches to determining the components of “compensatory” damages. In this case, the court included pre-judgment interest at a punitive rate, while other courts have included various other components, including attorneys’ fees and lost profits. A ratio whose numerator and denominator cannot be readily and consistently determined is of little use to courts attempting to ensure that punitive damage awards comport with due process, or to defendants assessing potential liability should they go to trial. The problem of inconsistent application of the State Farm ratios, while significant in itself, is magnified when the ratio itself is malleable depending on what a court includes as compensatory. These problems are perhaps more keenly felt by product manufacturers than by other litigants, because of the fact that product liability cases more often involve physical injuries or deaths. Aside from the obvious emotional component of these cases, which can result in higher jury verdicts, they often lead to punitive damages awards. The inability of manufacturers and sellers to assess their level of risk results in forced settlements, higher prices, less innovation and a marketplace where some products are simply not economical to design and sell because of the risk of unfettered and unpredictable liability. The Court should grant certiorari in this case to clarify the application of the ratios set forth in State Farm and the relationship among the guideposts, and to make clear that compensatory damages do not 5 include pre-judgment interest and other “add-ons”, so that due process guarantees are applied similarly regardless of the court or jurisdiction in which a defendant may find itself. ARGUMENT Despite this Court’s efforts to lend consistency to the process by which punitive damages are awarded and reviewed, defendants in state and federal courts continue to experience wide variations in how the guideposts and ratios are applied. The “stark unpre- dictability”’ of punitive awards violates due process because defendants are deprived of “fair notice . . . of the severity of the penalty that a State may impose.” BMW N. Am.., Inc. v. Gore, 517 U.S. 559, 574 (1996). The decision of the Oklahoma Court of Civil Appeals is only one of many state and federal cases in which the guideposts have been twisted beyond recognition. Review is necessary in order to clarify the relationship among the guideposts and the proper application of the ratios between compensatory and punitive damages. I. IN THE WAKE OF STATE FARM, PUNI- TIVE DAMAGES AWARDS CONTINUE TO BE UNPREDICTABLE AND ARBITRARY IN VIOLATION OF DUE PROCESS In State Farm, this Court elaborated on the guide- posts set forth in Gore in an effort to prevent arbitrary and constitutionally excessive punitive damages awards. While declining to provide “rigid benchmarks”, 538 U.S. at 425, the Court made clear that all three guideposts should be considered, and gave guidance as to the ratios to be used in evaluat- * Exxon Shipping Co. v. Baker, 128 S. Ct. 2605, 2625 (2008). 6 ing punitive damages awards. Specifically, the Court explained that “few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process” and that “an award of more than four times the amount of compensatory damages might be close to the line of constitutional impropriety.”. Jd. The Court further held that, “When compensatory damages are substantial, then a lesser ratio, perhaps only equal to compensatory damages, can reach the outermost limit of the due process guarantee.” Jd. The $1 million awarded to the plaintiffs in State Farm was recognized to be “substantial”, and, accordingly, the Court held that it “likely would justify a punitive damages award at or near the amount of compensa- tory damages.” Id. at 429. Despite the Gore and State Farm framework, courts continue to reach results that are flatly incon- sistent with it and wildly divergent. Ratios from 1:1 all the way to 2174:1 have been approved as purpor- tedly consistent with due process constraints. See, e.g., Williams v. Conagra Poultry Co., 378 F.3d 790 (8th Cir. 2004) (1:1 ratio applied in Title VII employment discrimination case); Kemp v. Am. Tel. & Tel. Co., 393 F.3d 1354 (11th Cir. 2004) (2174:1 ratio in RICO case involving gambling charges included in long distance bills). Despite State Farm’s direction that “few awards exceeding a single-digit ratio. . . will satisfy due process,” 538 U.S. at 425, numerous courts have found reasons to exceed single digits, often by a large margin. See, e.g., Mathias v. Accor Economy Lodging, Inc., 347 F.3d 672 (7th Cir. 2003) (37:1 ratio in bedbug infestation case); Arysa_ uv. Payne, 176 S.W.3d 150 (Mo. App. 2005) (27:1 ratio in fraud case involving vehicle sale); Bronakowski uv. Lindhurst, _S.W.3d__, 2009 Ark. App. 513 (2009) 7 (42:1 ratio in case involving trees cleared from plain- tiffs’ property without permission resulting in economic harm of $592.85). Courts seem most inclined to permit hugely lopsided ratios when the amount of compensatory ‘ damages is small, using as justification such factors as perceived reprehensibility or potential damages. Indeed, although it is to some extent a subjective indicator, a high degree of reprehensibility is routinely cited in support of grossly excessive puni- tive damages awards. In such cases, the reprehensi- bility guidepost effectively becomes the only guide- post. Other courts have applied ratios exceeding 1:1 even where compensatory damages are unquestiona- bly substantial. See, e.g., Hangarter v. Provident Life & Accident Ins. Co., 373 F.3d 998 (9th Cir. 2004) (in case involving denial of disability benefits where compensatory damages were over $1.9 million, court approved punitive damages of $5 million, a ratio of 2.6:1); Flax v. DaimlerChrysler Corp., 272 S.W.3d 521 (Tenn. 2008) (ratio of 5.35:1 approved in automobile defect case involving death of child where compensa- tory damages were $2.5 million). If this Court had “concerns over the imprecise manner in which punitive damages systems are administered”’ when State Farm was decided in 2003, the way in which its holdings have been applied by lower courts since that time should give rise to nothing short of extreme consternation, if not outright alarm. % State Farm, 538 U.S. at 417. 8 A. In Small Compensatory Damages Cases, Reprehensibility is Used as the Ration- ale for Grossly Excessive Punitive Damages Many of the highest ratios are applied in cases where compensatory damages are small. Courts in this situation seem to struggle with how to justify large punitive damages awards, often citing the reprehensibility of the conduct. This scenario was contemplated in State Farm, 538 U.S. at 425 (“ratios greater than those we have previously upheld may comport with due process where ‘a particularly egre- gious act has resulted in only a small amount of economic damages”) (quoting Gore, 517 U.S. at 582). But permitting unfettered discretion in such circums- tances to use any ratio imaginable belies the notion that there are any “outermost limits” to the due process guarantee. Moreover, permitting the repre- hensibility guidepost to trump the ratio guidepost means that, for many courts, the analysis is over once reprehensibility is determined. In this way, a subjec- tive determination of reprehensibility is used to obli- terate due process guarantees. A case in point is Trinity Evangelical Lutheran Church and School-Freistadt v. Tower Ins. Co., 661 N.W.2d 789 (Wis. 2003). The Trinity case arose out of an insurance policy that erroneously omitted certain coverage due to the agent’s mistake in writing the application. The error was discovered after an accident resulted in litigation against the insured church, but the insurer declined to reform the policy. The trial judge granted summary judgment to the policyholder on the bad faith claim, awarding $17,500 in compensatory damages, and a jury returned a punitive damages award of $3.5 million— 9 a ratio of more than 200:1. Notwithstanding this ratio, the court affirmed the award, citing the insurance company’s reprehensible conduct, inclu- ding its status as a “recidivist” because it was the defendant in a case more than 30 years earlier in which the court held that an insurer has a duty to reform an insurance policy upon discovery of a mutual mistake. Jd. at 801. The court never even mentioned the 200:1 ratio between actual and punitive damages, but, instead, recast the ratio as 7:1 on the basis of plaintiffs evidence that its potential exposure in the underlying litigation was $490,000. Id. at 803° As a dissenting judge noted, the comparison between the facts of Trinity and the State Farm case is striking, yet in State Farm, this Court compared the actual compensatory damages in the bad faith claim (not the potential verdict in the underlying action) with the punitive damages award and found the ratio of 145:1 unconstitutional. Jd. at 811 (Sykes, J., dissent- ing). The judge continued, “The majority’s position [using the $490,000 potential award as the denomi- nator]... amounts to nothing more than a manipula- tion of the ratio for purposes of due process scrutiny.” Id. The dissent also exposed the absurdity of the majority’s reprehensibility analysis, noting that: this was a case that arose from a mistake; it involved economic injury only; Trinity was never at risk in the underlying action; no one’s health or safety was at risk; there was no financial vulnerability; and the 30- * A dissenting judge made clear that Trinity would never have been exposed to liability in the auto accident case, because even if Tower did not provide coverage under its policy, the insurance agent’s errors and omission policy would provide coverage. Id. at 810-11 (Sykes, J., dissenting). 10 year old contract case in no way supported a “recidivist” label. Id. at 810. Similarly, Shell’s conduct in this case resulted in only economic injuries, posed no risk to anyone’s health or safety, did not involve repeated similar instances, and was not directed at a financially vul- nerable plaintiff. Yet the court found Shell’s conduct to be so reprehensible as to support a ratio as high as 87:1, depending on how “compensatory” damages are counted.° Thus, even though the Court has laid out the elements of reprehensibility with relative clarity, the interpretation is subjective and leads to dissimi- lar outcomes for similar conduct. Compare Krysa v. Payne, 176 S.W.3d 150 (Mo. App. 2005) (27:1 ratio in case involving fraud and breach of warranty where vehicle was sold without disclosure that it was actually two damaged vehicles welded together) with Austin v. Stokes-Craven Holding Corp., 691 S.E.2d 135 (S.C. 2010) (8:1 ratio in fraud case involving sale of automobile without disclosure of prior accident). Other courts have allowed perceived reprehensi- bility to run roughshod over the other guideposts. See, e.g., Kemp, 393 F.3d at 1363 (affirming 2174:1 ratio in case where defendant’s inclusion of charges for telephone gambling game in long-distance charges was characterized as “large-scale corporate malfeas- ance”). In cases where there is a confluence of bad conduct, an unsympathetic (or simply large corpo- rate) defendant and an innocent victim, disproportio- nate punitive damages awards are allowed to stand ®* When the same case can be characterized as involving multiple ratios depending on what is counted as “compensatory”, it is apparent that the State Farm ratios are toothless as a means to combat grossly excessive punitive damages awards. ll because “a particularly egregious act has resulted in only a small amount of economic damages.” Gore, 517 U.S. at 582. As one of the dissenters in Trinity observed, “The plaintiff was a church, the defendant was an insurance company, and the judge was mak- ing official pronouncements about the defendant’s bad faith. Is there any wonder that the jury awarded $3,500,000 in punitive damages?” 661 N.W.2d. at 806 (Prosser, J., dissenting). See also Mathias, 347 F.3d at 677 ($5000 compensatory damages and $186,000 in punitive damages, a 37:1 ratio, affirmed in bedbug case where the defendant’s conduct was judged “outrageous”); Superior Fed. Bank v. Jones & Mackey Const. Co., LLC, 219 S.W.3d 643 (Ark. Ct. App. 2005) (17.6 to 1 ratio is not constitutionally excessive or “breathtaking” due to substantial degree of reprehensibility).° As the Texas Supreme Court stated in reversing an award of $1.25 million in punitive damages in a case involving actual damages of $5327.11 as a result of the conversion of 13 head of cattle: If courts fail to diligently police the “particularly egregious” exception, they insulate from due- process review precisely those cases where judi- cial review matters most: those involving unsympathetic defendants where juries are most likely to grant arbitrary and excessive awards. Allowing a freewheeling reprehensibility excep- tion would subvert the constraining power of the ratio guidepost. ® The court stated, “Our research indicates that this factor {the ratio] seems to engender great confusion and controversy in comparison with the other factors. We believe this is due in no small part to the U.S. Supreme Court’s rather conflicting state- ments on the matter.” Superior Fed., 219 S.W.3d at 651. 12 Bennett v. Reynolds, 315 S.W.3d 867, 879 (Tex. 2010) (emphasis added; footnote omitted). Yet this is exactly what is happening in courts across the country. B. The Use of Potential Harm in Place of Actual Damages Encourages Specula- tion and Subverts the Role of the Jury Courts have also permitted ratios greatly in excess of 4:1, or even single digits, in cases where the poten- tial harm, rather than actual harm, is judged to be the appropriate denominator. In TXO Prod. Corp. v. Alliance Resources Corp., 509 U.S. 443 (1993), a plurality of the Court said, “It is appropriate to consider the magnitude of the potential harm that the defendant’s conduct would have caused to its intended victim if the wrongful plan had succeeded, as well as the possible harm to other victims that might have resulted if similar future behavior were not deterred.” Jd. at 460. The plurality affirmed a $10 million punitive damages award with a ratio of 526:1, citing potential harm and reprehensibility of the conduct. Writing separately, Justice O’Connor took issue with the plurality’s approach, stating, “I believe it likely, if not inescapable, that the jury was influenced unduly by TXO’s out-of-state status and its large resources.” Jd. at 495.’ ’ Justice O’Connor was also critical of the state appellate court’s application of “cavalier standards in the course of a cursory examination of the case.” Jd. at 496. The same could be said of the Oklahoma Court of Civil Appeals in this case, whose two-paragraph treatment of the punitive damages award is unquestionably “cursory” and arguably “cavalier”. 13 The outcome in 7'‘XO would seem to be in question in light of the Court’s more recent punitive damages jurisprudence. But the use of often speculative assessments of “potential harm” in order to justify ratios that are in evident conflict with the guideposts continues to be a problem. For example, in Vasquez- Lopez v. Beneficial Oregon, Inc., 152 P.3d 940 (Or. Ct. App. 2007), which involved a predatory lending claim, the appellate court reinstated the jury’s origi- nal $500,000 punitive damages award, recharacte- rizing what had been a 7.5:1 ratio as a 1.53:1 ratio. In lieu of the actual compensatory award of just under $32,000, the appellate court estimated the potential harm of the defendant’s conduct as the interest that would have been paid over the life of the loan, which came to over $326,000. Jd. at 958; see also Trinity, 661 N.W.2d at 803 (200:1 ratio converted to 7:1 by insertion of $490,000 in potential harm in place of actual $17,500 compensatory award). Not only are assessments of potential harm often speculative, but use of potential harm, rather than actual damages, subverts the role of the jury. “The jury system long has been a guarantor of fairness, a bulwark against tyranny, and a source of civic values.” TXO, 509 U.S. at 473 (O’Connor, J.). The willingness of some courts to ignore the compensa tory damages as found by the jury constitutes patent manipulation in order to justify the punitive damages award. See Trinity, 661 N.W.2d at 811 (Sykes, J., dissenting). Ironically, the inviolability of the jury’s determination of the appropriate amount of punitive damages necessary to punish and achieve retribution is cited by the very courts that so eagerly push aside the jury’s compensatory damages decision. While there may be a rare case in which consideration of 14 potential harm is justified, in most cases deference should be given to the jury’s decision on compensa- tory damages.” ‘ *» Courts Improperly Exceed the 1:1 Ratio Even When Compensatory Dam- ages Are Substantial Many state and federal courts nave departed considerably from a 1:1 ratio even in cases where compensatory damages are substantial. Perhaps the most egregious example is the decision of the Utah Supreme Court on remand in Campbell v. State Farm Mut. Auto. Ins. Co., 98 P.3d 409 (Utah 2004), where the court reduced the punitive damages award to a ratio of 9:1, despite the fact that the compensatory award of over $1 million was unquestionably sub- stantial.’ Notwithstanding this Court’s instruction that, in such cases, “a lesser ratio, perhaps only equal to compensatory damages, can reach the outermost limit of the due process guarantee,” State Farm, 538 U.S. at 425, the Utah court considered the 9:1 ratio justified in light of State Farm’s highly reprehensible conduct. Similar results have obtained in other cases. See, e.g., Seltzer v. Morton, 154 P.3d 561 (Mont. 2007) (9:1 ratio affirmed in case involving $1.4 million in compensatory damages for malicious prosecution and abuse of process arising out of art authenticator’s opinion); Craig Outdoor Adver., Inc. v. Viacom Outdoor, Inc., 528 F.3d 1001 (8th Cir. 2008) (8.36:1 * The exception would be a case such as this one where the jury was directed to include pre-judgment interest in its “compensatory” award. * The definition of “substantial” is, of course, subject to inter pretation, lending additional uncertainty to the proper appli cation of the ratio 15 ratio in commercial fraud case with $125,000 in compensatory damages); Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020 (9th Cir. 2003) (7.2:1 ratio applied in employment discrimination and retaliatory dis- charge case in which $360,000 in compensatory damages were awarded); Flax, 272 S.W.3d 521 (5.35:1 ratio in automobile products liability case where jury awarded $2.5 million for death of child). What these courts have in common is a willingness to read State Farm to permit a high single-digit ratio, regardless of whether the compensatory damages are “substantial” or even whether the conduct at issue is objectively reprehensible. See, e.g., Gober v. Ralphs Grocery Co., 137 Cal.App.4th 204, 222-23 (2006) (6:1 ratio approved despite “modest degree of reprehensi- bility” and substantial compensatory damages). In the process, courts disregard completely this Court’s ruling in Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 23- 24 (1991), that a four-to-one ratio “may be close to the line” of constitutional impropriety. See also Gore, 517 U.S. at 581; State Farm, 538 US. at 425. While the Court in State Farm evidently wanted to leave room for a very small number of cases in which individual factors might make a larger ratio permissible, appellate courts around the country have driven a proverbial truck through this opening, If the Constitution requires a 1:1 ratio in almost all cases with substantial compensatory damage awards, it is apparent that courts across the country either do not understand this or are acting in disregard of constitutional requirements. In either event, it is apparent that this Court needs to clarify the relation- ship among the three Gore guideposts, so that subjec- tive assessments of reprehensibility are not permit- ted to trump the ratio guidepost entirely, and to 16 elucidate the proper application of the ratios set out in State Farm.'° D. Geographic and Jurisdictional Varia- bility in Application of the Ratio Guidepost Adversely Affects the Qual- ity of Justice The problem of inconsistency in use of the ratio guidepost is worse in some courts and jurisdictions than others. A similar case involving similar parties in two different parts of the country can result in starkly different punitive damages awards depending on the approach of the reviewing courts. While some appellate courts have taken to heart the State Farm ratio of 1:1 in cases involving substantial compensa- tory damages, others view 4:1 as a starting point, and some courts take the /aissez-faire view that as long as the ratio is in single digits, due process is assured. For example, in Bains LLC v. Arco Products Co., 405 F.3d 764 (9th Cir. 2005), the Ninth Circuit mentioned the putative 1:1 ratio established by State Farm only in passing, despite finding that the compensatory damages of $50,000 were substantial. Bains involved claims for breach of contract and violation of § 1981 brought by a trucking company that alleged it suffered economic damages as a result of discrimination. Explaining that this was not the " In a recent study of punitive damayes awards exceeding $100 million, the authors concluded that, “If strictly applied, limiting the ratio of punitive damayes to compensatory damages to 1:1 would eliminate about two-thirds of the cases from the $100 million blockbuster category.” Alison F. Del Rossi and W. Kip Viscusi, The Changing Landscape of Blockbuster Punitive Damages Awards, 12 Am. L. & Econ. Rev. 116, 155 (2010). 17 rare case that would justify punitive damages in excess of a single-digit ratio, the court ruled that the “controlling Supreme court authority . . . implies a punitive damages ceiling in this case of, at most, $450,000 (nine times the compensatory damages).” Id. at 776. Other Ninth Circuit cases similarly take 4:1 or higher as the appropriate starting point in the analy- sis. In Zhang, another § 1981 race discrimination case, the court affirmed a 7:1 ratio, saying, “We are aware of no Supreme Court or Ninth Circuit case disapproving of a single-digit ratio between punitive and compensatory damages, and we decline to extend the law in this case.” 339 F.3d at 1044. See also Hangarter, 373 F.3d at 1014 (rejecting defendant’s argument that punitive damages should not exceed a 1:1 ratio because State Farm’s ruling is “not binding, no matter how factually similar the cases may be”). Some state appellate courts have _ similarly explored only the upper boundaries of the State Farm ratios while ignoring the lower ones. In Seltzer, the Montana Supreme Court rejected the notion that “a 9:1 ratio is in almost all cases the constitutional limit.” 154 P.3d at 611. Citing Hangarter, the court said, “[T]he Ninth Circuit Court of Appeals has recog- nized that Campbell’s reference to a 1:1 ratio does not establish a categorical rule in favor of a 1:1 ratio where compensatory damages are substantial.” Jd. at 612. The Montana court held that a ratio of 18:1 complies with State Farm’s ruling because it does not exceed single digits “to a significant degree.” Id.; see also Gober, 137 Cal.App.4th at 222 (affirming 6:1 ratio in case involving substantial compensatory damages and “a modest degree of reprehensibility”). 18 In Flax, the Supreme Court of Tennessee, in a case involving an alleged design defect in a seat back, found that an award of $2.5 million is not “so large as to require a ratio of 1:1.” 272 S.W.3d at 539. Nor did the Flax court think that it needed to adhere to a ratio of 4:1. Id. at 540. Flax is also notable because the court expressed confusion about the relationship among the three guideposts. Noting that the third guidepost “seems to compel a dramatically different conclusion” than the other two—i.e., a much lower punitive damages award—the court confessed it was “unfortunately left with little guidance as to how to resolve this discrepancy because both Gore and Campbell are cases in which all of the guideposts suggest the same result.” Jd. Accordingly, it simply ignored the discrepant third guidepost and approved a 5:35.1 ratio. The picture that emerges is one of confusion, both for the courts who have to apply the guideposts and for litigants who need to understand their potential liability if punitive damages are imposed. Faced with uncertainty, it appears many courts have concluded that the constitutionally “safe” course is to approve punitive damages awards with a 9:1 or lower ratio, regardless of the degree of reprehensibility or whether the compensatory damages are substantial. If this Court takes only the most outrageous or shocking cases, it leaves the lower courts free to run roughshod over the Court’s dictates that 1:1, or at most 4:1, is at the outer limits of due process requirements. The Court should grant review in order to put teeth into the ruling that a 1:1 ratio is the outer limit of due process in a case with substan- tial compensatory damages, that all the guideposts must align for a punitive damages award in excess of 19 1:1, and that it is the exceedingly rare case that would justify a ratio in excess of 4:1. Il. THE PROBLEM OF UNPREDICTABLE APPLICATION OF THE GUIDEPOSTS IS COMPOUNDED BY = INCONSISTENT DEFINITIONS OF “COMPENSATORY” DAMAGES Due process limitations are required to lend predictability to the amount of punitive damages that may be awarded in a given case. Facing litigation, a defendant can arguably apply the reprehensibility factors to its own conduct to assess the likelihood that reprehensibility will be found and to what extent. Similarly, potential compensatory damages can be estimated. If a consistent, or, at least, predictable, ratio were applied between punitive and actual damages, the defendant would have a reason- ably good sense of the outer limits of its exposure in any given case. However, there is no consistency or predictability to the ratios, which is problem enough. When combined with fluid concepts of what can be included in the definition of “compensatory” damages, the problem is magnified to the point of unconstitu- tionality. A ratio is only useful if the defendant can predict the likely numerator and denominator. Not only is such predictability sorely lacking at the beginning of a case, but the fact that, after the jury’s verdict, the same set of facts can be manipulated to support a variety of different ratios reveals that the guidelines are, indeed, illusory and insubstantial. Here, the inclusion of pre-judgment interest as part of the compensatory award inflated the actual damages of $750,000 to a whopping $13.2 million after applica- tion of the 12% interest rate evidently intended by 20 the legislature as penal. This resulted in what would have been a ratio of 86:1 being reduced to only 4:1, a result the Oklahoma court found in its cursory fashion to pass constitutional muster. In doing so, the court did not even give lip service to any reason for its departure from the 1:1 State Farm ratio for cases involving substantial compensatory damages. The inclusion of pre-judgment interest is only one example of the types of “add-ons” used by some courts to deflate the ratio from one that seems excessive to one that is at least facially constitutional. These range from attorneys’ fees to statutory penalties to cases in which emotional distress is a component of the compensatory award. See, e.g., Willow Inn, Inc. v. Public Service Mut. Ins. Co., 399 F.3d 224 (3d Cir. 2005) (attorneys’ fees); Modern Management Co. v. Wilson, 997 A.2d 37 (D.C. 2010) (statutory treble damages); Roby v. McKesson Corp., 101 Cal. Rptr. 3d 773 (Cal. Ct. App. 2010) (emotional distress partially punitive). As in this case, other courts have included as “compensatory” elements of damages that far exceed the actual harm caused to the plaintiff, resulting in unconstitutional punitive damages awards. This Court should grant certiorari to rectify the injustice done to Petitioners and to provide clear guidance to other courts regarding the proper compo- nents of “compensatory” damages for purposes of the due process ratios. Ill, PRODUCT MANUFACTURERS ARE ADVERSELY AFFECTED BY UNPRE- DICTABLE AND ARBITRARY PUNITIVE DAMAGES AWARDS Product manufacturers are among the defendants who are often adversely affected by unpredictable and grossly excessive punitive damages awards. It is 21 not difficult to see why, as the elements of reprehen- sibility—”the most important indicium of the reason- ableness of a punitive damages award”''!—are present in many product liability cases. These cases often involve physical, as opposed to economic harm. Design defect cases always involve intentional decisions regarding costs and benefits of the product’s design, and manufacturers are thus more likely to be considered to be in reckless disregard of health or safety. See, e.g., David G. Owen, Problems in Assess- ing Punitive Damages Against Manufacturers of Defective Products, 49 U. Chi. L. Rev. 1, 24-26 (1982) (“[A] manufacturer’s choices involving necessary safety trade-offs and statistically inevitable risks always can be viewed in a sense as intentional wrongs to consumers hurt by such products. . . .”). The defendant is often a large corporation (likely from another state) while the plaintiff is an injured individual (sometimes a child or elderly person), who is by definition more vulnerable, both financially and otherwise. The design decisions at issue affect millions of identical products, so juries are often aware of other similar incidents and injuries, making the conduct seem even more reprehensible. Jd. at 28- 30. And juries are subject to hindsight bias, which comes into play in cases involving cost-benefit analy- sis with disturbing frequency. See, e.g., W. Kip Viscusi, Corporate Risk Analysis: A Reckless Act?, 52 Stan. L. Rev. 547, 563 (2000) (“Instead of comparing expected benefits and costs, jurors may compare the enormous cost to the victim with the relatively negligible cost of the safety improvement.”) '! Gore, 517 U.S. at 575. 22 Since, in practice, the reprehensibility guidepost trumps the ratio guidepost, product manufacturers are likely to be inordinately affected by grossly exces- sive punitive damages awards. In a recent study of so-called “blockbuster” punitive damages awards (those of $100 million or more) issued since 1985, the authors concluded that a disproportionate number of such awards involved the automobile, cigarette, pharmaceuticalV/health care and _ energy/chemical industries. Alison F. Del Rossi and W. Kip Viscusi, The Changing Landscape of Blockbuster Punitive Damages Awards, 12 Am. L. & Econ. Rev. 116, 126 & Table 2 (2010). The mean ratio of punitive to compensatory damages ranged from 19:1 for the automobile industry to 11,125:1 for the cigarette industry. Id.” The effect of such disproportionality directed at product manufacturers strikes at the heart of our economy. The threat of unlimited liability results in higher prices for consumer goods, less innovation and self-imposed restrictions on the products. that are developed and brought to market. See, e.g., U.S. GEN. ACCOUNTING OFFICE, GAO/AIMD-95, MEDICAL LIABILITY: IMPACT ON HOSPITAL AND PHYSICIAN COSTS EXTENDS BEYOND INSURANCE 16 (1995) (“Manufac- turers pass on their liability costs to hospitals and physicians in their products’ prices.”); Richard L. Manning, Changing Rules in Tort Law and the Market for Childhood Vaccines, 37 J.L. & Econ. 247, 273 (1994) (“liability costs have caused dramatic increases in vaccine prices”). ’* The latter ratio is even more alarming than it appears, because a Florida jury’s $145 billion punitive damages award in a tobacco class action was excluded. /d. 23 In addition, the inability to predict and manage liability risks has a tendency to force settlements because proceeding to trial is simply too dangerous. Much has been written about the decline of the jury trial, particularly in federal courts. See, e.g., Marc Galanter, The Hundred-Year Decline of Trials and the Thirty Years War, 57 Stan. L. Rev. 1255 (2005); Hon. Sam Sparks and George Butts, Disappearing Juries and Jury Verdicts, 39 Tex. Tech L. Rev. 289 (2007). Certainly, one factor that has influenced this trend is the threat of large punitive damages awards. See, e.g., Royal Furgeson, Civil Jury Trials R.I.P.? Can it Actually Happen in America?, 40 St. Mary’s L.J. 795, at 861 (2009) (“One of the major criticisms of juries is the unpredictability of their decisions on punitive damages.”) If defendants are unwilling to try cases because of the risk of runaway punitive damages awards, jury trials will continue to die a slow death, and our system of justice will be further eroded. 24 CONCLUSION As in Gore, “a review of this case would help to illuminate ‘the character of the standard that will identify unconstitutionally excessive awards’ of puni- tive damages.” 517 U.S. at 568 (quoting Honda Motor Co. v. Oberg, 512 U.S. 415, 420 (1994)). The Court should grant the petition for a writ of certiorari in order to clarify the limits on punitive damages awards imposed by due process, to establish the proper relationship among the Gore guideposts, and to end continuing uncertainty about the proper components of “compensatory” damages. Respectfully submitted, Of Counsel: TERRI S. REISKIN HUGH F. YOUNG, JR. Counsel of Record PRODUCT LIABILITY WALLACE KING DOMIKE ADVISORY COUNCIL, INC. & REISKIN, PLLC 1850 Centennial Park Drive 2900 K Street, NW Reston, Virginia 20191 Suite 500 (703) 264-5300 Washington, DC 20007 (202) 204-1000 treiskin@wallaceking.com Attorneys for Amicus Curiae November 12, 2010 APPENDIX la APPENDIX A Corporate Members of the Product Liability Advisory Council, Inc as of 11/9/2010 Total: 100 3M Brown-Forman Corporation Altec Industries Caterpillar Inc. Altria Client Services Inc. Chrysler Group LLC Anheuser-Busch Continental Tire the Companies Americas LLC Arai Helmet, Ltd. Cooper Tire and Rubber Company Astec Industries Crown Equipment Corporation Bayer Corporation Daimler Trucks North America LLC Beretta U.S.A Corp. The Dow Chemical Company BIC Corporation E.I. duPont de Nemours and Company Biro Manufacturing Eli Lilly and Company Company, Inc. BMW of North America, Emerson Electric Co. LLC Boeing Company Engineered Controls International, Inc. Bombardier Recreational Environmental Solutions Products Group BP America Inc. Estee Lauder Companies Bridgestone Americas Exxon Mobil Corporation Holding, Inc. as Ford Motor Company General Electric Company General Motors Corporation GlaxoSmithKline The Goodyear Tire & Rubber Company Great Dane Limited Partnership Harley-Davidson Motor Company Hawker Beechcraft Corporation Honda North America, Inc. Hyundai Motor America Illinois Tool Works, Inc. International Truck and Engine Corporation Isuzu Motors America, Inc. Jaguar Land Rover North America, LLC Jarden Corporation Johnson & Johnson Johnson Controls, Inc. a Joy Global Inc., Joy Mining Machinery Kawasaki Motors Corp., U.S.A. Kia Motors America, Inc. Kolcraft Enterprises, Inc. Kraft Foods North America, Inc. Leviton Manufacturing Co., Ine Lincoln Electric Company Magna International Inc. Marucci Sports, L.L.C. Mazak Corporation Mazda (North America), Inc. Medtronic, Inc. Merck & Co., Inc. Michelin North America, Inc. Microsoft Corporation Mitsubishi Motors North America, Inc. Mueller Water Product Niro Inc Nissan North America, Inc. Novartis Pharmaceuticals Corporation PACCAR Ine. Panasonic Pella Corporation Pfizer Inc. Porsche Cars North America, Inc. Purdue Pharma L.P. Remington Arms Company, Inc. RJ Reynolds Tobacco ‘ Company Schindler Elevator Corporation SCM Group USA Inc. Segway Inc. Shell Oil Company The Sherwin-Williams Company Smith & Nephew, Inc. St. Jude Medical, Inc. 3a Stanley Black & Decker, Inc. Subaru of America, Inc. Synthes (U.S.A.) Techtronic Industries North America, Inc Terex Corporation TK Holdings Inc. The Toro Company Toshiba America Incorporated Toyota Motor Sales, USA, Inc. Vermeer Manufacturing Company The Viking Corporation Volkswagen of America, Inc. Volvo Cars of North America, Inc. Vulcan Materials Company Whirlpool Corporation Yamaha Motor Corporation, U.S.A. Yokohama Tire Corporation Zimmer, Inc. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2466%3A7. Public record. Not legal advice.