Updated: The end came today years after Jesse Williams died. It was a decade after a large verdict and years after many appeals and many briefs.  Today, the U.S. Supreme Court ended the Oregon smoker case, Williams v. Philip Morris, by refusing further review.

The end was somewhat anticlimactic, as the Court simply dismissed as improvidently granted its prior decision to review the case again. That means that the Oregon Supreme Court opinion stands, and Philip Morris must pay the judgment to the family.

While it was a small part of the overall effort, I take pride in my pro bono amicus work on this case. Last brief filed on behalf of retired Oregon Supreme Court justices can be found here. That’s also, I suppose, part of the whole full disclosure thing, as I can hardly claim objectivity when it comes to Philip Morris.

It’s a great day for the Williams family and their legal team. They deserve this win, even if it took years to make the point.

David Sugerman

In a 5-4 opinion today, the U.S. Supreme Court ruled that the Federal Cigarette Labeling and Advertising Act did not preempt state law fraud claims.  By finding no preemption, the Supreme Court agreed that state law fraud requirements apply to Philip Morris and other cigarette manufacturers. Thus, when Philip Morris sells Marlboro Lights with this legend, “Lowered Tar and Nicotine” it may be required to answer to a jury if its statement is fraudulent.

Good outcome for consumers.

David Sugerman

Here is a preplexing piece from the L.A. Times editorial page on the recent U.S. Supreme Court argument in Philip Morris v. Williams.  The Times editorial writers refer to the Oregon Supreme Court’s decision resting on “spurious state-law grounds.” Full disclosure: I represent amici in the case, so I am not impartial.

While they link to and quote from the transcript of hearing, the Times writers quote selectively from it. For example, they omit Justice Breyer’s description of 28 published appellate court opinions in which Oregon courts have cited the operative state-law rule. (Tr. 14-unofficial transcript). They ignored Philip Morris’ concession at oral argument that Philip Morris does not question the good faith of the Oregon Supreme Court, or Justice Stevens’ observation that it the Oregon Supreme Court was acting in good faith. (Tr. 20).  So how, exactly, did the L.A. Times editorial board determine that the state law grounds were “spurious?”

It’s easy to turn a phrase. Tempting, too. But by its words, the Times has done a grave disservice to the Oregon Supreme Court and the rule of law.

One other thing: The editorial suggests that the Court should place limits on punitive damages through this case. What the Times and all advocates of absolute limits cannot explain is why it would be wise to tell miscreants exactly how much they will pay for their misconduct.

Here is what I mean.  The single best illustration comes from the Ford exploding  Pinto gas tank case many years ago. There, Ford employees figured out that they could make a lot of money by not spending a very small amount on safety measures that would prevent gas tank fires. They did a cost-benefit analysis, and a California jury properly punished them many times over their profit for their outrageous misconduct.

If the Court puts an absolute limit on punitive damage amounts, it will allow every bean counter with a calculator to precisely calculate how much profit it will make by engaging in misconduct. It simply eliminates the deterrent effect of punitive damages.  That’s a bad outcome for this case, and bad policy for the cases that come after.

David Sugerman

Here’s the transcript of oral arugment in the U.S. Supreme Court yesterday. As I represent former members of the Oregon Supreme Court as amici (”friends of the court”), I’ll be interested in seeing the opinion.

David Sugerman

With the help of my good friends Scott Shorr and Bob Udziela, I recently co-authored this amicus brief in the U.S. Supreme Court case of Philip Morris v. Williams.  We provided the brief on behalf of Retired Oregon Supreme Court Justices Leeson, Linde, Roberts and Unis.

The brief focuses on whether the Oregon Supreme Court correctly applied Oregon law in affirming a large punitive damage award against Philip Morris. It was a thrill working with Scott and Bob. More so because of the distinguished group of judges that we represented.

We did the brief pro bono, which means for “the good.” That’s to say, it’s a unpaid volunteer effort to help the Court understand some of the fine details of Oregon law. Snarky admission: I am way short on love for the tobacco industry.

While I’ll never see a dime for my work assisting to hold them accountable for their outrageous misconduct, I take pride in having been in the fight.

David Sugerman

The U.S. Supreme Court granted cert in Williams v. Philip Morris again, but it’s a little quick for Philip Morris to start celebrating, as it’s a long way to a reversal.

Here’s the kind of analysis, from Portland’s Ater Wynne, that drives me to drink: “The U.S. Supreme Court today agreed to review only whether the state court was prohibited from, in effect, ignoring its directive to apply the federal constitutional standard.”

But this is the exact question, from Philip Morris’ petition, which the U.S. Supreme Court agreed to review:

“1. Whether, after this Court has adjudicated the
merits of a party’s federal claim and remanded the
case to state court with instructions to “apply” the
correct constitutional standard, the state court may
interpose~for the first time in the litigation–a
state-law procedural bar that is neither firmly established
nor regularly followed”

And the problem, of course, is that any Oregon trial lawyer will confirm that the rule requiring a party to submit accurate jury instructions is both “firmly established” and “regularly followed.” If the U.S. Supreme Court decides the question on the merits with reference to Oregon law, the outcome will be straightforward. Of course, there is no guarantee that this Court will decide the case on the rule of law. See generally, Bush v. Gore.

David Sugerman

Word today is that the U.S. Supreme Court has agreed to hear for the third time the appeal of Philip Morris in Williams v. Philip Morris. By way of full disclosure, I have represented on a pro bono basis (lawyer talk meaning, without pay; for the good of the public)  various public interest groups who have urged the Court to affirm to the $79 million judgment against Philip Morris.  Interestingly, this result pales against the recent Adidas verdict, that included a punitive damage award of $137 million, without a single consumer death.  Oh, but I’m digressing.

They can’t seem to let this one go. Is it because an Oregon jury concluded that Philip Morris should answer for its misconduct? Or is that the Oregon Supreme Court, which finds in favor of Philip Morris sometimes and against sometimes, failed to reach the U.S. Supreme Court’s desired result?

My thoughts are with the Williams family and my brave friends who have carried the burden of representing them. They’ve been through a long fight for justice.  I suppose they’re wise and philosophical, knowing that they will see this through to the end.

David Sugerman

So the mainstream press picked up on the fact that the Oregon Supreme Court has decided a major case against Philip Morris and one in its favor.  But the story that is republished on MSNBC includes a law professor’s odd view of irony.

Here’s the excerpt:

“Ben Zipursky, a Fordham University School of Law professor who specializes in product liability, said it was ironic the ruling [in favor of Philip Morris on the Lowe medical monitoring case] came from the same court that recently affirmed a nearly $80 million punitive damages award against tobacco giant Philip Morris after it was struck down by the U.S. Supreme Court.

“‘This is the very court that has most aggressively ruled against Philip Morris,’ Zipursky said.”

So what’s ironic?

I mean, as one of the trial lawyers on the losing side of Lowe v. Philip Morris, I can say that I disagree with the Court’s ruling. But irony? Nah, prof., you got the wrong. Taken together, the two cases demonstrate that Philip Morris–and everyone else–gets a fair shake in front of the Oregon Supreme Court.

When I’m In trial and my opponent objects to evidence, I thank the trial judge whether the judge rules in favor of me or my opponent.  I do the same thing when the trial judge rules on my objections.  An opponent once accused me of thanking the court when I lost so that I would confuse the jury about whether I was winning or losing. I was amused that anyone thought I was that clever. But the reality is that through the response, “Thank you, Your Honor,” we acknowledge–win or lose–that judges maintain authority.  In that spirit, I would say that the Court in Lowe ruled in favor of Philip Morris and the rest of the industry. Regardless of what any law professor thinks, there wasn’t a shred of irony involved.

David Sugerman

Today, the Oregon Supreme Court affirmed for a second time the verdict rendered by a Portland jury in 1999 in favor of the family of Jesse Williams. Full disclosure: the author of this blog represented on a pro bono basis the Oregon Trial Lawyers Association, one of the amicus curiae in the case and has handled consumer cases against Philip Morris and other tobacco companies.

Here is a link to the opinion: http://www.publications.ojd.state.or.us/S051805.htm

Nine years after a jury found that Philip Morris had acted with wanton disregard for Jesse Williams, the Oregon Supreme Court had to re-visit the case a second time because the U.S. Supreme Court remanded the case.

In the nuts and bolts department, the case came down to a simple rule in Oregon. A party’s request for a jury instruction must accurately summarize the law in all respects or it should not be given.

At trial, Philip Morris requested a jury instruction on punitive damages that was not given. It was not given because it misstated the law. Every Oregon lawyer knows that’s the end of the game. Yet Philip Morris still insisted that it was entitled to some sort of special treatment.

The bigger news is that this was a large punitive damage verdict. Juries assess punitive damages only when a defendant has engaged in outrageous misconduct. There was plenty of that in this case–destroyed documents, falsified and hidden research, junk science used to create a controversy about whether smoking was harmful. All of it undertaken by Philip Morris. So it should come as no surprise that the jury did the right thing.

The story that rarely gets told is that 60 percent of punitive damages assessed in Oregon cases go a crime victims’ assistance fund. Punitive damages are assessed based upon the misconduct at issue. They also have to be significant enough to teach the bad actor a lesson. It’s a little bit like parenting. A little child gets told no when she misbehaves. The teenager that takes the car on an alcohol-fueled joy ride needs to suffer far greater consequences. That’s because a wayward toddler needs gentle correction, and a wayward teen needs a big stick.

In much the same way, Philip Morris only pays heed if the assessed amount crosses into the tens or hundreds of millions. Everything else is just noise.

In a perfect world, Philip Morris would pay the judgment and get on with its legal business in a way that is acceptable to society. I don’t think anyone expects Philip Morris to do anything other than to try once again to get its friends on the Supreme Court to bail it out. Let’s hope that the Supreme Court stays with the rule of law instead of applying the perverse version of the golden rule. Say it with me now: The guy with the gold makes the rule. If the U.S. Supreme Court reads the Oregon court’s opinion and follows the existing rules, the Williams family will see justice.

David F. Sugerman