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
My goodness, to read the coverage in today’s Oregonian, one would think that the towns, cities and universities in the state face near-certain bankruptcy because of yesterday’s Oregon Supreme Court opinion. (See yesterday’s entry for summary and citation on Clarke v. OHSU.)
In today’s Oregonian, Ashbel Green relates that the sky is falling. Here is the link: www.oregonlive.com/news/oregonian/index.ssf?/base/news/1198900517209320.xml&coll=7
The problem with the report is that it misses a key legal concept. The Court ruled that the cap was unconstitutional as applied to Jordaan Clarke’s case. That “as applied” detail is very important. The cap remains the law, except in very rare cases, like Jordaan Clarke’s, when the harms and losses caused by profound injuries dwarf the maximum amount recoverable.
Jordaan Clarke suffered profound brain damage caused by the negligence of OHSU medical providers. The profound injuries confined him to a wheel chair, left him in need of round-the-clock care, and triggered future medical expenses in excess of $11 million. These facts are admitted by everyone.
In the case decided by the Supreme Court, Jordaan Clarke could recover no more than $200,000, even though his harms and losses exceeded $10 million. Jordaan’s case is exceptional by any measure.
The problem with the cap is that it applies one size-fits-all justice to all cases. In the case of Jordaan Clarke, the limits were so severe that they violated the Oregon constitution’s guarantee on the right to a remedy. If the Court had gone the other way, it would have said to OHSU, “Don’t worry; no need to be careful. We won’t hold you for whatever harms and losses you cause to your patients.” Anyone who has ever raised a child knows that this is a horrible message to send. Fortunately, the Oregon Supreme Court got it right.
This isn’t the stuff of falling skies, and the Oregonian is doing a disservice to all by the alarmist report.
David F. Sugerman
In a remarkable decision today, the Oregon Supreme Court concluded that the Oregon Tort Claims Act is unconstitutional, as applied in a case involving profound injury. The case, Clarke v. Oregon Health Sciences Univ., involved a profoundly injured child who suffered brain damage as a result of negligent care at Oregon Health Sciences.
Despite the fact that the baby’s lifetime medical needs would cost over $11 million, the Oregon Tort Claims Act limited the baby’s recovery to $200,000. The Oregon Supreme Court concluded that the limits deprived the child of a remedy guaranteed by the Oregon constitution.
Here is the link to today’s opinion: www.publications.ojd.state.or.us/S053868.htm
It’s an interesting decision. The Oregon Supreme Court strives to decide cases unanimously. And while all of the participating justices agreed to the outcome, two joined in a concurring opinion that carefully suggested how the legislature might consider fixing the constitutional problems.
The case will likely mean different things to different interests. For severely injured consumers, it means that injuries caused by the government are not artificially capped by limits that are low and outdated.
But the opinion also leaves open many questions. For example, all the justices agreed that the $200,000 maximum was constitutionally inadequate in Jordaan Clarke’s case. But what happens when the injuries are profound but don’t total $11 million in economic damages? For the present, it looks like the Court will be addressing that question on a case-by-case basis. I suppose this isn’t the end of the world, as legal systems, lawyers and judges exist specifically to frame and decide these evolving questions.
To be sure, both opinions reveal keen wisdom about the role of the judiciary as a co-equal branch of our system. The court narrowly decided the case and invited the legislature to fix the problem with specific observations that provide legislators with some guidance on how to go forward. I don’t particularly agree with how the court got there or a number of the specifics in both the majority and concurring opinions. Even so, I have to say that the court handled a tough case with grace.
Where we go from here should prove interesting for those of us who represent consumers.
David F. Sugerman