Thursday, January 31, 2008

Oregon Supreme Court Affirms Verdict Against Philip Morris-Again

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.

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
Paul & Sugerman, PC

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