Juries May Not Base Amount of Punitive Damages On Harm To Non-Parties.

            In Philip Morris USA v. Williams, 2007 DJDAR 2233 (U.S. Feb. 20, 2007)( ), the United States Supreme Court ruled 5-4 that the Due Process Clause forbids jurors from punishing a defendant for injuries suffered by persons who were not parties to the case, because to permit such punishment “would add a nearly standardless dimension to the punitive damages equation.”  The trial court erred in not instructing the jury that it could not base its punitive damages award on non-party victims.  However, the Supreme Court held that the jurors could consider how a defendant’s action harmed other non-parties when deciding the question of the reprehensibility of the defendant’s conduct, which is a key factor in determining the size of an award.  The Court did not address the question of whether the $79.5 million punitive damages award was so excessive that it violated the Constitution. 

            Jessie Williams was a heavy cigarette smoker at the time of his death.  His estate, represented by his widow, filed suit in an Oregon state court against Philip Morris for negligence and deceit, alleging Williams was led to believe Marlboros were safe to smoke.  The trial judge rejected a Philip Morris jury instruction (charge) stating that the jury could not punish the company “for the impact of its alleged misconduct on other persons, who may bring lawsuits of their own in which juries can resolve their claims.”  The jury determined that Williams’ death was caused by smoking, he thought it was safe to do so, and that Philip Morris knowingly and falsely led him to believe that it was safe.  The jury found both Philip Morris and Williams negligent, and that Philip Morris had engaged in deceit, awarding about $821,000 in compensatory damages and $79.5 million in punitive damages.  The trial judge found the punitive award excessive and reduced it to $32 million. 

            Both sides appealed.  The Oregon Court of Appeals reinstated the $79.5 million jury award.  After the Oregon Supreme Court initially denied review, Philip Morris sought review in the U.S. Supreme Court, which remanded the case in light of State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003).  On remand, the Court of Appeals adhered to its original views and again reinstated the $79.5 million verdict.  The Oregon Supreme Court granted review of this ruling, but upheld the appellate court ruling and rejected Philip Morris’ arguments that: (1) the trial court erred in rejecting a punitive damages instruction that the jury could not punish Philip Morris for injury to other persons not before the court, and (2) the 100-to-1 ratio of punitive damages to compensatory damages was excessive.  Philip Morris raised these same arguments to the U.S. Supreme Court.

            The U.S. Supreme Court held that state courts cannot authorize procedures that create an unreasonable and an unnecessary risk that jurors will punish a defendant for harm caused to non-parties.  A defendants threatened with such punishment has no opportunity to defend against those charges, and therefore this is a violation of the Due Process Clause.

            Stated differently, under the Due Process Clause, a state is forbidden to use a punitive damages award to punish a defendant for injury inflicted on strangers to the litigation.  A defendant has no opportunity to defend against the charge, and permitting such punishment adds a standardless dimension to the punitive damages equation and magnifies the fundamental Due Process concerns of arbitrariness, uncertainty and lack of notice.  Nor is there any authority to support using punitive damages to punish a defendant for harming others.  The Court concluded: “The Due Process Clause requires States to provide assurance that juries are not asking the wrong question, i.e., seeking, not simply to determine reprehensibility, but also to punish for harm caused strangers.”  Because the Oregon Supreme Court erred as to the third party harm question, the justices did not address Philip Morris’s argument that the award was excessive.

            Justices Stevens, Thomas and Ginsburg filed dissenting opinions.  Stevens saw no reason why a wrongdoer’s harm as to persons not before the court should not be taken into consideration when assessing appropriate sanctions for reprehensible conduct.  As to the majority’s position of allowing third party harm to be considered to assess reprehensibility, but not for the purpose of determining punishment, Stevens mused, “This nuance eludes me.” 

            Justice Thomas stated his view that the Constitution does not constrain the size of a punitive damages award.  Justice Ginsburg, joined by Scalia and Thomas, stated that punitive damages are to punish for the reprehensibility of a defendant’s conduct.  Where conduct risks harm to many, the reprehensibility is greater than conduct risking harm to only a few, and a jury would be properly focused on that fact.  She believes the jury charge was consistent with that focus.  Also, Philip Morris did not preserve any objection to the instructions given to the jury, to the evidence introduced at trial, or to opposing counsel’s arguments.  The sole objection preserved was as to the court’s refusal to give one requested instruction.  Ginsburg viewed the proposed instruction as internally confusing because it advised the jury that it could consider the extent of harm suffered by others, but then stated that the jury is not to punish the defendant for the impact of misconduct on others.

Temporary Instructor Denied Reinstatement Based On Laches And Failure To Establish Necessary Full-Time Instructor’s Work Hours.
           
            In Womack v. San Francisco Community College District, 2007 DJDAR 2159 (Cal. App. 1st Dist., Div. 2, Feb. 15, 2007)( ), Christopher Womack worked as a temporary instructor for the Community College District teaching English as a Second Language (ESL) from 1987 through 2001.  Starting in 2000, he received several unsatisfactory performance evaluations.  The District gave him notice in March 2001 that he would no longer be employed as of the summer 2001 semester. 

            Womack filed an unsuccessful grievance with the District.  In 2002 he filed a Petition for Writ of Mandate in the superior court under Code of Civil Procedure section 1085.  Womack sought to compel the school to reinstate him as a regular employee in the ESL department.  He argued that he had become a contract employee by 1995 rather than a temporary instructor, pursuant to Education Code section 87482.5, because he had worked more than 60 percent of a full-time work assignment for two consecutive semesters.  He also claimed he was tenured as of 1998.  The trial court found that he failed to establish his claim and denied the petition.

            The Court of Appeal affirmed.  Education Code section 87482.5 defines a temporary, non-contract employee as one who teaches no more than “60 percent of the hours per week considered a full-time assignment for regular employees.”  However, it does not contain a definition of what constitutes a full-time teaching assignment.  The court concluded that what is meant by a “full-time load” is the amount that the District, with substantial discretion, determines is a full-time load.  Here, the District in its discretion specifically defined a full-time load as 18 hours per week of teaching time.  Since Womack’s hours were 10.5, that was only 58.33 percent of a full-time assignment.  For this reason the court concluded Womack was still a temporary employee and that the trial court properly denied his petition. 

            The court also found that laches applied to bar plaintiff’s petition for a writ of mandate.  The court noted that laches requires an unreasonable delay plus either acquiescence in the act about which the plaintiff complains or prejudice to the defendant resulting from the delay.  The period of delay that is considered when analyzing the issue of prejudice includes both the time before and the time after the filing of the petition for administrative mandate.

            In this case the District argued laches included two periods of delay consisting of the initial delay of over one year in filing the 1085 petition in May 2002, and a second delay of three years between the filing of the petition and moving to have the petition heard by the trial court in July 2005.  The court also found it unreasonable for the appellant to wait until 2002 to claim he had exceeded the 60 percent level when he believed he had exceeded it as early as 1993.  The court stated that a public employee seeking review of an adverse personnel decision must do so within a reasonable time following the finalization of the personnel or grievance proceeding.  The trial court also found that the appellant had acquiesced in the employment action which prejudiced the District because it increased exposure to backpay due to a wage differential over a seven year period of alleged misclassification.

            The appellant argued in his defense at trial three reasons to justify his three year delay:
ignorance of the law, lack of assets to prosecute the action, and a change in associates in his attorney’s law firm.  He abandoned the last two reasons and the court rejected the first, finding that he was represented by experienced counsel since May 2002. 

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