Comments on: Oregon Supreme Court Rules in Williams v. Philip Morris http://www.scotusblog.com/wp/oregon-supreme-court-rules-in-williams-v-philip-morris/ The Supreme Court of the United States blog Thu, 26 Jun 2008 21:56:34 -0700 http://wordpress.org/?v=2.8.5 hourly 1 By: Grey Satterfield http://www.scotusblog.com/wp/oregon-supreme-court-rules-in-williams-v-philip-morris/comment-page-1/#comment-14465 Grey Satterfield Sat, 02 Feb 2008 19:53:14 +0000 http://www.scotusblog.com/wp/uncategorized/oregon-supreme-court-rules-in-williams-v-philip-morris/#comment-14465 The Oregon Supreme Court has stuck its collective thumb in the U.S. Supreme Court’s eye. To have used the argument that the defendant’s requested instruction was flawed as an excuse not to grant a new trial was preposterous, it seems to me. In Philip Morris v. Williams, the court made clear that error inhered in the punitive damages award because the trial court failed to instruct the jury that it could not consider injuries inflicted on strangers by the defendant in determining the amount of punitive damages. It seems to me that the failure to so instruct was fundamental error and that the only appropriate remedy was a new trial – especially as it appears the plaintiff did not object to the requested instruction. The defendant’s requested instruction covered this point, that it may have been erroneous in other ways should not excuse the error. Time will tell, I guess. The Oregon Supreme Court has stuck its collective thumb in the U.S. Supreme Court’s eye. To have used the argument that the defendant’s requested instruction was flawed as an excuse not to grant a new trial was preposterous, it seems to me.

In Philip Morris v. Williams, the court made clear that error inhered in the punitive damages award because the trial court failed to instruct the jury that it could not consider injuries inflicted on strangers by the defendant in determining the amount of punitive damages.

It seems to me that the failure to so instruct was fundamental error and that the only appropriate remedy was a new trial – especially as it appears the plaintiff did not object to the requested instruction. The defendant’s requested instruction covered this point, that it may have been erroneous in other ways should not excuse the error. Time will tell, I guess.

]]> By: Chris Green http://www.scotusblog.com/wp/oregon-supreme-court-rules-in-williams-v-philip-morris/comment-page-1/#comment-14439 Chris Green Fri, 01 Feb 2008 18:37:47 +0000 http://www.scotusblog.com/wp/uncategorized/oregon-supreme-court-rules-in-williams-v-philip-morris/#comment-14439 Doesn't seem right to me. The opinion turns on reading the proposed jury instruction ("Factors that you may find to bear upon the degree of reprehensibility include") to contradict the statute ("Punitive damages, if any, shall be determined and awarded based upon the following criteria," with a different list). But telling a jury that the factors it may consider include a bunch of stuff doesn't suggest that they *can't* consider anything else. What else would "include" mean? I also don't see why the fact that the statute is mandatory, but the jury instruction is permissive, should matter--it was in fact true, after all, that among the factors the jury were permitted to consider were the ones listed in the instruction. Also, this stuff was unobjected-to when the instruction was offered, and if the plaintiff had made these objections at the trial, the defense could have suggested an alternative. Further, why not take the failure to object to the instruction as the plaintiff's concession that she didn't want to rely on the other statutory factors as reasons for more punitive damages? The paragraph at footnote five doesn't cite anything at all. Maybe the <a href="http://www.ca11.uscourts.gov/opinions/ops/200613186.pdf" rel="nofollow">"tipsy coachman" doctrine</a> should apply here, but there seem to be pretty strong anti-sandbagging considerations against it. Doesn’t seem right to me. The opinion turns on reading the proposed jury instruction (”Factors that you may find to bear upon the degree of reprehensibility include”) to contradict the statute (”Punitive damages, if any, shall be determined and awarded based upon the following criteria,” with a different list). But telling a jury that the factors it may consider include a bunch of stuff doesn’t suggest that they *can’t* consider anything else. What else would “include” mean? I also don’t see why the fact that the statute is mandatory, but the jury instruction is permissive, should matter–it was in fact true, after all, that among the factors the jury were permitted to consider were the ones listed in the instruction.

Also, this stuff was unobjected-to when the instruction was offered, and if the plaintiff had made these objections at the trial, the defense could have suggested an alternative. Further, why not take the failure to object to the instruction as the plaintiff’s concession that she didn’t want to rely on the other statutory factors as reasons for more punitive damages? The paragraph at footnote five doesn’t cite anything at all. Maybe the “tipsy coachman” doctrine should apply here, but there seem to be pretty strong anti-sandbagging considerations against it.

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