The East Coast saw quite a bit of snow in February, but that is not the only kind of blizzard we have experienced this month. In fairly rapid succession, juries in three states imposed four multi-million dollar punitive damages awards.
On February 10, a Pennsylvania state-court jury imposed $10 million in punitive damages—after awarding $3.5 million in compensatory damages—against Johnson & Johnson and its subsidiary Ethicon in a case alleging that the defendants’ pelvic mesh implants are dangerously defective.
On February 11, a federal jury in Pennsylvania ordered U.S. Steel to pay $550,000 in compensatory damages and $5 million in punitive damages to a former employee who alleged that he was terminated because of his disability (an arthritic knee).
On February 18, a federal jury in Georgia imposed $4 million in punitive damages—ten times the compensatory damages—against Mentor Worldwide LLC in another pelvic mesh case.
And on February 22, a St. Louis, Missouri jury imposed a breathtaking $62 million dollars in punitive damages—on top of a compensatory award of $10 million—against Johnson & Johnson in a case alleging that the defendant’s talcum powder caused the plaintiffs’ decedent to contract ovarian cancer.
The three product-liability cases should each raise important issues regarding the appropriate absolute amount of punitive damages and ratio of punitive to compensatory damages when there are multiple other lawsuits each seeking large compensatory and punitive awards for the same conduct. We have discussed this issue in a series of posts about verdicts against Wright Medical Technology, Ethicon, Boston Scientific, and Takeda.
A related issue that may arise in the talc case is how to account for prior exonerations. When, as appears to be the situation here, a defendant has been exonerated in prior cases raising the same allegations, an eight-figure punitive award threatens to trump the decisions of prior courts and juries and deprive the defendant of the benefit of its prior—and any subsequent—exonerations. We first made this point over twenty years ago in our opening brief in BMW v. Gore (at pages 49-50) and developed it further in our opening brief in Philip Morris v. Williams (at 12-13). Although the Supreme Court has not expressly invoked the exoneration concern, its holding in Williams that punitive damages may not be used to punish for harms to non-parties was likely informed, at least in part, by that concern.
The employment case against U.S. Steel raises its own set of interesting issues. First and foremost is whether the award should be reduced to the $300,000 cap that applies to ADA claims. The plaintiff argues that his claim arose under both state and federal law and therefore is not subject to the cap. If the court agrees with the plaintiff, U.S. Steel will likely have a powerful argument that the punitive damages are unconstitutionally excessive—assuming that it does not persuade the court that it is entitled to judgment on either the underlying claims or, at least, punitive damages.
This is not a case of highly repugnant conduct—like pervasive racial or sexual harassment. And from what I can tell from media accounts, the plaintiff does not appear to have suffered severe emotional distress. Moreover, there is no indication in the media accounts that the termination was anything other than an isolated incident. For all of these reasons, a ratio of over 9:1 strikes me as unsustainably high. In fact, even a 1:1 ratio may be excessive under State Farm.
We will report on developments in these four cases as they arise. In the mean time, here’s hoping that March brings an end to the blizzard.
