Cal Court of Appeal to US Supremes: Here’s a Thumb In Your Eye

    Today we discuss punitive damages.  But this post is not about your routine, garden variety, might I say even conservative $1 million or $5 million punitive damages award.  Rather, this is about mega-punitive damages, as in Buell-Wilson v. Ford Motor Company (March 10, 2008) ___ Cal.App.4th___ (Fourth App. Dist. D045154, D045579) (Buell-Wilson II).   Specifically, the question is, what does the Court of Appeal do when the US Supremes tells it to re-analyze a $55 million punitive damages award, already reduced twice, in light of Philip-Morris USA v. Williams (2006) 549 US ___?   The short answer:  spend some forty pages re-analyzing it and reach exactly the same result it did before.  And, more importantly, build a legal wall designed to keep the Supremes from touching the decision.

More after the jump.

The earlier iteration of this case appears at Buell-Wilson v. Ford Motor Company (2006) 141 Cal.App.4th 525 (Buell-Wilson I).  The short history is this:  Ms. Wilson, a married, 46-year-old mother of two was driving a Ford Explorer when it rolled and had its roof crushed through no fault of hers.  She was rendered a paraplegic.  There was evidence that Ford had known for years that its Explorers and Bronco II’s were unstable and that the roofs were uncrashworthy, that its engineers had repeatedly raised alarms over these issues, but that in order to avoid expenses and to meet production deadlines, it monkeyed with data rather than fixing the problems.

The case went to trial in San Diego Superior Court, where a jury found for the Wilsons, awarding Ms. Wilson $109,606,004 in compensatory damages, Mr. Wilson $13 million for loss of consortium, and $246 million in punitive damages.  The trial court reduced the compensatory awards to $70 million (Ms. Wilson), $5 million (Mr. Wilson’s consortium claim) and reduced the punitive award to $75 million.  In Buell-Wilson I, the court of appeal further reduced Ms. Wilson’s compensatory award to $18 million and, based on due process concerns and State Farm v. Campbell, reduced the punitive award to $55 million.

Ford’s petition for review to the Cal Supremes was denied.  So it petitioned the US Supremes for certiorari, where it received a “GVR” – an order granting certioriari, vacating the judgment below, and remanding to the Court of Appeal for reconsideration in light of Philip-Morris.

And reconsider the court did, in a 108-page magnum opus that could have been subtitled “And what are you going to do about it?”  108 pages, ladies and gentlemen.  The slip opinion  in Buell-Wilson I was 66 pages.  The official report of the opinion in Marbury v. Madison  is 42 pages long.  The official report of the opinion in Brown v. Board of Education  is 32 pages long.  Well, I think you get the idea.  Now, I’ll grant you the first 68 pages are largely a reiteration of Buell-Wilson I.  But some 40 pages are devoted to setting up a bulwark against further US Supreme Court action.

Anyway, after re-examining the punitive damages award in light of Philip- Morris as directed, the court held that

Ford has forfeited the right to assert there is a significant risk the punitive damages verdict in this case was based on improper evidence and arguments concerning third party harm because Ford (1) submitted incorrect and misleading jury instructions on third party harm; (2) did not timely object to plaintiffs' closing argument at the punitive damages phase of the trial; (3) did not request a limiting instruction during the liability phase of the trial; and (4) did not raise instructional error as an issue on its original appeal.

    In short, the court held that there was enough applicable appellate authority to alert Ford that the Supreme Court would decide Philip-Morris as it did, Ford failed to request instructions in conformance with the yet-to-be decided Philip-Morris case, submitted instructions that conflicted with it, and failed to preserve the jury instruction issue when it first appealed.

The Court took great pains to stress that these were state procedural grounds, not appropriate for U.S. Supreme Court review:

In both criminal and civil cases, the United States Supreme Court will not review a federal claim arising out of state court litigation unless there is "no doubt from the record" the claim "was presented in the state courts and that those courts were apprised of the nature or substance of the federal claim at the time and in the manner required by the state law."  (Webb v. Webb (1981) 451 U.S. 493, 501.)  Similarly, California courts have declined to review claims of federal constitutional error in the absence of a specific and timely objection made in the trial court.  (See People v. Monterroso (2004) 34 Cal.4th 743, 759, cert. den. (2005) 546 U.S. 834; People v. Burgener (2003) 29 Cal.4th 833, 869, cert. den. (2003) 540 U.S. 855.) 

Thus, by proposing a jury instruction that incorrectly and incompletely stated the law, and contradicted existing precedent and other jury instructions given by the court, Ford forfeited its due process challenge to the punitive damages award.

    This may be the end of the road for Ford.  The Court of Appeal seems to have set up enough procedural obstacles that the Supremes won’t get involved unless they really, really, really are determined to slap down excessive punitive damages awards.

California Punitive Damages -- An Exemplary Blog also has extensive coverage of the decision here.

Comments

[John Rohan]

Not necessarily the end of the road for Ford. In their own words, Ford strongly believes the award is unjustified to start with. They consider the debate over excessive punitive awards is just a side show.

SCOTUS might want to consider the issue of whether you can sue someone who fully complies with state and federal safety standards. If they did, it would be about time too.

[Conrad33CORINNE]

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