Today, Abnormal Use continues its series, “Abnormal Interviews,” in which this site will conduct brief interviews with law professors, practitioners and other commentators in the field. For the latest installment, we turn to torts professor Jill Wieber Lens of the Baylor Law School in Waco, Texas. The interview, which mostly concerns punitive damages, is as follows:
1. What do you think is the most significant new development in torts or products liability of the last year?
I think one of the most significant developments of the last year was the government’s involvement in creating an alternative to tort law – the BP Oil Spill Fund. The Fund is advertised as a superior alternative — no attorneys taking a portion of the compensation received and the compensation should be paid out faster than in a lawsuit. The Fund may also allow claimants to avoid otherwise troublesome legal arguments like the economic loss doctrine, which if applicable, would preclude BP’s liability in negligence for causing pure economic losses.
At the same time, the BP Fund is very different than the 9/11 Fund. BP is funding it and compensating Kenneth Feinberg for his work. BP benefits directly if claimants apply to the Fund instead of heading to the courtroom. At a minimum, BP saves in legal fees and BP won’t pay any punitive damages within the Fund disbursements. I don’t mean to imply that any of this is necessarily inappropriate, but these are issues that were not present with the 9/11 Fund.
2. What component of punitive damages law do you believe is the least understood by civil litigators? Why?
Between the Supreme Court’s recent decisions in Philip Morris USA v. Williams, 549 U.S. 346 (2007) and Exxon Shipping Co. v. Baker, 128 S. Ct. 2605 (2008), there’s a lot about punitive damages to misunderstand. And it’s not just that litigators are confused; it’s the lower courts, too.
In Exxon, the Court expressed its concern that punitive damages are unpredictable. Numerous lower courts are now integrating the concern for predictability into their constitutional analyses. This is understandable because if the Supreme Court is concerned about predictability, then the lower courts should be concerned also. But Exxon was a common law-based challenge to a punitive damage award. Predictability does not appear to be a constitutional issue. Otherwise, an excessive award would be permissible as long as it was predictably excessive. At the same time, the Supreme Court relied very heavily on its constitutional guideposts — mostly the reprehensibility and ratio between compensatory and punitive damage guideposts — in Exxon, so the guideposts and predictability analyses may not differ all that much. The constitutional relevance of predictability is unknown at this point.
3. Generally, how would you characterize the media coverage of punitive damages issues?
The media coverage of punitive damage issues focuses on the outliers — only the excessive punitive damage awards garner attention. This media coverage, of course, fuels tort reform advocates and has likely contributed to states’ adoption of punitive damage caps or statutes requiring payment of a portion of the award to the state.
It’s also interesting to watch whether the media coverage has influenced the Court. In Exxon, the Court noted that studies undercut the thought of mass runaway awards and show that most punitive damage awards do not greatly exceed the accompanying compensatory damage award. Thus, maybe the Court isn’t so influenced. But after discussing these studies, the Court still suggested reform — pegging punitive damages to the amount of compensatory damages.
4. What do you believe is a defense attorney’s best constitutional argument against the imposition of punitive damages?
The best argument will always depend on the circumstances of the case. If the defendant’s conduct is not that bad, then the degree of reprehensibility guidepost probably provides a strong argument. Still though, the argument is a bit abstract because courts have never really been able to explain the “degree” part of this guidepost. How much more should an award be if the conduct is more reprehensible?
From a litigator’s perspective, the best argument is likely based on the ratio guidepost. It’s relatively easy to compare the amount of compensatory damages to the amount of punitive damages. This is also the same reason that courts have latched onto this guidepost and may explain why the Supreme Court’s ultimate suggestion for reform of punitive damages in Exxon was to peg them to the amount of compensatory damages.
5. What federal or state court opinion has been the biggest surprise for you of late, and why?
I don’t know if I’m surprised by the result of the opinion, but an opinion that interested me lately was an Oregon Supreme Court decision entitled Patton v. Target Corporation, — P.3d —-, 2010 WL 4539445 (Or. Nov. 12, 2010) It limited the effect of Oregon’s statute mandating that 60 percent of any punitive damage award be paid to the State.
After trial, the jury awarded the plaintiff $900,000 in punitive damages. Before judgment was entered, the parties settled for an unknown amount and jointly requested dismissal. The State intervened, claiming it was entitled to 60 percent of the punitive damage verdict. Based on the language of the statute, making the state a “judgment creditor,” the Oregon Supreme Court determined that the State is not entitled to anything until the judgment was actually entered. And the parties settled before the court entered judgment.
Unless the legislature changes the language of the statute, this decision creates a huge incentive for parties to settle before judgment is entered. And even if the legislature changes the language of the statute enabling the State to recover, this will present interesting questions regarding whether the parties are limited in their ability to settle late in the proceedings if punitive damages are sought.
BONUS QUESTION: What do you think is the most interesting depiction of tort litigation in popular culture, and why?
Honestly, I try to avoid any depictions of the law in popular culture. I have difficulty enjoying them while knowing that they’re unrealistic. But honest depictions of tort litigation would not be too interesting. Can you imagine a show about document review? It wasn’t pure tort litigation, but “The Deposition” episode of “The Office” is one of my favorites. When the attorney asks to ask Michael [Scott] another question, and Michael responds, “I’ll allow it,” as if he’s the judge – that was a great episode.
BIOGRAPHY: Jill Wieber Lens joined the Baylor University School of Law faculty in 2010 as Assistant Professor. In 2009, Professor Lens was a Visiting Assistant Professor at the University of Louisville School of Law. Before entering academia, Professor Lens practiced commercial and appellate litigation in St. Louis, Missouri. She teaches Torts and Appellate Procedure. Her current research interests include tort reform generally and punitive damages.