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Punitive damages awards are a plaintiff’s dream, a defendant’s nightmare and the subject of substantial ongoing debate among lawyers, legislators and academics. Nearly a decade ago, the U.S. Supreme Court set forth three due process guideposts to determine when punitive damages awards are constitutional: the degree of reprehensibility, the ratio of punitive to compensatory damages and sanctions for comparable misconduct. BMW of North America Inc. v. Gore, 517 U.S. 559, 573-86 (1996). Not until April 7, 2003, did the Supreme Court provide any real refinement of the BMW analysis. State Farm Mut. Auto. Ins. Co. v. Campbell, 123 S. Ct. 1513 (2003), on remand 2004 WL 869188 (Utah April 23, 2004). Campbell reaffirmed BMW‘s three guideposts, provided additional guidance for constitutional review of punitive damages awards and spawned substantial commentary and progeny. Unlike BMW-which was applied in 75 generally available decisions in the first two years following that decision-more than 80 generally available cases have applied Campbell in just the first year following that decision. This article focuses on that Campbell progeny and the continuing evolution of the constitutional scrutiny of punitive damages awards in civil cases. The degree of reprehensibility guidepost Campbell again confirmed that the degree of reprehensibility of the defendant’s conduct is ” ‘the most important indicium of the reasonableness of a punitive damages award,’ ” adding that reprehensibility should be judged by looking at several factors, including whether the harm caused was physical or economic; whether the tortious conduct demonstrated an indifference to or a reckless disregard of the health or safety of others; whether the target of the conduct had financial vulnerability; whether the conduct involved repeated actions or was an isolated incident; and whether the harm was caused by intentional malice, trickery or deceit, or mere accident. 123 S. Ct. at 1521. In applying these factors, courts frequently describe the relevant conduct using synonyms and then simply conclude-in a summary fashion-whether the conduct is perceived as reprehensible. Other courts, however, have struggled with the application of this guidepost and have set forth lengthy and helpful discussion and analysis. See, e.g., Eden Elec. Ltd. v. Amana Co. L.P., 258 F. Supp. 2d 958, 970-71 (N.D. Iowa 2003), aff’d, 2004 WL 1175783 (8th Cir. May 28, 2004); Ballesteros v. Ballesteros, 2003 WL 22080211, at 5 (Calif. Ct. App. Sept. 9, 2003) (mem.); Bocci v. Key Pharmaceuticals Inc., 76 P.3d 669, 674 (Ore. Ct. App. 2003), as modified, 79 P.3d 908 (Ore. Ct. App. 2003). These cases confirm that the factors described in this first guidepost need not all be present to support a punitive damages award. Amplifying the Campbell factors, courts also have looked to evidence that a defendant “prioritized monetary gain over . . . personal safety” or “engaged in affirmative misconduct after being notified of” claims; previous “near misses”; and “concealment of evidence of [the defendant's] improper motive.” Union Pacific R.R. Co. v. Barber, 2004 WL 352525 (Ark. Feb. 26, 2004); Rogers v. Franck, 2004 WL 728875, at 17 (Calif. Ct. App. April 5, 2004) (mem.); Hollock v. Erie Ins. Exchange, 842 A.2d 409, 421 (Pa. Super. Ct. 2004). The inquiry varies greatly, and there appears to be meaningful evolution in this guidepost, including what evidence and issues are relevant to this truly case-by-case inquiry. With regard to the ratio guidepost, Campbell, although declining to “impose a bright-line ratio,” observed that “[o]ur jurisprudence and the principles it has now established demonstrate . . . that, in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.” 123 S. Ct. at 1524. To date, cases applying Campbell generally confirm this directive. Of the more than 80 cases applying Campbell in the first year in which a ratio between punitive and compensatory damages can be determined, nearly 45% (35 cases) approved ratios of 3-to-1 or less (either by affirming such an award, reducing the award to reflect such a ratio or making such an award in the first instance). Nearly 25% (19 cases) approved ratios of 3-to-1 to 5-to-1. Accordingly, two-thirds of the cases applying Campbell authorized a punitive-to-compensatory damages ratio of 5-to-1 or less. Fewer than 15% (11) of the cases authorized a ratio of 5-to-1 to 9-to-1, meaning that more than 80% of the cases applying Campbell limited the punitive-to-compensatory damages ratio to the single-digit line of demarcation set forth by the Supreme Court. Somewhat surprisingly, nearly 20% (16) of the cases applying Campbell allowed the punitive-to-compensatory damages ratio to exceed 9-to-1. Nearly half of those cases, however, involved nominal compensatory damages, consistent with Campbell‘s directive that small compensatory awards may support higher ratios than large compensatory awards. The remaining cases affirming higher ratios involved a variety of different fact patterns, including: In an intentional interference with business expectancy/contractual relations case, refusing to set aside a jury verdict of $60 million in punitive and $390,072.58 in compensatory damages (a 153-to-1 ratio) awarded against an elected official who “abused his privileges . . . to attempt to disrupt” a corporate merger that failed, noting that “the case law does not preclude but supports a significant award resting on the particularly reprehensible actions by a public official in violation of the public trust.” S. Union Co. v. S.W. Gas Corp., 281 F. Supp. 2d 1090, 1094, 1099-1100 (D. Ariz. 2003). Affirming punitives damages of $200,000 on $8,801.40 compensatory damages (a 22.7-to-1 ratio) in a case arising out of a car accident resulting in a modest compensatory damages award-but the potential for large damages-when the defendant “smoked two marijuana cigarettes, drank six beers and eight ounces of straight gin, then crashed his car into the back of a car driven by [the plaintiff], pushing her car into the lane of oncoming traffic. [The defendant] also fled the scene.” Craig v. Holsey, 590 S.E.2d 742, 744 (Ga. Ct. App. 2003). In a Freedom of Access to Clinic Entrances Act case brought by multiple plaintiffs against multiple defendants, affirming punitive-to-compensatory damages ratios ranging from 6.7-to-1 to 31.8-to-1, “in view of defendants’ egregious, unrelenting, and unapologetic conduct,” when the compensatory damages did “not incorporate any potential ongoing or future economic or noneconomic harm.” Planned Parenthood of Columbia/Willamette Inc. v. American Coalition of Life Activists, 300 F. Supp. 2d 1055, 1063, 1064 (D. Ore. 2004). During the first year after BMW, state courts allowed more generous punitive-to-compensatory ratios than did federal courts. See Samuel A. Thumma, “Damages,” NLJ, June 30, 1997, at B6. In contrast, the federal cases applying Campbell in the first year after that decision allowed higher ratios than did the state cases. Including nominal-damages cases, more than 25% of the federal cases applying Campbell allowed a ratio exceeding 9-to-1, while fewer than 15% of the state cases allowed such ratios to stand. As another example, nearly 70% of the state cases allowed a ratio of 5-to-1 or less, while approximately 60% of the federal cases yielded a ratio of 5-to-1 or less. Time will tell whether these initial results represent trends or anomalies. Sanctions for comparable misconduct The third guidepost “is the disparity between the punitive damages award and the ‘civil penalties authorized or imposed in comparable cases.’ ” Campbell, 123 S. Ct. at 1526 (quoting BMW, 517 U.S. at 575). This guidepost continues to be difficult to apply and, at times, has been found to be less important than the other two guideposts. Campbell cautioned against over-reliance on potential criminal penalties, given the “heightened protections of a criminal trial” that must be observed before such penalties are imposed. Id. Notwithstanding that caution, courts still look to criminal penalties, particularly if a defendant has admitted criminal responsibility. At least at times, the burden is placed on the party challenging the award to show that comparable penalties indicate that the award is excessive. Some courts have noted statutory multipliers of compensatory damages in affirming awards that exceed even the multiplier, while others have found comfort in punitive damages awards falling within the range of comparable statutory civil penalties. Still other cases suggest that if noncompensatory damages are awarded pursuant to statute, Campbell has no application. When the defendant is subject to licensure, at least one court has discussed potential license revocation (and the corresponding financial impact) in looking at possible civil sanctions. Greenberg v. Paul Revere Life Ins. Co., 2004 WL 74630, at 2 & n.5 (9th Cir. Jan 12, 2004) (mem.). Although courts have looked to this factor to reduce punitive damages awards, even the lack of potentially applicable penalties has not stopped courts from allowing punitive damages. The Campbell progeny also show the continuing importance of good advocacy, finding that the issue can be waived unless expressly and timely raised. Smoot v. United Transportation Union, 2003 WL 21374721, at 2 (6th Cir. 2003) (mem.). The first-year Campbell progeny have refined the constitutionally mandated review of punitive damages. That analysis appears to yield somewhat different results than did the first-year BMW progeny. Additional decisions, including nearly 20 remands for further consideration in light of Campbell that were not yet decided in the first year after that decision, will determine whether that apparent trend continues and will help further delineate the due process scrutiny of punitive damages awards in civil cases. Samuel A. Thumma is director of Phoenix’s Brown & Bain. For an annotated copy of this article, contact the author at [email protected].

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