When Civil Trials Become Criminal Trials – An Opportunity for Further Federalism
By Marion Edwyn Harrison (02/23/07)
The day before yesterday the Supreme Court of the United States, 5 - 4, decided Philip Morris USA v Williams. Media coverage isn't as pervasive as that of Anna Nicole Smith's death but it is extensive. Therefore, anybody interested in dramatic high-dollar litigation knows that the Supreme Court of the United States reversed the Supreme Court of Oregon. The Oregon court of last resort had upheld an award of $ 821,000.00 in actual damages and $ 79.5 million in punitive damages to the widow of a gentleman whose death was caused by heavy smoking. A jury found that Philip Morris had advertised in such fashion as to cause the decedent to believe it was safe to smoke.
This is not the forum to analyze the merits of the case. This column has discussed aspects of tort fiasco on August, 17, 2005; April 3, 2006; February 8, 2007 – all e-mailed and posted on the FCF website, www.freecongress.org. Suffice it to say that the plaintiffs’ contingency-fee attorneys or “trial lawyers” - the John Edwards and his colleagues type of attorneys - litigate these kinds of cases. The cases typically are long on emotion, of questionable substance, and very often far-fetched on the facts. For example, in this case, assuming the company misleadingly advertised, should not the chain smoker have had the common sense to mention to his physician that he chain-smoked or to read the widely publicized material on the subject? If the facts warrant judgment for the widow, isn’t $ 79.5 million in punitive damages, roughly a 100 - 1 ratio over actual damages, out of line?
The Opinion of the Court and the three Dissenting Opinions are interesting but none addresses what might be termed the underlying issue: Should a civil trial behave like a criminal trial and award punitive damages?
The applicable state of the law is such that all four Opinions properly refrained from discussing that subject. All four discuss the controlling issues. The key issue among them essentially is whether the widow of the unfortunate gent is entitled to punitive damages based not upon punishing the cigarette manufacturer for falsely advertising to that gentleman but rather for falsely advertising to some unquantifiable and mostly unknown number of other smokers, none of them a party to the litigation.
As noted above, no Justice wrote about, or under the state of the law should have written about, the underlying, or sine qua non, issue: Are punitive damages allowable in a civil action?
By definition “punitive” damages are punishment. The immediate purpose of a criminal trial is to punish when there is a conviction. The purpose of a civil trial should be to award damages if the plaintiff prevails. The burden of proof dramatically differs. For a criminal trial, it’s guilt beyond a reasonable doubt; for a civil trial, it’s a preponderance of the evidence (in other words, greater convincing and reliable evidence than the other side offers).
Our American civil litigation, almost uniquely in the world, is confused in that a civil defendant can be (in effect) convicted by merely a preponderance of the evidence whereas a criminal defendant only can be convicted by evidence beyond a reasonable doubt.
A variation of punitive damages derives from English law (known there as exemplary damages). The state of our law is a matter for federalism. That is, each State has authority to abolish punitive damages in civil litigation. New Hampshire has done so. Some others have limited the quantum or otherwise legislated restrictions. Any State legislator or governor who attempts to abolish or to limit punitive damages is besieged by contingent-fee or “trial” lawyers, their lobbyists and their gigantic bankrolls. In short, rectifying the law is no easy sell. But every State seriously should consider its law.
Meantime, the Federal Trade Commission does have jurisdiction over significant false and misleading advertising in interstate commerce. More important, all of us should be more skeptical of, and enquiring about, the mass of superficial, irrelevant and often false advertisements which permeates all forms of our media.
Marion Edwyn Harrison, Esq. is President of, and Counsel to, the Free Congress Foundation.
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