In a ruling released without comment or dissent, the US Supreme Court today finally dispensed with the question of whether Oregon jurors were within their purview to award $79.5 million in punitive damages to the widow of a longtime Oregon smoker:
The high court dismissed the Philip Morris appeal without issuing an opinion, ending the third appeal the company had secured before the Supreme Court in its fight to reign in an award by an Oregon jury.
The Supreme Court's dismissal also means no new legal precedent was set on punitive damages, a development that is likely to disappoint business groups that have continued to press for additional punitive damages guidance from the high court.
The dismissal came in a short court order that offered no details on why the appeal was dismissed. No justices dissented from the dismissal.
Philip Morris, in a statement, said legal proceedings will continue in Oregon on distribution of the financial damages. Oregon law requires that 60% of the award go to the state - leaving the plaintiff with 40% - and the tobacco company said it believes the nationwide tobacco settlement bars Oregon from receiving any more tobacco money.
This was a long, drawn out case. (Aren't they all?) Jesse Williams, a janitor from Portland, began smoking in 1950 and was diagnosed in 1996, dying just a year later. By 1999, an Oregon jury had awarded $821,000 in actual damages (medical care, etc.), but 97 times that in punitive damages. According to court records, part of the jury's intent was to hold Phillip Morris liable for the harm it had caused other Oregon smokers as well.
PM didn't like that, and argued that it violated their 14th Amendment rights of due process, since the punitive award was so disproportionate to actual damages--and PM was punished for perceived injuries to people not specifically party to the case.
The Oregon Supreme Court upheld the verdict, but in 2003 the federal version deemed punitive awards more than 10x the actual damages to be excessive. The verdict was remanded back to Oregon twice for consideration of the new damages limit, but our courts declined--according to WSJ, on the grounds that Phillip Morris forfeited their right to challenge the verdict by not properly following state jury instruction rules.
So once again the case came before the federales, and this time it appears the thinking on damage awards has come full circle--let the states decide, or at least in this case, accept that the state's handling of the case had not been untoward.
Williams' widow Mayola, who in this fine piece by the Guardian UK is credited heavily with the victory through her testimony and persistence against the tobacco giant, will reportedly see $58 million, her share of the now-$145 million judgement with interest. The remainder will go to Oregon's crime victims fund--something that has to put a little hop into AG Kroger's step this afternoon, as with any advocate of state-based, jury-led determinations of corporate liability, or victims' rights. As the Guardian piece suggests, they're probably a bit baffled at the turnaround--especially without dissent or further guidance on liability caps--but definitely delighted.
I read several interesting and seemingly unrelated stories this week. First was an assessment-in-hard-times of Portland {free sub reqd} by the old Grey Lady, which through Nick Kristof's home-state well of references and Portland's apparent status as a bellwether city of new liberalism to them seems to earn us lots of NYT ink.
Bojack of course immediately leapt on it to highlight just how horrible his existence environment is, but it struck me how much like everywhere else in the country Portland is, with housing price retrenchment (14% compared to the 30%+ in places the opposite of Portland like Vegas and Florida), foreclosures (duh), hesitant credit stifling and scaring business (double duh) and slowdowns in durable goods like cars (as if Portland's folly was to have a major port for vehicles from Asia). Wow, we're not so strange and unique after all!
Nonetheless, it was a bit of looking down the nose at the city that thinks itself different somehow, and detractors crowed. But I found what I think is a more important difference. There's an election in NY-20 next Tuesday, for Kirstin Gillibrand's old seat now that she's been appointed Senator. (It looks like the Dems might actually hold the seat!) I came across a law-news piece that defended her against another NYT article, digging into her law career and finding her representation of tobacco giant Phillip Morris among the files. Here's the essence:
For most people who understand how law is practiced at the top firms in the country, the interesting part of the NYT article pretty much ends there. As an associate, especially a "superstar" associate as Gillibrand appears to have been, you work for the partners and represent the clients they tell you to represent. It's really not that complicated.
The writer goes on to say that many firms have an opt-out clause, ostensibly--but that you'd be a career-killing fool to actually exercise it. After all, you want to make partner and pull down the serious jing, right? That's what you're there for! Hey, it's the New York--and apparently anyone else in the legal world who wants to be bigtime--way.
(As an interesting aside, look who's speaking for Senator Gillibrand--and similarly excusing her representation of PM while cancelling a scheduled meeting with the NYT editors--it's our old friend Matt Canter, imported flack last seen in Oregon running Jeff Merkley's campaign! Remember what a Palestinian woman said Merkley told her? "I don't know if it's right or wrong, I just want to win.")
The last article was in Thursday's Trib, about my friend and State Rep Jefferson Smith, making his way as a freshman in Salem this year. Here's the part that caught my eye, that I guess I've probably heard before but which now came clearly into focus:
Jefferson became intent on law school, following the path of his father and grandfather. He finished at University of Oregon and got into Harvard Law School, finishing in the top 5 percent of his class.
Smith accepted a post with a top Manhattan law firm, which waited while he studied for New York’s bar exam. But his second day on the job, Smith balked when asked to take a case representing tobacco companies.
“He walked away from $180,000 a year before bonuses,” recalled his dad, “because he decided his conscience wouldn’t let him.”
One person is already a Senator, and looks on her way to a routine political career. The other is younger and further behind in terms of elected office, but if you had to lay even odds now stands a pretty good chance of being governor some day, and has already done more to impact state politics than anybody ever will as governor. I don't know if Gillibrand makes the same excuses that her defender does, and truthfully I don't know what I myself would do in the same situation. I've never been in it. But if you're wondering about someone's conviction of character, this ain't a bad proxy. If personal accountability is on the wane in New York, in Oregon--at least in District 47--the stock seems look a pretty solid buy.
It was a fairly anticlimactic night, and one that certainly enabled you to get home at a decent hour from the party, since both Measures 49 and 50 were called before 9 and were obviously so by 8:30. Of course, at the Benson (site of Yes 50) the guests took it well but soon scattered, while at the Kennedy School (Yes 49) throngs continued to flood the hotel/restaurant/bars well past the initial popping of the champagne.
What happened? How did one cruise to an easy victory while the other went to such embarrassing defeat? There are lots of plausible answers over voter motivation, voter comprehension, voter interest, etc. At this point I'm of the view that the voters seemed to know what they were doing in both cases, making rational choices I may or may not agree with or think are the most pertinent elements, but which were not the result of necessarily being misled or gulled into the wrong vote. We'll do 50 now, 49 shortly.
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Now that Measure 50 has failed, we can all agree to pass the taxes Republicans want, starting with a cigarette tax in the Oregon Revised Statutes, not the Constitution, that goes directly and entirely toward smoking cessation and tobacco prevention programs. That way, when the dangerously unsustainable tobacco tax leaves us with enormous revenue shortfalls according to RJ Reynolds' unique and invalidated math, it will be because people completely stopped smoking and no longer need the services that the tax goes to fund. It's a win-win: no more smokers, no more taxes.
Then, we can have a separate tax, one we all pay. This will fund the Healthy Kids Program, the Oregon Health Plan, the Healthy Kids safety net, and rural health clinics. These were all to be funded by Measure 50, and Republicans would have supported these programs, had Measure 50 not been such a jihad on the poor's right to an extraordinarily-expensive-but-not-too-expensive suicide.
I call on all Democrats to join with Republicans in passing these bipartisan taxes in the 2008 supplemental session.
(Front paging this because a) it makes a good point, b) it's been responded to by staff from The Merc, and c) it's getting linked by other places such as OR Media Insiders. Congrats, James X--you've created blogosphere buzz! - promoted by torridjoe)
For the last several years, tobacco companies have been targeting youth with ads for chewing tobacco, pointing out how it's easier to hide the use of "chew" from authority figures, how it's cool and glamorous to use it, etc.
In the current issue of The Portland Mercury, an excellent venue for reaching teens and twenty-somethings, is a multi-page guide to using chewing tobacco, courtesy of R.J. Reynolds.
Targeting youth with tobacco ads is illegal, by the way. It even says so in the Master Settlement Agreement R.J. Reynolds signed.
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