What's Anger Got to Do With It? Ford and Punitive Damages
Thanks to the Wall Street Journal Law Blog for turning us on to the New York Times article When Lawyers and Juries Mete Out Punishment.
First, as a follow-up to our "Few Good Men" post yesterday (see screenplay here) we quote the quotable Mr. Sorkin again as an introduciton to the cross-examination question that launched a $246 million punitive damage award:
KAFFEE
What possible good could come from putting Jessep on the stand?
JO
He told Kendrick to order the Code Red.
KAFFEE
He did?! Why didn't you say so!? That's qreat! And of course you have proof of that.
JO
I--
KAFFEE
Ah, I keep forgetting: You were sick the day they taught law at law school.
JO
You put him on the stand and you get it from him!
KAFFEE
Yes. No problem. We get it from him.
(to SAM)
Colonel, isn't it true that you ordered the Code Red on Santiago?
SAM
Look, we're all a little--
KAFFEE
I'm sorry, your time's run out. What do we have for the losers, Judge? Well, for our defendants it's a lifetime at exotic Fort Levenworth. And for defense counsel Kaffee? That's right--It's-- A Court- Martial. Yes, Johnny, after falsely accusing a marine officer of conspiracy, Lt. Kaffee will have a long and prosperous career teaching typewriter maintenance at the Rocco Columbo School for Women. Thank you for playing "Should We or Should-We-Not Follow the Advice of the Galacticly Stupid".
It's hard being a trial lawyer. Very hard. So I'm not going to accuse the attorney who asked the question at the heart of the New York Times piece of being "galacticly stupid." Nor, however, am I going to charge the jury with being "inflamed by passion and prejudice." Maybe just inflamed by passion. Which is what we ask from juries, isn't it? That they get angry at injustice. With all due deliberation and based on the evidence. That they take a cold hard look at certain business practices, draw the conclusion that those practices caused the party before them to suffer unbearable injuries and then award as punitive damages an amount to "deter" that business practice.
And if the jury makes a mistake? Well, fortunately, we're only just beginning to ask that question about the more important decisions juries make every day -- whether to sentence men and women to lengthy prison sentences, or even to death, for causing injuries as severe as those suffered when products go bad.
With that, I give you the New York Times on the final question to the husband of the woman paralyzed when her Ford Explorer rolled over.
The witness was Barry Wilson, whose wife, Benetta, was paralyzed when her Ford Explorer rolled over. Mr. Wilson had cut back on his work hours to care for her. He showered her and catheterized her, and he woke several times each night to move her, to avoid bedsores.
Mr. Sonnett saw an opening, and he ended his examination with a flourish.
“The silver lining,” he said to Mr. Wilson, “to the extent that there could be one, it has brought you and Benetta and the family closer together?”
Mr. Wilson did not see the upside. “I don’t think it’s a benefit or a plus in any way,” he said.
It was the silver-lining question, an appeals court later ruled, that “may well have inflamed the passions of the jury.” In their lawsuit, the couple said Ford had made the Explorer dangerously prone to rolling over and then outfitted it with a weak roof. The jury agreed, hitting Ford twice. First, it awarded $123 million to compensate the Wilsons. Benetta Buell-Wilson had been an athletic graduate student, and now she lives in constant and increasing pain.
For the recent Supreme Court decision striking down the $79+ million punitive award against Philip Morris, see the Southern California Law Blog report here.
For a little history on cigarette advertising, we give you Philip Morris ads on the original I Love Lucy television series.
