It was a pleasure to be interviewed recently by a reporter from The New York Times, to discuss both the tactics used by Johnson & Johnson to deny the presence of asbestos in talc, and the techniques and evidence I used in a trial last year. The diverse and thoughtful jury in that case, faced with documentation long hidden from public and regulatory view, found that J&J has known for decades that its talcum powder products are frequently contaminated with asbestos. As a result, they awarded compensatory and punitive damages of almost $4.7 billion on behalf of 22 victims of asbestos-linked ovarian cancer.
There’s a story of a young Hollywood writer bragging to a veteran movie producer on the quality of his script, extolling that “it’s not only a great comedy, but it also has a message.” To which the producer replies: “Just write me the comedy. Messages are for Western Union.”
Unlike Hollywood, sending a message remains a core part of trial strategies, empowering the jury to send that message, particularly in personal injury and liability cases. In recent years, I have seen that juries are more inclined to award eye-catching awards. Responsible businesses and insurers are taking note. Together with law professors and other attorneys, I was recently interviewed for an article on the possible justification for these verdicts increasing in size, if not in frequency.
Here are some of the reasons that were cited for this trend:
- Consumers’ growing distrust of corporate America
- The changing concept and value of money (“It’s someone else’s money!”)
- Jurors’ personal health concerns make medical and pharma defendants more vulnerable
- The resources of the plaintiffs’ bar to discover evidence and present expert testimony can almost match those of corporate defendants
I can’t disagree with any of these explanations, but as I pointed out to the writer, jurors who “get it” recognize that often the only way to get the attention of a multi-billion-dollar company is with billions of dollars. Particularly when you have evidence of misconduct over a long period of time, jurors view that corporate knowledge and negligence as a cover-up that increases the company’s liability.
The result is a jury sending a message that punishes the defendant financially, as well as through the negative publicity that comes with the big-dollar verdict. Even if everyone in the courtroom recognizes that the jury award may be reduced through statutory limits or appeals, the corporate damage is done.
Quite simply, it’s punishment.
The statutes supporting punitive or exemplary damages against a defendant arguably go back hundreds of years. The most tangible reference found in English common law is generally cited as the 1763 case of Wilkes v. Wood.
Mr. Wilkes’ house was the subject of a search under a general warrant of arrest, and he brought a trespassing claim against the official who executed the search. His counsel asked for “large and exemplary damages,” in order to put a stop to such actions. The Lord Chief Justice instructed the jury as follows:
“Damages are designed not only as a satisfaction to the injured person, but likewise as a punishment to the guilty, to deter from any such proceeding for the future, and as a proof of the detestation of the jury to the action itself.”
We’re more than 250 years removed from that instruction, but the definition and rationale for the jury to send a message of “punishment to the guilty” is just as valid today.
