Scotus And Exxon-Mobil

I speculated a few months back that one reason our state supremes had not yet decided the Exxon-Mobil case was that they were waiting for Scotus to decide their latest punitive damages case.

Well, Scotus decided it yesterday, and, although the ruling is as clear as mud, it does not appear to have much, if any, applicability to the Exxon-Mobil case.

The Scotus case was Phillip Morris v. Williams, and the first clue that it was a weird case is the fact that Justice Ginsberg wrote a dissent in which Justices Scalia and Thomas fully joined.

In the case Phillip Morris made two arguments. First, that the 100-1 ration of punitive to compensatory damages was unconstitutionally high. Second, that the trial court should have instructed the jury that they could not punish Phillip Morris for harms caused to people who were not parties to the litigation.

What Phillip Morris, Exxon-Mobil and the entire business community really wanted was for Scotus to find in their favor on the first question by saying something like “the ratio can never be more than 2-1.” Sadly, for them, Scotus ignored the first question and ruled only on the second, agreeing with Phillip Morris that juries cannot punish defendants for harm caused to non-parties.

That sounds good, but then the court said juries could consider harms to non-parties when determining the “reprehensibility” of the defendant’s conduct. So they can’t punish them for the harm to non-parties, but they can consider the harm to the non-parties when deciding on the right amount of punitive damages. I’m not making this up:

Respondent argues that she is free to show harm to other victims because it is relevant to a different part of the punitive damages constitutional equation, namely, reprehensibility. That is to say, harm to others shows more reprehensible conduct. Philip Morris, in turn, does not deny that a plaintiff may show harm to others in order to demonstrate reprehensibility. Nor do we. Evidence of actual harm to nonparties can help to show that the conduct that harmed the plaintiff also posed a substantial risk of harm to the general public, and so was particularly reprehensible, although counsel may argue in a particular case that conduct resulting in no harm to others nonetheless posed a grave risk to the public, or the converse. Yet for the reasons given above, a jury may not go further than this and use a punitive damages verdict to punish a defendant directly on account of harms it is alleged to have visited on nonparties.

I pitty the fool who has to apply that “rule” to a hypothetical on a bar exam. And does the all-wise Scotus give would be lawyers, as well as plaintiff’s attorneys, corporate counsel, trial judges or juries, any help whatsoever in making this distinction real? Of course not:

How can we know whether a jury, in taking account of harm caused others under the rubric of reprehensibility, also seeks to punish the defendant for having caused injury to others? Our answer is that state courts cannot authorize procedures that create an unreasonable and unnecessary risk of any such confusion occurring. In articular, we believe that where the risk of that misunderstanding is a significant one because, for instance, of the sort of evidence that was introduced at trial or the kinds of argument the plaintiff made to the jury a court, upon request, must protect against that risk. Although the States have some flexibility to determine what kind of procedures they will implement, federal constitutional law obligates them to provide some form of protection in appropriate cases.

Shorter version: “We needed to decide this case, but we really did not want to drop the 2-1 ratio bomb, so we concocted this silly distinction. Not sure what it means. But you guys have nothing better to do than try to figure it out. Oh, and if you guess wrong, we’ll make you do it over again.” Wow. Good luck with that.

Anyway, I don’t think this is going to impact Exxon-Mobil.

First, so far as I know, the only damages in Exxon-Mobil involved harms to Alabama. I have not seen anything in the papers about arguments that the company’s actions could have damaged anyone else. So whether or not the jury punished them for injuries suffered by non-parties should not even be an issue.

Second, unless Exxon-Mobil had raised this objection in the trial court, they would not be able to argue it now. Appeals are limited to issues previously argued in the trial court. Given the weird nature of the Phillip Morris case, I would be very surprised if Exxon-Mobil had made a similar argument at the trial court. Maybe they did. But I doubt it.

So, I guess the delay is due either to the conspiracy theory or the subjective nature of punative damages review.

Explore posts in the same categories: Alabama Court Decisions, Appellate And Post-Conviction Issues, Scotus

3 Comments on “Scotus And Exxon-Mobil”

  1. Beaudrillard Says:


    I also wondered if Ala. S.Ct. was waiting on SCOTUS to decide Exxon. I have since learned that the truth is much more revealing. In fact, our illustrious AG pulled some strings on the third floor of the Judicial Building to ensure that Exxon got assigned to a particular Justice, apparently counting on the fact that this Justice was too slow or disorganized to have the case out before November 7. King hedged his bet on that one and came out big.

    The reason King did so is that he secured Beasley Allen and Cunningham Bounds, two of the biggests contributors to Dem candidates in the state, to represent the State in Exxon. He knew that if he could get those firms so tied up in the case that they profited significantly from a favorable ruling in the Ala. S.Ct., they wouldn’t send money to his opponent until the case was resolved. Lo and behold, the case was not resolved before the November elections, and King’s opponent didn’t receive a dime of Beasley money, or a nickel of Cunnigham Bounds money. Ask Tyson why he lost: he couldn’t get enough money to maintain TV presence in the final lap where he needed it most to compete with King’s sleasy swiftboat ads.

    Now, tell me true. Is he a public servant or a politician?

  2. Wheeler Says:

    “this Justice was too slow or disorganized to have the case out before November 7.”

    hmmm, who could that be? mini-moore, perhaps?

  3. Old Prosecutor Says:

    I am shocked, shocked I say to learn you people think such a condiseration could be present in our Judicial system

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