Archive for the ‘Alabama Court Decisions’ category

Scotus And Exxon-Mobil

February 21, 2007

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.

More On Jury Awards

February 8, 2007

From the homepage of Alabama Voters Against Lawsuit Abuse:

Alabama is one of the most beautiful states in the nation. Alabama folks are good folks. But there is a problem. Alabama is one of the worst states in the nation for lawsuit abuse.

A recent poll by the U.S. Chamber of Commerce ranks Alabama 48th in the nation for civil justice. It has made the “Judicial Hellholes” list published by the American Tort Reform Association (ATRA.) In the mid-1990′s, Forbes magazine called Alabama “Tort Hell” due to the large number of frivolous lawsuits and the embarrassingly high-dollar punitive damage awards handed out in our broken civil justice system.

Last week, I posted a few of the findings contained in the most recent Alabama Jury Verdict Reporter. Here’s some more.

First, there just are not a lot of big money lawsuits in Alabama.

there were 16 verdicts rendered in 2006 in excess of one million dollars.

Think about that. Of all the lawsuits filed every day in every county in this state, we only had 16 million dollar verdicts? And that qualifies Alabama as “one of the worst states in the nation for lawsuit abuse?”
Second, those suits certainly look meritorious:

A class action in federal district court in Tuscaloosa was the largest verdict handed down in Alabama in 2006. The $19,092,003 verdict arose out of a case involving a class of dollar store employees who alleged that they were unlawfully categorized as managers so that they could be denied overtime pay.

In a Lee County case, the plaintiff suffered a facet fracture in a stop sign crash. A radiologist at the hospital was blamed for missing the fracture, and the undiagnosed injury left the plaintiff a permanent paraplegic. The jury awarded the plaintiff $6,000,000.

A man in Mobile County sought treatment at the emergency room for an attack of gout. The drug that the man was administered to treat his gout interacted adversely with his other medications and led ultimately to his death. A lawsuit filed as a result of his death resulted in a $4,000,000 verdict in favor of the plaintiff.

In Montgomery County, a jury awarded $3,684,000 in a case where one worker was killed and a second seriously injured in a scaffold collapse.

In a case tried in Macon County, a man was injured in a collision with a tractor-trailer. The driver of the tractor-trailer turned out to be blind in one eye and had a history of fainting, dizziness, and alcohol abuse. [????!!!!!????] The jury awarded the plaintiff $3,500,000. [That's all????!!!]

Sure, there may be issues with some of these cases, but none of them strike me as “frivolous” claims, or “embarrassingly” high awards. And these cases are in line with recent trends:

In analyzing million dollar verdicts from 2002 through 2006, the Reporter found that wrongful death cases accounted for 29.9 percent of those verdicts. Among the cases implicating personal injury, death represented 26 of 52 cases, or 50 percent of the sample. The Reporter concluded that there were only three injuries on the list that were arguably not severe and debilitating. These included an ankle injury, a disc injury with radiating pain, and a husband cuckolded by his wife’s psychiatrist.

Thus, 49 of 52, or 94.2 percent, implicated a serious injury. The Reporter stated that its findings tend to dispel the notion that Alabama juries award million dollar verdicts to plaintiffs with injuries that are not severe.

Other than severe injuries or death, the types of cases most frequently found on the million dollar verdict list from 2002 to 2006 were commercial fraud (10), insurance fraud (5), employment discrimination (3), employment retaliation (3), defamation (2), and various breaches of contract (4).

I’m not naive enough to deny that there are a bunch of sleazeballs out there getting rich off of other people’s suffering (“call Goldberg, 800-600-dadadada”), or that some people do indeed file ridiculous suits. But I think the system as it stands is more than adequate to weed out the bad suits long before they get to trial.

Frivolous Lawsuits Drive Up Your Health Insurance And Drive Doctors Out Of State

February 2, 2007

I blogged about this back on May:

The U.S. Tort Liability Index: 2006 Report, to be released today by the California-based Pacific Research Institute, divides states into three groups of saints, sinners and salvageable. The report characterizes Alabama as among the “sinners” states that are predicted to fall in its ranking or stay at the bottom because of relatively high civil lawsuit verdicts and a failure to enact few or any comprehensive reforms.

The Alabama Jury Verdict Reporter just released its 2006 edition. Of note:

Medical negligence. There were 32 verdicts rendered in medical negligence cases. Again, this number was down from the 54 tried in 2002 and the 52 cases in which a verdict was rendered in 2003, but was up from the 15 cases in this category in 2005. Of these 32 cases, the plaintiff prevailed in four cases while verdicts were rendered for the defendant in 28. The plaintiffs therefore won only 12.5 percent of the medical negligence cases tried in 2006. The average plaintiff’s verdict in these cases was $2,718,750, and the average verdict considering all of the trials was $339,844.

According to the report, almost half of the jury verdicts last year were in plain ‘ol car wreck cases. Of those, the results were about fifty-fifty, with the average plaintiff’s verdict being  95,000. The only areas outside medmal where the average plaintiff recovery exceeded six figures were eight slip and fall cases at an average of 142,000; seven employment retaliation cases at 480,000; and seven civil rights cases at 210,000.

Those six figure plus awards might sound outrageous, but 1) there are not many of them, 26 in total, and 2) those are areas where the injuries are likely to be big, i.e. wrongly amputated limbs, years of lost earnings, broken bones and long term disabilities. So, if those numbers mean we are sinners, what would it take to be a saint?

 

Activist Judge

January 18, 2007

Regular readers know I think that term is a load of crap, and that I have very little patience for anyone who uses it, because – no matter who invokes it – what it invariably means is nothing more than “this judge made a decision I do not like.” But, if there is any case in the world where a judge actually has imposed his own views on an unwilling populace, it’s this one:

Brandon Deon Mitchell was sentenced Wednesday to death for a Thanksgiving Day 2005 triple murder after the judge overturned the jury’s 10-2 vote for life without parole.

The intro to “Law & Order” notwithstanding, in the criminal justice system the people are represented by the jury. And this particular jury heard all the evidence, considered all the arguments, and decided that no, in this particular case death was not appropriate. Then one elected judge in a rabidly death penalty state decides that his own opinion is better than that of ten jurors.

This is not a unique occurrence. Alabama law lets the judge override the jury’s recommendation for life or its recomendation for death. Judges use that power all the time. But they almost always use it like the judge did in this case: Ninety per cent (90%) of the time judges use the override, they use it to reject the jury’s pro-life decision and impose a death sentence.

Like I said, I think this is bad policy. I see no reason whatsoever to trust a judge’s decision more than the collective wisdom of the jury, especially not when that judge has to run for re-election in a state that is extremely pro-death penalty. I also think it is unconstitutional.

Basically, before Alabama can execute someone, Alabama has to do three things: 1) convict the person of a capital crime; 2) prove beyond a reasonable doubt that at least one “aggravating factor” to that crime was present; 3) demonstrate that the aggravating factor, or factors, outweigh any existing mitigating factors.

Its absolutely settled that the first two things are the sole province of the jury. If the jury says no on either, then that’s it, no death penalty.

The unsettled question is who gets to decide the third question. Most states have given that task to the jury alone. Alabama, by allowing judicial override, has said either the judge or the jury. In other words, in Alabama, there can be no death penalty if the jury votes nay on one or two, however, if the jury says yea on one and two, then, even if the jury says nay on three, the judge can impose death if the judge himself decides the aggravating factors outweigh the mitigating factors.

I think that is unconstitutional.

Over the last few years, Scotus (Scalia in particular) has re-invigorated the sixth amendment right to a jury trial by holding in several cases that facts essential to a penalty must be found by the jury beyond a reasonable doubt. That was the idea behind the end of the mandatory federal sentencing guidelines. It’s also the idea that made the second factor a question for the jury.

Now, here’s why I think that idea should also eliminate judicial override. Facts essential to the penalty must be found by the jury beyond a reasonable doubt. All three factors – capital crime; existence of an aggravating factor; aggravating factors outweigh mitigating factors – are essential to the death penalty. Hence, they all must be found by the jury beyond a reasonable doubt. That would mean the judge can not decide the third any more than the first two. If the jury says no death, that’s it, no death.

The objection to my analysis is that the weighing process is not a factual determination, but a moral judgment incapable of being subjected to standards like beyond a reasonable doubt standard. My response would be that beyond a reasonable doubt is not a quantitative measurement, but an expression of confidence. So it would be perfectly appropriate to apply it to the weighing process. Before the state can impose death, the jury must say that it is convinced beyond a reasonable doubt that death is appropriate.

That’s just my view on the current state of conlaw and its application to Alabama’s death penalty procedures. Regardless of whether you agree with me on that or not, I think we can all agree that as a matter of policy, we ought to get rid of judicial override. If twelve of our peers decide death is inappropriate, what is there to complain about?

State Supremes Restore Overhead For Indigent Defense

December 22, 2006

Here’s the decision. It was 9-0. The background is here. I think I pretty much called it correctly.

For now all I want to say is that - as has happened, more than one time, in the past - Troy King’s habit of putting politics above the law has cost us big bucks.

It was his stupid AG opinion a year and a half ago that stopped the overhead payments. I’ve explained that his argument was extremely weak, and today his reasoning was rejected by all nine Supreme Court Justices.

But today’s decision does not just expose his own stupidity. The state will soon have to pay for all the overhead expenses that appointed attorneys have carried on their own over the last twenty months. Plus interest. Just to give you an idea of what the state owes, one of the attorneys in my office – who does not take a lot of appointments – told me she is due about twenty five thousand dollars in overhead for the last twenty months. That’s one attorney.

Way to go Troy!

Government Comes Up Limp In First Wildlife Refuge Case

December 12, 2006

The background, from last July:

A prominent Huntsville attorney and a school principal were among more than two dozen people accused of public indecency and lewdness during last weekend’s undercover sting at the Wheeler National Wildlife Refuge. . . .

Federal authorities conducted an undercover sweep at the refuge last Thursday, Friday, Saturday and Sunday in response to complaints that men meet there for illicit sexual encounters. Similar operations the last two years also resulted in arrests.

The first case went to trial yesterday, and the Government shot blanks:

Did they chastise the U.S. Fish and Wildlife Service or evaluate witness credibility?

Lawyers may debate the issue for years, but a Decatur federal jury debated only 20 minutes Monday to find a Huntsville man not guilty of engaging in sexual contact without consent or permission at Wheeler Wildlife Refuge.

The defendant, Anthony Gentry, 59, of Huntsville, said his hand contacted the mid-section of an undercover federal agent, but the contact was accidental. The undercover agent, Savannah, Ga.-based Refuge Officer Greg Blanks, said Gentry grabbed his crotch for personal arousal and to express a desire for more sexual contact.

Three points here.

One, we had a client involved in a similar situation. I wanted to try the case, but because 1) the other attorney involved thought a jury would convict as soon as they heard the word “homosexual”, and 2) the client was about to move out of state and wanted to end the case asap, the client ended up paying the extortion pleading guilty and paying a fine. Yesterday’s trial does not change the second reason for the plea, but it undercuts the first. I find this very encouraging:

In a case where the sole defense was that the touching was accidental, Gentry’s lawyer, Bruce Gardner of Huntsville, started things off with a surprise. As he was asking prospective jurors questions to determine their fitness to decide the case, he minced no words.

“My client is admittedly a homosexual, gay man,” Gardner said.

His client, thin and balding, with a beard and moustache going white and a U.S. flag pin on his blazer’s lapel, a red tie falling short of his waistline, stared unsmilingly at the jury as his lawyer spoke.

U.S. District Judge Scott Coogler hit the homosexuality issue head-on as well.

“I understand that mainstream religion considers homosexuality a sin, but it’s also mainstream religious belief, as I understand it, that it’s the act that is a sin, not the person,” Coogler said. “You’re not here to decide whether someone is or is not homosexual.”  . . .

After the verdict, Gardner said he introduced the homosexuality issue because he figured the jury would suspect it.

“I thought it was going to be very apparent based on the way my client looked, the way he talked,” Gardner said. “I thought it was better to embrace the facts.”

That’s good lawyering, and way to go jurors for sticking to the facts.

Two, from the news report, it looks like this case was the federal agent’s word against the defendant’s. You don’t need a lawyer to tell you that in ninety nine out of one hundred cases of cop says/defendant says the government wins. So that the government lost this case means the government’s case did not just suck, it really, really, sucked.

Three, I don’t want to see anyone – gay or straight – getting it on in a public place. But, if what my client was doing is any indication of what was going on at Wheeler, I don’t think criminal charges are the answer. Far from intentionally exposing themselves – a requirement for lewdness or indecency – most of these folks were probably looking for some privacy. Maybe someone stumbled upon one of these couples and was offended. But is that reason to call in the feds, arrest people, charge them with crimes, make them pay fines or do time, and then label them “sexual offenders” for the rest of their lives? And after you’ve answered those questions, ask yourself if your answers would be the same had the offenders been a heterosexual couple. To me, this looks like the government taking an eye for a stubbed toe.

Sore Losers Seek To Recover From Sweepstakes

December 5, 2006

Here’s the story:

The lawyer who won a legal battle against the sweepstakes games at the Birmingham dog track has set a new legal goal: recovering millions lost by gamblers who played the illegal sweepstakes.

Matt Lembke and members of his Birmingham law firm have filed a lawsuit against the Birmingham Race Course seeking to recover under a state law that allows customers to sue for money lost at illegal gambling, Lembke said Tuesday.

“The Legislature has made clear that people who offer illegal gambling cannot keep their ill-gotten means,” Lembke told The Associated Press.

Lots of interesting issues here.

First, Lembke is right that the Race Course can’t keep the money, but it is not so clear who does get to keep the ill gotten gains. Here’s the statute (Ala. Code 8-1-150) Lembke’s using:

All contracts founded in whole or in part on a gambling consideration are void. Any person who has paid any money or delivered any thing of value lost upon any game or wager may recover such money, thing, or its value by an action commenced within six months from the time of such payment or delivery.

But here is Section 13A-12-30:

Money used as bets or stakes in gambling activity in violation of this article is forfeited to the state and by court order shall be transmitted to the general fund of the state.

So will the state try to intervene in the lawsuit so as to protect its interest in the money? Or will they compromise? You can see there is a six month time limit on private suits. So anyone who lost money before May 4th 2006 is SOL. There is no such limit to the state’s power. So the state could collect everything accumulated prior to May 4th.  We’ll have to wait and see.

Also noteworthy, any successful plaintiff better not ever make anyone in the DA’s office mad. I mean, if you are one of the plaintiffs, you’re basically publicly admitting that the money you seek to recover was “used as bets or stakes in gambling activity.” Not only does that let every authority figure know what you did, but it’s also all the state has to prove for purposes of forfeiture. Hence, by suing to recover the “ill-gotten gains” the plaintiffs are inviting the state to then sue them for forfeiture.  

It will be a class action, but the article does not indicate if the suit is in state or federal court. Last year’s Class Action Fairness Act provides for removal to defendant friendly federal court so long as one plaintiff is from a different state as any defendant and the amount in controversy is at least five million. It sounds like the amount won’t be an issue. As for the plaintiffs, I can’t imagine very many out of staters visiting the Race Course, but it does not take very many for removal. Again, we’ll have to wait and see.

Finally, who does the Alabama Christian Coalition root for here? Class actions and trial lawyers are just as much tools of Satan as is gambling. Here’s John Giles on the Race Course case:

Gambling opponent John Giles, president of Christian Action Alabama, praised the ruling.

“We maintained from day one the sweepstakes gambling operations were unconstitutional and illegal,” Giles said.

But here’s Giles on trial lawyers:

Trial lawyers are one of the biggest threats to the erosion of our U.S. Constitution, traditional family values and religious freedoms in Alabama and America today.

Another Reason For The Delay In Exxon Mobil

October 31, 2006

The background is here.

The conspiracy theory is that the state supremes are waiting until after the election to release the opinion because they lose no matter who wins the appeal. Affirming the amount of punitive damages awarded at trial will hack off their big money political donors. Cutting the damages will leave them open to accusations of being corporate tools.

I suggested that the delay is a result of the “law” governing punitive damages. It’s a completely subjective standard applied to a factually complex case, and so it should not surprise us that it has taken this long from nine individuals to agree on a result.

I forgot about it when I put that post up, but there is yet another possible reason for the delay. Scotus has before it this term a major case on punitive damages. Perhaps, anticipating an important new holding, the state supremes are waiting for it before making their own decision. If that’s the situation, the reports about the Scotus case indicate it may be some time before our state supremes decide Exxon Mobil.

Interesting Quote

October 23, 2006

From a 1944 Alabama Supreme Court decision, Alabama State Federation of Labor v. McAdory, 18 So.2d 810, 815 (Ala. 1944):  

legislative power is not derived either from the state or federal constitutions. These instruments are only limitations upon the power. Apart from limitations imposed by these fundamental charters of government, the power of the legislature has no bounds and is as plenary as that of the British Parliament.

That quote is the source of the court’s oft-mentioned strong presumption that legislative acts are constitutional.

The Supremes And Exxon-Mobile

October 17, 2006

The background:

Back during the administration of Republican Gov. Fob James, who served from 1995-1999, the state filed suit against Exxon Mobil claiming the company had cheated the state out of $1 billion in natural-gas royalties.

Once the case was tried, the state won, and the jury awarded it $11.9 billion – that’s right, billion. The judge who heard the case decided the amount was excessive and reduced it to $3.6 billion. Exxon Mobil said it was still excessive and pursued its appeal anyway. (Even at $3.6 billion, it was the highest award in state history.)

The case ended up in the Alabama Supreme Court three years ago, with the last brief filed more than a year ago. And still there is no word if the high court will even order oral arguments in the case.

The question in the news this morning:

Five of the nine justices on the all-Republican Supreme Court are up for election this year. Some people are beginning to question whether the Supreme Court is stalling because a ruling in favor of Exxon Mobil might anger the average voter and a ruling in favor of the state might upset business interests that contribute heavily to Republican incumbents.

Maybe the delay is political. We treat judges like politicians, so it ought not surprise us if they act like politicians. You reap what you sow. But let me offer another explanation.

What happened in this case is that the jury found in favor of Alabama and then did two things: Awarded Alabama the amount of money Alabama actually lost - 1 billion dollars – and, to deter future misconduct, also imposed 12 billion in punitive damages. (The trial court reduced the punitive damages to 3.6 billion.)

The issue now is whether the punitive damages were reasonable. That used to be a fairly straight forward matter of state law in which the appellate court would rubber stamp the results from the trial court. Scotus, however, changed all that in BMW v. Gore. Now punitive damage awards are subject to the limits of the due process clause. Justice Scalia dissented from that case, and this excerpt from his dissent may offer an explanation for the delay in the Exxon-Mobile case:

the Court identifies “[t]hree guideposts” that lead it to the conclusion that the award in this case is excessive: degree of reprehensibility, ratio between punitive award and plaintiff’s actual harm, and legislative sanctions provided for comparable misconduct. The legal significance of these “guideposts” is nowhere explored, but their necessary effect is to establish federal standards governing the hitherto exclusively state law of damages. . . .  

Of course it will not be easy for the States to comply with this new federal law of damages, no matter how willing they are to do so. In truth, the “guideposts” mark a road to nowhere; they provide no real guidance at all. As to “degree of reprehensibility” of the defendant’s conduct, we learn that “`nonviolent crimes are less serious than crimes marked by violence or the threat of violence,’”  and that “`trickery and deceit’” are “more reprehensible than negligence.” As to the ratio of punitive to compensatory damages, we are told that a “`general concer[n] of reasonableness . . . enter[s] into the constitutional calculus,’” – though even “a breathtaking 500 to 1″ will not necessarily do anything more than “`raise a suspicious judicial eyebrow.’” And as to legislative sanctions provided for comparable misconduct, they should be accorded “`substantial deference,’” ibid. One expects the Court to conclude: “To thine own self be true.”

These criss-crossing platitudes yield no real answers in no real cases. And it must be noted that the Court nowhere says that these three “guideposts” are the only guideposts; indeed, it makes very clear that they are not – explaining away the earlier opinions that do not really follow these “guideposts”  on the basis of additional factors, thereby “reiterat[ing] our rejection of a categorical approach.” In other words, even these utter platitudes, if they should ever happen to produce an answer, may be overridden by other unnamed considerations. The Court has constructed a framework that does not genuinely constrain, that does not inform state legislatures and lower courts – that does nothing at all except confer an artificial air of doctrinal analysis upon its essentially ad hoc determination that this particular award of punitive damages was not “fair.”

In short, whether or not an award satisfies the constitution is an entirely subjective matter. So what we have now is nine judges all applying their own personal views to the facts of the Exxon-Mobile case in an attempt to decide what the award should be. Good luck ever getting a decision.


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