High Court Sends Tobacco Case Back to Oregon Again

By Ashbel S. Green and Noelle Cromb, The Oregonian, Portland, Ore.

Feb. 20–The U.S. Supreme Court today sent a $79.5 million punitive damage against Philip Morris back to the Oregon court system for further review, ruling that the jury in the case had been given faulty instructions.

The 5-4 decision said the jury should not have considered the tobacco company’s conduct toward other smokers in determining how much it should be punished for the death of Jesse D. Williams, a former Portland janitor and longtime smoker.

It’s the second time the nation’s highest court has bounced the case back to the Oregon Supreme Court, which appears to have at least two options: reduce the size of the punitive damage award or order a new trial.

Carl Tobias, a professor at the University of Richmond School of Law, said he does not remember the last time the court took up the highly technical question of a jury instruction, and he said the ruling lends support to those who claim the majority is simply looking for ways to justify an outcome.

“The court is just making this up as it goes along,” Tobias said.

The Supreme Court did not split along the typical ideological lines.

The pro-business decision was written by Stephen Breyer, a Clinton appointee, and joined by President Bush’s two selections — John Roberts and Samuel Alito.

Meanwhile, the dissenters include the court’s long-standing conservative stalwarts — Clarence Thomas and Antonin Scalia — as well two of the more liberal members Ruth Bader Ginsberg and John Paul Stevens.

Williams, 67, died of lung cancer in 1997. His widow, Mayola, filed suit in Multnomah County on his behalf.

Lawyers for his family argued that a large punitive damage award was justified because Philip Morris officials had known for more than 50 years that smoking was deadly, had consistently downplayed the health risks and had manipulated the levels of nicotine to keep smokers addicted.

A jury in 1999 ordered Philip Morris to pay $821,486 in compensatory damages and $79.5 million in punitive damages.

Reached at home this morning, Williams’ widow Mayola said she had not heard about today’s decision. She declined to comment.

Philip Morris appealed but found no relief in the Oregon court system.

But the U.S. Supreme Court in 2003 ordered Oregon to re-evaluate the verdict to make sure the punitive damage award was not too large.

The Oregon courts reviewed the case again but ruled that Philip Morris’ deception about the dangers of smoking was so “reprehensible” that Williams’ family deserved the $79.5 million award.

In the majority opinion written by Breyer, the court said the verdict could not stand because the jury in the case was not instructed that it could punish Philip Morris only for the harm done to the plaintiff, not to other smokers whose cases were not before it.

States must “provide assurances that juries are not asking the wrong question . . . seeking, not simply to determine reprehensibility, but also to punish for harm caused strangers,” Breyer said.

The decision did not address whether the size of the award was constitutionally excessive, as Philip Morris had asked.

By Ashbel S. Green and Noelle Crombie

—–

To see more of The Oregonian, or to subscribe the newspaper, go to http://www.oregonian.com.

Copyright (c) 2007, The Oregonian, Portland, Ore.

Distributed by McClatchy-Tribune Business News.

For reprints, email tmsreprints@permissionsgroup.com, call 800-374-7985 or 847-635-6550, send a fax to 847-635-6968, or write to The Permissions Group Inc., 1247 Milwaukee Ave., Suite 303, Glenview, IL 60025, USA.

MO,