(Please note: the names and locations of all parties have been changed to protect the confidentiality of this wrongful death case and its proceedings.)
Defendant’s Bench Brief on the Relevance of “Dissimilar Conduct” Evidence to “Reprehensibility”
Plaintiff acknowledges, as she must, that there has been a sea change in the governing constitutional law since this case was tried in 2002. The United States Supreme Court has now held – and the California Supreme Court and the Court of Appeal for the Second District have recognized – that a jury in an individual lawsuit may not impose punitive damages to punish conduct that did not harm the plaintiff. (See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003); Philip Morris USA v. Williams, 549 U.S. 346 (2007); Johnson v. Ford Motor Co., 35 Cal. 4th 1191, 1203-04 (2005); Holdgrafer v. Unocal Corp., 160 Cal. App. 4th 907 (2008); M. v. Philip Morris USA Inc., 159 Cal. App. 4th 655, 701 (2008)).
Nevertheless, plaintiff claims that she is permitted to try the same case as she did in 2001 – when the proceedings were dominated by evidence of conduct that could not have harmed Nancy M. – because such evidence is relevant to demonstrate the reprehensibility of the conduct that did harm her. For plaintiff, reprehensibility has become a magic word: in her view, once a jury has determined that USA Tobacco harmed Ms. M., any arguably “reprehensible” conduct the company ever committed – no matter how tangentially related to Ms. M.’s actual injuries – can be paraded before the jury to underlie a claim for punitive damages.
But reprehensibility is not a magical incantation that allows in all bad company evidence. The jury’s task is to assess reprehensibility of the conduct that harmed the plaintiff, not the world at large. Plaintiff rarely cites actual case law in support of her that bears on reprehensibility argument. That is because the cases that discuss the relevance of this sort of evidence are all cases in which the appellate courts reversed – either by massively reducing punitive awards on appeal, or by granting new trials altogether.
Below, to demonstrate the likelihood of reversal if this Court does not properly control the nature and amount of evidence admitted under the guise of the reprehensibility analysis, we briefly discuss several recent cases – from the U.S. Supreme Court, California courts, and other lower courts throughout the country – in which plaintiffs have attempted similar tactics. Two basic principles are repeatedly applied in these cases.
First, the term course of conduct, see M., 159 Cal. App. 4th at 701, must be defined narrowly: courts, following the strictures of due process and the rules of evidence, have repeatedly rejected plaintiffs’ attempts to introduce a broad range of conduct evidence on the theory that the defendant’s other acts were part and parcel of some general corporate policy that led to the plaintiffs injuries.
Second, and relatedly, other-acts evidence should not become the tail that wags the dog: the admission of such evidence is particularly improper when it is the centerpiece of the plaintiffs punitive damages case. (Holdgrafer, supra, 160 Cal. App. 4th at 934.)
The critical cases establishing these principles are discussed below. (See Part 2 of 7.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.