Supreme Court to Oregon: Play Time is Over

Remember all those huge tobacco settlements? Those were the days… oh wait they’re still around! The Supreme Court recently heard arguments-for the third time-in a tobacco case stemming all the way from a 10 year old $79.5 million jury verdict against Philip Morris in Oregon. A lot has happened since then-Phillip Morris has changed its name, we’ve had three presidents, and the Oregon Supreme Court has twice thumbed its nose at United States Supreme Court rulings instructing Oregon to overturn the verdict. Naturally this doesn’t sit well with The Brethren.

The original $79.5 million in punitive damages was awarded in 1999 to the widow of a man who died from lung cancer. The suit alleged the usual cigarette company shenanigans: Phillip Morris denied smoking caused cancer, denied that it was addictive, and denied that the sky was blue. Since then, new punitive damage guidelines have been handed down and the Supreme Court has twice told the Oregon court to overturn the ruling. Oregon’s response? “Thanks for your concern but take a hike.”

Well that wasn’t exactly what they said, but it was close. The Oregon Supreme Court’s runaround is an exercise in what I see as classic judicial decision making; coming up with a ruling and then justifying it after the fact. Whether one agrees with a $79.5 million punitive damages award (most of which is interest), all too often I read cases where the argument is clearly tailored to satisfy the conclusion, not vice versa.

In this instance, the Supreme Court’s first argument that the damages award was excessive was ignored; the court said that the award met the limited criteria for exceeding Supreme Court standards and essentially ignored the ruling. The second time around when the ruling was challenged due to faulty jury instructions, Oregon said that the issue was state law and that the Supreme Court had no business sticking its nose where it didn’t belong. In both instances the Oregon Supreme Court could have made these things clear when it first heard the case, but of course didn’t bring them up until they were necessary to deflect the Supreme Court’s influence. At least that’s what Chief Justice Roberts thinks.

The third time is a charm (or so hopes Phillip Morris). The Supreme Court (the one that Oregon has to listen to) is now considering how to be a responsible parent and tell its children how to behave. The latest tactic would be re-examining the issue that got us here in the first place: excessive punitive damages that grossly outweigh actual damages. Chief Justice Roberts advanced the option as a way of avoiding making up a rule to ensure that state courts behave in the future, which would also operate as a very public rebuke of the Oregon justices.

The alternative would make Oregon the kids that ruined the party for everyone else, definitely ensuring the Oregon Supremes would be very unpopular during lunchtime recess.