PHILIP MORRIS USA v. WILLIAMS, PERSONAL REPRESENTATIVE OF ESTATE OF WILLIAMS, DECEASED
No. 05-1256
Supreme Court of the United States
Argued October 31, 2006-Decided February 20, 2007
549 U.S. 346
Andrew L. Frey argued the cause for petitioner. With him on the briefs were Andrew H. Schapiro, Lauren R. Goldman, Murray R. Garnick, Kenneth S. Geller, Evan M. Tager, William F. Gary, and Sharon A. Rudnick.
Robert S. Peck argued the cause for respondent. With him on the brief were Ned Miltenberg, Charles S. Tauman, James S. Coon, Raymond F. Thomas, William A. Gaylord, Maureen Leonard, and Kathryn H. Clarke.*
*Briefs of amici curiae urging reversal were filed for the Alliance of Automobile Manufacturers by H. Christopher Bartolomucci and John T. Whatley; for the American Tort Reform Association by Roy T. Englert, Jr., and Alan E. Untereiner; for the Chamber of Commerce of the United States of America by Jonathan D. Hacker, Robin S. Conrad, and Amar D. Sarwal; for the National Association of Manufacturers et al. by Gene C. Schaerr, Steffen N. Johnson, Linda T. Coberly, Jan S. Amundson, Quentin Riegel, and Donald D. Evans; for the National Association of Mutual Insurance Cos. et al. by Sheila L. Birnbaum, Barbara Wrubel, Douglas W. Dunham, Ellen P. Quackenbos, J. Stephen Zielezienski, David F. Snyder, and Allan J. Stein; for the Pacific Legal Foundation by Deborah J. La Fetra and Timothy Sandefur; for the Product Liability Advisory Council by Theodore B. Olson, Thomas H. Dupree, Jr., and Theodore J. Boutrous, Jr.; for R. J. Reynolds Tobacco Co. et al. by Meir Feder, Charles R. A. Morse, James T. Newsom, Donald B. Ayer, and Robert H. Klonoff; for the Washington Legal Foundation et al. by Arvin Maskin, Daniel J. Popeo, and Paul D. Kamenar; and for Steven L. Chanenson et al. by Robert D. Fox and John F. Gullace.
Briefs of amici curiae urging affirmance were filed for the State of Oregon et al. by Hardy Myers, Attorney General of Oregon, Peter Shepherd, Deputy Attorney General, Mary H. Williams, Solicitor General, and Janet A. Metcalf and Kaye E. McDonald, Assistant Attorneys General,
Briefs of amici curiae were filed for the Oregon Forest Industries Council et al. by Thomas W. Brown; for the Tobacco Control Legal Consortium et al. by Edward L. Sweda, Jr.; for Akhil Reed Amar et al. by Kenneth Chesebro, Michael J. Piuze, and Arthur McEvoy; and for A. Mitchell Polinsky et al. by Timothy Lynch.
JUSTICE BREYER delivered the opinion of the Court.
The question we address today concerns a large state-court punitive damages award. We are asked whether the Constitution‘s Due Process Clause permits a jury to base that award in part upon its desire to punish the defendant for harming persons who are not before the court (e. g., victims whom the parties do not represent). We hold that such an award would amount to a taking of “property” from the defendant without due process.
I
This lawsuit arises out of the death of Jesse Williams, a heavy cigarette smoker. Respondent, Williams’ widow, represents his estate in this state lawsuit for negligence and deceit against Philip Morris, the manufacturer of Marlboro, the brand that Williams favored. A jury found that Williams’ death was caused by smoking; that Williams smoked in significant part because he thought it was safe to do so;
The trial judge subsequently found the $79.5 million punitive damages award “excessive,” see, e. g., BMW of North America, Inc. v. Gore, 517 U. S. 559 (1996), and reduced it to $32 million. Both sides appealed. The Oregon Court of Appeals rejected Philip Morris’ arguments and restored the $79.5 million jury award. Subsequently, Philip Morris sought review in the Oregon Supreme Court (which denied review) and then here. We remanded the case in light of State Farm Mut. Automobile Ins. Co. v. Campbell, 538 U. S. 408 (2003). 540 U. S. 801 (2003). The Oregon Court of Appeals adhered to its original views. And Philip Morris sought, and this time obtained, review in the Oregon Supreme Court.
Philip Morris then made two arguments relevant here. First, it said that the trial court should have accepted, but did not accept, a proposed “punitive damages” instruction that specified the jury could not seek to punish Philip Morris for injury to other persons not before the court. In particular, Philip Morris pointed out that the plaintiff‘s attorney had told the jury to “think about how many other Jesse Williams in the last 40 years in the State of Oregon there have been.... In Oregon, how many people do we see outside, driving home ... smoking cigarettes? ... [C]igarettes ... are going to kill ten [of every hundred]. [And] the market share of Marlboros [i. e., Philip Morris] is one-third [i. e., one of every three killed].” App. 197a, 199a. In light of this argument, Philip Morris asked the trial court to tell the jury that “you may consider the extent of harm suffered by others in determining what [the] reasonable relationship is” be-
Second, Philip Morris pointed to the roughly 100-to-1 ratio the $79.5 million punitive damages award bears to $821,000 in compensatory damages. Philip Morris noted that this Court in BMW emphasized the constitutional need for punitive damages awards to reflect (1) the “reprehensibility” of the defendant‘s conduct, (2) a “reasonable relationship” to the harm the plaintiff (or related victim) suffered, and (3) the presence (or absence) of “sanctions,” e. g., criminal penalties, that state law provided for comparable conduct, 517 U. S., at 575-585. And in State Farm, this Court said that the longstanding historical practice of setting punitive damages at two, three, or four times the size of compensatory damages, while “not binding,” is “instructive,” and that “[s]ingle-digit multipliers are more likely to comport with due process.” 538 U. S., at 425. Philip Morris claimed that, in light of this case law, the punitive award was “grossly excessive.” See TXO Production Corp. v. Alliance Resources Corp., 509 U. S. 443, 458 (1993) (plurality opinion); BMW, supra, at 574-575; State Farm, supra, at 416-417.
The Oregon Supreme Court rejected these and other Philip Morris arguments. In particular, it rejected Philip Morris’ claim that the Constitution prohibits a state jury
Philip Morris then sought certiorari. It asked us to consider, among other things, (1) its claim that Oregon had unconstitutionally permitted it to be punished for harming nonparty victims; and (2) whether Oregon had in effect disregarded “the constitutional requirement that punitive damages be reasonably related to the plaintiff‘s harm.” Pet. for Cert. (I). We granted certiorari limited to these two questions.
For reasons we shall set forth, we consider only the first of these questions. We vacate the Oregon Supreme Court‘s judgment, and we remand the case for further proceedings.
II
This Court has long made clear that “[p]unitive damages may properly be imposed to further a State‘s legitimate interests in punishing unlawful conduct and deterring its repetition.” BMW, supra, at 568. See also Gertz v. Robert Welch, Inc., 418 U. S. 323, 350 (1974); Newport v. Fact Concerts, Inc., 453 U. S. 247, 266-267 (1981); Pacific Mut. Life Ins. Co. v. Haslip, 499 U. S. 1, 22 (1991). At the same time, we have emphasized the need to avoid an arbitrary determination of an award‘s amount. Unless a State insists upon proper standards that will cabin the jury‘s discretionary authority, its punitive damages system may deprive a defendant of “fair notice ... of the severity of the penalty that a State may impose,” BMW, supra, at 574; it may threaten “arbitrary punishments,” i. e., punishments that reflect not an “application of law” but “a decisionmaker‘s caprice,” State Farm, supra, at 416, 418 (internal quotation marks omitted); and, where the amounts are sufficiently large, it may impose one State‘s (or one jury‘s) “policy choice,” say, as to the condi-
For these and similar reasons, this Court has found that the Constitution imposes certain limits, in respect both to procedures for awarding punitive damages and to amounts forbidden as “grossly excessive.” See Honda Motor Co. v. Oberg, 512 U. S. 415, 432 (1994) (requiring judicial review of the size of punitive awards); Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U. S. 424, 443 (2001) (review must be de novo); BMW, supra, at 574-585 (excessiveness decision depends upon the reprehensibility of the defendant‘s conduct, whether the award bears a reasonable relationship to the actual and potential harm caused by the defendant to the plaintiff, and the difference between the award and sanctions “authorized or imposed in comparable cases“); State Farm, supra, at 425 (excessiveness more likely where ratio exceeds single digits). Because we shall not decide whether the award here at issue is “grossly excessive,” we need now only consider the Constitution‘s procedural limitations.
III
In our view, the Constitution‘s Due Process Clause forbids a State to use a punitive damages award to punish a defendant for injury that it inflicts upon nonparties or those whom they directly represent, i. e., injury that it inflicts upon those who are, essentially, strangers to the litigation. For one thing, the Due Process Clause prohibits a State from punishing an individual without first providing that individual with “an opportunity to present every available defense.” Lindsey v. Normet, 405 U. S. 56, 66 (1972) (internal quotation marks omitted). Yet a defendant threatened with punishment for injuring a nonparty victim has no opportunity to defend against the charge, by showing, for example in a case such as this, that the other victim was not entitled to dam-
For another, to permit punishment for injuring a nonparty victim would add a near standardless dimension to the punitive damages equation. How many such victims are there? How seriously were they injured? Under what circumstances did injury occur? The trial will not likely answer such questions as to nonparty victims. The jury will be left to speculate. And the fundamental due process concerns to which our punitive damages cases refer-risks of arbitrariness, uncertainty, and lack of notice-will be magnified. State Farm, 538 U. S., at 416, 418; BMW, 517 U. S., at 574.
Finally, we can find no authority supporting the use of punitive damages awards for the purpose of punishing a defendant for harming others. We have said that it may be appropriate to consider the reasonableness of a punitive damages award in light of the potential harm the defendant‘s conduct could have caused. But we have made clear that the potential harm at issue was harm potentially caused the plaintiff. See State Farm, supra, at 424 (“[W]e have been reluctant to identify concrete constitutional limits on the ratio between harm, or potential harm, to the plaintiff and the punitive damages award” (emphasis added)). See also TXO, 509 U. S., at 460-462 (plurality opinion) (using same kind of comparison as basis for finding a punitive award not unconstitutionally excessive). We did use the term “error-free” (in BMW) to describe a lower court punitive damages calculation that likely included harm to others in the equation. 517 U. S., at 568, n. 11. But context makes clear that the term “error-free” in the BMW footnote referred to errors relevant to the case at hand. Although elsewhere in BMW we noted that there was no suggestion that the plaintiff “or any other BMW purchaser was threatened with any additional potential harm” by the defendant‘s conduct, we did not purport to decide the question of harm to others. Id., at 582. Rather, the opinion appears to have left the question open.
Given the risks of unfairness that we have mentioned, it is constitutionally important for a court to provide assurance that the jury will ask the right question, not the wrong one. And given the risks of arbitrariness, the concern for adequate notice, and the risk that punitive damages awards can, in practice, impose one State‘s (or one jury‘s) policies (e. g., banning cigarettes) upon other States-all of which accompany awards that, today, may be many times the size of such awards in the 18th and 19th centuries, see id., at 594-595 (BREYER, J., concurring)-it is particularly important that States avoid procedure that unnecessarily deprives juries of proper legal guidance. We therefore conclude that the Due Process Clause requires States to provide assurance that juries are not asking the wrong question, i. e., seeking, not simply to determine reprehensibility, but also to punish for harm caused strangers.
IV
Respondent suggests as well that the Oregon Supreme Court, in essence, agreed with us, that it did not authorize punitive damages awards based upon punishment for harm caused to nonparties. We concede that one might read some
The instruction that Philip Morris said the trial court should have given distinguishes between using harm to others as part of the “reasonable relationship” equation (which it would allow) and using it directly as a basis for punishment. The instruction asked the trial court to tell the jury that “you may consider the extent of harm suffered by others in determining what [the] reasonable relationship is” between Philip Morris’ punishable misconduct and harm caused to Jesse Williams, “[but] you are not to punish the defendant for the impact of its alleged misconduct on other persons, who may bring lawsuits of their own in which other juries can resolve their claims....” App. 280a (emphasis added). And as the Oregon Supreme Court explicitly recognized, Philip Morris argued that the Constitution “prohibits the state, acting through a civil jury, from using punitive damages to punish a defendant for harm to nonparties.” 340 Ore., at 51-52, 127 P. 3d, at 1175.
The court rejected that claim. In doing so, it pointed out (1) that this Court in State Farm had held only that a jury could not base its award upon “dissimilar” acts of a defendant. 340 Ore., at 52-53, 127 P. 3d, at 1175-1176. It added (2) that “[i]f a jury cannot punish for the conduct, then it is difficult to see why it may consider it at all.” Id., at 52, n. 3, 127 P. 3d, at 1175, n. 3. And it stated (3) that “[i]t is unclear to us how a jury could ‘consider’ harm to others, yet withhold that consideration from the punishment calculus.” Ibid.
The Oregon court‘s first statement is correct. We did not previously hold explicitly that a jury may not punish for the
The Oregon court‘s third statement raises a practical problem. 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 particular, 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.
V
As the preceding discussion makes clear, we believe that the Oregon Supreme Court applied the wrong constitutional standard when considering Philip Morris’ appeal. We remand this case so that the Oregon Supreme Court can apply
It is so ordered.
JUSTICE STEVENS, dissenting.
The Due Process Clause of the Fourteenth Amendment imposes both substantive and procedural constraints on the power of the States to impose punitive damages on tortfeasors. See State Farm Mut. Automobile Ins. Co. v. Campbell, 538 U. S. 408 (2003); Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U. S. 424 (2001); BMW of North America, Inc. v. Gore, 517 U. S. 559 (1996); Honda Motor Co. v. Oberg, 512 U. S. 415 (1994); TXO Production Corp. v. Alliance Resources Corp., 509 U. S. 443 (1993). I remain firmly convinced that the cases announcing those constraints were correctly decided. In my view the Oregon Supreme Court faithfully applied the reasoning in those opinions to the egregious facts disclosed by this record. I agree with JUSTICE GINSBURG‘s explanation of why no procedural error even arguably justifying reversal occurred at the trial in this case. See post, p. 362 (dissenting opinion).
Of greater importance to me, however, is the Court‘s imposition of a novel limit on the State‘s power to impose punishment in civil litigation. Unlike the Court, I see no reason why an interest in punishing a wrongdoer “for harming persons who are not before the court,” ante, at 349, should not be taken into consideration when assessing the appropriate sanction for reprehensible conduct.
Whereas compensatory damages are measured by the harm the defendant has caused the plaintiff, punitive damages are a sanction for the public harm the defendant‘s con-
In the case before us, evidence attesting to the possible harm the defendant‘s extensive deceitful conduct caused other Oregonians was properly presented to the jury. No evidence was offered to establish an appropriate measure of damages to compensate such third parties for their injuries, and no one argued that the punitive damages award would serve any such purpose. To award compensatory damages to remedy such third-party harm might well constitute a taking of property from the defendant without due process, cf. ante, at 349. But a punitive damages award, instead of serving a compensatory purpose, serves the entirely different purposes of retribution and deterrence that underlie every criminal sanction. State Farm, 538 U. S., at 416. This justification for punitive damages has even greater salience when, as in this case, see
While apparently recognizing the novelty of its holding, ante, at 356-357, the majority relies on a distinction between taking third-party harm into account in order to assess the reprehensibility of the defendant‘s conduct-which is permitted-and doing so in order to punish the defendant “directly“-which is forbidden. Ante, at 355. This nuance eludes me. When a jury increases a punitive damages award because injuries to third parties enhanced the reprehensibility of the defendant‘s conduct, the jury is by definition punishing the defendant-directly-for third-party harm.2 A murderer who kills his victim by throwing a bomb that injures dozens of bystanders should be punished more severely than one who harms no one other than his intended victim. Similarly, there is no reason why the measure of the appropriate punishment for engaging in a campaign of deceit in distributing a poisonous and addictive substance to thousands of cigarette smokers statewide should not include consideration of the harm to those “bystanders” as well as the harm to the individual plaintiff. The Court endorses a contrary conclusion without providing us with any reasoned justification.
It is far too late in the day to argue that the Due Process Clause merely guarantees fair procedure and imposes no2
Essentially for the reasons stated in the opinion of the Supreme Court of Oregon, I would affirm its judgment.
JUSTICE THOMAS, dissenting.
I join JUSTICE GINSBURG‘s dissent in full. I write separately to reiterate my view that “the Constitution does not constrain the size of punitive damages awards.” State Farm Mut. Automobile Ins. Co. v. Campbell, 538 U. S. 408, 429-430 (2003) (THOMAS, J., dissenting) (quoting Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U. S. 424, 443 (2001) (THOMAS, J., concurring)). It matters not that the Court styles today‘s holding as “procedural” because the “procedural” rule is simply a confusing implementation of the substantive due process regime this Court has created for punitive damages. See Pacific Mut. Life Ins. Co. v. Haslip, 499 U. S. 1, 26-27 (1991) (SCALIA, J., concurring in judgment) (“In 1868 ... punitive damages were undoubtedly an established part of the American common law of torts. It is ... clear that no particular procedures were deemed necessary to circumscribe a jury‘s discretion regarding the award of such damages, or their amount“). Today‘s opinion proves once again that this Court‘s punitive damages jurisprudence is “insusceptible of principled application.” BMW of North America, Inc. v. Gore, 517 U. S. 559, 599 (1996) (SCALIA, J.,
JUSTICE GINSBURG, with whom JUSTICE SCALIA and JUSTICE THOMAS join, dissenting.
The purpose of punitive damages, it can hardly be denied, is not to compensate, but to punish. Punish for what? Not for harm actually caused “strangers to the litigation,” ante, at 353, the Court states, but for the reprehensibility of defendant‘s conduct, ante, at 355. “[C]onduct that risks harm to many,” the Court observes, “is likely more reprehensible than conduct that risks harm to only a few.” Ante, at 357. The Court thus conveys that, when punitive damages are at issue, a jury is properly instructed to consider the extent of harm suffered by others as a measure of reprehensibility, but not to mete out punishment for injuries in fact sustained by nonparties. Ante, at 355-357. The Oregon courts did not rule otherwise. They have endeavored to follow our decisions, most recently in BMW of North America, Inc. v. Gore, 517 U. S. 559 (1996), and State Farm Mut. Automobile Ins. Co. v. Campbell, 538 U. S. 408 (2003), and have “deprive[d] [no jury] of proper legal guidance,” ante, at 355. Vacation of the Oregon Supreme Court‘s judgment, I am convinced, is unwarranted.
The right question regarding reprehensibility, the Court acknowledges, ante, at 356, would train on “the harm that Philip Morris was prepared to inflict on the smoking public at large.” Ibid. (quoting 340 Ore. 35, 51, 127 P. 3d 1165, 1175 (2006)). See also id., at 55, 127 P. 3d, at 1177 (“[T]he jury, in assessing the reprehensibility of Philip Morris‘s actions, could consider evidence of similar harm to other Oregonians caused (or threatened) by the same conduct.” (emphasis added)). The Court identifies no evidence introduced and no charge delivered inconsistent with that inquiry.
The Court‘s order vacating the Oregon Supreme Court‘s judgment is all the more inexplicable considering that Philip
“If you determine that some amount of punitive damages should be imposed on the defendant, it will then be your task to set an amount that is appropriate. This should be such amount as you believe is necessary to achieve the objectives of deterrence and punishment. While there is no set formula to be applied in reaching an appropriate amount, I will now advise you of some of the factors that you may wish to consider in this connection.
“(1) The size of any punishment should bear a reasonable relationship to the harm caused to Jesse Williams by the defendant‘s punishable misconduct. Although you may consider the extent of harm suffered by others in determining what that reasonable relationship is, you are not to punish the defendant for the impact of its alleged misconduct on other persons, who may bring lawsuits of their own in which other juries can resolve their claims and award punitive damages for those harms, as such other juries see fit.
“(2) The size of the punishment may appropriately reflect the degree of reprehensibility of the defendant‘s conduct-that is, how far the defendant has departed from accepted societal norms of conduct.” App. 280a.
Under that charge, just what use could the jury properly make of “the extent of harm suffered by others“? The answer slips from my grasp. A judge seeking to enlighten rather than confuse surely would resist delivering the requested charge.
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For the reasons stated, and in light of the abundant evidence of “the potential harm [Philip Morris‘] conduct could have caused,” ante, at 354 (emphasis deleted), I would affirm the decision of the Oregon Supreme Court.