On Remand from the U.S. Supreme Court, the Oregon Supreme Court Reinstates $75.9 Million Punitive Damages Award

Deven Desai

Deven Desai is an associate professor of law and ethics at the Scheller College of Business, Georgia Institute of Technology. He was also the first, and to date, only Academic Research Counsel at Google, Inc., and a Visiting Fellow at Princeton University’s Center for Information Technology Policy. He is a graduate of U.C. Berkeley and the Yale Law School. Professor Desai’s scholarship examines how business interests, new technology, and economic theories shape privacy and intellectual property law and where those arguments explain productivity or where they fail to capture society’s interest in the free flow of information and development. His work has appeared in leading law reviews and journals including the Georgetown Law Journal, Minnesota Law Review, Notre Dame Law Review, Wisconsin Law Review, and U.C. Davis Law Review.

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2 Responses

  1. Thought you might like to see this post from Stewart Weltman, who I work with.

    “In the Oregon case, the Supreme Court had reversed the punitive damage award because the jury instruction given by the trial court had instructed the jury to consider the harm caused by PM to people other than the plaintiff.

    “On remand, the Oregon Supreme Court affirmed the award – a ruling which on its face might seem like it was sticking a finger in the Supreme Court’s eye. But it wasn’t. The Oregon Supreme Court affirmed the award on the ground that the attorneys for PM had themselves proposed a jury instruction that was not in conformance Oregon law and thus they had no right under Oregon law to complain about the instruction that was ultimately used.

    To see entire post, check out: http://leanlitigation.typepad.com/weltman/2008/02/pigs-get-fed-ho.html

  2. Chris says:

    Here’s what I wrote at SCOTUSblog:

    Doesn’t seem right to me. The opinion turns on reading the proposed jury instruction (“Factors that you may find to bear upon the degree of reprehensibility include”) to contradict the statute (“Punitive damages, if any, shall be determined and awarded based upon the following criteria,” with a different list). But telling a jury that the factors it may consider include a bunch of stuff doesn’t suggest that they can’t consider anything else. What else would “include” mean? I also don’t see why the fact that the statute is mandatory, but the jury instruction is permissive, should matter–it was in fact true, after all, that among the factors the jury were permitted to consider were the ones listed in the instruction.

    Also, this stuff was unobjected-to when the instruction was offered, and if the plaintiff had made these objections at the trial, the defense could have suggested an alternative. Further, why not take the failure to object to the instruction as the plaintiff’s concession that she didn’t want to rely on the other statutory factors as reasons for more punitive damages? The paragraph at footnote five doesn’t cite anything at all. Maybe the “tipsy coachman” doctrine should apply here, but there seem to be pretty strong anti-sandbagging considerations against it.