TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW EMMA JOSEPHINE MALONEY MARTIN, Individually and as Personal Representative of the Heirs and Estate of JAMES HUBERT MARTIN, Deceased; and BRUCE DEAN MARTIN, the Plaintiffs in the above-entitled and numbered cause (hereinafter collectively referred to as “Plaintiff”), and respectfully file and submit this their Response in Opposition to Georgia-Pacific’s Motion in Limine to Exclude Evidence and Argument Seeking (1) to Punish Georgia-Pacific for Alleged Wrongs to Other Persons, (2) to Punish Georgia-Pacific for Conduct Unrelated to the Conduct That Allegedly Harmed the Plaintiff, or (3) an Award of Punitive Damages Disproportionate to Plaintiff’s Actual Damages, and, in support thereof, would respectfully show the Court the following:
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INTRODUCTION
Defendant Georgia-Pacific Corporation (“G-P”) has filed a motion in limine to exclude at trial a number of categories of evidence and/or comments relevant to punitive damages. Defendant’s Motion is purportedly based on the United States Supreme Court’s 2003 ruling in State Farm Mutual Insurance Co. v. Campbell, 538 U.S. 408 (2003), in which the Court struck down as unconstitutionally excessive a punitive award of $145 million on a $2.6 million compensatory award.[1] 538 U.S. at 415. The Court’s de novo review of the evidence in Campbell disclosed that the jury’s award was based not on the defendant insurer’s conduct toward the plaintiffs, but on the insurer’s nationwide practice concerning the payment of claims generally, conduct that bore no relation to the type of conduct inflicted on the Utah plaintiffs, and conduct that was not even unlawful in many of the states in which it was practiced. 538 U.S. at 420. As the Court noted:
[Plaintiffs] have identified scant evidence of repeated misconduct of the sort that injured them. Nor does our review of the Utah courts’ decisions convince us that [Defendant] was only punished for its actions toward [Plaintiffs]. Although evidence of other acts need not be identical to have relevance in the calculation of punitive damages, the Utah court erred here because evidence pertaining to claims that had nothing to do with a third-party lawsuit was introduced at length.
538 U.S. at 423-24 (emphasis added).
The concerns addressed in the Campbell decision simply are not present here. In the instant case, Plaintiff seeks only to introduce evidence of G-P’s “repeated misconduct of the sort that injured” her decedent and her family. Id. Further, the excessively large punitive award considered by the Court in Campbell, and in the Court’s decisions preceding it,[2] simply could not happen in Texas, where the legislature has enacted a detailed statutory scheme to guard against the handsome punitive awards so often considered by the Court. See, e.g., Tex. Civ. Prac. & Rem. Code § 41.001, et seq. Indeed, G-P could only feel safer with the elimination of punitive damages entirely. But the forum in which G-P would best lobby for that protection is the Texas legislature, not this Court.
Texas law affords G-P every conceivable safeguard, and Plaintiff each corresponding obstacle. Exemplary damages must be proven by clear and convincing evidence. Tex. Civ. Prac. & Rem. Code § 41.003. Evidence limited to punitive damages is not heard until the second phase of a bifurcated trial. Tex. Civ. Prac. & Rem. Code § 41.009. Punitive damages may not be considered in the first instance unless a unanimous jury awards actual damages on an underlying claim and unanimously finds liability on the punitive claim and then, the amount of any punitive award must also be by unanimous vote. See January 27, 2005 Amendments to Part III of the Jury Instructions Prescribed under Rule 226a, Texas Rules of Civil Procedure. The jury is to follow specific guidelines in making any punitive award, guidelines that parallel the factors enumerated by the Court in Campbell. Tex. Civ. Prac. & Rem. Code § 41.011.[3] Finally, for safe measure, any punitive award is capped – unbeknownst to the jury – at modest ratios of 2:1 for economic damages and 1:1 for noneconomic damages, again with a further internal cap of those damages. Tex. Civ. Prac. & Rem. Code § 41.008. Under Texas law, then, Defendant is granted even greater protection than that afforded by the U.S. Constitution, as the Supreme Court has repeatedly “rejected the notion that the constitutional line is marked by a simple mathematical formula. . . .” BMW of North America, Inc. v. Gore, 517 U.S. 559, 582 (U.S. 1996). Indeed, the Court has even suggested that where a state has in place a system of caps on punitive awards, de novo review as required in Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 440 n.13 (U.S. 2001) might be unnecessary entirely. While G-P is entitled to every protection offered under Texas and federal law, it is not entitled to more. Defendant’s motion in limine should be denied.
ARGUMENT
G-P primarily identifies two very broad categories of evidence that it wishes to hide from the jury: evidence of its financial condition and evidence concerning its conduct regarding any product other than the exact products to which Plaintiff’s decedent was exposed.[4] Specifically,
G-P complains that the jury should not hear evidence or remarks concerning Defendant’s net worth, sales, profits, size, status or immunity from bankruptcy.[5] G-P Memorandum at 3-4, 9-10. Defendant’s assertion is unsupported by State Farm Mutual Insurance Co. v. Campbell, 538 U.S. 408, 423-24 (2003), and is in direct conflict with Tex. Civ. Prac. & Rem. Code § 41.011(a)(6). It is true that the Court in Campbell held that “[t]he wealth of a defendant cannot justify an otherwise unconstitutional punitive damages award.” 538 U.S. at 427. But it is not true, though such is claimed by G-P, that the Court even suggested that admission of evidence concerning a defendant’s financial status is improper. G-P Memorandum at 8. To the contrary, the Court expressly held in Campbell what Justice Breyer had earlier observed in Gore, that the use of such evidence is not “unlawful or inappropriate.” 538 U.S. at 428, quoting BMW of North America, Inc. v. Gore, 517 U.S. 559, 591 (U.S. 1996) (Breyer, J., concurring). Indeed, Justice Breyer recognized in Gore the obvious relevance of a defendant’s financial condition to a determination of punitive damages: “Since a fixed dollar award will punish a poor person more than a wealthy one, one can understand the relevance of this factor to the State’s interest in retribution. . . .” Id. Thus, there is nothing in any of the Court’s rulings on the punitive damages question to support G-P’s motion to exclude evidence of its financial well being.
Concomitantly, there is no justification for this Court to defy the governing Texas statute on the matter. Though G-P expresses its fear that Plaintiff might attempt to introduce such evidence “in the phase of the trial dealing with liability for compensatory damages,” G-P Memorandum at 2, Defendant knows well that such is forbidden by Tex. Civ. Prac. & Rem. Code § 41.011 which provides that in determining the amount of punitive damages, the jury “shall” consider evidence of several factors, including the net worth of the defendant, and that “[e]vidence that is relevant only to the amount of exemplary damages that may be awarded is not admissible during the first phase of a bifurcated trial.” § 41.011(a)(6) and (b). The Texas legislature has already anticipated Defendant’s expressed fear and has acted to allay its concerns. Though G-P’s financial condition is relevant, the evidence of Defendant’s worth is not admissible until the second phase of the trial, after the jury has unanimously found liability for an exemplary award. Defendant has shown no cause for departure from this well established statutory Texas procedure.
G-P also seeks to prevent the jury from hearing evidence or comments concerning conduct by G-P regarding any of its products other than the specific products to which Plaintiff’s decedent was exposed.[6] G-P Memorandum at 3-4, 9-10. Defendant’s website reveals that it is the manufacturer of any number of products, other than asbestos products, including paper cups, napkin dispensers and air fresheners.[7] Plaintiff readily concedes that evidence of Defendant’s wrongful conduct regarding those products is not relevant in this case, and Plaintiff avers to the Court and Defendant that she will not attempt to bring evidence of any such misconduct before the jury.
This is not so, however, for evidence of G-P’s misconduct concerning its asbestos products similar to those to which Plaintiff’s decedent was exposed. Such evidence is plainly relevant to liability issues in the case and to the question of punitive damages. Evidence of previous incidents, events, claims or citations concerning G-P’s manufacture, marketing or sale of asbestos containing products may be used to establish Defendant’s awareness of the hazards posed by its products. Houston, E. & W.T. Ry. Co. v. Richards, 49 S.W. 687, 689 (Tex. Civ. App. – Galveston 1899, no writ.) (previous events admissible to show knowledge of defendant); see also Firestone Tire & Rubber Co. v. Battle, 745 S.W.2d 909, 912 (Tex. App. – Houston [1st Dist.] 1988, writ denied) (similar incidents admissible to prove the manufacturer knew the dangerous nature of a product, to evaluate the magnitude of the danger, to determine the adequacy of a warning, and to prove conscious indifference to a known danger), and Jackson v. Johns-Manville Sales Corp., 750 F.2d 1314, 1318 (5th Cir. 1985) (knowledge that asbestos exposure “is likely to cause harm to one group of workers is at least suggestive of the fact that other groups of workers who are also exposed to asbestos fibers face similar dangers.”)
In addition, evidence of previous events that establish G-P’s knowledge of the hazards of asbestos may be relevant to the imposition of punitive damages. John Deere Co. v. May, 773 S.W.2d 369, 373 (Tex. App. – Waco 1989, writ denied) (exemplary damages appropriate where 34 previous incidents showing knowledge were admitted into evidence); see also Wammock v. Celotex Corp., 835 F.2d 818, 822 (11th Cir. 1988) (evidence that defendant knew of asbestos hazards faced by miners and plant workers supported punitive damage award for an end-user carpenter). Evidence of the extent of G-P’s knowledge of the hazards of asbestos is also relevant to the issue of whether Defendant acted with “conscious indifference” to the harm its own asbestos products would cause. See Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex. 1998). Evidence of other related acts by G-P, such as its response to government standards, for example, has been held directly relevant to show a defendant’s conscious indifference. Kraus v. Alamo Nat. Bank of San Antonio, 586 S.W.2d 202, 207 (Tex. Civ. App. – Waco 1979), aff’d, Alamo Nat. Bank v. Kraus, 616 S.W.2d 908 (Tex. 1981) (holding that evidence that defendant “willfully ignored” OSHA regulations was evidence of “conscious indifference” that justified punitive damages for injury to non-employee bystander).
Indeed, such relevance was expressly noted by the U.S. Supreme Court in Campbell, the chief authority on which G-P’s motion is based. In Campbell, the Court recognized that repeated similar misconduct is relevant to the jury’s determination of the reprehensibility of the defendant’s conduct:
Although “[o]ur holdings that a recidivist may be punished more severely than a first offender recognize that repeated misconduct is more reprehensible than an individual instance of malfeasance,” Gore, supra, at 577, 116 S.Ct. 1589, in the context of civil actions courts must ensure the conduct in question replicates the prior transgressions. TXO, 509 U.S., at 462, n. 28, 113 S.Ct. 2711 (noting that courts should look to “‘the existence and frequency of similar past conduct’” (quoting Haslip, 499 U.S., at 21-22, 111 S.Ct. 1032)).
538 U.S. at 423. In fact, the Court had previously observed the same in Gore: “Certainly, evidence that a defendant has repeatedly engaged in prohibited conduct while knowing or suspecting that it was unlawful would provide relevant support for an argument that strong medicine is required to cure the defendant's disrespect for the law. . . . Our holdings that a recidivist may be punished more severely than a first offender recognize that repeated misconduct is more reprehensible than an individual instance of malfeasance.” 517 U.S. at 576-77 (citations omitted).
The problem with the plaintiff’s evidence of previous conduct in Campbell was that it pertained to dissimilar misconduct by the defendant insurer, as expressly noted by the Court:
[Plaintiffs] have identified scant evidence of repeated misconduct of the sort that injured them. Nor does our review of the Utah courts’ decisions convince us that [Defendant] was only punished for its actions toward [Plaintiffs]. Although evidence of other acts need not be identical to have relevance in the calculation of punitive damages, the Utah court erred here because evidence pertaining to claims that had nothing to do with a third-party lawsuit was introduced at length.
Id. at 423-24. The Court therefore determined that, “because [Plaintiffs] have shown no conduct by [Defendant] similar to that which harmed them, the conduct that harmed them is the only conduct relevant to the reprehensibility analysis.” Id. at 424.
Unlike the evidence at issue in Campbell, the evidence Plaintiff intends to offer here will show that G-P continually received and ignored abundant information concerning the dangers of the asbestos used in its products. Further, in the face of such knowledge, G-P continued to manufacture, market and sell asbestos products – similar and identical to those to which Plaintiff’s decedent was exposed – without an adequate warning and in conscious indifference to the harm its products would cause. Campbell’s condemnation of the admission of evidence concerning a defendant’s dissimilar misconduct simply has no application here, where G-P repeated the precise same misconduct over and over and over again. Evidence and comments concerning G-P’s conduct in the manufacture, marketing and sale of its asbestos products is relevant and admissible under the standards set forth in Campbell and under those long followed in Texas.
CONCLUSION
WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully requests that Georgia-Pacific’s Motion in Limine to Exclude Evidence and Argument Seeking (1) to Punish Georgia-Pacific for Alleged Wrongs to Other Persons, (2) to Punish Georgia-Pacific for Conduct Unrelated to the Conduct That Allegedly Harmed the Plaintiff, or (3) an Award of Punitive Damages Disproportionate to Plaintiff’s Actual Damages be denied in all respects.
Respectfully submitted,
- ↑ The awards were reduced to $25 million and $1 million respectively by the Utah Supreme Court. 538 U.S. at 415.
- ↑ See, e.g., Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424 (U.S. 2001); BMW of North America, Inc. v. Gore, 517 U.S. 559 (U.S. 1996).
- ↑ Tex. Civ. Prac. & Rem. Code § 41.011 provides: (a) In determining the amount of exemplary damages, the trier of fact shall consider evidence, if any, relating to: (1) the nature of the wrong; (2) the character of the conduct involved; (3) the degree of culpability of the wrongdoer; (4) the situation and sensibilities of the parties concerned; (5) the extent to which such conduct offends a public sense of justice and propriety; and (6) the net worth of the defendant. The factors outlined in Campbell focus on the same issues: “(1) the degree of reprehensibility of the defendant's misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.” 538 U.S. at 418.
- ↑ Defendant also suggests that Plaintiff should not be permitted to ask the jury for punitive damages based on harm to anyone other than the claimants in this lawsuit. In particular, G-P addresses two separate items: “statements concerning the number of persons other than Plaintiff who allegedly were harmed by such products;” and, “awarding punitive damages for the purpose of punishing, or sufficient in amount to punish, Georgia-Pacific for a ‘nationwide pattern of wrongful conduct,’ or ‘on behalf of all persons who used or were injured by’ the products at issue, or ‘to send a message across the country,’ or any similar statements suggesting that the amount of punitive damages should be based on alleged wrongdoing to, or injury incurred by, persons other than Plaintiff.” G-P’s Memorandum at 2-3. Plaintiff does not intend to seek punitive damages for the harm caused by G-P’s wrongful conduct to others. This is therefore not an issue. To the extent that G-P seeks to exclude evidence of its similar wrongful conduct toward others, however, G-P is simply wrong, as discussed infra, given the plain relevance of such evidence to the reprehensibility of G-P’s conduct.
- ↑ G-P’s Motion itemized the following:
Statements concerning Georgia-Pacific’s sales volume, gross income, or profit from the sale of the products at issue to persons other than Plaintiff;
Statements concerning Georgia-Pacific’s net worth, market capitalization or other measurements of alleged wealth or ability to pay a large award;
- Awarding punitive damages based on Georgia-Pacific’s corporate size or status; and
- ↑ G-P specifically referenced the following related issues: Statements concerning any alleged intentional or unintentional wrongdoing by Georgia-Pacific with respect to any product manufactured, distributed, marketed, licensed, promoted, labeled, or sold by them, other than the products that allegedly harmed Plaintiff; Statements concerning alleged intentional or unintentional wrongdoing by Georgia-Pacific with respect to any alleged injury from the products at issue, other than the injury allegedly suffered by Plaintiff; Awarding punitive damages based on alleged acts, practices or omissions of Georgia-Pacific other than the conduct that allegedly injured Plaintiff; and Awarding punitive damages or any other basis, or in any amount, that would not bear a reasonable relationship to Plaintiff’s compensatory damages. G-P Memorandum at 3-4.
- ↑ See www.gp.com/products/index.html.