Ninth Circuit Chunks $52 Million Punitive Award

Court also provides guidance on evidence and instructions.

In 1999, a Ford F-350 pickup truck rolled over three-year-old Walter White in his driveway.  He died.  His parents sued.  The jury awarded $2,305,435 in actual damages plus $150,884,400 in punitives.  The Ninth Circuit affirmed the compensatory part but reversed the punitive award and remanded for a new trial on the latter.  The second jury found only $52 million in punitives.  Ford appealed again, and yesterday the Ninth Circuit reversed again.  White v. Ford Motor Co., No. 05-15655 (9th Cir. Aug. 30, 2007).

The second reversal turned on the district court's refusal to give an instruction.  Ford asked the court to tell the jury that it couldn't award punitive damages to chastise Ford for injuring 54 other people when its pickups "rolled away".  The Ninth Circuit held that the failure to instruct ran afoul of the intervening decision in Philip Morris USA v. Williams, 127 S. Ct. 1057 (2007).  The court declined to reduce the award to a constitutional level and instead ordered a third trial.

The court also gave guidance on evidentiary issues and on instructing the new jury:

• The district court may, but need not, tell jurors that punitives must bear a reasonable relationship to actuals.
• The court must inform jurors that the Whites received $2,305,435 in compensatory damages.
• The court may summarize the liability facts that the first jury found and advise the jury that the court of appeals "upheld" the jury's findings.
• The court has to notify jurors that the first jury found no "defect" in the pickup (only a failure to warn) and that they found the Whites 40 percent at fault.
• The court may admit Ford's balance sheet as evidence of its "wealth" under Nevada law but may also allow Ford to introduce its full financial statements to put the balance sheet in context.

Barry Barnett

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Comments

[A juror]

I was a juror in the second hearing. The jury consisted of eight people; two who just didn’t want to be there (one older lady slept through some of it), two who though that Ford should pay as much as a billion dollars, two who thought that Ford should pay “something”, and two of us that thought that Ford was not negligent at all.

The $52 million award was a compromise that the six involved jurors could agree on. Had that February day been 40F outside, instead of 65F, I could probably have argued longer and better in Ford’s favor.

The award was based on nothing more than that compromise. Indeed, we were not told that we should not consider other cases; we were not told that the White’s had been found to be 40% at fault, we were not told that the Ninth Circuit had recommended an upper limit of $23 million, and Ford was not allowed to show evidence to counter anything negative that the plaintiffs had entered.

I am quite happy to see that the award was overturned. Ford was working with due diligence to find a cause and cure for the problem, even mistakenly believing, at one time, that they had cured the problem! Yes, if your product damages someone, you need to make them whole, but Ford was NOT negligent.