Pete Law delivers closing arguments before jurors in Wells v. Aslan Commons. Fulton County State Court judge Eric Richardson reduced the jury's $47.9 million punive awrad in the case to $250,000 under Georgia's statutory cap on punitive damages, O.C.G.A. 51-12-5.1, setting up a potential constituional challenge to the statute. 

A Georgia trial court ruling reducing a jury's $47.9 million punitive verdict in a personal injury suit to $250,000 under Georgia's puntive damage statute may set the case up as a prime candidate to challenge the controversial law.

Earlier this month, Fulton County State Court Judge Eric Richardson reduced the punitive award, originally rendered last month in Wells v. Aslan Commons, a personal injury suit stemming from severe burns Stephen Wells sustained when a gas line at his apartment complex, owned and operated by defendants, exploded. Judge Richardson's decision, rendered pursuant to O.C.G.A. 51-12-5.1, which caps punitives at $250,000 except in certain narrowly outlined circumstances, reduced the overall jury award from $73 million to $25.4 million. That award includes $17.9 million in compensatories and $7 million in attorney fees. 

Wells' attorneys, including Pete Law, of Atlanta's Law & Moran, said they intend to appeal the ruling, arguing that the cap is unconstitutional, but declined to comment in detail.

Georgia is one of a growing number of states that cap punitive damage awards. However, there is no uniformity when it comes to the maximum amounts, nor how they are determined. Some states, like Georgia, have a clear maximum, while other states determine the maximum based on some combination of evidentiary standards, the defendant’s earnings, and/or the type of injury sustained in the case. Critics argue that caps reduce defendants' accountability and deprive plaintiffs to their trial rights under the constitution. 

Constitutional challenges to statutory caps on non-economic damages in general have met mixed results across the country. However, Georgia is one of a minority of states to overturn a non-economic damages cap. In Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 691 S.E.2d 218 (2010), the state's supreme court ruled that a $350,000 stacked statutory cap on hedonic damages violated the state constitution's right to trial by jury. 

Even supporters of punitive damages caps argue for changes in current caps. The American Tort Reform Association argues generally for federal legislation creating a national standard for punitives and addresses the issue of multiple punitive damage awards. The organization, one of the largest advocates of caps on punitives, contends that federal legislation “would protect against unfair overkill, guard against possible due process violations, and help preserve the ability of future claimants to recover basic out‑of‑pocket expenses and damages for their pain and suffering," according to the organization's site. 

Wells' attorneys believe that the Georgia law, enacted in 1987, needs to be changed, and they are prepared to take their case to the state's highest court in order to try to make that happen.

Vero Beach, FL—A day after a jury found tobacco defendants liable for possible punitive damages but awarded no compensatory damages to an Engle progeny plaintiff, Judge Cynthia Cox granted the parties’ agreed-upon motion for a mistrial. Gore v. R.J. Reynolds.

“To me there’s just some confusion,” in the case law, Cox said when granting the motion in Robert Gore's wrongful death suit against R.J. Reynolds. “Based on the disagreement, I believe between the (Florida) Supreme Court and the (state’s) 4^th (District Court of Appeals)… I’ll declare a mistrial.”

On Tuesday afternoon, the jury apportioned 80% liability to Gloria Gore, the deceased smoker at the suit’s center, and found defendants Philip Morris 15% responsible and R.J. Reynolds 5% responsible for the lung cancer that ultimately killed her. Jurors also found that the tobacco manufacturers were liable for punitive damages, which were scheduled to be determined in a second phase of trial. Notably, however, jurors awarded nothing in compensatory damages.

Subsequent to the verdict, opposing counsel argued whether compensatory damages are a prerequisite to an award of punitive damages in a Florida negligence action. Plaintiff’s counsel contended yesterday that language in Engle v. Liggett Group Inc., the Florida Supreme Court case that spawned this and thousands of similar tobacco cases, allowed for a punitive award without compensatory damages. However, defense counsel argued that the Florida 4^th District Court of Appeals interpreted the language in Engle as requiring some form of compensatory award prior to an award of punitives.

By this morning, the parties had agreed on a motion for mistrial in the case. Parties’ attorneys were unavailable for comment prior to publication of this article.

Gore had sought $7.5 million in compensatory damages.

Any disagreement over the relationship between punitive and compensatory damages may stem from the language in Engle itself, which relied on different majorities of the court in determining the case’s multiple issues. Howard A. Engle, et al. v. Liggett Group Inc., et al., 945 So. 2d 1246 (2006). In considering the issue of punitive damages, the Engle court wrote “Because a finding of entitlement to punitive damages is not dependent on a finding that a plaintiff suffered a specific injury, an award of compensatory damages need not precede a determination of entitlement to punitive damages. Therefore, we conclude that the order of these determinations is not critical.” Later, in reviewing punitive damages for excessiveness and Due Process compliance, the state’s supreme court held that “the amount of compensatory damages must be determined in advance of a determination of the amount of punitive damages awardable, if any, so that the relationship between the two may be reviewed for reasonableness.”

University of Florida law professor Lars Noah, who has written on a variety of torts issues, said he had not read the full line of cases upon which the parties in Gore relied, but was unaware of a Florida negligence case in which punitive damages were properly awarded without an award of at least nominal damages. Noah also said punitive awards without compensatory damages can run afoul of Due Process tests, such as those discussed in Engle, that rely on a ratio between compensatory and punitive damages. “To the extent that punitive damages depend on a compensatory award, I don’t know how you can award punitive damages when the compensatory is zero,” Noah said.

Retrial in the Gore case is expected next year.

Related Information

View the mistrial declaration.

View on-demand video of the trial on the case's Proceedings page.

Read Jury Declares Tobacco Defendants Liable for Possible Punitive Damages, Awards No Compensatory Damages in Engle Progeny Suit.

Read Attorneys Dispute in Closing Arguments of Gore v. R.J. Reynolds.

An attorney in Florida’s record-setting tobacco case said the jury’s $23.6 billion punitive award was a response to tobacco companies’ apparent indifference to claims against them, and he hailed the verdict as an "opportunity for the tobacco industry to reconsider its conduct."

Christopher Chestnut, part of the plaintiff's legal team in Cynthia Robinson v. R.J. Reynolds Tobacco, described the award, the largest to-date in Florida's Engle progeny cases, as a landmark win in tobacco litigation. "It changes the whole landscape," Chestnut said.

On July 18, an Escambia County, Florida jury awarded more than $23.6 billion in punitive damages to the widow and son of Michael Johnson Sr., a smoker who died from lung cancer in 1996. The suit had originally been part of Florida’s Engle class action claim against tobacco industry defendants. However, an award for plaintiffs was vacated and the class ultimately decertified, exposing tobacco defendants to potential liability in thousands of individual claims. Tobacco companies have faced mixed results in the Engle progeny cases decided so far. However, punitive awards in earlier Engle progeny cases have generally run in the millions of dollars. Chestnut said those earlier awards, and the indifference by R.J. Reynolds to those damages, may have contributed to the award in Robinson. He pointed to defense counsel’s seemingly nonchalant reference during closing arguments to the more than $100 million R.J. Reynolds has paid in prior Engle progeny cases. "Those awards didn’t get their attention," Chestnut said. "The $23 billion got their attention."

Chestnut said he believed the evidence that most resonated with jurors was video of a 1994 congressional hearing in which tobacco industry leaders testified that cigarettes were not addictive. Chestnut said the testimony, contrasted with evidence of tobacco industry internal documents acknowledging the addictiveness of nicotine, established R.J. Reynolds’s complicity to cover up the dangers of smoking and supported the large punitive award. “We called them liars and called their practice for what it was: lies and greed,” Chestnut said.

Although some legal analysts, including loss-of-life compensation expert Ken Feinberg, believe the punitive award won’t be upheld, Chestnut said he believes Robinson may establish a new trend for larger verdicts. “This is an opportunity for meaningful change” in tobacco litigation, Chestnut said. “They called this a ‘runaway jury,’” Chestnut said. “They are a runaway company…. I hope this award resonates” going forward.

Atlantic County, NJ–A New Jersey Superior Court judge upheld an $11.1 million jury verdict awarded last year in a bellwether product liability case against transvaginal mesh manufacturer Ethicon Endo-Surgery Inc.

In Linda Gross v. Ethicon, Judge Carol Higbee of the Atlantic County Superior Court denied Ethicon’s motion for a new trial and a judgment notwithstanding the verdict, ruling that "strong evidence" supported Gross’s product liability claims against Ethicon's Prolift, a device use to treat vaginal prolapse. Gross argued that she underwent multiple surgeries to remove the device after it hardened and eroded through her vaginal wall. She also claimed that long-term damage caused by the Prolift left her unable to sit for long periods of time without pain. The jury awarded Gross $3.35 million in compensatory damages and $7.76 million in punitive damages after finding Ethicon, a subsidiary of Johnson & Johnson, Inc., misrepresented the Prolift to Gross and failed to adequately warn her surgeon of its risks.

Escambia County, FL - The jury in Robinsons v. R.J. Reynolds, et al. returned a $23.6 billion punitive damages award on Friday. This four week trial was filed by widow, Cynthia Robinson in 2008 after her husband passed away at the age of 36.