An Integrated Empirical Analysis of Punitive Damages Judgments in Hawaii, 1985-2001
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Punitive Damages in Rhetoric and Reality: An Integrated Empirical Analysis of Punitive Damages Judgments in Hawaii, 1985-2001 Denise E. Antolillt "Punitive damages have replaced baseball as our national sport."( - Theodore B. Olson "The public gets anecdotal glimpses of atypical cases without a sense of their overall significance. Simplistic sound bites have displaced systematic analysis.,,2 - Deborah L. Rhode "[Civil jury trial] data suppl[y] a crucial empirical dimension to an array of key research questions that remain the subject of intense, on-going theoretical and public debates.,,3 - Michael Heise Defendant Navarette, a professional boxer, abducted, brutally beat, assaulted, raped, and sodomized plaintiff Ofisa, a waitress. The state court jury awarded $40,000 in general damages and $20,000 in punitive damages. - Ofisa v. Navarette, Case S3 (see Appendix B, infra) • Associate Professor of Law, University of Hawaii at Manoa, William S. Richardson School of Law; J.D. 1986, Boalt Hall School of Law, University of California at Berkeley; M.P.P 1985, Graduate School of Public Policy, University of California at Berkeley; A.B., 1982, Princeton University. For their generous wisdom and support. special thanks to my colleagues Professors Eric Yamamoto, Jon Van Dyke, Casey Jannan, Chris lijima, Dick Miller, and Calvin Pang. Mahalo to dedicated research assistants Deborah Mueller, Kristin Matsuda, Elise Tsugawa, Paul Tanaka, Elizabeth Robinson. and Tracy Fujimoto, for their work on earlier versions of the study; to Garrick Lau, Shaunda Liu, and James Kuwahara, for their contributions to the tort caseload trends data; and especially to Jamie Tanabe, Rebecca Hvidding Takayama, and Adrienne Suarez for their extraordinary effort on the later phases of the study. Thanks also to the Tort Law Study Group, to Neal Seamon, and to Professor Michael Heise for their inspirational professionalism. Grazie mille to my husband Ken for his invaluable support and to our ragazzi Conrad, Tate, and Chase. Contact the author at [email protected]. The background data for this article may be viewed at www2.hawaii.edul-antolini. 1 Theodore B. Olson, Rule ofLaw: The Dangerous National Sport ofPunitive Damages, WALL ST. 1., Oct.5,1994,atAI7. 2 Deborah L. Rhode, Too Much Law. Too Lillie Jllstice: Too Milch Rhetoric. Too Lillie Reform, II GEO. 1. LEGAL ETHICS 989, 993-94, 1018 (1998). ) Michael Heise, The Importance of Beillg Empirical. 26 PEPP. L. REV. 807, 823 (1999). 143 144 Journal ofLaw & Politics [Vo1.XX:143 TABLE OF CONTENTS I. The Jurisprudential Context: Tort Law in Hawaii ........... ......... ... 163 II. The Doctrinal Context: Hawaii's Punitive Damages Jurisprudence ................................... 177 III. The Legislative Context: Tort Reform and the Hawaii Legislature. ...................................... 189 IV. The Empirical Context: A Quantitative Analysis of Punitive Damages Judgments, 1985-2001 .................................... 207 V. The Qualitative Context: The Real Stories Behind Hawaii's Punitive Damages Judgments............................ 245 VI. Conclusion: Rhetoric, Reality, and Integrated Empiricism.......... 269 STATE, FEDERAL, CAAP, STATE/ CHARTS, AND TREND CHARTS ................................................................ 276 TABLES ............................................................................................... 320 APPENDIX A....................................................................................... 337 APPENDIX B ....................................................................................... 340 Whether extreme sport or war, the national polemic4 over punitive damages continues to rage, with no obvious winner or resolution in sight.5 Splashy media coverage of large punitive damages awards has captured popular attention6 and fueled public outrage over cases that have become the 4 Marc Galanter used the tenn "polemical" to describe the "power" of the "war stories" of the tort refonn movement in 1983. Marc Galanter, Reading the Landscape ofDisputes: What We Know and Don't Know (And Think We Know) About Our Allegedly Contentious and Litigious Society, 31 U.C.L.A. L. REV. 4, II (1983) [hereinafter Galanter, Landscape ofDisputes]. S The public debate about punitive damages is only one part of the larger national controversy about the tort law system that began in the 1970s, see Marc Galanter, Shadow Play: The Fabled Menace of Punitive Damages, 1998 WIS. L. REV. I, II [hereinafter Galanter, Shadow Play]; see also Galanter, Landscape of Disputes, supra note 4, at 6-11 (describing the "'hyperlexis' explosion"), although it has become a predominant theme. See Marc Galanter & David Luban, Poetic Justice: Punilive Damages and Legal Pluralism, 42 AM. U. L. REV. 1393, 1409 (1993)(quoting the Wall Street Journal as observing that punitive damages are "the major fuel of the litigation explosion"); Jerry J. Phillips, To Be Or Not To Be: Reflections on Changing Our Tort System, 46 MD. L. REV. 55, 56 (1986) (naming punitive damages as first among the "common current litany of complaints against the tort system"). 6 William Glaberson, When the Verdict is Just Fantasy, N.Y. TIMES, June 6,1999, at 4 ("For years, across the country, accounts of bizarre jury verdicts and huge damage awards (like the $2.9 million 2004] Hawaii Punitive Damages 145 notorious poster children of the nationwide tort refonn movement.7 Tort refonn proponents have lobbied vigorously for controls on punitive damages at the nationallevel8 and exerted unrelenting pressure on state legislatures to pass new laws to control "runaway" awards.9 collected by the McDonald's customer who spilled coffee on herself) have been used to prove that the courts are wacky or worse."). Recently, large punitive damages awards in precedent-setting tobacco smoker cases have grabbed the headlines, e.g.. (I) the August 200 I Los Angeles Boeken verdict, "the largest award in an individual lawsuit against a tobacco company," ajury verdict of$3 billion in punitive damages reduced to $100 million by the state court judge (see Associated Press. Smoker Accepts $100 Million Award ill Los Angeles Tobacco Case, THE SAN DIEGO UNION-TRIBUNE (Aug. 21,200 I), available at http://www.signonsandiego.comlnewslstate/20010821-2058-tobaccotrial.html) (last accessed June 20, 2004); (2) the Oregon Schwarz case in March 2002, a $150 million punitive damages award by a jury reduced by the state court judge to $100 million (see. e.g., Henry Weinstein (LA Times), Philip Morris must pay $150M, HONOLULU ADVERTISER, Mar. 23, 2002, at A3 (reporting on the "second-largest verdict ever awarded in an individual smoker case"); and (3) the 1999 award in the Florida smoker class action case, Engle, where the jury issued a "record-shattering verdict" of$145 billion in punitive damages against the nation's five largest cigarette makers, overturned on appeal in 2003 (see Florida Appeals Court Throws Out $145 Billion Tobacco Verdict, CNN.COM, May 27, 2003, available at http://edition.cnn.coml2003/LAW/05121/tobacco.ruling.overtumed). 1 See. e.g.. Associated Press, Judge cuts GM Liability by $3.7 billion: Punitive Damages called 'excessive, ' HONOLULU ADVERTISER, Aug. 27, 1999, at A3 (reporting that a Los Angeles trial judge "slashed $3.7 billion yesterday from a $4.9 billion judgment against General Motors in a lawsuit over the explosion of a Chevrolet Malibu gas tank, saying the punitive damages were 'excessive."'); see also American Tort Reform Association, Looney Lawsuits, available at http://www.atra.orgldisplay/l3 (last accessed June 20, 2004); STEPHEN DANIELS & JOAN MARTIN, CIVIL JURIES AND THE POLITICS OF REFORM 5 (1995) (discussing "horror stories"); Marc Galanter, Real World Torts: An Antidote to Anecdote, 55 MD. L. REV. 1093 (1996) [hereinafter Galanter, Antidote]; Michael J. Saks, Malpractice Misconceptions and Other Lessons About the Tort Litigation System, 16 JUST. SYS. 1. 7 (1993). S Congressional interest in tort reform arose in the mid-I 980s. In 1986, Senator Mitch McConnell introduced the Litigation Abuse Reform Act of 1986, asserting that America suffered from "too much litigation." Marc Galanter, The Day After the Litigation Explosion, 46 MD. L. REV. 3, 3 (1986) [hereinafter Galanter, The Day After]. For the past decade, Congress has repeatedly considered a host oflimitations on punitive damages proposed by advocates of tort reform. On July 30, 2002, the Senate considered but then tabled 57 to 42 the "McConnell amendment" to S. 812 (a prescription drug bill, which would have enacted limitations on medical malpractice suits, products liability, and nursing home claims). S.A. 4326, proposed to amend S.A. 4299, proposed to amend S. 812, I 07,h Congo (2002). CONGo REC. § 7435 (daily ed. July 26, 2002) (amendment submitted and proposed by Senator McConnell, R-Kentucky). The amendment would have adopted new restrictions on punitive damages such as: a clear and convincing standard of proof, § 15(a); a substantive standard of intent to injure or substantial certainty of unnecessary injury and failure to avoid injury, or conscious flagrant disregard ofa substantial and unjustifiable risk of unnecessary injury, § 15(a); a bar on punitive damages in cases where there was no compensatory award (including nominal damages under $500), § 15(b); at defendant's request, a bifurcated proceeding on punitive damages liability and the amount of the award, § 15(c); a limited set of eight factors that a trier of fact could consider in setting the award amount, § 15(d); a cap of two times