There are three major lessons to draw from January’s decision by California’s Second District Court of Appeal, Bullock v. Philip Morris, Inc. (click here to view opinion). In every trial, create and preserve a record for appeal regarding jury instructions. In a punitive damages case, request the one-sentence jury instruction refused in this case. And it is never too early to involve appellate counsel in trial and trial preparation if there is any chance your case will be appealed by either side.
1. Preserving the record regarding jury instructions given and refused
“Preserve the record” is not a new lesson but this case teaches it in spades. The trial court failed to give a standard BAJI instruction requested by both sides. No one disagreed that the instruction was appropriate, but the defendant could get no relief on appeal. The specific steps that should have been taken but were not were laid out in the opinion:
“The reason for the court’s failure to instruct on BAJI No. 12.36 does not appear in the appellate record. The conference on jury instructions was held in chambers and was not reported. No final set of written instructions showing the instructions given and refused appears in the record. There is no indication on either party’s proposed instruction on BAJI No. 12.36 that the court refused the instruction.”
Why was this fatal to a challenge to the trial court’s failure to give a jointly requested, plainly applicable instruction?
“The possible explanations for the court’s failure to give an instruction requested by both parties include that the court concluded that the instruction was improper, that one or both parties withdrew its request for the instruction and objected to the instruction during the unrecorded conference, that the parties or the court concluded that the instruction was unnecessary, or that the court or the party who prepared the final set of instructions simply overlooked the requested instruction and mistakenly omitted it. We cannot conclude from the appellate record whether one of these alternatives or some other scenario actually took place….[¶ ] An appellant arguing instructional error must ensure that the appellate record includes both the instructions given and refused and the trial court’s rulings on proposed instructions.”
The same errors doomed appellate review of another instruction that defendant proposed. “We presume that Philip Morris either affirmatively withdrew the instruction or omitted the instruction from the final set of instructions that Philip Morris prepared.”
So,
-- Hold conferences about jury instructions on the record. If it is not on the record it is not in the record. If it is not in the record it never happened.
-- Prepare a set of instructions, or some filing, specifically showing “the instructions given and refused” and the trial court’s rulings. Do not file just a general objection. After the jury instruction conference, Philip Morris submitted a filing stating that Philip Morris “objected, and objects, to each and every rejection by the Court of jury instructions proposed by Philip Morris.” The Court of Appeal held this valueless because it did not specifically identify the instructions refused.
2. Jury Can’t Punish for Harms to Non-Plaintiffs
The second lesson from Bullock relates to punitive damages. The defense is entitled to an instruction that “You are not to impose punishment for harms suffered by persons other than the plaintiff before you.” This simple instruction, and Bullock’s holding that it is mandatory where there is evidence of “harms suffered by persons other than the plaintiff,” are the natural extensions of the United States Supreme Court holding in another recent tobacco case, Philip Morris USA v. Williams (2007) __ U.S. __ [127 S.Ct. 1057] [see prior case alert dated April 4, 2007]. In Williams, the Court held that a jury could consider harm to persons other than the plaintiff – “strangers to the litigation” –in assessing whether a defendant’s conduct was reprehensible enough to warrant imposing punitive damages, but that the jury could not punish the defendant for harms to others. “[T]he Due Process Clause prohibits a State’s inflicting punishment for harm caused strangers to the litigation. At the same time we recognize that conduct that risks harm to many is likely more reprehensible than conduct that risks harm to only a few. And a jury consequently may take this fact into account in determining reprehensibility.” (Id. at p. 1065.) The court of appeal therefore remanded for a new trial on the amount of the punitive damages award only.
While Williams emphasized the importance of instructing the jury, it did not articulate or approve any specific text to be used – instead holding that each state must “safeguard” against the possibility that a jury might misuse evidence of harm to non-parties. Many have considered the distinction too fine to be drawn: “‘[i]f a jury cannot punish for the conduct, then it is difficult to see why it may consider it at all.’” (Williams, 127 S.Ct. at pp. 1064-1065.) Bullock approved a specific text and so represents a concrete advance in the law.
Bullock held that the instruction “You are not to impose punishment for harms suffered by persons other than the plaintiff before you” should have been given, but also said that on retrial the trial court should instruct the jury as to both the permitted and unpermitted uses of evidence of harms to others. (Slip. op. at 49, n.21.) At the same time, Bullock refused to hold that the trial court could refuse the instruction even if the permitted-use, plaintiff-friendly portion of the law were not in it.
How happy do you think the Philip Morris attorneys are that they did manage to preserve a proper record on this one instruction had been refused?
Bullock had previously been before the Court of Appeal, been accepted for review by the California Supreme Court, and was then sent back to the Court of Appeal for review in light of Williams. Another trip to the California Supreme Court is entirely likely.
There is one lesson that Bullock avoided: is a $28 million punitive award constitutionally excessive where the compensatory damages are $850,000 (a ratio of nearly 33-1?) Williams avoided the same question about the 97-1 ratio in that case. Both remanded to address instructional errors instead of tackling the “bottom line” constitutional question many wish would be answered: how much is too much?
We will keep you apprised. Contact any of the Appellate Group attorneys if you have any questions about this decision or any other question regarding appellate practice, preserving the record at trial or punitive damages. In San Francisco, Fletcher C. Alford or Don Willenburg (415) 986-5900 . In San Diego, Charles V. Berwanger (619) 696-6700 . In Houston, Ellen G. Tagtmeier (713) 961-3366.
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