We posted before about an important punitive damages issue, hoping the Supreme Court would take a look.  However, last week the Court declined to review the federal appeals court decision ordering a re-trial on punitive damages. Wyeth LLC v. Scroggin, U.S., No. 09-1123, review denied 6/21/10.

The case involves a woman who allegedly developed cancer after taking hormone therapy drugs. (The FDA continues to approve the drugs as safe and effective.) The plaintiff contended that Wyeth was negligent in failing to include a stronger warning on its label, and that she would not have taken the drug if the warning had been stronger. The district court conducted a bifurcated trial
before a single jury, with liability determined first and punitive damages determined second. In the first phase, the jury found for plaintiff and awarded $2.7 million in compensatory damages. In the second phase, the same jury determined that defendant was liable for punitive damages of $19.4 million. Wyeth LLC v. Scroggin, 554 F.Supp.2d 571 (E.D. Ark. 2008). On appeal, the U.S. Court of Appeals for the Eighth Circuit overturned the punitive damages award, ruling that the award was tainted by the admission of improper evidence during the punitive damages phase of the trial. But rather than ordering an entirely new trial, the appeals court ordered a partial new trial limited to punitive damages only. Scroggin v. Wyeth, 586 F.3d 547 (8th Cir.2009).

We would argue that the Seventh Amendment prohibits such partial retrials limited to punitive damages. The Seventh Amendment “right to trial by jury” has long been understood to constitute those jury trial rights that existed under the English common law when the Seventh Amendment was adopted in 1791. At common law there was no practice of setting aside a verdict in part. If the verdict was erroneous as to any issue, a new trial was directed as to all issues, so that all related issues could be decided by a single jury. Where the issue to be re-tried is related to issues already decided by the first jury, partial re-trials create a danger that the second jury will be confused when told that some issues have already been decided. Moreover, there is considerable empirical evidence suggesting that permitting partial re-trials regarding punitive damages exacerbates the unpredictability of punitive damages awards.

Chief Justice John G. Roberts Jr. took no part in the consideration or decision of the petition.