Tobacco Verdict in Florida

Yesterday, a Fort Lauderdale jury returned a verdict in favor of the widow of a man who died of lung cancer at age 55 after smoking for 40 years. $3m of the award was compensatory, and $5m was punitive. The jury further found that the widow's deceased husband was 58% at fault for having smoked.

While this on its face looks like an $8m verdict, it appears that the verdict will be reduced. Under Florida law (to be clear, I am not licensed Florida, and am only reading Florida statutes for guidance), the fault of a plaintiff reduces the recovery for compensatory damages by the percentage of the plaintiff's fault. Consequently, the $3m compensatory award may drop to $1,260,000, to account for the finding that the deceased man was 58% at fault.

Lawyers for Altria, the parent company of Philip Morris, also argue that the punitive damages will be stripped away. The basis for the argument, however, is unclear. Surely, under the Supreme Court's newest jurisprudence on the "ratio" between compensatory and punitive damages, this award would pass constitutional muster. In State Farm v. Campbell (2003) 538 U.S. 408, the Supreme Court held that the punitive damages essentially cannot exceed 9 times the compensatory damages. Here, the ratio would be a miniscule 1.67.

The most likely result is this: despite the verdict, the parties will settle the case. The plaintiff will be forced to accept far less than the verdict amount because Altria will no doubt threaten endless appeals, meaning no money for a very, very long time time. (Update: Altria will appeal.)

While there are many lessons one could take from this result, something that strikes me is the headlines in the papers. The vast majority of them (taken from my informal survey on Google News) include the purported amount of the verdict: "$8 million." The problem is that, as explained above, the actual verdict will likely be less, and the actual amount received in settlement far less than $8m.

In the end, Altria will get the best of both worlds: on one hand, it will pay pennies on the dollar for the verdict and, on the other, it can use the publicity of the "$8 million" verdict to persuade the public that this jury (and, Altria I'm sure would argue, other juries) are awarding far too much in damages.

Diocese Slow to Release Records

In 2007, Rich Schoenberger and Doris Cheng handled four cases arising from clergy abuse in the San Diego Diocese. Like so many of the plaintiffs' claims, the facts of each case were tragic, involving certain problem priests sexually assaulting young girls. Even more troubling was the effort the Diocese went through, back in the 1950s and 60s, to move the problem priests from parish to parish - instead of removing them from the priesthood and turning them in to law enforcement.

On the eve of trial, and after using bankruptcy as a tactic to avoid trial, the Diocese settled all 144 cases for a total of $198.1m. While the monetary compensation was obviously a major part of the settlement, the agreement also ensured that the Diocese would be forced to turn over the personnel files for the problem priests.

As reported in the Daily Journal, however, the Diocese is now dragging its feet. Citing the terms of the settlement agreement, Diocese Chancellor Rodrigo Valdivia said that the Diocese will "assert privileges and privacy" objections to some of the disclosures.

This is an unfortunate circumstance given that one of the most important parts of the settlement was the catharsis and reckoning provided to the victims in knowing that they were not alone, and what happened to them was not their fault. Had the Diocese fired and turned in the priests who were so obviously ill-suited to their occupation, many, many individuals would have avoided life-long turmoil.

Money Ball, Redux

This piece in the NYT Magazine this morning caught my eye. Its focus was Shane Battier and the use of statistics in the NBA to determine the true value of a player.

Using statistical analysis akin to that Michael Lewis chronicled in Money Ball, the Houston Rockets analyzed the field of available NBA talent a few years back. Knowing that most of their money was tied up in superstars Tracey McGrady and Yao Ming, they knew they had to be economical. Their choice was Shane Battier.

Mr. Battier, despite mundane statistics, proved extremely effective at making his team better and the other team worse whenever he was on the floor. Though his methods were discrete (getting a hand in the eyes of an opposing player during a shot, for example), and invisible to the usual box score, they translated into the most important stat: the W.

All this statistical analysis fascinates me. It makes me wonder if it has a place in our business. Obviously, insurance companies already do a considerable amount of analysis, which no doubt is used against plaintiffs whenever possible. I've been putting a lot of thought into it lately, and I think there are some opportunities for plaintiffs' attorneys to turn the tables a bit. We'll see.