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Plaintiffs' lawyers' misrepresentations in the punitive damages debate

Sometimes I see a disingenuous statement that the person making it has to know is not true, and it just makes me mad.

That was the case with Sharon Arkin's statement in the WSJ "Legal Banter" debate on punitive damages (mentioned by Walter): "And if juries do not have 'all the information,' that could only be because the defendant's attorneys did not provide it in the trial."

Wow. Considering that the California Court of Appeals just issued a prominent decision in the punitive-damages case of Buell-Wilson v. Ford, where it held that it was appropriate for plaintiffs' attorneys to move to forbid the jury from finding out that the "defective design" that Ford was being punished for was safer than the average SUV on the road, Arkin has to know that she's not telling the truth.

One can quickly think of other examples: laws that forbid defendants from mentioning that the injured parties weren't wearing their seat-belts; the punitive damages in Vioxx cases, where the plaintiffs' attorneys were allowed to argue that Merck executives deliberately released a destructively dangerous drug, knowing that the jury wouldn't be allowed to hear that those same executives were using Vioxx themselves. (Or, in the case of non-economic "compensatory" damages, which are often indistinguishable from punitive damages, consider the case of Carol Ernst, where Mark Lanier was allowed to argue that the Ernsts were "soulmates" who would be together "forever," but Merck could not point out that Carol was the sixth Mrs. Ernst.)

I'm also disappointed that Arkin's opponent did not have the opportunity to correct Arkin on her misrepresentation of the appropriateness of cost-benefit analysis; perhaps that's worth another post another time. Stay tuned for a longer post on Buell-Wilson.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.