State of the Art: Avoiding Punitive Damages and Winning ......How to Avoid Punitive Damages Background The Basis for Punitive Damages Civil Code 3294–Oppression, Fraud or Malice

Faegre Drinker Biddle & Reath LLP

State of the Art: Avoiding Punitive Damages and Winning the Battle of the ExpertsAlan J. LazarusWilliam A. HanssenFAEGRE DRINKER BIDDLE & REATH LLP

Jeff KabanAUTODESK, INC.


How to Win the Battle of the Experts

Alan J. LazarusWilliam A. HanssenFAEGRE DRINKER BIDDLE & REATH LLP


How to Win the Battle of the Experts

Winning Strategies

Admissibility Strategies

Limiting Doctrines and Principles

Trial Examination Strategies

How to Win the Battle of the ExpertsWinning Strategies

Spend the Necessary Time and Money, But Avoid Overkill• Field the Better Team of Experts• Quality, Not Quantity• Be Analytical, Not Reflexive• Don’t Skimp – The Great Equalizer


Have the more specifically “expert” expert• Generalist vs. Specialist• Avoid, and Exploit, Jack-of-All-Trades Syndrome

Allow Your Expert to Flex Their Expertise• Withholding Authorization to Perform Tests, Analyses or Evidence

Reviews is a Calculated Risk• Give Your Expert the Full Picture


Win the Battle on Foundational Admissibility• Exclude or Limit the Opponent’s Expert and Assure the Admissibility of

Your Owno Be Surgicalo Be Pragmatico Be Credibleo Be Careful

• 402 Hearings

How to Win the Battle of the ExpertsAdmissibility

AdmissibilityBackground

• California Expert Admissibility pre-Daubert - Kelly-Frye

• Daubert Sea Change (1993) – The Advent of Rigorous Gatekeeping

• California’s Response to Daubert - People v. Leahy (1994)Endorsement of “Daubert-Style Gatekeeping”


The Interregnum (1994-2012)

Two Camps on Gatekeeping• Roberti v. Andy’s Termite (2003)• People v. Mitchell (2003)/Lockheed Litigation Cases I (2004)


Lockheed Litigation Cases II (2005) – The False Promise of Clarity

Sargon Enterprises v. University of Southern Calif. (2012) – Clarity at Last

• Rigorous Gatekeeping Obligation• Reasonable Foundation, Reliable Methodology and Sound Principles• Reliable Reasoning, Analytical Gaps• Speculation• Intellectual Rigor• Dual Standard


Post-Sargon• How Much Clarity?• Judicial Resistance• Garrett v. Howmedica Osteonics (2013)

o Summary Judgment Exceptions• Recent Trends in Applying Sargon

How to Win the Battle of the ExpertsLimiting Scope of Expert Testimony

Limiting Scope of Expert Testimony

• Limiting Doctrines and Principles• Qualifications• Hearsay

o People v. Sanchez (2016)

How to Win the Battle of the ExpertsLimiting Scope of Expert Testimony

Improper Subjects of Expert Testimony• Legal Conclusions• Ultimate Issues• Unexplained Conclusions and Ipse Dixits

How to Win the Battle of the ExpertsTrial Examination Strategies

Daubert/Sargon at Trial• On the Stand• Closing Argument• Jury Instructions

How to Win the Battle of the ExpertsTrial Examination StrategiesTried and True Techniques

• $/Bias• Writings• Assumptions• Hypotheticals• Gaps• Hijacking the Opponent’s Expert


How to Avoid Punitive Damages

Alan LazarusWilliam HanssenFAEGRE DRINKER BIDDLE & REATH LLP


How to Avoid Punitive Damages

Background

Avoidance Strategies

Specific Arguments to Combat Punitive Damages

Lessons Learned From Recent Case Law

Constitutional Limitations

How to Avoid Punitive DamagesBackground

The Basis for Punitive Damages

Civil Code 3294 – Oppression, Fraud or Malice (Despicable Conduct)“…where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.”

How to Avoid Punitive DamagesBackground

Disfavored Remedy

Penalty

Uninsurable

“Clear and Convincing” Evidence – Quality and Quantity

How to Avoid Punitive DamagesAvoidance Strategies

Win on LiabilityNo Punitive Damages Without Compensatory DamagesDon’t Anger the Jury

• Litigation Conduct Cannot Be The Basis For Punitive Damages, But It Can Be The Reason For Punitive Damages

• Hire Likeable Trial Lawyers


Don’t Anger the Jury• Have a Corporate Representative at Trial• Humanize the Company• Police Misconduct


Motion Practice• Pleadings Motions• Motion for Summary Adjudication• Motions in Limine• Trial Motions

How to Avoid Punitive DamagesSpecific Defense Arguments

No Notice• Notice of What – Require Similarity

Regulatory Compliance

Presumption of Regularity• How Could Conduct Be Despicable If it Was Authorized by

Expert Government Regulators?


Reasonable Disagreements and Reasonable Mistakes• Bad Faith Analogy• Failure to Warn and the First Amendment

“Taking Steps”• Taking Steps to Protect Safety is Inconsistent With Conscious

Disregard or Indifference to Safety


Ratification and Endorsement• Corporate Malice – Conduct of the Company• Vicarious Malice

“Managing Agent” – Substantial Discretionary Authority Over Decisions That Ultimately Determine Corporate Policy

Ratification/Authorization

Notice of Unfitness/Retention


Reprehensibility• Factors Under Federal/California Law• Type of Harm Caused/Risked – Physical vs. Economic• Isolated vs. Repeated Conduct• Vulnerability of Plaintiff• Evil Intent


Net Worth Issues• Prerequisite • Measurement• “Sting” Principle• Bifurcation

Comparable Awards

How to Avoid Punitive DamagesLessons Learned From Recent Case Law

Behavioral Lessons Learned From Recent Case Law Compare Two Recent Product Liability Cases

• Johnson v. Monsanto (2020)

• Johnson & Johnson Talcum Powder Cases (Echeverria) (2019)

How to Avoid Punitive DamagesLessons Learned From Recent Case Law

Litigation Lessons Learned From Recent Case Law

• Conservatorship of O.B.(2020) — The Clear and Convincing Evidence Requirement Applies on Summary Judgment and Appeal

• Bigler-Engler v. Breg (2017) – Claim Specificity Requirement

How to Avoid Punitive DamagesConstitutional Limitations

Due Process Review for Excessiveness

State Farm Ratios Remain Unsettled• Johnson v. Monsanto – 1:1 where case is close and compensatory

damages have a punitive component• Boeken v. Philip Morris (2005) – 9:1 where conduct extremely

reprehensible and defendant wealthy

How to Avoid Punitive DamagesConstitutional Limitations

Unconstitutional Bases for Punitive Damages – State Farm (2003)• Extraterritorial Conduct – Sovereignty Interests

• Attenuated Conduct – Punish Only for Conduct That Harmed Plaintiff

• Unadjudicated Third Party Harm is Not Punishable – Philip Morris v. Williams (2007)

The Reprehensibility Tightrope – Pattern/Scope of Misconduct vs. Third Party, Extraterritorial Harm

State of the Art: Avoiding Punitive Damages and Winning the Battle of the Experts

Alan Lazarus, Faegre Drinker Biddle & Reath LLP, San Francisco• [email protected]

William Hanssen, Faegre Drinker Biddle & Reath LLP, Los Angeles• [email protected]

Jeff Kaban, Autodesk, Inc., San Rafael• [email protected]

Documents

State of the Art: Avoiding Punitive Damages and Winning ......How to Avoid Punitive Damages Background The Basis for Punitive Damages Civil Code 3294–Oppression, Fraud or Malice