Philip Morris: The End of the Litigation Marathon

by Vanessa Wilcox

Twelve years after the death of Jesse D. Williams, a death that gave rise to four appellate reviews in Oregon and three appeals before the U.S. Supreme Court, the litigation marathon initiated by Williams’ widow has ended. On 31 March 2009, the U.S. Supreme Court dismissed Philip Morris’ writ of certiorari as “improvidently granted”, providing no further explanation.

In 1999, an Oregon jury awarded Williams’ estate $ 821,485 in actual damages and $ 79.5 million in punitive damages against Philip Morris, a cigarette manufacturer, after the judge refused to give jurors what has now become known as “the most famous instruction never given”. Among other things, Philip Morris’ instruction No. 34 provided that the jury could consider but not punish Philip Morris in its case against the plaintiff for the harm it caused to other smokers through the extensive publicity campaigns it ran from the 1950s to the 1990s to counter concerns on the dangers of smoking. Each time the U.S. Supreme Court overturned the award (in 2003 and 2007) and sent the case back to Oregon for review, state courts upheld the original award. On 21 January 2008, the Supreme Court of Oregon, tasked to apply the constitutional standard set by the U.S. Supreme Court, upheld the $ 79.5 million verdict again, relying on a relatively uncontroversial point that a state decision should not be disturbed if, notwithstanding its violation of the federal constitution, there are independent and adequate state grounds to uphold the decision. On the facts, a state procedural rule required jury instructions to be “clear and correct in all respects...and altogether free from error.” The state court found that instruction No. 34 was flawed, misstating Oregon law in two respects. Philip Morris, dissatisfied, appealed.

With little comment, on 31 March 2009, the U.S. Supreme Court dismissed Philip Morris’s appeal letting stand the initial award of now $ 145 million, including interest. While the decision highlights the state courts’ resolve to punish Philip Morris through available loopholes, the case, which businesses hoped would decide the question on the constitutional limits of U.S. punitive damages awards, has now frustratingly been brought to an end by a one-sentence order.



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