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    Holding Court with Joan Biskupic

    Post Supreme Court reporter Joan Biskupic. (The Post)

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    Friday, July 23, 1999

    In recent months, jurors have issued several high-dollar awards, most notably the $4.9 billion against General Motors for six people burned when a drunk driver crashed into the back of their 1979 Chevrolet Malibu. That award may be the largest ever in a product liability case. We'll discuss big jury verdicts, including those in controversial gun and cigarette cases. We'll also continue to address lingering questions on the 1998-99 Supreme Court term and about the justices themselves.

    Joan Biskupic has covered the Supreme Court for The Washington Post since 1992, and she is co-author of the third edition of Congressional Quarterly's encyclopedia on the Supreme Court. She covered legal affairs for CQ's Weekly Report before joining The Post. Biskupic answered your questions on the Supreme Court and legal affairs Friday. The transcript follows:

    Arlington, Va.: Is it your sense that appeals courts and the Supreme Court are likely to overturn jury awards that some may deem exorbitant? In that respect, is it likely that judges see themselves as guardians of reason or moderation?

    Joan Biskupic: Thanks for the question, and welcome. I'm glad your question combined both the Supreme Court and jury awards. During the summer months when the justices are in recess, "Holding Court" will open these weekly sessions with a special topic. Last week it was the Second Amendment and gun control. This week, we're first taking questions on controversial jury verdicts.... And yes, I expect the justices would overturn verdicts that were excessive. In 1996, the last time they looked directly at the issue, the justices rejected a BMW owner's $2 million award for a flawed paint job. By a 5-4 vote, the court said "grossly excessive" money damages violate the Constitution.

    Washington, D.C.: What are the odds that the GM case will be overturned on appeal?

    Joan Biskupic: I think the odds are good that the award will be reduced in some way on appeal. For those of you who missed it, a California jury earlier this month ordered General Motors to pay $4.9 billion to six people who were severely burned when a drunk driver hit the back of their 1979 Chevrolet Malibu six years ago. It looks like that award may be the largest ever in a product liability case. And some experts estimated it at more than GM's entire profit for all of 1998. The $4.9 billion verdict in the GM case really takes the issue of jury-awarded damages to a new level; the tobacco awards were startling as well (Post story). Aren't these damage awards getting unreasonably huge?

    Joan Biskupic: The awards do just keep going up and up. And whether they are unreasonable is in the eye of the beholder. I've heard several theories on why the money damages are skyrocketing, including the notion that each big award feeds another, and another. Some lawyers also point to a kind of inflation, big sports stars and their salaries, for example, and say the public is getting used to huge money amounts being bandied about. But experts say the billions ordered in the GM case is truly historic. And it has ignited new talk about limiting jury awards, both legislatively and in the courts.

    New York, N.Y.: When juries deliberate in product liability cases, what are the parameters they receive from a judge? Does it depend on the case and the circumstances? Is there a floor and a ceiling for the amount they can award?

    Joan Biskupic: That's an excellent question. While the answer varies from state to state (depending on court practices and individual laws), the reality is that juries typically get little guidance on amounts. The theory in America has been that jurors generally should be free to set whatever damages necessary to compensate the victim for his loss and to punish a company for its bad practices. It's the jury, after all, that decides the facts of the case, who's telling the truth and whether the defendant should be held financially responsible. But punitive damages, particularly, have only gotten more controversial. They are used not to help the plaintiff for a specific injury but to deliberately punish the company that did wrong. Under pressure from businesses and other interests who think jurors act more from emotion than reason on punitives, some state legislatures have tried to cap these damages.

    Washington, D.C.: How often are product liability lawsuits thrown out of court? Doesn't it seem that sometimes people just want to blame someone for something that went wrong, and don't take responsibility for their own actions?

    Joan Biskupic: It's the age-old debate over personal responsibility. You hear lots of arguments about that in the tobacco context. Why should cigarette companies be liable for a smoker's health problems when the smoker presumably was reading the warnings on the label and knew cigarettes were harmful? But some juries that have heard such arguments nonetheless said tobacco companies should be held liable because they downplayed health risks as people got addicted to their products. ... And I don't know if there's a national average on how many cases never get to trial. Many don't but for lots of different reasons.

    Washington, D.C. : Can you tell us anything more about the "Dixie" incident? Is it possible that the Chief Justice didn't realize that singing the song harkened back to the era of slavery and the Old South? The Post wrote a story on Thursday about a sing-along of "Dixie" led by Chief Justice William Rehnquist at a Virginia judicial conference (see story).

    Joan Biskupic: Here's a different question for a little variety. For those of you might have missed the story this week, our Metro section reported that some lawyers in the 4th Circuit objected to Chief Justice William Rehnquist's singing Dixie at a 4th Circuit conference last month. (The 4th Circuit, covering Maryland, Virginia, South Carolina, North Carolina and West Virginia, is one of several regional judicial circuits around the country.) Each year, Rehnquist speaks at its annual conference and also participates in some of its entertainment, a sing-a-long. .... The chief loves to sing. He's always leading the chorus at court parties. My sense is that while he probably knew of Dixie's negative, Old South connotations, he didn't care: He liked the tune. And that was that. The news story said that one African American woman complained to him directly at the conference and believed he suggested he wouldn't sing it again. We'll watch.

    Houston, Tex.: About the huge verdicts – some jurors in cases like this, and attorneys analyzing jurors, have said that they give huge verdicts because the companies are so huge. In other words, they base the award on how much it would take to make the company feel the pinch. What do you think of this, both in terms of policy soundness and in terms of legality?

    Joan Biskupic: That's right. And that is the idea behind punitive damages. They're supposed to hurt. And some jurors have responded to plaintiffs' lawyers' arguments that unless an award is at least seven figures, a company can brush it off and go about its evil ways. There is nothing inherently illegal about whopper awards. And in terms of policy soundness, I think that is a good question for legislators.

    Arlington, Va.: A few years ago, a jury in North Carolina held ABC liable for infiltrating a Food Lion store and showing that the place sold contaminated meat. I recall that there was a punitive damage award against the network. What's happened with this case which seems to put the First Amendment against the right to sell bad food?

    Editor's note: The case revolved around ABC's reporting methods and the way the reporters represented themselves to the store, but it did not involve libel. A federal jury found that the network committed fraud and trespassing in gathering the information for the story. Food Lion officials disputed the charges of unsanitary conditions and said the undercover producers helped to create some of the unsanitary conditions that the report was supposed to expose. Further details:
    Jury Finds ABC Committed Fraud in Food Lion Investigative Story (Dec. 21, 1996)
    Food Lion Challenges ABC's Newsgathering (Dec. 21, 1996)

    Joan Biskupic: What prompted the verdict in this 1996 case was ABC's use of hidden cameras and, if I'm remembering right, the lies that the ABC producers made on employment forms at the grocer. The jury appeared to be lashing out not at what was reported but at the news-gathering methods. I cannot say definitely, but I don't think the case is over. The last I read it was on appeal. Do you think that jury awards like these have a ripple effect on people who file product liability lawsuits? Do they motivate people to sue?

    Joan Biskupic: Definitely. The high juror awards in recent cigarette cases – holding tobacco companies liable for health problems – have spawned hundreds of individual lawsuits. For better or worse. How does press coverage of the McDonald's coffee cup case and similar jury awards affect the debate over jury awards?

    Joan Biskupic: As with the earlier Food Lion case, I'm speaking from memory. (So if anyone wants all the facts, look 'em up.) But I think the McDonald's spilled coffee episode became more a thing of lore than reality. In many people's minds, it stands for little-injury-big-award. But the woman was indeed severely burned... and in the end, a judge reduced her award. Still, the case became a mighty symbol of the litigiousness of America. As did the BMW with the bad paint job (referred to above.)

    Mt. Rainier, Md.: It does seem that there is a certain amount of cynicism involved in how these suits are targeted. In the case of the drunk driver, one would think that the driver not the manufacturer should have the largest share of culpability. But of course, the driver doesn't have a lot of bucks and a jury is likely to have less sympathy for a large company. Practical, but morally responsible?

    Joan Biskupic: I take your point. People who have been injured and their lawyers are always looking for the deepest pockets. But the reality is that if plaintiffs need a lot of medical care, as the six GM burn victims did, and if they want something more for all they've been through, they aren't going to get it from a drunk driver who slammed into their car.

    Richmond, Va.: What are the odds that huge jury awards like these will ever actually get paid out?

    Joan Biskupic: It's a good bet GM will NEVER pay the $4.9 billion. What are implications of the Y2K liability limits recently passed by Congress?

    A recent deal between Congress and the White House resulted in legislation limiting lawsuits against businesses affected by Y2K computer problems (Post story). The bill gives businesses a 90-day grace period to fix problems before lawsuits can be filed, and also requires that federal courts handle large class-action suits. See's Y2K package for Post coverage of the issue and what is being done about it.

    Joan Biskupic: It's a break for businesses. If they get word that there's a problem, they can try to fix it. And if they don't fix it, their liability is limited. That's not usually the case when business practices hurt individuals. The majority in Congress obviously believed that the Y2K situation raises too many unknowns, presumed that business would try to get out ahead of the problem, and decided to cut computer companies some slack.

    Alexandria, Va.: Hi Joan,

    What do you give the chances for meaningful civil justice reform to be enacted at the federal level? Joint and several liability reform would go a long way to keep businesses from paying more than their "fair share" and caps on punitive damages, or funneling them into a separate fund may stop the "lottery" mentality of some plaintiffs and their attorneys.

    Joan Biskupic: That's a hard question. For most of this decade, there have been various efforts in Congress to discourage lawsuits and limit companies' liability for injuries caused by their products. Proposals haven't gotten very far. Lawmakers also have had growing concerns about the effectiveness of regulation and the need to protect consumers. When you begin talking about limiting lawsuits, you can't help but run into competing interests.

    That's it for today. Next week, "Holding Court" will switch from Friday to Thursday, July 29 at 10 a.m. EDT. Next Thursday's topic: Battles over the separation of church and state. How far can government go on school prayer – disputes in Congress and the courts.

    (On another bookkeeping note: we won't be here at all the week of Aug. 2. But we'll be back on Friday, Aug. 13 at 10 a.m. EDT with another special legal topic and talk about the justices.)

    © Copyright 1999 The Washington Post Company

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