Institute for Civil Justice Policy Symposium

The Role of Empirical and Experimental Research in the Constitutional and Common Law Development of Punitive Damages

DATE	May 13, 2009
TIME	8:00 a.m — 1:00 p.m.
LOCATION	O'Melveny & Myers LLP New York Office Times Square Tower 7 Times Square New York, NY 10036

Overview

Co-sponsored by the RAND Institute for Civil Justice (ICJ) and O'Melveny & Myers LLP, this invitation-only event is designed as a high-level policy symposium for senior corporate counsel and academicians interested in the future of punitive damages law and policy. Attendees will hear presentations on the latest empirical and experimental research on punitive damages and its influence on recent decisions of the United States Supreme Court, followed by a panel discussion and question-and-answer session with leading punitive damages experts. To ensure a productive and interactive discussion, attendance will be limited to approximately 30 participants.

Program Description

In an important series of opinions culminating in last June's Exxon Valdez decision, the U.S. Supreme Court has established both constitutional and federal common law limits on punitive damages. The Court initially had very little data on punitive damages to inform its decisions, but over the years both litigants and amici have presented the Court with a growing body of empirical and experimental research on the frequency, size, and predictability of punitive awards. In this program, leading punitive damages researchers and litigators will review both the results of that research and the way it has influenced the Supreme Court's decisions. The program will conclude with a panel discussion exploring how this body of research, and the Supreme Court's treatment of it, may also influence punitive damages law and policy in the states, and perhaps also law and policy on non-economic damages generally.

8:00 a.m.	Welcome and Breakfast
8:30 a.m.	Introductions
8:45 a.m.	Presentation: Empirical and Experimental Literature on Punitive Damages: Findings, Limitations, and Unanswered Questions
9:35 a.m.	Presentation: The Influence of Empirical and Experimental Literature on the Supreme Court's Punitive Damages Jurisprudence
10:45 a.m.	Panel discussion: Public Policy Implications for Courts and Legislatures: Punitive Damages and Beyond
11:30 a.m.	Interactive Dialogue: Ideas and Opportunities for Future Research
12:15 p.m.	Closing Remarks and Lunch

Featured Speakers

Charles C. Lifland, a Los Angeles-based partner in O'Melveny & Myers LLP, specializes in class action and appellate litigation in the areas of mass torts, antitrust and unfair business practices, securities, and punitive damages. Recently named one of the "Top 100 Lawyers in California" and a "California Lawyer Attorney of the Year" in the field of appellate law, Mr. Lifland has been lead or co-lead counsel in numerous punitive damages appeals, including Exxon Shipping Co. v. Baker (U.S. 2008) (reducing multibillion dollar Exxon Valdez punitive award to $500 million), Exxon Mobil Corp. v. Alabama (Ala. 2007) (reversing $3.5 billion punitive award), Merck & Co. v. Ernst (Tex. App. 2008) (reversing $253 million jury verdict from first Vioxx trial), and McDarby v. Merck & Co. (N.J. App. 2008) (reversing $9 million punitive award). Mr. Lifland is also an Adjunct Professor at the UCLA School of Law, where he teaches an appellate practice clinic, and a member of the RAND ICJ Board of Overseers. Mr. Lifland received his B.A. from Yale and his J.D. from Harvard.

Nicholas M. Pace is a researcher with the RAND Institute for Civil Justice who has contributed his expertise in civil justice-related research methodology to many ICJ projects. Most recently, he led a study on class actions against insurers. Other notable work has included examining the impact of statutory reforms on costs and outcomes in medical malpractice cases and leading a comprehensive study of the workers' compensation courts in California. Mr. Pace has analyzed jury verdict outcomes with a special focus on punitive damage awards, studied the dynamics of class action litigation and recommended new managerial approaches for class action judges, participated in an in-depth evaluation of the Civil Justice Reform Act of 1990 and its effects on federal district court case management, and assisted in the development of national electronic filing standards for civil courts. Currently he leads the ICJ's research agenda into civil jury verdicts, which includes studies of post-trial adjustments to jury awards, the impact of the Class Action Fairness Act of 2005, and the benefits actually conferred to class members by class action settlements.

Featured Panelists

Christopher L. Gaenzle is Senior Corporate Counsel at Pfizer Inc and is responsible for a portfolio of the Company's mass tort, product liability and consumer fraud litigations including several of the company's major therapeutic drug lines, as well as antirust and commercial matters. Recently, he coordinated Pfizer's $745 million Cox-2 personal injury settlements and is overseeing the pending Bextra and Celebrex consumer fraud class action settlement. Mr. Gaenzle has coordinated strategy for a number of Pfizer trials, including bifurcated and non-bifurcated punitive damages phases in federal and state court. Prior to joining Pfizer, Mr. Gaenzle was a partner at Hunton & Williams, with a practice that focused on complex product liability litigation, including pharmaceutical, tobacco and medical malpractice litigation. He served on the trial team of a major Florida class action and has conducted extensive voir dire jury research, including on the issue of punitive damages. In 2002, Mr. Gaenzle represented a mother of two before the September 11^th Victims Compensation Fund and helped the family obtain compensation in the top five percent of all awards.

Robert S. Peck is president of the Center for Constitutional Litigation, PC, a Washington, DC law firm, and serves on the adjunct law faculties at American and George Washington universities. He argued the punitive damage case of Philip Morris USA v. Williams (2007) before the U.S. Supreme Court and argued that case again before the Court in December 2008. He is a member of the Board of Overseers of the RAND Institute for Civil Justice and the Board of Directors of the National Center for State Courts. He is a past president of the U.S. Supreme Court Fellows Alumni Association. Mr. Peck is the author or editor of seven books, including Libraries, Cyberspace and the First Amendment (ALA Editions 2000), The Bill of Rights and the Politics of Interpretation (West Publishing 1992), and We the People: The Constitution in American Life (Harry Abrams 1987), companion volume to the award-winning public television series for which he served as project director and senior script consultant.

George L. Priest is a Professor of Law and Economics at Yale Law School. He is the Director of the John M. Olin Center for Law, Economics and Public Policy, which facilitates the scholarly work of the Yale law and economics faculty and supports student interest and research in the field. Before coming to Yale, Professor Priest taught at the University of Chicago, SUNY/Buffalo, and UCLA. His subject areas are antitrust; capitalism or democracy; products liability; regulated industries; insurance and public policy; constitutional law; federalism; state and local government law; and civil procedure. He has lectured and written extensively on punitive damages for over 20 years, and authored the introduction to "Punitive Damages: How Juries Decide" (2002). Professor Priest has a B.A. from Yale and a J.D. from the University of Chicago.

Catherine Sharkey is Professor of Law at New York University School of Law. She has published numerous scholarly articles in her areas of expertise: punitive damages, federal preemption of state products liability law, class actions, and empirical legal studies. Professor Sharkey testified as an academic expert on punitive damages before the California State Assembly Committee on the Judiciary regarding Governor Schwarzenegger's proposal to divert 75% of punitive damages awards to the state. She is a senior editor of the peer-reviewed Journal of Tort Law. After graduating from Yale Law School, she served as law clerk to the Honorable Guido Calabresi of the United States Court of Appeals for the Second Circuit and to the Honorable David H. Souter of the United States Supreme Court.

Related Resources