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supreme court dispatches: Oral argument from the court.

Up in SmokeThe Supreme Court makes one of the year's biggest cases disappear.

By Dahlia Lithwick
Posted Tuesday, Oct. 31, 2006, at 6:45 PM ET

Wow. Maybe Justice Antonin Scalia was right last week when he suggested that Supreme Court reporters just aren't smart enough to do this job. Judging by the faces of my colleagues as they entered the pressroom today, it looked as though every last one of them had just tumbled down a rabbit hole and spent a perplexing hour of oral argument watching the Mad Hatter spinning platters.

Philip Morris v. Williams was supposed to be one of the biggest cases of the year, but oral argument turned it into one of the biggest messes of the year. What was supposed to be the major case testing when punitive damage awards are just too darn high disintegrated today into a skirmish over the wording of a jury instruction that was, in fact, never given to a jury. That means Philip Morris rested its argument on this unfalsifiable contention: If the jury had been given an instruction they never got, they would never have done the thing they did.

Confused yet?

Welcome to our world.

Jesse Williams smoked Marlboros for 47 years and died of lung cancer in 1997. His widow, Mayola, sued Philip Morris in Oregon, alleging that the company had mounted a decades-long campaign to deceive smokers about the health consequences of smoking. A jury awarded her $800,000 in compensatory damages and almost 100 times that amount, $79.5 million, in punitive damages. That award has been chewed over endlessly through various courts of appeal, and, in 2003, the Supreme Court sent it back to Oregon for reconsideration in light of its decision that year in State Farm v. Campbell. In State Farm, the Supreme Court found a punitive damages award to be excessive, suggesting that "single digit multipliers are more likely to comport with due process" where punitive damages are concerned. The court felt there ought to be a general "presumption against an award that has a 145-to-1 ratio."

When the Oregon Supreme Court got the case back, it nevertheless upheld the $79.5 million judgment. And Philip Morris argued on appeal that the jurors should have been given this instruction: "The size of any punishment should bear a reasonable relationship to the harm caused to Jesse Williams by the defendant's punishable misconduct. Although you may consider the extent of harm suffered by others in determining what that reasonable relationship is, you are not to punish the defendant for the impact of its alleged misconduct on other persons, who may bring lawsuits of their own." The Oregon Supreme Court thought that instruction misstated Oregon law. What's more, it ruled that even following State Farm, Philip Morris' conduct was so "extraordinarily reprehensible" that the punitive-damages award passed muster.

The sole question plaguing the justices today is this: How can the jury consider the impact of the defendant's conduct on people who aren't parties to the suit—in this case, other smokers—yet avoid punishing the defendant for the harm to them?

Andrew Frey represents Philip Morris this morning, and almost as soon as he starts talking, he's bringing up that jury instruction. Which is about when the wheels come off. Justice Ruth Bader Ginsburg stops him. About his proposed jury instruction, she says, "You don't think that would confuse the jury if they are first told that they may consider the extent of the harm suffered by others and then the next instruction seems to say they can't?" Justice David Souter agrees that if the instruction tells jurors to consider the impact on others, you can't also tell them not to punish for it. "I don't know how a juror is supposed to figure that out," he says.

Frey replies that this becomes a "one-way class action in which Philip Morris was exposed to global punishment by the jury without any of the protections of a class action."

Scalia suggests sending this mess back again to the Oregon Supreme Court. And when Frey attempts to counter that his proposed jury instruction simply restates the Supreme Court-mandated standard, Souter quips: "It was a good thing we weren't instructing a jury." Oddly enough, it becomes evident as the justices bang away at the jury instruction that most of them agree on two core ideas. The first is that you cannot punish a defendant for conduct affecting nonparties to the lawsuit. This would seem to make Philip Morris' instruction necessary. But the second is that the instruction is ridiculously confusing. Justice Stephen Breyer describes the case as a "bog of constitutional law, unclear state law and what was meant by whom in the context of trial."

Now what?

Robert Peck represents Mayola Williams, and he achieves the distinction of eliciting the following admission from Chief Justice John Roberts: "I thought our cases clearly establish that you can consider the harm to others in assessing the reprehensible nature of the conduct." Roberts adds that the case law also prohibits punishment of the defendant for harms to others. In other words, he seems to be saying, the proposed instruction is confused because our precedent is confused. In which case, why not send it back for the Oregon Supreme Court to fix?

It's the Roberts Court's New Minimalism: We screw up the law, then ship it out to the lower courts to correct it.

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Dahlia Lithwick is a Slate senior editor.
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