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• History of the Williams family's lawsuit against Philip Morris 

From The Oregonian of Monday, Feb. 22, 1999 -- Local Smoking suit seeks millions: The family of a Portland lung cancer victim wants Philip Morris Inc. to pay $110 million in damages

From The Oregonian of Monday, Feb. 22, 1999 -- Effort to pin tobacco ills on firms alights in Oregon: A $110 million suit against Philip Morris opens this week, and the case could be the next in a series of verdicts against cigarette-makers

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• U.S. Supreme Court Dismisses Punitive Damages Appeal 

"While we had hoped for a different outcome, the Supreme Court has decided not to review a narrow procedural ruling by the state court. Today's decision does not impact the court's earlier decisions on punitive damages," said Murray Garnick, Altria Client Services senior vice president and associate general counsel, speaking on behalf of Philip Morris USA. "Importantly, the Court did not disturb its 2007 Williams decision which held that a jury may not impose punitive damages for harm caused to anyone other than the plaintiff in a particular case," added Garnick.

The Court's decision, however, does not end the dispute, which has been ongoing for more than a decade. Oregon state law requires that sixty percent of any punitive damages award be paid to the state. Philip Morris USA believes that the Master Settlement Agreement, to which Oregon is a party, precludes the state from collecting any punitive damages award from the company. Oregon and Philip Morris USA are parties to a proceeding in Oregon state court that seeks a determination of whether the MSA bars the state from collecting punitive damages. If Philip Morris USA prevails, the company would be obligated to pay only the remaining forty percent of the punitive damages award to the plaintiff in this case.

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• Tobacco punitive verdict stands 

The Supreme Court chose on Tuesday, after examining the issue for the third time, not to disturb a punitive damages verdict now totaling more than $150 million, won by the widow of a heavy smoker who died of lung cancer. The Court dismissed a new appeal by Philip Morris USA, saying it had “improvidently granted” review last June. The case, heard on Dec. 3, was Philip Morris USA v. Williams (07-1216). . . .

The marathon, however, apparently is not over yet. Philip Morris, at an earlier stage in the case, reserved the right to challenge a state law that requires that 60 percent of a punitive verdict goes to the state of Oregon. The company’s argument against that is that Oregon has achieved all of the proceeds it is entitled to have under the global settlement of a group of states’ lawsuit against the industry.

Mrs. Williams’ lawyers, backed by the Oregon attorney general, have argued that the tobacco settlement only applied to that specific case, and thus would have no effect on the verdict in her case.

Philip Morris said Tuesday, after the new decision, that it was pursuing this issue in a proceeding now in state court.

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• Supreme Court Upholds $79.5 Tobacco Award  

The Supreme Court today dealt a blow to Philip Morris, saying it would not decide the cigarette-maker's challenge of a punitive damages award brought by the widow of a longtime smoker that now is worth nearly $150 million.

The court's decision, announced in a one-sentence order, was a surprising and anticlimactic ending to a case that has bounded back and forth through the judicial system for nearly a decade. When an Oregon jury awarded Mayola Williams nearly $80 million following the death of her husband Jesse, it was the largest award of its kind.

Even though the justices have strongly implied that the award was too large and twice sent the case back west, the Oregon Supreme Court found reasons to leave it as it was. After the Oregon justices declined to change its decision for a second time, lawyers for Philip Morris petitioned the high court to "vindicate" its authority.

Instead, the court today said it should not have accepted the case for a third time, and in the language of the court, dismissed the case as "improvidently granted."

Because the case was argued in early December and the court issued its decision only today, it suggests the justices had trouble coming together on how to solve the legal issues raised. . . .

But the justices said that maybe the Oregon court had a point, after all.

Justice Stephen G. Breyer, who wrote the court's 2007 decision in the case, said he thought at first that Oregon was giving the court the "runaround." But after studying the case more closely, he said, "I'm not sure that I think that now."

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• PHILIP MORRIS USA INC. v. MAYOLA WILLIAMS: ORAL ARGUMENT (PDF) 

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• Philip Morris' Legal Smoke Screen 

In the Supreme Court on Wednesday, Philip Morris, America's largest cigarette company, compared itself to the NAACP. And to a South Carolina death row inmate illegally denied due process. And to indigent criminal defendants not afforded adequate legal representation. And it did so to win a case against an elderly African American woman named Mayola Williams whose husband died from lung cancer in 1997, after smoking three packs of Marlboros a day for more than 40 years.

The tobacco company has declared itself a civil rights victim, says Ray Thomas, one of Williams' lawyers. "That they have the gall to do that shows how brazen they are," he says. . . .

To give Philip Morris a victory, the high court would have to find some way to square such a decision with its general approach to criminal cases--which is not an easy act of jurisprudence. Indeed, Justice Anthony Kennedy, the court's new swing voter, wrote a dissent in Kemna, joined by Justices Antonin Scalia and Clarence Thomas, in which he bashed the majority for disrespecting state courts and for not allowing the Missouri Court of Appeals to enforce its own rules.

Unfortunately, perhaps, for Williams, Kennedy seemed to have forgotten that case on Wednesday. His comments during oral arguments suggest that he was mighty upset that the Oregon Supreme Court had defied a direct order from the high court, however cleverly it might have done it. . . .

Breyer's conversion had Robert Peck, the lawyer who argued the case for Williams, beaming after the arguments. Peck had gone into court as the underdog. The day before the arguments, Thomas, his cocounsel, had despaired that the court had not taken up the case "to do any good for Mayola Williams," who is now in her late '70s and who will be lucky to live long enough to see the decade-long litigation resolved in her favor. Yet after hearing Breyer's questions, Peck remarked after the hearing, "This is not necessarily the case [the justices] thought it was." Indeed, it's not such a stretch to believe that the court just might find that Oregon is not Alabama, and Philip Morris is not the NAACP.

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• New briefing on tobacco case? Maybe 

After spending nearly a full hour Wednesday morning on the minutiae of jury instructions and Oregon state court precedents, the Supreme Court began thinking about a bolder approach: should it start over with a new round of briefing in the major new tobacco punitive damages case? That was the suggestion thrown out by Chief Justice John G. Roberts, Jr., as the Court was about to wind up its hearing on Philip Morris USA v. Williams (07-1216). The idea, perhaps, will be explored further when the Court meets in private on Friday to discuss what to do about the case.

Roberts’ suggestion came after three of his colleagues — Justice David H. Souter, doing so fervently, and Justices Anthony M. Kennedy and Stephen G. Breyer, somewhat obliquely — raised a concern that the Court needed a way to assure that when it makes a constitutional ruling, lower courts will not nullify it by coming up with a procedural escape hatch. . . .

The state court’s response was the main focus of most of Wednesday’s argument. The Court, in granting review of Philip Morris’ new challenge last June, had agreed to hear only the validity of that response by the state court. The Court did not grant review on a second issue the company had put forth: whether the $79.5 million verdict was just too high, under Supreme Court constitutional limitations.

But the Chief Justice, reacting to the way the hearing unfolded in late stages on Wednesday, suggested that the Court might now grant review of the second issue, and order new briefing and argument on it (something that still could be accomplished this Term). That, Roberts said, would be one way the Court could avoid a ruling that might encourage state courts to defy constitutional rulings. In short, the Court would be addressing the constitutionality of the $79.5 million verdict on “excessiveness” grounds rather than on the refusal-to-obey issue that Philip Morris had also raised. (That, incidentally, also would have the virtue of the Court not having to say unpleasant things about the Oregon Supreme Court.)

Both lawyers in the case — Stephen M. Shapiro for Philip Morris, Robert S. Peck for Mrs. Williams — did not embrace the idea with enthusiasm

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• Supreme Court hears Oregon tobacco case - again  

the specific point at issue during the one-hour session was narrow and new - whether the Oregon Supreme Court refused to follow directions from the nation's highest court.

``The Oregon court failed to follow this court's ruling,'' Philip Morris attorney Stephen M. Shaprio told the justices. He told the court that Oregon court's conduct was an ``ambush'' that brought new issues into debate rather than precisely addressing those raised by U.S. Supreme Court.

The issue centered on the instructions that the trial judge allowed to be read to jurors. Philip Morris aruged that the judge incorrectly allowed jurors to be told that Philip Morris could be punished not just for the death of Jesse Williams, a three-pack-a-day smoker, but for harms suffered by other unidentified smokers in Oregon. . . .

Surprisingly, the most aggressive questions were directed to Shapiro, the attorney for Philip Morris. Justices Stephen Breyer, David Souter, and to a lesser extent, Ruth Bader Ginsberg suggested that the Oregon judges acted appropriately.

``If we accept your position,'' Souter told Shapiro, ``we're going to say the other side will not be able to argue (new points) before the Oregon Supreme Court. That seems like a steep hill to climb.''

The attorney for Mayola Williams, told the court that the Oregon Supreme Court was justified in denying Philip Morris' proposed instruction to the jury because it was not ``clear and correct in all respects'' as required by Oregon courts.

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• Argument preview: Tobacco case, 3rd round  

Philip Morris's task on this third appeal is to hold together the five-Justice majority that sent the case back to the Oregon Supreme Court. The other four Justices seem beyond its reach: they already had found the $79.5 million punitive verdict to be valid. It is thus unlikely that they would take a different stance just because the state court had found a new way to sustain that verdict – unless, of course, they were to accept the argument that the state court had “defied” a clear Supreme Court mandate.

The five Justices who ordered the new look are unlikely to read the state Supreme Court's response as negatively as Philip Morris has characterized it, and yet they could see in that response a threat to the integrity of the constitutional rule against punishing for harm to non-parties. That was a major development in the push to narrow the scope of punitive damages in general, as a majority of the Court, made up of different Justices, has been attempting to do since at least 1993.

It would appear that Mayola Williams' lawyers have done a fairly good job of defending the pedigree of the state procedural rule at issue, so the Court may not be so ready to accept Philip Morris' characterization of it as novel and perhaps even surprising. Rather than get into the niceties of state law interpretation, the Court's majority may want to reach for a simpler response: simply order a new trial, and let both sides take their chances.

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• Altria Makes Third High Court Bid to Limit Damages for Smokers 

Twice, the U.S. Supreme Court has set aside a $79.5 million award in an Oregon smoker case against Altria Group Inc.’s Philip Morris USA unit. Twice, the Oregon Supreme Court has reinstated the damages.

Philip Morris is now back before the nation’s highest court for a third round, asking the justices to go further this time by ordering a new trial and wiping out what would be a record payment in a smoker lawsuit. The court will hear arguments from the nation’s largest cigarette maker today in Washington.

Philip Morris and its allies say judges in Oregon and elsewhere aren’t always complying with recent Supreme Court decisions that tightened the constitutional limits on punitive damages. Corporate groups want the high court to tell judges to get serious about limiting the damages.

The case “could be very significant depending on the force of the court’s opinion,” said Jonathan Hacker, a Washington attorney who filed a brief for the U.S. Chamber of Commerce supporting Philip Morris.

For tobacco foes, today’s hearing symbolizes the success of the cigarette industry’s uncompromising approach toward litigation -- one that seven anti-tobacco groups described in a court filing as an “endless appeal” strategy.

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• For the Session Beginning December 1, 2008  

Wednesday, December 3

07-1216 PHILIP MORRIS USA INC. V. WILLIAMS

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• 07-1216 PHILIP MORRIS USA V. WILLIAMS (PDF) 

This Court then remanded the case to the Oregon Supreme Court with directions to “apply the [constitutional] standard we have set forth.” Ibid. On remand, however, the Oregon Supreme Court refused to follow this Court’s directive. Instead, the Oregon court “adhered to” the judgment that this Court had vacated because it found that Philip Morris had procedurally defaulted under state law and thereby forfeited its claim of federal constitutional error. . . .

The questions presented—the second of which was accepted for review but not reached when this case was last before the Court—are:

1. Whether, after this Court has adjudicated the merits of a party’s federal claim and remanded the case to state court with instructions to “apply” the correct constitutional standard, the state court may interpose—for the first time in the litigation—a state-law procedural bar that is neither firmly established nor regularly followed.

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• Docket for 07-1216 

Jun 9 2008 Petition GRANTED limited to Question 1 presented by the petition for certiorari.

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• Court reopens punitive damages case 

In stepping back into the dispute, the Court declined to hear Philip Morris’ new constitutional challenge to the size of the punitive verdict. Instead, the Court limited its review to the Oregon Supreme Court’s latest ruling, scuttling Philip Morris’ challenge because of a legal defect it found in the trial. Even so, the case does pose a significant constitutional conflict between the Supreme Court’s authority to have its rulings applied, and a state court’s authority to manage its own state procedural rules. The tobacco company appeal contends that the state court defied the Supreme Court’s most recent ruling, a clear victory for Philip Morris — that is, until the case got back to state court. The new appeal is Philip Morris USA v. Williams (07-1216). . . .

The state court said in its new ruling that the trial judge did not err in refusing to give the proposed instruction, because it was flawed, misstating state law on two aspects of punitive damages. It said its prior ruling upholding the punitive award still stood, since the Supreme Court had told the state court only to reconsider the failure to give the instruction that Philip Morris had proposed on awards to “strangers” to the lawsuit. The flaw in the instructions, it said, provided an adequate and independent state law basis for upholding the verdict.

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• Court will again hear Portland widow's case 

A battle between a Portland janitor's widow and the world's largest cigarette maker is headed back to the nation's highest court. . . .

Anthony Sebok, a professor at Benjamin N. Cardozo School of Law in New York, said he had little doubt that the Supreme Court took the case to overturn it.

"I think the Supreme Court feels -- rightfully so -- that the state Supreme Court acted in an inappropriate fashion," Sebok said.

But other court-watchers are less certain of what the court will do.

Howard Bashman, a Pennsylvania appellate lawyer who runs "How Appealing," a popular legal blog, said many observers expected the U.S. Supreme Court to reverse the case outright on Monday.

Instead, it will hold a hearing in the fall and probably rule next year.

"I view this as an indication that it's not an open-and-shut case," Bashman said.

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