Olson v. Brenntag N. Am., Inc.

Decision Date28 May 2019
Docket Number190328/2017
Citation64 Misc.3d 457,101 N.Y.S.3d 570
CourtNew York Supreme Court
Parties Donna OLSON and Robert Olson, Plaintiffs, v. BRENNTAG NORTH AMERICA, INC., Brenntag Specialties, Inc., Individually, and f/k/a Mineral Pigment Solutions, Inc., as Successor-in-interest to Whittaker, Clark & Daniels, Inc., Cyprus Amax Minerals Company, Individually and as Successor-in-interest to American Talc Company, Metropolitan Talc Company, Inc., Charles Mathieu, Inc., and Resource Processors, Inc., Imerys Talc America, Inc., Johnson & Johnson, Johnson & Johnson Consumer, Inc., Whittaker, Clark & Daniels, Inc., Individually and as Successor-in-interest to American Talc Company, Metropolitan Talc Company, Inc., Charles Mathieu, Inc., and Resource Processors, Inc., Defendants.

Levy Konigsberg, LLP (Jerome H. Block of counsel), and Maune Raichle Hartley French & Mudd, LLC (Christian H. Hartley, Suzanne Ratcliffe, and Margaret Samadi of counsel), for plaintiffs.

Kirkland & Ellis LLP (Robert "Mike" Brock, Barry E. Fields, and Stacey G. Pagonis of counsel) and Paterson Belknap Webb & Tyler LLP (John D. Winter, Thomas P. Kurland, and Louis M. Russo of counsel) for defendants Johnson & Johnson and Johnson & Johnson Consumer Inc.

Gerald Lebovits, J.

On May 21, 2019, in Phase I of the trial in this asbestos-related action, a jury found defendants Johnson & Johnson and Johnson & Johnson Consumer Inc. (collectively, J & J) liable for plaintiffs' injuries and awarded compensatory damages. The jury also found that J & J should be assessed punitive damages. The same jury in Phase II of this trial will shortly determine the size of the punitive-damages award. Phase 2 will be conducted under Section XXIV of the New York City Asbestos Litigation (NYCAL) Case Management Order (CMO).

Now before the court is the question of what evidence the jury may consider in Phase II. Beyond the evidence admitted at Phase I, plaintiffs have proposed a list of exhibits they wish to introduce. J & J categorically objects to the introduction of any new evidence at Phase II. In the alternative, J & J has raised evidentiary objections to plaintiffs' proposed exhibits.

Whether new evidence may be introduced at the punitive-damages phase of a NYCAL action—and if so, the scope of the evidence the parties may introduce—is of first impression. The current action is the first case since 1994, and probably earlier, in which a NYCAL jury will be asked to determine a punitive-damages award at all.

This court has considered the parties' helpful arguments and submissions and announced its rulings on the record. The basis for some of those rulings is set forth in more detail below.1

I. Admissibility of New Evidence at Phase II

J & J contends as a threshold matter that the only new evidence that may be introduced at Phase II is evidence of J & J's financial condition in the form of the documents described in CMO § XXIV.B. (See J & J's Phase II Mem. of Law at 3-4, NYSCEF No. 765.) This court disagrees.

Section XXIV of the CMO does not limit the scope of Phase II to evidence already introduced at Phase I. Rather, CMO § XXIV.C provides only that if the jury finds in Phase I "that the plaintiff is entitled to punitive damages, then the jury shall determine the quantification of damages in Phase II," based on the "presentation of evidence, closing statements by counsel, and appropriate instructions by the Court."

Defendants rely on the fact that Subdivision XXIV.B permits limited discovery into a defendant's financial condition. But that subdivision permits that discovery because a "defendant's ability to pay punitive damages is a factor to be considered by a jury" in Phase II. Neither Subdivision XXIV.B nor Subdivision XXIV.C purports to limit the scope of Phase II to the financial-condition evidence described in CMO § XXIV.B.

Additionally, New York law has historically permitted the parties to introduce "additional evidence as they see fit" at the punitive-damages phase of trial, so long as the evidence is relevant "on the question of the amount of damages to which plaintiffs are entitled." ( James D. Vollertsen Assoc. v. John T. Nothnagle, Inc. , 48 A.D.2d 1007, 1007, 369 N.Y.S.2d 267 [4th Dept. 1975].)

To be sure, the parties should avoid lengthy and potentially duplicative presentations of evidence on punitive damages at Phase II here, particularly in view of the long duration of Phase I. But the need judiciously to streamline the parties' Phase II presentations does not require wholesale preclusion of new evidence beyond financial condition.

II. Admissibility of Post-2015 Evidence

Plaintiffs seek to present evidence of recent conduct and statements by J & J—that is, evidence dating from after Ms. Olson stopped using Johnson's Baby Powder in 2015—that assertedly shows J & J has continued to misrepresent and conceal the dangers presented by asbestos contamination of J & J's talc.2

Defendants argue that the jury is categorically barred as a due-process matter from taking post-2015 evidence into account. Defendants also raise First Amendment and hearsay challenges to its admission. (See J & J Mem. of Law at 5-7, 9-11.)

This court concludes that plaintiffs may not present evidence of post-2015 conduct or statements by J & J in Phase II of this trial. The jury may not award punitive damages to punish J & J for any harm that J & J inflicted on nonparties. And because J & J's post-2015 conduct could not and did not harm plaintiffs here, it is not probative regarding the reprehensibility of J & J's wrongful conduct that did harm plaintiffs.3

A. The Purpose of Punitive Damages is to Punish the Wrongdoer for the Harm Inflicted on a Plaintiff.

Punitive damages are intended to "punish the tortfeasor and to deter this wrongdoer and others similarly situated from indulging in the same conduct in the future." ( Ross v. Louise Wise Servs. , 8 N.Y.3d 478, 489, 836 N.Y.S.2d 509, 868 N.E.2d 189 [2007].) They are permitted when the wrongdoing at issue "evince[s] a high degree of moral turpitude and demonstrate[s] such wanton dishonesty as to imply a criminal indifference to civil obligations." ( Id. )

Thus, the question is whether "the wrong is aggravated by evil motives," so that punitives should be allowed to "punish the wrongdoer for his misconduct and furnish a wholesome example." ( Merrick v. Four Star Stage Lighting , 60 A.D.2d 806, 807, 400 N.Y.S.2d 543 [1st Dept. 1978] [emphasis added].)

Punitive damages are therefore tied closely to a particular wrong for which a plaintiff seeks compensatory damages.4 A plaintiff may not plead punitive damages as a freestanding cause of action (see Jean v. Chinitz , 163 A.D.3d 497, 498, 83 N.Y.S.3d 55 [1st Dept. 2018] ); and a plaintiff may not obtain punitive damages if the compensatory claim to which those damages would relate has been dismissed (see Prote Contracting Co. v. Bd. of Educ. of the City of New York , 276 A.D.2d 309, 310, 714 N.Y.S.2d 36 [1st Dept. 2000] ).

Applying these principles, the Court of Appeals and the Appellate Division, First Department, have held that a plaintiff may not obtain punitive damages for distinct wrongful conduct that post-dates the period covered by a plaintiff's causes of action. (See Ross , 8 N.Y.3d at 491, 836 N.Y.S.2d 509, 868 N.E.2d 189 ; Juman v. Louise Wise Servs. , 3 A.D.3d 309, 310, 770 N.Y.S.2d 305 [1st Dept. 2004] [affirming dismissal of plaintiff's request for punitive damages based on defendant's post-1983 conduct, where plaintiff's claim of liability was based on defendant's conduct in 1966].)5

B. Punitive Damages May Not be Assessed for Wrongdoing Unrelated to the Harm Inflicted on a Plaintiff.

By the same token, where, as here, the factfinder has determined that punitive damages should be assessed, the amount of punitive damages must be tied as well to the particular wrong the defendant committed.

This limitation is reflected in the language of New York's Pattern Jury Instructions (PJI), which suggest that trial judges should instruct the jury to "consider the nature and reprehensibility of what [defendant] did," including the character, motivation, and duration of defendant's wrongful conduct, the defendant's awareness of potential harm to others from its conduct, the scope of the actual harm resulting from that conduct, and "any concealment or covering up of the wrongdoing." ( PJI 2:278.) Each of these factors—which the PJI phrases in the past tense—is tied to the particular wrongs a defendant committed against a plaintiff.

The U.S. Supreme Court has made clear that this requirement is one of constitutional dimension. In State Farm Mut. Automotive Ins. v. Campbell, 538 U.S. 408, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003), the Court reversed a punitive-damages award rendered by the courts of Utah, holding that the award violated the Due Process Clause of the U.S. Constitution.

The Court held that the Utah courts erred by awarding "punitive damages to punish and deter conduct that bore no relation to the [plaintiffs'] harm." ( 538 U.S. at 422, 123 S.Ct. 1513.) Due process requires instead that a defendant be punished only "for the conduct that harmed the plaintiff"—and that the need to determine the reprehensibility of a defendant's conduct for punitive damages purposes does not license courts "to adjudicate the merits of other parties' hypothetical claims against a defendant." ( Id. at 423, 123 S.Ct. 1513.)

The Supreme Court extended this ruling in Philip Morris USA v. Williams, 549 U.S. 346, 127 S.Ct. 1057, 166 L.Ed.2d 940 (2007). There, the Court reversed a punitive-damages award rendered by the courts of Oregon. The Court held that the award violated the Due Process Clause, because the award punished "a defendant for injury that it inflicts upon nonparties," individuals "who are, essentially, strangers to the litigation."

The Court explained that defendants lack the necessary information to defend themselves properly against a punitive-damages claim based on harm to nonparties and...

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1 cases
  • Olson v. Brenntag N. Am., Inc.
    • United States
    • New York Supreme Court
    • 11 Noviembre 2020
    ...). But the holdings of those cases are fully consistent with the jury's punitive-damages verdict. (See Olson v. Brenntag N. Am., Inc. , 64 Misc 3d 457, 462-464 [Sup Ct, NY County 2019] [discussing State Farm and Philip Morris ].)As relevant here, State Farm stands for the proposition that a......
3 books & journal articles
  • Relevance & materiality
    • United States
    • James Publishing Practical Law Books Archive New York Objections - 2020 Contents
    • 2 Agosto 2020
    ...v. Alvino , 71 N.Y.2d 233, 525 N.Y.S.2d 7 (1987); People v. Harris , 26 N.Y.3d 1, 40 N.E.3d 560 (2015); Olson v. Brenntag N. Am., Inc. , 64 Misc. 3d 457, 101 N.Y.S.3d 570 (Sup. Ct., New York County, 2019) (defendant’s advertisements admissible to show the reprehensibility of defendant’s fai......
  • Relevance, materiality & presumptions
    • United States
    • James Publishing Practical Law Books Archive New York Objections - 2021 Contents
    • 2 Agosto 2021
    ...v. Alvino , 71 N.Y.2d 233, 525 N.Y.S.2d 7 (1987); People v. Harris , 26 N.Y.3d 1, 40 N.E.3d 560 (2015); Olson v. Brenntag N. Am., Inc. , 64 Misc. 3d 457, 101 N.Y.S.3d 570 (Sup. Ct., New York County, 2019) (Lebovits, J.) (defendant’s advertisements admissible to show the reprehensibility of ......
  • Relevance, materiality & presumptions
    • United States
    • James Publishing Practical Law Books New York Objections
    • 3 Mayo 2022
    ...& MATERIALITY 4-5 Relevance, Materiality & Presumptions §4:35 N.Y.2d 233, 525 N.Y.S.2d 7 (1987); Olson v. Brenntag N. Am., Inc. , 64 Misc. 3d 457, 101 N.Y.S.3d 570 (Sup. Ct., New York County, 2019) (Lebovits, J.) (defendant’s advertisements were admissible to show the reprehensibility of de......

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