`
`No. 17-1213
`
`IN THE
`Supreme Court of the United States
`
`GENERAL MOTORS LLC,
`
`Petitioner,
`
`v.
`
`MICHAEL BAVLSIK & KATHLEEN SKELLY,
`Respondents.
`
`On Petition for Writ of Certiorari to the
`United States Court of Appeals
`for the Eighth Circuit
`
`BRIEF FOR AMICUS CURIAE THE CHAMBER OF
`COMMERCE OF THE UNITED STATES OF
`AMERICA IN SUPPORT OF PETITIONER
`
`STEVEN P. LEHOTSKY
`JANET GALERIA
`U.S. CHAMBER
`LITIGATION CENTER
`1615 H Street, NW
`Washington, DC 20062
`(202) 463-5337
`slehotsky@uschamber.com
`
`
`DONALD B. VERRILLI JR.
`
`Counsel of Record
`GINGER D. ANDERS
`MUNGER, TOLLES & OLSON LLP
`1155 F. Street, NW, 7th Floor
`Washington, D.C. 20004
`(202) 220-1100
`donald.verrilli@mto.com
`
`JORDAN D. SEGALL
`MUNGER, TOLLES & OLSON LLP
`350 S. Grand Ave., 50th Floor
`Los Angeles, California 90071
`(213) 683-9208
`
`Counsel for Amicus Curiae the Chamber of Commerce of the
`United States of America
`
`
`
`
`
`
`
`
`
`TABLE OF CONTENTS
`
`Page
`
`TABLE OF AUTHORITIES ......................................... i
`
`INTEREST OF AMICUS CURIAE ............................ 1
`
`INTRODUCTION AND SUMMARY OF THE
`ARGUMENT................................................................ 2
`
`ARGUMENT................................................................ 4
`
`I. THE DECISION BELOW LICENSES
`TRIAL COURTS TO IGNORE STRONG
`EVIDENCE OF COMPROMISE
`VERDICTS .......................................................... 4
`
`A. Empirical Evidence Shows That Trials
`Typically Have Clear Winners and
`Losers ................................................................ 4
`
`B. Inadequate Damages Awards Strongly
`Suggest Improper Compromise, and
`Were Viewed As Virtually Dispositive
`Evidence of Compromise At the Time
`Gasoline Products Was Decided ....................... 6
`
`II. THE GASOLINE PRODUCTS
`PRESUMPTION AGAINST DAMAGES-
`ONLY RETRIALS APPLIES WITH
`PARTICULAR FORCE IN
`CONTEMPORARY LITIGATION ...................... 9
`
`
`
`
`
`ii
`
`III. BECAUSE DAMAGES-ONLY RETRIALS
`POSE A HEIGHTENED RISK OF
`ARBITRARY DAMAGES AWARDS,
`COURTS SHOULD HESITATE TO
`ORDER THEM WHERE THERE MAY
`HAVE BEEN A COMPROMISE
`VERDICT ........................................................... 13
`
`IV. BUSINESSES WILL BEAR THE BRUNT
`OF A RULE FAVORING DAMAGES-
`ONLY RETRIALS FOLLOWING
`POSSIBLE COMPROMISE VERDICTS .......... 18
`
`CONCLUSION .......................................................... 22
`
`
`
`
`
`
`
`
`CASES
`
`TABLE OF AUTHORITIES
`
`Page
`
`Casey v. Kaiser Gypsum Co., Inc.,
`No. A133062, 2016 WL 258670
`(Cal. Ct. App. Jan. 21, 2016).................... 15, 16, 17
`
`Collins v. Marriott Int’l, Inc.,
`749 F.3d 951 (11th Cir. 2014) .......................... 3, 18
`
`Duarte v. Zachariah,
`22 Cal. App. 4th 1652 (1994) ............................... 11
`
`Edman v. Marano,
`177 F. App’x 884 (11th Cir. 2006)........................ 14
`
`Gasoline Products Co. v. Champlin Refining Co.,
`283 U.S. 494 (1931) ...................................... passim
`
`In re Air Crash at Lexington, Kentucky,
`No. CIV.A 5:06-CV-316-KSF,
`2009 WL 6056005 (E.D. Ky. Nov. 10, 2009) ........ 14
`
`James Turner & Sons v. Great N. Ry. Co.,
`272 N.W. 489 (N.D. 1937) .................................. 6, 7
`
`Li v. Yellow Cab Co.,
`13 Cal. 3d 804 (1975) ........................................... 11
`
`Lindenfield v. Dorazio by Dorazio,
`606 So. 2d 1255 (Fla. Dist. Ct. App. 1992) .......... 15
`
`
`
`
`
`ii
`
`Mangan v. Foley,
`33 Mo. App. 250 (1888) ........................................ 18
`
`Phav v. Trueblood, Inc.,
`915 F.2d 764 (1st Cir. 1990) ................................ 19
`
`Pryer v. C.O. 3 Slavic,
`251 F.3d 448 (3d Cir. 2001) ................................. 15
`
`Rose v. Melody Lane,
`39 Cal. 2d 481 (1952) ............................................. 7
`
`Schuerholz v. Roach,
`58 F.2d 32 (4th Cir. 1932) ...................................... 7
`
`Simmons v. Fish,
`97 N.E. 102 (Mass. 1912) ............................... 6, 7, 9
`
`Vieth v. Jubelirer,
`541 U.S. 267 (2004) ................................................ 9
`
`Watts v. Laurent,
`774 F.2d 168 (7th Cir. 1985) .......................... 14, 15
`
`Wheatley v. Beetar,
`637 F.2d 863 (2d Cir. 1980) ................................. 14
`
`Whitehead ex rel. Whitehead v. K Mart Corp.,
`173 F. Supp. 2d 553 (S.D. Miss. 2000) ................ 14
`
`CONSTITUTIONAL PROVISIONS
`
`U.S. Const. amend. VII ............................................... 9
`
`
`
`
`
`OTHER AUTHORITIES
`
`iii
`
`Audrey Chin & Mark A. Peterson, Deep Pockets,
`Empty Pockets: Who Wins in Cook County
`Jury Trials (RAND Corp. 1985) .......................... 20
`
`Byron G. Stier, Jackpot Justice: Verdict
`Variability and the Mass Tort Class
`Action, 80 Temple L. Rev. 1013 (2007) ................ 11
`
`Donald R. Wilson, The Motion for New Trial
`Based on Inadequacy of Damages
`Awarded, 39 Neb. L. Rev. 694 (1960) .................... 7
`
`Edith Greene et al., Compensating
`Plaintiffs and Punishing Defendants:
`Is Bifurcation Necessary?,
`24 Law & Hum. Behav. 187 (2000) ..................... 20
`
`Edward J. McCaffrey et al., Framing the Jury:
`Cognitive Perspectives on Pain and Suffering
`Awards, 81 Va. L. Rev. 1341 (1995) .................... 11
`
`Harry Kalven, Jr. & Hans Zeisel,
`The American Jury (1966) ................................... 19
`
`Lawrence Friedman,
`A History of American Law (3d ed. 2005) ........... 10
`
`Peter H. Schuck, Mass Torts: An
`Institutional Evolutionist Perspective,
`80 Cornell L. Rev. 941 (1995) .............................. 11
`
`
`
`
`
`iv
`
`Robert J. MacCoun, Differential
`Treatment of Corporate Defendants
`by Juries: An Examination of the
`“Deep-Pockets” Hypothesis,
`30 L. & Soc’y Rev. 121 (1996) .............................. 20
`
`Samuel R. Gross & Kent D. Syverud,
`Don’t Try: Civil Jury Verdicts in a
`System Geared to Settlement,
`44 UCLA L. Rev. 1 (1996) ...................................... 5
`
`Shari Seidman Diamond et al., Juror
`Judgments About Liability and
`Damages: Sources of Variability and
`Ways to Increase Consistency,
`48 DePaul L. Rev. 301 (1998) .............................. 11
`
`Stephan Landsman et al., Be Careful What
`You Wish For: The Paradoxical Effects of
`Bifurcating Claims for Punitive Damages,
`1998 Wis. L. Rev. 297 (1998) ................................. 5
`
`U.S. Chamber Institute for Legal Reform,
`Laboratories of Tort Law (2014) ............................ 9
`
`Valerie P. Hans, The Jury’s Response to
`Business & Corporate Wrongdoing,
`52 L & Contemp. Probs. 177 (1989) .................... 19
`
`
`
`
`
`
`
`
`
`INTEREST OF AMICUS CURIAE1
`
`The Chamber of Commerce of the United States of
`America (“Chamber”) is the world’s largest business
`federation. It represents 300,000 direct members and
`indirectly represents the interests of more than three
`million businesses and professional organizations of
`every size and in every sector and geographic region of
`the country. An important function of the Chamber is
`to represent the interests of its members in matters
`before Congress, the executive branch, and the courts.
`To that end, the Chamber regularly files amicus curiae
`briefs in courts throughout the country, including this
`Court, on issues of concern to the business community.
`
`The Chamber’s members and the broader business
`community are particularly concerned about the risk of
`unjust awards in damages-only retrials where there
`are serious doubts as to whether the first jury reached
`consensus on liability. The Chamber’s members—and
`all defendants facing damages-only retrials—are enti-
`tled to certainty that the prior jury’s binding liability
`finding did not reflect an unlawful compromise.
`
`
`1 Pursuant to Supreme Court Rule 37.6, counsel for amicus
`curiae state that no party or counsel for a party authored this
`brief in whole or in part, and no party or counsel for a party, or
`any other person other than amicus curiae, its members, or its
`counsel, made a monetary contribution intended to fund the
`preparation or submission of this brief. All parties have con-
`sented in writing to the filing of this brief, and all received
`timely notice of amicus curiae’s intention to file this brief.
`
`
`
`
`
`2
`
`INTRODUCTION AND SUMMARY OF
`THE ARGUMENT
`
`This case concerns the application of the presump-
`tion against partial retrials that this Court announced
`in Gasoline Products Co. v. Champlin Refining Co., 283
`U.S. 494, 500 (1931), to cases in which there is strong
`evidence that the defendant was held liable only as a
`result of an improper compromise verdict. In Gasoline
`Products, this Court held that a court may grant a
`partial retrial only when “it clearly appears that the
`issue to be retried is so distinct and separable from the
`others that a trial of it alone may be had without injus-
`tice.” Id.
`
`Here, the Eighth Circuit ordered a damages-only re-
`trial despite compelling evidence that the jury reached
`a compromise verdict in finding petitioner General
`Motors (GM) liable on one of respondents’ claims while
`awarding indisputably inadequate damages. That
`decision is clearly inconsistent with Gasoline Products:
`given that the initial jury evidently adjusted its dam-
`ages award to account for its doubts about whether GM
`should be held liable, liability and damages are hardly
`“distinct and separable.” Id. What is more, by requir-
`ing the new jury to take liability as given, the damag-
`es-only retrial subjects GM to a significant risk of an
`increased damages award even though it may not
`properly have been found liable in the first place.
`
`The Eighth Circuit’s decision thus gives rise to the
`potential for significant unfairness that will fall dis-
`proportionately on defendants. The standard that the
`Eighth Circuit applied—it required that the record as a
`whole “clearly demonstrate[]” a compromise verdict—
`will make it virtually impossible to demonstrate that a
`
`
`
`
`
`3
`
`damages-only retrial is inappropriate because the jury
`issued a compromise verdict. That result cannot be
`squared with Gasoline Products’ contrary presumption.
`It is also cause for particular concern because subse-
`quent developments in tort law and the increasing
`complexity of determining liability in tort cases have
`only increased the need for, and importance of, the
`Gasoline Products presumption.
`
`Once a court grants a damages-only retrial, moreo-
`ver, the artificially limited nature of the retrial neces-
`sarily requires courts to make difficult judgments
`about how to conduct the retrial. The court must de-
`cide whether to admit or exclude evidence that bears
`on both damages and liability, as well as how much, if
`anything, to tell the second jury about the actions of
`the first. When the initial trial ended in a compromise
`verdict, excluding evidence that led the first jury to
`question or limit liability may be highly prejudicial to
`the defendant, as it creates a real danger that the
`second jury will subject the defendant to a higher
`damages award. Finally, the unjust consequences of
`compromise verdicts and damages-only retrials fall
`particularly heavily on corporate defendants, because
`compromise verdicts are more likely when a case in-
`volves a sympathetic individual plaintiff and a corpo-
`rate defendant, and the damages award resulting from
`a damages-only retrial is more likely to skew upward
`in view of the defendant’s corporate status.
`
`These concerns mandate a rule that makes damag-
`es-only retrials presumptively impermissible when
`there are any “indications” that the jury “may have
`rendered a compromise verdict.” Collins v. Marriott
`Int’l, Inc., 749 F.3d 951, 960 (11th Cir. 2014). As GM
`has persuasively demonstrated, the Eighth Circuit’s
`
`
`
`
`4
`
`contrary decision is wrong, and it conflicts with the
`decisions of other courts of appeals. Because the deci-
`sion will inflict severe prejudice on businesses and
`create substantial confusion in the lower courts, the
`question presented is extremely important. This
`Court’s review is warranted.
`
`ARGUMENT
`
`I. THE DECISION BELOW LICENSES TRIAL
`COURTS TO
`IGNORE STRONG EVI-
`DENCE OF COMPROMISE VERDICTS
`
`The court below refused to grant a full retrial be-
`cause it did not believe that the record, “viewed in its
`entirety, clearly demonstrate[d]” that the jury had
`reached a compromise verdict. App. 18. The Eighth
`Circuit conceded that GM had made “a strong case”
`that the jury had rendered a compromise verdict, but
`held that the evidence was insufficient. In fact, the
`evidence of a compromise verdict was overwhelming.
`
`A. Empirical Evidence Shows That Trials
`Typically Have Clear Winners and Los-
`ers
`
`In civil litigation, liability is a binary proposition:
`the jury concludes that the defendant is liable to the
`plaintiff on a particular claim, or it does not. The
`Eighth Circuit’s pattern jury instructions for civil cas-
`es, for instance, instruct jurors that “[i]t will be your
`duty to decide from the evidence whether the plaintiff
`is entitled to a verdict against the defendant.” 8th Cir.
`
`
`
`
`
`5
`
`Civil Jury Instr. § 1.03 (2017).2 The jury is then in-
`structed to conduct the damages inquiry taking liabil-
`ity as given. E.g., id. § 15.70 (“If you find in favor of the
`plaintiff, then you must award the plaintiff such sum
`as you find will fairly and justly compensate the plain-
`tiff.”).
`
`Empirical evidence indicates that juries generally
`execute their instructions faithfully: jury trials typical-
`ly produce clear winners and losers, rather than com-
`promise verdicts. See, e.g., Samuel R. Gross & Kent D.
`Syverud, Don’t Try: Civil Jury Verdicts in a System
`Geared to Settlement, 44 UCLA L. Rev. 1, 7, 40–45
`(1996) (concluding, from a sample of civil jury trials in
`California state courts, that compromise verdicts
`“hardly ever happen”). In general, if a jury finds the
`defendant liable, it then calculates damages based on
`the factors on which it is instructed, rather than its
`view about the strength of the liability case. Jury
`experiments have shown that increasing the strength
`of a plaintiff’s case on liability typically does not lead
`jurors to increase their compensatory damages awards.
`See Stephan Landsman et al., Be Careful What You
`Wish For: The Paradoxical Effects of Bifurcating
`Claims for Punitive Damages, 1998 Wis. L. Rev. 297,
`321 (1998).
`
`
`2 http://www.juryinstructions.ca8.uscourts.gov/8th%
`20Circuit%20Manual%20of%20Model%20Civil%20Jury%20Inst
`ructions.pdf.
`
`
`
`
`6
`
`B.
`
`Inadequate Damages Awards Strongly
`Suggest Improper Compromise, and
`Were Viewed As Virtually Dispositive
`Evidence of Compromise At the Time
`Gasoline Products Was Decided
`
`Because juries tend to obey their instructions, aber-
`rant damages awards—those that are plainly incon-
`sistent with the facts introduced at trial—are strong
`evidence of improper compromise. Indeed, at the time
`Gasoline Products was decided in 1931, the common
`law considered such an award virtually dispositive
`evidence of a compromise verdict. In Simmons v. Fish,
`97 N.E. 102, 106 (Mass. 1912)—cited repeatedly by
`Gasoline Products, and hailed as the “leading case” on
`the subject of compromise verdicts as of 1937, see
`James Turner & Sons v. Great N. Ry. Co., 272 N.W. 489,
`502 (N.D. 1937)—the issue of liability was hotly con-
`tested in a tort suit involving an injury that “necessi-
`tated the removal of the eye of a boy under 21 years of
`age.” Simmons, 97 N.E. at 106. Though there was “no
`contest as to the injury done,” the jury awarded only
`$200. The court had no trouble concluding that the
`inadequate damages alone evinced an improper com-
`promise:
`
`The jury said $200. It is inconceivable that any jury,
`having agreed upon the issue of liability, should
`have reached such a determination as to damages.
`They had no right to consider the subject of damag-
`es until they had settled the liability in favor of the
`plaintiff. The verdict itself is almost conclusive
`demonstration that it was the result not of justifia-
`ble concession of views, but of improper compromise
`
`
`
`
`
`7
`
`of the vital principles which should have controlled
`the decision.
`
`Id.; see also James Turner, 272 N.W. at 503 (collecting
`cases “giving the rule where smallness of damages
`awarded by jury indicates compromise verdict”). The
`Simmons court went on to observe that “it would be a
`gross injustice” to set aside the verdict as to damages
`alone, because it would force the defendant into “a new
`trial with the issue of liability closed against him when
`it is obvious that no jury had ever decided that issue
`against him on justifiable grounds.” 97 N.E. at 106.
`
`Even after Gasoline Products sanctioned the consti-
`tutionality of damages-only retrials, courts continued
`to regard full, rather than partial, retrials as obligatory
`when juries awarded “grossly unjust and inadequate”
`damages for severe injuries. Schuerholz v. Roach, 58
`F.2d 32, 34 (4th Cir. 1932) (holding that an award of
`just $625 for loss of an eye necessarily gave rise to the
`inference of “a compromise of the controversy at the
`expense of both litigants” for which a full retrial “was
`the only way in which justice could have been done”);
`see also Rose v. Melody Lane, 39 Cal. 2d 481, 489 (1952)
`(“When the jury fails to compensate plaintiff for the
`special damages indicated by the evidence, and despite
`the fact that his injuries have been painful, makes no
`award or allows only a trifling sum for his general
`damages, the only reasonable conclusion is that the
`jurors compromised the issue of liability, and a new
`trial limited to the damages issue is improper.”); Don-
`ald R. Wilson, The Motion for New Trial Based on In-
`adequacy of Damages Awarded, 39 Neb. L. Rev. 694,
`707–08 (1960) (“[T]he typical substantial though inad-
`equate verdict involves an illicit compounding of liabil-
`ity and damage questions and assuming that there is
`
`
`
`
`8
`
`no other apparent explanation for the inadequacy—a
`simple mathematical error by the jury, for example—
`all substantial though inadequate verdicts should be
`presumed to represent illicit compromise verdicts.”).
`
`Academic studies of jury behavior have confirmed
`what the courts have long understood: juries that reach
`consensus on a defendant’s liability ordinarily do not
`award the plaintiff grossly inadequate damages. See,
`e.g., Wilson, supra, at 694 (“[T]he fact that the vast
`majority of inadequate verdict cases found involve
`extremely close liability questions clearly illustrates
`that the most important cause of the inadequate ver-
`dict lies in the widespread tendency of jurors to reduce
`the amount of plaintiff’s award because of a general
`uncertainty over defendant’s liability or as a means of
`compromising their differences on defendant’s liabil-
`ity.”). Particularly when a plaintiff’s injuries are se-
`vere, courts have rightly regarded such an award as
`virtually per se evidence of improper compromise.
`
`The Eighth Circuit’s rule deviates from that long-
`held understanding. By framing the question as
`“whether the record, viewed in its entirety, clearly
`demonstrates the compromise nature of the verdict,”
`the Eighth Circuit invites trial courts to dismiss gross-
`ly inadequate damages as insufficiently probative,
`even absent any competing explanation for the award.
`“Injustice” is the predictable result. Gasoline Products,
`283 U.S. at 500.
`
`That is just what happened below. As the Eighth
`Circuit’s opinion acknowledged, the plaintiff’s injuries
`were “permanent” and severe, and the damages award
`undercompensated him for his injuries. For instance,
`GM did not argue at trial that the jury should award
`
`
`
`
`
`9
`
`nothing for future damages or loss of consortium, but
`the jury did so anyway. App. 17. Under the circum-
`stances, the “verdict itself is almost conclusive demon-
`stration” of a compromise. Simmons, 97 N.E. at 106.
`In the calculus required by the Eighth Circuit’s stand-
`ard, though, it “falls short.” This is precisely backward:
`“Where important rights are involved, the impossibility
`of full analytical satisfaction is reason to err on the side
`of caution.” Vieth v. Jubelirer, 541 U.S. 267, 311 (2004)
`(Kennedy, J., concurring).
`
`II. THE GASOLINE PRODUCTS PRESUMP-
`TION AGAINST DAMAGES-ONLY RETRI-
`ALS APPLIES WITH PARTICULAR
`FORCE IN CONTEMPORARY LITIGATION
`
`In Gasoline Products, this Court held that partial
`retrials are consistent with the Seventh Amendment
`only when “it clearly appears that the issue to be re-
`tried is so distinct and separable from the others that a
`trial of it alone may be had without injustice.” 283 U.S.
`at 500. That was nearly 90 years ago. At that time, the
`American tort system still resembled the one that
`obtained in the nineteenth century, characterized by
`strict bars on recovery and—compared to today—
`straightforward questions of liability. Today—in an era
`of complex consumer products, professional expert
`witnesses, and novel theories of liability—the questions
`of liability that juries are called upon to resolve are
`substantially more difficult, and more likely to be close-
`ly contested, than they were a century ago. See gener-
`ally U.S. Chamber Institute for Legal Reform, Labora-
`
`
`
`
`
`10
`
`tories of Tort Law 1–2 (2014).3 Because liability deter-
`minations today often require juries to make complex
`assessments of a defendant’s fault, modern jury ver-
`dicts in tort cases also exhibit more variance than they
`did when Gasoline Products was decided. For these
`reasons, treating damages-only retrials as presump-
`tively impermissible when there is reason to think that
`the jury may have compromised is even more vital
`today than when Justice Stone was writing in 1931.
`
`In the nineteenth century, and continuing through
`the first decades of the twentieth century, tort law
`reflected the prevailing view that in most circumstanc-
`es individuals were accountable for their own personal
`injuries. See generally Lawrence Friedman, A History
`of American Law 350–66 (3d ed. 2005). Civil lawsuits
`did not frequently pose complex liability questions, in
`part because of strict doctrines barring plaintiffs from
`recovering damages: the fellow-servant rule, contribu-
`tory negligence, an expansive assumption-of-risk doc-
`trine, and more.
`
`Beginning in the 1960s, liability determinations in
`tort cases became considerably more complex, along
`several dimensions. Mass-tort and product-liability
`litigation exploded, involving products ranging from
`the Dalkon Shield to asbestos to cigarettes to the Ford
`Pinto. A defining characteristic of such cases is the
`difficulty of establishing the defendants’ direct causal
`responsibility, which may arise from a variety of fac-
`tors: the long delay between plaintiffs’ exposure to
`these products and their claimed injuries; the large
`number of natural and human factors capable of caus-
`
`3 http://www.instituteforlegalreform.com/uploads/sites/1/tort-
`labs.pdf.
`
`
`
`
`11
`
`ing or exacerbating the alleged harm; the technological
`complexity of many modern consumer products; and
`the uncertainty of scientific studies demonstrating a
`link between particular products or practices and par-
`ticular harms. See Peter H. Schuck, Mass Torts: An
`Institutional Evolutionist Perspective, 80 Cornell L. Rev.
`941, 941 & n.1 (1995). At the same time, changes in
`the law have imposed new burdens on juries. For ex-
`ample, the gradual replacement of strict contributory
`negligence regimes with systems of comparative negli-
`gence, see, e.g., Li v. Yellow Cab Co., 13 Cal. 3d 804
`(1975), required juries to assume a new responsibility
`to apportion liability between plaintiffs and defend-
`ants. Similarly, the frequency with which plaintiffs
`sought noneconomic damages increased dramatically
`in the middle of the twentieth century. See Edward J.
`McCaffrey et al., Framing the Jury: Cognitive Perspec-
`tives on Pain and Suffering Awards, 81 Va. L. Rev.
`1341, 1343 (1995). These damages are particularly
`difficult for jurors to determine in a principled manner.
`E.g., Duarte v. Zachariah, 22 Cal. App. 4th 1652, 1665
`(1994) (“Garden-variety pain and suffering defies a
`nice standard for calculation.”).
`
`One consequence of these characteristics of modern
`tort litigation is that there is a high degree of random-
`ness in civil verdicts: juries are “apt to render verdicts
`that substantially differ, even when based on nearly
`identical facts.” Byron G. Stier, Jackpot Justice: Verdict
`Variability and the Mass Tort Class Action, 80 Temple
`L. Rev. 1013, 1018 (2007). In one study, jurors watched
`the same products-liability trial on videotape and ren-
`dered verdicts; 51 percent of jurors rendered verdicts
`for the plaintiff. See Shari Seidman Diamond et al.,
`Juror Judgments About Liability and Damages:
`
`
`
`
`
`12
`
`Sources of Variability and Ways to Increase Consisten-
`cy, 48 DePaul L. Rev. 301, 305 (1998). In another study
`of verdict variability in which jurors viewed the identi-
`cal case, the mean award deviated from the median
`award by nearly $5 million. Id. at 308. It follows that
`compromise verdicts may be more likely as well: pre-
`sented with a close, complex liability question and a
`sympathetic plaintiff, juries may respond by compro-
`mising on liability.
`
`Because determinations of both liability and dam-
`ages are highly variable in the contemporary tort sys-
`tem, severe prejudice results if a court mistakenly
`orders a damages-only retrial following a compromise
`verdict. A new trial on damages alone “locks in” an
`adverse liability determination that could well have
`come out in the defendant’s favor in a retrial on all
`issues. In other words, a damages-only retrial elimi-
`nates variability with respect to liability (where varia-
`bility is likely to inure to the benefit of the defendant),
`but not with respect to damages (where variability is
`likely to inure to the benefit of the plaintiff).
`
`Contemporary civil litigation is more complex and
`variable than it was when Gasoline Products was de-
`cided—and improper compromise verdicts are thus
`more likely. For that reason, Gasoline Products’ pre-
`sumption against damages-only retrials applies with
`even greater force today.
`
`
`
`
`
`13
`
`III. BECAUSE DAMAGES-ONLY RETRIALS
`POSE A HEIGHTENED RISK OF ARBI-
`TRARY DAMAGES AWARDS, COURTS
`SHOULD HESITATE TO ORDER THEM
`WHERE THERE MAY HAVE BEEN A
`COMPROMISE VERDICT
`
`The concept of the damages-only retrial is appeal-
`ingly straightforward. The jury is instructed that the
`defendant has already been found liable in a prior
`proceeding; the parties offer testimony and argument
`regarding the amount of money that will compensate
`the plaintiff for her injuries or punish the defendant
`for its malfeasance, without regard to questions of fault
`or causation; and the jury renders an award of damag-
`es, free from whatever error tainted the initial damag-
`es verdict.
`
`The reality is more complicated. Even when a court
`concludes that Gasoline Products permits a damages-
`only retrial because the damages issues are “distinct
`and separable” from the liability issues, 283 U.S. at
`500, the evidence relevant to liability may be relevant
`to, or have some bearing on, damages questions. The
`rules governing what the jury is told about the prior
`trial—and what evidence it is allowed to hear in a
`damages-only retrial—vary from jurisdiction to juris-
`diction, and practices vary from judge to judge. These
`uncertainties compound the unfairness of damages-
`only retrials when there is reason to think that the
`first jury’s doubts about liability influenced its verdict.
`
`1. Courts have taken different approaches to the
`problem of whether the jury in a damages-only retrial
`should be permitted to see evidence that is relevant to
`the damages inquiry, but that also bore upon liability.
`
`
`
`
`14
`
`The Seventh Circuit, for instance, requires that the
`parties to a damages-only proceeding “have an oppor-
`tunity to present to the second jury whatever evidence
`… from the liability phase of the trial may be regarded
`as relevant in any way to the question of damages.”
`Watts v. Laurent, 774 F.2d 168, 181 (7th Cir. 1985).
`Although district courts conducting damages-only
`retrials in the Seventh Circuit are required to instruct
`jurors “that the relevant issues of liability have been
`previously decided” and on “the legal basis of defend-
`ants’ liability,” those instructions may not preclude the
`“free presentation of evidence” from the liability phase,
`provided it is relevant “in any way” to damages. Id.; see
`also Wheatley v. Beetar, 637 F.2d 863, 867 (2d Cir. 1980)
`(“The new trial on damages in this case will necessarily
`require introduction of some of the evidence which
`came in during the liability stage of the first trial.”);
`Whitehead ex rel. Whitehead v. K Mart Corp., 173 F.
`Supp. 2d 553, 560 (S.D. Miss. 2000) (“strong presump-
`tion that evidence from the liability phase of the first
`trial was relevant in some way to damages”). Indeed,
`some courts allow evidence of liability to be introduced
`in a damages-only retrial precisely because they view
`that evidence as “inextricably intertwined” with evi-
`dence relevant to damages—even though the damages-
`only retrial should not have been granted if damages
`and liability issues were so closely related. Edman v.
`Marano, 177 F. App’x 884, 887 (11th Cir. 2006).
`
`Other jurisdictions apply a more stringent rule,
`holding that “evidence of fault or liability should not be
`relevant” in a damages-only retrial. In re Air Crash at
`Lexington, Kentucky, No. CIV.A 5:06-CV-316-KSF, 2009
`WL 6056005, at *1 (E.D. Ky. Nov. 10, 2009). And some
`forbid new trials on damages entirely when “evidence
`
`
`
`
`
`15
`
`on the issue of liability” is “intertwined with the issue
`of damages.” Lindenfield v. Dorazio by Dorazio, 606 So.
`2d 1255, 1258 (Fla. Dist. Ct. App. 1992). In Pryer v.
`C.O. 3 Slavic, 251 F.3d 448 (3d Cir. 2001), the plaintiff,
`an inmate of a state prison, asserted excessive-force
`claims against his guards. Id. at 450–51. Following a
`trial in which the jury rendered a verdict for the plain-
`tiff but was improperly instructed as to the applicable
`law on damages, the district court ordered a new trial
`on damages only. Id. at 454. The guards argued on
`appeal that the new trial should have been extended to
`all issues because “the issues of liability and damages
`were so closely interrelated.” Id. Expressly rejecting
`the Seventh Circuit’s solution in Watts, the Third Cir-
`cuit agreed, holding that a new trial on damages was
`improper where evidence “establishing the respective
`culpabilities” of the defendants was “entangled” with
`evidence of the plaintiff’s injuries. Id. at 456, 458.
`
`2. When new trials on damages are allowed, indi-
`vidual judges exercise substantial discretion to deter-
`mine whether and to what extent to admit evidence
`that is relevant to the damages award, but that was
`also relevant to liability, with potentially significant
`consequences for the resulting verdicts. A recent Cali-
`fornia appellate opinion involving a new trial on puni-
`tive damages in an asbestos case is illustrative. In
`Casey v. Kaiser Gypsum Co., Inc., No. A133062, 2016
`WL 258670, at *1 (Cal. Ct. App. Jan. 21, 2016), the jury
`returned a verdict finding the Kaiser Gypsum Compa-
`ny 3.5 percent liable for plaintiffs’ mesothelioma-
`related injuries. Id. The jury awarded $21 million in
`compensatory damages, but could not reach a verdict
`on punitive damages. The trial court ordered a limited
`retrial on that issue, and the second jury awarded
`
`
`
`
`
`16
`
`plaintiffs $20 million in punitive damages. Id. The
`trial court made a series of discretionary decisions to
`exclude liability-related facts that were arguably rele-
`vant to determining punitive damages:
`• It refused to inform the second jury that the
`first jury had already awarded $21 million in
`compensatory damages, or that it had found
`that Kaiser Gypsum was only 3.5 percent at
`fault. Id. at *12.
`• It refused to inform the jury about what conduct
`the first jury found tortious (viz., whether Kai-
`ser Gypsum warned the plaintiff about the dan-
`gers of its products too late, warned inadequate-
`ly, or failed to warn at all). Id. at *15.
`• It excluded evidence that the plaintiff had been
`exposed to numerous asbestos products in the
`course of his career. Id. at *16.
`
`All of this evidence was relevant to the damages in-
`quiry, and therefore w
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