Bocci v. Key Pharmaceuticals, Inc.

FILED: November 13, 2003

IN THE COURT OF APPEALS OF THE STATE OF OREGON

 
PAUL R. BOCCI, JR.,
guardian ad litem for Paul R. Bocci, III,
an incapacitated individual,

Plaintiff,

KEY PHARMACEUTICALS, INC.,
a foreign corporation,
SCHERING-PLOUGH CORPORATION,
a foreign corporation,
and SCHERING CORPORATION,
a foreign corporation,

Defendants,

and

MILES, INC.,
an Indiana corporation,
MILES, INC., PHARMACEUTICAL DIVISION,
an Indiana corporation,
LEGACY HEALTH SYSTEM,
an Oregon corporation,
LEGACY IMMEDIATE CARE CLINIC,
FREDERICK D. EDWARDS, M.D.,
and THE EUGENE CLINIC,
a partnership,

Defendants.

_________________________________________ FREDERICK D. EDWARDS, M.D.,

Respondent,

KEY PHARMACEUTICALS, INC.,
a foreign corporation,
SCHERING-PLOUGH CORPORATION,
a foreign corporation,
and SCHERING CORPORATION,
a foreign corporation,

Appellants.

A9210-07050; A86556

On remand from the United States Supreme Court, Key Pharmaceuticals, Inc., et al. v. Frederick D. Edwards, 538 US ___, 123 S Ct 1781, 155 L Ed 2d 662 (2003).

Appeal from Circuit Court, Multnomah County.

William C. Snouffer, Judge.

On respondent's petition for reconsideration filed September 24, 2003, and appellants' response to petition for reconsideration filed October 8, 2003. Opinion filed September 10, 2003. 189 Or App 349, 76 P3d 669.

Daniel M. Holland, Ronald B. Terzerbach, Loomis & Holland, Mary H. Spillane, Margaret A. Sundberg, and Williams, Kastner & Gibbs PLLC for petition.

William F. Gary, Sharon A. Rudnick, James E. Mountain, Jr., and Harrang Long Gary Rudnick P.C. contra.

Before Landau, Presiding Judge, and Armstrong and Brewer, Judges.

LANDAU, P. J.

Petition for reconsideration allowed; opinion modified and adhered to as modified.

 
LANDAU, P. J. Cross-claim plaintiff Frederick D. Edwards, M.D., petitions for reconsideration of our opinion in Bocci v. Key Pharmaceuticals, Inc., 189 Or App 349, 76 P3d 669 (2003) (Bocci III), making numerous arguments. We allow reconsideration to correct a misstatement of fact in the opinion, but adhere to our previous opinion in all other respects. In our previous opinion, we quoted from Bocci II:

"'The jury awarded Bocci more than $5 million in compensatory damages and $35 million in punitive damages. The jury awarded Edwards $500,000 in compensatory damages and $22[.5] million in punitive damages.'"

Bocci III, 189 Or App at 352 (quoting Bocci v. Key Pharmaceuticals, Inc., 178 Or App 42, 46, 35 P3d 1106 (2001) (Bocci II)). However, later in the Bocci III opinion, we misstated that the "ratio of combined punitive damages ($55.5 million) to combined compensatory damages ($5.5 million) is in excess of 10 to 1." Bocci III, 189 Or App at 360. Edwards correctly points out that the combined punitive damages were actually $57.5 million and further notes that the combined compensatory award was $6,121,648, concluding that the ratio was not in excess of 10 to 1, but rather was 9.4 to 1. We therefore correct the above-quoted statement as follows: "The ratio of combined punitive damages ($57.5 million) to combined compensatory damages ($6,121,648) is 9.4 to 1." In Bocci III, we further stated that the ratio "exceeds by two and a half times the ratio of 4 to 1 that the Court suggested 'might be close to the line of constitutional impropriety.'" Id. at 360 (quoting State Farm v. Campbell, 538 US ___, 123 S Ct 1513, 1524, 155 L Ed 2d 585 (2003)). We modify that sentence to read: "Indeed, it exceeds by more than two times the ratio of 4 to 1 that the Court suggested 'might be close to the line of constitutional impropriety.'" Edwards maintains that this alteration of the ratio of punitive to compensatory damage calculations should change our conclusion that the maximum permissible ratio under the circumstances of this case is 7 to 1. We disagree. While the Court in State Farm did note that "few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process," 538 US at ___, 123 S Ct at 1524, that obviously does not mean that any award that has only a single-digit ratio will satisfy due process. We adhere to our conclusion in Bocci III that a 7-to-1 ratio is appropriate in this case. We reject Edwards's remaining arguments on reconsideration without discussion. Petition for reconsideration allowed; opinion modified and adhered to as modified.