$79 million smoker case not over

The U.S Supreme Court agreed Monday to hear – again – a case in which Philip Morris is disputing the size of a damage award.

The US Supreme Court has agreed once again to take up the case of a smoker's widow in Oregon who was awarded $79.5 million in punitive damages against the tobacco firm Philip Morris.

In agreeing to hear the case, Philip Morris v. Mayola Williams, the justices have set the stage for a potential clash of judicial titans. On one side are the justices of the nation's highest court; on the other are the justices of the highest court in Oregon.

The case will involve an examination of whether the Oregon Supreme Court acted properly in upholding the $79.5 million verdict on state law grounds after the US Supreme Court sent the case back to the Oregon court based on federal constitutional grounds.

Lawyers for Philip Morris told the justices that the Oregon court had acted in defiance of the nation's highest court. They said that by upholding the $79.5 million verdict, the Oregon court ignored the substance of the US Supreme Court's decision.

Lurking in the background of the case is an even larger question: whether the $79.5 million awarded in the case of a single deceased smoker is so excessively large that it violates constitutional principles of due process and fairness.

It is a question that sharply divides the US high court and has led to significant disagreement and confusion within state courts.

The Supreme Court examined that issue in the Williams case last term but ultimately decided the case on a different question. The five-justice majority vacated the $79.5 million verdict, sending the case back to the Oregon Supreme Court.

In a surprising move, the Oregon court responded in January by reinstating the entire award and announced that it was affirming "our previous decision in this case in all particulars."

In their appeal, lawyers for Philip Morris urged the US Supreme Court to summarily reverse what they said was the Oregon High Court's "defiance of this court's directive."

Short of that, they asked the justices to take up the case again to consider whether the Oregon high court faithfully applied its earlier ruling.

"The Oregon Supreme Court had no authority either to disobey the clear instructions of this court or to conjure up state-law procedural grounds for the judgment," wrote Philip Morris lawyer Andrew Frey in his brief urging the court to hear the case.

Lawyers for Ms. Williams countered in their own brief that the Oregon Supreme Court acted correctly in applying Oregon law to the case after it had been remanded on a federal constitutional issue.

"This is not an instance of result-oriented pretext by a court, but instead a court addressing a party's timely objections as alternate grounds for its holding," wrote Robert Peck in the Williams brief.

In its Feb. 2007 decision, the US Supreme Court ruled that the jury had improperly used widow Mayola Williams' case to punish Philip Morris for wrongs not only done to Ms. Williams' late husband, Jesse, but to other Oregon smokers who were not parties to the lawsuit.

In vacating the $79.5 million verdict and remanding the case to the Oregon Supreme Court, the US Supreme Court offered some guidance to the Oregon justices. Justice Stephen Breyer wrote for the five-justice majority: "Because the Oregon Supreme Court's application of the correct standard may lead to a new trial, or a change in the level of the punitive damages award, this court will not consider the question whether the award is constitutionally 'grossly excessive.' "

Eleven months later, the Oregon Supreme Court delivered its reply. The Oregon justices reinstated the $79.5 million verdict. They said that because their decision was justified by Oregon law, they need not address the federal issue.

The case stems from a lawsuit filed by the wife of Jesse Williams, a school janitor who smoked Marlboro cigarettes from the early 1950s until his death in 1997. He was said to have become addicted to nicotine and smoked three packs of cigarettes a day.

Mr. Williams's wife and family had urged him to stop smoking, but he told them that he believed tobacco industry representations that the dangers of smoking were overstated.

Lawyers for Williams's widow said Philip Morris and other tobacco companies knew of the dangers of smoking since the 1950s but carried out a disinformation program to trick smokers, like Jesse Williams, to keep smoking.

The case will be heard during the court's 2008-2009 term which begins in October.

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