evaluating defendants' motive for the breach, are some of the reasons the supreme court abolished the "Seaman's" tort, which had permitted tort liability for "bad faith" denial of the existence of a contract. Freeman & Mills v Belcher Oil Co. (1995) 11 C4th 85, 102, 44 CR2d 420, overruling Seaman's Direct Buying Serv., Inc. v Standard Oil Co. (1984) 36 C3d 752, 206 CR 354. "To include bad faith denials of liability within Seaman's scope could potentially convert every contract breach into a tort." Freeman & Mills, 11 C4th at 103. As the court explained in an earlier decision, presaging the demise of Seaman's, there are "important differences between contract and tort theories of recovery," and "the law generally does not distinguish between good and bad motives for breaching a contract." Applied Equip. Corp. v Litton Saudi Arabia Ltd. (1994) 7 C4th 503, 515, 28 CR2d 475. The Punitive Damages Excessiveness Claim Standard of Review on Appeal In 2001, the U.S. Supreme Court held that, in deciding if the defendant's due process right to be free from grossly excessive punitive awards has been violated, appellate courts must review the issue de novo. Cooper Indus., Inc. v Leatherman's Tool Group, Inc. (2001) 532 US 424, 435, 149 L Ed 2d 674, 686, 121 S Ct 1678. In other words, the constitutional excessiveness analysis is subject to an independent, not a deferential, standard of review. Cooper Indus., Inc. v Leatherman's Tool Group, Inc., supra (emphasis added, quotation omitted). Yet the [PAGE 19]COH opinion admittedly viewed the entire record "most favorably to the judgment." City of Hope Nat'l Med. Ctr. v Genentech, Inc., (review granted Feb. 2, 2005, S129463; superseded opinion at 123 CA4th 306, 354, 20 CR3d 324) (emphasis added). Such deference to the judgment arguably does not satisfy Cooper's mandate for independent, de novo review of the federal excessiveness claim. The Appellate Court's Application of Campbell The BMW/Campbell Degree of Reprehensibility Factors The three guideposts for evaluating a federal excessiveness claim are (1) the degree of reprehensibility of the defendant's act; (2) the ratio of punitive to compensatory damages; and (3) comparable fines or penalties for similar conduct. BMW v Gore (1996) 517 US 559, 575, 134 L Ed 2d 809, 826, 116 S Ct 1589. Terming "degree of reprehensibility" the most important guidepost, BMW created what could be called a "scale of relative reprehensibility" as a benchmark for comparison, to decide how bad this defendant's act was in relation to acts of other defendants. BMW v Gore, supra. Conduct causing physical injury is generally considered more reprehensible than purely economic harm; economic harm is worse, relatively speaking, when inflicted on the financially vulnerable than on the wealthy; reckless disregard is more serious than indifference; repeated conduct is more blameworthy than a single isolated act; and harm resulting from mere accident is less onerous than intentional malice or deceit. BMW v Gore, supra. In its most recent pronouncement on punitive damages, State Farm Mut. Auto. Ins. Co. v Campbell (2003) 538 US 408, 419, 155 L Ed 2d 585, 602, 123 S Ct 151, the court evaluated the degree of reprehensibility factors using a weighing or balancing test; observing "the existence of any one of these factors weighing in favor of plaintiff may not be sufficient to sustain a punitive
damages award andthe absence of all of them renders any award suspect." State Farm Mut.Auto. Ins. Co. v Campbell, supra. One is compelled to wonder if any of the five relative reprehensibility factors was truly satisfied in COH. This was a failure to pay additional royalties, a purely economic dispute. The opinion candidly acknowledged that "Genentech did not directly jeopardize anyone's life, safety or health," but nonetheless concluded that defendant "damaged an entity that is in the business of providing medical help to the poor," often at its own expense. City of Hope Nat'l Med. Ctr. v Genentech, Inc. (review granted Feb. 2, 2005, S129463; superseded opinion at 123 CA4th 306, 357, 20 CR3d 324). Moreover, because City of Hope is a large, sophisticated institution that collected $302 million in royalties on this contract, Genentech was hardly acting out the traditional villain's role, exploiting the weak or unwary. Two large institutions butting heads would not appear to be what Campbell had in mind. In addition, it is difficult to see how advancing a plausible interpretation of an admittedly ambiguous contract provision qualifies as "reckless" disregard of the other contracting party's rights. And the opinion's notion that defendant was a recidivist within the meaning of Campbell is likewise questionable. Genentech consistently took the same position regarding contract interpretation throughout the duration of the parties' dispute, a position it communicated to City of Hope early on. The opinion characterizes defendant's conduct as a series of multiple acts, not "widespread as to the number of victims, but … pervasive and continuous as to City of Hope." 123 CA4th at 357. Under that interpretation, any act could be divided into multiple parts for purposes of qualifying the defendant as a repeat offender. Finally, intentional malice, deceit, or trickery is more reprehensible on the scale than is mere accident. State Farm Mut. Auto. Ins. Co. v Campbell (2003) 538 US 408, 419, 155 L Ed 2d 585, 602, 123 S Ct 151. The conclusion of the opinion in COH, that defendant concealed from City of Hope its "entitlement" to additional royalties, begs the question: City of Hope was only entitled to more royalties if its interpretation of the "murky" contract was correct. To support intentionality, COH resurrected a Seaman's-like "motivational" analysis.