Opening Brief for Appellant/Cross-Appellee - Appellate.net

for that breach in this litigation. See State Farm, 538 U.S. at 423 (“[d]ue process
does not permit courts, in the calculation of punitive damages, to adjudicate the
merits of other parties’ hypothetical claims against a defendant under the guise of
the reprehensibility analysis”). CGB could not and did not show that Sunrise’s
conduct toward it was highly reprehensible.
2. None of the BMW factors is present.
None of the BMW reprehensibility factors is present in this case. As the
Supreme Court observed in State Farm, the “absence of all of them renders any
award” – and certainly an award that is nearly 20 times the substantial
compensatory damages award – “suspect.” Id. at 419.
a. The first two factors are undisputed.
As the district court recognized, there can be no denying that Sunrise did not
inflict physical injury on plaintiff (a corporation). See JA12. There similarly is no
basis for finding that the defendant disregarded a risk to health or safety. Id.
Indeed, the evidence demonstrated that Sunrise acted out of concern for the health
and safety of its patients.
b. Sunrise did not target CGB at all, much less because it
was financially vulnerable.
The district court’s determination that “[p]laintiff here was financially
vulnerable” (JA12) is belied by the record: According to plaintiff, CGB was a
successful, if small, company. JA142; JA424. And Brillman herself is an
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