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

one are suspect and, absent special justification *** cannot survive appellate
scrutiny”). 7
Nothing about this case that warrants deviating from the overwhelming
consensus that ratios in excess of single digits are reserved for truly exceptional
cases in which the conduct is highly reprehensible and the compensatory damages
are small. Accordingly, at a minimum, the conclusion is inescapable that the
existing 18:1 ratio is indicative of a grossly excessive punishment.
2. The maximum permissible ratio in this case is 1:1.
What, then, is the constitutional maximum in this case? We submit that the
answer to that question again is supplied by State Farm. The Court there indicated
7 In an appendix to our post-trial brief in the district court, we showed that of
the 37 decisions handed down between April 2003 (when State Farm was decided)
and February 2005 (when we filed the brief) in which the actual or potential harm
was between $100,000 and $300,000, only three cases upheld a ratio that exceeded
single digits. In all of the other 34 cases, the award (after judicial review) was less
than ten times the compensatory damages – in most cases far less. See Appendix
A. And even the three outlier cases had post-review ratios of 10:1, 10:1 and 11:1,
respectively. See Hollock v. Erie Ins. Exch., 842 A.2d 409 (Pa. Super. 2004);
Collins Entm’t Corp. v. Coats & Coats Rental Amusement, 584 S.E.2d 120 (S.C.
Ct. App. 2003); Phelps v. Louisville Water Co., 103 S.W.3d 46 (Ky. 2003). The
Pennsylvania Supreme Court granted review in Hollock (878 A.2d 864 (Pa. June
28, 2005)); the case was argued in December 2005.
As of today, there have been 43 such decisions (excluding this case). And
there has been only one additional case (for a total of four) upholding a ratio of
greater than single digits. See Superior Fed. Bank v. Jones & Mackey Constr.Co.,
2005 WL 3307074 (Ark. Ct. App. Dec. 7, 2005) (upholding ratio of 18:1 in case
involving compensatory damages of $175,000).
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