Bocci v. Key Pharmaceuticals, Inc. , 190 Or. App. 407 ( 2003 )

79 P.3d 908 (2003) 190 Or. App. 407

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.

Court of Appeals of Oregon.

Petition for Reconsideration September 24, 2003. Petition for Reconsideration October 8, 2003. Decided November 13, 2003.

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, Eugene, James E. Mountain, Jr., Salem, and Harrang Long Gary Rudnick P.C. contra.

Before LANDAU, Presiding Judge, and ARMSTRONG and BREWER, Judges.

On Respondent's Petition for Reconsideration September 24, 2003.

Appellants' Response to Petition for Reconsideration October 8, 2003.

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 P.3d 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, 76 P.3d 669 (quoting Bocci v. Key Pharmaceuticals, Inc., 178 Or.App. 42, 46, 35 P.3d 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, 76 P.3d 669. 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, 76 P.3d 669 (quoting State Farm v. Campbell, 538 U.S. ___, 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 U.S. 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.