In March, the Supreme Court of Appeals issued its decision in Perrine v. E.I. du Pont de Nemours and Co., 2010 WL 1170661 (W. Va., March 26, 2010), which, among other things, reduced the punitive damages award of nearly $200 million by 40 percent on the grounds that punitive damages were not recoverable in a claim for damages for medical monitoring. Here is my post discussing the decision.

DuPont filed a petition for rehearing in April, in which it sought to have the amount of punitive damages allocated to medical monitoring increased to 70 percent on the grounds that first, the Court should not have considered statements made during oral argument regarding the allocation of 40 percent of the punitive damages to medical monitoring, and second, that evidence showed that 70 percent of the punitive damages should have been awarded for medical monitoring.

Earlier this month, the Court denied the petition, which is not unusual. But what is unusual is that the Court issued this unanimous per curiam opinion addressing DuPont’s arguments, which was not a good sign for DuPont. Perrine v. E.I. duPont de Nemours and Co., 2010 WL 2243936 (W. Va., June 2, 2010).

During oral argument, the Court had asked plaintiffs’ counsel if the trial court had allocated the punitive damages between the medical monitoring claims and the property damage claims. Counsel said the trial court had allocated 40 percent of the punitive damages to medical monitoring. During his argument, DuPont’s counsel did not address the plaintiffs’ counsel’s representations. But in its petition for rehearing, DuPont contended that the trial court made no allocation of punitive damages, and so the Supreme Court should allocate 70 percent of the damages to medical monitoring claims.

The Court first explained that principles of appellate procedure prevented a party from moving for rehearing to address issues that could have been raised before the appeal was concluded. The Court refers to this principle later in the opinion as the "raise or waive" rule. The Court determined that, "as a result of DuPont’s silence during oral argument, it has waived its right to contest the issue of an allocation of punitive damages by the circuit court."

DuPont also argued that the Court could not consider the plaintiffs’ counsel’s statements (regarding the allocation) during oral argument because "’statements by counsel during argument do not constitute evidence.’" The Court disagreed, and stated that "This contention by DuPont shows a lack of understanding of the purpose of appellate oral argument and the discretionary weight that is given to argument of counsel."

The Court explained that the purpose of oral argument was to assist the court in understanding the parties’ arguments, and that the Court had even ruled on cases based on representations made during oral argument where the record was silent. Thus, the Court affirmed that it "may rely on representations made by counsel during oral oral argument regarding an issue that is not addressed in the record on appeal."

The other issue that DuPont raised was that while the parties’ appeals were pending and prior to oral argument, the parties had conducted proceedings before a special master to address the allocation of punitive damages. DuPont referred to a letter dated August 29, 2008 from plaintiffs’ counsel suggesting that 70 percent of the punitive damages should be allocated to medical monitoring claims, and that in a report issued on November 25, 2008, the special master had adopted that recommendation.

Initially, the Court characterized the special master’s report as nonbinding because DuPont had not alleged that the circuit court had adopted the report’s recommendations, and, in fact, the report itself asked that no action be taken regarding its recommendations until all appeals were resolved or the parties settled the case.

With that characterization in mind, the Court concluded that the evidence was untimely, as DuPont apparently was aware of the report, which was submitted to the circuit court on November 25, 2008, from that date until oral arguments on April 7, 2009, but failed to file a motion with the Court to supplement the record with the report.

The Court reiterated that DuPont had failed to challenge the plaintiffs’ allocation of punitive damages during oral argument, and had not informed the Court that no allocation had been made and that the special master had adopted the plaintiffs’ counsel’s suggestion that 70 percent of the damages be allocated to medical monitoring claims.

The Court did not explicitly accuse DuPont’s counsel of acting improperly, but cited multiple cases that held that a party could suffer the consequences of its counsel’s decision to remain silent, and concluded its analysis by identifying two reasons for the "raise or waive" rule. The first is: 

"to prevent a party from obtaining an unfair advantage by failing to give [a] court an opportunity  to rule on the objection and thereby correct potential error[,]"

and the second is to:

"prevent[] a party from making a tactical decision to refrain from objecting and, subsequently, should the case turn sour, assigning error (or even worse, planting an error and nurturing the seed as a guarantee against a bad result."

The raise or waive rule "has equal force and application at the appellate level," so if your opponent says something during oral argument that you disagree with or believe is not supported in the record, you need to register your disagreement at the time or risk having your silence constitute a waiver.