Free Other Notice - District Court of Arizona - Arizona

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40 North Central Avenue Phoenix, Arizona 85004-4429 Telephone: (602) 262-5311 Stephen M. Bressler, State Bar No. 09032 Direct Dial: (602) 262-5376 Direct Fax: (602) 734-3742 E-Mail: [email protected] Ann-Martha Andrews, State Bar No. 012616 Direct Dial: (602) 262-5707 Direct Fax: (602) 734-3764 E-Mail: [email protected] Scott Bennett, State Bar No. 022350 Direct Dial: (602) 262-5338 Direct Fax: (602) 734-3816 E-Mail: [email protected] Attorneys for Defendants Provident Life and Accident Insurance Company and UnumProvident Corporation

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Brett D. Leavey, ) No. CIV-02-2281-PHX-SMM ) Plaintiff, ) ) vs. ) DEFENDANTS' NOTICE OF ) SUPPLEMENTAL AUTHORITY UNUMProvident Corporation and Provident ) Life and Accident Insurance Company, ) ) Defendants. ) ) Defendants UnumProvident Corporation and Provident Life and Accident Insurance Company respectfully submit the following authorities, both of which the undersigned did not become aware of until after the defendants filed their reply brief. Clark v. Chrysler Corp., 2006 WL 229506 (6th Cir. Feb. 1, 2006) (attached as Addendum A). This is a product-liability case arising out of a fatal automobile accident. The compensatory damages were $471,258.26, and the jury awarded punitive damages of $3 million. The jury also found comparative fault of 50 percent. A two-judge majority ordered the punitive damages remitted to $471,258.26. One member of the majority used the reduced compensatory damages as the denominator of the punitive/compensatory ratio, declared that reduced amount ($235,629.13) to be "not overly large," and proceeded to hold a 2:1 ratio of this amount to be the constitutional maximum. Id. at *9.
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The other member of the majority believed that the court "should use the full $471,258.26 award in evaluating whether the compensatory damages are substantial," concluded that they were substantial, and further concluded that "$471,258.26 is the maximum constitutional award in this case based on a one-to-one ratio of compensatory to punitive damages." Id. at *14-*15. The reasoning and outcome in Clark are relevant to the defendants' argument that any punitive award in excess of the amount of economic damages is unconstitutionally excessive. See Memorandum of Points and Authorities in Support of Renewed Motion for Judgment as a Matter of Law or, in the Alternative, Motion for a New Trial And/Or Remittitur ("MPA") at 15-20. Casumpang v. Int'l Longshore & Warehouse Union, Local 142, 2005 WL 3719637 (D. Haw. Oct. 31, 2005) (attached as Addendum B).1 In this case, the defendant was held liable for retaliating against the plaintiff, a union employee, for criticizing union leadership. The plaintiff was awarded $90,000 for injury to reputation, $150,000 for emotional distress, and $1 million in punitive damages. Observing that the emotional distress damages contained a punitive element, the district court found the approximately 4:1 ratio of punitive to compensatory damages to be unconstitutionally excessive (id. at *17), and ordered a remittitur to $240,000 -- a 1:1 ratio to compensatory damages (id. at *18). Casumpang is relevant to our argument that the emotional distress damages in this case (even if reduced) contain a punitive element (MPA at 10-14) and that even a 1:1 ratio of punitive to compensatory damages would exceed the constitutional maximum if the Court permits any substantial amount of emotional distress damages to stand (id. at 15-20).

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Although decided in October 2005, this decision did not appear on Westlaw until February 2006. 2
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DATED this 10th day of February, 2006. LEWIS AND ROCA LLP

By s/Ann-Martha Andrews Stephen M. Bressler Ann-Martha Andrews Scott Bennett Attorneys for Defendants Provident Life and Accident Insurance Company and UnumProvident Corporation

CERTIFICATE OF SERVICE I hereby certify that on February 10, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Steven C. Dawson Anita Rosenthal Dawson & Rosenthal 6586 Highway 179 Suite B-2 Sedona, Arizona 86351 Attorneys for Plaintiff Gregg H. Temple Gregg H. Temple, P.C. 4835 East Cactus Road Suite 225 Phoenix, Arizona 85254-4196 Attorneys for Plaintiff Thomas L. Hudson Danielle D. Janitch Osborn Maledon, P.A. 2929 North Central Avenue Suite 2100 Phoenix, Arizona 85012-2794 Attorneys for Plaintiff

s/Roxann Draper

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