Baker

PER CURIAM Opinion; Dissent by Judge BROWNING.

I. INTRODUCTION

We look for the third time at the punitive damages imposed in this litigation as a result of the 1989 grounding of the oil tanker Exxon Valdez, and the resulting economic harm to many who earned their livelihood from the resources of that area. See Baker v. Hazelwood (In re the Exxon Valdez), 270 F.3d 1215 (9th Cir.2001)[hereinafter Punitive Damages Opinion I]; Sea Hawk Seafoods, Inc. v. Exxon Corp., No. 03-35166 (9th Cir., Aug. 18, 2003). We are precluded, as the jury was, from punishing Exxon for befouling the beautiful region where the oil was spilled, because that punishment has already been imposed in separate litigation that has been settled. See Punitive Damages Opinion I, 270 F.3d at 1242. As we explained in Punitive Damages Opinion I, the plaintiffs’ punitive damages case was saved from preemption and res judicata because the award “vindicates only private economic and quasi-economic interests, not the public interest in punishing harm to the environment.” Id. “The plaintiffs’ claims for punitive damages expressly excluded consideration of harm to the environment.” In re the Exxon Valdez, 296 F.Supp.2d 1071,…

dissenting.

Because I believe the punitive damages award in this case is not “grossly excessive,” I would affirm. In reviewing the size of a punitive damages award, our sole duty is to ensure its imposition does not violate due process. Where an award lies within the bounds of due process, as this one does, we may not substitute a figure we consider more reasonable for one fairly awarded by a jury and properly reviewed by a district court. Therefore, I respectfully dissent.

1. Due Process Review of Punitive Damages

To comport with the Constitution, a punitive damages award must strike the proper balance between the state goals of deterrence and retribution and a defendant’s due process right to be free from arbitrary punishment. See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416-17 , 123 S.Ct. 1513 , 155 L.Ed.2d 585 (2003). The Supreme Court has determined the balance is upset at the point an award becomes “grossly excessive,” reasoning that, “[t]o the extent an award is grossly excessive, it furthers no legitimate purpose and constitutes an arbitrary deprivation of property.” Id. at 417 , 123 S.Ct. 1513 (citing Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 42 ,…

I. INTRODUCTION

We look for the third time at the punitive damages imposed in this litigation as a result of the 1989 grounding of the oil

IN RE: THE EXXON VALDEZ 19701

tanker Exxon Valdez, and the resulting economic harm to many who earned their livelihood from the resources of that area. See Baker v. Hazelwood (In re the Exxon Valdez), 270 F.3d 1215 (9th Cir. 2001) [hereinafter Punitive Damages Opinion I]; Sea Hawk Seafoods, Inc. v. Exxon Corp., No. 03- 35166 (9th Cir., Aug. 18, 2003). We are precluded, as the jury was, from punishing Exxon for befouling the beautiful region where the oil was spilled, because that punishment has already been imposed in separate litigation that has been set- tled. See Punitive Damages Opinion I, 270 F.3d at 1242. As we explained in Punitive Damages Opinion I, the plaintiffs’ punitive damages case was saved from preemption and res judicata because the award “vindicates only private economic and quasi-economic interests, not the public interest in pun- ishing harm to the environment. Id. “The plaintiffs’ claims for punitive damages expressly excluded consideration of harm to the environment.” In re the Exxon Valdez, 296…