There's a penchant among American juries for extracting a pound of flesh and then some from big, bad corporations with deeper-than-deep pockets.
Americans have always loved striking a blow for the little guy, and many believe that one of the best ways to do it is to bash a Fortune 500 company over its corporate head with a huge damage award.
Sometimes, unfortunately, these awards are the product not only of populist bias, but of jury tampering.
That certainly appears to be the case with the $5 billion punitive damage award handed down against Exxon, the huge oil company, by Alaskan jurors in the Valdez oil spill case nearly five years ago.
Exxon, which is appealing the punitive award, doesn't dispute its fault in the spill. What it is fighting is the excessive nature of the punitive award - a sum that would wipe out most of its fourth-quarter profit last year.
By the jury's own reckoning, the stunning $5 billion award amounted to 17 times the damage the spilled oil actually caused all of the humans affected by the accident.
The jury earlier had awarded $287 million in compensatory damages to some 40,000 cannery workers, fisherman and nearby residents who had sued Exxon. Almost all of that award already had been paid years before through the company's claims program.
Exxon is particularly upset with the $5 billion in punitive damages because new evidence strongly suggests that some jurors were intimidated into voting for that award.
The case was quite controversial from the start. After the decision on compensatory damages, a clear victory for Exxon, two jurors reported that dead salmon had been left on their doorsteps.
Of greatest concern, however, was the role that a Court Security Officer, a contract employee hired by the United States Marshals Service to watch over the jury, may have played in the jury's deliberations.
The officer socialized extensively with one of the jurors who was facing criminal drug charges that he had concealed before being chosen to hear the case.
After the jury made an important preliminary ruling that Exxon had been "reckless" and therefore was liable for punitive damages, the officer attended a barbecue for the jurors and told them that they were "doing a good job." Some of the jurors reported that his presence made them uncomfortable.
Worst, however, were alleged attempts by the officer to pressure juror Rita Wilson, the only juror against imposing punitive damages. Other jurors observed him talking to Wilson, leaving her in "some emotional distress." The officer reportedly announced to the jury that he would "try to take care of" the problem of her resistance.
Another juror testified in district court that the Court Security Officer "pulled his gun out, took a bullet out and said maybe if you put her [Rita Wilson] out of her misery..."
Wilson's stress was obvious; her husband complained to the judge about the pressure being placed on her. The other jurors even suggested that she be excused, and she later asked to be dropped, but the judge refused both requests.
Wilson claimed that it was during this period the Court Security Officer threatened her directly.
In court testimony last February, Wilson stated that the officer showed her his gun and asked if she knew anything about Russian Roulette. He later emphasized, she testified, that he carried a weapon and she should go back into the jury room and work. She said that he even talked to her about being shot or killed by other jurors or himself.
As a result of the cumulative pressure, Wilson acquiesced in the $5 billion punitive award. Wilson planned on objecting in the routine jury poll after the jury formally returned its verdict, but decided differently, she says, after another juror - the juror who socialized extensively with the Court Security Officer - suggested that Wilson think about her daughters when she voted. After the trial, Wilson was so upset about what happened that she attempted suicide.
None of these details were known when the jury rendered its verdict. The facts have only slowly emerged; the investigation was hindered by the court's refusal to question Rita Wilson herself.
Although the officer denied charges of improper behavior during Exxon's appeal, it wasn't until repeated lie detector tests were administered that he recanted some of his testimony. He did this during a separate investigation by the United States Marshals Service. Curiously, the trial judge ordered the Marshals Service not to report its findings to the court.
Exxon currently is appealing to the Ninth Circuit Court of Appeals. It appears to have a strong case.
An armed court official seems to have deliberately and repeatedly interfered
with a juror's deliberation - often using intimidating tactics. If the integrity
of the judicial process means anything, Exxon deserves a new trial.
David A. Ridenour is Vice President of The National Center for Public
Policy Research, a Washington, D.C. think tank, where he oversees the group's
environmental and regulatory program. Comments may be sent to [email protected].