United States District Court
Insurance - UM/UIM - Owned But Not Insured
Encompass Indemnity Company v. Halfhill, 2013 WL 6800682 (W.D.Ky. December 20, 2013)

This is a claim by the operator [Halfhill] of an off road vehicle to recover underinsured motorist benefits arising from a collision with a pickup truck. Halfhill owned the off road vehicle, and was a named insured under an insurance policy issued by Encompass. The policy covered three vehicles and a boat, but did not list the off road vehicle. The policy terms excluded from coverage an insured "while occupying, or when struck by, a vehicle owned by you which is not insured for this coverage under this policy". Halfhill's attempt to avoid the policy language was two pronged: he argued that the off road vehicle was not a vehicle, and that the provision violated public policy.

The Court offers an extensive analysis of the word vehicle, and while the analysis is thoughtful and accurate, it seems to give the Halfhill position more credence than it deserved. While the policy did not defined the word vehicle separately, it defined motor vehicle to be a "motorized land vehicle owned by you or any covered person and designed for recreational use off public roads." Since it was clearly a motor vehicle, the policy clearly contemplates it also being a vehicle.

The plaintiff's effort to drag out public policy to rewrite the policy in this case fell on deaf ears. The Court did not address the relatively recent opinion in State Farm Mutual Automobile Insurance Company v. Hodgkiss-Warrick, ___ S.W.3d ___, 2013 WL 5406623 (Ky. September 26, 2013), which makes the argument moot. It is quite possible that the briefing was completed before the opinion was issued. In any event, the Court provides a sophisticated analysis, and distinguished Chaffin v. Ky. Farm Bureau Ins. Cos., 789 S.W.2d 754 (Ky. 1990). In Chaffin, the Court found the same provision to be void, but it was in the context of stacking multiple policies. Here, the Halfhill's had purchased a single policy that covered all the vehicles they chose to insure. It is also worth noting that Chaffin dealt with uninsured motorist coverage, which is treated differently that undersinsured motorist coverage with respect to this issue.

United States District Court
Arbitration - Unconscionability
GGNSC Louisville Hillcreek, LLC v. Warner, 2013 WL 6796421 (D.C.Ky. December 19, 2013)

This nursing home case was filed in state court, and the patient had signed an arbitration agreement. The nursing home filed an action in federal court to compel arbitration and enjoin the state court proceedings from proceeding. The opinion analyzes a number of procedural issues, and is a good roadmap to a party wishing to use this procedure. Because the Court accepted jurisdiction, it was able to reach the defenses raised to the arbitration agreement, in particular the claim that the arbitration agreement was unconscionable.

At the outset, the Court noted ten features of the agreement that suggested conscionability: 1) it was a standalone agreement; 2) it was five pages in normal font; 3) that it was not a condition of admission was in bold and capital letters; 4) it did not limit damages recoverable; 5) it did not limit causes of action; 6) it did not have a burdensome forum selection clause; 7) it did not truncate the limitations period; 8) the terms were easy to understand; 9) this was the second time the patient had an ability to read the agreement; and 10) courts applying Kentucky law have upheld arbitration agreements in the nursing home context. The Court rejected the argument that it was deficient because it was a form agreement, as well as a vague claim that a patient entering a nursing home is overwhelmed by the process. The Court also rejected the argument based on expense, noting that the filing fee for arbitration is about the same as the fee for filing a lawsuit. Implicitly, this rejects the arbitration expenses as a factor as well.

Kentucky Supreme Court
Settlement - Confidentiality Agreements
Kentucky Bar Association v. Unnamed Attorney, 414 S.W.3d 412, 2013 WL 6700253 (Ky. December 19, 2013)

This opinion is a disciplinary opinion, but the reasoning would appear to make it unethical for lawyers to request a party to keep a settlement confidential. If the Court means what the majority says, and if the issue is not corrected, the impact on the settlement of civil cases will be widespread and deleterious. Professional liability cases will be harder to settle, especially where the insurance policy requires consent. Multi-party litigation will be more difficult to settle piecemeal. And in a number of situations where a defendant fears copycat cases, from product liability to employment/public accommodation discrimination cases, settlement of nuisance cases will become more difficult to justify.

The attorney which was the subject of the proceeding represented another attorney (attorney-client) in a bar proceeding brought by a former client (client). The matter was settled, the attorney included in the settlement agreement a provision that the client would withdraw her complaint and not voluntarily provide information or assistance with regard to bar complaint. The Court found that this provision violated SCR 3.130(3.4)(g) of the Rules of Professional Conduct as amended in 2000, which provides:

A lawyer shall not:

(g) request a person other than a client to refrain from voluntarily giving relevant information to another party unless:

(1) the person is a relative or agent who supervises, directs or regularly consults with the client concerning the matter or has authority to obligate the client with respect to the matter; [and]

(2) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information.

This provision was intended to relate to discouraging witnesses from cooperating, but when the amendments were drafted the Court used the word party instead of witness. A majority of four chose to read this provision literally, while one Justice expressed concern as to the impact this would have on other settlements while agreeing to its application here. Two Justices advocated applying the rule consistent with the intent the Court had when it promulgated the rule.

There is no question but that the provision at issue in this case is quite different than the typical confidentiality provision in a civil settlement. But that is a distinction without a material difference. The key point is that the Court applied the provision to settlements, period. Any confidentiality agreement with a party outside of the exceptions in the Rule technically violates the Rule, and thus Kentucky attorneys cannot even ask for such a provision without risking disciplinary action. In effect the Court has outlawed confidentiality provisions in Kentucky where the settlement is negotiated by an attorney. Of course, the Court can clarify the Rule and reword it to accurately reflect its intent. But, one cannot help but wonder if the majority’s intent in reaching this result was the product of animus towards confidential settlements. After all, on the very same day, the Court ignored the legislature’s clear language to reach the result the Court felt appropriate in the Lawson case, so it clearly had the ability to correct its own mistake and avoid this disruptive result had it wished to do so. Until clarification is seen, one has to take this opinion as a shot across the bow when it comes to confidential provsions in settlement agreements.

Kentucky Supreme Court
Immunity – Qualified Government Immunity - Schools
Knott County Board of Education v. Patton, 415 S.W.3d 51, 2013 WL 6697791 (Ky. December 19, 2013) (report of Court of Appeals opinion)

The facts of this case illustrate the fact that in many counties the real purpose of the school system is to provide a base for political power, and what happens to those who resist. That is not to say the teacher in this case was in the right, but one has to wonder how any of the players in this case belong in a position that is supposed to teach the young. In any event, principal Pollard issued a written reprimand to French teacher Patton for a number of items, most likely precipitated by Patton calling Pollard a twit in class. Patton, perhaps motivated by bad legal advice or personal animus, or both, decided to make a federal case of it and challenge Pollard’s authority to do so. Having none of that, Pollard and the Board decided that all the children in Knott county should learn to speak Spanish instead of French so that Patton would be unemployed. Patton filed suit claiming her speech rights under the Kentucky Constitution were offended. The Court of Appeal rejected that argument, but held that the facts might support a claim under the public employee whistleblower act, KRS 61.102. The Supreme Court, observing that no whistleblower claim was plead, rejected the Court of Appeals approach to the case.

The Court of Appeals had held that the individual members of the school board and the site-based decision-making council (SBDMC) were not entitled to qualified governmental immunity because the conduct in question was ministerial in nature. The conduct in question was the decision to change the curriculum from French to Spanish. Patton’s claim was that the SBDMC manual required the use of a standing curriculum committee to make such a change, and this was not done in this case. She claims the board members failed to reverse the decision. The Court of Appeals determined that the creation of the policies was discretionary, the execution of the policies were ministerial. This reasoning was also rejected by the Supreme Court.

The Court first acknowledged the general rule that promulgation of rules is discretionary while enforcement is ministerial. Williams v. Kentucky Department of Education, 113 S.W.3d 145 (Ky. 2003). The Court also acknowledged that where the manual required that committee be used, the decision of whether to use a committee was ministerial. The Court, however, choose to reframe the issue because the use or nonuse of a committee was not deemed to be material to the claim before it. The claim was based on the decision to change the curriculum, not the process used. By statute, the SBDMC had the authority to make such a decision, and the choice of curriculum is clearly one involving discretion. The Court also held that the decision of the board members to deny the request to overturn the SBDMC decision was discretionary.

It is possible that the holding of this case will be very narrow given its connection to a specific statute and subject. But it should be read as standing for a broader proposition. Often, the key to the discretionary/ministerial battle is the framing of the issue. The claimant is always going to try to frame their claim to result in a ministerial task being the issue. This case suggests that the framing of the issue is the result of analysis, and is not the prerogative of the claimant. The Court should look at the gravamen of the claim, not its articulation by counsel, and there needs to be causal connection between the conduct to be analyzed and the harm claimed by the claimant.

Kentucky Supreme Court
Open Records Act – Suit to Prevent Disclosure - Standing
Lawson v. Office of the Attorney General, 415 S.W.3d 59, 2013 WL 6700120 (Ky. December 19, 2013)

While the Open Records Act was designed primarily to protect the public’s right to know the business of its government, a citizen may bring an action to prevent disclosure of matters exempted from its scope. In this case, Lawson had offered a proffer in 1983 regarding his role in rigging bids for transportation projects as part of a plea deal. Lawson was indicted in federal court in 2008 on charges that he had obtained confidential cost estimates for contracts before bidding, and while acquitted, the press learned of the prior proffer and sought to obtain the same. Lawson brought this action to prevent disclosure. He asserted two exemptions found in KRS 61.878, the prosecutorial exemption in section (1)(h) and the personal privacy in section (1)(a).

While the ability of a person claiming to be aggrieved by disclosure is premised on the use of the phrase "any person" in KRS 61.882, the same statute states that it applies to "any violation", which would mean that any person would have standing. The Court rejected such a literal construction, however, in favor of what has been called statutory standing. This test for standing is met where the putative plaintiff is among those persons the particular exemption was intended to protect. Applying this test, the Court concluded that Lawson was clearly within the class of persons the privacy exemption was designed to protect. The prosecutorial exemption, however, was not intended to benefit a person such a Lawson. The Court held that this exemption was intended to protect prosecutors from disclosures that might inhibit their work or sources, as well as to protect them from the expense and disruption associated with requests for disclosure.

Kentucky Supreme Court
Open Records Act – Suit to Prevent Disclosure - Privacy
Lawson v. Office of the Attorney General, ___ S.W.3d ___, 2013 WL 6700120 (Ky. December 19, 2013)

Not just any invasion of personal privacy will invoke the exemption found in KRS 61.878(1)(a), but it must be shown that the invasion is unwarranted. This necessarily involves a balancing of the affected person’s interest in privacy against the public’s interest in disclosure.

Recognizing that records from a criminal case necessarily invoke privacy concerns in those involved, the fact that Lawson was a defendant, and plead guilty, diminished those interests. Even a guilty defendant has some privacy interests, and thus the Court proceeded to analyze the public interest. The Court emphasized that the reason for disclosure must be a public purpose, and found significant the fact that the matters discussed in the proffer concerned the conduct of public agencies. The Court therefore held that the proffer could be properly disclosed.

Sixth Circuit Court of Appeals
Civil Rights - 1983 - Excessive Force
Hocker v. Pikeville City Police Department, 738 F.3d 150, 2013 WL 6608308 (6th Cir. December 17, 2013)

An intoxicated and possibly suicidal male visited his former girlfriend notwithstanding a protective order, which led to a call involving the police. Officers Baisden and Branham observed the suspect speeding past their location without lights on, and gave chase. The chase lasted seven miles and ended when the suspect pulled into a gravel driveway and stopped. The officers pulled their cruisers off the road as well, turned off their sirens, and exited their cruisers. The officers, with guns drawn, ordered the suspect out of his vehicle. The suspect's car began backing up and hit Baisden's cruiser, pushing it thirty feet, and trapping Baisden's arm in the door. Branham opened fire, and when Baisden freed himself he fired shots as well. Of the twenty shots fired nine hit the suspect. The suspect plead guilty in exchange for a ten year sentence, and then filed suit alleging the force used violated his rights under the Fourth Amendment.

The Court framed the issue by viewing the suspect as unarmed and analyzing the reasonableness of the force used under that standard. The Sixth Circuit found guideposts in two Supreme Court cases. In Tennessee v. Garner, 471 U.S. 1 (1985), the Court held that police could not use deadly force to prevent an unarmed felon's escape. On the other hand, in Scott v. Harris, 550 U.S. 372 (2007) the Court upheld as reasonable a high speed chase which ended by running the suspect's car off the road. The Court approved the use of force in this case because the officers were at risk for their own safety before they fired their weapons, and the escalating risks of the situation combined with need for a split second judgment justified the use of deadly force. Implicit in the holding is that there was more than an attempt to prevent escape involved.

The premise of plaintiff's case seemed to be that the suspect was not an actual threat and his conduct had an innocent explanation. For example, he claimed that his car was defective and the defect caused his vehicle to speed up in reverse, and that he had not seen the police officers. The Court made clear that the suspect's state of mind and intent was not relevant. The conduct of the officers had to be judged in light of whether a reasonable officer would perceive a danger that warranted the use of deadly force, and in this case the circumstances warranted such a perception.

The Court also rejected the testimony of an expert that opined that deadly force was not necessary. The expert opined that force was not justified because the suspect had committed no more than a class A misdemeanor and police training counsels against the use of force in such a circumstance. First, the Court observed the expert was incorrect as to the crime the suspect had committed, as he plead guilty to a class D felonies, wanton endangerment and fleeing or evading, both in the first degree. Second, the Court rejected the putative connection between police training and a Constitutional violation. The expert's key assumption was that the officers were safe once the officers moved out from behind the car, but the Court held that the officers were reasonable in assuming he was not done using his car as a weapon at that point.

Sixth Circuit Court of Appeals
Immunity - Prosecutors
Rogers v. O'Donnell, 737 F.3d 1026, 2013 WL 6570851 (6th Cir. December 16, 2013)

This case involves the line between a prosecutor acting in an investigatory capacity, in which case qualified immunity applies, and in the role of an advocate, in which case absolute judicial immunity applies. The facts are somewhat salacious, but to make a long story short a number of sheriff deputies had a rough and raucous sexual encounter with a woman (McQueen) who either consented, consented to part, or was being intimidated by the officers or department. The police officers were indicted but acquitted at trial. While they brought suit against a number of entities, this opinion dealt with the dismissal of the claims brought against prosecutors in the Commonwealth Attorney's office.

Following the encounter, McQueen went to a neighbor asking for ice and medicine because her mouth was bloody and swollen. Her neighbor convinced her to tell authorities. The next day she gave a statement to the authorities in which she said the encounter was rough but consensual expect for one part where she acceded after being slapped. She then returned to the Sheriff's office and downplayed the previously said to be non-consensual part. She was invited to meet with the prosecutor (November 12 meeting) who advised her that she was going forward with charges without or without McQueen's help. The prosecutor confronted McQueen with the inconsistencies in her statements and asked if the officers had intimidated her. She told the prosecutor that she had not been intimidated by the officers. However, when McQueen testified before the grand jury she went back to her original story that she had only acceded to one part because the officer slapped her and was aggressive. Later that day, McQueen attended another meeting (December 21 meeting) where she was encouraged to come clean and tell the truth about the officer's conduct. At trial, she said she was pressured by the prosecutor and reverted to her all was consensual position.

The trial Court held that in the December 21 meeting the prosecutors were clearly acting as advocates, and thus were entitled to absolute judicial immunity. The November 12 meeting, however, was deemed to be investigatory in nature, and only a qualified privilege was allowed. The Sixth Circuit found both to be absolutely privileged. The Court observed that a meeting in anticipation of grand jury proceedings, intended to evaluate and prepare a potential witness were part of the advocacy process.

Kentucky Court of Appeals - Unpublished
Limitations - Professional Services - Effect of Sanctions Motion
BDT Products, Inc. v. Higgs, Fletcher & Mack, LLP, 2013 WL 6571671 (Ky.App. December 13, 2013), motion for discretionary review filed January 17, 2014 (2014-SC-25-D)

This case has a complicated background, but the key facts are pretty straightforward. BDT Products brought a trade secret case against Lexmark, and Herron was one of its attorneys. The suit was dismissed on July 31, 2003, and the Sixth Circuit affirmed on February 11, 2005. Following the entry of the dismissal order, Lexmark filed a motion for sanctions, which was abated pending the appeal on the merits. On June 27, 2008, the trial Court imposed attorney fees as sanctions, and the sanction award against Herron was reversed on April 21, 2010. BDT filed a legal malpractice complaint against Herron and others on May 13, 2009.

The one year limitations applicable to attorney malpractice actions, KRS 413.245, is triggered by either the date of the occurrence (accrual) or discovery. In this case, the Court held that the cause of action accrued on the date the dismissal was final, and the proceedings relating to sanctions were collateral to the case on the merits. The fact of injury as alleged was established when the dismissal was affirmed and became final, while sanctions at most effected the amount of damages.

Kentucky Court of Appeals - Unpublished
Insurance - Medical Liability - Violation of Law Exclusion
Healthcare Underwriters Group v. Strange, 2013 WL 6571799 (Ky.App. December 13, 2013), motion for discretionary review filed January 17, 2014 (2014-SC-000025-D)

Strange filed suit against Dr. Combs alleging malpractice in the performance of thumb surgery. After the surgery, Dr. Combs collapsed and tested positive for opiates. Apparently, the policy did not contain an intoxication exclusion, but the insurer contested liability based on an exclusion that applied to "liability resulting from any violation of any law, including ... professional licensure laws". The Court held that this exclusion only applied liability for the violation of law, and not to a tort which was based on conduct which could also be a violation of law.

Kentucky Court of Appeals - Unpublished
Product Liability - Negligent Misrepresentation
Post v. Lee Masonry Products, Inc., 2013 WL 6571798 (Ky.App. December 13, 2013), motion for discretionary review denied August 13, 2014 (2014-SC-18-D)

Legal issues aside, this case is interesting because it involves the castle located in Versailles, Kentucky. Following a fire, the castle was being remodeled and synthetic stone was purchased by the owner from Lee Masonry. The owner separately retained an installer, who did not install the block correctly.

This type of block is to be installed from the top down because it cannot be cleaned with muriatic acid like normal block. The seller of the block had an agent on site, and Post argued that the agent's failure to advise the installer that he was installing it incorrectly constituted a negligent misrepresentation. The Court held that negligent misrepresentation requires an affirmative false statement and cannot be based on an omission. The concurring opinion also notes that the economic loss doctrine may have been a defense.

Kentucky Court of Appeals - Unpublished
Insurance - Business Auto - Employee Exclusion
Horn v. Sesco, 2013 WL 6571797 (Ky.App. December 13, 2013), motion for discretionary review filed January 10, 2014 (2014-SC-15-D)

B&B was the named insured under a business auto policy at the time that an employee fell out of a company truck and killed. At the time, the truck was being driven by Horn, not an employee of B&B, with permission. The policy excluded coverage to employees of the insured, but in a 2-1 opinion the Court held that the insured being sued had to be an employer, and therefore the employer's liability policy had coverage for a permissive user such as Horn. The dissent pointed out that this decision is contrary to several federal authorities and the result is inconsistent with the purposes of such a policy. It will be interesting to see if the Supreme Court weighs in on this issue.

Kentucky Court of Appeals
Punitive Damages - Ratification
St. Joseph Healthcare, Inc. v. Thomas, ___ S.W.3d ___, 2013 WL 6385845 (Ky.App. December 6, 2013), motion for discretionary review filed January 6, 2014 (2014-SC-8-D)

This a medical malpractice case arising from medical treatment received in the emergency room, and is the second trip to appellate world. The facts fall squarely within the intellectual orbit of the Supreme Court's decision in University Medical Center, Inc. v. Beglin, 375 S.W.3d 783 (Ky. 2011) (view Green's View report), and the Court at best misunderstands the Beglin rulings or at worst simply disregards them. We can expect this case to be reviewed by the Supreme Court if it is not settled.

The decedent presented at the emergency room with complaints of abdominal pain, constipation, nausea and vomiting. He was given pain medication, an enema and manual disimpaction of his colon. Lab test were ordered but not done, no x-rays were taken. He was discharged about four hours earlier, but no family members would take him in. Upon return to the hospital the hospital made arrangements for him to stay at the Kentucky Inn. A few hours thereafter the Inn called 911 because the decedent had been vomiting dried blood for several hours, and he was returned to the emergency room. Lab tests and x-rays were done on that visit, and he was again discharged 6-7 hours later. He died later that day.

The decedent's estate filed suit against the doctors and the hospital alleging negligence and violation of EMTALA. The first trial began on October 3, 2005, but ended in a mistrial. The doctors settled and the case proceeded to trial against the hospital. The jury found liability, awarded the estate $25,000.00 and apportioned fifteen percent of the fault to the hospital, 25 percent to the decedent, and the balance to the doctors. The jury also awarded $1,500,000.00 in punitive damages against the hospital. On the first appeal, the award of punitive damages was reversed. Thomas v. St. Joseph Healthcare, Inc., Nos. 2007–CA–001192–MR & 2007–CA–001244–MR (Ky.App. 2008). The Court held that under KRS 411.184(3), the plaintiff was required to prove the hospital ratified the conduct of the actors whether the claim was based on negligence or under EMTALA, but also said the issue was one for the jury. The Court did not say why it thought the evidence sufficient, nor did the opinion explain whether the hospitals could be vicariously liable for the physicians in the context of the negligence case. The Supreme Court remanded the case for consideration of the EMTALA issues in light of its decision in Martin v. Ohio County Hospital Corp., 295 S.W.3d 104 (Ky.2009). This the Court of Appeals did in Thomas v. St. Joseph Healthcare, Inc., 335 S.W.3d 460 , 2010 WL 2812967 (Ky.App. July 16, 2010) (view Green's View report). The case was then remanded for a retrial on the issue of punitive damages.

On remand, the jury imposed punitive damages in the sum of $1,450,000.00, almost the same as the first verdict. While the Court in the second opinion suggested the ratification issue presented an issue of fact, the Supreme Court subsequently decided University Medical Center, Inc. v. Beglin, 375 S.W.3d 783 (Ky. 2011) (view Green's View report), making it clear that the terms authorized, ratified and anticipated were to be read literally. As to ratification, the Beglin> Court held that a poor investigation into the event was insufficient to show approval of the conduct after it occurred.

The panel attempted to distinguish Beglin, but never really describes facts that would support ratification. The Court says that while Beglin involved discrete instances of gross negligence, this case, the Court says, shows a pattern of the staff disregarding hospital policy. But they can't point to any other instance, and simply break down the treatment given in this case and call the sum of the parts a pattern. While it might be possible to think of the two emergency room visits as two events, the Court could point to no proof that the hospital ever approved of the conduct. Then, perhaps sensing that the result being reached lacked a logical basis, the Court states that the Beglin opinion does not really say what it says. The Beglin opinion does require explicit approval after the fact. The approval can be shown by circumstantial evidence, but there is nothing like that detailed in the opinion.

This case does reveal the lack of any coherent standard for judging punitive damages in Kentucky, at least in some quarters. This panel failed utterly to articulate how this set of facts was anything other than a medical error, and what is presented as analysis is nothing more than a conclusion. If a Court cannot articulate how conduct is more than negligence in degree, then due process should preclude the imposition of punitive damages.

Kentucky Court of Appeals
Punitive Damages - Due Process
St. Joseph Healthcare, Inc. v. Thomas, ___ S.W.3d ___, 2013 WL 6385845 (Ky.App. December 6, 2013)

The first trial began on October 3, 2005, but ended in a mistrial. The doctors settled and the case proceeded to trial against the hospital. The jury found liability, awarded the estate $25,000.00 in compensatory damages and apportioned fifteen percent of the fault to the hospital, 25 percent to the decedent, and the balance to the doctors. The jury also awarded $1,500,000.00 in punitive damages against the hospital. On the first appeal, the award of punitive damages was reversed. Thomas v. St. Joseph Healthcare, Inc., Nos. 2007–CA–001192–MR & 2007–CA–001244–MR (Ky.App. 2008). In the course of reversing, the Court observed that the $1,500,000.00 punitive damage award failed to meet the requirements of due process. The Court noted that 1) the conduct involved a discrete period of time and no evidence of malice or fraud; 2) the amount was excessive in relation to the compensatory damages awarded, and 3) and the amount of punitive damages was fifteen times the civil penalty for a violation of EMTALA, if two violations were assumed.

The retrial was on punitive damages alone, and there is no indication that the proof was any different. Somehow, 2 members of this panel determined that a punitive damage of $1,450,000.00 somehow passed muster where an award of $1,500,000.00 did not. The prior opinion was dismissed as obiter dictum, which ignores the fact that the discussion involved the very same facts, as opposed to being a holding in an unrelated case. The panel also made the mistake of deferring to the jury on a key factor in determining whether due process was met, when due process was not even before the jury.

There is a dissent which actually conducts a constitutional analysis and concludes the award was excessive. The dissent makes the point that the measuring stick for comparison should be the portion of the damages attributable to the defendant after apportionment, and that a 9-1 ratio is the maximum. It is hard to see how the Supreme Court does not take this case if asked.