Predictability in punitive damages: considering the use of punitive damage multipliers.
Defendants in mass tort, multi-district, and class action litigation often face lawsuits from numerous plaintiffs, each of whom is entitled to assert a claim for and potentially obtain an individual award of punitive damages for a single, allegedly egregious act. (1) While these multiple punitive awards may range from de minimus to an award that exceeds constitutional boundaries, in the aggregate, the cost to a defendant can be catastrophic, ultimately bankrupting a defendant and leaving future plaintiffs without recourse for their actual damages.
One solution to this problem may be the punitive damage multiplier. Rather than awarding a single punitive damage award in each case, under the multiplier approach, a jury sets a mathematical relationship between punitive and compensatory damages by establishing a dollar-for-dollar ratio after hearing evidence of the reprehensibility of the defendant's conduct, including consideration of the harm to nonparties. (2) Over the past decade, the U.S. Supreme Court has made numerous attempts to provide more clarity to the calculation of punitive damage awards. Significantly, the Supreme Court suggested in Exxon Shipping Co. v. Baker that a multiplier approach may be the best way to decrease the unpredictability of punitive damage awards. (3)
Although the idea of a punitive damage multiplier has not yet been widely recognized, various courts and commentators have considered the use of a multiplier to increase the efficiency of complex litigation. This article examines the possibility of having juries use a punitive damage multiplier to determine punitive damages in class action or mass tort litigation, paying particular attention to the advantages and disadvantages of its use. In addition, this article will also analyze the context in which courts have utilized a multiplier approach and the common arguments presented by parties in favor of and opposed to punitive damage multipliers.
I. Recent U.S. Supreme Court Punitive Damage Jurisprudence
The most often cited rationale underlying punitive damage awards is the public function they serve: to punish and deter behavior society deems objectionable, similar to the function of criminal punishments. (4) In order to achieve this goal, however, courts must provide for some predictability in punitive awards. (5) Research on punitive damage awards has revealed that a major source of unpredictability in how juries decide punitive damage awards "comes from the fact that people do not know how to 'translate' their moral judgments into dollar amounts." (6) In response, the U.S. Supreme Court has attempted to provide guidance in calculating a punitive award that both meets the requirements of Due Process and provides the necessary predictability for the award to fairly and adequately fulfill its function.
In 2007, the Supreme Court considered the Constitution's Due Process limitations with respect to awarding punitive damages in Phillip Morris U.S.A. v. Williams. (7) In Phillip Morris, the Court concluded that the Due Process Clause forbids a state from awarding punitive damages to punish a defendant for injuries to nonparties because such awards threaten punishment for conduct against which the defendant has no opportunity to defend. (8) While punitive damages cannot be awarded as punishment for injuries suffered by nonparties, juries are allowed to consider the harm to nonparties in determining a defendant's reprehensibility. (9) Thus, the Due Process Clause requires states to provide juries with adequate legal guidance, and to use procedural tools that ensure juries are accounting for the harm caused to nonparties to determine reprehensibility only, and not to punish the defendant for such harm to nonparties. (10) The Court offered little guidance on how states should provide these safeguards, providing only that "[a]lthough the states have some flexibility to determine what kind of procedures they will implement, federal constitutional law obligates them to provide some form of protection in appropriate cases." (11) With this decision, the Supreme Court challenged courts to develop procedures that ensure juries engage in appropriate inquiries and reach punitive damage awards that account for the reprehensibility of defendants' conduct without punishing them based on harm to nonparties.
The Supreme Court spoke again on the issue of punitive damages in June 2008 in Exxon Shipping Co. v. Baker. (12) That case considered the validity of a $5 million punitive damage award against Exxon arising out of 1989 Exxon Valdez oil spill. The Court reduced the punitive damages verdict by half, and limited the ratio of compensatory to punitive damages to 1:1 in maritime cases. (13) Although the holding is limited to maritime law, the opinion offers interesting commentary on the problems of punitive damage awards and some solutions that have been formulated to address those problems.
The Exxon Court noted that, despite states' efforts to limit damages awards by setting statutory limits and maximum ratios on punitive to compensatory damages, punitive damage awards are "higher and more frequent in the United States than they are anywhere else." (14) The Court noted that the "real problem [of punitive damages] is the stark unpredictability of punitive awards." (15) "Courts of law are concerned with fairness [and] consistency," but the evidence illustrates that factually similar cases often result in inconsistent punitive awards. (16) For example, in two cases with "strikingly similar facts," the juries awarded comparable compensatory damages, but one jury awarded $4 million in punitive damages and the other did not award any punitive damages. (17) In the Exxon Court's discussion of how to eliminate this unpredictability, the Court suggested "pegging punitive to compensatory damages using a ratio or maximum multiple" as an alternative to hard dollar caps, which do not account well for inflation. (18) This suggestion focuses on the injury of the plaintiffs by tying the amount of punishment to the level of injury. At least one commentator has argued that the Court's suggestion greatly diminishes the importance of the previously dominant factor in determining the proper amount of a punitive award--the reprehensibility of the defendant's actions. (19)
When faced with the possibility of multiple lawsuits in a legal system that will also allow a multitude of varying punitive damage awards determined by different juries, the potential for unpredictability is particularly alarming. The Supreme Court's suggestion of a multiplier as a potential solution provides an interesting method of reigning in unpredictable jury awards.
II. The Pros and Cons of Punitive Damage Multipliers
Much has been written on the dangers of punitive damage awards, including Due Process violations, discouraging individuals and companies from engaging in socially beneficial activities, and depriving later plaintiffs of the funds to cover their actual damages. Punitive damage multipliers can positively affect each of these concerns by providing increased predictability and equality in the distribution of punitive awards among plaintiffs. The use of a punitive damage multiplier also increases administrative convenience and promotes judicial efficiency by providing "a method by which defendants will not be subject to repeated individual trials where punitive [damages] are litigated. In one unitary proceeding as to the entire class tried their punitive damages liability can be resolved for all." (20) A multiplier may be used at the outset to determine a consistent punitive damage award for an entire group of plaintiffs versus running the risk of multiple, and potentially inconsistent awards, for the same conduct.
The use of a multiplier, like punitive damages generally, creates the potential to jeopardize the claims of future plaintiffs. (21) A high multiplier, when applied to high compensatory awards for numerous plaintiffs, may lead to payouts that leave a defendant bankrupt. (22) Thus, the multiplier may not be prudent if the possibility of excessive punitive damage awards threaten the defendant's solvency. (23) Using a multiplier at the outset may also raise the risk of subsequent plaintiffs inflating their compensatory damages in hopes of increasing their eventual payout should punitive damages apply in their cases. If compensatory damages are predicted to be low and remain low, a multiplier may be used to keep the ultimate payouts to plaintiffs within that lower range. This could eliminate the risk of earlier plaintiffs getting a greater piece of the punitive pie despite having de minimus compensatory damages.
Another concern about the use of a punitive damage multiplier is that the multiplier will decrease the likelihood that compensatory and punitive damages bear a reasonable relationship to one another as required by the U.S. Supreme Court in State Farm v. Campbell. (24) One commentator has suggested that "[h]aving a jury set a single, abstract punitive damage multiplier deprives the jury of the opportunity to consider the facts and circumstances of each individual plaintiff's case and to determine what amount of punitive damages, if any is appropriate for each plaintiff." (25)
A small multiplier is less likely to be attacked on the grounds of excessiveness or that it lacks a reasonable relationship to actual damages awarded, (26) and this concern may also be addressed through a creative trial plan. If all claims are consolidated for trial, and the punitive damage multiplier is based on a representative group of plaintiffs' evidence of compensatory damages, a multiplier may be assessed for its reasonableness based on the representative group's damages following that initial trial. Because the multiplier is tied to evidence supporting compensatory damages of a representative group of plaintiffs, this may address concerns about the reasonable relationship between the punitive and compensatory awards.
Though there is very little scholarship on the relative merits of a multiplier approach in comparison to a lump sum award, one scholar has argued that the multiplier approach provides a method of assessing punitive damages that reflects both the reprehensibility of a defendant's conduct and the varying degrees of harm that individual plaintiffs suffer. (27) By applying a multiplier to every dollar of compensatory damages, "individuals awarded high amounts of compensatory damages will receive proportionately higher awards of punitive damages." (28) The author qualifies this benefit by stating that proportionality can also be achieved utilizing a lump sum method that distributes punitive damages in proportion to the plaintiffs' harm, rather than on a per capita basis. (29) Also, at least one court has rejected the use of a multiplier despite its benefit of proportionality, stating that such treatment does not "satisfy the state's interest in making sure that punitive damage awards 'are appropriate in specific relation to differing amounts of--and reasons for--actual damages.'" (30)
Commentators have also debated the concept of general fairness with respect to the use of a multiplier. Looking at an award from the standpoint of the ratio, the multiplier may be seen as promoting a fair and balanced approach to damages distribution by assuring that plaintiffs receive equal treatment in relation to one another, and in cases with multiple defendants, to each defendant. (31) Yet from the perspective of the actual punitive awards assessed, the method may still be unfair because it provides different awards to different plaintiffs, even though the defendant's conduct was the same with respect to them all. (32) Under this latter view, the multiplier is thought to operate as an award or windfall to certain plaintiffs, rather than as punishment to defendants. (33)
The use of a multiplier in the context of "reverse bifurcation" trials, where punitive damages are determined prior to any finding of liability, has also been subject to substantial criticism. (34) Defendants may be prejudiced by this approach, as they suffer loss of arguments or defenses with respect to underlying elements and become subject to damage awards by juries who are predisposed to the idea of liability. (35) In addition, by considering punitive damages prior to hearing issues of causation and damages, the jury does not know how many victims potentially exist, the severity of their injuries, or how their injuries OCCUlTed. (36)
III. Punitive Damage Multipliers In Practice
Courts in the Fifth Circuit, West Virginia, and Maryland have considered the utility of using a multiplier approach in the class action or mass tort context. These cases provide insight into how a multiplier works in practice, the variety of ways that courts have evaluated the multiplier approach, and the arguments counsel will likely face in advocating for, or challenging, its use.
A. The Fifth Circuit
Jenkins v. Raymark Industries was a class-action suit involving asbestos related claims. (37) Despite the credit it receives for pioneering the idea of a multiplier in the Fifth Circuit, the court in Jenkins did not apply or consider the multiplier approach in any detail. Rather, the court indirectly endorsed the use of a multiplier, stating only that, as an alternative to awarding aggregate damages, "the jury could be allowed to award an amount of money that each class member should receive for each dollar of actual damages awarded." (38)
Purportedly taking its lead from Jenkins, the trial court in Cimino v. Raymark Industries fashioned a three-phase trial plan, which included the use of a multiplier. (39) In phase I, "the jury assessed a punitive damage multiplier 'for each $1.00 of actual damages,'" in varying amounts for the different defendants involved. (40) Ultimately, the judgments in the trial court were vacated. (41) The latter proceedings, however, did not attack the use of a multiplier. Rather, the appeals court took issue with the lower court's use of statistical methods to extrapolate awards for class members based on awards determined for sample plaintiffs. (42)
The Fifth Circuit considered the use of a punitive damage multiplier again in Watson v. Shell Oil Co. (43) Although Watson was later reversed en banc, (44) the case provides further insight into the use of a punitive damage multiplier in a mass tort action. Watson arose out of an explosion at a manufacturing facility that caused extensive damage throughout the plant and surrounding communities. (45) The court posited that where the defendant's culpability is determined in connection with one single event in a mass-disaster context, there is likely to be less variance between punitive damage awards with respect to different plaintiffs and, therefore, a multiplier approach to determine punitive damages for the entire class may be appropriate. (46) The court went on to note that to the extent that plaintiffs' claims for punitive damages differ, a phased trial plan that utilizes a multiplier can be refined by setting different ratios or multipliers for different types of claims, rather than casting aside the method altogether. (47) A refined approach using different multipliers for different types of claims presumably would allow the defendants an opportunity to present defenses tailored to the specific categories of claims without requiring individual determination of punitive damages with respect to every plaintiff. The refined approach would be more fair to the defendants, less likely to deny defendants an opportunity to present a defense, and would still increase judicial efficiency.
B. West Virginia
The Supreme Court of Appeals of West Virginia discussed the use of a punitive damage multiplier in the context of a mass tobacco litigation involving consolidation of 1,100 individual claims by smokers against tobacco companies. (48) The court considered whether a bifurcated trial, where liability and a punitive damage multiplier are determined in phase I, prior to a finding of compensatory damages for each plaintiff in phase II, violates the Due Process Clause as interpreted by the U.S. Supreme Court in State Farm v. Campbell. (49)
The defendant tobacco companies objected to the bifurcated trial plan, and the determination of a punitive damage multiplier prior to individual compensatory damages, on two grounds: (1) the plan failed to ensure that punitive damages would be proportionate to the injury caused to individual plaintiffs; and (2) the plan failed to ensure a proper ratio between punitive and compensatory damages. (50) The trial court rejected these arguments stating that individual compensatory damages would be determined in phase II, based on individual evidence, and then the multiplier from phase I would be applied to determine the punitive damage award. (51) Furthermore, the court would have the ability to review individual punitive and compensatory damages once they were determined to ensure that the awards do not violate State Farm and other relevant case law. (52) The appellate court in In re Tobacco Litigation, however, did not rule on the use of a multiplier, and made no judgment as to whether the proposed trial plan was the best way to proceed. (53) Rather, the appellate court narrowly held that the Supreme Court's decision in State Farm "does not preclude the bifurcation of a trial into two phases wherein certain elements of liability and punitive damage multiplier are determined in the first phase and compensatory damages and punitive damages, based on a punitive damage multiplier, are determined for each individual plaintiff in the second phase." (54)
The concurring opinion in In re Tobacco Litigation highlights an additional argument asserted by the defendants and provides insight into the benefits of a punitive damage multiplier approach. Defendants argued that they had a due process right to try the issue of punitive damages one case at a time in order to allow the jury to assess the defendant's culpability with respect to each individual plaintiff. (55) The concurring judge pointed out that if the majority had accepted such an argument, it would effectively mean that the defendant would have a right to thousands of trials, which would result in administrative gridlock in the court system, and would deny individual plaintiffs their day in court. (56) By contrast, having the jury determine a punitive damage multiplier that "establishes a numerical relationship between the potential harm of the defendant's conduct and the plaintiff's compensatory damages" allows plaintiffs their day in court, and permits the defendants to contest a claim for punitive damages in one proceeding. (57) If such a process were utilized, plaintiffs and defendants would have a "just, speedy, and inexpensive determination of every action." (58)
A federal court in West Virginia also has addressed the issue of punitive damage multipliers, although only tangentially. In Loudermilk Services, Inc. v. Marathon Petroleum Company LLC, (59) the Southern District of West Virginia reviewed the proposed trial plans of a comprehensive claim with 654 plaintiffs. In discussing the use of a punitive damage multiplier, the court stated the following:
Using the multiplier, a jury could make a determination of reprehensibility on a class-wide basis and decide on a number which reflects this degree of reprehensibility. That number would then be applied later to individual plaintiffs, once an individual class member's claim is adjudicated and he is found to have suffered harm from the conduct upon which the multiplier is based. (60)
The court held that because the multiplier was a direct ratio between punitive and compensatory damages, it "ensure[d] a consistent and logic[al] relationship between punitive damages and actual harm." (61) While the court accepted and embraced the punitive damage multiplier, it did prohibit its use to punish a defendant directly on harms that it allegedly inflicted on nonparties. (62)
Maryland's high court considered the viability of using a punitive damage multiplier in class action litigation that involved claims against several tobacco manufacturers in Phillip Morris, Inc. v. Angeletti. (63) Defendants successfully petitioned the Maryland Court of Appeals to vacate the circuit court's certification of two classes, asserting that the circuit court grossly abused its discretion in certifying classes that did not meet the requirements for a class action suit. (64) The defendants also argued that the circuit court violated their state and federal constitutional rights by splitting interrelated issues of liability and causation, and impermissibly separating punitive damages from liability determinations. (65) Class action representatives rebutted with three arguments: (l) bifurcation of common liability from damages or causation was not constitutionally infirm; (2) the circuit court properly concluded that a punitive damage multiplier could be determined as a common issue separate from findings of liability and actual damages; and (3)the circuit court was correct in determining that a claim for medical monitoring was appropriate for class certification. (66)
The court of appeals provided a summary of its previous opinions highlighting Maryland's "essential features underlying an award of punitive damages." (67) The court of appeals began with the principle that "a jury must find compensatory damages as a foundation before it may award punitive damages." (68) Next, the court noted that even where punitive damages may be appropriate, the decision to award such damages is within the discretion of the trier of fact. (69) Finally, the court concluded its overview by stating that it is well settled under Maryland law that punitive damages cannot be decided in a vacuum, and compensatory or actual damages must be found first in order to support an award for punitive damages. (70)
Recognizing that punitive damages are meant to be a measure of the defendant's culpability, the court nevertheless rejected the class representatives' argument that punitive damages could be determined without regard to liability to any particular class member. (71) The court then reiterated that there is "clearly established" law in Maryland prohibiting a punitive damage award without regard to an actual compensatory award. (72) Ultimately, although the court acknowledged the use of punitive damage multipliers in other jurisdictions, it concluded that the use of a multiplier in this context would not enable the jury to assess appropriate punitive damages relative to actual damages and would be contrary to Maryland law. (73)
Using a multiplier in determining punitive damage awards provides a method for courts to avoid overdeterrence through multiple punitive awards, increase the predictability and economic efficiency of punitive awards, and improve the overall efficiency in mass tort and complex litigation cases. Despite these benefits, opponents argue that the multiplier approach deprives defendants of an opportunity to present all of their defenses, as it does not allow for individual determinations of punitive damages for individual plaintiffs. Many of the arguments against the use of a punitive damage multiplier arise in cases in which plaintiffs are seeking a determination as to punitive damages for an entire class before trying issues of causation and compensatory damages. This negative view of multipliers is often linked to bifurcated trial plans that are objectionable on other grounds.
Courts and scholars that have addressed the advantages and disadvantages of the punitive damage multiplier have done so primarily within the class action context. The question yet to be addressed is whether a punitive damage multiplier has a place in the world of complex litigation beyond class actions. Where mass tort actions are not certified as a class, they are often consolidated for purposes of discovery and trial. A punitive damage multiplier may be useful in this context, particularly where multiple parties' actions are consolidated for trial and representative plaintiffs' claims are presented to a jury to allow for a punitive damage determination. Regardless, the punitive damage multiplier is a solution that has yet to be fully explored and may hold future potential in helping courts and counsel develop an economical and efficient resolution of unpredictable punitive damage awards that withstands constitutional scrutiny.
(1) For a full discussion on the ability of multiple plaintiffs to recover multiple punitive damage awards from a single company for one allegedly wrongful act, see JOHN J. KIRCHER AND CHRISTINE M. WISEMAN, PUNITIVE DAMAGES: LAW AND PRACTICE [section] 5.26 (2nd ed. 2000).
(2) Phillip Morris USA v. Williams, 549 U.S. 346, 357 (2007).
(3) Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008).
(4) See Jill Wieber Lens, Punishing for the Injury: Tort Law's Influence in Defining the Constitutional Limitations on Punitive Damage Awards, 39 HOFSTRA L. REV. 595, 613-622 (2011) (discussing the United States Supreme Court's emphasis on the state's interest in punitive damages and the similarities between punitive damages and criminal punishments); see also Exxon Shipping Co., 554 U.S. at 492 ("[T]he consensus today is that punitives are aimed not at compensation but principally at retribution and deterring harmful conduct.").
(5) Exxon Shipping Co., 554 U.S. at 499-500 (declaring that "the real problem, it seems, is the stark unpredictability of punitive awards").
(6) CASS R. SUNSTEIN, ET AL., PUNITIVE DAMAGES, HOW JURIES DECIDE, 29 (2002).
(7) Philip Morris, 549 U.S. 346 (2007).
(8) Id at 353.
(9) Id. at 357.
(10) Id. at 355.
(11) Id. at 357 (emphasis in original).
(12) Exxon Shipping Co., 554 U.S. 471 (2008).
(13) Id. at 515.
(14) Id. at 496.
(15) Id. at 499.
(17) BMW of N. Am. v. Gore, 517 U.S. 559, 565 n. 8 (1996).
(18) Exxon Shipping, 554 U.S. at 506.
(19) See Lens, supra note 4, at 633-634.
(20) ALBA CONTE AND HERBERT B. NEWBERG, 5 NEWBERG ON CLASS ACTIONS, MASS TORTS [section] 17:33 (4th ed.) (West 2008); see also David G. Owen, A Punitive Damages Overview: Functions, Problems and Reform, 39 VILL. L. REV. 363, 395 (1994).
(21) Owen, supra note 20, at 395.
(24) State Farm v. Campbell, 538 U.S. 408, 426 (2003).
(25) Sheila N. Birnbaum, Punitive Damages and Due Process: How Much is Too Much, Benjamin N. Cardozo Lecture, THE RECORD, 61 No. 2 165, 180 (2006). See also Laura J. Hines, Engle v. R.J. Reynolds Tobacco Co.; Lessons in State Class Actions, Punitive Damages, and Jury Decision-Making Obstacles to Determining Punitive Damages in Class Actions, 36 WAKE FOREST L. REV. 889, 940 (in the context of a mass tort case, where varying facts and state laws may be involved, the use of a punitive damage multiplier may not satisfy the reasonable relationship test, as a multiplier may not be able to measure the true scope of harm to absent class members).
(26) Hines, supra note 25, at 939-940.
(27) Id. at 925.
(28) Id.; see also Arthur R. Miller and Price Ainsworth, Resolving the Asbestos Personal-Injury Litigation Crisis, 10 REV. LITIG. 419, 443-444 (1991) (advocating for a multiplier approach).
(30) Id. at 931 (citing Phillip Morris, Inc. v. Angeletti, 752 A.2d 200, 249 (Md. 2000)).
(31) Owen, supra note 20, at 395.
(32) Hines, supra note 25, at 924.
(34) Victor E. Schwartz, Putting the Cart Before The Horse." The Prejudicial Practice of A "Reverse Bifurcation" Approach to Punitive Damages, 2 CHARLESTON L. REV 375, 383-387 (2008).
(35) Id. at 385.
(36) Id. at 400-401.
(37) 702 F.2d 468, 469 (5th Cir. 1986).
(38) Id. at 475.
(39) Cimino v. Raymark, 751 F. Supp. 649, 657-658 (E.D. Tex. 1990).
(41) See generally Cimino v. Raymark, 151 F.3d 297, 335 (5th Cir. 1998).
(43) Watson v. Shell Oil. Co., 979 F. 2d 1014, 1016-17 (5th Cir. 1992), reversed en banc, 53 F.3d 663 (5th Cir. 1994).
(45) Id. at 1016-1017.
(46) Id. at 1019.
(47) Id. 1019 n.19.
(48) In re Tobacco Litigation, 624 S.E.2d 738 (W.Va. 2005).
(49) 538 U.S. 408 (2003).
(50) In re Tobacco Litigation, 624 S.E.2d at 742-743.
(51) Id. at 742; see also State of West Virginia Ex. Rel. Chemtall Inc, et al. v. Madden, 655 S.E.2d 161, 166-167 (W.V. Sup. Ct. of App. 2007) (affirming a two-phase trial in which punitive damages multipliers were considered prior to the determination of individual causation and compensatory damages).
(52) Id. at 743.
(55) Id. at 748 (Starcher, J., concurring).
(56) Id. at 749.
(59) No: 3-04-0966, 2008 U.S. Dist. LEXIS 67866 (S.D.W.Va. Sept. 5, 2008).
(60) Id. at *13.
(61) Id. at *14.
(62) Id. at *14 (citing Philip Morris, 549 U.S. 346 (2007)).
(63) Philip Morris Inc., v. Angeletti, 752 A.2d 200 (Md. 2000).
(64) Id. at 208.
(66) Id. at 209.
(67) Id. at 246.
(69) Id. at 246-247.
(70) Id. at 247.
(73) Id. at 246-249.
Sarah Grider Cronan is a Member at Stites & Harbison, PLLC. Drawing on her twenty-plus years' experience, Sarah offers creative and strategic approaches to complex problems confronting her clients. Sarah's practice focuses on the defense of product liability, toxic tort, insurance coverage, bad faith, environmental, and commercial disputes in state and federal courts nationwide. She is knowledgeable about multi-district litigation and the management of mass and class actions. Brittany Cross is an Associate in Stites & Harbison's Louisville office where she is a member of the Torts and Insurance practice service group. The authors also wish to acknowledge the contributions of Holly N. Lankster in relation to this article.
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|Author:||Cronan, Sarah G.; Cross, J. Brittany|
|Publication:||Defense Counsel Journal|
|Date:||Oct 1, 2012|
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