BENETTA BUELL-WILSON v. FORD MOTOR COMPANY

Filed 3/10/08; on remand from U.S. Supreme Court

OPINION ON REMAND FROM THE UNITED STATES SUPREME COURT

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

Story Continued From Part IV ..

In Philip Morris, the United States Supreme Court held Philip Morris's rights under the due process clause of the Fourteenth Amendment were violated when the jury considered harm to third parties as a factor when determining the amount of punitive damages, because the "Due Process Clause forbids a State to use a punitive damages award to punish a defendant for injury that it inflicts upon nonparties . . . ." (Philip Morris, supra,166 L.Ed.2d at p. 948.) The Supreme Court concluded that such punishment violates the rule that a state must afford a defendant an opportunity to present every available defense. (Ibid.) A defendant "threatened with punishment for injuring a nonparty victim" may be unable to present defenses applicable to the nonparty victim if those defenses do not also coincide with those relevant to the plaintiff's claim. (Ibid.)

Philip Morris also emphasized, however, that a plaintiff may offer evidence of "harm to other victims" to show the reprehensibility of a defendant's conduct. (Philip Morris, supra,166 L.Ed.2d at pp. 949-950.) Reiterating its holding in State Farm, the Supreme Court held "[e]vidence of actual harm to nonparties can help to show that the conduct that harmed the plaintiff also posed a substantial risk of harm to the general public, and so was particularly reprehensible." (Philip Morris, supra, 166 L.Ed.2d at p.949.) "[A] jury may not go further than this and use a punitive damages verdict to punish a defendant directly on account of harms it is alleged to have visited on nonparties."(Id. at pp. 949-950.) Where there is a "significant" risk that the jury might do so "  because, for example, of the sort of evidence that was introduced at trial or the kinds of argument the plaintiff made to the jury  a court, upon request, must protect against that risk." (Id. at p. 951, italics added.)

3. Forfeiture

a. Jury instructions and arguments at punitive damages phase of trial

(1) Ford's proposed Special Jury Instruction Nos. 19 & 21

At the bifurcated punitive damages phase of the trial, Ford proposed Special Jury Instruction No. 21, instructing the jury not to consider third party harm for any purpose:

"In determining the appropriate amount of punitive damages, if any, in this case, you may consider only the harm to the plaintiffs. Any individuals other than the plaintiffs who might claim to have been harmed by Ford have the right to bring their own lawsuit seeking damages for any alleged injuries they may have incurred. Therefore, if you decide to award any punitive damages, your award must be limited to redressing the injuries incurred only by the plaintiffs in this lawsuit." (Italics added.)

In discussions regarding punitive damages instructions, counsel for Ford made the following argument regarding this instruction: "On [Special Jury Instruction] No. 21, particularly State Farm,in a product case, it tells the jury that they are only to focus on these particular plaintiffs. The Romo [v. Ford Motor Co. (2003) 113 Cal.App.4th 738 (Romo)] case refers to that same principle as opposed to trying to redress . . . claims of other parties. So we would request and argue that that instruction is required by the due process clause and California law as it is developing."

The court denied counsel's request it give that and several other special jury instructions, stating that they "are argumentative, misstate the law, or are already covered by the instructions that we will give from CACI." Ford at no time suggested a modification of Special Jury Instruction No. 21 or a separate instruction to clarify that the jury could consider harm to third parties in deciding reprehensibility.

Ford also proposed an instruction, Special Jury Instruction No. 19, based on State Farm, supra,538 U.S. 408, that told the jury it could not consider Ford's actions and impact outside the State of California, but also stated that the jury could consider the impact of Ford's conduct on individuals other than the plaintiffs inside the State of California:

"In determining the amount of punitive damages, if any, that is necessary to achieve the proper level of punishment and deterrence, you may consider only Ford's wrongful conduct, if any, that has had an adverse impact on the citizens of California. Accordingly, you may not award any punitive damages for the purpose of punishing Ford for the sale of vehicles in other states for any injuries that may have occurred in other states, or for the purpose of changing Ford's conduct in other states."^[1] (Italics added.)

Counsel for plaintiffs requested Special Jury Instruction No. 19 be modified to state "in determining the reprehensibility of Ford's actions, you may consider Ford's conduct in California and elsewhere." As counsel explained to the court, "[W]hen talking about the reprehensibility of Ford's actions which is the chief and primary consideration or guidepost that the jury must consider, I believe that under the case law they are entitled from an evidentiary standpoint to consider acts outside of California so long as they are similar to what we are dealing with in this case. [A]s long as when awarding the amount of punitive damages they focus on the harm to this plaintiff and the act that was done to this plaintiff. When dealing with the issue of reprehensibility though, is this an isolated act or have they done this elsewhere, I think they can consider extraterritorial [conduct]." The court refused the requested modification and gave Special Jury Instruction No. 19 as proposed by Ford.

(2) Plaintiff's proposed Special Jury Instruction No. 1

Plaintiffs proposed Special Jury Instruction No. 1, based on State Farm, supra,538 U.S. 408, listed the factors to consider in determining reprehensibility, including "whether the conduct involved repeated actions or an isolated incident." Ford objected to that instruction. While Ford acknowledged the proposed instruction tracked State Farm'sdiscussion of "factors that are relevant to . . . reprehensibility," Ford asserted those factors were not "exclusive" and argued that if the instruction were given, the court should add additional factors: "First, whether the defendant's conduct was consistent with industry standards and customs. Second, whether defendant's conduct conformed to government safety standards. And third, whether the defendant had a reasonable ground for believing its conduct was lawful." Ford also argued the repeated conduct factor was inapplicable to a product liability case involving the sale of vehicles because "it's inappropriate and misleading to suggest to the jury the fact that . . . the company was engaging in its lawful business, selling multiple automobiles, could somehow be an evil that was punishable."

The court rejected plaintiffs Special Jury Instruction No. 1. With regard to the reprehensibility factor and whether the conduct was an isolated or repeated act, the court stated: ". . . I think that flies in the face of what the court will be instructing on with regard to No. 19, saying not to consider . . . injuries that have occurred in other states." The court also stated, "The jury understands the word 'reprehensible.' [B]oth sides are going to be able to argue this case and you can say why it is or is not reprehensible."

(3) Punitive damages instructions given by court

The court instructed the jury as follows on punitive damages: "The purposes of punitive damages are to punish a wrongdoer and to discourage it and others from similar conduct in the future. There is no fixed standard for determining the amount of punitive damages and you are not required to award any punitive damages. In deciding the amount of punitive damages, if any, you should consider all of the following separately for . . . the defendant. A, how reprehensible was the defendant's conduct; B, is there a reasonable relationship between the amount of punitive damages and [the plaintiffs'] harm; C, in view of the defendant's financial condition, what amount is necessary to punish it and discourage future wrongful conduct. [] You should keep in mind that compensatory damages, although awarded to compensate plaintiffs for their injuries, also may . . . have the effect of punishing and deterring misconduct. Therefore, in determining whether and in what amount to award any punitive damages, you should consider the deterrence and punishment imposed solely by any [punitive] damages you may award and when added to the sum you have already imposed as compensatory damages. [] In determining the amount of punitive damages, if any, that is necessary to achieve the proper level of punishment and deterrence, you may consider only Ford's wrongful conduct, if any, that has had an adverse impact on the citizens of California. Accordingly, you may not award any punitive damages for the purpose of punishing Ford for the sale of vehicles in other states for any injuries that may have occurred in other states, or for the purpose of changing Ford's conduct in other states. [] Punitive damages must bear a reasonable relationship to compensatory damages."

(4) Closing argument

As will be discussed in more detail, post, in closing argument when discussing the reprehensibility of Ford's conduct, plaintiffs' counsel made reference to the impact of Ford's actions on third parties within California, stating such things as "thousands of these vehicles were manufactured and sold in their defective condition and they are on our highways in California," and "they marketed to specifically, the soccer moms, the women with babies, the toddler seats, the families."

At no time during closing arguments did Ford object to the statements made by plaintiffs' counsel. Further, in its own closing arguments counsel for Ford did not caution the jury to focus only on the injuries to plaintiffs or on Ford's impact in California. Indeed, in responding to plaintiffs' closing argument, Ford's counsel emphasized plaintiffs' counsel's reference to targeting "soccer moms," stating, "Mr. Schoville said to you that they targeted the soccer moms. That they . . . let this vehicle out to the people out in California, knowing that it was dangerous and defective." Ford attempted to rebut this argument by noting the testimony of Ford's management that they and their families drove Explorers and commented, "[D]o you really believe that they are going to put their own families at risk if they knowingly put out a defective vehicle." Ford's argument focused on apologizing for its actions and asking the jury not to punish Ford for the fact it was a large corporation or because the lawyers "did a lousy job defending the company." Counsel for Ford commented about the "David versus Goliath" nature of the case, stating, "You saw the full wrath, if you will, Ford's power demonstrated for you in the number of lawyers and the amount of money they paid their experts." Nevertheless, counsel argued the verdict was the product of Ford being "out-lawyered. With all our money and all our power, we were out-lawyered."

Counsel for Ford also attempted to present evidence that was excluded at trial concerning (1) the number of times they had successfully defended this type of case, (2) the overall safety record of the Explorer, and (3) comparing the risk of the Explorer to other vehicles. Plaintiffs' counsel objected to this attempted argument, and the court sustained the objections.

After the court instructed the jury and the jury began deliberations, counsel for Ford belatedly objected to plaintiffs' closing argument and requested a mistrial, arguing it was improper for plaintiffs' counsel to argue "this was a case not about these plaintiffs but about soccer moms and other families." The court denied the motion. The court also interpreted the motion as one to strike the belatedly objected-to portions of plaintiffs' counsel's argument, noting it was not practical to send a note to the jury saying that portions of the argument had been stricken.

b. Analysis

(1) The court properly rejected Ford's Special Jury Instruction No. 21

As discussed, ante, Philip Morris holds that "upon request" trial courts must "provide assurance that juries are not asking the wrong question, i.e., seeking, not simply to determine reprehensibility, but also to punish for harm caused to strangers." (Philip Morris, supra,166 L.Ed.2d at pp. 951, 950, italics added.)

At the bifurcated punitive damages portion of the trial, Ford argued Romo and State Farm required the court to instruct the jury that, in determining the appropriate amount of punitive damages, if any, it could not punish Ford for harm caused to third parties. However, Ford's Special Jury Instruction No. 21 was an incorrect and incomplete statement of the law and contradicted the holdings of Philip Morris and State Farm. Ford's proposed Special Jury Instruction No. 21, did not merely tell the jury it could not impose punishment for harm suffered by third parties. Rather, it told the jury it could not consider third party harm for any purpose, includingin assessing the reprehensibility of Ford's conduct. As proposed, Ford's instruction directly contradicted the holding of Philip Morris that a plaintiff may show "harm to other victims" in order to demonstrate a defendant's conduct "was particularly reprehensible." (Philip Morris, supra,166 L.Ed.2d at p. 949.) In fact, this rule was well established at the time Ford proposed its instruction and had recently been confirmed in State Farm, supra,538 U.S. at pages 419, 423, upon which Ford relied in urging the court to give its Special Jury Instruction No. 21.

Ford's Special Jury Instruction No. 21 contradicted another instruction the court gave to the jury, namely, "in deciding the amount of punitive damages," the jury must consider "how reprehensible was the defendant's conduct." Under State Farm, two factors the jury was charged with determining in assessing the reprehensibility of Ford's conduct were whether the conduct demonstrated an indifference or reckless disregard for the safety of others and whether the conduct was repeated or an isolated incident. (State Farm, supra,538 U.S. at p. 419.) Thus, Ford's proposed Special Jury Instruction No. 21 not only directly contradicted the holdings in State Farm and Philip Morris,but it also contradicted another instruction given by the court.

An appropriate jury instruction would have been one similar to BAJI No. 14.72.2, which was amended to comport with Philip Morris, and which delineates the purposes for which a jury may consider third party harm and for what purpose a jury could not: ". . . If you find that defendant had a practice of engaging in, and profiting from wrongful conduct [occurring in California] similar to that which injured the plaintiff, that evidence may be considered in deciding the issues of reprehensibility, whether punitive damages should be assessed, and if so, the amount of punitive damages to be awarded. Do not include in your award of damages any sum that represents damages for injuries to any person other than the plaintiff[s]." (BAJI No. 14.72.2 (Fall 2007-2008 ed.), italics added.)

Californialaw provides that incorrect or misleading jury instructions may be rejected by the courts: " 'A trial court has no duty to modify or edit an instruction offered by either side in a civil case. If the instruction is incomplete or erroneous the trial judge may . . . properly refuse it.' " (Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1673 (Boeken), quoting Truman v. Thomas (1980) 27 Cal.3d 285, 301.) Thus, by proposing an instruction that was an incorrect and misleading statement of law, Ford has forfeited the right to assert instructional error before this court.^[2]

Further, the fact Ford relies on Philip Morris to assert its due process rights were violated does not change this result: "No procedural principle is more familiar to this Court than that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it. Courts may for that reason refuse to consider a constitutional objection even though a like objection had previously been sustained in a case in which it was properly taken. While this court in its discretion sometimes departs from this rule in cases from lower federal courts, it invariably adheres to it in cases from state courts . . . ." (Yakus v. United States (1944) 321 U.S. 414, 444, citations omitted.) Indeed, the Supreme Court has held that it is precluded from reaching a due process challenge because of a party's failure to submit relevant jury instructions: "We have no difficulty agreeing with the State that [defendant's] counsel's failure to urge that the court instruct the jury on scienter constitutes an independent and adequate state-law ground preventing us from reaching [defendant's] due process contention on that point." (Osborne v. Ohio (1990) 495 U.S. 103, 123.)

In both criminal and civil cases, the United States Supreme Court will not review a federal claim arising out of state court litigation unless there is "no doubt from the record" the claim "was presented in the state courts and that those courts were apprised of the nature or substance of the federal claim at the time and in the manner required by the state law." (Webb v. Webb (1981) 451 U.S. 493, 501.) Similarly, California courts have declined to review claims of federal constitutional error in the absence of a specific and timely objection made in the trial court. (See People v. Monterroso (2004) 34 Cal.4th 743, 759, cert. den. (2005) 546 U.S. 834; People v. Burgener (2003) 29 Cal.4th 833, 869, cert. den. (2003) 540 U.S. 855.)

Thus, by proposing a jury instruction that incorrectly and incompletely stated the law, and contradicted existing precedent and other jury instructions given by the court, Ford forfeited its due process challenge to the punitive damages award.

It is true, as Ford asserts, that trial courts have an obligation to instruct juries on the "controlling legal principles" in a case, even in the absence of a specific request from one of the parties. (Agarwal v. Johnson (1979) 25 Cal.3d 932, 951.) However, this rule only comes into play when there is "a complete failure to instruct on material issues and controlling legal principles." (Ibid.) " '[I]f its charge does not fully cover the facts and issues as counsel conceive them, it is [counsel's] duty to request instructions upon specific questions arising.' " (Thomas v. Buttress & McClellan, Inc. (1956) 141 Cal.App.2d 812, 820.) Here, the court did instruct the jury on the controlling legal principles concerning punitive damages. If Ford wanted a limiting instruction concerning third party harm, it was Ford's duty to supply an accurate and complete instruction, which it did not do here.

Nor can Ford complain that it could not anticipate Philip Morris would reiterate the rule that juries could consider third party harm in determining reprehensibility. At the time of the punitive damages phase of the trial in June of 2004, both state and federal case law uniformly held a defendant's similar wrongful conduct toward others was a proper consideration in evaluating the reprehensibility of the defendant's conduct toward the plaintiff, and therefore was a proper consideration in determining the amount of punitive damages to award: "State Farm, in turn, did not bar deterrence of future public injuries as a goal of punitive damages. The court reiterated its statement in BMW [of North America, Inc. v. Gore (1996) 517 U.S. 559, 568 (BMW),] that ' "[p]unitive damages may properly be imposed to further a State's legitimate interests in punishing unlawful conduct and deterring its repetition" ' (State Farm, supra, 538 U.S. at p. 416) and did not limit the concept to punishment and deterrence purely on behalf of the plaintiff. In elaborating on BMW's reprehensibility guidepost, the court in State Farm noted that conduct involving 'repeated actions' was worse than, and could be punished more severely than, conduct limited to 'an isolated incident.' (State Farm, supra, at p. 419.)" (Johnson, supra, 35 Cal.4th at p. 1206, italics added.) "To consider the defendant's entire course of conduct in setting or reviewing a punitive damages award . . . is not to punish the defendant for its conduct toward others." (Id. at p. 1206, fn. 6.)

Indeed, in arguing for Special Jury Instruction No. 21, counsel for Ford cited Romo, supra,113 Cal.App.4th 738, disapproved on other grounds in Johnson, supra, 35 Cal.4th at pages 1205-1207, 1213, for the proposition that the jury could not punish it for harm to third parties. In Romo, the Fifth District Court of Appeal, anticipating Philip Morris, concluded that in State Farm the Supreme Court had already held that it was improper to punish defendants for harm to third parties: "As we read State Farm, then, the legitimate state goal that punitive damages may seek to achieve is the 'condemnation of such conduct' as has resulted in 'outrage and humiliation' to the plaintiffs [citation]; it is not a permissible goal to punish a defendant for everything else it may have done wrong." (Romo, supra, at pp. 749-750.) Elsewhere, the Romo court stated that juries may only punish defendants "based solely on the harm to the plaintiffs." (Id. at p. 753.) However, the Romo court also correctly predicted Philip Morris'sreiteration that third party harm could still be considered on the issue of reprehensibility: "[T]his focus upon punishing the defendant solely for the outrage inflicted upon the present plaintiffs is not an evidentiary limitation. Plaintiffs are still entitled to show similar conduct on the issue of reprehensibility." (Romo, supra, at p. 753, fn. 7.)

Based on its knowledge of existing precedent, Ford could have crafted a jury instruction (or instructions) that properly and completely informed the jury for what purposes it could consider third party harm and for what purposes it could not. Nevertheless, Ford elected to submit to the court an instruction contrary to this well-established precedentprecedent it relied upon in arguing the court should give Special Jury Instruction No. 21. Instead, Ford argued against plaintiff's Special Jury Instruction No. 1, which instructed the jury it could consider Ford's repeated conduct in assessing reprehensibility. Ford even went so far as to argue that if the court gave an instruction on the factors delineated in State Farm and in California authority (see, e.g., Simon, supra,35 Cal.4th at p. 1180)in determining the reprehensibility of a defendant's conduct, the court should add additional factors not approved by any precedent and rejected by this court in Buell‑Wilson I as being inappropriate considerations.

In doing so, Ford forfeited the right to contend on appeal the court erred in failing to instruct the jury under its Special Jury Instruction No. 21. (Boeken, supra,127 Cal.App.4th 1640.) In Boeken,the Second District Court of Appeal rejected defendant Philip Morris's contention, raised for the first time on appeal, that the jury should have been given an instruction based on State Farm because Supreme Court precedent already established that defendants could not be punished for extraterritorial conduct: ". . . Philip Morris argues that the trial court should have instructed the jury using language similar to that from State Farm 'that it may not use evidence of out-of-state conduct to punish a defendant for action that was lawful in the jurisdiction where it occurred.' Philip Morris forfeited this issue by failing to request such an instruction from the trial court. State Farm was not the first case enunciating this concept. It was first addressed in BMW, where the Court stated that 'a State may not impose economic sanctions on violators of its laws with the intent of changing the tortfeasors' lawful conduct in other States.' [Citation.] Thus, BMW provided sufficient authority to enable Philip Morris to draft and request an appropriate instruction. The trial court was not required to draft it for Philip Morris." (Boeken, supra, at p. 1694, fn. 27.)

Indeed, in a recent Ninth Circuit case, White v. Ford Motor Co. (9th Cir. 2007) 500 F.3d 963 (White), it was noted that trial counsel for Ford in 2004 (before the trial in the instant matter) requested the court instruct the jury on third party harm, but at the same time acknowledged third party harm could be considered in considering reprehensibility: "Concerned that the jury would punish Ford for the harm suffered by other . . . victims, . . . Ford . . . requested an instruction that would prevent the jury from punishing '[Ford] in this case not just for the harm to these plaintiffs, but for harm to other plaintiffs, whether in state or out of state.' Ford concededthat evidence of harm to other people could be considered by the jury in assessing reprehensibility,but argued that the jury could punish only 'for the harm to this plaintiff.' The district court refused such an instruction, deciding that it was not required by existing precedent." (Id. at p. 972, italics added.)

Here, counsel for Ford was aware during the 2004 trial that United States Supreme Court and California precedent provided that, in determining the reprehensibility of a defendant's conduct, juries could consider (1) whether the defendant's conduct demonstrated an indifference or reckless disregard for the health or safety of others; and (2) whether a defendant's actions were repeated or an isolated act that only impacted the plaintiff, both factors relating to third party harm. (State Farm, supra,538 U.S. at p. 419; Simon, supra,35 Cal.4th at p. 1180.) As discussed, ante,Ford argued against giving such an instruction to the jury and instead proposed a jury instruction that would have forbidden the jury from considering these factors.

The Philip Morris decision holds "the States have some flexibility to determine what kind of procedures they will implement" to instruct the jury with regard to punitive damages. (Philip Morris, supra,166 L.Ed.2d at p. 951.) Further, the Supreme Court held a jury instruction on third party harm need only be given where the risk of prejudice to the defendant is "significant" and only "upon request." (Ibid.) Thus, Philip Morris (and other controlling United States Supreme Court precedent) comports with California law providing that proper instructions must be presented by counsel, and misleading or inaccurate instructions may be rejected.

(2) Ford's Special Jury Instruction No. 19

Further compounding the matter, Ford submitted, and the court accepted, Special Jury Instruction No. 19, based on State Farm'sholding that limited the jury's consideration of defendant's conduct to that which occurred in the state where the action is pending. However, that jury instruction also told the jury they could consider the impact of Ford's actions on California citizens other than the plaintiffs, i.e., that the jury could consider harm to third parties, as long as it was limited to California: "In determining the amount of punitive damages, if any, that is necessary to achieve the proper level of punishment and deterrence, you may consider only Ford's conduct, if any, that has had an adverse impact on the citizens of California." (Italics added.) Further, as we discuss, post,the argument of counsel regarding harm to third parties in closing argument on the punitive damages phase was limited to harm to persons within California. It was thus within the parameters of Ford's own instruction. Thus, to the extent the jury was allowed to consider third party harm in the punitive damages phase of the trial, Ford invited the error. (Stevens v. Owens-CorningFiberglas Corp. (1996) 49 Cal.App.4th 1645, 1653-1655 [appellants cannot complain on appeal about jury instructions they requested].)

(3) Ford's belated objection to plaintiffs' oral argument

The fact Ford belatedly objected to plaintiffs' counsel's oral argument also does not aid Ford's position. First, as discussed in detail, ante, the third party harm instruction Ford proposed was an incorrect statement of law that conflicted with State Farm and Philip Morris.

Second, plaintiffs' arguments were within Special Jury Instruction No. 19, submitted by Ford, that stated the jury could consider the impact of Ford's conduct on persons other than the plaintiffs inside California. In plaintiffs' counsel's closing arguments at the punitive damages phase, he made it clear he was "focusing in this argument just on this state."

Third, Ford's objection came too late, after the jury had begun deliberations. (Horn v. Atchison, T & S. F. Ry. Co. (1964) 61 Cal.2d 602, 610 [objections forfeited because "[a]t no time did counsel for defendant . . . interrupt plaintiff's counsel's opening or closing arguments to make objections as to the claimed instances of misconduct. Instead he elected to sit by while the improprieties accumulated until the conclusion of the closing argument, and then move for a mistrial"]; Grimshaw, supra,119 Cal.App.3d at pp. 797-798 [Ford waived challenge to alleged misconduct of counsel; motion for mistrial too late to raise issue]; Warner Constr. Corp. v. City of Los Angeles (1970) 2 Cal.3d 285, 302-303 [failure to assert contemporaneous objection to improper argument of counsel concerning defendant's "wealth" waived right to seek mistrial].)

(4) Ford's failure to request limiting instruction at trial

As will be discussed in detail, post,Ford asserts it was error and a violation of due process for the court to admit evidence concerning the Bronco II's and the Explorer's propensity to roll over, as that evidence, and argument relating to it, allowed the jury to punish Ford for harm to third parties. Ford asserts it properly preserved this issue by filing a motion in limine to exclude evidence or argument of third party harm. However, that motion in limine sought in part to exclude evidence of (1) Ford's actions outside California; and (2) evidence of Ford's financial condition or net worth.

Further, although Ford's motion in limine made passing reference to the fact that "plaintiffs should not be permitted to urge the jury to vindicate the rights of other persons not before the court" or to "punish Ford for any conduct that goes beyond the specific harm alleged to the plaintiffs in this case," counsel conceded at oral argument before this court that some of the Bronco II and Explorer evidence was admissible and for certain purposes. As we explained in Buell I, and discuss in detail, post, such evidence was admissible for purposes not impacted by Philip Morris. However, Ford never requested the court instruct the jury regarding the purposes for which that evidence could or could not be considered. This failure also resulted in a forfeiture of the right to raise the third party harm issue on appeal: " 'When evidence is admissible as to one party or for one purpose and is inadmissible as to another party or for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly.' [Citation.] Thus, although a court should give a limiting instruction on request, it has no sua sponte duty to give one." (People v. Hernandez (2004) 33 Cal.4th 1040, 1051, second italics added.)

(5) Ford's failure to raise instructional error on appeal

It is undisputed Ford did not appeal to this court on the basis the jury had been incorrectly instructed or there was improper closing argument by counsel. It is further undisputed Ford did not raise instructional error or assert improper argument by counsel in its petition for rehearing or petition for review to the California Supreme Court. Indeed, at oral argument before this court, counsel for Ford acknowledged it never asserted instructional error or improper argument of counsel as a basis for reversing the judgment on the first appeal.

Ford has forfeited the right to raise instructional error here in response to Philip Morris. The United States Supreme Court lacks jurisdiction over federal questions "not pressed or passed upon in the state courts." (Stern, supra,  3.16, p. 171.) Ford was required not only to raise the issue in the trial court, but to pursue it "on appeal to higher state courts . . . in the manner and with the degree of specificity required by the state rules of practice." (Stern, supra, at  3.18(b), p. 179, citing Beck v. Washington (1962) 369 U.S. 541, 549-554.) " 'Without any doubt it rests with each State to prescribe the jurisdiction of its appellate courts, the mode and time of invoking that jurisdiction, and the rules of practice to be applied in its exercise; and the state law and practice in this regard are no less applicable when Federal rights are in controversy than when the case turns entirely upon questions of local or general law.' " (Wolfe v. North Carolina (1960) 364 U.S. 177, 195.)

Indeed, Ford understood at the time of its first appeal that juries could not punish defendants for harm to third parties. In its opening brief in the original appeal Ford argued that "plaintiffs' invocation of the Bronco II as a basis for punitive damages, in and of itself, is unconstitutional and grounds for reversal, because due process forbids imposing punitive damages against a defendant for conduct other than the specific conduct that harmed the plaintiffs before the court." However, Ford was attacking plaintiffs' closing argument during the liability phase of the trial, argument that, as we explain, post, was entirely proper. Moreover, that statement was in a section of Ford's brief asserting that the admission of the Bronco II evidence constituted a grounds for reversal of the judgment, not in Ford's argument that the punitive damages award should be reversed. This passing reference in a separate portion of Ford's brief was insufficient to raise a constitutional question on the punitive damages award. (Bd. of Dirs. ofRotary Int'l v. Rotary Club (1987) 481 U.S. 537, 550, fn. 9 ["casual reference" in appellate brief in unrelated argument "is insufficient to inform a state court that it has been presented with a claim" subject to Supreme Court jurisdiction]; Adams v. Robertson (1997) 520 U.S. 83, 88-89 & fn. 3 [reference to different related argument in appellate brief did not raise federal question presented to Supreme Court].)

Although it understood then that juries could not award punitive damages to punish defendants for harm to third parties, nowhere in the first appeal did Ford assert the jury should have been instructed on third party harm or that plaintiffs' counsel's arguments during the punitive damages phase of the trial was improper. Ford has thus forfeited the right to raise these issues upon remand.

Story Continue As Part VI ..

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^[1] Ford also brought a motion in limine before trial seeking to bar "evidence or argument concerning Ford's out-of-state sales, profits or conduct."

^[2] Parties often refer to this as a "waiver." However, that term is incorrect. "[T]he terms 'waiver' and 'forfeiture' long have been used interchangeably. As the United States Supreme Court has explained, however, '[w]aiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the "intentional relinquishment or abandonment of a known right." ' " (People v. Simon (2001) 25 Cal.4th 1082, 1097, fn. 9, quoting United States v. Olano (1993) 507 U.S. 725, 733.)