Of footnotes, oil spills and punitive damages

A recent footnote in the Supreme Court’s decision in Exxon v. Baker, the ruling last term limiting the punitive damages Exxon owed victims of the 1989 Exxon Valdez oil spill in Alaska, has sparked serious questions about the use of empirical evidence in  punitive damage cases, reports The New York Times.

In his decision last June, Justice David H. Souter declined to rely on a study by University of California, Santa Barbara, Sociology professor William R. Freudenburg because it received funding during its early stages from the Exxon Mobil Corporation.   As the Justice wrote in the opinion’s now famous Footnote 17, “Because this research was funded in part by Exxon, we decline to rely on it.”

Exxon commissioned Freudenburg to author a report that would assess the effects of punitive damages.  Exxon ceased funding for the study early in the course of Freudenburg’s research when his initial findings did not sufficiently bolster the company’s case.

Since future Justice Louis Brandeis’s 1908 brief in Muller v. Oregon, the Supreme Court has regularly cited scientific studies to support its findings.  Justice Souter’s footnote may indicate that the Court is growing more reluctant to rely on such empirical studies, or at least those that are financed by parties to the case.