Anchorage Daily News

For Steve Copeland, the day was exhausting, exciting and a little disappointing.

The Cordova gillnetter stayed awake all night, schooled up with several dozen other Cordovans in the cold wind outside the U.S. Supreme Court. When morning came, those who arrived at 1 a.m. made it inside for the oral arguments in the Exxon Valdez case, while hundreds of others who arrived later were turned away.

Copeland felt another chill after the arguments got under way Wednesday. The chief justice was raising questions about the jury instructions in the 1994 punitive damages trial. The thought of going back to square one in the oil spill case was too much to bear.

"I almost have to consider it cruel and unusual punishment to extend the case," he said later. "I'm sure it would be devastating news in Cordova."

In the end, a lengthy retrial or further round of appeals seemed unlikely -- though nothing is certain until the Supreme Court rules in the coming months.

What concerned Copeland was that he heard talk about setting a new standard for punitive damages, which could further reduce the current $2.5 billion Exxon judgment for him and the 32,676 other plaintiffs.

It might have gone much worse for the fishermen. Exxon's big arguments against punitive damages in oil spill cases fell flat. Justices wasted little time with maritime-law precedents from two centuries ago, or the notion that regulations in the Clean Water Act somehow made punitive damages unnecessary.

Instead, the Exxon Valdez case returned to its familiar 14-year-old theme: how big a judgment is too big?

DEGREE OF RESPONSIBILITY

The Alaska plaintiffs are facing a high court that has made a concerted effort in recent years to knock back high punitive damage awards. The effort has cut across the court's conservative-liberal lines, University of Richmond law professor Carl Tobias said Wednesday, with justices Stephen Breyer and Anthony Kennedy among those who have expressed concern about high awards.

One factor working in the plaintiffs' favor is that Justice Samuel Alito recused himself because he owns more than a thousand shares of Exxon Mobil stock. That makes it harder to assemble five votes to overturn the $2.5 billion verdict upheld by the lower courts. A 4-4 split would favor the plaintiffs.

At Wednesday's oral argument, however, some justices seemed to feel the need to establish a standard for punitive damages in maritime cases, an area where the law has been fogbound since the so-called Amiable Nancy case of 1818.

Justices were swift to dismiss as antiquated the argument by Exxon's lawyer, former acting solicitor general Walter Dellinger, that the company was not responsible for actions taken by its tanker captain, Joseph Hazelwood. But the degree of responsibility remained an issue, brought up again by Chief Justice John Roberts, who more than once represented the state of Alaska in front of the Supreme Court.

Roberts challenged the fishermen's lawyer, Stanford professor Jeffrey Fisher, about what more Exxon could have done with its policy against alcohol. Enforce the policy, Fisher said.

SEEKING THE RIGHT RATIO

Dellinger drew less argument from the court when he retreated to talking about limits to liability, insisting punishment "can't be a black hole into which all the limits on punitive damages disappear."

Several centrist justices expressed interest in coming up with a standard of their own for limiting judgments in maritime cases like the Exxon Valdez. Justices Kennedy and David Souter mused about a 2-to-1 ratio between punitive damages and actual damages.

The courts have said actual damages were around $500 million, including $287 million awarded to fishermen as compensation by the 1994 jury trial. A 2-to-1 ratio would reduce the pending verdict from $2.5 billion to $1 billion.

Press accounts from around the country Wednesday generally concluded that the fishermen's Fisher got the better of the argument, as far as that goes. And few stories could resist noting that Exxon Mobil last year made $2.5 billion in profits every three weeks.

Brian O'Neill, a lawyer for commercial fishermen, said he remained optimistic after the long-awaited hearing that the full $2.5 billion award -- already reduced on appeal from the original $5 billion -- would be approved.

"A 5-to-1 ratio is not a runaway verdict," he said. He called the Exxon case a serious matter, unlike most earlier punitive judgments that caught the high court's attention, which he described as "minor business torts, like a dented BMW."

A FINAL RULING

O'Neill said he doubted the court would send the case back for more work with a new ratio in mind -- an opinion seconded by several other legal experts Wednesday.

"They have to be attentive to the urgency created by the indeterminacy, and by the shame of it continuing," said University of Washington law professor Bill Rodgers.

In his closing, Dellinger argued that a large punitive award was not necessary as a deterrent -- Exxon was already deterred by the $3.4 billion spent on cleanup, penalties and compensation.

Fisher revived a line from the closing arguments back in 1994 for his conclusion, telling the court that Exxon didn't act like it had been deterred. All it did was fire Hazelwood and reassign the tanker's third mate, he said.

"Everybody else further up the chain of command who allowed this to happen received bonuses and raises," he said.

Copeland, the Cordova fisherman, said he was pleased by Fisher's performance, though he came away feeling a little more pessimistic than he did before.

"We need to get this over with," he said.

Find Tom Kizzia online at adn.com/contact/tkizzia or call him at 1-907-235-4244. Erika Bolstad contributed to this story.

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