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MADELEINE BRAND, host:

This is DAY TO DAY. I'm Madeleine Brand.

ALEX CHADWICK, host:

I'm Alex Chadwick. Coming up: If you happen to have a giant pumpkin and a little time on your hands, you too may be able to build a boat.

BRAND: But first, this morning the Supreme Court heard arguments over just how much money a tobacco company should have to pay for a smoker's death. Nine years after long time smoker Jesse Williams died of inoperable lung cancer, the justices are considering whether a jury award of nearly $80 million is too much. Dahlia Lithwick is legal analyst for the online magazine Slate. She attended the arguments this morning and she joins us now.

Dahlia, this is considered one of the biggest cases of the term this year, why is that?

Ms. DAHLIA LITHWICK (Legal Analyst): You know, I think, Madeleine, it was supposed to be one of the biggest cases the year; it was certainly supposed to be a big test of the sort of new pro-business John Roberts Court. It's supposed to clarify once and for all the sort of limits that you can place on punitive damages, particularly in cases where you have a tobacco company in this case who just admittedly terrible, heinous, reprehensible. Justice Breyer used the word awful, awful, awful three times in one sentence.

And the question is supposed to be is there a limit to what they pay. I don't know that the court got there today.

BRAND: You don't know that the court got there today in terms of the questions that the Justice's were asking?

Ms. LITHWICK: Yes, the court got very, very focused on a very narrow part of this case, Madeleine, and they didn't seem to be able to get off it. The background of the case here is, as you said, Jesse Williams died of lung cancer in 1997. His widow sued Philip Morris basically saying that there had been 40-year public relations campaign by the company denying the dangers of smoking even though everybody knew that smoking could kill you.

In 1999, an Oregon jury awarded Williams' widow $79.5 million in punitive damages that went up and down through the appeals court. The Supreme Court got it, sent it back to the Oregon Supreme Court, who kept siding with Mrs. Williams, saying look this is reprehensible conduct. So essentially the Supreme Court just had to decide today whether there can be a limit. And they had suggested in a 2003 case called State Farm versus Campbell that these massive, massive punitive damages awards were just excessive. And they had in fact suggested at the time that they should be kept to within what the called single digit ratios of the other damages.

So the question really was, when you have an excessive amount as you have here, does that sort of go against this courts warning in State Farm versus Campbell.

BRAND: So what happened in the Oregon case was that the lower courts went beyond this limit, this ratio limit that you just mentioned to say well the behavior on the part of the tobacco company was so egregious we're going to award - we're going to allow the jury to award even more money.

Ms. LITHWICK: That's exactly right. And today what the lawyers for Philip Morris said was that the jury was denied an instruction that would have limited the award that they granted. And so what we fought about today was basically the languages of this very, very ambiguous jury instruction that Philip Morris had sought and been denied.

So the tobacco company's lawyers on the one side were arguing, look, we wanted this very ambiguous language because the law on this subject is very ambiguous. On the other side you had Mrs. Williams' attorney saying look the instruction was denied because it was ambiguous and it's not our fault the law is ambiguous. So it turned into this really weird sort of hall of mirrors with everybody bickering about this jury instruction and never quite getting to this sort of big constitutional issue of when punitive damages are just too much.

BRAND: Well presumably when the justices write their decision they will address this larger issue, right?

Ms. LITHWICK: Not clear. It seemed that there was an overwhelming consensus today, Madeleine, that the justices just want to send this case back to Oregon. They seemed to be inclined to say, let's send it back to the Oregon Supreme Court and get them to fix it. And if you stop and say to yourself, wait a minute. Even Chief Justice Roberts acknowledged that the law is very unclear because our case law has been unclear. It seems sort of bizarre and ironic that they'd send it back to the Oregon Supreme Court and say fix the unclarity in our case law, but that certainly looks like where it was going today.

BRAND: Legal analyst Dahlia Lithwick with the online magazine Slate. Thank you, Dahlia.

Ms. LITHWICK: My pleasure, Madeleine.

(Soundbite of music)

CHADWICK: Coming up, you're getting ready for tonight with the kids and the costumes and the camera: How to take good pictures of kids, a photo op conversation later on DAY TO DAY.

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