Byron Stier has posted to SSRN Judicial Review of Individual Punitive Damage Awards in Light of Aggregate Punitive Damages. The abstract provides:
Over more than three decades of reviewing punitive damages awards for due process, the United States Supreme Court has increasingly clarified that punitive damages awards are personal: while juries may consider harm to others for purposes of assessing the reprehensibility of a defendant’s actions, each plaintiff must only be awarded that plaintiff’s share of the total punitive damages for a defendant’s actions, because other plaintiffs may sue separately for the shares of punitive damages based on their own alleged harm. Otherwise, a defendant would face the risk of unconstitutional multiple punishments for the same conduct. As Justice Ginsburg observed in her dissenting opinion in Philip Morris USA v. Williams, however, a jury instruction permitting juries to consider harm to others for purposes of assessing defendant reprehensibility, but not for awarding the shares of punitive damages owed to others, poses challenges for “a judge seeking to enlighten rather than confuse.” Indeed, since Williams, continuing high punitive damages verdicts in mass torts raise concerns that punitive damages verdicts may, in fact, still be unconstitutionally awarding to a plaintiff the shares of the aggregate punitive damages that might be sought by others based on their own alleged harm.
Cognizant of the risk of jury confusion about how to consider harm to others in a punitive damages award to a plaintiff, this article addresses the multiple punishment problem by turning not to juries but to judges. This article proposes that when a jury awards punitive damages to a plaintiff, and other claimants also seek punitive damages based on related defendant conduct, the judge should consider whether a high punitive damages verdict is the result of an unconstitutional award of damages for harm to others. Apart from reviewing the trial record, jury instructions, and the ratio of punitive to compensatory damages for indications that a jury awarded punitive damages for harm to others, this article suggests that a judge also must determine whether the jury’s punitive damages verdict to plaintiff, if extrapolated to other possible claimants against defendant for related conduct, would in the aggregate impose such a grossly excessive amount of punitive damages as to warrant a judicial inference that the award in the original case is likely unconstitutionally awarding to the plaintiff the shares of punitive damages that may be sought by others for their own harm. If so, the judge would then reduce the award to a constitutionally permissible amount via remittitur, or the judge could completely overturn the punitive damage award as tainted by unconstitutionally awarding damages for harm to others and offer a new trial on that issue. The judge’s inquiry into aggregate punitive damages might be aided not only by counsel but also by a special master, if one is appointed, for example, in a federal multidistrict litigation. Judicial review of individual punitive damages awards based on aggregate punitive damages might be implemented by courts under due process, and also by state legislation. Whether initiated by courts or legislatures, judicial review of individual punitive damages awards by consideration of aggregate punitive damages would further assist and refine the United States Supreme Court’s longstanding efforts to ensure that punitive damages awards remain within the bounds of due process.