Tuesday, February 20, 2007

Send Them a Message

Now we've read it, and we're applauding. The Supreme Court spoke loud and clear today in Williams v. Philip Morris USA, No. 05-1256 (U.S. Feb. 20, 2007). It ruled that for a jury “to base that award [of punitive damages] in part upon his desire to punish the defendant for harming persons who are not before the court. . .would amount to a taking of property without due process.” Op. at 1. That’s a bright line rule – the first in the constitutionalization of punitive damages. The rationale (for once) is crisp and clean:


[T]he Constitution’s Due Process Clause forbids a state to use a punitive
damages award to punish a defendant for injury that it inflicts upon nonparties or those whom they directly represent, i.e., injury that it inflicts upon those
who are, essentially, strangers to the litigation.

Op. at 5. Thus, “[a] defendant must have an “opportunity to present every available defense.” Id. That opportunity does not exist where the defendant is being punished for injuring a nonparty. Id. at 5-6.

The broad questions that injury to persons not before the court present – How many victims? How badly injured? Under what circumstances? – all are likely to produce “standardless” awards violative of due process. Id. at 6. While the court is discussing an individual award – the implications of Williams for the already sputtering proposition that punitive damages can be decided in class-wide, representative litigation are obvious. The nails are on the coffin.

The Court found “no authority supporting the use of punitive damages awards for the purpose of punishing a defendant for harming others.” Id. at 6. The concept of “potential harm,” the Court clarified, means only harm potentially caused the plaintiff. Id. (emphasis original). While harm to others is relevant to reprehensibility, that fact does not permit counsel to argue or a court to charge that a jury may award punitive damages in part to rectify harm to others. “A jury may go no further. . .and use a punitive damages verdict to punish a defendant directly on account of harms it is alleged to have visited on nonparties.” Id.

It’s about time that plaintiffs were sent a message that they can’t use punitive damages as a weapon to bring before a single jury all the harm that a product might have done to everybody in the world. That’s not what civil litigation is for. Tort suits have always been a poor substitute – and now an unconstitutional one – for equally applied administrative action.

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