Defense Counsel Journal - International Association of Defense ...

Predictability in Punitive Damages: ConsideringThe Use of Punitive Damage MultipliersBy Sarah G. Cronan andJ. Brittany CrossDEBATE ABOUT the various issuesarising from the award of punitivedamages, particularly in the context ofmass tort and complex litigation, hasraged for decades in courtrooms,classrooms, and the media. Faced with aclass action lawsuit, or a multitude oflawsuits from hundreds to thousands ofplaintiffs seeking compensatory andpunitive damages, courts and counselstruggle to handle the issues surroundingpunitive awards in the most economic andefficient manner that meets constitutionalmuster. For defendants in these lawsuits,the potential of being subjected tomultiple punitive damage awards indifferent amounts—and the economicuncertainty that necessarily follows—presents an especially vexing situation.Defendants in mass tort, multidistrict,and class action litigation oftenface lawsuits from numerous plaintiffs,each of whom is entitled to assert a claimfor and potentially obtain an individualaward of punitive damages for a single,allegedly egregious act. 1 While thesemultiple punitive awards may range fromde minimus to an award that exceedsconstitutional boundaries, in theaggregate, the cost to a defendant can be1For a full discussion on the ability ofmultiple plaintiffs to recover multiple punitivedamage awards from a single company for oneallegedly wrongful act, see JOHN J. KIRCHERAND CHRISTINE M. WISEMAN, PUNITIVEDAMAGES: LAW AND PRACTICE § 5.26 (2nd ed.2000).Sarah Grider Cronanis a Member at Stites& Harbison, PLLC.Drawing on hertwenty-plus years’experience, Sarahoffers creative andstrategic approaches to complexproblems confronting her clients.Sarah’s practice focuses on the defense ofproduct liability, toxic tort, insurancecoverage, bad faith, environmental, andcommercial disputes in state and federalcourts nationwide. She is knowledgeableabout multi-district litigation and themanagement of mass and class actions.Brittany Cross is anAssociate in Stites &Harbison's Louisvilleoffice where she is amember of the Tortsand Insurancepractice servicegroup. The authors also wish toacknowledge the contributions of HollyN. Lankster in relation to this article.catastrophic, ultimately bankrupting adefendant and leaving future plaintiffswithout recourse for their actual damages.One solution to this problem may bethe punitive damage multiplier. Ratherthan awarding a single punitive damageaward in each case, under the multiplierapproach, a jury sets a mathematicalrelationship between punitive andcompensatory damages by establishing adollar-for-dollar ratio after hearingevidence of the reprehensibility of thedefendant’s conduct, including