Defense Counsel Journal - International Association of Defense ...

Page 458 DEFENSE COUNSEL JOURNAL–October 2012that compensatory and punitive damagesbear a reasonable relationship to oneanother as required by the U.S. SupremeCourt in State Farm v. Campbell. 24 Onecommentator has suggested that “[h]avinga jury set a single, abstract punitivedamage multiplier deprives the jury of theopportunity to consider the facts andcircumstances of each individualplaintiff’s case and to determine whatamount of punitive damages, if any isappropriate for each plaintiff.” 25A small multiplier is less likely to beattacked on the grounds of excessivenessor that it lacks a reasonable relationship toactual damages awarded, 26 and thisconcern may also be addressed through acreative trial plan. If all claims areconsolidated for trial, and the punitivedamage multiplier is based on arepresentative group of plaintiffs’evidence of compensatory damages, amultiplier may be assessed for itsreasonableness based on therepresentative group’s damages following24 State Farm v. Campbell, 538 U.S. 408, 426(2003).25 Sheila N. Birnbaum, Punitive Damages andDue Process: How Much is Too Much,Benjamin N. Cardozo Lecture, THE RECORD,61 No. 2 165, 180 (2006). See also Laura J.Hines, Engle v. R.J. Reynolds Tobacco Co.:Lessons in State Class Actions, PunitiveDamages, and Jury Decision-MakingObstacles to Determining Punitive Damagesin Class Actions, 36 WAKE FOREST L. REV.889, 940 (in the context of a mass tort case,where varying facts and state laws may beinvolved, the use of a punitive damagemultiplier may not satisfy the reasonablerelationship test, as a multiplier may not beable to measure the true scope of harm toabsent class members).26 Hines, supra note 25, at 939-940.that initial trial. Because the multiplier istied to evidence supporting compensatorydamages of a representative group ofplaintiffs, this may address concernsabout the reasonable relationship betweenthe punitive and compensatory awards.Though there is very littlescholarship on the relative merits of amultiplier approach in comparison to alump sum award, one scholar has arguedthat the multiplier approach provides amethod of assessing punitive damagesthat reflects both the reprehensibility of adefendant’s conduct and the varyingdegrees of harm that individual plaintiffssuffer. 27 By applying a multiplier toevery dollar of compensatory damages,“individuals awarded high amounts ofcompensatory damages will receiveproportionately higher awards of punitivedamages.” 28 The author qualifies thisbenefit by stating that proportionality canalso be achieved utilizing a lump summethod that distributes punitive damagesin proportion to the plaintiffs’ harm,rather than on a per capita basis. 29 Also,at least one court has rejected the use of amultiplier despite its benefit ofproportionality, stating that suchtreatment does not “satisfy the state’sinterest in making sure that punitivedamage awards ‘are appropriate inspecific relation to differing amounts of –and reasons for – actual damages.’” 3027 Id. at 925.28 Id.; see also Arthur R. Miller and PriceAinsworth, Resolving the Asbestos Personal-Injury Litigation Crisis, 10 REV. LITIG. 419,443-444 (1991) (advocating for a multiplierapproach).29 Id.30 Id. at 931 (citing Phillip Morris, Inc. v.Angeletti, 752 A.2d 200, 249 (Md. 2000)).