Defense Counsel Journal - International Association of Defense ...

Page 462 DEFENSE COUNSEL JOURNAL–October 2012damage multipliers, although onlytangentially. In Loudermilk Services, Inc.v. Marathon Petroleum Company LLC, 59the Southern District of West Virginiareviewed the proposed trial plans of acomprehensive claim with 654 plaintiffs.In discussing the use of a punitivedamage multiplier, the court stated thefollowing:Using the multiplier, a jury couldmake a determination ofreprehensibility on a class-widebasis and decide on a numberwhich reflects this degree ofreprehensibility. That numberwould then be applied later toindividual plaintiffs, once anindividual class member’s claimis adjudicated and he is found tohave suffered harm from theconduct upon which themultiplier is based. 60The court held that because themultiplier was a direct ratio betweenpunitive and compensatory damages, it“ensure[d] a consistent and logic[al]relationship between punitive damagesand actual harm.” 61 While the courtaccepted and embraced the punitivedamage multiplier, it did prohibit its useto punish a defendant directly on harmsthat it allegedly inflicted on nonparties. 6259 No: 3-04-0966, 2008 U.S. Dist. LEXIS67866 (S.D.W.Va. Sept. 5, 2008).60 Id. at *13.61 Id. at *14.62 Id. at *14 (citing Philip Morris, 549 U.S.346 (2007)).C. MarylandMaryland’s high court considered theviability of using a punitive damagemultiplier in class action litigation thatinvolved claims against several tobaccomanufacturers in Phillip Morris, Inc. v.Angeletti. 63 Defendants successfullypetitioned the Maryland Court of Appealsto vacate the circuit court’s certificationof two classes, asserting that the circuitcourt grossly abused its discretion incertifying classes that did not meet therequirements for a class action suit. 64 Thedefendants also argued that the circuitcourt violated their state and federalconstitutional rights by splittinginterrelated issues of liability andcausation, and impermissibly separatingpunitive damages from liabilitydeterminations. 65 Class actionrepresentatives rebutted with threearguments: (1) bifurcation of commonliability from damages or causation wasnot constitutionally infirm; (2) the circuitcourt properly concluded that a punitivedamage multiplier could be determined asa common issue separate from findings ofliability and actual damages; and (3) thecircuit court was correct in determiningthat a claim for medical monitoring wasappropriate for class certification. 66The court of appeals provided asummary of its previous opinionshighlighting Maryland’s “essentialfeatures underlying an award of punitivedamages.” 67 The court of appeals began63 Philip Morris Inc., v. Angeletti, 752 A.2d200 (Md. 2000).64 Id. at 208.65 Id.66 Id. at 209.67 Id. at 246.