Defense Counsel Journal - International Association of Defense ...

Predictability In Punitive Damages Page 463with the principle that “a jury must findcompensatory damages as a foundationbefore it may award punitive damages.” 68Next, the court noted that even wherepunitive damages may be appropriate, thedecision to award such damages is withinthe discretion of the trier of fact. 69Finally, the court concluded its overviewby stating that it is well settled underMaryland law that punitive damagescannot be decided in a vacuum, andcompensatory or actual damages must befound first in order to support an awardfor punitive damages. 70Recognizing that punitivedamages are meant to be a measure of thedefendant’s culpability, the courtnevertheless rejected the classrepresentatives’ argument that punitivedamages could be determined withoutregard to liability to any particular classmember. 71 The court then reiterated thatthere is “clearly established” law inMaryland prohibiting a punitive damageaward without regard to an actualcompensatory award. 72 Ultimately,although the court acknowledged the useof punitive damage multipliers in otherjurisdictions, it concluded that the use ofa multiplier in this context would notenable the jury to assess appropriatepunitive damages relative to actualdamages and would be contrary toMaryland law. 7368 Id.69 Id. at 246-247.70 Id. at 247.71 Id.72 Id.73 Id. at 246-249.IV. ConclusionUsing a multiplier in determiningpunitive damage awards provides amethod for courts to avoid overdeterrencethrough multiple punitiveawards, increase the predictability andeconomic efficiency of punitive awards,and improve the overall efficiency inmass tort and complex litigation cases.Despite these benefits, opponents arguethat the multiplier approach deprivesdefendants of an opportunity to presentall of their defenses, as it does not allowfor individual determinations of punitivedamages for individual plaintiffs. Manyof the arguments against the use of apunitive damage multiplier arise in casesin which plaintiffs are seeking adetermination as to punitive damages foran entire class before trying issues ofcausation and compensatory damages.This negative view of multipliers is oftenlinked to bifurcated trial plans that areobjectionable on other grounds.Courts and scholars that haveaddressed the advantages anddisadvantages of the punitive damagemultiplier have done so primarily withinthe class action context. The question yetto be addressed is whether a punitivedamage multiplier has a place in theworld of complex litigation beyond classactions. Where mass tort actions are notcertified as a class, they are oftenconsolidated for purposes of discoveryand trial. A punitive damage multipliermay be useful in this context, particularlywhere multiple parties’ actions areconsolidated for trial and representativeplaintiffs’ claims are presented to a juryto allow for a punitive damagedetermination. Regardless, the punitive