The Uncert-Worthiness of the Court's Unmaking of Punitive Damages

Abstract

This Article is a new audit of the Supreme Court's project to unmake punitive damages and an attempt to peer into the uncertain future of tort remedies in general. The Supreme Court in Williams v. Philip Morris found that it was improper for juries 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." The Court's holding that it would be unfair to allow courts to award punitive damages for harm done to "strangers to the litigation" will make it more difficult for plaintiffs' counsel to introduce pattern and practice evidence against corporate defendants.

While Williams reaffirms the excessiveness review articulated in earlier cases, it also sketches out new rules for trying and reviewing awards that influence trial strategy in any case against a corporation. Part One of this article presents a new look at how the Supreme Court unmade punitive damages. Part Two makes predictions on the future of constitutionalizing tort remedies in the post-Williams v. Philip Morris period. My argument is that beyond Williams the Court's next focus will be on the tort reformers' campaign to strike the wealth of the defendant from the punitive damages equation and solve the problems caused by multiple independent punitive damages awarded to a defendant for a single act. Finally, I examine the real prospect that the Court will shift its attention to non-economic damages. A more extensive federal takeover of the tort system will occur if the Court extends constitutional principles, first articulated in punitive damages rulings, to the remedy of non-economic damages as tort reformers argue that there is no principled reason to distinguish between excessive punitive and non-economic damages. I predict, or fear, that the U.S. Supreme Court will embark on a wholesale makeover of non-economic damages by finding multi-million dollar pain and suffering awards to be cert-worthy. The most critical step is to convince the Court at the petition stage whether a given issue is "cert-worthy." Thus, the petition stage is the most critical as this is where the Court decides whether a given issue is "cert-worthy." The Court will then be urged to take aim at the due process constraints of jury's awarding "standardless" non-economic damages or what is often referred to as "pain and suffering." Non-economic damages are an attractive target for judicial tort reform because, like punitive damages, these types of awards have risen in recent years. The Court could unmake non-economic damages using the very constitutional standards applied to punitive damages awards over the past decade and a half.