Punitive Damages after Philip Morris USA v. Williams

Court Review, Vol. 44, p. 134, 2008-2009

Fordham Law Legal Studies Research Paper No. 1601351

20 Pages Posted: 7 May 2010

Date Written: May 6, 2010


Philip Morris USA v. Williams has struck some commentators as hypertechnical, but it is in fact among the Court’s most significant pronouncements on the topic of punitive damages. At its center is the “Nonparty Harm Rule”: it is a violation of due process for a court to permit a jury in a tort case to use punitive damages to punish a defendant for harming persons who are not parties in the litigation. The holding is difficult to understand because the Court simultaneously stated that it is permissible to augment a punitive damages award in light of a defendant’s heightened reprehensibility and it is permissible to infer heightened reprehensibility from the numerosity of the persons injured by defendant’s conduct, including nonparties. It is surprising because it appears to sound more in process, while prior cases have focused on the magnitude of the award. For both of these reasons, it is challenging to lower courts, who must craft jury instructions implementing Williams’ mandate. This article tackles all three problems. At a theoretical level, it utilizes civil recourse theory and my prior theory of punitive damages to explain and justify the nonparty harm rule along with the possibility of augmenting punitives for reprehensibility. At an interpretive level, it conjectures that Chief Justice Roberts and Justice Alito wish to retain the Court’s punitive damages doctrine, but are more attracted to versions of constitutional punitive damages law that are visibly distinct from substantive due process. And at a practical level, it reviews several jurisdictions proposed jury instructions, post-Williams, and identifies those approaches to jury instruction that are most defensible.

Keywords: Torts, Punitive Damages, Due Process, Procedural Due Process, Civil Recourse, Reprehensibility

Suggested Citation

Zipursky, Benjamin C., Punitive Damages after Philip Morris USA v. Williams (May 6, 2010). Court Review, Vol. 44, p. 134, 2008-2009, Fordham Law Legal Studies Research Paper No. 1601351, Available at SSRN: https://ssrn.com/abstract=1601351

Benjamin C. Zipursky (Contact Author)

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

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