Reining in Punitive Damages 'Run Wild': Proposals for Reform by Courts and Legislatures

Brooklyn Law Review, Vol. 65, P. 1003, 2000

Posted: 7 Nov 2000

See all articles by Victor E. Schwartz

Victor E. Schwartz

Crowell & Moring LLP

Mark A. Behrens

Crowell & Moring LLP

Joseph P. Mastrosimone

Washburn University - School of Law

Abstract

The United States Supreme Court has expressed serious concern in recent years that punitive damages awards in this country have "run wild," jeopardizing fundamental constitutional rights. The Court has provided some general controls, holding that the Due Process Clause of the Fourteenth Amendment imposes both substantive limits on the size of punitive damages awards and procedural limits on when and how punitive damages may be awarded. Yet, larger and larger punitive damages verdicts are being rendered based on weak burdens of proof, irrelevant and even prejudicial evidence, and often multiple times against the same defendant for the same activity. The civil justice system should not be a "litigation lottery" characterized by excessiveness and arbitrariness. Punitive damages reform is needed to restore balance, fairness, and predictability to the law. Specifically, the authors recommend: (1) establishing a liability "trigger" that reflects the intentional tort origins and quasi-criminal nature of punitive damages awards -- "clear and convincing evidence" of "actual malice"; (2) requiring proportionality in punitive damages so that the punishment fits the offense; (3) permitting a defendant to request "bifurcation" of a punitive damages trial, so that the proceedings on punitive damages would be separate from and subsequent to the proceedings on compensatory damages before the same jury; (4) precluding plaintiffs from introducing prejudicial net worth evidence; (5) precluding evidence of a defendant's out-of-state conduct to award and calculate punitive damages; (6) encouraging the development and marketing of lifesaving and life-enhancing pharmaceuticals, vaccines, and medical devices by creating a defense to punitive damages based on compliance with FDA pre-market approval standards, except in cases where the approval was obtained through fraud or bribery; and (7) federal legislation to address the special problem of multiple punitive damages awards; this would protect against unfair overkill, guard against possible due process violations, and help preserve the ability of future claimants to recover basic out-of-pocket expenses and damages for their pain and suffering.

Suggested Citation

Schwartz, Victor E. and Behrens, Mark A. and Mastrosimone, Joseph P., Reining in Punitive Damages 'Run Wild': Proposals for Reform by Courts and Legislatures. Brooklyn Law Review, Vol. 65, P. 1003, 2000, Available at SSRN: https://ssrn.com/abstract=243776

Victor E. Schwartz

Crowell & Moring LLP ( email )

1001 Pennsylvania Avenue, N.W.
Washington, DC 20004-2595
United States
(202) 624-2540 (Phone)
(202) 628-5116 (Fax)

Mark A. Behrens (Contact Author)

Crowell & Moring LLP ( email )

1001 Pennsylvania Avenue, N.W.
Washington, DC 20004-2595
United States
202-624-2675 (Phone)
202-628-5116 (Fax)

Joseph P. Mastrosimone

Washburn University - School of Law ( email )

1700 College Avenue
Topeka, KS 66621
United States

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