not be sufficient to sustain a punitive damages award; and the
absence of all of them renders any award suspect.” Campbell,
538 U.S. at 419. As importantly, one must be vigilant to exclude
other bad conduct by the tortfeasor from the analysis. Only the
conduct upon which liability was premised is relevant to the
reprehensibility analysis. Id. at 422-23.
4. The Reasonableness/Proportionality Guidepost ... The
U.S. Supreme Court, in its quest for some method by which
to ensure consistency of punitive awards, views “leav[ing]
the effects of inflation to the jury or judge who assesses the
value of actual loss, by pegging punitive to compensatory
damages using a ratio or maximum multiple,” to be a more
promising alternative than hard dollar caps. Exxon, 554 U.S.
at 506. While the court has repeatedly declined to impose
a “bright-line ratio” that a punitive award cannot exceed, it
has recognized that “few awards exceeding a single digit ratio
between punitive and compensatory damages, to a significant
degree, will satisfy due process.” Campbell, 538 U.S. at 425.
It is important to keep in mind that while the precedent
provides trial courts with wiggle room when determining
the appropriate ratio of punitive-to-compensatory damages,
the fundamental rule is that “courts must ensure the measure
of punishment is both reasonable and proportionate to the
amount of harm to the plaintiff and to the general damages
recovered.” Id. For this reason, it is impermissible, for example,
for the trial court or jury to factor into the size of a punitive
damages award any harm the defendant has caused to nonparties, i.e., strangers to the litigation, no matter how certain
it might seem that such harm occurred. Philip Morris USA v.
Williams, 549 U.S. 346, 353-54(2007). Finally, it is a consistent
theme in the U.S. Supreme Court’s jurisprudence that a
punitive damages award should be no greater than necessary
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to achieve the goals of deterrence and retribution.
5. The Commensurate Penalties Guidepost.
guidepost is the least developed in the case law.
The third
What is
important to understand is that the focus of this guidepost is on
commensurate civil penalties, not criminal penalties. Relatedly,
as the U.S. Supreme Court has instructed, “[p]unitive damages
are not a substitute for the criminal process, and the remote
possibility of a criminal sanction does not automatically sustain
a punitive damages award.” Campbell, 538 U.S. at 428.
In sum, although the foregoing overview is no substitute
for thorough research, it provides a reliable framework for the
lawyer or judge as he or she embarks on a constitutional analysis
of punitive damages awards in federal court.
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Ron Zahn CPA, P EnCE®
.I.,
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Vol. 5 No. 10 Attorney at Law Magazine® Greater Phoenix | 31