Attorney At Law Magazine Vol 5 Issue 10 - Page 31

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 Western Forensic Services, LLC Forensic Accounting Digital Forensics & Private Investigation Services • Asset Searches • Fraud Examinations • Background Investigations • Special Investigations • Expert Witness 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. PO Box 22284 Phoenix, Arizona 85028 (602) 818-9246 www.WesternForensicServices.com Ron Zahn CPA, P EnCE® .I., Managing Member AZ Private Investigator License #1003555 Vol. 5 No. 10 Attorney at Law Magazine® Greater Phoenix | 31