Amicus Curiae Brief — Philip Morris USA v. Williams

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Jn the Supreme Court of the United States

PHILIP MorRIs USA,

Petitioner,

MAYOLA WILLIAMS,

Respondent.

On Writ of Certiorari to the

Supreme Court of Oregon

BRIEF OF THE AMERICAN TORT REFORM

ASSOCIATION AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

SHERMAN JOYCE Roy T. ENGLERT, JR.*

American Tort ALAN E. UNTEREINER

- Reform Association DANIEL R. WALFISH

1850 M Street, N.W. Robbins, Russell, Englert,

Suite 1095 Orseck & Untereiner LLP

Washington, D.C. 20036 1801 K Street, N.W.

(202) 682-1163 Suite 411

Washington, D.C. 20006

(202) 775-4500

* Counsel of Record

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TABLE OF CONTENTS

Page

SAREE GE GETEIOUREED occ cvccnscsvcsencccesces ii

INTEREST OF THE AMICUS CURIAE ............+4: 1

SUMMARY OF ARGUMENT ................e0000: 1

BR CP ey Tee Tent rT eee Te 3

I. Historical Practice Provides No Support For

Punishing A Defendant For The Effects Of Its

Conduct On Parties Not Before The Court ...... 5

A. Punitive Damages Historically Were

Understood As Vindication For The

Particular Plaintiff Before The Court ....... 5

B. Historically, A Plaintiff Was Entitled To

Recover Exemplary Damages To Vindicate

The Wrong Done Only To Her, Even When

The Defendant’s Actions Caused Harm To

Il. There Is No Historical Basis For Upholding

Punitive Awards That Are Many Multiples Of

The Compensatory Award When The

Compensatory Award Itself Is Substantial ...-.. 21

EE MC CR GW eee bpa es di ndesbsndeeebenee 30

‘i

TABLE OF AUTHORITIES

Page(s)

Cases:

Ackerson v. Erie Ry.,

Be es ede BFE oo kkk ddwccccusaddeceren 22

Alcorn v. Mitchell,

EE Selena mh beececdnedeaeanen kw as 28

Anding v. Perkins,

og, SE TTT eee Oe Te or ee 22

Andrea v. Thatcher,

ee ee EE 9's bb hc 4K64 04s dwdekuseheever 23

Androscoggin R.R. v. Richards, :

ff. Pere re ree iad wen 22

Baltimore & O. S.-W. Railway Co. v. Keck,

SS CS Cea css cd oneweccnmdbateos 20

Beaudrot v. S. Ry.,

Co errr rr rte. 27

~ Beveridge v. Rawson,

gO AES SPP er my poe te 22

Black v. Carrollton R.R.,

re I ID 86 b. és Ceavseas eeeks 19, 20

BMW of N. Am., Inc. v. Gore,

2 - & |. Pr Peer re ye 23, 26, 29

Bradley v. Andrews,

EE cen bbbsecss Shetoanekaee nese 20

Brownell v. McEwen,

5 Denio 367 (N.Y. Sup. Ct. 1848) ................ 14

ili

TABLE OF AUTHORITIES—Continued

Bube v. Birmingham Ry., Light & Power Co.,

Be ED ow bop bhsccecrivenecsrs

Burnham v. Superior Court of California,

ARTI TET eee ee

Burt v. Advertiser Newspaper Co.,

PEE CN DEED Wes be6 bse 6 ceded a o's

Cathey v. St. Louis & S.F.R. Co.,

130 S.W. 130 (Mo. Ct. App. 1910) ...........

Chiles v. Drake, ~

$9 Ky. (2 Met.) 146 (1859) ..........0cceee.

City of Columbus v. Anglin,

SP es SEO BPN so vv tb abedncccudccces

Cleaveland v. Grand Trunk Ry. Co. of Canada,

RN TERA Ease

Cooper Indus., Inc. vy. Leatherman Tool Group, Inc.,

Se EE. (sono 00.0 006d 004 Kase’

Coryell v. Colbaugh,

Pe Te BOD 8 06 Kbbe db oc evsieaaees

Cram v. Hadley,

EE G4 ba 6 hed aces deh bade ee

Crowley v. Global Realty, Inc.,

474 A.2d 1056 (N.H. 1984) .................

Dailey v. N. Coast Life Ins. Co.,

FUP P.Ae Fee CWO, TOPE) oc ccc cccccscccces

Page(s)

TABLE OF AUTHORITIES—Continued

Page(s)

Day v. Woodworth,

54 U.S. (13 How.) 363 (1851) ...............225.. 3

Detroit Daily Post Co. v. McArthur,

SR COT CUED Kc scrsdancsinciveukedasvement 8

Dickinson v. Maynard,

20 La. Ann. 66 (La. 1868) ....... ccc ccccsccccece 22

Distinctive Printing and Packaging Co. v. Cox,

443 N.W.2d 566 (Neb. 1989)... 0. ccc ccc ccccccecs 8

Earl v. Tupper, .

GB VR, BIO CATED cv vcvccccvntecdssyicisretistk ie

Fay v. Parker,

53 N.H. 342 (1874) .......... idgdsbacvenmaseres 8

Flannery v. Baltimore & Ohio R.R.,

15 D.C. (4 Mackey) 111 (1885)................... 26

Flesner v. Technical Commc'ns Corp.,

575 N.E.2d 1007 (Mass. 1991) ...............054. 8

Foster v. Schofield,

SPUR. BP PNe Rs MED pc cctcsucececitonvenes 14

Franz v. Hilterbrand,

GR Bee GD cccnvesasdsdecsbsndeawenebar 22

French v. Orange County Inv. Corp.,

13 P.2d 1046 (Cal. Dist. Ct. App. 1932) ........... 21

Frink & Co. v. Coe,

4 Greene 555 (Iowa 1854) ...................24.. 19

TABLE OF AUTHORITIES—Continued

- Page(s)

Garland v. Wholebau,

E cccccsnsucceepenecécececens 23

Garland v. Wholeham,

ERS DSR re oe ee 23

Genay v. Norris,

fi Rf ly |) FPP PrerTiTerrirreee 7

Goddard v. Grand Trunk Ry. of Canada,

57 Me. Pc cidseredkedneeé ode caceces 9, 25

Grant v. McDonogh,

rn eo. veda ses seeedbeteecs 23

Hall Oil Co. v. Barquin,

EER sc wo dncbe scanccsesieeuceces 26

Hendrickson v. Kingsbury,

21 Iowa 379, 1866 WL 321 (1866) ............... ll

Holyoke v. Grand Trunk Ry.,

IE niccnctbobsrccedreceteses 16, 19

Honda Motor Co. v. Oberg,

eee. cheek ebedcaenecbac 4

Hopkins v. Atl. & St. Lawrence R.R.,

ee oe ae ks whiddcetans 19

Huckle v. Money,

2 Wils. 205, 95 Eng. Rep. 768 (K.B. 1763) .... 6, 12, 26

Hunter v. Kansas City Rys. Co.,

248 S.W. 998 (Mo. Ct. App. 1923) ............... 26

TABLE OF AUTHORITIES—Continued

Page(s)

Ill. Cent. R.R. v. Slater,

En bb ih bobeebdecedceceuecedec 7

Int'l & G.N.R. Co. v. Telephone Tel. Co.,

Pe MT PE + 6 bobo oeeds 66ed0e0euene ba 26

Johnson v. Camp,

BF Ere rr eer Tr Orr ert 23

Johnson v. Hannahan,

34 S.C.L. 425 (S.C. Ct. App. L. 1849) ............. 28

Kountz v. Brown,

55 Ky. (16 B. Mon.) 577 (1855) ................. 24

Lynd v. Picket,.

ns eo ee ae 24

Marbury v. Madison,

ee ae ED BT CUED wk acces cnecbésnetces 7

Mathias v. Accor Econ. Lodging, Inc..,

ee Cae CO a IUD do vb cccccceceusds 25, 26

Minneapolis & St. L. Ry. v. Beckwith,

Se Ds n'a 5 ckdGhb SUS omeeeeeennheeo< 3

in ody V. McDonald,

SE 6h donb c6cbedesdsdcewdonadekes 22

Moore v. Bowman,

| TTT rere eee Te 22

Morse v. Auburn & Syracuse R.R.,

10 Barb. 621 (N.Y. Sup. Ct. 1851) ................ 9

vii

TABLE OF AUTHORITIES—Continued

Page(s)

New Orleans, Jackson & Great N. R.R. v. Allbritton,

EE Cc cucncavebsaueendhecesaees 10

New Orleans, Jackson & Great N. R.R. v. Hurst,

RE ED 6 Kcccrpccdvevebesawecece 24, 29

New Orleans, Jackson & Great N. R.R. v. Moore,

eR eer TT rrr re 22

New Orleans, Jackson & Great N. R.R. v. Statham,

TE Fd ob cinnw'0'h de aes bee edweeene 29

Newell v. Whitcher,

Se LEN dc Ca udindin 040d bewéadeeescvabes 24

Pac. Mut. Life Ins. Co. v. Haslip, :

I SN eee deeb eueewes 3,4

Palmer, Cooke & Co. v. Stewart,

8" RRR ROR Et a er ieee 22

Peisner v. Detroit Free Press,

364 N.W.2d 600 (Mich. 1984) .................... 8

Pelton v. General Motors Acceptance Corp.,

Be (Lape ceed peadebenseeesee 28

Pendleton v. Davis,

SER. CE BU Te CAG oo cc ccc cccccccccccces 24

Penn. R.R. v. McCloskey'’s Adm’r,

es ao eks die aaa 19

Phelin v. Kenderdine,

SEES aca ORs 14, 15

Vili

TABLE OF AUTHORITIES—Continued

Pickle v. Page,

233 N.Y.S. 461 (App. Div. 1929) ...

Porter v. Seiler,

23 Pa. 424 (1854) .............26.

Reed v. Davis,

4 Pick. 216 (Mass. 1826) ..........

Rider v. York Haven Water & Power Co..,

95 A. 803 (Pa. 1915) .............

Riewe v. McCormick,

9 N.W. 88 (Neb. 1881)............

Robinson v. Burton,

5 Del. (5 Harr.) 335 (Super. Ct. 1851)

Roginsky v. Richardson-Merrell, Inc.,

378 F.2d 832 (2d Cir. 1967)........

Rookes v. Barnard,

[1964] A.C. 1129 (HLL. 1964) ......

S. Kan. Ry. v. Rice,

16 P. 817 (Kan. 1888) ............

Schad v. Arizona,

501 U.S. 624 (1991) .........-46-.

Seaboard Air Line Ry. v. Seegers,

eee

Seaman v. Dexter,

114A. 75 (Conn. 1921) ...........

TABLE OF AUTHORITIES—Continued

Page(s)

Singleton's Adm'r v. Kennedy, Smith & Co.,

48 Ky. (9 B. Mon.) 222 (1848) ..............06.. 22

Smith v. Wade,

Sh I 6c 60 hoch ree nebend naeeaciawes 3

Spokane Truck & Dray Co. v. Hoefer,

Se UE, SIE 3. 6's.0 cso bts acl 6-0 tguaion 9

St. Louis, LM. & S. Ry. v. Williams,

4 RRs eer Pre ere 27, 28

State Farm Mut. Auto. Ins. Co. v. Campbell,

538 U.S. 408 (2003)... 1.2... eee eee eee 9, 17, 26

Stevenson v. Belknap,

6 Iowa (6 Clarke) 97, 1858 WL 120(1858)......... 14

Taber v. Hutson,

Re dF nS Pee 11

Taylor v. Grand Trunk Ry.,

DED ocducudbebecbneaeecee 19, 25, 29

Tidd v. Skinner,

SPOT Es MUED ck bnceccusraccedese 20, 21

Tifft v. Culver,

REEDS AES ia ea ee ae 24

Toledo, Pac. & W. Ry. v. Arnold,

ND el cle bis pee ok edit beet b 22

Tullidge v. Wade,

3 Wils. 18, 95 Eng. Rep. 909 (K.B. 1769) .......... 13

TABLE OF AUTHORITIES—Continued

Page(s)

TXO Prod'n Corp. v. Alliance Resources Corp.,

Fe Ge SURED bd adcucciosbecccedvuseeseses 23

Varillat v. New Orleans & Carrollton R.R.,

SO RM BU SGM, BEEP ccc ccccciccesecveses 7.

Vicksburg & J.R. Co. v. Patton,

Pe ED bk codenic'a ch hu cédusevestbeba 25

Walker v. Martin,

LTTE 5 6 6 6 dibe-o onic decd dAeedius ehh aed 23

Ward v. Ward, ’

ee me es oe 9

Weed v. Panama R.R.,

DOGG NII 8 foe beGbacdccwenchibe 19

Welch vy. Durand,

SPE, CE | kk oc.acbvse do Ceeeeceoas 10, 23

Whipple v. Walpole, b

Se SD wdc cunho0t ee seaceee ae y

White v. Campbell,

54 Va. (13 Gratt.) 573 (Va. 1856) ..............4.. 15

Wilkes v. Wood, ,

Lofft 1, 98 Eng. Rep. 489 (K.B. 1763) ....... 6, 13, 27

Williamson v. W. Stage Co.,

RE HUE TE 6 hos canosdsdestdcadesswee 25, 26

Woodman v. Nottingham,

EE CE sd ewes edhe noeedaseenel 24, 29

TABLE OF AUTHORITIES—Continued

Page(s)

Wort v. Jenkins,

14 Johns. 352 (N.Y. 1817)... 2.0... 6 eee eee ee 24

Briefs and Oral Arguments

Br. of Legal Historians in Supp. of Resp..,

BMW of N. Am., Inc. v. Gore, No. 94-896

(U.S. May 31, 1995)..... detente eee eees 17, 28, 29

Br. of Resp., BMW of N. Am., Inc. v. Gore,

No. 94-896 (U.S. May 31, 1995) .............. 28, 29

Br. of Resp., Cooper Indus., Inc. vy. Leatherman Tool

Group, Inc., No. 99-2035 (U.S. Jan. 16,2001) ...... 29

Br. of Resp., State Farm Mut. Auto. Ins. Co. v. Campbell,

No. 01-1289 (U.S. Oct. 17,2002) .......... 17, 28, 29

Br. of Resp., 7XO Prod. Corp. v. Alliance Resources

Corp., No. 92-479 (U.S. Mar. 3, 1993) ......... 28, 29

Pacific Mutual Life Insurance Co. v. Haslip, No. 89-1279,

1990 WL 601340 (Oct. 3, 1990) (Oral Argument) .... 3

Other Authorities

Thomas B. Colby, Beyond the Multiple Punishment

Problem: Punitive Damages As Punishment for

Individual, Private Wrongs, 87 MINN. L. REV.

DED ¢ d.dbtcedmnsend bb oC aes bse 04 5, 9-12, 23

Note, Exemplary Damages in the Law of Torts,

70 HARV. L. REV. 517 (1957) «1... eee eee eee 9

xii

TABLE OF AUTHORITIES—Continued

Page(s)

Simon Greenleaf, The Rule of Damages in Actions Ex

SE, Dr ae PE bbc bn eee ohne cs cuss 8

SIMON GREENLEAF, A TREATISE ON THE LAW OF

EVIDENCE § 227 (William Draper Lewis ed., 1899) ... 8

John C. Jeffries, Jr., A Comment on the Constitutionality of

Punitive Damages, 72 VA. L. REV. 139, 140 (1986) ... 5

JOHN J. KIRCHER & CHRISTINE M. WISEMAN, PUNITIVE

DAMAGES: LAW AND PRACTICE (2d ed. 2000) ........ 5

Theron Metcalf, Damages Ex Delicto,

3 AM. JUR. & L. MAG. 270 (1830) ............. 17, 18 -

Clarence Morris, Punitive Damages in Tort Cases,

_ 44HARV.L. REv. 1173 (1931) ............2-206- 25

David G. Owen, Punitive Damages in Products Liabivity

Litigation, 74 MICH. L. REV. 1257 (1976) ........... 6

A. Mitchell Polinsky & Steven Shavell, Punitive

Damages: An Economic Analysis, 111 HARV. L.

Se SE cA tbddeakbedbdcogaasinesseeees 24

Pe, I 0565666 cc bce ceded eaveds 7

LINDA L. SCHLUETER, PUNITIVE DAMAGES

CM UNE 8 op cancdsstn donne (ceneekenenees 6,9

Victor E. Schwartz et al., Reining in Punitive Damages

“Run Wild”: Proposals for Reform by Courts and

Legislatures, 65 BROOK. L. REV. 1003 (1999) ....... 7

xiii

TABLE OF AUTHORITIES—Continued

Page(s)

Anthony J. Sebok, What Did Punitive Damages Do? Why

Misunderstanding the History of Punitive Damages

Matters Today, 78 CHI.-KENT L. REV. 163 (2003) ... 10

Theodore Sedgwick, The Rule of Damages in Actions

Ex Delicto, 5 W.L.J. 193 (1848) ............... 8, 18

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BRIEF OF THE AMERICAN TORT REFORM

ASSOCIATION AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

INTEREST OF THE AMICUS CURIAE'

Founded in 1986, the American Tort Reform Association

(“ATRA”) is a broad-based coalition of more than 300 busi-

nesses, corporations, municipalities, associations, and pro-

fessional firms that have pooled their resources to promote

reform of the civil justice system with the goal of ensuring

fairness, balance, and predictability in civil litigation. ATRA

has filed a number of amicus curiae briefs in cases before this

Court concerning important issues of liability, including the

constitutional restrictions on punitive damages awards.

ATRA’s members have a substantial interest in the develop-

ment of sound legal principles governing the power of juries to

mete out punishment in civil litigation.

SUMMARY OF ARGUMENT

For most of this Nation’s history, the imposition of

punishment without the protections of criminal law has been

regarded as constitutionally suspect. And yet broad-based

constitutional attacks on the practice of awarding punitive

damages in civil cases have always failed, because the remedy

has a clear historical pedigree. Given that that pedigree is the

only thing that has saved punitive damages, courts must look

past the mere label to determine whether a particular approach

to punitive damages has historical antecedents that exempt it

' All parties have consented to the filing of this brief. The parties’

blanket consents have been lodged with the Clerk of the Court. Pur-

suant to Rule 37.6, amicus curiae states that no counsel for a party

has written this brief in whole or in part and that no person or entity,

other than the amicus curiae, its members, or its counsel, has made

a monetary contribution to thedpreparation or submission of this brief.

from the usual prohibitions on the use of civil procedures to

inflict criminal punishments and on the arbitrary deprivation of

property.

There is no historical support for punishing a defendant for

the effect of its conduct on parties not before the court. From its

origins in two English decisions in 1763, through the adoption

of the Bill of Rights in 1791, up to and beyond the ratification

of the Fourteenth Amendment in 1868, the practice of awarding

punitive damages was always understood as a way to vindicate

the particular plaintiff before the court, not to punish the

defendant for harm done to non-parties.

Cases in which the defendant’s action caused harm to

multiple persons confirm this understanding. A survey of every

reasonably accessible pre-1870 American case brought against

a corporation, and dealing with the subject of punitive damages,

reveals not one case in which a court approved a punitive

award that reflected harm to parties not before the court. The

authorities that have been cited to this Court in past cases for

the proposition that such awards were allowed actually stand

for no such thing.

Likewise, there is no historical basis for upholding punitive

awards that are many multiples of the compensatory award

when the compensatory award itself is substantial. In pre-1870

‘ cases of substantial compensatory awards, punitive awards up-

held on appeal were almost never more than one or two times

the amount of compensatory damages. And, again, claims made

to this Court in recent cases about the historical precedents for

high ratios fall apart on examination. Virtually all of the cases

that have been cited to this Court either (1) did not involve

punitive damages at all, as opposed to compensatory damages

for non-economic injury, or (2) concerned situations in which

actual damages were insignificant; or (3) were soon disavowed

by the same court that approved the award.

ARGUMENT

During oral argument in Pacific Mutual Life Insurance Co.

v. Haslip, No. 89-1279 (Oct. 3, 1990), Justice Scalia noted that

the practice of awarding punitive damages has “been going on

since 1791, as I understand it,” and asked how the practice

could be “in violation of due process when it’s been going on

since 1791 and nobody has thought [the practice violated due

process]?”” As we demonstrate in this brief, although the

punitive damages remedy had recently begun to take shape in

1791, nothing remotely like what the court below approved in

this case was going on in 1791, between 1791 and the adoption

of the Fourteenth Amendment, or indeed at any time until the

late 20th century.

Almost from the Founding, punitive damage awards have

been regarded as constitutionally suspect because, among other

difficulties, they inflict punishment without the safeguards of

the criminal law. See, e.g., Smith v. Wade, 461 U.S. 30, 59

(1983) (Rehnquist, J., dissenting). In 1851, this Court all but

apologized for the availability of exemplary damages in civil

cases: “We are aware that the propriety of this doctrine has

been questioned by some writers; but if repeated judicial

decisions for more than a century are to be received as the best

exposition of what the law is, the question will not admit of

argument.” Day v. Woodworth, 54 U.S. (13 How.) 363, 371

(1851). After the ratification of the Fourteenth Amendment, the

Court rested its conclusion that punitive awards do not offend

the Due Process Clause purely on tradition. Minneapolis & St.

L. Ry. v. Beckwith, 129 U.S. 26, 36 (1889) (citing Day).

More recently, this Court has continued to invoke

deference to history as the principal constitutional justification

for the entire practice of awarding punitive damages. See Pac.

Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 15-18 (1991); see also

? 1990 WL 601340, at *21-22.

id. at 40-41 (Kennedy, J., concurring in the judgment); id. at 37

(Scalia, J., concurring in the judgment) (observing that “nothing

but the conclusiveness of history can explain * * * today’s

decision” approving punitive damage procedures and that “‘it

would surely not be considered ‘fair’ (or in accordance with

due process) to follow a similar procedure outside of this his-

torically approved context’).

This emphasis on historical practice is appropriate. As this

Court has recognized, “history and widely shared practice” are

“concrete indicators of what fundamental fairness and

rationality require.” Schad v. Arizona, 501 U.S. 624, 640

(1991). It is true that exemplary awards were a well-recognized

feature of the legal landscape by 1868, which this Court has

characterized as the “crucial time” for purposes of a Due

Process Clause challenge. Burnham v. Superior Court of

California, 495 U.S. 604, 611 (1990); see also Honda Motor

_Co. v. Oberg, 512 U.S. 415 n.12 (1994) (looking to 19th-

century practice to support holding that a regime governing

review of punitive damage awards was unconstitutional); Pac.

Mut. Life Ins. Co., 499 U.S. at 25-26 (Scalia, J., concurring in

the judgment) (reviewing 19th-century authorities and

concluding that “[{iJn 1868, therefore, when the Fourteenth

Amendment was adopted, punitive damages were undoubtedly

an established part of the American common law of torts’’).

What was not familiar in 1868 (for, for that matter, any

time before then going back to 1791)—indeed, was entirely

unheard of—was the procedure and resulting massive punitive

exaction approved by the Supreme Court of Oregon in this

case. Our country’s legal traditions furnish not the slightest

support for awarding to one lucky plaintiff a gigantic penalty

designed to punish the defendant for all of the harm it was

believed to have caused to thousands of others who were not

and never would be party to the lawsuit. Neither does historical

practice in American courts sanction the imposition of a

punitive damages award many times greater than an award of

substantial compensatory damages.

“The fact that the historical institution of punitive damages

has been around for centuries immunizes it from constitutional

review, but it does not, of course, mean that any remedy a mod-

ern court chooses to call ‘punitive damages’ is automatically

constitutional. If the courts completely change the fundamental

nature of the institution of punitive damages, slapping the old

label on them will not avoid al] questions of constitutional in-

firmity.” Thomas B. Colby, Beyond the Multiple Punishment

Problem: Punitive Damages As Punishment for Individual,

Private Wrongs, 87 MINN. L. REV. 583, 647 (2003); see also

John C. Jeffnes, Jr., A Comment on the Constitutionality of

Punitive Damages, 72 VA. L. REV. 139, 140(1986) (“[P Junitive

damages at least have the warrant of past practice, and that in

itself suggests constitutional permissibility. In fact, however,

the application of traditional punitive damages doctrine to

modern mass tort litigation has produced a situation altogether

different from past experience.”’).

Tradition has always been the primary constitutional

justification for punitive damages, and yet the award in this

case flies in the face of American legal traditions in several

respects. For that reason, the decision of the Oregon Supreme

Court should be reversed.

I. Historical Practice Provides No Support For Punishing

A Defendant For The Effects Of Its Conduct On Parties

Not Before The Court

A. Punitive Damages Historically Were Understood

As Vindication For The Particular Plaintiff Before

The Court

1. The common law remedy of punitive damages (also

known as “exemplary damages,” “vindictive damages,” and

“smart money”) originated in a pair of English lawsuits decided

in 1763. See, eg., 1 JOHN J. KIRCHER & CHRISTINE M.

WISEMAN, PUNITIVE DAMAGES: LAW AND PRACTICE 1-2 (2d

ed. 2000); David G. Owen, Punitive Damages in Products

Liability Litigation, 74 MICH. L. REV. 1257, 1262-1263 (1976).

Both cases arose out of the issuance by the King’s agent of an

unlawful general warrant to arrest the printers and publishers of

a newspaper that had offended and allegedly libeled the King.

Acting on the warrant, the King’s officers broke into the house

of the publisher, John Wilkes, and rummaged through and -

seized his papers. Wilkes sued in trespass. The judge instructed

the jurors that they “have it in their power to give damages for

more than the injury received,” and the jury awarded £1000.

Wilkes v. Wood, Lofft 1, 18-19, 98 Eng. Rep. 489, 498 (K.B.

1763).

The officers also detained a printer’s assistant, who sued

for trespass and false imprisonment. Even though the assis-

tant’s actual injuries, according to the court, were small and

likely not worth more than £20—the custody lasted only six

hours, and the officers “used [the plaintiff] very civilly by treat-

ing him with beef-steaks and beer’’—he recovered an award of

£300. Huckle v. Money, 2 Wils. 205, 95 Eng. Rep. 768 (K.B.

1763).

> Wilkes and Huckle continue to animate the law of punitive damages

in England. Thus, unless authorized by a statute, exemplary damages

are available in England only when either: (1) there is “oppressive,

arbitrary, or unconstitutional aetion by the servants of the

government,” or (2) “the defendant's conduct has been calculated by

him to make a profit for himself which may well exceed the

compensation payable to the plaintiff.” Rookes v. Barnard, [1964]

A.C. 1129, 1226 (H.L. 1964); see also | LINDA L. SCHLUETER,

PUNITIVE DAMAGES 11-14 (Sth ed. 2005) (reviewing status of

punitive damages in England since Rookes).

The remedy soon spread across the Atlantic to the

American colonies and States,* where, from the time of the

ratification of the Constitution and after, it was generally used

to achieve vindication in cases of torts like assault, libel and

slander, malicious prosecution, false imprisonment, seduction,

and intentional interferences with property such as trespass and

conversion. Victor E. Schwartz et al., Reining in Punitive

Damages “Run Wild”: Proposals for Reform by Courts and

Legislatures, 65 BROOK. L. REV. 1003, 1007-1008 (1999);

Roginsky v. Richardson-Merrell, Inc., 378 F.2d 832, 838 (2d

Cir. 1967) (citing PROSSER, TORTS § 2, at 10-11 (1964)). As

Judge Friendly remarked after reviewing this list: ““What strikes

one is not merely that these torts are intentional but that usually

there is but a single victim; a punitive recovery by him ends the

matter, except for such additional liability as may be provided

by the criminal law.” Roginsky, 378 F.2d at 838.

Indeed, the tort law itself historically redressed one plain-

tiff’s injuries at atime. As Chief Justice Marshall had occasion

to observe: “The province of the court is, solely, to decide on

the rights of individuals * * *.” Marbury v. Madison, 5 U.S. (1

Cranch) 137, 170 (1803). Under the traditional understanding,

while a single act committed by a defendant “may violate any

number of rights, * * * each such violation would constitute a

different wrong,” and each “would give rise to different causes

of action.” City of Columbus v. Anglin, 48 S.E. 318, 320 (Ga.

1904). Thus, “many causes of action may grow out of a single

act or tort, to as many individuals as suffer damages by the

wrongful act.” Jil. Cent. R.R. v. Slater, 39 Ill. App. 69, 81

* The earliest reported American case with an exemplary award is

believed to be a lawsuit in South Carolina in which the plaintiff was

a foreigner tricked by a doctor into drinking poison one evening. The

court instructed the jury “that this was a very wanton outrage upon a

stranger in the country,” and that the plaintiff suffered “a very serious

injury,” which “entitled him to very exemplary damages.” Genay v.

Norris, 1 S.C.L. (1 Bay) 6, 7 (1784).

(1890). As recently as the turn of the last century, multiple

plaintiffs were not allowed to join the same suit in actions at

law unless they could prove that they were jointly interested in

the subject of the injury. See, e.g., SIMON GREENLEAF, A

TREATISE ON THE LAW OF EVIDENCE § 227 (William Draper

Lewis ed., 1899); Cleaveland vy. Grand Trunk Ry. Co. of

Canada, 42 Vt. 449, 458 (1869).

2. Punitive damages, and the reasons for them, have

always been a subject of dispute.” Courts sometimes spoke of

* One of the most famous disagreements in 19th-century law was that

between Harvard professor Simon Greenleaf, who believed damages

for any purpose other than compensation did not and should not exist,

e.g., Greenleaf, The Rule of Damages in Actions Ex Delicto, 5 W.L.J.

289, 289-290, 296 (1848), and treatise author Theodore Sedgwick,

who believed that the law of punitive damages “blends together the

interest of society and the aggrieved individual, and gives damages

not only to recompense the sufferer, but to punish the offender,”

Sedgwick, The Rule of Damages in Actions Ex Delicto, 5 W.L.J. 193,

194 (1848) (emphasis and internal quotation marks omitted).

Greenleaf’s position had its most forceful exposition ‘in the

extraordinarily thorough opinion in Fay v. Parker, 53 N.H. 342

(1874), which was sprinkled with classical references and consumed

with bile. Fay renounced non-compensatory damages as a matter of

New Hampshire law, which to this day does not recognize them. E.g.,

Crowley v. Globai Realty, Inc., 474 A.2d 1056, 1058 (N.H. 1984).

New Hampshire is not alone. Punitive, or non-compensatory,

damages are and long have been unavailable under the law of a

number of other States, including Michigan and Nebraska, and,

unless authorized by statute, Massachusetts and Washington. See,

e.g., Peisner v. Detroit Free Press, 364 N.W.2d 600, 606 (Mich.

1984); Detroit Daily Post Co. v. McArthur, 16 Mich. 447, 453

(1868); Distinctive Printing and Packaging Co. v. Cox, 443 N.W.2d

566, 574 (Neb. 1989); Riewe v. McCormick, 9 N.W. 88, 89 (Neb.

1881); Flesner v. Technical Commc'ns Corp., 575 N.E.2d 1007,

1112 (Mass. 1991); Burt v. Advertiser Newspaper Co., 28 N.E. 1, 5

(Mass. 1891) (Holmes, J.) (““Vindictive or punitive damages are never

punitive damages as serving the goals of retribution and

deterrence,° which today are the only recognized reasons for

exemplary awards, see, e.g., State Farm Mut. Auto. Ins. Co. v.

Campbell, 538 U.S. 408, 416 (2003). “Just as frequently, how-

ever, the courts justified punitive damages as additional

compensation for mental suffering, wounded dignity, and

injured feelings—harms that were otherwise not legally

compensable at common law.” Colby, supra, 87 MINN. L. REV.

at 615; accord 1 SCHLUETER, supra note 3, at 8. A particularly

clear illustration of this point is Morse v. Auburn & Syracuse

R.R., 10 Barb. 621 (N.Y. Sup. Ct. 1851), which distinguished

between injury remedied by ordinary damages and that

remedied by “[e]xemplary or punitory damages, or smart

money,” and noted that the latter are a punishment in which

“the mental suffering, the injured feelings, the sense of

injustice, of wrong, or insult on the part of the sufferer, enter

largely into the account.”

“Until well into the 19th century,” this Court has noted,

“punitive damages frequently operated to compensate for

intangible injuries, compensation which was not otherwise

available under the narrow conception of compensatory

damages prevalent at the time.” Cooper Indus., Inc. v.

Leatherman Tool Group, Inc., 532 U.S. 424, 437 n.11 (2001)

(citing Note, Exemplary Damages in the Law of Torts, 70

allowed in this state.”"); Dailey v. N. Coast Life Ins. Co., 919 P.2d

589, 590-591 (Wash. 1996); Spokane Truck & Dray Co. v. Hoefer,

25 P. 1072, 1075 (Wash. 1891).

* See, e.g., Coryell v. Colbaugh, 1 N.J.L. 77 (N.J. 1791) (jurors told

they were “to give damages for example’s sake, to prevent such

offences in future,” and that they “might give such a sum as would

mark their disapprobation”’); Porter v. Seiler, 23 Pa. 424, 428 (1854);

Goddard v. Grand Trunk Ry. of Canada, 57 Me. 202, 224 (1869);

Ward v. Ward, 41 lowa 686, 688 (1875).

HARV. L. REV. 517, 520 (1957)).’ Exemplary damages were

also sometimes used to compensate the plaintiff for litigation

expenses. See, e.g., Welch v. Durand, 36 Conn. 182, 185

(1869); New Orleans, Jackson & Great N. R.R. v. Allbritton, 38

Miss. 242, 273, 275 (1859).

Although the dominant account of punitive damages came

to focus on punishment rather than compensation, the doctrine

never lost its focus on the harm done to the plaintiff before the

court:

[T]he early focus of punitive damages awards was on the

degree of insult to the victim, and thus the courts tailored

the amount of the punitive award to the victim’s social

status and to the circumstances of the insult. * * *

[A]}ithough the courts eventually settled upon an under-

standing of punitive damages as punishment rather than

compensation, they did not conceive of them as punish-

ment for some amorphous wrong to society, or as punish-

ment for the malicious act in the abstract; rather, they con-

ceived of them as punishment for the private legal wrong—

the insult—done to the individual plaintiff. * * * The vindi-

cation of the dignity of the victim was the whole point of

punitive damages * * *.

Colby, supra, 87 MINN. L. REV. at 619, 634. :

3. This conception of punitive damages accounts for

several otherwise-inexplicable features of punitive damages

doctrine. One is the requirement that the plaintiff prevail on an

”’ But see Anthony J. Sebok, What Did Punitive Damages Do? Why

Misunderstanding the History of Punitive Damages Matters Today,

78 CHL-KENT L. REV. 163, 204-206 (2003) (arguing that footnote 11

of Cooper InduStries-is-inaccurate because punitive damages in the

19th century above all redressed “the injury of insult that wounds or

dishonors,” which today is not a cognizable form of injury).

: 11

underlying cause of action? That requirement would be entirely

unnecessary if the doctrine’s only purposes were to achieve

general deterrence and retribution.

Moreover, in the majority of jurisdictions, punitive damage

awards do not violate the double jeopardy prohibition. In the

19th century, a number of courts ruled that punitive damages

were unavailable where the conduct in question was a criminal

offense. E.g., Taber v. Hutson, 5 Ind. 322, 325-326 (1854).

Others, by contrast, ruled that there was no constitutional

problem because the remedy was a form of remuneration, not

punishment. E.g., Chiles v. Drake, 59 Ky. (2 Met.) 146, 151-

153 (1859) (object of statute authorizing punitive damage

awards was “not to inflict a penalty, but to remunerate for the

loss sustained”).

What eventually became the majority rule “arose from the

decisions of courts that took a more nuanced stance: Punitive

damages do not implicate double jeopardy concerns,” even

though they are intended as punishment, “because they are

intended as punishment for the wrong to the individual victim,”

as opposed to the wrong to society generally. Colby, supra, 87

MINN. L. REV. at 621. Illustrative of the dominant approach is

Hendrickson v. Kingsbury, 21 lowa 379 (1866), in which the

Court stated that punitive damages did not raise double

jeopardy concerns because such awards “have no necessary

* English law also imposes this requirement. As Lord Devlin

explained in Rookes: “[T]he plaintiff cannot recover exemplary

damages unless he is the victim of the punishable behaviour. The

anomaly inherent in exemplary damages would become an absurdity

if a plaintiff totally unaffected by some oppressive conduct which the

jury wished to punish obtained a windfall in consequence.” [1964]

A.C. at 1227. In the decision below, the Supreme Court of Oregon

endorsed a similar “absurdity” by holding that respondent could

collect a $79.5 million windfall calculated to punish the petitioner for

the alleged effect of its behavior on thousands of persons with no

connection at all to Williams or her lawsuit.

relation to the penalty incurred for the wrong done to the

public,” but are “a punishment for the wrong done to the

individual.” Id. at 391 (emphasis in original).’

B. Historically, A Plaintiff Was Entitled To Recover

Exemplary Damages To Vindicate The Wrong

Done Only To Her, Even When The Defendant’s

Actions Caused Harm To Others

Because punitive damages were never understood as a

mechanism for vindicating affronts to society generally (or for

that matter to anyone other than the plaintiff), plaintiffs

historically were entitled to recover exemplary damages only

for the wrong done to themselves, even when an act or course

of conduct caused actionable harm to more than one person.

1. The two English antecedent cases arose out of an

incident in which the defendants had committed affronts

against a number of individuals.'° There was, however, no

suggestion in either of those cases that the punishments could

or should reflect the harm done to anyone but the particular

plaintiff. On the contrary, in Huckle v. Money, 2 Wils. 205, 95

Eng. Rep. 768, 769 (K.B. 1763), one of the judges noted that 15

° A difficulty related to the double jeopardy problem—namely, the

potential in the mass-tort context for multiple punitive awards for the -

same conduct, see, e.g., Roginsky v. Richardson-Merrell, Inc., 378

F.2d 832, 838-840 (2d Cir. 1967)}—would be eliminated if courts

returned to the traditional understanding of punitive awards. See

generally Colby, supra. In that case, each plaintiff would be able to

recover only a modest punitive award reflecting only the harm to

himself. If, however, this Court holds that a jury may indeed punish

a defendant for harms to non-parties, then the problem of multiple

punishment will still exist and will have to be addressed in a future

case.

'° Professor Colby appears to be the first to have made this point. See

Colby, supra, 87 MINN. L. REV. at 628 n.168.

other plaintiffs had brought suit against the same messengers

who had imprisoned the printer’s assistant, with each suit

resulting—after two of the suits were tried and the rest

settled—in its own punitive award. And in Wilkes v. Wood, the

Lord Chief Justice’s punitive damages instruction was based

exclusively on one offense, that against John Wilkes:

“Damages are designed not only as a satisfaction fo the injured

person, but likewise as a punishment to the guilty, to deter from

any such proceeding for the future, and as a proof of the

detestation of the jury to the action itself.’ Lofft 1, 18-19, 98

Eng. Rep. 489, 498-499 (K.B. 1763) (emphasis added).

Even more clearly illustrative of these principles is Tullidge

v. Wade, 3 Wils. 18, 95 Eng. Rep. 909 (K.B. 1769), which

involved an action for assault brought by the father of a woman

who had been impregnated by the defendant. The woman was

permitted to testify that the defendant had promised her

marriage. The court told the jury “over and over again, that, in

giving damages in this action, they must not consider the injury

done to [the daughter] as to the promise of marriage, but must

leave that matter quite out of the question, because [the

daughter} might have her action for breach of that promise.” 95

Eng. Rep. at 909 (emphasis added).

The jury awarded £50 damages, most of which was

exemplary, and the trial and appellate judges were satisfied that

the jury had not punished the defendant for the broken marriage

promise. In other words, even though the defendant’s actions

caused cognizable harm to two persons—the daughter and her

father—the exemplary damages were allowed to punish, and

did punish, only the wrong to the party before the court.

A number of American jurisdictions followed Tullidge,

holding that, in an action by the father for the seduction of his

daughter, evidence of a breach of a promise to marry was

inadmissible to increase the size of the award, exemplary or

otherwise.'' E.g., Robinson v. Burton, 5 Del. (5 Harr.) 335, 340

(Super. Ct. 1851); Brownell v. McEwen, 5 Denio 367, 368

(N.Y. Sup. Ct. 1848); Foster v. Schofield, 1 Johns. 297, 299

(N.Y. 1806) (“The law is settled, that in a suit by the father, for

debauching his daughter, the daughter cannot be a witness to

prove a promise of marriage, in order to increase the damages,

for she has herself a right of action against the defendant.”);

Stevenson v. Belknap, 6 lowa (6 Clarke) 97, 1858 WL 120, at

*4 (1858).

Even, however, in jurisdictions that did allow evidence of

a broken marriage promise to increase damages in a father’s

seduction action, the focus remained squarely and exclusively

on the injury to the father, not to the daughter. That is, the

existence and breach of the promise were part of the circum-

stances of the seduction and enhanced the outrage perpetrated

on the father. In Phelin v. Kenderdine, 20 Pa. 354 (1853), for

example, the court explained:

So far as the promise of marriage tends to show the nature

of the injury to the parent, or the means by which it was

accomplished, the evidence is as pertinent as any other

circumstance which gives character to the transaction; and

the only instruction which the defendant has a right to

require in regard to such evidence is, that the jury must not

'' The principle that the-father’s and daughter’s claims were separate

and that exemplary damages could vindicate only the party before the

court is also illustrated by one of the earliest American punitive

damages cases, an action seeking exemplary damages for breach of

a marriage promise. In Coryell v. Colbaugh, 1 N.J.L. 77 (N.J. 1791),

the court refused to permit the defendant to introduce evidence that

the father had already recovered from the defendant an exemplary

award in his own action for the seduction. “[I]}t was against every rule

of evidence,” the court explained, “that a verdict between other

parties * * * should prejudice a person not party or privy to the

record; that * * * the plaintiff could claim no benefit from the other

suit. It was her father’s action—she is not to be affected by it here.”

award to the father any part of the damages which belong

to the daughter, by reason of the breach of the contract of

marriage.

Id. at 362 (emphasis in original). Accord White v. Campbell, 54

Va. (13 Gratt.) 573, 574 (Va. 1856) (noting that “[e]vidence of

the means by which the seduction was accomplished”

aggravates “the offender’s wrong, and show(s] the extent of the

father’s loss”).

2. Ofcourse, the traditional common law torts for which

punitive damages were usually awarded—catalogued by Judge

Friendly in Roginsky, 378 F.2d at 838—may not seem analo-

gous to the “mass torts” that became possible only after the

Industrial Revolution. A large enterprise arguably is capable of

causing harms that are different in kind and in the number of

victims from those on which the traditional common law

actions were based.

Economists have much to say about how the existence of

mass torts bears on calibrating deterrent punishments. From the

standpoint of legal history, however, the question of how to

analyze post-Industrial Revolution punitive damages depends

on their closest historical antecedents. With this in mind, we

have examined every reasonably accessible’* pre-1870

American case brought against a corporation that deals with the

subject of punitive damages.

'? Our conclusions are based on searches of the Westlaw database,

whose holdings for early American law are extensive but not

complete. According to Thomson West, the company set out to

collect the cases in all the reporters identified in the 16th edition of

the Bluebook, but did not complete that objective because tracking

down some of the volumes tumed out to be impracticable.

Sampling—based on testing to see whether cases referenced in the

early decisions are available in the Westlaw database—suggests that

the database includes the overwhelming majority of reported 19th-

century decisions.

a. Analysis of these early decisions reveals not a single

instance in which a court approved a punitive damage award

that reflected harm to other parties not before the court.'* Far

from approving punitive damages awards that reflected harm to

non-parties, the early decisions reflect the assumption that it

was entirely out of the question to punish a defendant for its

general course of conduct or even for acts similar to, but other

than, the ones that caused the plaintiff's injury. For example, in

Holyoke v. Grand Trunk Railway, 48 N.H. 541 (1869), the tal

court prevented the plaintiff from introducing, in support of his

claim for exemplary damages, evidence that the defendants’

railroad track was in an unsafe condition at places other than

the site of the accident that caused the complained-of injuries.

If punitive damages had been understood as a way of punishing

a defendant for an entire course of objectionable conduct, there

would have been no reason to exclude this evidence.

'S The closest thing we have found might be a statement in Whipple

v. Walpole, 10 N.H. 130 (1839), which involved a claim for damages

for the loss of horses caused by a defect in a bridge. In justifying an

exemplary award, the court noted that the defendants neglected “a

duty, in which the public at large have a deep interest. * * * In this

very case, * * * three individuals were suddenly destroyed, and

others exposed to most imminent peril.” 10 N.H. at 132-133. Because

the court’s opinion otherwise mentions no loss or destruction of

human life, it appears that the“three individuals * * * suddenly

destroyed” were the horses at issue, odd as that locution may seem

167 years later. Even if the court was referring to harm to persons not

before the court, however, its discussion does not mean that the

defendants were punished for harm to others. Rather, the court’s

discussion reflects the principle that the reprehensibility of conduct

can be a function of the amount of danger it creates. This

distinction—which the Supreme Court of Oregon utterly failed to

grasp—is a familiar one both in the criminal law and in this Court’s

punitive damages cases. See Pet. 16-18 & n.6. Whipple, moreover,

was later overruled. See note 28, infra.

b. In briefs filed in this Court’s recent punitive damages

cases, parties or amici have asserted that historically juries were

permitted to take into account a defendant’s conduct vis-a-vis"

other plaintiffs in awarding exemplary damages. That argu-

ment, however, has been based on a flatly misleading reference

to an 1830 treatise.

The respondents in State Farm argued:

[P Junitive damages have always been imposed on the basis

of the totality of a defendant’s conduct, including “other

acts,” not merely according to what the defendant did to

the particular plaintiff before the court. As one com-

mentator wrote in 1830, “circumstances which form no

part of the actionable matter of a suit, may be given in evi-

dence to aggravate damages.” Theron Metcalf, Damages

Ex Delicto, 3 AM. [JUR. &] L. MAG. 270, 287 (1830)

(emphasis added).

Br. of Resp., State Farm Mut. Auto. Ins. Co. v. Campbell, No.

01-1289, at 37-38 (U.S. Oct. 17, 2002) (hereinafter State Farm

Resp. Br.); see also Br. of Legal Historians in Supp. of Resp.,

BMW of N. Am., Inc. v. Gore, Na..94-896, at 18 (U.S. May 31,

1995) (hereinafter Gore Historians’ Br.) (using identical

quotation for similar point).

What Metcalf actually said, however, is that such circum-

stances may not be given in evidence. Here, in pertinent part,

is the full passage:

It is said by elementary writers and by compilers, that

* * * circumstances, which form no part of the actionable

matter of a suit, may be given in evidence to aggravate

damages. * * *

The proper meaning, it is apprehended, of the phrasef[]

* * * ‘in aggravation of damages,’ is often palpably

‘mistaken. When evidence is given for the purpose of

showing that the injury received is greater * * * than it

would appear to be if such evidence were not introduced,

it may properly be said to be received in aggravation * * *

of damages; and in no other instance. And it is the purpose

of this examination to show that neither on principle, nor

by the preponderance of authority, can damages be

estimated by any other standard than the actual injury

received—that the extent of the injury is the lega! measure

of damages.

Metcalf, supra, 3 AM. JUR. & L. MAG. at 287-288 (emphasis

added in part). In fact, not only did Metcalf squarely reject the

idea that juries could take into account circumstances outside

the plaintiff's cause of action, he was also an early proponent

of the view that punitive damages as we understand them

today —an award for a non-compensatory purpose—did not

exist.

c. The point that juries historically could not take into ac-

count—indeed, probably could not even learn of—harm to non-

parties is illustrated by punitive damages cases arising out of

accidents that injured additional parties beyond the individual

plaintiff. In such cases, court never even contemplated the

possibility of awarding punitive damages on the basis of such

' Metcalf wrote:

Damages are given as a satisfaction for an injury received by the

plaintiff, not by the public. The term vindictive, when applied to

damages given by a jury, is unfortunate, and liable to strange

misapprehension. * * * [I]t means nothing more, when truly

understood, than * * * that damages may be given for insult,

contumely, and abuse, not in themselves actionable, when they

accompany an actionable injury. And that in any other sense,

such damages are unknown and unwarranted by the common

law.

| 3 AM. JuR. & L. MAG. at 305-306 (first emphasis added). In fact,

Metcalf was said to be the ancestor of Greenleaf’s position, see

note 5, supra. Sedgwick, supra, 5 W.L.J. at 193.

injuries. In Holyoke, for example, the plaintiff sought

exemplary and compensatory damages after the railcar he was

riding in, which “was running at an unusually rapid speed,” ran

off the road, down an embankment, and into a pond, where it

came to rest upside-down twelve feet below the track. 48 N.H.

at 543. There was no discussion in the case of other victims

(which it seems fair to assume there were, since it would have

been a miracle if the accident had injured no one else), let alone

a suggestion that an exemplary award could reflect harm to

them. The same was true of Taylor v. Grand Trunk Railway, 48

N.H. 304 (1869). There two passenger cars went off the rails

and down a bank, turniig nearly upside-down, id. at 307, but

the court did not even contemplate that Taylor’s exemplary

award could reflect what surely must have been injuries

suffered by others. Likewise, in Weed v. Panama Railroad, 17

N.Y. 362 (1858), the plaintiff obtained a $2000 verdict, which

apparently included an exemplary component, for injuries

suffered when his train was detained. Four hundred other

passengers were stuck on the same train, yet there was no sug-

gestion that Weed’s award was based in any way on the harm |

to the others. '°

d. Finally, in the few cases in which courts did consider

whether a plaintiff could collect punitive damages for other

parties’ injuries, they answered that question in the negative. In

Black v. Carrollton Railroad, 10 La. Ann. 33 (La. 1855), for

example, the plaintiff was the father of a 14-year-old boy

whose legs were broken when the railroad car he was riding in

flipped over. The father had sought damages for medical

'* Other illustrations of this point are Hopkins v. Atl. & St. Lawrence

R.R., 36 N.H. 9 (1857) (no suggestion that harm to other passengers

could be a consideration in calculation of exemplary award in suits

for injuries of plaintiff and wife sustained in train collision); Varillat

v. New Orleans & Carrollton R.R., 10 La. Ann. 88 (La. 1855); Frink

& Co. v. Coe, 4 Greene 555 (lowa 1854); Penn. R.R. v. McCloskey's

Adm'r, 23 Pa. 526 (1854).

expenses and the neglect of his business, and the court

estimated his actual damage at $5000. /d. at 37-38. The jury,

however, awarded $10,000. The court overturned the verdict

because it believed that there was no “right to recover

vindictive damages, to others than those who, in their own

proper persons, are victims of the misconduct of” a railroad

company. /d. at 38. Similarly, in Baltimore & O. S.W. Railway

v. Keck, 89 Ill. App. 72 (1899), the court held that a father was

entitled to recover “compensation only for the loss he had

sustained on account of the negligent act of the railroad

company in injuring his boy. He was entitled to nothing on

account of the pain and suffering of his son, or as exemplary

damages. Such damages could only be recovered in a suit by

the boy.” Id. at 977-78 (emphasis added).

Identical principles yielded the opposite outcome in Brad-

ley v. Andrews, 51 Vt. 525 (1879). There the father was permit-

ted to recover exemplary damages for injuries to the son, but

only because the son had initiated his own negligence action

before he died, and a Vermont statute transferred a deceased’s

cause of action to the administrator of his estate, which in this

case was the father. Without the statutorily conferred ability to

prosecute his son’s cause of action, the father could not have

recovered exemplary damages, even though he had initiated his

own suit to recover for loss of services and the expense of

caring for the son.'® ,

These patterns continued into the 20th century. For

example, in Tidd v. Skinner, 122 N.E. 247 (N.Y. 1919), the

plaintiff sued to recover for loss of the services of her son, who

had become addicted to heroin sold by the defendant pharma-

cists. The court observed that punitive damages when available

Tupper, 45 Vt. 275, 288 (1873), contains rhetoric that is in tension

with this interpretation, .but the holding of that case is entirely

consistent with it.

“are allowed to the person directly injured in cases of wrong

committed with malice * * *. We are of the opinion that such

damages do not in this case come within the reason on which

the common-law action in favor of a third person is sustained.”

Id. at 251. See also Bube v. Birmingham Ry., Light & Power

Co., 37 So. 285, 286 (Ala. 1904) (punitive damages not

available to father suing street car company for loss of his son’s

services); French v. Orange County Inv. Corp., 13 P.2d 1046,

1048 (Cal. Dist. Ct. App. 1932) (“Exemplary damages are

allowed only to the immediate person receiving the injury,

either in a suit prosecuted by himself or by some one for his

use.” (citation and internal quotation marks omitted)); cf. Pickle

v. Page, 233 N.Y.S. 461, 470 (App. Div. 1929) (allowing

parent to recover punitive damages for child’s kidnaping

because “the injury is primarily and directly, and indeed

chiefly, to the parent”’).

Il. There Is No Historical Basis For Upholding Punitive

Awards That Are Many Multiples Of The Compensa-

tory Award When The Compensatory Award Itself Is

Substantial

A. Before the ratification of the Fourteenth Amendment,

so long as actual damages were not trivial, it was extremely

rare for a court to approve an award whose punitive component

was many multiples larger than the compensatory component.

For one thing, juries were rarely inclined to impose large

awards. There are many decisions overturning verdicts because

the jury, in response to erroneous instructions or on its own

initiative, included an apparently exemplary award in a case

that (for want of the requisite wantonness, malice, or gross

negligence, or otherwise) did not permit it. Even in those cases,

however, the punitive amount tended to be a modest

supplement to the compensatory component."

' See, e.g., Franz v. Hilterbrand, 45 Mo. 121 (1869) (overturning

verdict awarding $200 in punitive damages beyond $300

compensation for killing horses); Beveridge v. Rawson, 51 Ill. 504

(1869) (award of $1236.72, of which $500 was compensatory, for

seizure and sale of house overturned); Cram v. Hadley, 48 N.H. 191

(1868) (verdict containing $51.98 exemplary award in addition to

$42.29 compensatory award for entering land and carrying away logs

overturned); Toledo, Pac. & W. Ry. v. Arnold, 43 Ill. 418 (1867)

(verdict containing $30 exemplary award in addition to $411

compensation for livestock killed by railroad cars overturned);

Ackerson v. Erie Ry., 32 N.J.L. 254 (N.J. 1867) ($8500 verdict

limited to $6500 as compensation for injuries sustained when railway

car went off road and down embankment); Moore v. Bowman, 47

N.H. 494 (1867) (overturning verdict awarding $25 in exemplary

damages beyond $115 compensatory award for wrongful attachment

of a horse); Moody v. McDonaid, 4 Cal. 297 (1854) (overturning

verdict awarding $2500 in “smart money” beyond $2500

compensatory award for injuries caused by negligent blasting);

Singleton’s Adm'r v. Kennedy, Smith & Co., 48 Ky. (9 B. Mon.) 222

(1848) (overturning verdict awarding $173.14 beyond cognizable

injury of $684 because vindictive damages not available); see also

New Orleans, Jackson & Great N. R.R. v. Moore, 40 Miss. 39 (1866)

(verdict awarding $222, in addition to $528, the value of trunk lost

by defendant railroad, overturned because exemplary damages not

appropriate in contract action); Androscoggin R.R. v. Richards, 41

Me. 233 (1856) (overturning award that included $23.69 in addition

to compensation of $191.54 for seizure of liquor); but see Dickinson

v. Maynard, 20 La. Ann. 66 (La. 1868) (reducing $885 verdict for

wrongful attachment to $101.66, representing actual damages,

because exemplary damages not allowed); Anding v. Perkins, 29 Tex.

348 (1867) (overturning award for breach of warranty in the sale of

a certificate for land in which compensatory component was $60 and

punitive component was $580 because jury was wrongly instructed);

Palmer, Cooke & Co. v. Stewart, 2 Cal. 348 (1852) (verdict awarding

$2500 overturned where cognizable compensatory damages were

probably not more than $50).

Where punitive damages were available, and juries did

award them, the vindictive component of the award still was

expected to bear some kind of correspondence to the compensa-

tory component. See, e.g., Walker v. Martin, 52 Ill. 347, 351

(1869) (reversing verdict in which punitive component was 40

times larger than compensatory component because vindictive

damages must “must bear some sort of proportion to the injury

done”); Grant v. McDonogh, 7 La. Ann. 447, 448 (La. 1852)

(“exemplary damages allowed should bear some proportion to

the real damage sustained”); see also BMW of N. Am., Inc. v.

Gore, 517 U.S. 559, 580 n.32 (1996) (citing late 19th-century

state-court cases for the same principle); 7XO Prod’n Corp. v.

Alliance Resources Corp., 509 U.S. 443, 459 n.25 (1993)

(plurality opinion); id. at 479 n.3 (O’Connor, J., concurring).

The reason for this sort of proportionality is clear. Because,

as discussed above, 19th-century jurists understood punitive

damages as a particularized punishment for the wrong to the

individual before the court, their “notion [was] that the proper

amount of punitive damages depends on the severity of the

injury to the plaintiff.” Colby, supra, 87 MINN. L. REV. at 639.

Thus, in practice punitive awards upheld on appeal were

almost never more than one or two times the amount of the

compensatory award.'* Multiples higher than this were rare."

'® See, e.g., Welch v. Durand, 36 Conn. 182 (1869) (verdict awarded

$200 for the injury received when the defendant fired a gun, plus

$150 “smart money” for expenses of litigation due to defendant's

wanton misconduct and culpable neglect); Johnson v. Camp, 51 Ill.

219 (1869) Gury may have awarded $107 “smart money” for taking

away $363 worth of wheat and oats); Andrea v. Thatcher, 24 Wis.

471 (1869) ($200 in exemplary damages in addition to $185.78

compensation for damage to furniture that occurred when plaintiff

and his family were ejected from his house ); Garland v. Wholeham,

26 lowa 185 (1868) ($1700 verdict for damage to property, the total

value of which was not more than $1020); Garland v. Wholebau, 20

Iowa 271 (1866) ($200 exemplary damages in addition to $500 com-

To be sure, some have argued that larger awards are needed

to deter or inflict meaningful retribution on a corporation,

especially a large one, than on an individual. Whether or not

that proposition is sound as an economic or policy matter,”

pensation for shooting horses); Lynd v. Picket, 7 Minn. 184 (1862)

($168.59 exemplary damages, or $150 plus interest to time of trial,

for a wrongful attachment of property worth $267); Tifft v. Culver,

3 Hill 180 (N.Y. 1842) ($2.52 in exemplary damages beyond $3.37

as compensation for wilfully overturning wagon); Wort v. Jenkins, 14

Johns. 352 (N.Y. 1817) ($75 verdict for beating to death a horse

worth $50 or $60); Woodman v. Nottingham, 49 N.H. 387 (1870)

($100 exemplary, $578 actual); Newell v. Whitcher, 53 Vt. 589

(1880) ($225 for mental suffering for a threatening sexual advance

made on a young blind woman, plus $100 in punitive damages); S.

Kan. Ry. v. Rice, 16 P. 817 (Kan. 1888) ($71.75 punitive award in

addition to $10 for injury to feelings and $35 for costs and fees).

'? Aside from the cases in which actual damages were truly trivial,

see IL.B., infra, the only pre-1870 American examples we have found

in which a multiple clearly higher than 2 was upheld on appeal are

Pendleton v. Davis, 46 N.C. (1 Jones) 98 (1853) ($1100 verdict, of

which $1000 was exemplary damages, awarded against a wealthy

defendant for a blow to plaintiff's head), Kountz v. Brown, 55 Ky.

(16 B. Mon.) 577 (1855) ($750 verdict; defendant complained on

appeal that three-fourths of it was “smart-money’”), and New Orleans,

Jackson & Great N. R.R. v. Hurst, 36 Miss. 660 (1859). Hurst was

disavowed only a decade later by the same Court that issued it. See

page 29, infra.

2 Trenchant economic analyses conclude that “corporate wealth

should not influence punitive damages.” A. Mitchell Polinsky &

Steven Shavell, Punitive Damages: An Economic Analysis, 111

HARV. L. REV. 869, 911 (1998); see also id. at 911 n.131 (citing

authorities to the same effect). Punishing corporations more because

they are wealthy also runs afoul of “the Aristotelian notion of

corrective justice, and more broadly of the principle of the rule of

law, * * * that sanctions should be based on the wrong done rather

than on the status of the defendant; a person is punished for what he

courts and juries have long found it appealing. Many States

permit juries to take into account the wealth of the defendant in

calculating an exemplary award, on the theory “that a penalty

which would be sufficient to reform a poor man is likely to

make little impression on a rich one; and therefore the richer

the defendant is the larger the punitive damage award should

be.” Clarence Morris, Punitive Damages in Tort Cases, 44

HARV. L. REV. 1173, 1191 (1931). Similarly, some courts

around the time of ratification of the Fourteenth Amendment

believed that large awards were needed to capture the attention

of large corporations.”'

In our survey of every reasonably available pre-1870 case

involving punitive damages brought against a corporation,”

many cases do not make the relevant ratios clear. In the few

that do, however, the punitive awards were modest supplements

to the compensatory award. See Taylor v. Grand Trunk Ry., 48

N.H. 304 (1869) ($858.50 punitive award for injuries suffered

in railroad accident where actual damages were $500);

Vicksburg & Jackson R.R. v. Patton, 31 Miss. 156 (1856) ($660

punitive award in addition to $550 to compensate for horses run

over by train). Several verdicts with enormous ratios were

upheld on appeal, but these decisions, as explained in I.C.,

infra, either were renounced soon after by the same court or

involved very low actual damages.

Nor was there any sharp change after the ratification of the

Fourteenth Amendment. Vindictive awards against corpora-

does, not for who he is, even if the who is a huge corporation.”

Mathias v. Accor Econ. Lodging, Inc., 347 F.3d 672, 676 {7th Cir.

2003) (Posner, J.).

1 E.g., Williamson v. W. Stage Co., 24 lowa 171, 172 (1867); see

also Goddard v. Grand Trunk Ry. of Canada, 57 Me. 202, 223-228

(1869).

* See note 12, supra.

tions out of all proportion to compensatory damages continued

to be reduced or overtufned well into the last century. See, e.g.,

Flannery v. Baltimore & Ohio R.R., 15 D.C. (4 Mackey) 111

(1885) ($5000 verdict of which only $500 was compensatory

had to be remitted to $1500, for a ratio of 2:1); Int'l & G.N.R.

Co. v. Telephone Tel. Co., 5 S.W. 517, 518-519 (Tex. 1887)

(setting aside, because of “the disproportion between the actual

injury sustained and the aggregate sum awarded,” $10,000

verdict in which the exemplary damages were almost 50 times

larger than the actual damages); Rider v. York Haven Water &

Power Co., 95 A. 803 (Pa. 1915) (reversing verdict awarding

$2700 where actual damages were $1000 and noting that “[w]Je

know of no case in our own state where punitive damages were

allowed in almost treble the amount of the actual damage

sustained”); Hunier v. Kansas City Rys. Co., 248 S.W. 998,

1003 (Mo. Ct. App. 1923) (“in this case an award of five times

the actual damages inflicted is clearly excesuive; an award of

three times the actual damages, or $1,500, is amply sufficient’’);

Hall Oil Co. v. Barquin, 237 P. 255, 276-280 (Wy. 1925)

(where actual damages were $1250, sustaining $1088 punitive

award against one defendant and reducing award against

another from $23,928 to $8000).

B. It is not controversial that, when actual damages are

small, a higher multiplier might be appropriate to achieve some

of the functions of punitive awards. E.g., State Farm, 538 U.S.

at 425; Gore, 517 U.S. at 582; see also Mathias v. Accor Econ.

Lodging, Inc., 347 F.3d 672, 676-677 (7th Cir. 2003) (Posner,

J.). Thus historic cases with truly gigantic ratios usually

involved insignificant actual damages.” In Williamson v.

23 In fact, at least one and probably both of the two antecedent

English cases fit this pattern. In Huckle v. Money, which resulted in

an award of £300, the actual injury, according to the Lord Chief

Justice, was worth approximately £20, 95 Eng. Rep. at 769, which,

in very approximate terms, is equivalent to several thousand dollars

today. See Gore, 517 U.S. at 597 (Breyer, J., concurring) (deducing

Western Stage Co., 24 lowa 171 (1867), for example, the court

upheld a $375 verdict for injuries resulting from being over-

turned in a coach. That was many multiples of the plaintiff's

actual damages, but those were tiny—he spent no more than $2

on remedies for his injuries. See also, e.g., Beaudrot v. S. Ry.,

48 S.E. 106 (S.C. 1904) ($1000 exemplary damages where ac-

tual damages from trespass were about $2.50); cf. Seaboard Air

Line Ry. v. Seegers, 207 U.S. 73, 75-76, 78 (1907) (upholding

state statute imposing $50 penalty for not timely settling claim

for lost shipment valued at $1.75); St. Louis, 1M. & S. Ry. v.

Williams, 251 U.S. 63, 64, 67 (1919) (upholding statutory pen-

alty of $75 plus costs of suit for overcharging two young sisters

by 66 cents). '

Plainly, this recognized exception has no application here.

Respondent’s compensatory award alone was $821,485.50, of

which 97 percent were non-economic damages. It was on top of

this that respondent was awarded $79.5 million to punish Philip

Morris USA for the total harm it was supposed to have inflicted

in Oregon. In Seaboard Air Line, this Court justified the dis-

parity between the $50 penalty and the $1.75 of actual damages -

on the ground that, “[i]f a large amount is in controversy, the

claimant can afford to litigate. But he cannot well do so when

there is but the trifle of a dollar or two in dispute * * *.” 207

U.S. at 78. Here that rationale is as irrelevant as can be; there

has been no shortage of plaintiffs willing to litigate against

tobacco companies. The award approved by the Supreme Court

of Oregon, it should be clear, finds no support at all in the

historical tradition of using a high multiplier to create a

meaningful penalty when the actual damage is slight—or,

indeed, in any historical tradition at all.

that £1 in 1763 is worth between $89.11 and $144.40 in 1995 U.S.

dollars). In Wilkes v. Wood, the plaintiff demanded “large and

exemplary damages” because “trifling damages would put no stop at

all to such proceedings,” 98 Eng. Rep. at 490.

C. In this Court’s recent punitive damages cases, de-

fenders of enormous awards frequently have asserted that high

ratios of punitive to compensatory awards have a strong histori-

cal pedigree.” They do not. The early American cases cited in

support of that proposition by the respondents and amici inthis

Court’s punitive damage cases either (1) did not involve puni-

tive damages at all, as opposed to compensatory damages for

non-economic injury,”* or (2) concerned situations in which

actual damages were insignificant;** or (3) were soon disa-

** See Gore Historians’ Br. 3-10; Br. of Resp., Gore, at 41 & n.53

(hereinafter Gore Resp. Br.); State Farm Resp. Br. 14-15 & n.2; Br.

of Resp., TXO Prod. Corp. v. Alliance Resources Corp., No. 92-479,

at 26-28 & nn.24-25 (U.S. Mar. 3, 1993) (hereinafter 7XO Resp. Br.).

> Reed v. Davis, 4 Pick. 216, 218 (Mass. 1826) (verdict compensated

not just for economic harm but for “the mental suffering which must

have been endured”), cited in Gore Historians’ Br. 6, Gore Resp. Br.

41 n.53, State Farm Resp. Br. 15 n.2, and TXO Resp. Br. 27 n.25;

Johnson v. Hannahan, 34 S.C.L. 425, 1849 WL 2662 (S.C. Ct. App.

L. 1849) ($3000 verdict-where pecuniary harm was $20; surplus

“rendered for insult and matter of aggravation”), cited in Gore

Historians’ Br. 6; Seaman v. Dexter, 114 A. 75, 76 (Conn. 1921)

($318 awarded for economic loss; the rest of the $5000 award was

not for punitive damages but “compensation for pain, suffering, and

permanent injury and discomfort”), cited in Gore Historians’ Br. 6

n.2 and State Farm Resp. Br. 15 n.2.

App. 1910) (9:1 ratio in award for an assault that caused injuries

worth $50), cited in Gore Resp. Br. 41 n.53, Gore Historians’ Br. 9,

and State Farm Resp. Br. 15 n.2; St. Louis, 1M. & S. Ry. v. Williams,

251 U.S. 63 (1919) (discussed above), cited in State Farm Resp. Br.

15; Pelton v. General Motors Acceptance Corp., 7 P.2d 263 (Or.

1932) (punitive award 19.6 times larger than compensatory award

upheld where compensatory damages were $255), cited in Gore

Historians’ Br. 6, Gore Resp. Br. 41 n.53, and State Farm Resp. Br.

15; Alcorn v. Mitchell, 63 Ill. 553 (1872) ($1000 exemplary award

vowed by the same court that approved the award. Examples of

the first two categories are furnished in the margin. The prime

example of the third category is New Orleans, Jackson & Great

Northern R.R. v. Hurst, 36 Miss. 660 (1859), which approved

an enormous punitive award where actual damage was limited,

and which was cited to this Court by respondents in four recent

punitive damages cases, as well as by the self-styled legal

historians as amici in Gore.”’ None of the briefs, however,

disclosed that a decade later the very same court, in a case

against the same defendant, expressly disavowed its earlier

decision: “With all due respect and deference to the opinion of

our able and distinguished predecessors, we think the verdict

should have been set aside in that case.” New Orleans, Jackson

& Great N. R.R. v. Statham, 42 Miss. 607, 628 (1869).”

If these are the best cases defenders of high ratios can come

up with to “prove” the historical pedigree of high ratios, then

the conclusion must be just the opposite: punitive damages in

enormous ratio to significant compensatory damages have no

where the defendant, who had just lost a trespass suit, spat in the face

of his adversary in court), cited in State Farm Resp. Br. 15, Gore

Historians’ Br. 6, and Gore Resp. Br. 41 n.53.

?’ Br. of Resp., Cooper Indus., Inc. v. Leatherman Tool Group, Inc.,

No. 99-2035, at 20 n.11 (U.S. Jan. 16, 2001); Gore Historians’ Br. 7,

19, 21; Gore Resp. Br. 41 n.53; State Farm Resp. Br. 15; TXO Resp.

Br. 27 n.25, 32, 38.

8 Along similar lines, briefs in previous cases cited for support

Whipple v. Walpole, 10 N.H. 130 (1839), as well as at least one other

pre-1870 New Hampshire case, Zaylor v. Grand Trunk Ry., 48 N.H.

304 (1869). See Gore Historians’ Br. 7 n.3, 8, 12, 16n.9, 27 n.18, 30

n.23; TXO Resp. Br. 27 n.25, 28 n.26. These briefs did not note that

Whipple was expressly overruled on at least two grounds in

Woodman v. Town of Nottingham, 49 N.H. 387 (1870), and that,

several years after that, New Hampshire's high court renounced

exemplary damages altogether. See note 5, supra.

historical support at all. They are an innovation of the late 20th

century, resembling their precursors in name but in no other re-

spect. History is no reason to shield them from exacting consti-

tutional scrutiny, and is in particular no reason to allow the

wholly arbitrary imposition of punishment and deprivation of

property without traditional due process of law.

CONCLUSION

The judgment of the Supreme Court of Oregon should be

reversed.

Respectfully submitted.

SHERMAN JOYCE ROY T. ENGLERT, JR.*

American Tort ALAN E. UNTEREINER

Reform Association DANIEL R. WALFISH |

1850 M Street, N.W. Robbins, Russell, Englert,

Suite 1095 Orseck & Untereiner LLP

Washington, D.C. 20036 1801 K Street, N.W.

(202) 682-1163 Suite 41]

Washington, D.C. 20006

(202) 775-4500

JULY 2006 * Counsel of Record

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