# Amicus Curiae Brief — Philip Morris USA v. Williams

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0249%3A14

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2007
- **Citation:** 549 U.S. 346

## Text

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Jn the Supreme Court of the United States

PHILIP MorRIs USA,
Petitioner,
v.
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)

iv

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

v

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

vi

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) ...........

ix

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

x

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

xi

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.

2

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.

3
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.

4

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

5

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.

6

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).

7

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

9

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).

10

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.

12

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.

13

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

14

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.”

15

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.

16

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.

17

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

18

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.

19

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).

20

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

‘© The Supreme Court of Vermont's earlier decision in Earl v.
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.

21

“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,

22

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).

23

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-

24

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

25

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.

26

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

27

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.

28

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.

© E.g., Cathey v. St. Louis & S.F.R. Co., 130 S.W. 130, 131 (Mo. Ct.
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

29

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.

30

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0249%3A14. Public record. Not legal advice.