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More questions about punitive damages.

Article Excerpt
No decision this year will be more important for trial lawyers than the Supreme Court's rulingin Philip Morris v. Williams. (1) This case marks the third time in 11 years that the Court has imposed constitutional limits on punitive damages awards, but it seems to go further than the earlier rulings.

In a 5-4 decision, the Court held that juries cannot base punitive damages awards on harm to nonparties. However, it qualified this holding by saying that juries may consider harm to nonparties in assessing the reprehensibility of the defendant's conduct, which the Court has repeatedly said is the most important factor in determining the size of a punitive damages award.

Trial judges are likely to struggle for years with formulating jury instructions that simultaneously tell the jury to consider and not consider harm to people other than the plaintiffs. Appellate courts are left with little guidance on when the size of a punitive damages award is appropriate and when it is unconstitutional. Juries can consider harm to others in determining reprehensibility, but they cannot base punitive damages on harm to others. How can an appeals court possibly determine whether a punitive damages award violates this command?

Perhaps the ruling's greatest significance is the composition of the Court's majority. Justice Stephen Breyer wrote the opinion, joined by Chief Justice John Roberts and Justices Samuel Alito, Anthony Kennedy, and David Souter. Justices Ruth Bader Ginsburg, Antonin Scalia, John Paul Stevens, and Clarence Thomas dissented. Until this decision, it was not known how the two newest justices, Roberts and Alito, would view constitutional challenges to punitive...

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