Title Dunn v. Hovic
Date 1993
By
Subject Other\Concurring
Contents
Page 1
42 of 52 DOCUMENTS
WILLIAM DUNN, HESS OIL VIRGIN ISLANDS CORP. v. HOVIC; AMERADA HESS CORP.; KEENE CORPORATION v. THE LITWIN CORPORATION; LITWIN PANAMERICAN CORP.; BORINQUEN INSULATION CO., Owens-Corning Fiberglas Corporation, Appellant
No. 91-3837
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
1 F.3d 1371; 1993 U.S. App. LEXIS 19482; 28 V.I. 467; CCH Prod. Liab. Rep. P13,543
April 22, 1992, Argued; February 2, 1993, Reargued In Banc
July 27, 1993, Filed
SUBSEQUENT HISTORY: As Corrected August 5,
1993.
PRIOR HISTORY: **1 On Appeal from the District
Court for the Virgin Islands (St. Croix). (D.C. Civil No.
87-00238).
CASE SUMMARY:
PROCEDURAL POSTURE: Appellant company chal- lenged a decision of the District Court for the Virgin Islands (St. Croix), which awarded punitive and com- pensatory damages to appellee injured man and denied appellant's motion for a new trial in an asbestos-related injury suit. The court had previously affirmed the com- pensatory damages award and had granted rehearing as to the punitive damages award.
OVERVIEW: Appellee injured man prevailed in an as- bestos-related injury suit against appellant company and was awarded both compensatory and punitive damages. Appellant sought review of both awards. The court af- firmed the compensatory damages award and granted re- hearing on the punitive damages award. The court vacated the punitive damage award and allowed for a remittitur reducing the already lowered award by half. The court held that appellee presented more than sufficient evidence from which a jury could conclude that appellant acted with reckless indifference with respect to warning labels on its product. The district court appropriately denied ap- pellant's motion for judgment notwithstanding the verdict and its motion for new trial. Although appellee's counsel's remarks were inappropriate, they did not warrant reversal. Appellant waived his right to challenge the jury instruc- tions by its failure to object to them. The punitive dam- ages charge was not constitutionally defective. Appellant failed to prove that the verdict reflected such passion and
prejudice as to mandate a new trial. The punitive damages award was no so large as to violate due process.
OUTCOME: The court affirmed the compensatory dam- age award and the district court's denial of appellant com- pany's motion for new trial, but vacated the reduced puni- tive damage award and allowed for remittitur of an award half of that to which the original award had been reduced.
LexisNexis(R) Headnotes
Governments > Courts > Common Law
HN1 The rule of common law, as expressed in the re- statements of the law approved by the American Law Institute, and to the extent not so expressed, as generally understood and applied in the United States, shall be the rules of decision in the court of the Virgin Islands in cases to which they apply, in the absence of local laws to the contrary. 1 V.I. Code Ann. § 4 (1967).
Torts > Damages > Punitive Damages
HN2 Punitive damages may be awarded for conduct that is outrageous, because of the defendant's evil motive or his reckless indifference to the rights of others. Such conduct must be shown by clear and convincing evidence. Civil Procedure > Trials > Motions In Limine
Civil Procedure > Jury Trials > Jury Instructions
HN3 The trial judge is in a better position than an ap- pellate court to determine whether remarks of counsel are prejudicial, and at least for civil trials, improper com- ments during closing arguments rarely rise to the level of reversible error. No party may assign as error the giving or the failure to give an instruction unless that party ob- jects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection.
Torts > Damages > Punitive Damages
1 F.3d 1371, *; 1993 U.S. App. LEXIS 19482, **1;
28 V.I. 467; CCH Prod. Liab. Rep. P13,543
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HN4 In determining the amount of punitive damages, the trier of fact can consider such factors as (1) the act itself, including the motives of the wrongdoer, the re- lations between the parties, and provocation or want of provocation; (2) the extent of harm to the injured person, including the expense to which plaintiff has been put in bringing a lawsuit; (3) the wealth of the defendant; and
(4) the existence of multiple claims. Torts > Damages > Punitive Damages Torts > Damages > Damages Generally
HN5 A district court reviews damages awards for ex- cessiveness.
Torts > Damages > Punitive Damages
Civil Procedure > Relief From Judgment > Additurs & Remittiturs
HN6 Where no clear judicial error or pernicious influ- ence can be identified but where the verdict is so large as to shock the conscience of the court, the appropriate ac- tion for the court is to order plaintiff to remit the portion of the verdict in excess of the maximum amount supportable by the evidence or, if the remittitur is refused, to submit to a new trial.
Torts > Damages > Punitive Damages
Civil Procedure > Appeals > Standards of Review > Standards Generally
HN7 An appellate court cannot leave the amount of punitive damages solely to the trial court. The appellate court determines whether a particular award is greater than reasonably necessary to punish and deter.
COUNSEL: Barry S. Simon (Argued), Paul Mogin, Williams & Connolly, Washington, D.C. 20005, Attorneys for Appellant.
Joel H. Holt (Argued), Christiansted, VI 00820, Paul S. Minor, Minor & Guice, Biloxi, Mississippi 39533, Attorneys for Appellee.
JUDGES: Before: SLOVITER, Chief Judge, MANSMANN and WEIS, Circuit Judges. In Banc. Before: SLOVITER, Chief Judge, BECKER, STAPLETON, MANSMANN GREENBERG, HUTCHINSON, SCIRICA, COWEN, NYGAARD, ALITO, ROTH, LEWIS and WEIS, Circuit Judges
OPINIONBY: SLOVITER
OPINION: *1373 OPINION OF THE COURT
SLOVITER, Chief Judge. Preliminary Note
Before us is the appeal of Owens-Corning Fiberglas Corporation (OCF) from the judgment of the district court of the Virgin Islands awarding William Dunn $500,000 in compensatory damages and $2 million in punitive dam- ages. A panel of this court heard argument on OCF's appeal on April 22, 1992 and issued an opinion affirming the compensatory damages award and remitting the puni- tive damages award to $1 million. Thereafter, the court granted OCF's petition for
1 F.3d 1371, *1374; 1993 U.S. App. LEXIS 19482, **1;
28 V.I. 467; CCH Prod. Liab. Rep. P13,543
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*1374 rehearing in banc, limited to the punitive dam- ages issue. The panel's original opinion on the **2 com- pensatory damages issue, modified in minor respects to reflect the recent procedural events, is refiled contempo- raneously with this opinion. n1
n1 The order granting rehearing in banc vacated the original opinion pursuant to this court's Internal Operating Procedure 9.5.9.
In its petition for rehearing and at oral argument be- fore the in banc court, OCF directed its argument to its contention that multiple awards of punitive damages in asbestos-related injury cases should be prohibited as a matter of Virgin Islands law or federal due process. Accordingly, this opinion essentially restates the opin- ion of the panel on the issues of the sufficiency of the evidence, Dunn's closing argument, and the jury charge, but contains a more extended discussion of OCF's chal- lenge to the excessiveness of punitive damage awards in asbestos cases.
I.
SUFFICIENCY OF THE EVIDENCE FOR A PUNITIVE DAMAGES AWARD
The availability of punitive damages is ordinarily deter- mined by the local law of the relevant jurisdiction, in some
**3 instances by statute and in other instances by legal principles developed by courts. Under the Virgin Islands Code:
HN1 The rule of common law, as expressed in the restatements of the law approved by the American Law Institute, and to the extent not so expressed, as generally understood and ap- plied in the United States, shall be the rules of decision in the court of the Virgin Islands in cases to which they apply, in the absence of local laws to the contrary.
V.I. Code Ann. tit. 1, § 4 (1967). Thus we turn to the
Restatement for the prevailing standard.
Section 908(2) of the Restatement (Second) of Torts provides that " HN2 punitive damages may be awarded for conduct that is outrageous, because of the defendant's evil motive or his reckless indifference to the rights of oth- ers." In applying this section, we have previously stated that such conduct must be shown by clear and convincing evidence. Acosta v. Honda Motor Co., 717 F.2d 828, 839
(3d Cir. 1983). OCF argues that the evidence was insuffi- cient to support the award of punitive damages or, in the alternative, that the verdict went against the clear weight of the evidence, requiring a new trial on **4 whether punitive damages are appropriate.
In support of its argument, OCF points to evidence tending to show that prior to its decision to place warn- ing labels on Kaylo boxes, the prevailing industry be- lief was that asbestos insulation products were safe. See App. at 1522-24. OCF argues that its Kaylo product was considered an improvement over prior insulation prod- ucts because it contained a lower percentage of asbestos. It points to an independent study conducted by Union Carbide between 1961 and 1963 which concluded that Kaylo, unlike Johns-Manville and Philip Carey prod- ucts, could be safely used within the 5 million particles per cubic foot threshold limit value (TLV) established by the American Conference of Governmental Industrial Hygienists in 1946. See App. at 1355-72, 2287-97.
Nevertheless, we conclude that Dunn presented more than sufficient evidence from which a jury could conclude that OCF acted "with reckless indifference" in failing to place adequate warnings on its Kaylo product. Dunn's ev- idence revealed the following: In the early 1940s, insula- tion workers threatened to demand higher wages when us- ing OCF's fiberglass material because of perceived health threats. **5 See App. at 725-26. In response to this threat, Edward Ames, OCF's public relations officer and an assistant to its president, developed a plan to resolve this problem. As Ames explained, OCF had learned by this time that exposure to asbestos fibers could cause as- bestosis. App. at 726.
In a memorandum to OCF's president and executive vice-president dated January 7, 1942, Ames made the following recommendation
1 F.3d 1371, *1375; 1993 U.S. App. LEXIS 19482, **5;
28 V.I. 467; CCH Prod. Liab. Rep. P13,543
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*1375 to inform workers of the extent of the hazard posed by asbestos-containing materials:
Gather as a weapon-in--reserve an impres- sive file of photostats of medical literature on asbestosis. Available are two bibliogra- phies covering medical literature to 1938, citing references to scores of publications in which the lung and skin hazards of asbestos are discussed. This file would cover five or six hundred pages . . . .
App. at 2151. This memorandum suggested that if OCF was unsuccessful in convincing union officials of the ben- efits of fiberglass as opposed to other asbestos-containing insulation products, then this "asbestosis weapon-in-- reserve" would be sent to union workers to "let them stew." App. at 2152.
When asked if OCF's then-president, Harold Boeschenstein, knew **6 that asbestos products might pose a hazard to the lungs, Ames answered, "Mr. Boeschenstein knew everything." App. at 727. In addi- tion, OCF's attorney thought that Ames's plan was "a germ of a major strategy" and approved compiling an asbestosis file. App. at 729.
In 1943 Ames wrote another memorandum in which he criticized a proposal for adding asbestos to fiberglass, see App. at 732-33, writing:
In formulating our policy on admixtures with asbestos, we should keep on the alert because otherwise we will run the risk of smearing fiberglas sic with the hazards of exposure to asbestos.
Fabrication of asbestos (in both textile and pre-textile form) is a dusty process, and ex- posure to asbestos fly involves the danger of asbestosis, a pathological lung condition . .
. minimized by the use of hoods and . . . respirators.
App. at 2154.
In 1944 Ames received a letter from a physician in- forming OCF that a patient of his, who had worked as an insulator, had developed asbestosis from exposure to insulation products. The letter stated in pertinent part:
pipe coverer handling . . . asbestos . . . prod- ucts on industrial insulation jobs was suf- fering from asbestosis, **7 a condition that results from exposure to asbestos dust. The disease is a well recognized form of lung pathology that manifests itself in a diminu- tion of lung capacity resulting in dyspnea or shortness of breath.
App. at 2155.
OCF began distributing Kaylo products in 1953, and from 1958 until 1972 manufactured Kaylo insulation. App. at 1068. In the 1950s, Dr. Garret Schepers, head of the Saranac Laboratory in New York, warned OCF that Kaylo contained material that would be hazardous to hu- man beings. App. at 1018. Dr. Schepers also wrote two letters to Dr. M.D. Burch, director of personnel and indus- trial relations at OCF at the time, advising him that "as- bestos is fairly well incriminated as a carcinogen," App. at 2198, and that asbestos dust caused fibrosis. App. at
2207. Despite these warnings, OCF published brochures which repeatedly represented Kaylo as "non-toxic." App. at 2209, 2210, 2211, 2212, 2215. In addition, OCF touted Kaylo's "ease of application," see App. at 2211, and its
"pleasant handling characteristics." App. at 2212. These brochures contained no warning of potential hazards.
A 1960 study of one of OCF's Kaylo manufacturing plants revealed that excessive **8 asbestos dust ex- posure resulted from simply packing Kaylo into boxes. App. at 220-22. In 1963 the head of OCF's product de- velopment laboratory informed various corporate officers around the country that "asbestos (as found in Kaylo) when breathed into the lungs causes asbestosis which often leads to lung cancer." App. at 2221. In 1964 the National Insulation Manufacturers Association, of which OCF's representative was a director, noted that Johns Manville had decided to place warnings on its asbestos products. App. at 2225. OCF, however, declined to do so, see App. at 2229, even though it knew that insulators had a six to seven times greater incidence of lung cancer than the general male population. App. at 2226.
In early 1965, Dr. F.H. Edwards of OCF wrote to OCF's medical director as well as other corporate of- ficials urging that serious consideration be given to la- belling Kaylo products since "the amounts requested by claimants are usually sizeable." App. at
1 F.3d 1371, *1376; 1993 U.S. App. LEXIS 19482, **8;
28 V.I. 467; CCH Prod. Liab. Rep. P13,543
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*1376 2229. Dr. Edwards reiterated this suggestion in a memorandum dated August 6, 1966 in which he also acknowledged that "it is impossible to guess the amount of dust created by the cutting, sawing, etc. of Kaylo. There are **9 too many local factors involved." App. at
2230-31. Although OCF claimed that by December 1966 it had placed warning labels on its products, n2 see App. at 1230, Dunn testified that he did not see warning labels on any of the cartons holding Kaylo that he observed in the Virgin Islands. App. at 870, 873. This testimony was echoed by McComely Bully, one of Dunn's co-workers at HOVIC. See App. at 623-34, 645. OCF did not offer the testimony of any HOVIC worker to the contrary.
n2 In a memorandum dated December 19, 1966, it was stated that a warning label should be "shown on all cartons in which we deliver Kaylo products." App. at 2236.
Dr. Egilman testified about the medical literature available at the time concerning the potential harm of ex- posure to asbestos dust. He noted that in the 1930s medical literature questioned the health effects of exposure to as- bestos by insulators, particularly if the dust could be seen. App. at 167-71. In 1947 the confidential Hemeon Report was issued to the Asbestos Textile Institute, **10 of which OCF has never been a member. This report ques- tioned whether the then-generally acknowledged TLV for levels of exposure to asbestos provided "complete assur- ances" of "thorough safety." App. at 2181. Finally, Dr. Egilman testified about a 1949 article in the Journal of the American Medical Association which recognized that asbestos workers were at risk of developing cancer. App. at 233. In his opinion, that article "established that the general medical community was aware of the fact that asbestos caused cancer." App. at 233.
In light of this evidence, we agree with the recent conclusion of the Virginia Supreme Court that
the jury may have concluded . . . that Owens- Corning knew that inhalation of dust from its Kaylo product could cause lung disease in humans, that it actively concealed this dan- ger, and it did not warn insulators of this hazard . . . .
Owens-Corning Fiberglas Corp. v. Watson, 243 Va. 128,
413 S.E.2d 630, 642 (Va. 1992). The jury could reasonably have found that OCF acted with "reckless indifference to
the rights of others" in this case, Restatement (Second) of Torts § 908(2) (1977), and thus, the district court appropri- ately denied **11 OCF's motion for JNOV and did not abuse its discretion in refusing to grant unconditionally the motion for a new trial.
II.
DUNN'S CLOSING ARGUMENT
OCF claims that it was denied a fair trial on the issue of punitive damages because of several remarks made by Dunn's counsel during closing arguments to the jury. Specifically, OCF argues that the following remarks or actions were improper: (1) the argument that the jury should return a large punitive award to force OCF to stop defending asbestos cases, see App. at 1761; (2) the sug- gestion by Dunn's counsel that counsel for OCF lied to the jury, n3 see App. at 1755; (3) the argument that the jury should award punitive damages as a reward to Dunn for bringing this lawsuit, see App. at 1756; (4) the request that the jury draw an analogy to the criminal fine imposed on Michael Milken earlier that week, see App. at 1758-
59; and (5) the appeal to the jury's local prejudice against
"this big multi-national company." n4 See App. at 1762.
n3 Specifically, Dunn's counsel stated: Unfortunately, ladies and gentlemen, you have heard a story here in this courtroom the last two weeks of cor- porate manipulation, of corporate sup- pression, and a word that I hate to use, of corporate lies.
But, what's so bad about that is just not things that occur over the last 40 or
50 years. But, it's even occurred in this courtroom. It's occurred in this court- room.
App. at 1755.
**12
n4 Specifically, Dunn's counsel argued:
"You've got to have courage to tell this big multi- national company, that it's not going to come into the Virgin Islands and hurt people and lie about it." App. at 1762.
1 F.3d 1371, *1377; 1993 U.S. App. LEXIS 19482, **12;
28 V.I. 467; CCH Prod. Liab. Rep. P13,543
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*1377 At the outset, we note that there are aspects of the plaintiff's closing argument that we believe crossed the line between acceptable advocacy and imprudent zeal. However, our disapproval of portions of the closing is not enough to warrant reversal on that ground. We note that OCF failed to make a timely objection with respect to the statements referred to in (1), (3) n5 and (5) n6 above, and thus has waived its challenge to these statements on appeal. See Woods v. Burlington N. R.R., 768 F.2d 1287,
1292 (11th Cir. 1985) (per curiam) (when party fails to object to improper closing argument, court of appeals only "retains the authority to review for plain error , the exercise of which is seldom justified in reviewing argu- ment of counsel in a civil case"), rev'd on other grounds,
480 U.S. 1, 94 L. Ed. 2d 1, 107 S. Ct. 967 (1987); Hyman v. Life Ins. Co., 481 F.2d 441, 444 (5th Cir. 1973) **13
(same); see also DeRance, Inc. v. PaineWebber, Inc., 872
F.2d 1312, 1326 (7th Cir. 1989) (motion for mistrial on grounds of improper closing argument did not preserve issue for appeal when motion lacked requisite specificity).
n5 Comment e to the Restatement (Second) of Torts § 908 (1977), which discusses punitive dam- ages, states in relevant part: "Included in the harm to the plaintiff may be considered the fact that the plaintiff has been put to trouble and expense in the protection of his interests, as by legal proceedings in this or in other suits." Thus, arguably statement
(3) was not, in itself, inappropriate.
n6 In Herman v. Hess Oil Virgin Islands Corp.,
524 F.2d 767, 772 (3d Cir. 1975), we concluded that a similar remark made in plaintiff's closing argument on punitive damages was not "so preju- dicial . . . as to constitute reversible error in the absence of any objection or request for a caution- ary instruction." We also noted that "it is proper to assess punitive damages as a deterrent and an example to the community." Id. (emphasis added).
**14
Although OCF did preserve its claims with respect to points (2) and (4), n7 in general " HN3 the trial judge is in a better position than an appellate court to determine whether remarks of counsel are prejudicial," Herman v. Hess Oil Virgin Islands Corp., 524 F.2d 767, 772 (3d Cir.
1975), and "at least for civil trials, . . . improper com- ments during closing arguments rarely rise to the level of reversible error." Littlefield v. McGuffey, 954 F.2d 1337,
1346 (7th Cir. 1992) (internal quotation omitted); see
Lewis v. Penn Cent. Co., 459 F.2d 468, 470 (3d Cir. 1972),
(trial judge has broad discretion in determining whether counsel's closing remarks were proper).
n7 During Dunn's closing argument, counsel for OCF objected to the analogy to Michael Milken and asked for a curative instruction, which the court declined to give. See App. at 1758-59. In addition, directly following Dunn's closing arguments, coun- sel for OCF moved for a mistrial, specifically ob- jecting to Dunn's argument that "we came in here and lied." App. at 1763.
**15
Here, the district court concluded that the remarks about corporate lies "are not improper in a summation regarding punitive damages," Dunn, 774 F. Supp. at 929,
949, relying on the trial court's statement in Herman that
"in attempting to convince a jury that a defendant's con- duct was outrageous and should be punished, an advocate must go beyond the kind of argument necessary to es- tablish ordinary negligence." 379 F. Supp. 1268, 1276
(D.V.I. 1974) (footnote omitted), aff'd, 524 F.2d 767 (3d
Cir. 1975); see also Arnold v. Eastern Air Lines, Inc.,
681 F.2d 186, 197-98 (4th Cir. 1982) (permissible range in punitive damage arguments is wide and inescapably volatile), cert. denied, 460 U.S. 1102 (1983), rev'd in part on other grounds, 712 F.2d 899 (4th Cir. 1983) (in banc), cert. denied, 464 U.S. 1040 (1984).
OCF relies on Draper v. Airco, Inc., 580 F.2d 91
(3d Cir. 1978), to support its claim that Dunn's reference to "corporate lies" constituted **16 reversible error. However, that case is distinguishable. In Draper,
counsel for the plaintiff . . . committed the following improprieties: (1) he attempted to prejudice the jurors through repeated inappropriate references to the defendants' wealth; (2) he asserted his personal opinion of the justness of his client's cause; (3) he prejudicially referred to facts not in evidence; and (4) without provocation or basis in fact, he made several prejudicial, vituperative and insulting references to opposing counsel.
1 F.3d 1371, *1378; 1993 U.S. App. LEXIS 19482, **16;
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*1378 Id. at 95. n8 The remarks of Dunn's counsel, while arguably intemperate, did not approach the un- professional and prejudicial conduct of the attorney in Draper; the reference to lies told in the courtroom hardly qualifies as a "vituperative and insulting" reference to counsel for OCF. When read in context, Dunn's counsel's argument regarding "corporate lies" referred to statements made by OCF and its witnesses, not its attorneys.
n8 We note that references to the defendant's wealth are not, in themselves, inappropriate in a closing argument on the issue of punitive damages. See Restatement (Second) of Torts § 908(2) (1977); Herman, 524 F.2d at 772 ("the wealth of the defen- dant is a factor which may properly be considered by the trier of fact in assessing punitive damages").
**17
Our review of Dunn's closing argument reveals that his counsel referred to Milken to stress the point that OCF as a wrongdoer should be punished. Punishment is one of the goals of punitive damages. See Restatement (Second) of Torts § 908 cmt. a (1977). The district court was in the best position to assess any potential prejudicial impact of this reference. In light of the evidence presented as to OCF's conduct and the closing argument as a whole, we cannot conclude that the district court abused its discre- tion in not providing a curative instruction or in declining to order a mistrial.
III.
JURY CHARGE
OCF claims that the jury charge was defective both under Virgin Islands law and the federal constitution for failing adequately to explain how to determine the amount of the punitive damages.
A. Virgin Islands Law
OCF argues that the court's instruction was inadequate un- der Virgin Islands law because it did not inform the jury of the relevance of plaintiff's actual injuries in calculat- ing punitive damages. We need not decide whether Virgin Islands law requires such an instruction, n9 because OCF failed to make a timely and specific objection challeng- ing the charge **18 as erroneous under Virgin Islands law. Thus, this issue was not properly preserved for ap- peal under Federal Rule of Civil Procedure 51. n10 See Don Kemper Co. v. Beneficial Standard Life Ins. Co., 425
F.2d 221, 222 & n.4 (3d Cir. 1970); Bogacki v. American
Mach. & Foundry Co., 417 F.2d 400, 407 (3d Cir. 1969).
n9 Neither the language of the Restatement and the accompanying comments nor prior case law supports the proposition that punitive damages must be related to actual injuries. See Restatement
(Second) of Torts § 908(2) (1977) ("trier of fact can properly consider . . . the nature and extent of the harm to the plaintiff") (emphasis added); id. §
908(2) cmt. c (while "the extent of the harm may be considered in determining their amount, it is not essential to the recovery of punitive damages that the plaintiff should have suffered any harm, either pecuniary or physical") (emphasis added); Hospital Auth. v. Jones, 261 Ga. 613, 409 S.E.2d
501, 503 (Ga. 1991) (rejecting "notion that puni- tive damages must necessarily bear some relation- ship to the actual damages awarded by the jury"), cert. denied, 117 L. Ed. 2d 420, 112 S. Ct. 1175
(1992); Kirkbride v. Lisbon Contractors, Inc., 521
Pa. 97, 555 A.2d 800, 803-04 (Pa. 1989) (punitive damages need not bear reasonable relationship to compensatory damages under Restatement § 908; remittitur always available to reduce awards that shock the conscience).
**19
n10 This Rule states in pertinent part: No party may assign as error the giv- ing or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection.
Fed. R. Civ. P. 51 (emphasis added).
OCF's only suggestion that "the amount of punitive damages must bear a reasonable relationship to the actual damages suffered by the plaintiff" appeared in a proffered supplemental jury instruction, App. at 1497, which the district court did not consider because it was tendered after the cut-off for submitting instructions. See App. at
1592-94, 1605. In addition, despite being specifically in- formed by the district court at the time it proffered the sup- plemental instruction that "after the charge to the jury, you'll have a chance to make any exceptions you want to the charge," App. at 1594, OCF nevertheless failed to challenge the charge as deficient under Virgin Islands law after the charge was given. OCF's post-charge objections were limited to constitutional grounds, **20
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28 V.I. 467; CCH Prod. Liab. Rep. P13,543
Page 8
*1379 see App. at 1778, 1779, 1783, and the district court responded to OCF's objection on those grounds only. See App. at 1781, 1783; see also Hoffman v. Sterling Drug, Inc., 485 F.2d 132, 139 n.22 (3d Cir. 1973) (re- jecting under Rule 51 appeal where defendant objected to charge on one ground but sought to appeal on another).
As we have noted in the past, the purpose of Rule
51 is to "'afford the trial judge an opportunity to correct the error in her charge before the jury retires to consider its verdict' and to lessen the burden on appellate courts by diminishing the number of rulings at the trial which they may be called on to review." McAdam v. Dean Witter Reynolds, Inc., 896 F.2d 750, 769 n.29 (3d Cir. 1990)
(quoting Porter v. American Export Lines, Inc., 387 F.2d
409, 412 (3d Cir. 1968)). In this case, a curative instruction could have remedied any infirmity in the charge. OCF's failure to make a specific objection to the court's instruc- tion under Virgin Islands law subverted the purpose of Rule 51, n11 and we thus decline to review OCF's objec- tions to the charge on that ground. **21 See United States v. Logan, 717 F.2d 84, 91 (3d Cir. 1983) (absent objection, charge reviewed for plain error only); Trent v. Atlantic City Elec. Co., 334 F.2d 847, 859 (3d Cir. 1964)
(same).
n11 In Levinson v. Prentice-Hall, Inc., 868 F.2d
558, 564 (3d Cir. 1989), on which OCF relies, we found that the defendant had preserved its objection in accordance with Rule 51.
B. Constitutional Law
OCF also argues that the charge was constitutionally in- firm. It complains of the trial court's alleged (1) inadequate instruction on the dual goals of punitive damages; (2) fail- ure to instruct the jury that it must take into consideration the character and degree of the wrong as shown by the evidence; and (3) inadequate post-trial review.
Before turning to the merits of OCF's constitutional challenge, we conclude that OCF failed to preserve the objection in (2) above under Rule 51. Following the jury charge, OCF objected that it was **22 "unconstitution- ally uninformed" because "it does not provide standards for the jury upon which to base an award of punitive dam- ages." App. at 1778. This general objection alone was not
specific enough to inform the court how to provide clearer standards.
OCF's proposed jury instruction did not contain lan- guage requiring the jury to consider the character and degree of the wrong to the plaintiff, see App. at 1636-38, and it never objected on that ground. The only objection we can find that remotely resembles the point now urged on appeal stems from OCF's suggestion that the amount of punitive damages must bear a reasonable relationship to the amount of compensatory damages. See App. at 1783. This objection did not adequately put the court on notice of the issue OCF now raises.
As the Court of Appeals for the Eighth Circuit recently stated in a similar case:
Although defendant made a general objec- tion that the court's instructions on punitive damages violated the fourteenth amendment,
its requested instruction did not elaborate any further on the standard for setting the amount of punitive damages. While we rec- ognize that a party need not tender specific language if **23 it has otherwise objected to an inadequacy in an instruction, we be- lieve the overall record here shows that de- fendant did not comply with Fed. R. Civ. P. 51 by bringing to the court's attention the need for the jury to consider the nature and degree of the wrong.
Robertson Oil Co. v. Phillips Petroleum Co., 930 F.2d
1342, 1347 (8th Cir. 1991) (footnote and citation omit- ted); see also McCleary v. Armstrong World Indus., Inc.,
913 F.2d 257, 260 (5th Cir. 1990). These words apply with equal force in this case, and thus we decline to review this point on appeal.
Turning to the remainder of OCF's constitutional ob- jections to the charge, we look first to Pacific Mutual Life Insurance Co. v. Haslip, 499 U.S. 1, 111 S. Ct. 1032, 113
L. Ed. 2d 1 (1991), where the Supreme Court held that the common-law method for assessing punitive damages is not so inherently unfair as to deny due process and be per se unconstitutional. 111 S. Ct. at 1043. The Court described the three-tier common-law
1 F.3d 1371, *1380; 1993 U.S. App. LEXIS 19482, **23;
28 V.I. 467; CCH Prod. Liab. Rep. P13,543
Page 9
*1380 method for assessing punitive damages as fol- lows:
Under the traditional common-law ap- proach, the amount of **24 the punitive damage award is initially determined by a jury instructed to consider the gravity of the wrong and the need to deter similar wrongful conduct. The jury's determination is then re- viewed by trial and appellate courts to ensure that it is reasonable.
Id. at 1042.
In its most recent pronouncement on punitive dam- ages, TXO Production Corp. v. Alliance Resources Corp., No. 92-479, 125 L. Ed. 2d 366, 61 U.S.L.W. 4766, 113
S. Ct. 2711 (filed June 25, 1993), the Court rejected the claim that "a $10 million punitive damages award -- an award 526 times greater than the actual damages awarded by the jury -- is so excessive that it must be deemed an arbitrary deprivation of property without due process of law." 61 U.S.L.W. at 4768-69 (plurality opinion). As we interpret TXO, a plurality of the Court substantially ad- hered to the due process formulation first articulated in Haslip. Justices Scalia and Thomas, who concurred in the judgment, rejected the plurality's position that there ex- ists "a substantive due process right that punitive damages be reasonable," 61 U.S.L.W. at 4773, and Justice Kennedy
**25 stated that the Constitution "does not concern itself with dollar amounts, ratios, or the quirks of juries in spe- cific jurisdictions." Id. at 4772 (Kennedy, J., concurring in part and concurring in the judgment). Absent further guidance from the Court, we will rely on Haslip's major- ity opinion in assessing OCF's due process challenge in this case. We note, however, that two of the concurring Justices characterized the procedures approved in TXO as "far less detailed and restrictive than those upheld in Haslip." Id. at 4774 (Scalia, J., with Thomas, J. concurring in the judgment).
In its analysis of the constitutionality of the puni- tive damages award in Haslip of more than $800,000, the Court eschewed drawing "a mathematical bright line between the constitutionally acceptable and the constitu- tionally unacceptable that would fit every case." 111 S. Ct. at 1043. The Court noted, however, that "general con- cerns of reasonableness and adequate guidance from the court when the case is tried to a jury properly enter into the constitutional calculus." Id.
The Court looked first to the jury instruction and con- cluded **26 that although it gave the jury "significant discretion," the instruction nonetheless "enlightened the jury as to the punitive damages' nature and purpose, iden- tified the damages as punishment for civil wrongdoing of the kind involved, and explained that their imposition was not compulsory." Id. at 1044. Although the district court's jury instruction in this case was not a word-for--word du- plication of the charge in Haslip, it contained all of the elements identified by the Court in Haslip. The instruc- tion adequately conveyed that punitive damages are to punish the defendant and deter it and others from similar conduct in the future. See App. at 1777-78 ("it should be an award which stings i.e., punishes the defendant and will act as a deterrent to such conduct by the defendant in the future and a warning to others"). The district court also told the jury that it was not required to award puni- tive damages, and that such damages are "allowed only for wanton and reckless behavior . . . where defendant's conduct was outrageous because done with an evil motive or done with reckless indifference to the rights of others." App. at 1776.
Other courts of appeals have approved **27 similar jury charges as providing due process under Haslip. See Glasscock v. Armstrong Cork Co., 946 F.2d 1085, 1097
(5th Cir. 1991), cert. denied, 118 L. Ed. 2d 435, 112 S. Ct. 1778 (1992); American Employers Ins. v. Southern Seeding Servs., Inc., 931 F.2d 1453, 1457-58 (11th Cir.
1991). But see Mattison v. Dallas Carrier Corp., 947 F.2d
95, 105-06 (4th Cir. 1991). While we acknowledge that the district court could have given the jury more guidance on the issue of punitive damages, n12 we cannot conclude that the charge was constitutionally defective.
n12 Under the Restatement, HN4 in deter- mining the amount of punitive damages, the trier of fact can consider such factors as (1) the act itself, including the motives of the wrongdoer, the rela- tions between the parties, and provocation or want of provocation; (2) the extent of harm to the injured person, including the expense to which plaintiff has been put in bringing a lawsuit; (3) the wealth of the defendant; and (4) the existence of multiple claims. Restatement (Second) of Torts § 908 cmt. e (1977).
**28
1 F.3d 1371, *1381; 1993 U.S. App. LEXIS 19482, **28;
28 V.I. 467; CCH Prod. Liab. Rep. P13,543
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*1381 The second inquiry made by the Court in Haslip was whether the post-trial procedures ensure "meaning- ful and adequate review by the trial court whenever a jury has fixed the punitive damages." 111 S. Ct. at 1044. Of course, if a charge is fatally defective, it will not be cured by post-trial review. We have found no fatal defect. Nonetheless, the scope of both trial court and appellate review were significant features in the Court's approval of the Haslip jury's punitive damage award, and thus we consider those applicable here.
In Haslip, the Court noted that under the applicable Alabama precedent, the factors a trial court considers in scrutinizing a jury verdict for excessiveness of the dam- ages are "the 'culpability of the defendant's conduct,' the
'desirability of discouraging others from similar conduct,' the 'impact upon the parties,' and 'other factors, such as the impact on innocent third parties.'" 111 S. Ct. at 1044
(quoting Hammond v. City of Gadsden, 493 So. 2d 1374,
1379 (Ala. 1986)).
Under federal law as well, HN5 a district court re- views damages awards for excessiveness. See **29 Kazan v. Wolinski, 721 F.2d 911, 914 (3d Cir. 1983) (re- mittitur available only when "so large as to shock the conscience of the court"). The district court in this case ap- propriately applied this standard, see Dunn, 774 F. Supp. at 950, and indeed ordered a remittitur and provided rea- sons for that decision. OCF complains that the trial court did not review the jury award de novo, but only gave it substantial deference. The court stated that it would "'re- mit the portion of the verdict in excess of the maximum amount supportable by the evidence.'" Id. (quoting Kazan,
721 F.2d at 914). Nothing in Haslip requires more.
The Court's decision in TXO provides further support for our conclusion that the district court's review of the jury verdict in this case satisfied due process. In that case, the Court rejected a due process challenge based on the alleged inadequacy of the trial judge's review of the puni- tive damages award, even though the trial court failed to provide reasons for its denial of the petitioner's JNOV and
remittitur motions. See 61 U.S.L.W. at 4772. **30 n13 n13 The Court did state that "it is always help- ful for trial judges to explain the basis for their rulings as thoroughly as is consistent with the ef- ficient despatch of their duties." TXO, 61 U.S.L.W. at 4772. We emphasize for the trial judges in this circuit the importance this court places on reasoned explanations of discretionary decisions. See United States v. Criden, 648 F.2d 814, 819 (3d Cir. 1981)
("Articulation of the reasons for the decision tends to provide a firm base for an appellate judgment that discretion was soundly exercised.").
We recognize that in Mattison v. Dallas Carrier Corp.,
947 F.2d 95 (4th Cir. 1991), the court held that the proce- dure applied under South Carolina law to punitive dam- ages awards did not provide due process, and that Virgin Islands procedure is similar in that neither jurisdiction mandates a set of criteria a jury must consider when cal- culating punitive damages. We are unpersuaded **31 by Mattison. Instead, we agree with the holding in Glasscock,
946 F.2d at 1098-99, a diversity case involving Texas law, that federal post-trial review under Rules 50 and 59 and federal appellate review of a jury award provide sufficient constraint on a jury's discretion to satisfy the requirements of due process. See also Eichenseer v. Reserve Life Ins. Co., 934 F.2d 1377, 1380-86 (5th Cir. 1991) (same, in diversity case applying Missouri law).
Although the court in Mattison concluded that the standards for calculating punitive damages awards were unconstitutionally vague, relying on Giaccio v. Pennsylvania, 382 U.S. 399, 15 L. Ed. 2d 447, 86 S. Ct.
518 (1966), see Mattison, 947 F.2d at 102-03, this pre- cise argument was rejected by the Court in Haslip, which distinguished Giaccio on the ground that it concerned the imposition of liability rather than the jury's discretion in fixing the amount of damages or costs. 111 S. Ct. at 1046 n.12.
1 F.3d 1371, *1382; 1993 U.S. App. LEXIS 19482, **31;
28 V.I. 467; CCH Prod. Liab. Rep. P13,543
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*1382 Furthermore, we deem it significant that under Virgin Islands law (as under South Carolina law) a plain- tiff must **32 establish liability for punitive damages by clear and convincing evidence, a higher burden than under the Alabama scheme upheld in Haslip, which only required proof by a preponderance of the evidence. See id. at 1046 n.11 (specifically declining to hold that due process required a greater standard of proof).
Finally, we underscore the "fact intensive nature of the due process analysis articulated in Haslip." Eichenseer,
934 F.2d at 1386; see also TXO, 61 U.S.L.W. at 4770
(" Punitive damages awards are the product of numer- ous, and sometimes intangible, factors; a jury imposing a punitive damages award must make a qualitative assess- ment based on a host of facts and circumstances unique to the particular case before it.") (plurality opinion).
In this case, after the district court reviewed the record and determined that the evidence supported a finding of willfulness and wantonness on OCF's part, see Dunn, 774
F. Supp. at 948-49, it considered OCF's net worth, the relationship between the size of the compensatory award and its remitted punitive damages **33 award, n14 and the size of such awards in other cases in determining that remittitur was appropriate. See id. at 951. This indepen- dent review led the court to conclude that a $2 million dollar award would both act as an adequate punishment and deterrent. n15 These factors considered in post-trial review were approvingly referred to in Haslip, and serve as an effective counterpoint to the wide discretion given the jury. n16
n14 Specifically, the district court concluded that $2 million was an appropriate amount to offer in remittitur as "this sum is rationally related to the
$500,000 in compensatory damages without hav- ing exceeded the multiple of four constitutionally permitted by the Supreme Court in Haslip." Dunn,
774 F. Supp. at 951 (citation omitted). In Haslip the Court found the punitive damages award in that case to be reasonable even though it exceeded the compensatory award by four times because "it did not cross the line into the area of constitutional impropriety." 111 S. Ct. at 1046. See also TXO, 61
U.S.L.W. at 4771 (indicating that a 10-to--1 ratio be- tween punitive damages awarded and the potential harm of defendant's conduct would be constitution- ally permissible) (plurality opinion).
**34
n15 We recommend that in the future district courts explicitly assess the amount of a punitive damages award in light of the factors set out in
comment e of Restatement § 908. See supra note
12.
n16 In Haslip, the Court listed the factors con- sidered under Alabama law in post-trial and appel- late review:
(a) whether there is a reasonable re- lationship between the punitive dam- ages award and the harm likely to re- sult from the defendant's conduct as well as the harm that actually has oc- curred; (b) the degree of reprehensibil- ity of the defendant's conduct, the du- ration of that conduct, the defendant's awareness, any concealment, and the existence and frequency of similar past conduct; (c) the profitability to the de- fendant of the wrongful conduct and the desirability of removing that profit and of having the defendant also sus- tain a loss; (d) the "financial position" of the defendant; (e) all the costs of litigation; (f) the imposition of crimi- nal sanctions on the defendant for its conduct, these to be taken in mitiga- tion; and (g) the existence of other civil awards against the defendant for the same conduct, these also to be taken in mitigation.
111 S. Ct. at 1045. In addition, the Alabama Supreme Court conducts a comparative analysis. Id.
In satisfying itself of the reckless character of OCF's conduct, examining OCF's net worth, and considering the relationship between the size of the compensatory and punitive awards, the district court found evidence to support three of the fac- tors listed above (i.e., factors (a), (b), and (d)). It also conducted a comparative analysis. This review was enough to support the award of punitive dam- ages in this case. See Eichenseer, 934 F.2d at 1382-
84 (evidence in record sufficient to satisfy three of seven Haslip factors, and thus "the record in this case provides sufficient support for the award of punitive damages").
**35
The third check referred to by the Haslip Court on the jury's or trial court's discretion was the Alabama Supreme Court's review of punitive awards. We will perform an
1 F.3d 1371, *1382; 1993 U.S. App. LEXIS 19482, **35;
28 V.I. 467; CCH Prod. Liab. Rep. P13,543
Page 12
analogous function in the next section. The Constitution requires no more.
IV.
EXCESSIVENESS OF THE PUNITIVE
DAMAGES AWARDED
OCF's remaining contentions are directed to the allegedly excessive amount of
1 F.3d 1371, *1383; 1993 U.S. App. LEXIS 19482, **35;
28 V.I. 467; CCH Prod. Liab. Rep. P13,543
Page 13
*1383 punitive damages awarded. OCF first argues that the jury award was the result of passion, prejudice, or bias, and that the district court should have ordered a new trial unconditionally rather than conditioning the grant of a new trial on Dunn's acceptance of a remitted damages award. Of course, if OCF had shown that the jury ver- dict resulted from passion or prejudice, a new trial, rather than a remittitur, would have been the proper remedy. See Mason v. Texaco, Inc., 948 F.2d 1546, 1561 (10th Cir.
1991), cert. denied, 118 L. Ed. 2d 547, 112 S. Ct. 1941
(1992); Westbrook v. General Tire & Rubber Co., 754 F.2d
1233, 1241 (5th Cir. 1985); Brown v. McBro Planning & Dev. Co., 660 F. Supp. 1333, 1337 (D.V.I. 1987); **36 Schreffler v. Board of Educ., 506 F. Supp. 1300, 1308 (D. Del. 1981); see also 6A James Wm. Moore et al., Moore's Federal Practice P 59.08 7 , at 197-98 (2d ed. 1992). However, we do not accept OCF's argument that in this case the size of the award alone was enough to prove prejudice and passion. Even if there were some level of award that would in itself evidence prejudice and passion, see Wells v. Dallas Indep. Sch. Dist., 793 F.2d 679, 684
(5th Cir. 1986), we cannot hold that the $25 million award here, albeit large, necessarily indicates a verdict tainted by prejudice and passion in light of the evidence before the jury concerning OCF's knowledge of the health hazards associated with asbestos, OCF's net after-tax earnings for the three years prior to trial which averaged almost
$200 million, and OCF's net worth of approximately $2.2
billion. App. at 1743.
In Cash v. Beltmann North American Co., 900 F.2d
109, 111 n.3 (7th Cir. 1990), the court, after reviewing several punitive damage awards cases, concluded that "a typical ratio for a punitive damages award to a defendant's
**37 net worth may be around one percent." In this case, the jury's $25 million award (approximately 1% of OCF's
$2.2 billion net worth) certainly fell within this range. See also Gregg v. U.S. Indus., Inc., 887 F.2d 1462, 1477 (11th Cir. 1989) (approving $2 million punitive damages award which represented ".4% of defendant's net worth of $520 million"); Burke v. Deere & Co., 780 F. Supp. 1225, 1238
(S.D. Iowa 1991) (remitting $50 million punitive damages
award to $28 million, approximately 1% of defendant's
$2.8 billion net worth).
A multi-million dollar punitive damages award is not unique in products liability cases. See, e.g., Glasscock v. Armstrong Cork Co., 946 F.2d 1085 (5th Cir. 1991) ($
6.1 million in asbestos case); O'Gilvie v. International Playtex, Inc., 821 F.2d 1438 (10th Cir. 1987) ($ 10 mil- lion in toxic shock syndrome case), cert. denied, 486 U.S.
1032, 100 L. Ed. 2d 601, 108 S. Ct. 2014 (1988); Cathey v. Johns-Manville Sales Corp., 776 F.2d 1565 (6th Cir.
1985) ($ 1.5 million in asbestos case), cert. denied **38
, 478 U.S. 1021, 92 L. Ed. 2d 740, 106 S. Ct. 3335 (1986); Kociemba v. G.D. Searle & Co., 707 F. Supp. 1517 (D. Minn. 1989) ($ 7 million in I.U.D. case); Palmer v. A.H. Robins Co., 684 P.2d 187 (Colo. 1984) ($ 6.2 million in Dalkon Shield case).
If an excessive jury determination were per se proof of passion, prejudice, or bias, there would have been no reason for the Supreme Court to have said in Haslip that
"the Alabama Supreme Court's post-verdict review en- sures that punitive damages awards are not grossly out of proportion to the severity of the offense and have some understandable relationship to compensatory damages."
111 S. Ct. at 1045. We have held that " HN6 where no clear judicial error or 'pernicious influence' can be iden- tified but where the verdict is so large as to shock the conscience of the court," the appropriate action for the court is to "order plaintiff to remit the portion of the verdict in excess of the maximum amount supportable by the evidence or, if the remittitur is refused, to submit to a new trial." Kazan v. Wolinski, 721 F.2d 911, 914 (3d Cir.
1983). **39
Many courts have sustained or ordered remittiturs in- volving reductions to jury punitive damage awards com- parable to that ordered here, thereby implicitly rejecting the argument that an excessive jury award in itself is a basis for a new trial. See, e.g., Grimshaw v. Ford Motor Co., 119 Cal. App. 3d 757, 818-19, 174 Cal. Rptr. 348
(1981) ($ 125 million to $3.5 million; more than 30 to
1 ratio); State Farm Mut. Auto. Ins. Co. v. Zubiate, 808
S.W.2d 590, 605-06 (Tex. Ct.
1 F.3d 1371, *1384; 1993 U.S. App. LEXIS 19482, **39;
28 V.I. 467; CCH Prod. Liab. Rep. P13,543
Page 14
*1384 App. 1991) ($ 15 million to $660,000; more than
20 to 1); West v. Johnson & Johnson Prods., Inc., 174
Cal. App. 3d 831, 871-72, 220 Cal. Rptr. 437 (1985) ($
10 million to $1 million; 10 to 1), cert. denied, 479 U.S.
824, 93 L. Ed. 2d 47, 107 S. Ct. 96 (1986); Gregg v. U.S. Indus., Inc., 887 F.2d 1462, 1477 (11th Cir. 1989) ($ 18.5 to $2 million; more than 9 to 1); Republic Ins. Co. v. Hires, 107 Nev. 317, 810 P.2d 790, 792-93 (Nev. 1991)
($ 22.5 million to $5 million; more than 4 to 1); Hodder v. Goodyear Tire & Rubber Co., 426 N.W.2d 826, 836-37
(Minn. 1988) ($ 12.5 million **40 to $4 million; more than 3 to 1), cert. denied, 492 U.S. 926, 106 L. Ed. 2d
610, 109 S. Ct. 3265 (1989); Mason, 948 F.2d at 1561 ($
25 million to $12.5 million; 2 to 1).
In Acosta v. Honda Motor Co., in considering the is- sue of punitive damages awards against a manufacturer of a harmful product, we noted that "a jury might decide that a defendant's financial position, as a result of other awards of punitive damages for the same conduct, is so precari- ous that a sizeable award of punitive damages would be inappropriate." 717 F.2d 828, 839 n.17 (3d Cir. 1983). In this case, OCF made the strategic decision not to intro- duce into evidence before the jury information concerning other punitive damages awards assessed against it. Had it done so, the jury might have made a smaller award. We thus conclude that OCF has failed to prove that the jury's verdict, admittedly quite large, reflected such passion and prejudice as to mandate a new trial.
OCF contends that when the trial court calculated its remitted punitive damages award, it refused to consider OCF's submission regarding other awards against it be- cause the court believed that **41 evidence should have been presented to the jury. There is nothing in the district court's opinion that supports OCF's contention.
Nor does OCF point to anything in the record to sup- port its contention that the trial court set the remitted damages figure by taking into account OCF's conduct to- ward persons other than Dunn. Recently, several courts have rejected due process challenges by asbestos man- ufacturers, concluding in each case that "the evidence demonstrated that the punitive damage awards were only
for the harm inflicted upon the specific plaintiffs. . . ."
in each case. Owens-Illinois v. Armstrong, 87 Md. App.
699, 591 A.2d 544, 557 (Md. Ct. Spec. App. 1991), aff'd in part & rev'd in part, 326 Md. 107, 604 A.2d 47 (Md.), cert. denied, 113 S. Ct. 204 (1992); see also King v. Armstrong World Indus., Inc., 906 F.2d 1022, 1030 (5th Cir. 1990), cert. denied, 114 L. Ed. 2d 478, 111 S. Ct. 2236 (1991); Simpson v. Pittsburgh Corning Corp., 901 F.2d 277, 281
(2d Cir.), cert. dismissed, 497 U.S. 1057 (1990); Man v. Raymark Indus., 728 F. Supp. 1461, 1466 (D. Haw.
1989); **42 Eagle-Picher Indus., Inc. v. Balbos, 326
Md. 179, 604 A.2d 445, 472 (Md. 1992). In fact, in this case the district court explicitly referred to the amount of the compensatory damages awarded to Dunn when it calculated the amount of the remitted punitive dam- ages award, thus demonstrating that the punitive damages award was intended to represent punishment for OCF's conduct with respect to Dunn. The district court's charge that the jury only award punitive damages if "plaintiff has clearly and convincingly established that the action of de- fendant which caused injury to the plaintiff was wanton and reckless," App. at 1776 (emphasis added), further re- veals the court's awareness that punitive damages were to be assessed only with respect to the harm OCF caused Dunn.
OCF argues that its "negative net worth" militates against a large punitive damages award. The ability to pay, as will be developed below, is a relevant factor in assessing punitive damages awards, but OCF is not well- situated to raise this issue. As Dunn's expert witness tes- tified, OCF's large indebtedness was incurred to ward off a take-over attempt in 1986, App. at 1740-41, and it thus obscures the **43 company's true value. The expert estimated OCF's value at the time of trial to be around
$2.2 billion, App. at 1743, basing this figure on OCF's annual average after-tax earnings of approximately $200 million for each of the three years prior to trial. Thus, the
$2 million award fixed by the trial court was well within OCF's ability to pay, and in itself would not require the further remittitur sought by OCF.
1 F.3d 1371, *1385; 1993 U.S. App. LEXIS 19482, **43;
28 V.I. 467; CCH Prod. Liab. Rep. P13,543
Page 15
*1385 We turn next to our role in the assessment of punitive damages. HN7 We cannot leave the amount of punitive damages solely to the trial court because it is evident to us that the Supreme Court in Haslip approved review by an appellate court to "determine whether a particular award is greater than reasonably necessary to punish and deter." 111 S. Ct. at 1046. The principal is- sue impelling us to take this otherwise routine product liability case in banc is the effect of successive punitive damages awards in mass tort cases arising from the same course of conduct. We, as well as other courts, have ex- pressed concerns in that regard. See In re School Asbestos Litig., 789 F.2d 996, 1005 (3d Cir.) ("powerful arguments have been **44 made that, as a matter of constitutional law or of substantive tort law, the courts shoulder some responsibility for preventing repeated awards of punitive damages for the same acts or series of acts"), cert. de- nied, 479 U.S. 852, 93 L. Ed. 2d 117, 107 S. Ct. 182, and cert. denied, 479 U.S. 915, 93 L. Ed. 2d 291, 107 S. Ct.
318 (1986); Roginsky v. Richardson-Merrell, Inc., 378
F.2d 832, 838-42 (2d Cir. 1967); see also In re Federal Skywalk Cases, 680 F.2d 1175, 1188 (8th Cir.) (Heaney, J., dissenting), cert. denied, 459 U.S. 988 (1982); Juzwin v. Amtorg Trading Corp., 705 F. Supp. 1053, 1056 (D.N.J.), as modified, 718 F. Supp. 1233, 1235 (D.N.J. 1989); In re
"Agent Orange" Prod. Liab. Litig., 100 F.R.D. 718, 728
(E.D.N.Y. 1983), mandamus denied, 725 F.2d 858 (2d
Cir.), cert. denied, 465 U.S. 1067 (1984).
Nevertheless, the vast majority of courts that have ad- dressed the issue have declined to strike punitive damages awards merely because they constituted **45 repetitive punishment for the same conduct. See Solly v. Manville Asbestos Disease Fund, No. 91-3031, 1992 U.S. App. LEXIS 14030, at * 21-22 (6th Cir. June 8, 1992) (constru- ing federal due process and Ohio law), cert. denied, 113
S. Ct. 411 (1992) ; Simpson, 901 F.2d at 280-82 (con- struing federal due process); Jackson v. Johns-Manville Sales Corp., 781 F.2d 394, 402-07 (5th Cir.) (constru- ing Mississippi law), cert. denied, 478 U.S. 1022, 92 L. Ed. 2d 743, 106 S. Ct. 3339 (1986) ; Hansen v. Johns-
Manville Prods. Corp., 734 F.2d 1036, 1041-42 (5th Cir.
1984) (construing Texas law), cert. denied, 470 U.S. 1051,
84 L. Ed. 2d 814, 105 S. Ct. 1749, 105 S. Ct. 1750
(1985); Man, 728 F. Supp. at 1465-68 (construing federal due process and Hawaii law); Campbell v. ACandS, Inc.,
704 F. Supp. 1020, 1021-23 (D. Mont. 1989) (construing
Montana law); Neal v. Carey Canadian Mines, Ltd., 548
F. Supp. 357, 376-77 (E.D. Pa. 1982) (construing federal due process and Pennsylvania law), **46 aff'd sub nom. Van Buskirk v. Carey Canadian Mines, Ltd., 760
F.2d 481 (3d Cir. 1985).
OCF seeks to have this court take the lead and strike the punitive damages award as repetitive, either under Virgin Islands law or on federal due process grounds. It argues that because of the volume of asbestos claims cur- rently before the courts and likely to be filed in the future, the point of "overkill" has been reached with respect to punitive damages in asbestos litigation. OCF claims that asbestos manufacturers have been punished enough, and that the "avalanche" of compensatory claims is more than sufficient to serve the goals of deterrence and punish- ment. It urges this court, as the "Supreme Court of the Virgin Islands," Polius v. Clark Equip. Co., 802 F.2d 75,
80 (3d Cir. 1986), to strike punitive damages claims in all asbestos cases tried in the territory.
Apparently OCF believes that our function as the highest reviewing court for the Virgin Islands affords us an opportunity that is not available to other federal courts which are constrained by diversity jurisdiction to be cir- cumspect in predicting state tort law. See Jackson, 781
F.2d at 406 **47 (noting limited authority of federal court sitting in diversity to extend state law substantially in the absence of explicit guidance from state courts). Yet federal courts have not been alone in declining to strike punitive damages awards on the ground that they con- stitute repetitive punishment for the same conduct. States courts as well have rejected such a contention, both on due process and common law tort grounds. See, e.g., Palmer v. A.H. Robins Co., 684 P.2d 187, 215-16 (Colo. 1984); Balbos, 604 A.2d at 472; Fischer v. Johns-Manville
1 F.3d 1371, *1386; 1993 U.S. App. LEXIS 19482, **47;
28 V.I. 467; CCH Prod. Liab. Rep. P13,543
Page 16
*1386 Corp., 103 N.J. 643, 512 A.2d 466, 475-80
(N.J. 1986); Davis v. Celotex Corp., 187 W.Va. 566,
420 S.E.2d 557, 564-66 (W. Va. 1992); Wangen v. Ford
Motor Co., 97 Wis. 2d 260, 294 N.W.2d 437, 466 (Wis.
1980); Froud v. Celotex Corp., 107 Ill. App. 3d 654, 437
N.E.2d 910, 913, 63 Ill. Dec. 261 (Ill. App. 1982), rev'd on other grounds, 98 Ill. 2d 324, 456 N.E.2d 131, 74
Ill. Dec. 629 (Ill. 1983); Fibreboard Corp. v. Pool, 813
S.W.2d 658, 687 (Tex. Ct. App. 1991), cert. denied, 61
U.S.L.W. 3669 **48 (U.S. May 17, 1993) (No. 92-
1502); see also Andrea G. Nadel, Annotation, Propriety of Awarding Punitive Damages to Separate Plaintiffs Bringing Successive Actions Arising Out of Common Incident or Circumstances Against Common Defendant or Defendants ("One Bite" or "First Comer" Doctrine),
11 A.L.R.4th 1261, 1262 (1982 & Supp. 1992) (noting that courts "have generally held that no principle exists which prohibits a plaintiff from recovering punitive dam- ages against a defendant or defendants simply because punitive damages have previously been awarded against the same defendant or defendants for the same conduct, or because other actions are pending against the defendant or defendants which could result in an award of punitive damages"). Indeed, OCF has brought no majority opinion from any court to our attention (and our research has not disclosed such a case) which holds that multiple punitive damages claims must be struck on either basis.
In concluding that multiple punitive damages awards are not inconsistent with the due process clause or sub- stantive tort law principles, both state and federal courts have recognized that no single court can fashion **49 an effective response to the national problem flowing from mass exposure to asbestos products. Indeed, these courts have noted the arbitrariness of imposing a cap on punitive damages awards in only a single jurisdiction. As the Supreme Court of Appeals of West Virginia recently stated:
it seems highly illogical and unfair for courts to determine at what point punitive damage awards should cease. Obviously, those plain- tiffs whose cases were heard first would gain the punitive monetary advantage. Certainly, it would be difficult to determine where the cutoff line should be drawn as between the first, tenth, or hundredth punitive damages award. Moreover, because asbestos trials are held nationwide, it is doubtful that one state's
ruling would necessarily bind other jurisdic- tions.
Davis, 420 S.E.2d at 565-66; see also Fischer, 512 A.2d at 480 ("At the state court level we are powerless to im- plement solutions to the nation-wide problems created by asbestos exposure and litigation arising from that expo- sure."); Jackson, 781 F.2d at 406 ("The relief sought by
the asbestos manufacturer may **50 be more prop- erly granted by the state or federal legislature than by this Court.") (quotation omitted). Similar concerns were ex- pressed by the American Law Institute, which in a 1991
Reporters' Study, concluded that even state legislative ef- forts to limit punitive damages awards were an inappro- priate and ineffective means for addressing the multiple punitive damages award problem. n17
n17 The Reporters' Study noted that two states have taken legislative action in this area. A Georgia statute, applicable to product liability claims in Georgia courts, allows only a single punitive award
(the first to be obtained) for all claims arising out of the same conduct. See Ga. Code Ann. § 51-
125.1(e) (Michie 1990). A Missouri statute, which applies to most tort claims in the state, allows the defendant in a post-trial hearing to request credit for prior punitive damages awards arising from the same conduct. See Mo. Ann. Stat. § 510.263(4)
(Vernon 1952 & Supp. 1992).
This kind of single-state action, however, is an **51 ineffectual response to the prob- lem, because one state cannot control what happens in other jurisdictions. In fact, the state that acts alone may simply provide some relief to out-of--state manufacturers at the ex- pense of its own citizen-victims, a situation that hardly provides much law reform in- centive for state legislators. Moreover, these formulas, which give the lion's share of the punitive award to the first victim able to win a judgment against a particular defendant, are unfair to subsequent plaintiffs and concomi- tantly risk providing too little deterrence to behavior of this type.
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*1387 II American Law Institute, Enterprise Responsibility for Personal Injury 261 (1991) (emphasis added). As an alternative to state action, the Study sup- ported a federal legislative solution "to authorize manda- tory class actions for multiple punitive damages arising out of large-scale mass torts." Id. at 263.
These concerns are equally applicable to our role in reviewing punitive damages awards emanating from the Virgin Islands. Although we do not eschew our role as the final judicial voice on questions of law arising in the Virgin Islands, we are also cognizant that we have not been
**52 chosen for that role as directly as have the state supreme courts. This requires that we exercise restraint before imposing novel and/or experimental theories onto that territory's body of law.
We note further that our review as the Virgin Islands' highest court is not open-ended, but is guided by well- established principles. As we recognized in Government of the Virgin Islands v. Harris, 938 F.2d 401 (3d Cir.
1991),
absent governing statute or precedent, a "hi- erarchy of sources for Virgin Islands law" is found under V.I. Code Ann. tit. 1, § 4 (1967). Edwards v. Born, Inc., 792 F.2d 387, 389 (3d Cir. 1986). Under § 4, we look first to the common law rules set forth in the various Restatements. If no rules are available, we look to common law rules "as generally un- derstood and applied in the United States." Id. See also Polius v. Clark Equipment Co.,
802 F.2d 75, 77 (3d Cir. 1986 (Where the
Virgin Islands "has no governing statute . . .
and where the Restatement is silent and a split of authority exists, courts should select the sounder rule.").
Id. at 411 (footnote omitted). **53
The Restatement, which provides the most persuasive evidence of the common law "as generally understood and applied in the United States," and which we are obliged to consult before exercising whatever common law authority we have in this case, does not preclude successive claims of punitive damages arising out of the same course of con- duct, but instead permits consideration of the existence of multiple punitive damages claims against a defendant as
a factor in assessing damages. See Restatement (Second) of Torts § 908 cmt. e (1977) ("Another factor that may affect the amount of punitive damages is the existence of multiple claims by numerous persons affected by the wrongdoer's conduct."). When courts on the mainland, particularly from the other jurisdictions comprising the Third Circuit, have declined to strike repetitive punitive damage claims and awards in asbestos cases, we are un- willing to treat the similar awards to Virgin Islands plain- tiffs as any less justified.
As we indicated in Polius, 802 F.2d at 77, it is only appropriate for us to select the sounder of several possi- ble alternative rules for the Virgin Islands when a genuine split **54 of authority exists among the other American common law jurisdictions. Even if we were convinced that the approach OCF advocates were the sounder one, OCF has not shown such a split of authority on the question of the propriety of successive punitive damages awards.
We do not disagree with the concerns that have been expressed about punitive damages awards, particularly in the asbestos cases. We differ instead with those who would have the judiciary resolve the conflicting policy arguments. We refrain from adopting such an activist role on what is essentially a policy matter, and believe that insofar as OCF would have us enunciate a prohibition of successive claims of punitive damages in mass tort litiga- tion as a matter of Virgin Islands law, that decision is best left to the United States Congress or the legislature of the Virgin Islands. n18
n18 In that regard, we find it telling that the Governor of the Virgin Islands recently transmit- ted a bill to the legislature concerning damages for personal injuries that proposed limiting punitive damages awards for economic and non-economic damages but expressly exempted "defective prod- uct claims" from its terms. See Bill No. 20-0041 to amend Tit. 5, Ch. 41, V.I. Code (introduced Feb. 1,
1993).
**55
To the extent that OCF claims that punitive damages in asbestos cases are as a general matter unconstitutional, we are not persuaded by its arguments. Although we rec- ognize that some courts and commentators
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*1388 have called for the abolition of punitive dam- ages altogether, see, e.g., John Dwight Ingram, Punitive Damages Should Be Abolished, 17 Cap. U.L. Rev. 205
(1988); James B. Sales & Kenneth B. Cole, Jr., Punitive
Damages: A Relic That Has Outlived Its Origins, 37
Vand. L. Rev. 1117 (1984), that position is not without its critics. In fact, the prevalent notion that we are facing skyrocketing or "runaway punitive awards," E. Barrett Prettyman, Jr., Punitive Damages, in A Plan to Improve America's System of Civil Justice From the President's Council on Competitiveness 75, 83 (1992), has been chal- lenged by several commentators. See Michael Rustad, Demystifying Punitive Damages in Products Liability Cases: A Survey of a Quarter Century of Trial Verdicts
28 (Papers of the Roscoe Pound Found. 1991) here- inafter Demystifying Punitive Damages ; n19 cf. Stephen Daniels & Joanne Martin, Myth and Reality **56 in Punitive Damages, 75 Minn. L. Rev. 1, 13 (1990) here- inafter Myth and Reality ; Michael J. Saks, Do We Really Know Anything About the Behavior of the Tort Litigation System -- And Why Not?, 140 U. Pa. L. Rev. 1147, 1256
(1992) hereinafter Behavior of the Tort System .
n19 After conducting an exhaustive search of several sources, including published opinions, computer databases, law reviews and legal com- mentaries, court records, trial verdict reporters, and interviews with lawyers involved in products liabil- ity cases, see Demystifying Punitive Damages at 2-
4, Rustad and his associates located a total of 355 products liability cases involving punitive damages awards throughout the country in the quarter cen- tury from 1965-1990. Id. at vi.
One study reported that in those relatively rare cases in which punitive damages are awarded at all, n20 these awards are frequently reduced on appellate re- view. Demystifying Punitive Damages at 30-32; **57 Behavior of the Tort System, 140 U. Pa. L. Rev. at 1258-
62. Another study concluded that "the difference between punitive damages awarded and punitive damages paid is often dramatic." Demystifying Punitive Damages at 32. Finally, OCF itself candidly admits that in the vast ma- jority of the asbestos cases against it which go to trial, plaintiffs come up empty. See Appellant's Supplemental Brief at 11 (citing App. at 1943); see also App. at 1842-
939. We, of course, take no position on the debate re-
garding the issue of punitive damages in mass tort cases, but merely observe that the underlying facts appear to be far from clear, despite high-profile commentary in that connection.
n20 In a study of punitive damages verdicts in 47 counties in 11 states, the authors noted that only 8.9% of successful products liability plain- tiffs were also awarded punitive damages. See Myth and Reality, 75 Minn. L. Rev. at 38; see also Demystifying Punitive Damages at 24 (not- ing that while approximately 200,000 American women were injured by Dalkon Shield, there were only 11 punitive damages awards in the 51 cases that went to trial).
**58
In his powerful dissent, Judge Weis has set forth nu- merous arguments against punitive damages in mass tort cases in general and in asbestos cases in particular. We decline to respond in kind because we do not believe that a judicial opinion of an intermediate appellate court is the appropriate forum for a debate on the policies for and against punitive damages. Indeed, those members of the in banc court supporting the judgment of the court may themselves have differing views on whether and when punitive damages should be awarded.
Judge Weis argues that a "national solution is needed," and would have this court step in because Congress and the Virgin Islands legislature have failed to impose the so- lution he believes is needed. We believe, to the contrary, that unless a particular defendant has made the showing requisite to a finding of a due process violation as to it, the lower courts have an obligation to follow existing legal principles. In this connection, we note that while the debate on punitive damages has raged in commentary and even among judges, the Supreme Court of the United States has had various opportunities in recent years to re- strict or redirect punitive damages awards, **59 and it has pointedly failed to do so. In Haslip, the Supreme Court noted that punitive damages at common law were referred to by Blackstone, and that even early Supreme Court cases upheld such awards. 111 S. Ct. at 1041-
43. The Court had its most recent opportunity in TXO to overturn a punitive damages award that had received numerous adverse comments and publicity because of
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*1389 the exceedingly high ratio that the punitive dam- ages bore to the compensatory damages (526 to 1), but it made no adverse comment on the award, reviewing only whether substantive due process principles compelled a reversal. In their separate concurrences, Justice Kennedy referred to the possibility of "legislative intervention that might prevent unjust punitive awards," 61 U.S.L.W. at
4772, and Justice Scalia (with Justice Thomas) stated that "state legislatures and courts have ample authority to eliminate any perceived 'unfairness' in the common-law punitive damages regime." Id. at 4774. Indeed, Justice Scalia reiterated his earlier position in Haslip that "the Constitution gives federal courts no business in this **60 area, except to assure that due process (i.e., traditional procedure) has been observed." Id. We would be intrepid indeed were we to use this case as a vehicle to iterate a blanket policy judgment against punitive damages in asbestos cases in light of the Supreme Court's studied silence on the policy issue.
We do not preclude a particular defendant from in- voking the due process clause as a basis for relieving it of punitive damages in a specific case. However, the evi- dence produced by OCF falls far short of demonstrating any due process violation here.
In Simpson, the Second Circuit rejected the contention of another asbestos defendant, Pittsburgh Corning Corp., that a $2.3 million punitive damages award was a substan- tive due process violation. The court posited that if "the fact-finder making the first award understood its assign- ment to be the selection of that sum of money appropriate to punish the tort-feasor for the full extent of its wrongful conduct, not merely a sum appropriate as punishment for the injuries to the plaintiffs in the lawsuit," 901 F.2d at
280, there might be a rationale for striking a subsequent award on due process grounds. **61 n21 Inasmuch as OCF has not argued that this is an appropriate case to ap- ply this "single punitive award" rationale, nor has it made the requisite factual showing to support such a claim, we need not decide whether we would accept such a theory.
n21 The court explained that this theory could only be applied where the defendant can demon- strate that the jury in the first case to reach final judgment "had a complete record of the full extent of the defendant's wrongful conduct in failing to warn all users of the dangers of its asbestos prod-
ucts, or that the jury was instructed to return a punitive award appropriate as punishment for the totality of such misconduct." Simpson, 901 F.2d at
281.
The second basis posited in Simpson on which a suc- cessive punitive damage award might be viewed as violat- ing due process is that the aggregate of prior awards has reached the maximum amount tolerable under the Due Process Clause. This argument assumes that prior juries functioned in the traditional **62 manner, limiting their awards of punitive damages in light of the injury inflicted on the plaintiff in a particular case. n22 This is essen- tially the argument made by OCF in this case. However, we agree with the Second Circuit that such an argument can be evaluated only if the judge has been "provided with a factual basis sufficient for evaluating the entire scope of the defendant's wrongful conduct . . . . Only with such factual information can the judge determine that the aggregate of prior awards punishes the entirety of the wrongful conduct to the limit of due process." Id. at
281.
n22 The court in Simpson concluded that all asbestos cases involving a single defendant can- not "be lumped together for the purpose of testing punitive awards against the limits of due process."
901 F.2d at 281. "The wrongfulness of a defen- dant's conduct will normally be subject to varying assessments depending on the degree to which the dangers of its product were known at a particular time and the deliberateness of its conduct in declin- ing to warn or even concealing dangers of which it was aware." Id.
**63
Assuming arguendo that we would accept this analy- sis, the factual record made by the defendant must, as a prerequisite to relief on due process grounds, include ev- idence demonstrating the amount of punitive damages it has actually paid in the past. In this case, OCF has simply failed to make such a showing.
As noted above, OCF filed a post-trial affidavit list- ing other punitive damages jury verdicts entered against it. App. at 1941-49. Significantly, OCF also stated that post-trial
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*1390 motions or appeals were pending as to each and every non-settled verdict listed in its submission. It stated further that as to those verdicts which it settled, an un- specified albeit allegedly "substantial amount of the set- tlement reflected the punitive damages awarded." App. at
1946. As to the latter, Simpson stated that, "it is far from clear that sums paid in private settlements may validly be counted in determining when state-compelled puni- tive damages awards exceed the limits of the Fourteenth Amendment." 901 F.2d at 282. The failure to desig- nate particular amounts of the settlements as representing punitive damages makes inclusion of these amounts prob- lematic. The **64 same is true of OCF's list of non- final awards of punitive damages. Thus, OCF has failed to prove that the aggregate award of punitive damages against it has been sufficient to meet the twin goals of punishment and deterrence underlying such awards.
Nor has OCF shown that it will not be able to pay future awards of either compensatory or punitive dam- ages. OCF's 1990 Annual Report filed with the district court post-trial stated that as of December 31, 1990, OCF had approximately $1.26 billion in unexhausted insurance coverage under product liability insurance policies appli- cable to asbestos-related personal injury claims. App. at
2007. OCF charged to earnings $24 million in 1990 and
$50 million in 1989 for the uninsured costs of asbestos claims and had related reserves of $115 million and $131 million as of December 31, 1989 and 1990, respectively. App. at 2008. n23
n23 In an appendix to its supplemental ap- pellate brief, OCF submitted its 1991 Annual Report, which provides a further indication of the company's ability to pay future punitive dam- ages awards. In particular, the Report notes that
"the Company's products liability insurance poli- cies should cover virtually all of the Company's cash expenditures for indemnity and defense costs for asbestos personal injury claims through 1996 or 1997. . . . The cash expenditures . . . for the unasserted claims covered by an $800 million
non-recurring, non-cash charge to 1991 earnings are expected to be incurred over a period of approx- imately seven years, between 1996 and 1997 and
2003 and 2004." Appellant's Supplemental Brief, Appendix A, at 15.
The Report also noted that OCF's unexhausted product liability insurance reserves totaled $1.13
billion at the end of 1991. Id.
**65
In addition, the Report stated that the "disease mix of asbestos personal injury claims against the Company appears to have declined in severity in recent years. Moreover, many of the newer claims involve workers from occupations with limited, if any, exposure to the Company's asbestos products. Accordingly, the Company anticipates achieving a gradual reduction in its per case indemnity payments." App. at 2006. Finally, the Report concluded that
although any opinion is necessarily judg- mental and must be based on information now known to the Company, in the opin- ion of management, based on the Company's experience with these claims to date, the Company's assessment of the number, na- ture and severity of the pending claims and the trends in the filing of such claims, and the Company's analysis of its available in- surance coverage and existing reserves, and of the Company's future business and finan- cial prospects, the additional uninsured costs which may arise out of pending personal in- jury and property damage asbestos claims and additional similar asbestos claims filed in the future will not have a materially adverse effect on the Company's financial position.
App. at 2008 **66 (emphasis added).
In sum, OCF simply has not made a "showing that the total amount of punitive damages assessed so far is even close to whatever limit due process might impose on the total punitive damages that may be assessed . . . for . . . misconduct with respect to asbestos warnings." Simpson, 901 F.2d at 281; see Restatement (Second) of Torts § 908 cmt. a (1977); cf. Campbell, 704 F. Supp. at 1023 ("the desired effect is to deter all individuals or entities involved in the manufacture and distribution of consumer products from placing the public at risk by en- gaging in similar conduct"). Nor has OCF shown on this record that it will be unable to satisfy current and fu- ture asbestos claims. Although the costs associated with asbestos litigation may have wiped out any profits OCF made from the sale of its Kaylo product, OCF failed to submit any evidence at
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*1391 trial concerning the profitability of its Kaylo product, n24 or concerning the profits of the other man- ufacturers. In any event, neither Virgin Islands law nor due process requires striking all punitive damages claims simply because the harm caused by a defective **67 product was so severe as to wipe out all profit.
n24 It was only in its appendix to its supple- mental brief to this court that OCF made any claim concerning the profitability of its Kaylo product. See Appellant's Supplemental Brief, Appendix D, at 3-4 (estimating total sales at $142.7 million with total profit ranging from $1.4 million to $7.7 mil- lion). We are unwilling to act on the basis of such evidence, which was not before the district court and which was not subject to challenge by appellee.
Of course, we do not decide whether another asbestos manufacturer might be able to satisfy this evidentiary hurdle with a different factual record. Nonetheless, we believe that the district courts in this circuit should deter- mine whether a punitive award to a plaintiff in a particular case should be struck by carefully scrutinizing the "puni- tive damages overkill" evidence submitted to them, both with respect to past awards actually paid by a defendant and the defendant's ability to satisfy future punitive dam- ages awards. **68 These courts should also consider whether the financial status of the defendant is such that future claimants will be unable to collect even compen- satory damages because of the limited pool of resources available. It is the defendant's burden to make this evi- dentiary showing, a burden OCF has not satisfied on the record before us.
Although we reject OCF's due process challenge, we
nonetheless agree with OCF that further remittitur of the punitive damage award in this case is appropriate. See Gumbs v. Pueblo Int'l, Inc., 823 F.2d 768, 773-75 (3d Cir.
1987); Williams v. Martin Marietta Alumina, Inc., 817
F.2d 1030, 1040-41 (3d Cir. 1987). In reaching this con- clusion, we take into consideration all the factors listed in comment e to Restatement of Torts (Second) § 908: the defendant's wealth, its act, the extent of harm, the multi- plicity of claims, and, as approved in Haslip, the awards of punitive damages in similar cases.
Our review of the list of jury verdicts submitted by OCF to the district court indicates to us that even the $2 million dollar figure greatly exceeds the level of puni- tive damages awarded in other **69 similar asbestos cases. While we commend the district court's discipline in reducing the punitive damages from $25 million to $2 million, we believe that the district court gave insufficient consideration to the effect of successive punitive awards in asbestos litigation. This factor, above all, leads us to conclude that the maximum amount of punitive damages that could reasonably have been awarded in this case is
$1 million. V.
CONCLUSION
Following the filing of the opinion of the panel of this court reaching the same conclusion, Dunn elected to file a remittitur of punitive damages awarded in excess of
$1,000,000.
For the foregoing reasons, we will vacate the judg- ment of punitive damages and remand the case to the district court with instructions to enter a new judgment for punitive damages in the amount of $1,000,000. OCF to bear all costs on appeal.
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*none EDITOR'S NOTE: The following court- provided text does not appear at this cite in 1 F.3d
1371
SLOVITER, Chief Judge. Preliminary Note
On April 22, 1992 a panel of this court heard argument on the appeal of Owens-Corning Fiberglas Corporation
(OCF) from the judgment of the district court awarding William Dunn $500,000 in compensatory damages for as- bestos-related injury and $2 million in punitive damages.
**70 The opinion of the panel, affirming the district court's award of compensatory damages and ordering a remittitur of the punitive damages award to $1 million, was filed on September 18, 1992.
Thereafter, OCF filed a petition for rehearing in banc. On October 8, 1992, the court granted the petition and vacated the opinion of the panel. However, the petition was directed only to the punitive damages award and the court subsequently directed counsel to limit their argu- ments at the rehearing in banc to that issue. Accordingly, the court in banc has amended its October 8, 1992 order to the extent that it vacated the panel opinion in its entirety, and the panel hereby reinstates the portion of its earlier opinion addressing the compensatory damages and evi- dentiary issues raised by OCF with only minor editorial changes. A separate opinion of the court in banc will be issued limited to the punitive damages award.
I.
PROCEDURAL POSTURE
In 1987 William Dunn, a former pipe installer at Hess Oil Virgin Islands Corporation (HOVIC), filed this action against OCF as well as other manufacturers of asbestos- containing products, alleging personal injuries caused by exposure to asbestos. Following **71 a trial in which liability and compensatory damages were determined be- fore the issue of punitive damages, the jury awarded Dunn
$1.3 million in compensatory damages and $25 million in punitive damages against the sole remaining defendant, OCF, the distributor and later manufacturer of Kaylo, an asbestos-containing pipecovering.
OCF filed post-trial motions pursuant to Federal Rules of Civil Procedure 50(b) and 59 requesting a Judgment Notwithstanding the Verdict or, in the alter- native, a new trial. The district court denied the motion for JNOV, but conditioned the denial of the motion for a new trial on Dunn's acceptance of a remittitur of the compensatory award to $500,000 and the punitive award to $2 million. Dunn v. Owens-Corning Fiberglass, 774
F. Supp. 929, 951-52 (D.V.I. 1991). Dunn accepted the remittitur, and OCF appeals. We have jurisdiction under
28 U.S.C. § 1291 (1988). II.
STANDARD OF REVIEW
In ruling on a motion for JNOV, the district court must view the evidence, together with all reasonable inferences therefrom, in the light most favorable to the verdict win- ner. Rotondo v. Keene Corp., 956 F.2d 436, 438 (3d Cir.
1992). **72 We apply the same standard on appeal as the district court, id., and will affirm the denial of the motion "unless the record is critically deficient of that minimum quantum of evidence from which a jury might reasonably afford relief." Dawson v. Chrysler Corp., 630
F.2d 950, 959 (3d Cir. 1980) (internal quotations omitted), cert. denied, 450 U.S. 959, 67 L. Ed. 2d 383, 101 S. Ct.
1418 (1981).
We review the denial of a motion for a new trial for abuse of discretion, Ford Motor Co. v. Summit Motor Prods., Inc., 930 F.2d 277, 290 (3d Cir.), cert. denied, 116
L. Ed. 2d 324, 112 S. Ct. 373 (1991), and note that "the district court ought to grant a new trial on the basis that the verdict was against the weight of the evidence only where a miscarriage of justice would result if the verdict were to stand." Williamson v. Consolidated Rail Corp.,
926 F.2d 1344, 1352 (3d Cir. 1991). In addition, "we may disturb the district court's determination with respect to a remittitur only for abuse of discretion, and reverse and grant a new trial only if the verdict is so grossly exces- sive as to shock **73 the judicial conscience." Gumbs v. Pueblo Int'l, Inc., 823 F.2d 768, 771 (3d Cir. 1987)
(internal quotations omitted). III.
DISCUSSION
Rather than focus its appeal on liability, OCF raises nu- merous issues going to damages. We address in subpart A the
compensatory damages issues and in subpart B the evi- dentiary issues, which implicate both compensatory and punitive damages.
A.
COMPENSATORY DAMAGES
1. Sufficiency of the Evidence
From the evidence presented at trial, the jury could rea- sonably have concluded the following. In 1950 Dunn went
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to work as a pipe installer's helper for Dow Chemical in Texas. App. at 846-47. After working in various places in the United States and the Caribbean, Dunn began work- ing at the Hess Oil refinery in St. Croix, Virgin Islands in 1966 as a pipe installer. App. at 859-64. He testified that as a result of his duties, which often required cutting, sawing or pounding of asbestos-containing insulation, he was covered from head to toe in dust from early morning until he left work. App. at 868-69. Dunn identified OCF's Kaylo as the asbestos-containing insulation product he used most. n1 App. at 870. **74
n1 The parties stipulated that from 1953 through 1972, Kaylo contained an average of 15 percent asbestos. App. at 963, 1068.
Beginning in the mid-1980s, Dunn began to experi- ence shortness of breath and weight loss. App. at 878-79,
888. He was diagnosed as suffering from "a lung condi- tion . . . caused by asbestos." App. at 879. Prior to that time Dunn enjoyed a variety of athletic activities, includ- ing running, swimming, biking, and weight lifting. App. at 876. He claims that because of his lung disease, he can no longer engage in the athletic activities he enjoyed pre- viously. App. at 889. Dunn testified about his great fear of contracting cancer in the future and his depression at seeing long-time friends die of asbestos-related disease. App. at 889-92.
Dunn asked for compensatory damages for present and future pain and suffering, including compensation for his fear of contracting cancer. OCF contends that Dunn did not adduce enough evidence at trial to show that he suffers from compensable injury. In particular, OCF **75 claims that under the American Thoracic Society standards for diagnosing asbestosis, the evidence presented at trial demonstrates that Dunn does not exhibit the conditions necessary for a diagnosis of asbestosis. Under the Virgin Islands Code, in the absence of local law to the contrary, the Restatements of the law approved by the American Law Institute control. V.I. Code Ann. tit. 1, § 4 (1967); see Berroyer v. Hertz, 672 F.2d 334,
340 (3d Cir. 1982). OCF notes that Restatement (Second) of Torts sections 388 and 402A make "harm" an essen- tial element of claims for negligence and strict liability. However, section 7(2) defines "harm" as "the existence of loss or detriment in fact of any kind to a person resulting from any cause." Restatement (Second) of Torts § 7(2)
(1965). Comment b explains that "'harm' implies a loss or detriment to a person, and not a mere change or alteration in some physical person, object or thing. . . . In so far as these acts or conditions are detrimental to him, he suffers harm." Id. cmt. b.
It is undisputed that Dunn has extensive pleural thick- ening on the exterior of his lungs. See App. at 661-62,
762-63. OCF nevertheless **76 argues that the pres- ence of pleural plaques does not constitute compensable injury, citing Purjet v. Hess Oil Virgin Islands Corp.,
22 V.I. 147, 149 (D.V.I. 1986), for the proposition that Dunn must prove "actual injury or damage" to recover. In that case, plaintiffs, neither of whom suffered from any asbestos-related condition, brought a suit seeking, inter alia, damages for enhanced risk of developing as- bestos-related diseases. In granting summary judgment for the defendants, the district court held that under Virgin Islands law, "a tort claim will not lie in the absence of a demonstrable injury and mere exposure to asbestos is insufficient to state a cause of action." Id. at 154; see also Schweitzer v. Consolidated Rail Corp., 758 F.2d 936, 942
(3d Cir.) (for purposes of F.E.L.A. claim, "manifest in- jury is a necessary element of an asbestos-related tort action"), cert. denied, 474 U.S. 864, 88 L. Ed. 2d 152, 106
S. Ct. 183 (1985).
We need not decide in this case whether the mere pres- ence of pleural plaques constitutes the "harm" necessary to recover damages for tort under the Restatement. **77 We note that more recent cases applying the law of states within this circuit have held that it is. Thus, in Marinari v. Asbestos Corp., No. 1816, 417 Pa. Super. 440, 1992
Pa. Super. LEXIS 2193, 612 A.2d 1021 (July 20, 1992), the Pennsylvania Superior Court, sitting in banc, held that
"pleural thickening, even when asymptomatic, is an in- jury which gives rise to a cause of action." n2 Id. at *
24.
n2 In light of the evidence in this case we need not decide the effect of Marinari on our earlier de- cision in Howell v. Celotex Corp., 904 F.2d 3, 5 (3d Cir. 1990), that under Pennsylvania law the deter- mination of whether pleural thickening constitutes compensable injury is for the trier of fact.
Two medical experts testified on Dunn's behalf. Dr. David Egilman, who is board certified in internal and oc- cupational medicine with a specialty in occupational lung disease, see App. at 156, stated that Dunn had "the exact injuries that you would expect if someone was injured from breathing in the **78 asbestos." App. at 164. He also stated that he was "certain that Dunn has asbestos- related lung disease, both in the lung tissue and around the lung," and concluded that Dunn suffers from asbestosis. App. at 297.
Dunn's other expert witness, Dr. David Kern, also cer- tified in occupational and internal medicine, concurred in this diagnosis, stating that Dunn "definitely did have as-
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bestosis." App. at 666. Both experts testified that when they examined Dunn lungs they heard rales, a velcro-like sound indicative of asbestosis. App. at 294-95, 680. These observations mirrored that of the first doctor to examine Dunn in 1985. App. at 294.
Dr. William Cole, OCF's radiology expert, testified that the outer lining of Dunn's lungs displayed pleu- ral plaques and that asbestos exposure was probably the cause. App. at 762-63, 765. This same conclusion was reached by Dr. Kern who stated that Dunn's pleural plaques were massive. App. at 662. Dr. Kern also testified that pleural plaques "have an effect on lung function." App. at 661. Dr. Cole agreed that in an advanced stage, pleural plaques could affect lung functioning. App. at 818. Thus, in this case, there is evidence, if believed, that Dunn **79 suffers from more than mere pleural plaques. In the first place, Dunn's plaques "are massive." App. at 662. Dunn "has both scarring of the lining of the lung, both in front and on the muscle that's under the lung. And he also has scarring in the lung tissue." App. at 272. In the second place, and more important, Dunn's experts testified that as a result of his exposure to asbestos, Dunn has reduced lung capacity. Tests performed demonstrated that Dunn's lung capacity decreased by about 20% be- tween 1985 and 1989 and that a further decrease occurred between 1989 and 1990. App. at 277-78. Dr. Egilman testified that Dunn's disease was progressing at a rapid rate and that his total lung capacity would continue to de- crease. App. at 299. According to both Drs. Egilman and Kern, such a decrease is abnormal and consistent with a
diagnosis of asbestosis. App. at 279-80, 668-70. Furthermore, in 1989, a small nodule was discovered
on Dunn's lower left lung. App. at 288-89, 890. Although Dr. Egilman did not believe it was malignant at that time, he recommended that it be examined and x-rayed every three to five months. App. at 290-91. Finally, Dr. Egilman testified that Dunn had a greater than **80 fifty percent chance of dying from an asbestos-related disease and that Dunn's fear of contracting cancer was reasonable. App. at
300.
While OCF did present colorable evidence tending to contradict the conclusions of Dunn's experts, it was not so overwhelming that the jury could not reasonably conclude that Dunn suffers from mild asbestosis which is likely to worsen. As the district court properly noted, "it was well within the jury's province to decide to credit the testimony of plaintiff's doctors while discounting that of defendant's." Dunn, 774 F. Supp. at 937. Dunn's shortness of breath and inability to engage in the extent of physi- cal activity he enjoyed previously are detrimental effects that constitute sufficient "loss or detriment" to justify an award of compensatory damages.
In Herber v. Johns-Manville Corp., 785 F.2d 79 (3d Cir. 1986), a case brought by a plaintiff with pleural thick- ening, we ruled that under New Jersey law a plaintiff need only demonstrate "slight impact and injury . . . to warrant recovery for emotional distress caused by fear." Id. at
85; see Sullivan v. Combustion Eng'g, 248 N.J. Super.
134, 590 A.2d 681, 683 **81 (N.J. Super. Ct. App. Div.) (citing Herber with approval), cert. denied, 126
N.J. 341, 598 A.2d 897 (N.J. 1991). Thus, even assuming Dunn does not suffer from asbestosis, the jury was free to conclude that notwithstanding OCF's evidence of Dunn's physical activity, the physical impact of Dunn's pleural plaques caused enough harm to warrant recovery, partic- ularly when combined with the anxiety associated with the fear of cancer. n3 See McCleary v. Armstrong World Indus., Inc., 913 F.2d 257, 258 (5th Cir. 1990) (upholding under Texas law jury verdict in asbestos case where plain- tiff suffered from "pleural fibrosis"); Dartez v. Fibreboard Corp., 765 F.2d 456, 468 (5th Cir. 1985) (accumulation of asbestos fibers in lungs sufficient injury under Texas law to support claim for fear of cancer).
n3 In Jackson v. Johns-Manville Sales Corp.,
781 F.2d 394 (5th Cir.) (in banc), cert. denied, 478
U.S. 1022, 92 L. Ed. 2d 743, 106 S. Ct. 3339 (1986),
the court stated:
Plaintiff's fear is plainly a present injury. It is a fear which he experi- ences every day and every night. It is a fear which is exacerbated each time he learns that another victim of asbestos has died of lung cancer. It is fear which, regardless of whether plaintiff actu- ally gets cancer, will haunt him for the rest of his life.
Id. at 414 (footnote omitted). These words are equally applicable to Dunn.
**82
2. Excessiveness of the Remitted Compensatory Damages
Award
OCF asks this court for further remittitur of the district court's compensatory damages award, arguing that com- parison to awards in similar cases and that lack of proof of special damages demonstrate the excessiveness of the remitted $500,000 compensatory award. Admittedly,
$500,000 is generous, but it certainly is not the highest award of its kind, see App. at 1842, 1843, 1918, 1919,
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1921, and does not shock our judicial conscience. Given our deferential scope of review, see Gumbs, 823 F.2d at
771, we conclude that the district court did not abuse its discretion in granting a remittitur to $500,000. n4
n4 OCF argues that the size of the jury's ini- tial $1.3 million award alone indicates passion or bias requiring a new trial. We disagree. Other juries have awarded such sums in similar cases, see, e.g., App. at 1843 ($ 1.091 million awarded to plaintiff with asbestosis), and we find nothing in the record suggesting bias or prejudice.
**83
B.
EVIDENTIARY ISSUES
1. Testimony of Dunn's Expert Witness
OCF argues that both the punitive and compensatory dam- ages awards should be reversed because of the district court's evidentiary rulings under Federal Rule of Evidence
702. n5 This court reviews evidentiary rulings under Rule
702 for abuse of discretion. See United States v. Leo, 941
F.2d 181, 188 (3d Cir. 1991). We have explained that "er- ror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected . . . ." Fed. R. Evid. 103(a); see also Linkstrom v. Golden T. Farms, 883 F.2d 269, 269 (3d Cir. 1989). We "will interpret possible helpfulness to the trier of fact broadly and will favor admissibility in doubtful cases." Linkstrom, 883 F.2d at 270; see also American Technology Resources v. United States, 893 F.2d 651, 655 (3d Cir.)
(helpfulness standard interpreted broadly), cert. denied,
495 U.S. 933, 109 L. Ed. 2d 505, 110 S. Ct. 2176 (1990); Breidor v. Sears, Roebuck & Co., 722 F.2d 1134, 1139
(3d Cir. 1984) **84 ("helpfulness is the touchstone of
Rule 702").
n5 This rule permits expert testimony, "if scien- tific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue . . . ." Fed. R. Evid.
702. The commentary to this rule further explains:
"The rule . . . recognizes that an expert on the stand may give a dissertation or exposition of scientific or other principles relevant to the case, leaving the trier of fact to apply them to the facts." Id. advisory committee's note.
We have previously expressed our view that in most cases "'the jury is intelligent enough, aided by counsel, to
ignore what is unhelpful in its deliberations,'" and noted that "'even when jurors are well equipped to make judg- ments on the basis of their common knowledge and expe- rience, experts may have specialized knowledge to bring to bear on the same issue which would be helpful.'" In Re Japanese Elec. Prods. Antitrust Litig., 723 F.2d 238,
279 (3d Cir. 1983) **85 (quoting 3 J. Weinstein & M. Berger, Weinstein's Evidence PP 702 03 , 702 02 ), rev'd on other grounds, 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). Finally, "to the extent that OCF implies that expressions of opinion on the ultimate fact in issue somehow impermissibly invade the province of the jury, it is inconsistent with the clear mandate of Rule 704." Id.
(citation omitted). n6
n6 Rule 704 states in pertinent part:
(a) Except as provided in subsection
(b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.
Fed. R. Evid. 704.
With these general principles in mind we address the issues raised by OCF. Dunn's principal expert witness, Dr. Egilman, is an M.D. who specializes in occupational medicine, i.e., the diagnosis and treatment of problems re- lated to exposure to chemicals or other substances. App. at 131. The record reveals that Dr. Egilman takes referrals from companies to evaluate **86 workers for illnesses that have occurred in the workplace. App. at 138. Dr. Egilman also conducts medical surveillance for compa- nies to determine whether employees may be unduly ex- posed to toxic substances. App. at 139. Finally, he assists companies in analyzing information to determine whether or not substances used are harmful. When harmful sub- stances are encountered, he instructs these companies as to
how they should be properly handled, how workers should be educated about how to work with them so they won't get hurt, how warnings should be put on them and, in some cases, how the community physicians need to be informed.
App. at 139.
OCF claims that it was improper for Dr. Egilman to comment from his review of OCF's corporate records that OCF knew of the risks associated with exposure to
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asbestos. App. at 619. In light of our broad view of the
"helpfulness" standard of Rule 702 and Dr. Egilman's par- ticular experience in working directly with employers on issues of this general concern, we find no abuse of dis- cretion as to the admission of this testimony under Rule
702.
OCF also challenges the admission of Dr. Egilman's testimony that
based on what they OCF knew **87 in the 40's and 50's, what they could have known and didn't know, they clearly did not meet the obligation of the standard that they knew and presented in this memo in 1941.
App. at 316.
The document referred to in Dr. Egilman's testi- mony is a 1941 OCF memorandum discussing whether
"Fiberglas," then a new material, could be safely offered to industry. The OCF memorandum states that "those who are engaged in the manufacture of Fiberglas sic neces- sarily must have reassured themselves about the health aspects of the material before offering it for sale - for two reasons": first, from a "humanitarian point of view, no company can afford to subject its employees to an un- known hazard" and second, from "a cold business view," because of concern about liability from users. App. at
2150A-E. The memo then discusses in depth research into the potential health hazards of fiberglass. Thus, Dr. Egilman's testimony expressed his own belief that OCF's conduct with respect to Kaylo did not meet its own self- imposed standard. Again, such commentary was not so inappropriate that we must hold that the district court abused its discretion in admitting this testimony. n7
n7 OCF also challenges Dunn's follow-up ques- tion, which asked whether that statement repre- sented Dr. Egilman's "opinion to a reasonable med- ical probability as a health hazard consultant to industry." App. at 316. We view this question as nothing more that Dunn's attempt to underscore Dr. Egilman's qualifications. Even assuming that the question was improper, OCF did not object to it, and we do not find it so prejudicial as to consti- tute plain error.
**88
OCF also argues that it was improper for Dr. Egilman to state his conclusion that OCF was "the last company to put warnings" on its asbestos product and that those warnings did not appear on OCF materials until 1972. App. at 316. We agree with OCF. The jury did not need
expert opinion to evaluate when OCF put warning labels on its Kaylo product.
Nevertheless, we conclude that such error was harm- less. In particular, we note the testimony of Dunn, App. at 870-74, and his product identification witness, Mr. McComely Bully, App. at 631-32, that they did not re- call seeing warning labels on the Kaylo boxes. In addition, OCF vigorously disputed Dr. Egilman's contention during the trial, see App. at 1235-39, and was not substantially prejudiced by this isolated remark.
The admissibility of particular expert testimony must be evaluated on review in the context of the entire case. For that reason, cases from other circuits on which OCF relies are not very helpful. Thus, for example, in Andrews v. Metro N. Commuter R.R. Co., 882 F.2d 705, 708 (2d Cir. 1989), cited by OCF, the court vacated the plaintiff's jury verdict in part because the expert testimony referred
**89 to facts that were not in evidence and expressed his belief that the railroad was negligent, a patently im- proper statement. See Fed. R. Evid. 704 advisory com- mittee notes (improper for expert to tell jury what result to reach). In contrast, OCF does not contend that Dr. Egilman referred to facts not in evidence. Moreover, we do not view Egilman's testimony as telling the jury the ultimate result to reach. Cf. McGowan v. Cooper Indus., Inc., 863 F.2d 1266, 1272 (6th Cir. 1988) (approving district court's exclusion of expert's proposed testimony, which included conclusion that defendant was negligent). We will not reverse the verdict based on his testimony.
2. The Hemeon Report
OCF also contends that it was reversible error for the district court to admit the Asbestos Textile Institute's un- published Hemeon Report. Specifically, OCF argues that the report was irrelevant under Federal Rule of Evidence
402 and that its prejudicial impact outweighed its pro- bative value, warranting exclusion under Federal Rule of Evidence 403. n8
n8 Under Rule 403,
although relevant, evidence may be ex- cluded if its probative value is substan- tially outweighed by the danger of un- fair prejudice, confusion of the issues, or misleading the jury, or by consider- ations of undue delay, waste of time, or needless presentation of cumulative evidence.
Fed. R. Evid. 403.
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**90
Rulings under Rule 403 are reviewed for abuse of dis- cretion, see In Re Japanese Elec. Prods. Litig., 723 F.2d at 260, and, as we noted in our recent opinions, so are relevancy determinations under Rule 402. See Pfeiffer v. Marion Center Area Sch. Dist., 917 F.2d 779, 781 (3d Cir.
1990); Anderson v. Pittsburgh - Des Moines Corp., 893
F.2d 638, 641 (3d Cir. 1990).
The Hemeon Report questioned whether the then- generally acknowledged threshold limit value for levels of exposure to asbestos provided assurances of safety. Prior to this report, both the 1938 Dreessen study, pre- pared under the direction of the Surgeon General, and the 1946 Fleisher-Drinker study indicated that asbestosis would not result if asbestos dust were kept below 5 mil- lion particles per cubic foot of air. In 1946, the American Conference of Government Industrial Hygienists promul- gated a threshold limit value of 5 million particles per cubic foot, which became widely accepted.
According to comment j of the Restatement section
402A, a manufacturer is liable for danger of which the manufacturer "has knowledge, or by application **91 of reasonable, developed human skill and foresight, should have knowledge." Restatement (Second) of Torts § 402A cmt. j (1965) (emphasis added). The comment to section
12 of the Restatement further states, in relevant part:
"Should know" implies that the actor owes another the duty of ascertaining the fact in question. . . . "Should know" indicates that the actor is under a duty to another to use rea- sonable diligence to ascertain the existence or non-existence of the fact in question and that he would ascertain the existence thereof in the proper performance of that duty.
Id. at § 12 cmt. a. Dunn argued that the Hemeon report was admissible as evidence of what OCF should have known concerning the dangers associated with exposure to asbestos.
We find persuasive the analysis of the Second Circuit in George v. Celotex Corp., 914 F.2d 26, 28-31 (2d Cir.
1990), where the court held that the district court did not abuse its discretion in admitting the Hemeon Report in an asbestos case against Celotex Corporation, a com- pany which, like OCF, was not a member of the Asbestos Textile Institute. As in this case, there was no evidence on the record **92 in George to indicate that Celotex ever had access to the report. In applying New York strict liability law, which "'generally follows the guidelines set forth in § 402A of the Restatement ,'" id. at 28 n.1 (quot- ing Farina v. Niagara Mohawk Power Corp., 81 A.D.2d
700, 438 N.Y.S.2d 645, 646 (App. Div. 1981)), the court concluded that the report was relevant to show "what, if the jury so determined, Celotex reasonably should have known had it either conducted its own tests or been in contact with others in the industry . . . that were testing."
914 F.2d at 29. This rationale applies with equal strength here.
With respect to Celotex's argument that the prejudicial impact of the report outweighed its probative value, the court concluded that "any prejudice to Celotex was de- rived from the Hemeon Report's probative force and thus did not unfairly prejudice Celotex." Id. at 31. Once again, the same is true in this case. OCF argues that George is distinguishable because the court applied a "could have known" rather than a "should have known" standard in that case. However, we find no support for that subtle distinction in the **93 George opinion.
OCF refers us to Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986) (applying Maryland law), and Murphy v. Owens-Illinois, Inc., 779 F.2d 340
(6th Cir. 1985) (applying Tennessee law), cases in which the admissibility of the Hemeon report was not in is- sue. Instead, in these cases the courts merely upheld the respective district courts' exclusion of certain other doc- uments and testimony. n9 Many of the asbestos cases are based on the same general body of industry docu- ments, and the courts of appeals have tended to uphold the discretionary rulings, albeit different, of the trial courts. Compare Lohrmann, 782 F.2d at 1159-60 (holding that district court did not abuse its discretion in excluding doc- uments gathered by Sumner Simpson, a former president of Raybestos Manhattan (now Raymark)), with King v. Armstrong World Indus., Inc., 906 F.2d 1022, 1025 (5th Cir. 1990) (no abuse of discretion in admitting Sumner Simpson papers as they are "relevant to the issue of what knowledge was scientifically discoverable by the industry as **94 a whole at a certain time"), cert. denied, 114
L. Ed. 2d 478, 111 S. Ct. 2236 (1991). In light of the rel- evance of the Hemeon Report to what OCF "should have known" concerning the dangers associated with asbestos, and the absence of unfair prejudice to OCF, we find no abuse of discretion in its admission.
n9 The Hemeon Report contains no prejudicial exhortations of the type that characterized the tes- timony which the court of appeals found "highly prejudicial" in Murphy. 779 F.2d at 344.
IV.
CONCLUSION
For the foregoing reasons we will affirm the dis-
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trict court's order denying OCF's motion for Judgment
NOV and remitting the compensatory damage award to
$500,000.
CONCURBY: ALITO
CONCUR: ALITO, Circuit Judge, concurring:
I concur in the judgment. I also join Parts I, II, III, and V of the opinion of the court. I do not fully agree with the analysis in Part IV of the court's opinion, which discusses the question whether the punitive damage award in this case was excessive under Virgin **95 Islands law or under the Due Process Clause. Hence, I write briefly to
explain my disagreement with the court's discussion of those questions.
In considering the propriety of the punitive damages award under Virgin Islands law, I begin with 1 V.I.C. § 4, which states:
The rules of the common law, as expressed in the restatements of the law approved by the American Law Institute and to the extent not so expressed, as generally understood and ap- plied in the United States, shall be the rules of decision in the courts
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*1392 of the Virgin Islands in cases to which they apply, in the absence of local laws to the contrary.
In order to understand the meaning of this provision, I think it is helpful to examine its origins. Before 1917, the Virgin Islands were generally subject to "the Common and Statute Law of Denmark." Colonial Law of April 6,
1906, § 67. After the United States acquired the Virgin
Islands, Congress, in the Act of March 3, 1917, ch. 171, §
2, 39 Stat. 1132, provided for this body of Danish law to remain in effect "insofar as compatible with the changed sovereignty and not in conflict with the provisions of this Act." This provision was effectively abrogated, however,
**96 in 1920 and 1921, when the Colonial Councils of the Municipality of St. Croix and the Municipality of St. Thomas and St. John, acting pursuant to authority dele- gated by Congress in the 1917 Act, adopted comprehen- sive new Codes of Laws. Each of these Codes contained an identical provision stating that (tit. iv, ch. 13, § 6): "the common law of England as adopted and understood in the United States shall be in force in this District, except as modified by this ordinance." In Callwood v. Virgin Islands Nat'l Bank, 221 F.2d 770, 775 (3d Cir. 1955), our court, in an opinion by Judge Maris, interpreted this provision as follows:
The Virgin Islands have adopted the rules of the common law of England as followed and understood in the United States and we think that the district court in applying those rules is justified in considering the well considered expressions of them which the American Law Institute has incorporated in its Restatements of the Law.
At the time of the Callwood decision, a commission, which included Judge Maris as one of its members, was preparing what later became the Virgin Islands Code. This Code, including title 1, § 4, was **97 enacted in 1957. The Revision Note for this provision states that the earlier provisions had been
rewritten more accurately to express the con- cept of the Common Law as constituting a body of rules established by precedent, as
distinguished from a body of statutory law, and to extend the application of the rules to the restatements of the law prepared and ap- proved by the American Law Institute. See Callwood v. V.I. Nat. Bank, C.A.3d 1955, 3
V.I. 540 221 F.2d 770.
In light of this history, I interpret 1 V.I.C. § 4 to mean that the law of the Virgin Islands, in the absence of a relevant statutory provision, is "the body of rules estab- lished by precedent" n25 "as generally understood and applied in the United States" n26 and that, as suggested in Callwood, the Restatements provide a presumptively authoritative summary of this body of precedent. I do not interpret 1 V.I.C. § 4 to mean that the Restatements, whether adopted before or after 1957, are tantamount to Virgin Islands statutes. On the contrary, I agree with the analysis of this question in Varlack v. SWC Caribbean Inc., 550 F.2d 171 (3d Cir. 1977). **98 Addressing a conflict between a provision of the Restatement (First) of Torts (issued in 1934) and a provision of a Tentative Draft of the Restatement (Second) of Torts, the court observed that "we read the statute as looking to the Restatements only as an expression of 'the rules of common law.'" 550
F.2d at 180 (emphasis in original). n27 Thus, 1 V.I.C. §
4 does not incorporate all of the Restatement provisions in effect in 1957 as if they were actual statutory text; nor does it delegate to the American Law Institute the author- ity to enact changes in the law of the Virgin Islands in all of the areas covered by the Restatements. While some of our opinions cite provisions of the Restatements as if they were statutory law, I respectfully submit that these references (which I take to be merely a form of shorthand) are potentially misleading.
n25 1 V.I.C. § 4, Revision Note. n26 1 V.I.C. § 4.
n27 See also Haize v. Hanover Insurance Co.,
536 F.2d 576, 578 n.1 (3d Cir. 1976) ("It could be argued that the 1942 Restatement of Judgments no longer expresses the rules of the common law to the extent it requires mutuality, and that therefore the common law 'as generally understood and applied in the United States' governs.").
**99
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*1393 It is also inaccurate, in my view, to suggest that we are free to do in this case whatever some state supreme court might feel free to do in a comparable case before it. The role of the highest court of each state is defined by its own state's constitution, statutes, and legal traditions, and many of these courts may have greater authority to contribute to the development of state common law than we have under 1 V.I.C. § 4. Because of 1 V.I.C. § 4, our task, in considering whether the punitive damage award in this case is excessive under Virgin Islands law, is to de- termine whether the award is consistent with the general body of relevant precedents handed down by American courts. Working within this framework, I agree with the court that the award in this case, after remittitur, is per- missible. To the extent that the court mounts a defense of the merits of these precedents, however, I disassociate myself from that analysis. When the common law as un- derstood and applied in the United States provides a clear rule, 1 V.I.C. § 4 requires us to apply that rule regardless of our judgment as to the rule's merits. Congress and the Virgin Islands Legislature have the authority and discre- tion **100 to pass new statutes and thereby adopt for the Virgin Islands different rules contrary to and arguably superior to the common law approach, but, under current law, we do not have such authority. If we had such author- ity, however, I would find much in the existing precedents that merits critical reexamination. n28
n28 Two examples illustrate my point. The first is the court's statement that "even if there were some level of award that would itself evidence prejudice and passion" and thus warrant a new trial, "we can- not hold that the $25 million award here, albeit large, necessarily indicates a verdict tainted by prej- udice and passion." Maj. Op. 26-27. The court goes on to hold, however, that this award was not only
"large" but 25 times too large. Thus, the court in ef- fect holds that even if an award could be so big that it would show passion or prejudice, an award that is merely 25 times too big is not big enough. I must say that I do not find this reasoning compelling.
The second example is the court's statement that "a typical ratio for a punitive damages award to a defendant's net worth may be around one per- cent." Maj. Op. 27. This pronouncement is based on a footnote in Cash v. Beltmann North American Co., 900 F.2d 109, 111 n.3 (7th Cir. 1990), which in turn cited as support for this proposition six re- ported cases in which the average ratio was 0.49%
and the median was 0.21%. The footnote also in- cludes a "but see" citation to two additional cases in which the ratios were 40% and 23.33%. To my mind, this extremely small and disparate sample does not show what the typical ratio is in fact. More important, this sample clearly does not show what ratio is needed to serve the purposes of punitive damages -- to deter and punish.
**101
With respect to OCF's argument that the punitive dam- age award in this case violates due process, I agree with the court's conclusion that this argument is unsound. I am puzzled, however, by the fact that the court, in address- ing this question, seems to place significant reliance on studies and articles that attempt to debunk the critics of punitive damages. Majority Op. at 39-41. I am at a loss to understand precisely what bearing these studies have on the constitutional question before us. I certainly do not think that the content of the Due Process Clause can be as- certained by tallying up the entries in the Index to Legal Periodicals. And I am not willing to appear to endorse the views on policy questions expressed in the writings that the court cites or to vouch for the accuracy of their underlying empirical research.
In sum, while I do not entirely agree with the analysis in Part IV of the court's opinion, I agree with its ultimate conclusion. I therefore concur in the judgment, and I join the portions of the court's opinion that were previously noted.
DISSENTBY: WEIS; BECKER;
DISSENT: WEIS, Circuit Judge, dissenting.
I dissent from the judgment of the court permitting punitive damages **102 in this case.
Asbestos litigation is unique. The large number of persons exposed to asbestos has caused a proliferation of claims, the likes of which courts have never seen, caus- ing serious concern that the traditional tort system cannot adequately process the litigation. As this Court said in In re School Asbestos Litigation, 789 F.2d 996, 1000 (3d Cir. 1986), asbestos litigation presents "an unparalleled situation in American tort law."
In 1986, an estimated 30,000 personal injury suits had been filed against asbestos manufacturers
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*1394 and producers. Id. That figure has since increased substantially. By 1990, 30,401 asbestos cases were pend- ing in the federal courts alone, with about double that amount in the state courts, for a total of approximately
90,000 cases. Judicial Conference Ad Hoc Comm. on Asbestos Litig., Report to the Chief Justice of the United States and Members of the Judicial Conference of the United States (Mar. 1991), reprinted in Asbestos Litig. Rep., Mar. 14, 1991, at 22,698, 22,702-03. A study com- pleted by the National Center for State Courts reports that there may be as many as 129,000 cases pending in state courts alone, **103 making the total of federal and state cases approximately 160,000. State Judges Asbestos Litig. Comm., Megatorts: The Lessons of Asbestos Litigation (July 21, 1992), reprinted in Mealey's Litig. Rep. -- Asbestos, Nov. 20, 1992, at B-1. Another report estimates that between 1990 and 2049 another 668,363 asbestos-related claims will be filed. Eric Stallard & Kenneth Manton, Estimates and Projections of Asbestos- Related Mesothelioma and Exposures Among Manville Personal Injury Settlement Trust Claimants, 1990-2049, at 42 (Draft Nov. 9, 1992).
It is not only claims for personal injuries and deaths resulting from asbestos that have inundated the courts. In addition, thousands and thousands of property damage cases further diminish the available pool of resources. See, e.g., In re Sch. Asbestos Litig., 789 F.2d at 1005.
As might be expected, the flood of asbestos cases has taken its toll on the defendant asbestos manufactur- ers. The Ad Hoc Committee reported that of the twenty- five major asbestos companies, eleven had filed peti- tions in bankruptcy. Judicial Conference Ad Hoc Comm., supra, at 22,705. Later reports indicate that fifteen **104 or sixteen companies have filed for bankruptcy. State Judges Asbestos Litig. Comm., supra, at B-2; Don J. DeBenedictis, Model for Asbestos Settlements, A.B.A. J., April 1993, at 22. Moreover, that "number does not include the numerous smaller distributors that have been targeted in the wake of absent manufacturers and who have in turn become insolvent." Peter H. Schuck, The Worst Should Go First: Deferral Registries in Asbestos Litigation, 15 Harv. J. L. & Pub. Pol'y 541, 555 (1992).
The first of the major asbestos manufacturers to en- ter bankruptcy was Johns-Manville, which sought to use Chapter 11 essentially as a giant interpleader action. As part of the Manville reorganization, a trust was created to settle pending and future asbestos claims. Although the trust concept had the potential for equitably distribut- ing assets to present and future claimants, the bankruptcy proceeding was itself very expensive and the results ulti- mately proved to be unsatisfactory.
Even though punitive damages were not allowed, the trust was essentially insolvent after operating for only a year and a half. In re Joint E. & S. Dist. Asbestos Litig., 129 Bankr. 710, 754 **105 (E. & S.D. N.Y.
1991), vacated on procedural grounds, 982 F.2d 721
(2d Cir. 1992). Reports indicate that the trust received
192,347 claims, Stefan Fatsis, Lower Sums for Victims of Asbestos, quoted in Phila. Inquirer, March 18, 1992, at C8, and that the trust's funds of approximately $2.6 bil- lion were overshadowed by present and future liabilities estimated as high as $7 billion, see In re Joint E. & S. Dist. Asbestos Litig., 129 Bankr. at 765 . The swift depletion of assets was caused by high transaction costs, the failure to anticipate the magnitude of claims, and the fact that the average settlement was much higher than expected. Id. at 754-62. Additionally, the trust paid on a first come, first served basis, rather than on priority determined by the extent of injury.
The district court intervened to impose measures for a more equitable distribution of the funds and eventually approved an arrangement that altered the distribution pro- cess so that those most seriously injured were paid first. Id. at 768-70. In addition, a serious attempt was made to predict **106 future claims so that present and future claimants would be paid an equitable percentage of their claims' value. Id.
In commenting on the settlement, the district court noted the grim prospects for future asbestos claimants in the absence of a solution. The current defendants "do not have, and they probably will not have, assets to pay for their current and contingent asbestos
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*1395 liabilities given the present mode of disposing of asbestos claims." Id. at 907. The Manville experience, thus, demonstrates that even purely compensatory pay- ments for future claims are in jeopardy.
Subsequent claims and bankruptcy filings have in- creased the likelihood that future claimants will not be able to recover for their injuries. As the Ad Hoc Committee said:
" A large number of individuals have claims
. . . that are not yet ripe for adjudication. Because many of the defendants in these cases have limited assets that may be called upon to satisfy the judgments obtained un- der current common tort rules and reme- dies, there is a 'real and present danger that the available assets will be exhausted before those later victims can seek compensation to which they are entitled.' Jackson v. Johns- Manville Sales Corp., 750 F.2d 1314, 1330
(5th Cir. 1985), **107 cert. denied, 478
U.S. 1022, 92 L. Ed. 2d 743, 106 S. Ct. 3339
(1986)."
Judicial Conference Ad Hoc Comm., supra, at 22,715-
16. As one of its recommendations to Congress, the Committee suggested legislation "requiring treatment of available assets to take into account future claimants." Id. at 22,716.
It is within this setting of burgeoning litigation, cor- porate collapse, and future compensatory inadequacy that the present case involving punitive damages arises.
This Court is confronted for the first time with an asbestos case brought under Virgin Islands law where punitive damages have been awarded. We are in a posi- tion similar to that of state supreme courts in determining the common law and Restatements applicable within this jurisdiction. We write on a clean slate and shoulder a clear responsibility to resolve a difficult issue. We are not bound, nor excused, by mistaken determinations in other jurisdictions in the past.
The desirability of permitting punitive awards has been subjected to vigorous assault in recent years, par- ticularly in cases like the one before us. Whether the theories underlying exemplary damages hold true in the mass tort context has been questioned **108 in such cases as: In re Bendectin Prod. Liab. Litig., 749 F.2d 300,
305-07 (6th Cir. 1984); In re N. Dist. of Cal., Dalkon Shield IUD Prod. Liab. Litig., 693 F.2d 847, 851-52 (9th Cir. 1982); In re Fed. Skywalk Cases, 680 F.2d 1175,
1179-83 (8th Cir. 1982); and In re "Agent Orange" Prod. Liab. Litig., 100 F.R.D. 718, 725 (E.D. N.Y. 1983). In none of those instances, however, did the problem match the magnitude of the asbestos litigation crisis. As the State Judges Litigation Committee reports, "There is no more controversial issue in mass tort litigation than punitive damages." State Judges Asbestos Litig. Comm., supra, at B-9.
I do not propose to enter the debate here over the mer- its of punitive damages in general. n29 For purposes of this case, I accept the premise that in appropriate cases punitive damages may be assessed in the Virgin Islands. See Restatement (Second) of Torts § 908(2); n30 Acosta v. Honda Motor Co., 717 F.2d 828, 833-41 (3d Cir. 1983). However, it is necessary to discuss the justifications for punitive **109 damages and whether those purposes are served in the mass tort area.
n29 For a representative -- but by no means complete -- sample of articles, see Dennis N. Jones, S. Brett Sutton & Barbara D. Greenwald, Multiple Punitive Damages Awards for a Single Course of Wrongful Conduct: The Need for a National Policy to Protect Due Process, 43 Ala. L. Rev. 1
(1991); Richard A. Seltzer, Punitive Damages in Mass Tort Litigation: Addressing the Problems of Fairness, Efficiency and Control, 52 Fordham L. Rev. 37 (1983); Special Project, An Analysis of the Legal, Social, and Political Issues Raised by Asbestos Litigation, 36 Vand. L. Rev. 573 (1983); Symposium, Punitive Damages, 40 Ala. L. Rev. 687
(1989); Symposium, Punitive Damages, 56 S. Cal. L. Rev. 1 (1982).
n30 Professor Prosser, a Reporter for the Restatement (Second) of Torts, conceded that puni- tive damages in mass torts present a "problem which has arisen to haunt the courts." Noting the issue of multiple awards, he wrote: "The ques- tion might well lead to a re-examination of the whole basis and policy of awarding punitive dam- ages." William L. Prosser, The Law of Torts § 2, at 13 (4th ed. 1971). Indeed, a recent report to the American Law Institute suggests major alterations in the law of punitive damages. 2 American Law Inst., Reporters' Study on Enterprise Responsibility for Personal Injury: Approaches to Legal and Institutional Change 256-64 (1991).
**110
I propose to meet head-on an issue presented here -- that is, whether unfairness to
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*1396 injured persons whose claims will come due after available funds have been exhausted requires a common law bar on continuing punitive awards. I will also review punitive awards in terms of unfairness to asbestos defen- dants and due process. See TXO Prod. Corp. v. Alliance Resources Corp., 125 L. Ed. 2d 366, 61 U.S.L.W. 4766,
113 S. Ct. 2711 (U.S. June 25, 1993); Pacific Mut. Life
Ins. v. Haslip, 499 U.S. 1, 26-27, 113 L. Ed. 2d 1, 111
S. Ct. 1032 (1991). Although there are serious questions of bias, prejudice, and improper closing arguments to the jury present in this record, I will not discuss them here.
I.
COMMON LAW PUNITIVE DAMAGES
The Restatement (Second) of Torts § 908(2) provides that "punitive damages may be awarded for conduct that is outrageous, because of the defendant's evil motive or his reckless indifference to the rights of others." (empha- sis supplied). Comment a explains that "the purposes of awarding punitive damages . . . are to punish the person doing the wrongful act and to discourage him and others from similar conduct in the future."
When considering punitive awards, several basic
**111 principles must be emphasized. First, puni- tive damages are designed for retribution and deterrence.
"They are not compensation for injury. Instead, they are private fines levied by civil juries to punish reprehensi- ble conduct and to deter its future occurrence." Gertz v. Robert Welch, Inc., 418 U.S. 323, 350, 41 L. Ed. 2d 789,
94 S. Ct. 2997 (1974). The fairness inherent in due pro- cess requires that punitive assessments not exceed those amounts necessary to inflict retribution and prevent reoc- currence. See, e.g., Vasbinder v. Scott, 976 F.2d 118, 121
(2d Cir. 1992). When retribution and deterrence are ac- complished without the imposition of punitive damages, use of that weapon is no longer justified.
Second, punitive damages are a windfall. They do not reimburse losses that plaintiffs have suffered, but provide an amount over and above that necessary for fair compen- sation. See, e.g., City of Newport v. Fact Concerts, Inc.,
453 U.S. 247, 267, 69 L. Ed. 2d 616, 101 S. Ct. 2748
(1981).
Third, there is no compelling reason why injured but fully compensated plaintiffs should receive punitive
awards. The aims of retribution and deterrence can be ac- complished **112 by making punitive damages payable to the state. n31 Indeed, nine states have enacted statutes that designate that a portion of any punitive award goes to the state, ranging from 20% in New York to 75% in Iowa and Georgia. Colo. Rev. Stat. § 13-21--102(4); Fla. Stat. Ann. § 768.73; Ga. Code Ann. 51-12--5.1(e)(2); Ill. Ann. Stat. ch. 110, par. 2-1207; Iowa Code Ann. §
668A.1(2)(b); Mo. Ann. Stat. § 537.675; N.Y. Civ. Prac. L. & R. § 8701; Or. Rev. Stat. § 18.540; Utah Code Ann.
§ 78-18--1(3). n32
n31 See E. Jeffrey Grube, Punitive Damages: A Misplaced Remedy, 66 S. Cal. L. Rev. 839, 850-
55 (1993).
n32 The constitutionality of such provisions has been challenged in three of those states. In Gordon v. State, 585 So. 2d 1033, 1035-36 (Fla. App. 1991), aff'd, 608 So. 2d 800 (Fla. 1992), cert. denied, 123
L. Ed. 2d 268, 113 S. Ct. 1647 (1993), the Court found the Florida provision constitutional because a claimant does not have a cognizable right to the re- covery of punitive damages. However, in McBride v. General Motors Corp., 737 F. Supp. 1563 (M.D. Ga. 1990), and Kirk v. Denver Pub. Co., 818 P.2d
262 (Colo. 1991), the courts found statutes uncon- stitutional. McBride held that the Georgia statute violated the Equal Protection Clause because it only applied to product liability claimants and allowed non-product liability claimants to recover 100% of their awards. 737 F. Supp. at 1569-70 . Kirk ruled that a punitive damages judgment is a private property right and that the Colorado statute is an unconstitutional taking of property. 818 P.2d at
272.
**113
In the asbestos context, punitive awards are not needed for retribution and deterrence. Actually, there is little con- duct to deter because few asbestos-containing products are still manufactured in the United States. n33 Owens- Corning, the defendant in this case, ceased manufacturing asbestos-containing Kaylo in November 1972, more than twenty years ago, and no longer produces or
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*1397 distributes any asbestos-containing products. That being so, this punitive award cannot be justified by a concern that Owens-Corning will continue its challenged practice in the future. See Magallanes v. Superior Court,
167 Cal. App. 3d 878, 213 Cal. Rptr. 547, 552 (Ct. App.
1985) ("The objective of deterrence has little relevance where the offending goods have long since been removed from the marketplace.").
n33 Lester Brickman, The Asbestos Litigation Crisis: Is There a Need for an Administrative Alternative?, 13 Cardozo L. Rev. 1819, 1863-66
(1992).
Moreover, the avalanche of compensatory claims against **114 asbestos manufacturers has surely served as more of a punishment and deterrent than individual punitive assessments in isolated cases against manufac- turers of other types of products. As one judge has ex- plained:
"No manufacturer could engage consciously in wrongdoing that would expose it to such overwhelming strict liability with any rea- sonable expectation of doing so profitably. On the contrary, the prospect of exposure to massive litigation in strict liability pro- vides the impetus for manufacturers to take affirmative steps to ensure the safety of their products, since mere non-negligent behavior is no guarantee against strict liability.
The significance of punitive damages as a deterrent depends upon the size of the penalty increase relative to the 'base penalty' ex- acted by strict liability compensatory awards. Because of the dimensionless character of the prospects for future litigation in this instance, the 'base penalty,' for all practical purposes, is illimitable. Correspondingly, the signifi- cance of punitive damages as a deterrent di- minishes to the vanishing point."
Jackson v. Johns-Manville Sales Corp., 727 F.2d 506,
527 (1984), **115 vacated, 750 F.2d 1314 (5th Cir.
1985) (en banc).
That point is illustrated strikingly by Owens- Corning's experience. Compensatory awards have con- sumed all profits made from the sale of asbestos- containing products. Total gross sales of Kaylo were
$142,720,000. As of May 31, 1991, defendant had paid
claims for "hundreds of millions of dollars" in 62,588 cases and incurred litigation expenses in excess of $100 million. In 1990 alone, $117 million was paid on 12,300 claims. In addition, 86,192 cases are presently pending with hundreds more being filed each month. In these cir- cumstances, punitive awards are certainly not necessary to provide an effective deterrent.
Some courts and commentators have expressed con- cerns that the denial of punitive damages in a mass tort set- ting might in effect reward defendants because the harm caused was so extensive. n34 However, such concerns have no validity here. It is disingenuous to speak of reap- ing a "reward" when compensatory damages dwarf any profits made from asbestos-containing products and those damages by themselves have forced manufacturers into bankruptcy. n35
n34 "We do not believe that defendants should be relieved of liability for punitive damages merely because, through outrageous misconduct, they may have managed to seriously injure a large number of persons. Such a rule would encourage wrongdo- ers to continue their misconduct because, if they kept it up long enough to injure a large number of people, they could escape all liability for punitive damages." Froud v. Celotex Corp., 107 Ill. App. 3d
654, 437 N.E.2d 910, 913, 63 Ill. Dec. 261 (1982),
rev'd on other grounds, 98 Ill. 2d 324, 456 N.E.2d
131, 74 Ill. Dec. 629 (1983).
**116
n35 As one commentator explained, punitive damages seek "to deter a specific course of con- duct by decreeing that a manufacturer already con- demned to 'death' via bankruptcy for engaging in a course of conduct resulting in enormous compen- satory liability, would again be condemned to ex- tinction if the act were particularly heinous. 'Dying' a second time is certainly inconvenient and while the prospect may accelerate the rate of the 'first' death, that hardly constitutes deterrence." Lester Brickman, supra at 1864.
The Ad Hoc Committee cited a 1984 Rand study reporting that in a sample period between 1980 and
1982, punitive damages totalling $4,934,000 had been awarded in asbestos cases. Judicial Conference Ad Hoc Comm., supra, at 22,724 n.54. More recent figures are substantially higher. n36 In testimony before a House Subcommittee on February 26,
1 F.3d 1371, *1398; 1993 U.S. App. LEXIS 19482, **116;
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*1398 1992, Judge William Schwarzer, the Director of the Federal Judicial Center, said:
"Punitive damages compete with compen- satory damages for the increasingly scarce resources of asbestos defendants and their insurers. Until the claims of future **117 claimants become liquidated, distribution of punitive damages to current claimants cre- ates a risk of exhausting funds before poten- tial claimants discover their injuries. Some mechanism to avoid this outcome, at least un- til more precise information becomes avail- able about future claims, may be necessary for a national solution that has meaning for future claimants."
n36 The compilation of judgments that defen- dant provided to the court in this case lists a single punitive award for $150 million and other awards from 1989 and 1990 totaling approximately $113 million.
Asbestos Litigation Crisis in Federal and State Courts: Hearings Before the Subcomm. on Intellectual Property and Judicial Administration of the House Comm. on the Judiciary, 102d Cong., 2d Sess. 132-33 (1992) (state- ment of Hon. William W. Schwarzer). Judge Schwarzer also noted that less than 1% of asbestos cases proceed to judgment. Id. at 137. Thus, punitive damages as such are only available in that small percentage of cases. Moreover, they **118 are not awarded in every trial even though the same defendant and the same conduct is at issue. Nevertheless, the potential for punitive awards is a weighty factor in settlement negotiations and inevitably results in a larger settlement agreement than would ordi- narily be obtained. To the extent that this premium exceeds what would otherwise be a fair and reasonable settlement for compensatory damages, assets that could be available for satisfaction of future compensatory claims are dissi- pated. Id. at 137-38.
Rather early in the wave of asbestos litigation, a mi- nority of the Court of Appeals for the Fifth Circuit force- fully questioned whether the industry's resources would be adequate to compensate future claimants. Jackson v. Johns-Manville Sales Corp., 750 F.2d 1314, 1330 (1985)
(en banc) (Clark, J., joined by four others dissenting), later appeal, 781 F.2d 394, 415-17 (5th Cir. 1986) (en banc)
(Clark, J., joined by four others dissenting). A majority of that Court decided to certify to a state court the question of whether plaintiffs could recover punitive damages in asbestos cases. The dissenting judges, arguing **119 that the problem was national in scope, advocated taking a more forceful stand. Noting that the "field of asbestos lit- igation had exploded," they pointed out that an "already astronomical and still growing number of plaintiffs are seeking individual recoveries against a finite pool of as- sets belonging to a relatively small group of defendants." Jackson, 750 F.2d at 1330.
Taking issue with the decision to certify the question to the state court, the dissent observed that " a state seek- ing to protect its own citizens can only shape its law to maximize the recovery of its own early plaintiffs, so that at least those individuals will not be impeded in the legal scramble for a share of insufficient assets." Id. The sit- uation has only worsened since the time of the Jackson opinions, and a panel of that same Court in 1990 con- ceded its "misgivings" over awarding punitive damages in asbestos cases, but found itself shackled by binding precedent. King v. Armstrong World Indus., 906 F.2d
1022, 1033 (5th Cir. 1990).
As the Jackson dissent commented and as we dis- cussed in In re School Asbestos Litigation, 789 F.2d at
1001, **120 parochial concerns tend to influence the decision to make punitive damages available in cases of this nature. That approach was apparent, for example, in Fischer v. Johns-Manville Corp., 103 N.J. 643, 512 A.2d
466 (N.J. 1986). In discussing the suggestion that a limi- tation on punitive awards be imposed, the Fischer Court said: "Such a cap would be ineffective unless applied uniformly. To adopt such a cap in New Jersey would be to deprive our citizens of punitive damages without the concomitant benefit of assuring the availability of com- pensatory damages for later plaintiffs. This we decline to do." 512 A.2d at 478. What that opinion failed to ac- knowledge was that giving windfall punitive awards to early plaintiffs poses the likely prospect that some future New Jersey plaintiffs will be unable to recover compen- satory damages for their injuries.
The New Jersey Supreme Court also stated that it failed "to see the distinction, in the case of Johns-Manville
before its bankruptcy , between the effect of compen- satory damages and that of punitive damages." Id. at
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*1399 477. To some extent, the Court was correct.
**121 Every dollar expended on punitive awards, as well as those expended in compensatory damages, will diminish, eventually to the point of exhaustion, resources available for paying future plaintiffs' claims. There is, however, an important distinction. Compensatory dam- ages are a remedy for injuries suffered. Punitive awards are not. A dissenting justice in Fischer posed an apt rhetorical question: "But why, for example, should a few Dalkon Shield users receive several millions in punitive- damages awards, while others receive nothing from the bankrupt A. H. Robins Co.?" Id. at 488 n.3 (O'Hern, J., dissenting).
Unquestionably, a national solution is needed. Despite the deteriorating situation, Congress has declined to act and class actions are an inadequate remedy. In the mean- time, the drain on available resources continues. It is time -- perhaps past due -- to stop the hemorrhaging so as to protect future claimants.
The parochial concerns that have influenced some states to allow punitive damages would justify the major- ity's decision here. But at some point, some jurisdiction must face up to the realities of the asbestos crisis and take a step that **122 might, perhaps, lead others to adopt a broader view. Courts should no longer wait for congressional or legislative action to correct common law errors made by the courts themselves. Mistakes created by courts can be corrected by courts without engaging in judicial activism. n37 It is judicial paralysis, not activism, that is the problem in this area. As we said in Frilette v. Kimberlin, 508 F.2d 205, 212 (3d Cir. 1974) (en banc), it is not necessary to wait for legislative action when the error was judge made and it can be corrected in the same fashion. "We cannot escape the fact that what has been done is in the nature of what, in the words of Chief Justice Hughes, might be called a 'self-inflicted wound.'" Id.
n37 In his dissertation prepared for the LLM program for Judges at the University of Virginia Law School, Judge Surrick concludes that puni- tive damages have no place in asbestos litiga- tion. He says that balancing social and economic consequences mandates that conclusion. He also refers to "judge-made doctrines" of punitive dam- ages in asbestos litigation and says that appellate courts should rise above parochial considerations.
"When the reasons for a rule no longer exist, the rule should be abolished." Honorable R. Barclay Surrick, Punitive Damages and Asbestos Litigation
in Pennsylvania: Punishment or Annihilation?, 87
Dick. L. Rev. 265, 301 (1983).
**123
I am persuaded that, at this point, the available re- sources of asbestos manufacturers will be exhausted be- fore all deserving claimants have received compensatory damages. n38 Predictions of future events, of course, al- ways carry some risk of error. In this instance, however, the storm warnings are too foreboding to be brushed aside. Absolute certainty likely will appear only after disaster has struck -- when the time for effective anticipatory ac- tion has vanished. If there is to be error in forecasting, I would prefer that it be in favor of redress for future claimants, rather than largesse for those who have re- ceived adequate relief.
n38 As Judge Weinstein has concluded: "over- hanging the massive failure of the present system is the reality that there is not enough money avail- able from traditional defendants to pay for current and future claims. Even the most conservative es- timates of future claims, if realistically estimated on the books of many present defendants, would lead to a declaration of insolvency . . . ." In re Joint E. & S. Dist. Asbestos Litig., 129 Bankr. at 751 ; see also Jack B. Weinstein & Eileen B. Hershenov, The Effect of Equity on Mass Tort Law, 1991 U. Ill. L. Rev. 269, 290 ("Our view is that from the be- ginning mass torts should be treated similarly to a bankruptcy proceeding. No matter how financially healthy the defendants in these huge cases, the sheer number of present and future victims means that we are ultimately dealing with a limited compensation fund.")
**124
The cruel reality underlying the issue in this case can- not be ignored. As Chief Judge Clark said in the Jackson case: "This seminal case concerns much more than an individual claim. . . . We know better. Our dockets tell us so . . . ." 781 F.2d at 416. It is already late in the day, but we have an obligation to take what steps we can.
It should require no extended discussion to conclude that in establishing a proper priority, compensation for victims should rank first. Next must come necessary but reasonable administrative costs attributable to compensa- tion. n39
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*1400 Far down the list -- if not at the very bottom -- should come punitive awards, which are by definition over and above adequate compensation. Exemplary awards are an element that can equitably and easily be eliminated.
n39 The high transaction costs of asbestos cases that diminish the pool of available assets have been authoritatively documented. They are also a very serious problem, but one that cannot be addressed here.
Under **125 current conditions, even if the pur- poses of punishment and deterrence were served, it is fanciful to believe that such factors are worthy of con- sideration in assessing priorities to limited funds. In this context, the benefits of punitive awards are outweighed by their costs to society. Cf. David G. Owen, The Moral Foundations of Punitive Damages, 40 Ala. L. Rev. 705,
724-25, 737-39 (1989). n40 Punishment and deterrence cannot justify extra-compensatory awards when they pe- nalize future claimants by depleting available funds.
n40 Professor Owen, whose endorsement of punitive damages in products liability cases has been widely cited, see David G. Owen, Punitive Damages in Products Liability Litigation, 74 Mich. L. Rev. 1257, 1325 (1976), stated: "Once the bankruptcy of the defendant manufacturer appears to be a real and imminent possibility, punitive damages should no longer be available at all." It is interesting that in a later law review ar- ticle, Professor Owen substantially modified his endorsement of punitive damages and cautioned against excessive awards. See David G. Owen, Problems in Assessing Punitive Damages Against Manufacturers of Defective Products, 49 U. Chi. L. Rev. 1 (1982).
**126
Society's interest in protecting future claimants de- mands that present plaintiffs -- both those who go to trial and those who settle-- forego the "bonus" offered by puni- tive damage verdicts or high settlements achieved by their threat. Courts must recognize that the public interest out- weighs parochial concerns in having citizens within their jurisdictions "get theirs" now. Such a selfish approach, af- ter all, is unjust, not only to future claimants in other parts of the country, but within the courts' own jurisdictions as well. n41
n41 It is worth noting that two trial courts have recognized that punitive awards present a danger
that available funds will be inadequate to pay com- pensatory damages.
Judge Marshal A. Levin of the Maryland Circuit Court of Baltimore City ordered that payment of punitive awards for approximately 8,500 plaintiffs in a consolidated proceeding be deferred until com- pensatory damages have been satisfied. Abate v. A.C. & S., Inc., No. 89236704, slip op. at 26 (Md. Cir. Ct. Baltimore City Dec. 9, 1992).
In a somewhat similar action, Judge Charles Weiner of the United States District Court for the Eastern District of Pennsylvania (to whom the multi-district panel has assigned some 30,000 fed- eral asbestos cases) severs punitive damages claims from the compensatory ones. In ordering cases back to transferor courts for trial, Judge Weiner provides that "the issue of punitive damages must be resolved at a further date." E.g., In re Asbestos Prods. Liab. Litig. (No. VI), No. MDL 875, slip op. at 2 (E.D. Pa. June 8, 1993) (order relating to No. 92-6377 from the Southern District of New York).
In reality, it is quite likely that in many instances the delay will result in payment of no punitive dam- ages, or at a time so far in the future that many of the plaintiffs will no longer be alive.
**127
I have no doubt that this Court has the power to pro- hibit punitive awards in asbestos cases within the Virgin Islands and I am convinced that it has an obligation to do so in order to protect the interests of those whose claims for compensation will be jeopardized.
II.
DUE PROCESS
Some of the same considerations that are important in deciding whether punitive awards are appropriate un- der local law also play a part in determining whether the assessment of such sums violates due process.
Although plaintiff here asserts that Owens-Corning failed to provide a sufficient basis for a ruling on due pro- cess, the record establishes that pretrial motions to dismiss punitive damage claims were denied by the district court. After the jury had begun its deliberations on punitive damages in the bifurcated trial, the defense renewed its contention that they would be unconstitutional because of previous awards. Counsel stated that four punitive awards had been entered against Owens-Corning, but indicated that there might be others as well.
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*1401 The district court concluded that a punitive award would not be unconstitutional because "even in view of
defendant's negative net worth the amount is certainly
**128 not enough to sting the company . . . and it's not unconstitutional because your client to this date has been subjected to a huge burden with respect to punitive damages."
In post-trial proceedings, the district court directed both parties to furnish information on punitive awards in other asbestos cases during the preceding two years. In response, plaintiff listed thirty-eight cases -- two which included punitive awards against Owens-Corning of $4,150,000 and $5,000,000. In his statement, plaintiff admitted that "other juries had reached the same con- clusion regarding OCF's conduct and awarded punitive damages accordingly."
Defendant filed an extensive compilation, and an anal- ysis of the thirty-eight cases listed by plaintiff, together with an affidavit detailing the punitive awards against Owens-Corning to that date. In its submission, defendant listed $19,975,000 awarded against it in punitive dam- ages.
On this record, defendant adequately preserved its objections asserting a denial of due process.
The Supreme Court has indicated that punitive awards may violate substantive due process. In TXO, 61 U.S.L.W. at 4771, the Court concluded that as **129 to the verdict at issue there, "we are not persuaded that the award was so
'grossly excessive' as to be beyond the power of the State to allow." In Haslip, 499 U.S. at 35 n.11, the Court noted that punitive awards may be required to comport with
"procedural and substantive due process protections." Due process concerns are present in two aspects that have a correlation to the criminal field -- proportionality and repetitiveness. The Supreme Court has made it clear that the Excessive Fines Clause of the Eighth Amendment and the Double Jeopardy Clause of the Fifth Amendment are not directly applicable to suits between private liti- gants. See Browning-Ferris Indus. v. Kelco Disposal, Inc.,
492 U.S. 257, 260, 106 L. Ed. 2d 219, 109 S. Ct. 2909
(1989); United States v. Halper, 490 U.S. 435, 451, 104
L. Ed. 2d 487, 109 S. Ct. 1892 (1989); see also Hansen
v. Johns-Manville Prod., 734 F.2d 1036, 1042 (5th Cir.
1984). Nevertheless, the analogy between "punishment" in the criminal field and exemplary awards in civil litiga- tion is strong enough that the rationale in the former area is useful in analyzing the scope of the latter.
As one commentator **130 remarked, "To pun- ish the guilty beyond their guilt is not different from punishment of the innocent, and it cannot be done in a manner consistent with ordinary notions of justice." Dan B. Dobbs, Ending Punishment in "Punitive" Damages: Deterrence-Measured Remedies, 40 Ala. L. Rev. 831, 854
(1989). "By definition, punitive damages are based upon the degree of defendant's culpability." Massachusetts Bonding & Ins. v. United States, 352 U.S. 128, 133, 1
L. Ed. 2d 189, 77 S. Ct. 186 (1956).
Neither TXO nor Haslip provide much guidance in the mass tort area because the wrongful conduct in each case affected only the other party to the suit. Obviously, such limited disputes are quite unlike asbestos litigation, where literally thousands of plaintiffs have brought suits against a relatively small number of manufacturers and where punitive awards are sought on essentially the same basis -- an alleged failure to warn.
As a further complication in the asbestos field, sheer volume, varying state laws, and concerns for future, not- yet-identified, claimants make consolidation of all the as- bestos claims impossible. Legal scholars have discussed this problem **131 and proposed legislation to per- mit class actions and similar procedures to remedy the problem. n42
n42 Dennis N. Jones, S. Brett Sutton & Barbara D. Greenwald, supra, at 23-32; David G. Owen, supra, 74 Mich. L. Rev. at 1325; Richard A. Seltzer, supra, at 83-91; Comment, Mass Liability and Punitive Damages Overkill, 30 Hastings L.J. 1797,
1800-08 (1979).
Some commentators suggest that the first award of punitive damages arising from a course of conduct should preempt all subsequent punitive claims. Others point to the asserted unfairness of permitting early plaintiffs
1 F.3d 1371, *1402; 1993 U.S. App. LEXIS 19482, **131;
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*1402 to receive all of the punitive damages that can rationally be sustained, thus depriving later claimants of a similar opportunity. Still others suggest that juries in later cases should be fully informed as to all of the punitive damages that have been previously awarded. Asbestos defendants object to this proposal because such informa- tion might prejudice jurors, convincing them that **132 punitive damages should be awarded in all cases.
Each of those proposals present problems of their own. The formidable complications unique to the mass tort field have led most courts that have been presented with due process challenges to deflect the attack by deciding each case on a subsidiary factual or procedural issue and de- ferring to a later date the thorny question of due process. See, e.g., Johnson v. Celotex Corp., 899 F.2d 1281, 1287-
88 (2d Cir. 1990) (inadequate record); Racich v. Celotex
Corp., 887 F.2d 393, 397 (2d Cir. 1989) (same).
Even the few opinions that have thoughtfully dis- cussed due process objections have been deterred by gov- erning law in their jurisdiction. For instance, in Juzwin v. Amtorg Trading Corp., 705 F. Supp. 1053, vacated,
718 F. Supp. 1233 (D. N.J. 1989), the court was troubled by the serial imposition of punitive damages in asbestos cases, but ultimately decided that it would be inequitable to deny them to one plaintiff when other plaintiffs in the same and other state jurisdictions would nevertheless still have the **133 opportunity to seek such awards. n43
That approach is understandable, but undesirable never- theless. The rationale is faulty because it skews the scales by placing the emphasis on the wrong party.
n43 See also Jim Fieweger, Note, The Need for Reform of Punitive Damages in Mass Tort Litigation: Juzwin v. Amtorg Trading Corp., 39
DePaul L. Rev. 775 (1990); N. Todd Leishman, Note, Juzwin v. Amtorg Trading Corp.: Toward Due Process Limitations on Multiple Awards of Punitive Damages in Mass Tort Litigation, 1990
Utah L. Rev. 439.
The earlier part of this opinion weighed the rights of future claimants to compensation against the opportunity of current claimants to receive windfalls. That balancing did not rest on a concern for asbestos defendants, but
rather was based on the assumption that they owed fair and reasonable compensation based on either negligence or strict liability -- even to the extent of insolvency.
However, because punitive awards are windfalls
**134 and not compensation, courts should place less emphasis on plaintiffs' rights when evaluating due process arguments. Plaintiffs' entitlements are, after all, met by compensatory damages. n44 Instead, when con- sidering the substantive due process limits on punitive awards, a court's analysis should focus on the defendants. See Malcolm E. Wheeler, The Constitutional Case for Reforming Punitive Damages Procedures, 69 Va. L. Rev.
269, 292 (1983) ("As courts have uniformly held, no plaintiff has a right to punitive damages: the purpose of punitive damages is to vindicate the public interest, not that of a particular plaintiff.").
n44 Arguments can be made for distributing punitive awards among all who suffered from the defendants' conduct -- but that proposition is irrele- vant in determining that, at some point, due process demands an end to punishment.
If it were possible for a single jury to consider the extent of harm as well as the number of victims and then factor that data into a single **135 punitive award against an asbestos manufacturer, there would be no ba- sis for imposing punishment thereafter. See, e.g., In re
"Agent Orange" Prod. Liab. Litig., 100 F.R.D. at 728
("In theory, . . . when a plaintiff recovers punitive dam- ages against a defendant, that represents a finding by the jury that the defendant was sufficiently punished for the wrongful conduct. There must, therefore, be some limit, either as a matter of policy or as a matter of due process, to the amount of times defendants may be punished for a single transaction."). The difficulty is that in asbestos liti- gation, no single jury can assess a punitive damage award that includes all victims. Thus, courts must confront the unavoidable and undeniable fact that defendants are be- ing punished over and over again for the same general course of conduct. See Roginsky v. Richardson-Merrell, Inc., 378 F.2d 832, 839-41 (2d Cir. 1967).
Although Halper, 490 U.S. at 451, found that the "pro- tections of
1 F.3d 1371, *1403; 1993 U.S. App. LEXIS 19482, **135;
28 V.I. 467; CCH Prod. Liab. Rep. P13,543
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*1403 the Double Jeopardy Clause are not triggered by litigation between private parties," that opinion uses language that is quite **136 instructive in a due process analysis. As the Court observed:
"It is commonly understood that civil pro- ceedings may advance punitive as well as remedial goals, and, conversely, that both punitive and remedial goals may be served by criminal penalties. The notion of punish- ment, as we commonly understand it, cuts across the division between the civil and the criminal law . . . . Simply put, a civil as well as a criminal sanction constitutes punishment when the sanction as applied in the individual case serves the goals of punishment."
Id. at 447-48 (citations omitted). Those goals are retribu- tion and deterrence. Id. at 448; see also Austin v. United States, 125 L. Ed. 2d 488, 61 U.S.L.W. 4811, 4813, 113
S. Ct. 2801 (U.S. June 28, 1993) (question is not whether statutory forfeiture is "civil or criminal, but rather whether it is punishment").
Because punitive damage awards serve the same pur- poses as criminal sanctions, Courts of Appeals concede that, at some point, multiple punitive awards in mass tort cases violate due process. See, e.g., Simpson v. Pittsburgh Corning Corp., 901 F.2d 277, 281-82 (2d Cir. 1990);
**137 Johnson, 899 F.2d at 1287-88; Racich, 887 F.2d at 398 ("We agree that the multiple imposition of punitive damages for the same course of conduct may raise seri- ous constitutional concerns, in the absence of any limiting principle."); cf. In re School Asbestos Litig, 789 F.2d at
1004-05. Those opinions, however, have not extensively explored the dimensions of this constitutional argument. Initially, it is important to note the wrongful conduct charged to asbestos manufacturers -- a failure to warn of the dangerous characteristics of the substance for years after those dangers became known to the industry. We also observe that asbestos was taken off the market in 1971. Punitive awards that are made today, therefore, punish corporate defendants over and over again for transgres- sions that occurred thirty to sixty years ago. Payment
of those awards not only jeopardizes the ability to pro- vide compensation for future plaintiffs, but also, by forc- ing companies into bankruptcy, injures employees, cus- tomers, and trade creditors who took no part in, and had no knowledge of, the wrong doing.
Moreover, **138 unlike the situation in TXO, these cases do not involve a scenario in which the incumbent corporate officials personally participated in fraudulent and malicious activity. Punitive awards in asbestos cases usually do not punish the individuals who were respon- sible for the offensive conduct. See American Law Inst., supra, at 254-55. Thus, in this field, punishment is not only repetitive, but is inflicted on a vicarious basis. Basic notions of due process are offended by punishment that occurs over and over again as has happened in asbestos litigation. n45
n45 See William W. Schwarzer, Punishment Ad Absurdum, 11 Cal. Law. 116 (1991) ("Surely allowing successive awards of punitive damages for the same conduct is offensive to the most basic no- tions of due process and to the spirit underlying the constitutional bar against double jeopardy. More important, it is poor public policy.").
It may be argued that it would be unfair to disallow punitive awards at this point because **139 current plaintiffs thus will not receive what earlier ones did. That is true. Nevertheless, such unevenness does not justify continued punishment of asbestos defendants. It would have been better had the matter of punitive damages been resolved at the beginning of the asbestos crisis, but it was not. Courts must grapple with the problem as it now exists. We are confronted with the alternative of permitting cur- rent plaintiffs to receive windfalls or stopping punishment that violates due process. The choice is obvious.
The other phase of substantive due process is propor- tionality. In its opinion, the Haslip majority noted that substantive due process "standards provide for a rational relationship in determining whether a particular award is greater than reasonably necessary to punish and deter."
499 U.S. at 35. Similarly, in her dissent, Justice O'Connor recognized that whether an award is grossly excessive is an "important substantive due
1 F.3d 1371, *1404; 1993 U.S. App. LEXIS 19482, **139;
28 V.I. 467; CCH Prod. Liab. Rep. P13,543
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*1404 process concern." Id. at 92 (O'Connor, J., dissent- ing). We may take from Haslip, therefore, that a punitive award that is greater than reasonably necessary to punish and deter violates **140 substantive due process. See id. at 31-32.
Courts must also remember that punitive damages are intended to "sting," not to destroy. See In re N. Dist. of Cal. "Dalkon Shield" IUD Prods. Liab. Litig., 526 F. Supp.
887, 899 (N.D. Cal. 1981), vacated on other grounds, 693
F.2d 847 (9th Cir. 1982). Indeed, in its early years the common law dictated that punitive awards should not be so large as to threaten the economic viability of defen- dants.
Because punitive damages are quasi-criminal, an analogy may be found in the early English practice of amercements. See John C. Jeffries, Jr., A Comment on the Constitutionality of Punitive Damages, 72 Va. L. Rev. 139,
154-58 (1986). A wrongdoer could buy "peace" through the payment of a fine or amercement to the king. Id. at
154. Chapter 20 of the Magna Carta, 9 Hen. III, ch. 14
(1225), limited the king's power to impose fines, provid- ing that a freeman shall be amerced "saving always his position; and a merchant in the same way, saving his trade; and a villein shall be amerced in the same **141 way, saving his tillage." James Tait, Studies in Magna Carta: Waynagium and Contenementum, in 27 Eng. Hist. Rev.
720, 727 (Reginald L. Poole ed. 1912). Thus, the penalty inflicted should not, in any event, destroy the offender's means of making a living in his particular trade or call- ing. Magna Carta guaranteed not just bare survival, but continued productive economic viability. n46
n46 John C. Jeffries, Jr., supra, at 154-
58. The Amercements Clause of Magna Carta is discussed in detail in Browning-Ferris, 492
U.S. at 268-73. The majority recognized that the Amercements Clause limited abuses "by requiring that the amercement not be so large as to deprive him of his livelihood," but concluded that such his- tory did not justify the application of the Eighth Amendment to punitive awards in private suits. Id.
Having arrived at the principle that at some point fur-
ther repetitive punitive damages are neither rational nor fair, the difficult question is how to determine when that
**142 point has been reached. Some assistance may be found in the approach that courts use to determine whether a traditional punitive award is excessive. Many of the same factors considered in the usual one-on--one case are helpful.
For example, in Haslip, 499 U.S. at 30-31, the Court approved Alabama's judicial review that included such considerations as:
(a) a reasonable relationship between the award and harm from defendant's conduct;
(b) the reprehensibility of defendant's conduct, its du- ration, defendant's awareness or concealment, and the existence and frequency of past misconduct;
(c) the profitability to defendant of the conduct;
(d) the financial position of defendant;
(e) all the costs of litigation;
(f) the imposition of criminal sanctions; and
(g) the existence of other civil awards against defendant for the same conduct.
In TXO, 61 U.S.L.W. at 4770, the plurality opinion relied on a general concern of reasonableness. In general, these considerations give the courts some basis on which to decide whether punitive damages should be permit- ted. However, other matters unique to mass torts -- other punitive awards, **143 the effect of those awards on current and future claimants for compensation, and the adverse effect on settlement of pending claims -- must also enter into the calculus. After taking all these factors into account to determine that a defendant has been ade- quately deterred and punished, a court must strike down all subsequent punitive awards in order to preserve due process.
As a practical matter, we note that those manufactur- ers that have become bankrupt may have already escaped from the burden of punitive damages. n47 To the extent, however,
1 F.3d 1371, *1405; 1993 U.S. App. LEXIS 19482, **143;
28 V.I. 467; CCH Prod. Liab. Rep. P13,543
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*1405 that liability for exemplary awards may be joint and several in some jurisdictions, the inability of one de- fendant to pay punitives imposes an additional burden on those still solvent.
n47 A punitive award is dischargeable in bankruptcy unless a plaintiff can show that the bankrupt maliciously or willfully caused the plain- tiff's injury. 11 U.S.C. § 523(6). In strict liability cases, this standard is generally not met. 1 James D. Ghiardi & John J. Kircher, Punitive Damages: Law and Practice § 9.19 (1983). Moreover, even if met, bankruptcy courts may exercise their equi- table powers to deny such damages. See In re A.H. Robins Co., 89 Bankr. 555 (E.D. Va. 1988) (disal- lowing punitive damages because they would frus- trate a successful reorganization of the company in this Dalkon Shield case).
**144
The amount of awards returned against Owens- Corning is more than enough for punishment. Although some verdicts may have been reduced on appeal and others compromised in later settlement agreements, that diminution is no doubt more than offset by the amount other settlements have been inflated because of the threat of punitive damages.
The fact that this company concedes that it would not be driven into bankruptcy by the punitive damage award here does not moot due process objections. If bankruptcy is the test, then due process relief will always come too late. In this case, punitive awards already assessed against Owens-Corning equal a substantial portion of the company's total Kaylo sales. The sum of compensatory awards, punitive damages, and litigation expenses dwarf any profits.
Owens-Corning has been able to remain solvent by producing goods not related to its ill-fated venture into asbestos products. n48 That fact should have no bearing on whether defendant should be punished more than a company whose activities were limited to asbestos and has become bankrupt. Repetitious punishment should not depend on the wealth or poverty of the offender. Due pro- cess is the right of every **145 citizen, corporate or individual, wealthy or impoverished. Moreover, and per- haps more importantly, although the case before us only involves one defendant, the holding will apply to other asbestos litigation within this circuit.
n48 The ALI Reporters Study calling for puni- tive damages reform notes that corporate wealth is typically spread among various corporate sub-
sidiaries. Thus, it often is only an accident of the corporate structure that places this wealth in the hands of the particular defendant entity. American Law Inst., supra, at 254; see Victor E. Schwartz and Mark A. Behrens, The American Law Institute Reporters' Study on Enterprise Responsibility for Personal Injury: A Timely Call for Punitive Damages Reform, 30 San Diego L. Rev. (Fall
1993).
y
I am persuaded that the punitive damages award against Owens-Corning should be stricken. The amounts awarded in prior litigation have been more than adequate to meet the needs of punishment and deterrence. Thus, permitting an award to the plaintiff serves **146 no rational purpose.
I dissent.
Judge Greenberg, Judge Hutchinson, and Judge
Scirica join in this dissent.
BECKER, Circuit Judge, dissenting.
Judge Weis has demonstrated powerfully that the repetitive imposition of punitive damages upon Owens- Corning for failure to warn in connection with the same series of acts (the sale of asbestos products) has, in terms of the legal justification for punitive damages, become so irrational as to offend the due process clause of the Fourteenth Amendment. I therefore join in Part II of his dissent. I note in this regard that the majority's slicing of the punitive damages award from $2 million to $1 million in a single sentence on the grounds that "the district court gave insufficient consideration to the effects of successive punitive awards in asbestos litigation" is a testament to the force of Judge Weis's argument.
I do not, however, join in Part I of Judge Weis's dis- sent. The majority has convincingly demonstrated why we should not, in the exercise of our powers as the final expositors of Virgin Islands law, declare the repetitive im- position of punitive damages unavailable as a matter of Virgin Islands common law.
I respectfully dissent. **147
WEIS, Circuit Judge, dissenting.
Concerns about a limited fund in some respects must color a court's consideration of compensatory damage verdicts as well as punitive damage awards. Just as im- position of inequitable exemplary damages diminish the assets that should be available for future claimants, so do
1 F.3d 1371, *1405; 1993 U.S. App. LEXIS 19482, **147;
28 V.I. 467; CCH Prod. Liab. Rep. P13,543
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excessive compensatory awards. A sense of fairness re- quires that trial and appellate court reviews of jury verdicts incorporate some necessarily rough equality of treatment for similarly injured individuals. Absolute equality is im- possible, but in a broad range some attempt to temper aberrations is appropriate.
It is apparent that in this case the compensatory verdict of $1.3 million was grossly excessive. Recognizing that the trial judge reduced the award, I would nevertheless reduce it somewhat further.
The plaintiff specifically disavowed any claims for present or future wage losses. Indeed, he relied on these limitations on recovery in objecting successfully to de- fense cross-examination about his current employment. The extent of the plaintiff's disability was hotly con- tested and the expert testimony sharply conflicting. As might be expected, the medical experts disagreed **148 on the state of the plaintiff's health. Lacking medical back- grounds, the jurors, therefore, were left to choose between the differing evaluations prepared in anticipation of trial. There was, however, documentary evidence in the case that was not consciously prepared for use at the trial. That evidence provides an assessment of the plaintiff's health that does not support the existence of the extensive injury on which the jury must have rested its large award. The plaintiff was admitted for surgeries on his knee and shoulder during the spring of 1990, approximately six months before the trial began in November of 1990. The records of the surgeon and hospital in Texas are not concerned with whether the plaintiff was suffering with asbestosis, but they do give a revealing picture of Mr.
Dunn's general health at the time.
The reports of the attending surgeon, Dr. Orth, de- scribe the plaintiff's athletic activities including running, rowing, swimming, and weight lifting. The physician's notes comment that "he has had to give up running re- cently because of swelling in his left knee" and would
"like to have arthroscopic evaluation to see how the in- terior of his knee stood in arthritic **149 fashion, and to determine what his future athletic activities should include."
Two months before the trial began, the doctor, in the last of his notes, wrote that the plaintiff had "been very busy in his work, doing a substantial amount of activities. He states that occasionally he will have to do some heavy work."
The impression gained from these rather extensive records is of a man who was, and intends to be, more physically active than most men of his age. That picture is not one of an individual who has such a substantial in- jury and disability as to justify the large verdict awarded here.
When this evidence is considered, along with testi- mony that the plaintiff was able to work, was gainfully employed at the time of trial, and made no claim for future loss of earnings, the excessiveness of the verdict becomes clear. On the record here, it seems to me that the trial judge's reduction of the $1.3 million verdict to $500,000 was not enough. I would reduce the verdict even further to $100,000, a sum which is substantially in excess of the average jury award or settlement figure for injuries of the nature that the plaintiff claims.
I, therefore, dissent from the majority's affirmance
**150 of the judgment entered by the trial judge on the compensatory award.
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