Punitive Damages and Due Process

For several years, I have been wondering why punitive damage awards like this one, that punish a company for various misdeeds, don't create a double jeapardy situation where defendents must pay over and over for the same "crime" (since the next individual suing also gets punitive damages).

Here's the problem:  A jury in Texas already hit Merck with $259
million in punitive damages*.  This number was based on a lot of
testimony about Merck's sales and profits from Vioxx, so it was
presumably aimed at punishing Merck for "errors" in their whole Vioxx
program.  So if that is the case, how can Merck end up facing a jury
again coming up with a separate punitive damage award for the same
"crime"?  Sure, it makes sense that Merck can owe actual damages to
individual claimants in trial after trial.  But how can they owe
punitive damages for the whole Vioxx program over and over again?
Aren't they being punished over and over for the same misdeed,
violating their Constitutional protection against double jeopardy?

In the recent Supreme Court decision involving a judgment against Philip Morris, the SCOTUS didn't really take this issue on, but did take on a related issue, arguing that punitive damage awards that take into account damages against more than just the defendant violate due process, since these other damages were not tried on the facts in that case.

Today, in a decision involving an astonishing $79.5 million punitive
damage award to the widow of an Oregon man who died of lung cancer
after smoking Marlboros for 42 years, the U.S. Supreme Court ruled
that a jury in a civil case may not punish a defendant for harm to
people who are not parties to the case. To do so, the five-justice
majority said,
violates the defendant's right to due process because he cannot defend
against hypothetical damage claims by people who are not involved in
the lawsuit. Furthermore, the Court said, "to permit punishment for
injuring a nonparty victim would add a near standardless dimension to
the punitive damages equation." Although this makes sense to me, the
Court's proposed solution"”that juries may consider harm to nonparties
in judging the "reprehensibility" of a defendant's conduct but not to
"punish a defendant directly" for that harm"”seems untenable.


  1. Mark M. Smith:

    I do not understand how you look at each act as the same crime. If a person or group of people went on a murder spree and killed or injured people at different times and different locations would it be only one crime or several crimes ? I think you will agree this would be several crimes, even if the same gun was used each time.

  2. Highway:

    The point is that the large punitive damages aren't based on individual 'crimes', or rather based on the individual case that's before the court. The plaintiff's lawyers are bringing up the whole body of people who were ever affected for juries to consider for punitive damages, and doing so in EVERY case. So for Case A, they had direct damages for Plaintiff A, but punitive damages for ALL the possible plaintiffs. Then in Case B, direct damages for Plaintiff B, but again punitive damages for ALL the possible plaintiffs, presumably including A, who they'd already had the case with.

  3. Anon E. Mouse:


    Tort isn't crime. The whole idea of tort boils down to a simple example: if I run into your car with my car, you sue me to fix your car.

    If I bounced off of seven other cars in the process of running into your car, then you can still only recover for the damage to your own car. The other seven folks have to sue me themselves, and each can only be compensated for the damages that he suffered. There's ways you all can sue me at once, but that isn't what is going on in the Marlboro case.

    Punitive damages are pretty tricky when introduced into Tort. The theory is that they are supposed to deter the bad conduct. So, I guess in the car example, if I was a really bad man who went around crashing my car with impunity, the theory would be that you could collect extra money from me to deter me from crashing into other people so often. Society is piggybacking on your lawsuit, I guess.

    Why you get the money, I don't know. It seems to me that if I am a danger to society, society should get it. That would be usually called a fine (e.g. a $10,000 fine for reckless driving). But this isn't a fine, and since it is not a criminal proceeding, I don't get all those criminal protections (e.g., beyond a reasonable doubt, 5th Amendment non-incrimination, etc.). Heck, in tort, you only have to prove more likely than not (i.e., 51% chance of being "guilty").

    It doesn't seem to matter that the very word "punitive" means "punish" which is what the criminal law system is supposed to do.

    So...now the other seven folks line up and sue me. Do they all get punitive damages, too? How many times do I get punished for the same crime...I mean, the same tort? And how do you decide the number when there are a whole bunch of victims, but you don't really know how many, much less how many will eventually sue and ask for punitive damages?

  4. markm:

    Anon: And of course, what happens to the last victims in line when you run out of money?

  5. Mark Smith:

    Dear Highway

    I know tort is not a crime. I was responding to 'COYOTE BLOG' where the term "crime" is used in the opening sentence. Marlboro? I thought we were discussing Vioxx.