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Abstract

This Article analyzes the likely impact of recent Supreme Court jurisprudence applying substantive and procedural due process limits on punitive damage awards to class action punitive damage Lawsuits. In BMW v. Gore and State Farm v. Campbell the Supreme Court adopted a tripartite analysis to determine whether punitive damage awards were excessive under the Due Process Clause. Just last year in Philip Morris v. Williams the Court took a step further by imposing the additional 'procedural" limitation that requires trial courts to take steps to ensure that juries do not punish a tortfeasor through an award ofpunitive damages in one case for harm caused to anyone other than the plaintiff. There has been some recent scholarly speculation that these cases signal an end to the punitive damage class action by insistingu pon an individualizedf ocus for punitive damages thatp recludes class-wide determinations. In the last year, some lower federal courts have agreed with this view and denied class certification. This Article offers a very different reading of these recent Supreme Court opinions, illustrating that the Court's primary concern in these cases has been the possibility of redundant awards ofpunitive damages by multiple juries in different cases. Thus viewed, increased certification ofpunitive damage class actions provides a more effective and efficient means of avoiding the redundant punishment problem. Further, Philip Morris creates a paradoxical command to trial courts-to permit juries to consider evidence of third-party harm in order to assess the "reprehensibility" of a tortfeasor's misconduct but not to allow the jury to use that same evidence to set the award ofpunitive damages. This dictate will prove impossible for lower courts to implement and actually offers defendants no benefit. Certification of class actions, however, avoids this inexorablep roblem by transformingt he "third-parties"i nto litigantc lass members, thereby rending moot the needfor the subtle distinctions embodied in Philip Morris. In essence, rather than portend the death of the punitive damage class action, the recent Supreme Court jurisprudence creates powerful new arguments in favor of the aggregate model of punitive damage adjudication that offers a route back toward the viable use of class actions in mass tort scenarios.

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