appellate court, to reduce or totally set aside the jury award. However, the right to review is no more satisfactory than the jury's initial determination, because it is dependent upon the visceral reaction of the court rather than on any established or recognized standards. Courts which have undertaken to reduce or set aside punitive damage awards have been hard-pressed to enunciate reasons why in the court's view the amount fixed by the jury is too high. With the vague guidance given to juries as to the means for calculating such damages, it is difficult to justify judicial intercession on the basis that the amount of the award is invalid as a matter of law. What occurs in reality is an independent factual finding by the court simply that the penalty is too great. Defendants are entitled to know that there is a more substantial ground for appeal other than that the verdict offends the "gut feeling" of the trial or reviewing court.
Others point to the fact that most mass tort claims are settled, thereby minimizing the Draconian consequences envisioned of a multitude of destructive punitive damage awards. This contention, however, ignores the potential for such awards as a motivating factor in the settlement negotiations, which affects both the demands made by plaintiffs and the offers from defendants. Therefore, the existence of numerous settlements does not obviate the need to re-evaluate the constitutionality of punitive damage awards in mass tort litigation, because they are a potent force in those negotiations.
Defendants cite three constitutional bases for their argument that multiple awards of punitive damages are impermissible. Pointing to parallels between the assessment of punitive damages and fines levied in criminal proceedings, defendants argue that the concepts of double jeopardy and excessive fines contained in the Fifth and Eighth Amendments should be applied in the civil context to prohibit multiple awards of punitive damages for a single course of culpable conduct. Defendants also argue that the Due Process Clause of the Fourteenth Amendment places a constitutional limitation on the amount of punitive damages that may be awarded or on the number of occasions on which a defendant will be forced to defend against punitive damages for the same course of conduct.
A. The Double Jeopardy Clause of the Fifth Amendment
Defendants first contend that "the imposition of punitive damages against defendants in this case would violate their right to not 'be twice put in jeopardy of life or limb.'" Trial Memorandum of Defendant Carey Canada, Inc. at 70. Defendants assert that "some defendants have previously been assessed, and all have been threatened with, punitive damages in other asbestos cases," and that these damages were imposed for the same conduct which is the basis for plaintiff's punitive damages claim.
The Double Jeopardy Clause of the Fifth Amendment is explicitly limited in application to proceedings which are criminal in nature. It states in relevant part: "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb." The Supreme Court has extended the application of the double jeopardy clause to actions which are "quasi-criminal" in nature, almost invariably in situations where a statute provided for both criminal and civil sanctions and proceedings were brought by the government against a defendant under both the criminal and civil sections of the statute. See, e.g., Rex Trailer Co., Inc v. United States, 350 U.S. 148, 100 L. Ed. 149, 76 S. Ct. 219 (1956); United States ex rel Marcus v. Hess, 317 U.S. 537, 87 L. Ed. 443, 63 S. Ct. 379 (1943); Murphy v. United States, 272 U.S. 630, 71 L. Ed. 446, 47 S. Ct. 218 (1926); Various Items of Personal Property v. United States, 282 U.S. 577, 75 L. Ed. 558, 51 S. Ct. 282 (1931). In those situations, the Court looked to the nature and purposes of the civil section to see if it was "remedial" or "punitive" in nature and evaluated whether the effect of the civil section was so punitive as to override the civil intent of the legislature in providing for the civil penalty.
In contrast to the civil statutes which were the basis for the Court's analysis in the above cited cases, punitive damages are a creation of the judiciary, not of the legislature, and thus the analysis of the Court in those cases does not directly apply in the present context. Clearly, punitive damages are intended to be imposed in the context of a civil proceeding. Just as clearly, however, they are meant to be punitive in nature and not remedial, and thus are more closely analogous to criminal penalties than the sanctions imposed by civil statutes. The Supreme Court has stated: "Punitive damages by definition are not intended to compensate the injured party, but rather to punish the tortfeasor whose wrongful action was intentional or malicious, and to deter him and others from similar extreme conduct." City of Newport v. Fact Concerts, 453 U.S. 247, 266-67, 69 L. Ed. 2d 616, 101 S. Ct. 2748 (1981). Punitive damages are thus not a compensatory award, but are rather "private fines levied by civil juries to punish reprehensible 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).
Despite the close analogy between criminal sanctions and punitive damages, punitive damages are not a criminal sanction. Cf. Nappe v. Anschelewitz, et al., 97 N.J. 37, 477 A.2d 1224 (1984). In Breed v. Jones, 421 U.S. 519, 44 L. Ed. 2d 346, 95 S. Ct. 1779 (1975), the Court defined the risk to which the Double Jeopardy Clause refers as
that traditionally associated with "actions intended to authorize criminal punishment to vindicate public justice." Because of its purpose and potential consequences, and the nature and resources of the State, such a proceeding imposes heavy pressures and burdens -- psychological, physical, and financial -- on a person charged. The purpose of the Double Jeopardy Clause is to require that he be subject to the experience only once "for the same offence."