destroy the corporations. Plaintiffs argue that the forecast of excessive punitive damages awards leading to the defendants' demise is speculative at best and should not be credited by the court.
The court is cognizant of its role as a federal court sitting in diversity: whether these policy arguments present persuasive and valid concerns is a matter which should be decided by the New Jersey Supreme Court, and this court must work within the framework of New Jersey state decisions on these issues. Gogol v. Johns-Manville Sales Corp., 595 F. Supp. 971, 975 (D.N.J. 1984). In Fischer v. Johns-Manville Corp., the New Jersey Supreme Court addressed all of these arguments and found them to be an insufficient basis upon which to deny plaintiffs, in asbestos suits, the right to seek punitive damages. There, the asbestos defendants raised the identical "overkill" arguments advanced here, as well as some others, and the state court rejected them as speculative. 103 N.J. at 665. ("The amount of punitive damages and the determination that they would cause insolvency that could be avoided in their absence are so speculative as to foreclose any sound basis for judicial decision.")
Moreover, while the "overkill" argument is not entirely without merit, defendants have not proffered any factual documentation which would persuade the court to reject the reasoning in Fischer that defendants' fears are more speculative than real. There is nothing before the court which indicates that any of the defendants in this case are facing bankruptcy or that bankruptcy, if it should occur, will result more from the punitive damages awarded than the countless awards for compensatory damages. The court concludes that neither due process nor the policy concerns raised by defendants preclude the submission of the issue of punitive damages to a jury.
4. The Eighth Amendment's Proscription Against Excessive Fines
Defendants base their next constitutional claim on the eighth amendment.
They argue that the punishment meted out by permitting multiple awards of punitive damages in asbestos suits is disproportionate to the single course of conduct giving rise to the claims, and thus, is violative of the eighth amendment's prohibition against excessive fines. Plaintiff disputes the applicability of the eighth amendment to civil actions and, alternatively, argues that, even if the eighth amendment does protect defendants in civil suits from the assessment of fines which are disproportionate to their conduct, the conduct of the defendants in this case (marketing a product known to cause serious bodily injuries for decades) was particularly egregious, thus justifying the imposition of a severe penalty.
As noted earlier, on December 5, 1988, the Supreme Court granted certiorari, in Browning-Ferris Indus. v. Kelco Disposal, Inc., to decide whether the imposition of punitive damages which are 100 times greater than plaintiff's actual damages is violative of the eighth amendment. 845 F.2d 404 (2d Cir. 1988), cert. granted, 488 U.S. 980, 102 L. Ed. 2d 559, 109 S. Ct. 527 (1988). Subsequent to the filing of defendants' motion, the Supreme Court rendered its decision in Browning-Ferris, 492 U.S. 257, 106 L. Ed. 2d 219, 109 S. Ct. 2909, 57 U.S.L.W. 4985 (1989). The issue of the applicability of the eighth amendment to purely civil suits has been resolved. The Court unequivocally held that the excessive fines clause of the eighth amendment does not apply to punitive damages awards between private parties and, thus, does not act to restrict such awards where the government has not prosecuted the suit or cannot share in the recovery. Browning-Ferris, U.S. at , 57 U.S.L.W at 4988-90. Defendants' argument cannot survive this decision. It is clear that the eighth amendment does not bar plaintiff's punitive damages claim.
5. The Double Jeopardy Clause of the Fifth Amendment
Finally, defendants contend that the imposition of punitive damages in this case is barred by the double jeopardy clause of the fifth amendment. The fifth amendment to the Constitution provides, in part, "Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." It has been said that the guarantee against double jeopardy consists of three separate Constitutional protections. "It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969).
Defendants argue that the protections of the double jeopardy clause are not limited to criminal proceedings. Rather, the proper inquiry is not whether the proceeding in question is labelled "criminal" or "civil," but whether the challenged sanction is punitive in purpose. Since punitive damages are designed to punish the wrongdoer and to deter others from like conduct, they are penal in nature. Thus, defendants argue that the imposition of multiple awards of punitive damages in successive litigations exposes them to double jeopardy, in violation of the fifth amendment.
This argument is foreclosed by the United States Supreme Court's recent decision in United States v. Halper, 490 U.S. 435, 109 S. Ct. 1892, 104 L. Ed. 2d 487 (1989). In Halper, the Supreme Court held that the government cannot, under the double jeopardy clause, criminally prosecute a defendant, impose a criminal penalty upon him and then bring a separate civil action based on the same conduct and receive a judgment which is not rationally related to the losses suffered. 490 U.S. at 435, 109 S. Ct. at 1902. Thus, under certain circumstances, civil penalties do constitute punishment for the purpose of the double jeopardy clause, and the test urged by defendants for determining the applicability of the double jeopardy clause to civil proceedings is indeed the correct one in suits involving government-sought sanctions. See Halper, 490 U.S. at 435, 109 S. Ct. at 1901-02.
Nonetheless, in Halper, the Court expressly held that the "protections of the Double Jeopardy clause are not triggered by litigation between private parties." 490 U.S. at 451, 109 S. Ct. at 1903. Since the instant lawsuit is a purely civil action instituted by a private litigant to vindicate a private right, the punitive damages sought here do not fall within the purview of the fifth amendment's protection against double jeopardy. Consequently, the court finds that the defendants will not be subjected to double jeopardy by the imposition of punitive damages in this action.
Defendants have moved, in the alternative, for a stay pending the Supreme Court's decision in Browning-Ferris Indus. v. Kelco Disposal, Inc., supra, and/or joinder of the Johns-Manville Settlement Vehicle as a defendant to this suit. First, defendants argue that a stay of this action pending the Supreme Court's decision in Browning-Ferris is warranted because that decision will substantially affect or dispose of the issue of punitive damages in this action and that plaintiff will not be prejudiced by the delay because he has already been compensated for his injuries. Defendants' request for a stay to await the Supreme Court's decision in Browning-Ferris, however, has been rendered moot by the issuance of that opinion just last week. Next, defendants argue that joinder of the Johns-Manville Settlement Vehicle is necessary to effect complete relief among the parties and to avoid duplicative litigation of the same issues, thus justifying a stay of this action until joinder is possible. Both arguments are completely meritless.
The power to stay a proceeding is committed to the broad discretion of the district court. Gold v. Johns-Manville Corp., 723 F.2d 1068, 1077 (3d Cir. 1983); Bechtel Corp. v. Local 215, Laborers' Int'l Union, 544 F.2d 1207, 1215 (3d Cir. 1976). This power is said to be "incidental to the power inherent in every court to control the disposition of the causes on its docket with the economy of time and effort for itself, for counsel, and for litigants." Landis v. North American Co., 299 U.S. 248, 254-55, 81 L. Ed. 153, 57 S. Ct. 163 (1936). To promote fair adjudication, the district court must weigh the competing interests of the parties and maintain an even balance. Landis, supra. The moving party, however, must demonstrate "'a clear case of hardship or inequity' if there is 'even a fair possibility' that the stay would work damage on another party." Gold v. Johns-Manville Corp., 723 F.2d at 1075-76 (quoting Landis v. North American Co., 299 U.S. at 255).
Defendants argue that this action should be stayed to allow them to join the Johns-Manville Settlement Vehicle, so that the jury can properly allocate Johns-Manville's portion of liability as a culpable joint tortfeasor, thus avoiding a second, duplicative trial by defendants to seek contribution from Johns-Manville. This argument is completely without merit. I am amazed that the defendants would have the temerity to make such an argument, in light of the fact that the liability phase of this litigation ended almost a year ago. Moreover, as defendants candidly admit (in support of one of the numerous other arguments raised in their motion), the Settlement Vehicle effectively precludes punitive damages claims against Johns-Manville (see Brief in Support of Defendants' Motion for Summary Judgment or Stay of Trial at 32). Thus, since there is no valid reason for joining the Johns-Manville Settlement Vehicle, there is no valid reason for staying this action for that purpose.
This lawsuit was commenced seven years ago and has tiredly dragged on since then. Plaintiff has a right to see a timely resolution of his cause of action. The defendants have not demonstrated that inconvenience, much less hardship, will result to them if it is allowed to proceed. As a result, the court finds that the balance of hardship weighs in plaintiff's favor. Further delay will not be tolerated.
Accordingly, for the reasons stated above, defendants' motions for summary judgment or, in the alternative, for stay of trial, are both denied. An order accompanies this opinion. No costs.
ORDER -July 5, 1989, Decided and Filed; July 6, 1989, Entered
This matter having been opened to the court on motion of the law firm of McCarter & English, by Andrew T. Berry, Esq., on behalf of defendants. The Celotex Corporation and Owens-Illinois Corporation and the law firm of Horn, Kaplan, Goldberg, Gorny & Daniels, by Donald M. Kaplan, Esq., on behalf of defendant Owens-Corning Fiberglas Corporation, for summary judgment on plaintiff's punitive damages claim, pursuant to Fed. R. Civ. P. 56 or, in the alternative, for a stay of trial on this matter; and the court having carefully considered the papers submitted by counsel in support thereof and in opposition thereto; and for good cause shown,
It is on this 5th day of July 1989,
ORDERED that defendants' motion for summary judgment be and hereby is denied; and it is further
ORDERED that defendants' motion for a stay of the trial on plaintiff's punitive damages claim be and hereby is denied.