THE IMPROPRIETY OF PUNITIVE DAMAGES IN MASS TORTS

Punitive damages have been around in classic one-on-one tort actions for centuries and are here to stay. Mass torts are of more recent origin and present peculiar challenges. Mass torts have matured, however, to the point that this Article is comfortable referring to most of them as “traditional.” Notwithstanding the legitimacy of both institutions when employed separately, loud warning signals should sound when, as with drinking and driving, they are combined. Potentially destructive mixes of punitive damages and mass torts have, unfortunately, been prevalent in traditional mass tort actions. The difficulties are mostly administrative. Although punitive damages are conceptually compatible with fault-based mass torts, courts administer punitive awards in ways that are so capricious as to generate gross unfairness and inefficiency. For that reason, if the warning signals are loud in connection with punitive awards in traditional mass torts, they should be downright deafening when courts consider awarding punitives in what this Article refers to as emerging, nontraditional, enterprise-liability-based forms of mass tort. These nontraditional forms of claims-aggregation, which have only recently been reaching courts in significant numbers, involve not only procedural aggregation, as in traditional mass torts, but also substantive aggregation. The latter occurs when courts eliminate constituent elements from traditional tort doctrine—most dramatically, the element of defendant’s fault—to construct generic, strict liability claims brought by large numbers of plaintiffs against entire industries. The industries that plaintiffs are choosing for such treatment impose significant costs on society and might be said to be politically incorrect; but they are lawful enterprises that presumably provide aggregate social benefits that exceed their costs. Were courts to award punitive damages in these nontraditional mass torts, such awards would be sufficiently disconnected from the traditional objective of punishing wrongdoers as to justify rejecting them on substantive as well as administrative grounds. Given that these difficulties cannot be eliminated by marginal reforms, this Article argues that punitive damages are inappropriate in, and should be eliminated from, all forms of mass tort. Legislatures might accomplish this task if powerful political opposition from the plaintiffs’ bar could be overcome. Broad judicial proscriptions would not so directly face political opposition but would require courts to overrule precedent in connection with traditional mass torts. This Article explains how this might be accomplished. In connection with emerging forms of mass tort, judicial proscriptions would come early enough to nip punitive awards in the bud without the need to overrule longstanding precedent. Thus, if courts are going to eliminate punitive awards in mass torts, now is the time for them to act.