Wischer v. Mitsubishi Heavy Industries America9/30/2003
ommon Law 1 (1881). Experience tells us that something is terribly wrong when the sting of "quasi-criminal" punitive damages falls on innocent employees, stockholders, customers, and, in some cases, taxpayers. Wangen, 97 Wis. 2d at 327, 294 N.W.2d at 470-471 (Coffey, J., dissenting).
. But punitive-damage awards are loved by personal-injury lawyers, and judges are thus reluctant to staunch their flow. Indeed, Wangen conceded that punitive-damage awards (ostensibly designed to punish only) are also a back-door way to pay lawyers: " ayment of punitive damages to the injured party is justifiable as a practical matter, because such damages do serve to compensate the injured party for uncompensated expenses, e.g., attorneys' fees and litigation expenses, and that the [punitive-damages] windfall motivates reluctant plaintiffs to go forward with their claims." Id., 97 Wis. 2d at 292, 294 N.W.2d at 454.
. There is also a roll-of-the-dice aspect to punitive damages; very few persons who are harmed by conduct warranting imposition of punitive damages ever get to recover from those who caused the harm even compensatory damages, no less punitive damages. The plaintiffs in this case suffered grievous losses, but, sadly, their pain is not unique to them. Last year in Wisconsin, for example, 164 persons were homicide victims. Nation-wide, the toll was more than 16,100, or, on the average, forty-four per day. My guess is that few if any of the families of these victims will receive anything from those who killed their loved ones. And then, of course, there are the countless other victims of crime who suffer horrendous injuries short of death. They, too, rarely, if ever, receive any payment from those who raped or maimed them. These victims, to borrow Horace's poignant words, suffer "unwept, unknown, because they lack a sacred poet." Horace, 4 Odes ix 1. 25. Our current system of punitive damages is of no help to them.
. Courts have recognized the out-of-balance unfairness of huge punitive-damage awards, and have gradually attempted to trim some of the rougher edges. See Campbell, 123 S. Ct. at 1527 (Ginsburg, J., dissenting) (collecting cases). This is not enough; tinkering with the engine is useless when that engine is, as I believe it is, in need of an overhaul. As noted, our task as judges on an intermediate appellate court is to apply the law as it is given to us by the legislature and the Wisconsin Supreme Court. Both the Wisconsin Supreme Court, which can only act in the context of cases brought to it by lawyers, and the Wisconsin legislature, which has broad plenary power to make law, should set things right. As Justice Antonin Scalia has observed: "State legislatures and courts have the power to restrict or abolish the common-law practice of punitive damages, and in recent years have increasingly done so." Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 39 (1991) (Scalia, J., concurring); see also BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 614-619 (1996) (Ginsburg, J., dissenting) (table of "State Legislative Activity Regarding Punitive Damages").
. We should have a system that punishes the guilty, not the innocent, and, further, punitive damages should not be lottery-like windfalls for a tiny percentage of those who suffer pain inflicted by others.
. SCHUDSON, J. (dissenting).
These appeals present numerous issues and, on the basis of one or more of them, it is possible that the punitive damages award will fall. It also is possible that the Wisconsin Supreme Court, weaving policy considerations into the legal analysis, will interpret Wis. Stat. ยง 895.85(3) in a manner that precludes or reduces the punitive damages awarded in this case. If it
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