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Ripa v. Owens-Corning Fiberglas Corp.6/5/1995
d to procure sufficient liability insurance. The negligent manufacturer which produces the same product without anticipating the dangerous propensities may not be similarly protected. Without punitive damages, the former would fare at least as well, if not better, than the latter. The latter, however, would not be subject to punitive damages which serve as the only deterrent to manufacturers who would purposefully market dangerous products with insufficient warnings. See 103 N.J. at 664-665.
b.
The United States Supreme Court in TXO Prod. Corp. v. Alliance Resources Corp., 509 U.S. , 113 S. Ct. 2711, 2720, 125 L. Ed. 2d 366, 379-380 (1993) and Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S.1, 18, 111 S. Ct. 1032, 1043, 113 L. Ed. 2d 1, 20 (1991) sustained the application of punitive damages in civil cases as constitutional, provided that there is appellate review of the reasonableness of punitive damage awards. See also Herman v. Sunshine Chem. Specialties, Inc., 133 N.J. 329, 338, 627 A.2d 1081 (1993).
The claim, now made by defendant, that multiple punitive damage awards violate defendant's due process rights and are thus unconstitutional under Pacific Mut. Life Ins. Co. v. Haslip, supra, was not expressly raised in the earlier Fischer case, although the argument was certainly implicit. While there are no published opinions in New Jersey addressing the issue, it has been raised in courts around the country. No appellate court has found that repetitive punitive damage awards against asbestos defendants for the same course of conduct violate due process. See, e.g., Keene Corp. v. Kirk, 870 S.W.2d 573, 581 (Tex. App. 1993), (where codefendant Keene conceded the absence of a due process violation). This includes a divided Third Circuit. See Dunn v. Hovic, 1 F.3d 1371, 1385-1391 (3d. Cir.), cert. denied sub nom., Owens-Corning Fiberglas Corp. v. Dunn, U.S. , 114 S. Ct. 650, 126 L. Ed. 2d 608 (1993).
The oft-quoted standard for reviewing punitive damage awards in light of due process claims was stated in Haslip, supra, where the Supreme Court accepted the Alabama Supreme Court's criteria for determining the reasonableness of punitive damage awards as stated in Green Oil Co. v. Hornsby, 539 So.2d 218, 223-224 (Ala. 1989) and Central Alabama Electric Coop. v. Tapley, 546 So.2d 371, 376-377 (Ala. 1989). The Supreme Court adopted the following criteria:
(a) whether there is a reasonable relationship between the punitive damages award and the harm likely to result from the defendant's conduct as well as the harm that actually has occurred; (b) the degree of reprehensibility of the defendant's conduct, the duration of that conduct, the defendant's awareness, any concealment, and the existence and frequency of similar past conduct; (c) the profitability to the defendant of the wrongful conduct and the desirability of removing that profit and of having the defendant also sustain a loss; (d) the "financial position" of the defendant; (e) all the costs of litigation; (f) the imposition of criminal sanctions on the defendant for its conduct, these to be taken in mitigation; and (g) the existence of other civil awards against the defendant for the same conduct, these also to be taken in mitigation.
[499 U.S.at 21-22; 111 S. Ct. at 1045; 113 L. Ed. 2d at 22.]
Here, defendant does not challenge the jury instructions, nor would such an attack be fruitful in light of the standards articulated in such cases as Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37, 477 A.2d 1224 (1984).
In both Herman and Fischer our Supreme Court did not review the quantum of damages. See Herman, supra, 133 N.J. at 346; Fischer, supra, 103 N.J
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