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Ripa v. Owens-Corning Fiberglas Corp.6/5/1995
. at 672. As is noted in Fischer, there are better alternatives than case-by-case awards of punitive damages, yet a state court's hands may be tied. Class actions to resolve nationwide problems are better suited to the federal courts. 103 N.J. at 666-669.
The treatment of punitive damages in what truly is a mass tort is anomalous. As defendant notes, tens of thousands of asbestos claims are proceeding in the federal courts on a consolidated basis, and many have been remanded for trial with their punitive damage claims severed. The alternative would be for individual juries to return repetitive awards for punitive damages, each seeking to punish each defendant for its entire course of conduct or even for one small element of it. The defendant may choose to present to the jury the history of awards already made and the potential of awards to be made in the other pending cases, but this could be potentially devastating. In Fischer, the Court left the decision to each defendant; some may choose to educate the jury concerning past awards and pending claims, others may not. 103 N.J. at 670. But even this decision by a defendant yields questionable results. Punitive damages in individual cases which are part of mass tort claims and not incorporated in class actions or other coordinated actions have the attributes of a national lottery. For essentially the same conduct, defendants are punished in some cases, as here, with millions of dollars in punitive damages; in other cases the awards are in the hundreds of thousands of dollars; and in still others no punitive damages at all are returned. In all of the cases, we must posit that the plaintiffs have been fully compensated by the compensatory awards. Yet the survivors in some cases are made instant millionaires; in others they merely receive amounts sufficient to pay their attorneys and trial expenses or nothing at all. Potential legislative solutions abound, including pending legislation in the Congress and State Legislature that would establish caps on punitive damages awards, yet the lottery wheel still turns.
c.
Our Legislature has spoken on the subject of punitive damages in the 1987 Products Liability Act, N.J.S.A. 2A:58C-1 et seq. The Act does not by its terms apply to environmental torts, N.J.S.A. 2A:58C-6, and the definition of an environmental tort action under N.J.S.A. 2A:58C-1(b)(4) includes a toxic tort such as the one before us. But the punitive damage procedures contained in the Act are to govern "all claims for punitive damages, even those that arise outside the act." Herman v. Sunshine Chem. Specialties, Inc., supra, 133 N.J. at 346; Perth Amboy Iron Works, Inc. v. American Home Assurance Co., 226 N.J. Super. 200, 227 n.23, 543 A.2d 1020 (App. Div 1988), aff'd o.b., 118 N.J. 249 (1990).
In Herman, the Supreme Court interpreted N.J.S.A. 2A:58C-5d(4) to require a jury to "consider evidence of a defendant's financial condition in determining the amount of punitive damages." 133 N.J. at 341-342. The punitive damage phase of the trial is bifurcated but is held before the same jury as determined compensatory damages. The jury makes separate determinations of entitlement to punitive damages and the quantum of damages. Id. at 343. In each case, the statute provides that "the trier of fact shall consider all relevant evidence, including, but not limited to," the appropriate factors listed in the statute. See N.J.S.A. 2A:58C-5b and -5d. We note that the statutory factors are non-inclusive and were not meant to supersede the longer list of relevant factors found in Fischer v. Johns-Manville Corp., 103 N.J. at 673. See also the Appellate Division decision in Fischer, 193 N.J. Super. 113, 129 n.3 (App. Div. 1984). The Court
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