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Ripa v. Owens-Corning Fiberglas Corp.6/5/1995
in Herman determined that the statutory language that the trier of fact "shall" consider the factors specifically mentioned in the statute was mandatory. 133 N.J. at 341-342. Therefore "the financial condition of the tortfeasor" must be shown to the jury. Ibid.
We further note that in Herman the Court did not merely make the product liability statute's bifurcated procedure applicable to all punitive damage claims. It stated this principle in the following context:
Although the present case arises in the context of a claim for punitive damages in a products-liability action, the requirements for bifurcation of compensatory and punitive damages, for allocation to a plaintiff of the burden of proving a defendant's financial condition, for proof of a prima facie case as a condition precedent to discovery of a defendant's financial condition, and for limitations on such discovery apply as readily to all such claims. Consequently, we expect those requirements to govern all claims for punitive damages, even those that arise outside the act.
[133 N.J. at 346.]
If the discovery and proof of the "defendant's financial condition" includes concluded and pending punitive damage claims, plaintiffs may be less likely to assert that the particular jury should punish for all plaintiffs wherever located. Defendants will be unable to hide from awards made elsewhere.
Counsel for defendant has represented that in numerous other Kaylo cases, where permitted by local law, juries have been requested to punish defendant for its alleged entire course of conduct, resulting in multiple awards. Defendant represents that as of November 30, 1993 there have been thirty punitive verdicts totaling more than $57,000,000 after remittiturs and appeals. Some of these awards are on appeal, and only a small percentage of them has actually been paid.
Sufficient financial information concerning defendant had been presented to the jury to show that it had over a billion dollars in assets and annual sales of 2.87 billion dollars. As disclosed in a post-trial motion, the aggregate of the punitive damage awards against defendant, whether $35,000,000 as alleged in the trial of this case or $55,000,000 as alleged in a companion case we are to hear, or the $57,000,000 alleged in defendant's brief, is still but a few percent of defendant's net assets. If they continue, the aggregate awards could wipe out a defendant, but Owens-Corning is in no such danger at this time. Yet at some point the punitive damages must be said to have had their adequate punitive effect. We have merely raised questions to be answered elsewhere with a view to provide order to an irrational system.
d.
If an award of punitive damages is to be sustained, we must, as noted earlier, make an independent review of the quantum of damages. A novel issue is presented to us. Should our review be based upon the evidence at trial, or may it be supplemented by proofs of post-trial information concerning defendant's financial condition based upon additional final punitive damage awards entered against defendant? This issue was presented by motion which we reserved until our opinion in this case. We will now resolve that issue.
It seems apparent to us that insofar as we are reviewing any ruling of the trial Judge, we would not consider any post-trial data received by us. However, insofar as we must make an independent analysis of the punitive damage awards as required by TXO Prod. Corp. v. Alliance Resources Corp., supra, and Pacific Mut. Life Ins. Co. v. Haslip, supra, and by Herman v. Sunshine Chem. Specialties, Inc., supra, we should consider the later information. We have reviewed t
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