Bowden v. Caldor Inc.6/2/1998
usness which is important. See BMW of North America, Inc. v. Gore, supra, 517 U.S. at 575, 116 S.Ct. at 1599, 134 L.Ed.2d at 826 ("some wrongs are more blameworthy than others").
(2)
A second very important principle, long recognized under Maryland law, is that the amount of punitive damages "should not be disproportionate to . . . the defendant's ability to pay." Ellerin v. Fairfax Savings, supra, 337 Md. at 242, 652 A.2d at 1130. See Embrey v. Holly, supra, 293 Md. at 141-142, 442 A.2d at 973 ("punitive damages . . . must relate to the . . . ability to pay"); Heinze v. Murphy, 180 Md. 423, 431, 24 A.2d 917, 921 (1942) ("'the pecuniary circumstances of the defendant are proper to be considered,'" quoting Sloan v. Edwards, 61 Md. 89, 101 (1883)). The purpose of punitive damages is not to bankrupt or impoverish a defendant. Fraidin v. Weitzman, 93 Md. App. 168, 212, 611 A.2d 1046, 1068 (1992), cert. denied, 329 Md. 109, 617 A.2d 1055 (1993) ("When a punitive damage award consumes a defendant's total wealth, it has ceased to serve the societal goal of punishment. A defendant need not be financially destroyed in order to be punished"); Jonathan Woodner Co. v. Breeden, 665 A.2d 929, 941 (D.C. App. 1995), cert. denied, ___ U.S. ___, 117 S.Ct. 1080, 137 L.Ed.2d 215 (1997) ("the amount of [punitive] damages should be . . . not so great as to exceed the boundaries of punishment and lead to bankruptcy "). Therefore, as numerous cases have made clear, a defendant's ability to pay is "a limiting factor which must be considered by the . . . trial court upon its review of the jury's award." Fraidin v. Weitzman, supra, 93 Md. App. at 212-215, 611 A.2d at 1068-1069, and cases there discussed. See also Mattison v. Dallas Carrier Corp., 947 F.2d 95, 110 (4th Cir. 1991).
On the other hand, merely because a defendant may be able to pay a very large award of punitive damages, without jeopardizing the defendant's financial position, does not justify an award which is disproportionate to the heinousness of the defendant's conduct. As the Supreme Court of Alabama stated in BMW of North America, Inc. v. Gore, 701 So.2d 507, 514 (Ala. 1997), following a remand from the Supreme Court of the United States,
" t is clear that a punitive damages award of $2 million would not have a devastating impact upon BMW's financial position. However, where a defendant has not committed an act that would warrant a large punitive damages award, such an award should not be upheld upon judicial review merely because the defendant has the ability to pay it."
(3) Since one of the purposes of punitive damages is to deter the defendant from engaging in the type of conduct forming the basis for the award, the deterrence value of the amount awarded by the jury, under all of the circumstances of the case, is relevant. Thus, in a products liability case, ACandS v. Godwin, supra, 340 Md. at 362, 667 A.2d at 129, with regard to punitive damages awards against sellers of asbestos products, Judge Rodowsky for the Court observed:
"In the case sub judice deterrence is . . . less a factor inasmuch as the three defendants involved with the punitive damages issues have not sold asbestos products for more than twenty years."
A defendant's taking of remedial or corrective action, promptly after the misconduct giving rise to the award of punitive damages, obviously should be a mitigating factor. Bennett v. Owens-Corning Fiberglas Corp., 896 S.W.2d 464, 468 (Mo. 1995). On the other hand, repeated or frequent misconduct of the same nature, misconduct of long duration, attempts to conceal or cover-up the misconduct, failure to take corrective action, and similar circumstances, support the deterr
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