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Owens-Corning Fiberglas Corp. v. Malone6/5/1998
g spouse suffered "between the decedent's injury and death." Zimmerman v. Lloyd Noland Found., 582 So.2d 548, 551 (Ala. 1991). Alabama law also permits "survival" damages for the decedent's estate if the decedent had a suit pending at the time of death. See King v. National Spa and Pool Inst., 607 So.2d 1241, 1246 (Ala. 1992). Here, the jury awarded compensatory damages to both decedents' (Wasiak and Barnes) spouses for loss of consortium and to the estates for their survival claims. The jury also awarded compensatory and punitive damages to the personal injury plaintiffs (Brownlee and Wingate). The ratios between compensatory and punitive damages for each plaintiff under the jury's verdict were as follows:
Information format: Plaintiff, Compensatory award, Punitive award Ratio (Including spouse's Loss of consortium)
Wasiak, $700,000, $2,000,000, 2.85 to 1
Barnes, 700,000, 1,500,000, 2 to 1
Brownlee, 500,000, 750,000, 1.5 to 1
Wingate, 125,000, 100,000, .8 to 1
The trial court reduced the jury's punitive damage awards to the decedents' survivors because under Alabama law, in wrongful death cases (but not personal injury cases), the defendant is entitled to credit settlements from settling defendants against its liability for punitive damages. See Tatum v. Schering Corp., 523 So.2d 1042, 1045 (Ala. 1988). The trial court also reduced all the compensatory awards to reflect the settlement credits.
Under the trial court's judgment, the plaintiffs received about $1.6 million in total compensatory damages and about $3.7 million in total punitive damages, yielding a combined ratio of punitive to compensatory damages of slightly more than 2 to 1. The individual ratios under the judgment are: 2.85 to 1 for the Wasiak plaintiffs; 2.14 to 1 for the Barnes plaintiffs; 1.77 to 1 for the Brownlee plaintiffs; and 1.15 to 1 for the Wingate plaintiffs. Even though the constitutional due process line cannot be "marked by a simple mathematical formula," BMW, 517 U.S. at 582, we conclude that the ratios between compensatory and punitive damages in this case are well within constitutional limits. See also TXO Prod. Corp., 509 U.S. at 462 (indicating that a 10 to 1 ratio would not be unconstitutional); Haslip, 499 U.S. at 23-24 (holding that ratio of 4 to 1 did not "cross the line into constitutional impropriety").
Third, comparing the punitive damage award with other civil or criminal penalties that could be imposed for comparable misconduct provides a final "indicium of excessiveness." BMW, 517 U.S. at 583. However, unlike BMW, which involved deceptive trade practices and slight economic harm, the nature of this personal injury and wrongful death case does not lend itself to a comparison with statutory penalties. See Continental Trend Resources, Inc., 101 F.3d at 640-41 (holding that violation of common law tort duties are not comparable to statutory penalties). Importantly though, judicial decisions at the time of the misconduct are also relevant under BMW's third prong to ascertain whether a defendant had notice that its misconduct could subject it to a large punitive damages award. See BMW, 517 U.S. at 584; Continental Trend Resources, Inc., 101 F.3d at 641. Thus, the question under BMW is whether OCF had reasonable notice that its failure to provide warnings about the dangers of Kaylo could result in substantial punishment in the form of punitive damages. See Continental Trend Resources, 101 F.3d at 641 (applying BMW guideposts on remand after BMW decision). Although the notice analysis is difficult to apply because OCF's misconduct during the 1950's and 1960's occurred before product liability law was mature and before punitiv
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