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Owens-Corning Fiberglas Corp. v. Malone6/5/1998
the concept of punitive damages in products liability suits and ask the citizens of this state to wait for a national law or legislative reform in all fifty states . . . ."); see also Jeffries, A Comment on the Constitutionality of Punitive Damages, 72 Va. L. Rev. 139, 146 (1986)(noting that when a court denies a litigant punitive damages because its opponent has been sufficiently punished by previous judgments for the same course of conduct, there is no guarantee that other courts will follow suit thereby disadvantaging its own citizens relative to claimants in other jurisdictions).
Third, courts have rejected OCF's argument to avoid what those courts perceive as inequitable results. As Judge Friendly pointed out over thirty years ago, it does not "seem either fair or practicable to limit punitive recoveries to an indeterminate number of first-comers, leaving it to some unascertained court to cry, `Hold, enough,' in the hope that others will follow." Roginsky, 378 F.2d at 839-40; see also Fischer, 512 A.2d at 478 (reasoning that the fact that a defendant injured a large number of people should not relieve it from multiple punitive damage awards); Davis v. Celotex Corp., 420 S.E.2d 557, 565 (W. Va. 1992)(" t seems highly illogical and unfair for courts to determine at what point punitive damage awards should cease."); Kemp, The Continuing Appeal of Punitive Damages: An Analysis of Constitutional and Other Challenges to Punitive Damages, Post-Haslip and Moriel, 26 Tex. Tech. L. Rev. 1, 68 (1994)(noting that limiting multiple punitive damage awards "unfairly advantages the first plaintiff or first few plaintiffs to obtain judgments for punitive damages to the detriment of all others"). But c.f. Owen I, supra, at 1325(questioning the supposed unfairness of rewarding the initial plaintiffs to a greater extent than subsequent plaintiffs). While we sympathize with the second and third reasons for rejecting OCF's constitutional challenge, these concerns should not stand in the way of protecting a defendant's due process rights. "Due process mandates at all times, in all circumstances, and for all defendants, `fundamental fairness' at the hands of the law." Jeffries, supra, at 152. As we recognized in Moriel, our duty is "to ensure that defendants who deserve to be punished in fact receive an appropriate level of punishment, while at the same time preventing punishment that is excessive or otherwise erroneous." Moriel, 879 S.W.2d at 17. " t some point, some jurisdiction must face up to the realities of the asbestos crisis and take a step that might . . . lead others to adopt a broader view." Dunn, 1 F.3d at 1399 (Weiss, J., dissenting). Erecting a constitutional barrier to additional punitive damages awards against a particular defendant for the same course of conduct may, to some extent, allow only those plaintiffs who win the "race to the courthouse" to recover punitive damages. However, punitive damages are not designed to compensate individuals, but are only intended to punish tortious conduct and to deter its repetition. See Moriel, 879 S.W.2d at 16; see also BMW, 517 U.S. at 568; Wheeler, The Constitutional Case for Reforming Punitive Damages Procedures, 69 Va. L. Rev. 269, 292 (1983)("As courts have uniformly held, no plaintiff has a right to punitive damages . . . the purpose of punitive dve due process analysis of multiple punitive damage awards for the same conduct, courts should focus on the defendant's due process rights and whether the twin aims of punishment and deterrence have been adequately served rather than on plaintiffs' remedies. See Dunn, 1 F.3d at 1402 (Weiss, J., dissenting); Wilson v. Dukona Corp., N.V., 547 So.2d 70, 73 (Ala. 1989)(" he focus is on the plaintiff with regard to the propriety of the
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