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Owens-Corning Fiberglas Corp. v. Malone6/5/1998
compensatory damages award, and on the defendant with respect to the propriety of any assessment of punitive damages."). Fourth, some courts have decided that no single court is capable of crafting an acceptable solution to the national problem of multiple punitive damages in mass tort litigation, and have suggested that legislative action is the answer. See, e.g., Dunn, 1 F.3d at 1386 (collecting state cases and noting that "both state and federal courts have recognized that no single court can fashion an effective response to the national problem flowing from mass exposure to asbestos products."); Cantrell v. GAF Corp., 999 F.2d 1007, 1017 (6th Cir. 1993)(expressing view "that relief from multiple punitive damage awards should not be sought from a federal court sitting in a diversity action but, rather, from the legislature under whose law the action is decided"); Jackson, 781 F.2d at 406 ("The relief sought by [the asbestos defendant] may be more properly granted by the state or federal legislature than by this Court."); Keene Corp. v. Kirk, 870 S.W.2d 573, 582 (Tex. App.--Dallas 1993, no writ)("We too conclude that the higher courts and the appropriate legislative bodies should resolve such policy considerations.")(citing Glasscock v. Armstrong Cork Co., 946 F.2d 1085, 1096 (5th Cir. 1991)); W.R. Grace & Co., 638 So.2d at 505 ("Any realistic solution to the problems caused by the asbestos litigation in the United States must be applicable to all fifty states. It is our belief that such a uniform solution can only be effected by federal legislation."); Fischer, 512 A.2d at 480 ("At the state court level we are powerless to implement solutions to the nationwide problems created by asbestos exposure and litigation arising from that exposure.").
It may be that a truly uniform solution can only be fashioned by either the Supreme Court or Congress. Nevertheless, the difficulty or enormity of the task does not grant us leave to avoid OCF's properly preserved due process challenge under applicable constitutional principles and to ensure that its due process rights are not violated. See Moriel, 879 S.W.2d at 16-17. Indeed, a state court's interpretation of federal law about such a challenge is no less important than that of the federal court of appeals in its circuit. See Lockhart v. Fretwell, 506 U.S. 364, 376 (1993)(Thomas, J., Concurring). Courts should not wait for congressional or legislative action to correct errors made by the courts themselves. "Mistakes created by courts can be corrected by courts without engaging in judicial activism. It is judicial paralysis, not activism, that is the problem in [mass tort cases involving successive punitive damages awards]." Dunn, 1 F.3d at 1399 (Weiss, J., dissenting); see also Owen III, supra, 60 n.227.
Finally, courts have rejected due process challenges to multiple punitive damage awards not because such challenges are necessarily unsound as a matter of constitutional law, but because the defendant failed to preserve error on the issue, there was not an adequate record to show a due process violation, or, whatever limits due process may impose on multiple punitive damage awards, that limit clearly was not surpassed on the facts presented. See, e.g., Racich v. Celotex Corp., 887 F.2d 393, 398 (2d Cir. 1989)(error not preserved); Pittsburgh Corning Corp., 901 F.2d at 281-82 (no due process violation on record presented); Dunn, 1 F.3d at 1389 (same); Leonen v. Johns-Manville Corp., 717 F. Supp. 272, 285 (D. N.J. 1989)(same); Palmer v. A.H. Robins Co., 684 P.2d 187, 216 (Co. 1984)(same). Here, OCF preserved its arguments, and as a result of the posttrial evidentiary hearing, the record is adequate for our review.
Although we recognize that o
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