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Owens-Corning Fiberglas Corp. v. Malone6/5/1998
ther courts have struggled with the issue and have discussed valid reasons for rejecting OCF's due process challenge, we join the courts and commentators that have acknowledged that repeatedly imposing punitive damages on the same defendant for the same course of wrongful conduct may implicate substantive due process constraints. See, e.g., Dunn, 1 F.3d at 1385 ("The principal issue impelling us to take this otherwise routine product liability case in banc is the effect of successive punitive damages awards in mass tort cases arising from the same course of conduct: We, as well as other courts, have expressed concerns in that regard."); King v. Armstrong World Indus., Inc., 906 F.2d 1022, 1033 (5th Cir. 1990)("With some misgivings, the panel holds that it is bound [by previous Fifth Circuit decisions]" to reject defendant's argument that multiple punitive damage awards for the same misconduct violated constitutional protections.); Racich , 887 F.2d at 398 ("We agree that the multiple imposition of punitive damages for the same course of conduct may raise serious constitutional concerns, in the absence of a limiting principle."); In re School Asbestos Litig., 789 F.2d at 1005 (" owerful arguments have been made that, as a matter of constitutional law or of substantive tort law, the courts shoulder some responsibility for preventing repeated awards of punitive damages for the same acts or series of acts."); In re "Agent Orange" Prod. Liab. Litig., 100 F.R.D. 718, 728 (E.D.N.Y. 1983)("There must . . . be some limit, either as a matter of policy or as a matter of due process, to the amount of times a defendant may be Litig., 526 F. Supp. 887, 899-900 (N.D. Cal. 1981), rev'd on other grounds, 693 F.2d 847 (9th Cir. 1982)("A defendant has a due process right to be protected against unlimited multiple punishment for the same act."); Tetuan, 738 P.2d at 1244 ("The concerns expressed in Roginsky of multiple punitive damage awards in mass accident or products liability cases may require consideration by this court at some future time."); Owen III, supra, at 60 n.227("As the total punitive damages assessed against the company in different actions mount, there should come a point when the aggregate of such punishment will be deemed sufficient as a matter of law."); Seltzer, supra, at 55("The aggregate amount of multiple awards . . . can reach a level so fundamentally unfair and destructive that any additional awards above that level should not be permitted."); Koenig, Punitive Damage "Overkill" After TXO Production Corp. v. Alliance Resources: The Need for a Congressional Solution, 36 Wm. & Mary L. Rev. 751, 763 (1995)("The Supreme Court . . . could rule that multiple awards trigger `a general concern of reasonableness' and violate substantive due process because they go beyond what is necessary to deter and punish.").
The Supreme Court has not considered at what point multiple punitive damages awards arising from the same course of conduct are unconstitutional as a matter of substantive due process. However, if a single punitive damages award becomes unconstitutional when it can fairly be categorized as "grossly excessive" in relation to a state's legitimate interests in punishment and deterrence, it follows that the aggregate amount of multiple awards may also surpass a constitutional threshold. See BMW, 517 U.S. at 568; see also Dunn, 1 F.3d at 1404 (Weiss, J., Dissenting). Even before BMW held that an individual punitive damage award could exceed constitutional boundaries, many courts and commentators (as we have citeundamentally unfair in violation of due process guarantees. BMW simply lends additional support to the view that multiple punitive damage awards against a party for the same course of conduct can surpass co
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