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Owens-Corning Fiberglas Corp. v. Malone6/5/1998
courts. Only a few federal courts have discussed comment e in this context.
A number of commentators have also discussed the relevance of other claims in determining punitive damages.
The cases cited by the Court are a mixed bag. In Dunn v. HOVIC, the court rejected OCF's due process challenge, pointing out that OCF at a minimum should have put on evidence showing how much it had actually paid toward the punitive damage verdicts listed in its post-trial affidavits. The court also concluded that OCF had failed to show that it would be unable to pay future awards of compensatory or punitive damages. The court pointed to an Annual Report suggesting a declining severity in the nature of recent claims, and that OCF "`anticipates achieving a gradual reduction in per case indemnity payments.'" Nevertheless, in determining whether to grant remittitur, the court expressly took into consideration all of the factors listed in comment e, including the multiplicity of claims. Although the trial court had reduced punitive damages from $25,000,000 to $2,000,000, the appellate court concluded that insufficient consideration had been given to the effect of successive punitive damages claims. That was the factor, "above all," that led the appellate court to reduce the award to $1,000,000.
The Court's reliance on Spaur v. Owens-Corning Fiberglass Corp. is similarly flawed. Citing Dunn, the court agreed that "past awards actually paid" should be considered in reviewing punitive damages awards, but the court did not say that that was the sole factor courts should consider. Similarly, the court in Johnson v. Celotex Corporation concluded that defendant failed to support its due process challenge, observing that defendant had failed to document how much had actually been paid. Johnson did not, however, state that this information alone was relevant. Only in Fischer v. Johns-Manville Corp. may it fairly be implied that the court chose not to include unpaid, past awards, or potential future awards. Again, however, nothing in the court's opinion prohibited consideration of such evidence in other cases.
Other cases the Court cites are more directly opposite its position. In Stevens v. Owens-Corning Fiberglas Corp., the court actually cited comment e with approval and concluded that this evidence should have been presented to the jury. And in Roginsky v. Richardson-Merrell, Inc., the trial Judge instructed the jury to consider the potential number of similar claims, given the potentially wide effect of the defendant's actions.
In sum, case law from other jurisdictions can in no way be said to support the Court's position in the present cases. On the contrary, the overwhelming weight of authority supports comment e.
The Court's rejection of comment e is not only unnecessary; it is ill-founded. Because I cannot join in this aspect of the Court's analysis, I concur only in the Court's judgments in these cases.
Nathan L. Hecht Justice
On Application for Writ of Error to the Court of Appeals for the Third District of Texas
Argued on November 21, 1996
Justice Owen, Concurring in the judgment.
I concur in the judgment. It is unnecessary for the Court to decide whether evidence of pending and future claims or evidence of unpaid punitive damages awards is ever admissible. See __ S.W.2d at __ (Hecht, J., Concurring). Because those questions should be decided if and when they are squarely presented and fully briefed, I do not join in the Court's opinion or either of my Concurring colleagues' opinions.
Priscilla R. Owen Justice
OPINION DELIVERED: June 5, 1998
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