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Owens-Corning Fiberglas Corp. v. Malone6/5/1998
damages or prior punitive damages awards that the defendant has actually paid for the same course of conduct is admissible when the defendant offers it in mitigation of punitive damages. Such evidence is relevant because it better informs the fact finder about the parties' situation and the amount of punitive damages necessary to fairly punish a party and to deter the conduct in question. See Lunsford, 746 S.W.2d at 472; Kraus, 616 S.W.2d at 910. Allowing such evidence also provides an important "safeguard to minimize the risk of unjust punishment." Moriel, 879 S.W.2d at 17. Of course, this evidence is only relevant and admissible at trial about the amount of punitive damages--usually in the second part of a bifurcated trial. See Tex. Civ. Prac. & Rem. Code § 41.009.
Evidence that is not relevant, or is unduly prejudicial, and thus, not admissible to mitigate punitive damages, includes actual damage amounts paid by settlements or by judgments; the number of pending claims filed against a defendant for the same conduct; the number of anticipated claims for the same conduct; insurance coverage; unpaid punitive damages awards for the same course of conduct; and evidence of punitive damages that may be levied in the future. See Tex. R. Evid. 403; Dunn v. HOVIC, 1 F.3d 1371, 1389-90 (3d Cir.)(en banc), modified in part, 13 F.3d 58 (3d Cir. 1993)(OCF's "failure to designate particular amounts of the settlements as representing punitive damages makes inclusion of these amounts problematic . . . [thus] OCF has failed to prove that the aggregate award of punitive damages against it has been sufficient to meet the twin goals of punishment and deterrence underlying such awards."); Simpson v. Pittsburgh Corning Corp., 901 F.2d 277, 281-82 (2d Cir. 1990)(rejecting argument that actual damage awards and settlements can be aggregated to establish that successive punitive damages awards are unconstitutional); Roginsky v. Richardson-Merrell, Inc., 378 F.2d 832, 839 (2d Cir. 1967)(" t is hard to see what even the most intelligent jury would do with this [evidence about the potential number of similar actions], being inherently unable to know what punitive damages, if any, other juries in other states may award other plaintiffs in actions yet untried."); Baker v. Armstrong, 744 P.2d 170, 173 (N.M. 1987)(" unitive damages liability coverage is not an asset which can be used to measure true punishment and . . . therefore, it should not be considered by the jury in assessing a defendant's financial standing."); see also Rojas v. Vuocolo, 177 S.W.2d 962, 964 (Tex. 1944)(holding that proof of insurance for the defendant in connection with issues of liability or damages should not be introduced to the jury).
OCF cites comment e of the Restatement (Second) of torts § 908 (1979) to support its argument that the fact finder should be allowed to consider unpaid punitive damage awards including those awarded in the past and those that might be awarded in the many pending claims against OCF. See Restatement (Second) of torts § 908 cmt. e (1979). Section 908 provides:
(1) Punitive damages are damages, other than compensatory or nominal damages, awarded against a person to punish him for his outrageous conduct and to deter him and others like him from similar conduct in the future.
(2) Punitive damages may be awarded for conduct that is outrageous, because of the defendant's evil motive or his reckless indifference to the rights of others. In assessing punitive damages, the trier of fact can properly consider the character of the defendant's act, the nature and extent of the harm to the plaintiff that the defendant caused or intended to cause and the wealth of the defendant.
Restate
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