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Owens-Corning Fiberglas Corp. v. Malone6/5/1998
ccordingly, we affirm the court of appeals' judgment in Malone.
III. OCF v. Wasiak
A. Single Punitive Damage Award And Due Process
Initially, OCF again complains about the exclusion of Frank's testimony at trial. Here, OCF sought to read into evidence a transcript of Frank's former testimony with accompanying exhibits as its "enough is enough" evidence. In response to the plaintiffs' objection that OCF had not shown Frank's unavailability, OCF's attorneys argued that Frank, a California resident, was not subject to the trial court's subpoena power, and added that Frank was on a European vacation. We agree with the court of appeals when it held that the trial court properly excluded OCF's "enough is enough" evidence because OCF did not establish Frank's unavailability under Texas Rule of Evidence 804 for transcribed testimony from another proceeding. See Tex. R. Evid. 804; Hall v. White, 525 S.W.2d 860, 862 (Tex. 1975); Cf. Tex. R. Evid. 801(e)(3)(about use of depositions from same proceeding); see also Evans, 774 S.W.2d at 658 n.5. Also, for the reasons we explained in Malone, the trial court's error, if any, in excluding Frank's prior testimony was not harmful.
After the trial, the trial court held a full evidentiary hearing on OCF's motion to set aside or reduce the punitive damage awards. At the posttrial hearing, the trial court heard OCF's evidence, including Frank's live testimony, about its financial condition, including evidence about previous asbestos-related punitive damage awards. That record also shows that, at the time, OCF had only paid $3 million in past punitive damage awards. And again, counsel for OCF conceded this fact at oral argument before this Court. OCF's posttrial evidence shows that it has not paid any punitive damages in Texas or Alabama.
OCF first argues that the punitive damage award in this case is unconstitutionally excessive under BMW of North America v. Gore. As a threshold matter, Wasiak argues that punitive damages are the functional equivalent of compensatory damages in wrongful death cases governed by Alabama law, and, consequently, this Court should not grant OCF constitutional immunity from punitive damages in such cases. While it is true that punitive damage awards in wrongful death cases are accorded special treatment under Alabama law, the damages recoverable are intended to serve a punitive purpose and "are in no sense compensatory." Gulf, Mobile & Ohio R.R. Co. v. Williams, 38 So.2d 334, 336 (Ala. 1949); see also Atkins v. American Motors Corp., 335 So.2d 134, 144 (Ala. 1976)("Damages [in wrongful death cases] are to be awarded that will punish the tortfeasor for the act and deter him and others from similar future conduct."). Because punitive damage awards in Alabama wrongful death cases are meant to punish and deter, we conclude that the BMW constitutional analysis should apply in this case.
1. Applicable Law
The Due Process Clause "prohibits a State from imposing a `grossly excessive' punishment on a tortfeasor." BMW, 517 U.S. at 562. BMW marks the first time that the Supreme Court found a punitive damages award so excessive that it violated a party's substantive due process rights. See BMW, 517 U.S. at 585-86. Under BMW, even if an assessment of punitive damages is not deemed excessive under governing state law, it may violate a party's substantive due process right to protection from "grossly excessive" punitive damages awards. See BMW, 517 U.S. at 568; see also Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 430 n.12 (1996)(noting that BMW provides "an ultimate federal constitutional check for exorbitancy" of punitive damages). Similarly, we have recognized that, "l
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