For The Defense, December 2011 - DRI Today
For The Defense, December 2011 - DRI Today
For The Defense, December 2011 - DRI Today
Create successful ePaper yourself
Turn your PDF publications into a flip-book with our unique Google optimized e-Paper software.
may decide that failing to take this action<br />
constitutes more reprehensible conduct—<br />
particularly if a defendant knew that the<br />
product was, in fact, defective, and did not<br />
try to make the product safer.<br />
Conclusion<br />
<strong>The</strong> U.S. Supreme Court’s project of establishing<br />
constitutional rules for punitive<br />
damages awards is not yet complete. <strong>The</strong><br />
law particularly needs to resolve the mis-<br />
86 ■ <strong>For</strong> <strong>The</strong> <strong>Defense</strong> ■ <strong>December</strong> <strong>2011</strong><br />
match between the factors that the Court<br />
has identified for assessing reprehensibility<br />
in economic tort cases with the typical facts<br />
at issue in product liability cases. <strong>The</strong> work<br />
must begin in the lower courts. In states<br />
where juries have the first-line responsibility<br />
to ensure that reasonable punitive damages<br />
verdicts prevail, trial courts should<br />
take the first step of providing suitable<br />
instructions that recast the reprehensibility<br />
factors along the lines outlined above. If<br />
juries return verdicts that include punitive<br />
damages awards, both trial courts and appellate<br />
courts should review those verdicts,<br />
taking manufacturers’ design and post-<br />
design conduct into account. And counsel<br />
must attempt to convince these courts<br />
that they should not reflexively use a set of<br />
factors that the U.S. Supreme Court never<br />
intended as exclusive and applicable to all<br />
cases, and which, in product liability cases,<br />
at least, are a poor fit.<br />
Rapid