For The Defense, December 2011 - DRI Today

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