The Impropriety of Punitive Damages in Mass Torts

Punitive damages have been around for centuries in classicone-on-one tort actions and are here to stay. Mass torts, ofmore recent origin, have matured to the point that this articleis comfortable referring to most of them as traditional.Notwithstanding the legitimacy of both institutions whenemployed separately, loud warning signals should soundwhen, as with drinking and driving, they are combined.Potentially destructive mixes of punitive damages and masstorts have, unfortunately, been prevalent in traditional,fault-based mass tort actions. The difficulties are mostlyadministrative.Although punitive damages are conceptuallycompatible with fault-based mass torts, courts administerpunitive awards in ways that are so capriciousas to generategross unfairness and inefficiency. If warning signals shouldbe loud in connection with punitive awards in traditionalmass torts, they should be downright deafening when courtsconsider awarding them in what this article refers to asemerging, nontraditional,enterprise-liability-basedforms ofmass tort.Given that these serious difficulties cannot be eliminatedthrough marginal reforms, this article argues that punitivedamages are manifestly inappropriate in, and must beeliminated from, all forms of mass tort.

Of course, a broadproscription requires courts to overrule precedent inconnection with traditional mass torts, and this articleexplains how this could be accomplished. By contrast, such aproscription would come early enough in the development ofemerging forms of mass tort to nip punitive awards in the budwithout the need to overrule longstandingprecedent. If courts are going to eliminate punitive awards in mass torts, now isthe time for them to act.