Davis, J., concurring:
In this well written decision the majority opinion has affirmed a punitive damage award. I concur in the conclusion reached on this issue. I have chosen to write separately to underscore what I perceive to be limitations on the reach of the majority decision as it concerns punitive damages and evidence of unlawful out-of-state conduct by a defendant.
1. Application of Campbell to
out-of-state conduct against nonlitigants. The decision in Campbell involved
a first-party bad faith action brought against an insurer in the state
of Utah. During the course of the trial, the plaintiff sought to establish
that the insurer had a nationwide policy of engaging in bad faith conduct
in settling claims. To prove their theory, the plaintiff introduced evidence
of all types of lawful out-of-state conduct that was committed
by the insurer. The jury eventually returned a verdict awarding the plaintiff
$1 million in compensatory damages and $145 million in punitive damages.
The Utah Supreme Court affirmed the judgment. Subsequently, the United
States Supreme Court granted certiorari. One of the issues addressed by
the Supreme Court involved the use of an insurer's lawful out-of-state conduct against persons other
than the plaintiff for the purpose of assessing punitive damages.
The Supreme Court made two dispositive rulings on the issue of out-of-state conduct perpetrated against nonlitigants as it relates to punitive damages. First, Campbell held that,
cannot punish a defendant for conduct that may have been lawful where it occurred.
Nor, as a general rule, does a State have a legitimate concern in imposing punitive
damages to punish a defendant for unlawful acts committed outside of the State's
538 U.S. at 421, 123 S.Ct. at 1522, 155 L.Ed.2d at 603 (citations omitted). Second, the decision carved out an exception to the general rule regarding the use of evidence of a defendant's lawful out-of-state conduct against nonlitigants:
out-of-state conduct may be probative when it demonstrates the deliberateness
and culpability of the defendant's action in the State where it is tortious,
but that conduct must have a nexus to the specific harm suffered by the plaintiff.
A jury must be instructed, furthermore, that it may not use evidence of out-of-state
conduct to punish a defendant for action that was lawful in the jurisdiction
where it occurred.
Campbell, 538 U.S. at 422, 123 S.Ct. at 1522-1523, 155 L.Ed.2d at 604 (citation omitted).
On a previous occasion
I have pointed out that [s]ince the facts in Campbell involved
only lawful out-of-state conduct [against nonlitigants], the opinion
did not expressly state that its exception applied to unlawful out-of-state conduct
[against nonlitigants]. Jackson v. State Farm Mut. Auto. Ins. Co.,
___ W. Va. ___, ___ n.3, 600 S.E.2d 346, 361 n.3 (2004) (Davis, J., concurring)
(emphasis in original). Accordingly, I believe that the question of whether
or to what extent unlawful out-of-state conduct against non-litigants
may be used remains unanswered by Campbell.
2. Application of Campbell to
unlawful out-of-state conduct against nonlitigants. The decision in Campbell made
clear that, as a general matter, a plaintiff cannot introduce evidence
of . . . unlawful out-of-state conduct by a defendant, for
the sole purpose of punishing the defendant. Jackson,
___ W. Va. at___, 600 S.E.2d at 361 (Davis, J., concurring) (emphasis
in original). Insofar as Campbell was concerned with lawful out-
of-state conduct, it did not reach the question of whether an exception
exists that would allow the introduction of evidence of unlawful out-of-state
conduct against nonlitigants.
In the instant case, the
defendant argued that the trial court allowed the introduction of evidence
of unlawful out-of-state conduct by the defendant against nonlitigants. The
defendant further contended that the introduction of such evidence violated Campbell.
The majority opinion correctly found that the issue did not have to be reached,
because plaintiffs did not introduce evidence of specific unlawful out-of-state
conduct by the defendant against nonlitigants. Instead, the opinion correctly
addressed the more narrow issue of unlawful out-of-state conduct committed against the plaintiffs.
Campbell clearly does not prohibit or impose limitations on the use of evidence that shows a defendant's tortious conduct against a litigant involved unlawful out-of-state conduct. Indeed, Campbell held that [a] defendant should be punished for the conduct that harmed the plaintiff[.] Campbell, 538 U.S. at 423, 123 S.Ct. at 1523, 155 L.Ed.2d at 604. Under Campbell,
does not permit courts, in the calculation of punitive damages, to adjudicate
the merits of other [nonparties'] hypothetical claims against a defendant. . . .
Punishment on these bases creates the possibility of multiple punitive damages
awards for the same conduct; for in the usual case nonparties are not bound by
the judgment some other plaintiff obtains.
538 U.S. at 423, 123 S.Ct. at 1523, 155 L.Ed.2d at 604 (citation omitted).
In the final analysis, the new syllabus point created in the majority opinion stands for the sole proposition that West Virginia has a legitimate interest in imposing damages to punish a defendant for unlawful acts committed outside th[e] State's jurisdiction where . . . the plaintiffs' claims . . . arise from the unlawful out-of-state conduct. Nothing in the new syllabus point or the majority opinion should be interpreted to mean that the Court has carved out an exception to Campbell's general prohibition on the use of evidence of unlawful out-of-state conduct by a defendant against nonlitigants. Whether or not an exception exists still remains to be decided.
In view of the foregoing, I concur.