No. 32552 In Re: Tobacco Litigation (Personal Injury Cases)
Benjamin, J., concurring:
I write separately to emphasize not only what the Court's opinion does, but also what
it does not do. This unanimous opinion answers a narrow question in a narrow manner. It does no
more. It does no less.
I think it important to underscore the essence of the Court's opinion:
After carefully considering the parties' arguments and the Supreme Court's
decision in Campbell
, this Court finds that Campbell,
which did not involve mass tort
litigation, does not per se preclude the circuit court's original trial plan. We
emphasize that the question before this Court is a narrow one. Accordingly, our
answer is strictly limited to this narrow question.
(See footnote 1)
Our response is limited to the
issue of whether State Farm v. Campbell
precludes a bifurcated trial plan like the one
below. Further, we do not address whether there may be other legal reasons to
question the circuit court's bifurcated trial plan. Nor do we, or indeed can we,
address in the abstract the specific evidence that may be presented on the issue of
reprehensibility. Our conclusion in this case simply is, first, we find nothing in
that mandates a reexamination of our existing system of mass tort
litigation. Second, we find nothing in Campbell
that per se precludes a bifurcated
trial plan in which a punitive damages multiplier is established prior to the
determination of individual compensatory damages. Beyond this, we leave more
specific issues for another day. . . .
In this passage, the Court emphasizes the narrowness with which it approached and answered the
certified question. In addition to twice stating that Campbell
does not per se
(by or in itself)
preclude the circuit court's original trial plan, the Court twice specifically restricts its answer to the
certified question, stating that we are . . . not address[ing] whether there may be other legal reasons
to question the circuit court's bifurcated trial plan and [n]or do we, or indeed can we, address in
the abstract the specific evidence that may be presented on the issue of reprehensibility. These
limitations merit attention.
Plaintiffs and defendants differ greatly herein on their views of the scope and
commonality of the evidence of reprehensible conduct which may warrant consideration of punitive
damages. Plaintiffs appear to contend that the evidence of reprehensible conduct is the same and
applicable to all plaintiffs. In their amended brief, plaintiffs claim that all 1,000 of them were
harmed, not just by similar conduct, but by the exact same conduct _ namely, defendants' fraudulent
concealment of the known hazards of smoking. Thus, plaintiffs argue that this evidence is suitable
for determining a single punitive damage multiplier for all of them. Since plaintiffs were all harmed
by the same alleged conduct of defendants, plaintiffs contend that the trial court need not be
concerned with similar and dissimilar conduct and that the jury, on the basis of this common
reprehensible conduct, may apply one punitive damage multiplier to whatever compensatory
damages may be subsequently awarded.
Defendants, on the other hand, contend that the evidence is diverse with no sameness
applicable to all plaintiffs. Defendants therefore contend that such evidence is unsuitable for
determining a single punitive damage multiplier fitting to all claimants. They claim in their response
that plaintiffs have not limited their damages claim to recovery for fraudulent concealment, but also
that plaintiffs seek recovery for negligence and strict liability in the design, manufacture, and
warning labels of cigarettes; strict liability in selling an unreasonably dangerous product; negligence
in testing and researching; and negligence in their advertising and in the sale of cigarettes to minors.
Among other arguments, defendants contend that (1) evidence of concealment or failure to warn
cannot be a basis of punitive damages for individual plaintiffs who were fully aware of the risks of smoking or of the facts supposedly concealed; (2) evidence relating to addiction cannot be a basis
of punitive damages for individual plaintiffs who are not addicted; (3) evidence of misconduct in the
1950s or 1960s cannot be a basis of punitive damages for individual plaintiffs who didn't start
smoking until the 1970s or 1980s; (4) evidence relating to light cigarettes cannot be a basis of
punitive damages for smokers of unfiltered cigarettes; and (5) evidence relating to a particular
defendant against whom a plaintiff is pursuing no claim should not be a basis for that individual
plaintiff's punitive damages. Thus, defendants claim, a plaintiff could obtain (and some defendants
could pay) punitive damages set by the application of a multiplier that was based on the misconduct
of companies that those plaintiffs did not sue or on alleged reprehensible conduct of a defendant
which is not even applicable to the specific plaintiff.
In responding to certified questions rather than in considering issues raised on
properly perfected appeals, this Court necessarily lacks the intimate knowledge which the trial level
circuit court has of all facets of the litigation below. We do not have a full and complete record
before us in a consideration of a certified question. We therefore cannot, and indeed should not, in
my opinion, determine whether all plaintiffs were harmed by the exact same conduct, as the plaintiffs
contend, or, if harmed at all, whether plaintiffs were harmed by diverse conducts of different
defendants, the products of which all plaintiffs did not smoke, as the tobacco companies claim. Nor
has the Court done so in its answer to the certified question. The Court's opinion does not discuss
the divergent views of the parties with respect to the evidence of reprehensible conduct. Nor has the
Court expressed a view on which conducts on the part of the defendants are similar and which are
dissimilar. Without such factual determinations having first been made, daunting and complex as
that process may ultimately prove to be, this Court is in no position, in my opinion, to say ultimately
's restricted view on evidence of reprehensibility, and the constitutional
considerations which underlie such a view, would sanction a punitive damages multiplier as the
circuit court's original two-phase trial plan envisioned. Judge Recht apparently thinks not, and I, for
one, am in no position to disagree with him. Nor, as I read it, does the Court's opinion. In limiting
its answer herein, the Court states that [b]eyond [our limited response], we leave more specific
issues for another day; that [m]atters such as a matrix and the use of a punitive damages multiplier,
given the unresolved nature of the use of such mechanisms, can be better addressed by this Court
upon appeals taken from final orders (quoting State ex rel. Mobil Corp. v. Gaughan,
211 W. Va.
106, 113, 563, S.E.2d 419, 426 (2002 ); and, most importantly, that we decline to tell the circuit
court how to proceed.
(See footnote 2)
There is yet another significant sentence in the Court's opinion which I believe needs
emphasis: [W]e do not address whether there may be other legal reasons to question the circuit
court's bifurcated trial plan. Although not recently, this Court has said on many occasions that:
Punitive damages should not be awarded in any case where the amount of
compensatory damages is adequate to punish the defendant; and, in a case where such
compensatory damages are not adequate for the purpose of punishment, only such
additional amount should be awarded as, taken together with the compensatory
damages, will sufficiently punish the defendant.
Syl. Hess v. Marinari
, 81 W. Va. 500, 94 S.E. 968 (1918). Accord, Mayer v. Frobe
, 40 W. Va. 246,
22 S.E. 58, 63 (1895), Fisher v. Fisher
, 89 W. Va. 199, 108 S.E. 872, 874 (1921); and Raines v.
, 131 W. Va. 10, 48 S.E.2d 393, 399 (1948).
The principle of stare decisis
is a fundamental foundation of our system of
jurisprudence. It is the source of the predictability, balance and stability in the legal system
necessary to permit individuals and companies to structure their affairs and have confidence in the
surety of their rights. It is, by any other consideration, a necessary aspect of the fairness which
litigants should rightfully expect they will have in our courts and for which confidence in the judicial
system will be advanced. The United States Supreme Court has spoken on the duty of courts to
follow precedent on many occasions. In Rodriquez de Quijas v. Shearson/American Exp.
, 490 U.S.
477, 484, 109 S.Ct. 1917, 1921-22, 104 L.Ed. 2d 526 (1989), the court admonished lower courts that
[i]f [its] precedent has direct application in a case, yet appears to rest on reasons rejected in some
other line of decisions, [the lower court] should follow the case which directly controls, leaving to
this Court the prerogative of overruling its own decisions. I am not aware of any case of this Court
which disturbs our holding in Marinari
The lower court should, in my opinion, consider whether the principles repeated in
and its progeny, as well as the constitutional principles and protections applicable herein,
present other legal reasons to question the circuit court's bifurcated trial plan. It could be that a
jury given the opportunity to consider the assessment of punitive damages after having awarded
compensatory damages may conclude that the magnitude of the compensatory damages awarded
does not warrant the assessment of further damages to punish the defendants. Likewise, such a jury
may conclude that the magnitude of the compensatory damages when considered with the
defendant's proven reprehensible conduct could require punitive damages in excess of what a
uniform multiplier would otherwise provide.
(See footnote 3)
It is the circuit court's decision how to proceed. It is hoped that counsel for the
parties will endeavor to provide the circuit court with such support, suggestions, and
recommendations as the circuit court may request to best determine the proper trial plan to utilize
in this litigation.