Alicia F. Curtis, lawyer at Berman & Simmons
Benjamin R. Gideon, trial lawyer and partner at Berman & Simmons

Punitive Damages in a Products Liability Case

When it is pursued intelligently from the outset, a claim for punitive damages can enhance the value of the right products liability case. Attorneys should understand the issues and challenges that are unique to punitive damages in the products liability context. The opportunities to pursue such claims arise more often than one might think.

The standards for punitive damages
The Law Court has adopted heightened standards for the type of reprehensible conduct warranting punitive damages and for proof of that conduct. Tuttle v. Raymond, 494 A.2d 1353 (Me. 1985). In order to imply the requisite standard of malice, conduct must go beyond a “reckless indifference to the rights of others.” Id. at 1362. The injured party must prove either express malice, or deliberate conduct so outrageous that malice can be implied, through clear and convincing evidence. In adopting these higher standards, the Law Court expressly reserved for another time “many issues concerning the availability of punitive damages,” including “application of punitive damages in products liability” cases. Id. at 1360 n.20.

What standards apply in a products liability case
At the time Tuttle v. Raymond was decided, numerous other jurisdictions had recently considered whether punitive damages should be available at all in strict products liability cases and had ruled in favor of plaintiffs. See, e.g., Acosta v. Honda Motor Co., 717 F.2d 828, 833 & n.6 (3d Cir. 1983)(collecting cases). Since Tuttle v. Raymond, many of the remaining jurisdictions have recognized punitive damage awards in strict products liability cases. See, e.g., Racich v. Celotex Corp., 887 F.2d 393, 397 (2d Cir. 1989); Jackson v. Johns-Manville Sales Corp., 781 F.2d 394, 399-401 (5th Cir. 1986)(collecting cases), cert denied, 478 U.S. 1022 (1986).

A strict products liability action is based on the product’s defectiveness and relieves the plaintiff of the burden to prove fault based on the manufacturer’s conduct. This focus on the product rather than the defendant’s conduct is not a theoretical barrier to punitive damages, if the plaintiff can meet her additional burden of proving the defendant’s outrageous conduct. Neal v. Carey Canadian Mines Ltd., 548 F.Supp. 357, 378 (E.D. Penn. 1982). This challenge can only be met by focusing on the manufacturer’s conduct from the early stages of discovery, even though the evidence may not be necessary to establish liability.

Punitive damages arose from the need to avoid extrajudicial remedies like dueling by compensating an injured plaintiff for affronts to his honor and dignity. Romo v. Ford Motor Co., 113 Cal.App.4th 738, 746-47 (Cal. Ct. App. 2003). Historically, they have focused on punishment for a particular harm to a particular plaintiff.

In the products liability context, though, courts have recognized that punitive damages play an important role in protecting consumers whom governmental safety standards and the criminal law have failed to protect. Punitive damages may force manufacturers to recalculate the cost of selling a defective and dangerous product. Thus, the important public purpose of punitive damages in products liability cases provides an argument that the Tuttle v. Raymond standards should be lowered in products liability cases. Certainly, public policy arguments provide powerful support for a punitive damages award.

Evidence of malice in a products liability case
Regardless of the applicable standard, a products liability plaintiff must work aggressively in discovery to develop evidence for punitive damages. Case law from Maine suggests that a plaintiff may need to prove a manufacturer engaged in some form of affirmative behavior rising above deliberate inaction. Thorndike v. DaimlerChrysler Corp., 2003 WL 21145623 (D. Me. May 15, 2003). Evidence of an orchestrated cover up of a product’s danger in the face of reports of injuries caused by the product might meet the plaintiff’s burden to prove sufficiently outrageous conduct.Id.

Less proof may suffice for a finding of malice, though. One court has commented that the Tuttle v. Raymondstandard has slipped to include reckless conduct, citing as one example a case holding that a jury could conclude that driving a tractor trailer at night transporting an unlighted, unmarked, 120 foot steel I-beam, was sufficiently outrageous to support a punitive damages award. In re Slosberg, 225 B.R. 9 (Bankr. D. Me. 1998); Lebouillier v. East Coast Steel, Inc., 13 F.Supp.2d 109, 110 (D.Me. 1998). Under this holding, evidence that a manufacturer had actual or even constructive knowledge of injuries caused by its defective product and failed to remedy the defect might be enough to support a punitive damages award.

Injuries to other consumers
Evidence of injury to other consumers by the defective product can be used to determine the amount of a punitive damages award. Whether the injuries to other consumers are known to the manufacturer or not, they are evidence of its reprehensible conduct. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 423-424 (2003). Reprehensibility is the first factor used by the Law Court in evaluating the reasonableness of the amount of punitive damages awarded. Hoch v. Stiffel, ___ A.3d , 2011 WL 693712 (Me. Mar. 1, 2011). The manufacturer’s conduct in causing the injuries must be sufficiently similar to the conduct that injured the plaintiff.

Conclusion
Evidence to support a punitive damages award must be pursued aggressively from the early stages of discovery. Such discovery must focus on the manufacturer’s conduct and, in particular, whether it followed internal standards and protocols for safety, the nature and results of any product testing, representations about the product’s safety, and how the product was marketed. Evidence of injury to other consumers by the defective product or a substantially similar product can be effective both in proving malice and in calculating the amount of a punitive damages award.

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