OCTOBER TERM, 1993
Syllabus
HONDA MOTOR CO., LTD., ET AL.
v. OBERG
CERTIORARI TO THE SUPREME COURT OF OREGON No. 93-644. Argued
April 20, 1994-Decided June 24,1994
After finding petitioner Honda Motor Co., Ltd., liable for
injuries respondent Oberg received while driving a three-wheeled
all-terrain vehicle manufactured and sold by Honda, an Oregon jury
awarded Oberg $5 million in punitive damages, over five times the
amount of his compensatory damages award. In affirming, both the
State Court of Appeals and the State Supreme Court rejected Honda's
argument that the punitive damages award violated due process
because it was excessive and because Oregon courts have no power to
correct excessive verdicts under a 1910 amendment to the State
Constitution, which prohibits judicial review of the amount of
punitive damages awarded by a jury "unless the court can
affirmatively say there is no evidence to support the verdict." The
latter court relied heavily on the fact that the State's product
liability punitive damages statute and the jury instructions in
this case provided at least as much guidance as those upheld in
Pacific Mut. Life Ins. Co. v.
Has lip, 499 U. S. 1. The court also
declined to interpret
Haslip to hold that due process
requires the amount of a punitive damages award to be subject to
postverdict or appellate review, and noted that Oregon courts are
not powerless because they may vacate a judgment if there is no
evidence supporting the jury's decision, and because appellate
review is available to test the sufficiency of jury
instructions.
Held: Oregon's denial of review of the size of punitive
damages awards violates the Fourteenth Amendment's Due Process
Clause. Pp. 420-435.
(a) The Constitution imposes a substantive limit on the size of
punitive damages awards.
Pacific Mut. Life Ins. Co. v.
Haslip, 499 U.
S. 1;
TXO Production Corp. v.
Alliance Resources
Corp., 509 U. S.
443. The opinions in these cases strongly emphasized the
importance of the procedural component of the Due Process Clause,
and suggest that the analysis here should focus on Oregon's
departure from traditional procedures. Pp.420-421.
(b) Judicial review of the size of punitive damages awards was a
safeguard against excessive awards under the common law, see,
e.
g., Blunt v.
Little, 3 F. Cas. 760, 761-762, and in
modern practice in the federal courts and every State, except
Oregon, judges review the size of such awards. See,
e. g.,
Dagnello v.
Long Island R. Co., 289
F.2d 797,799800, n. 1. Pp. 421-426.
416
Syllabus
(c) There is a dramatic difference between judicial review under
the common law and the scope of review available in Oregon. At
least since the State Supreme Court definitively construed the 1910
amendment in
Van Lom v.
Schneiderman, 187 Ore. 89,
210 P. 2d 461, Oregon law has provided no procedure for reducing or
setting aside a punitive damages award where the only basis for
relief is the
amount awarded. No Oregon court for more than
half a century has inferred passion or prejudice from the size of a
damages award, and no court in more than a decade has even hinted
that it might possess the power to do so. If courts had such power,
the State Supreme Court would have mentioned it in responding to
Honda's arguments in this very case. The review that is provided
ensures only that there is evidence to support
some punitive
damages, not that the evidence supports the amount actually
awarded, thus leaving the possibility that a guilty defendant may
be unjustly punished. Pp. 426-429.
(d) This Court has not hesitated to find proceedings violative
of due process where a party has been deprived of a
well-established commonlaw protection against arbitrary and
inaccurate adjudication. See,
e. g.,
Tumey v.
Ohio, 273 U.
S. 510. Punitive damages pose an acute danger of arbitrary
deprivation of property, since jury instructions typically leave
the jury with wide discretion in choosing amounts and since
evidence of a defendant's net worth creates the potential that
juries will use their verdicts to express biases against big
businesses. Oregon has removed one of the few procedural safeguards
which the common law provided against that danger without providing
any substitute procedure and without any indication that the danger
has in any way subsided over time.
Hurtado v.
California, 110 U. S. 516, 538;
International Shoe Co. v.
Washington, 326 U. S. 310,
distinguished. Pp. 430-432.
(e) The safeguards that Oberg claims Oregon has provided-the
limitation of punitive damages to the amount specified in the
complaint, the clear and convincing standard of proof, preverdict
determination of maximum allowable punitive damages, and detailed
jury instructionsdo not adequately safeguard against arbitrary
awards. Nor does the fact that a jury's arbitrary decision to
acquit a defendant charged with a crime is unreviewable offer a
historic basis for such discretion in civil cases. The Due Process
Clause says nothing about arbitrary grants of freedom, but its
whole purpose is to prevent arbitrary deprivations of liberty or
property. Pp. 432-435.
316 Ore. 263, 851 P. 2d 1084, reversed and remanded.
STEVENS, J., delivered the opinion of the Court, in which
BLACKMUN, O'CONNOR, SCALIA, KENNEDY, SOUTER, and THOMAS, JJ.,
joined. SCALIA,
417
J., filed a concurring opinion,
post, p. 435. GINSBURG,
J., filed a dissenting opinion, in which REHNQUIST, C. J., joined,
post, p. 436.
Andrew L. Frey argued the cause for petitioners. With him on the
briefs were Kenneth S. Geller, Charles A. Rothfeld, Evan M. Tager,
Thomas W Brown, Jeffrey R. Brooke, and Paul G. Cereghini.
Laurence H. Tribe argued the cause for respondent.
With him on the brief were William A. Gaylord, Kenneth J.
Chesebro, Michael H. Gottesman, and Raymond F. Thomas. *
*Briefs of amici curiae urging reversal were filed for the
American Council of Life Insurance et al. by Erwin N. Griswold,
Patricia A. Dunn, Stephen J. Goodman, Richard E. Barnsback, Phillip
E. Stano, and Patrick J. McNally; for the Equal Employment Advisory
Council by Douglas S. McDowell and Kimberly L. Japinga; for the
Product Liability Advisory Council, Inc., et al. by Malcolm E.
Wheeler; for Snap-on Tools Corp. et al. by Gary M. Elden and Donald
A. Vogelsang; and for the Washington Legal Foundation by Arvin
Maskin, Steven Alan Reiss, Peter A. Antonucci, Daniel J. Popeo, and
Paul D. Kamenar.
Briefs of
amici curiae urging affirmance were filed for
the State of Hawaii et al. by
Theodore R. Kulongoski,
Attorney General of Oregon,
Thomas A. Balmer, Deputy
Attorney General,
Virginia L. Linder, Solicitor General, and
Rives Kistler, Assistant Attorney General,
Robert A.
Marks, Attorney General of Hawaii,
Robert T. Stephan,
Attorney General of Kansas,
Hubert H. Humphrey III, Attorney
General of Minnesota,
Mike Moore, Attorney General of
Mississippi, and
Joseph P. Mazurek, Attorney General of
Montana; for the Association of Trial Lawyers of America by
Jeffrey Robert White, Cheryl Flax-Davidson, and
Barry
J.
Nace; and for Trial Lawyers for Public Justice by
Arthur H. Bryant, Leslie Brueckner, and
Michael
Rustad.
Briefs of amici curiae were filed for CBS Inc. et al. by P.
Cameron DeVore, Marshall J. Nelson, Douglas P. Jacobs, David C.
Kohler, Devereaux Chatillon, Mark L. Tuft, Harold W Fuson, Jr., R.
Bruce Rich, Kenneth M. Vittor, Slade R. Metcalf, John F. Sturm,
Rene P. Milam, J. Laurent Scharff, Jane E. Kirtley, Bruce W
Sanford, and Henry S. Hoberman; for Legal Historian Daniel R.
Coquillette et al. by Arthur F. McEvoy III; and for the Oregon
Trial Lawyers Association by Kathryn H. Clarke and Maureen
Leonard.
418
JUSTICE STEVENS delivered the opinion of the Court.
An amendment to the Oregon Constitution prohibits judicial
review of the amount of punitive damages awarded by a jury "unless
the court can affirmatively say there is no evidence to support the
verdict." The question presented is whether that prohibition is
consistent with the Due Process Clause of the Fourteenth Amendment.
We hold that it is not.
I
Petitioner Honda Motor Co., Ltd., manufactured and sold the
three-wheeled all-terrain vehicle that overturned while respondent
was driving it, causing him severe and permanent injuries.
Respondent brought suit alleging that petitioner knew or should
have known that the vehicle had an inherently and unreasonably
dangerous design. The jury found petitioner liable and awarded
respondent $919,390.39 in compensatory damages and punitive damages
of $5 million. The compensatory damages, however, were reduced by
20% to $735,512.31, because respondent's own negligence contributed
to the accident. On appeal, relying on our then-recent decision in
Pacific Mut. Life Ins. Co. v.
Has lip, 499 U. S. 1 (1991),
petitioner argued that the award of punitive damages violated the
Due Process Clause of the Fourteenth Amendment, because the
punitive damages were excessive and because Oregon courts lacked
the power to correct excessive verdicts.
The Oregon Court of Appeals affirmed, as did the Oregon Supreme
Court. The latter court relied heavily on the fact that the Oregon
statute governing the award of punitive damages in product
liability actions and the jury instructions in this case 1 contain
substantive criteria that provide
1 The jury instructions, in relevant part, read: "'Punitive
damages may be awarded to the plaintiff in addition to general
damages to punish wrongdoers and to discourage wanton misconduct.
In order for plaintiff to recover punitive damages against the
defendant[s], the plaintiff must
419
at least as much guidance to the factfinders as the Alabama
statute and jury instructions that we upheld in
Haslip. The
Oregon Supreme Court also noted that Oregon law provides an
additional protection by requiring the plaintiff to prove
entitlement to punitive damages by clear and convincing evidence
rather than a mere preponderance. Recognizing that other state
courts had interpreted
Haslip as including a "clear ...
constitutional mandate for meaningful judicial scrutiny of punitive
damage awards,"
Adams v.
Murakami, 54 Cal. 3d 105,
118, 813 P. 2d 1348, 1356 (1991); see also
Alexander &
Alexander, Inc. v.
B. Dixon Evander &
Assocs.,
Inc., 88 Md. App. 672, 596 A. 2d 687 (1991), the court
nevertheless declined to "interpret
Haslip to hold that an
award of punitive damages, to comport with the requirements of the
Due Process Clause, always must be subject to a form of
post-verdict or appellate review that includes the possibility of
remittitur." 316 Ore. 263, 284, 851 P. 2d 1084, 1096 (1993). It
also noted that trial and appellate courts were "not entirely
powerless" because a judgment may be vacated if "there is no
evidence to support the jury's decision," and because "appellate
review is available to test the sufficiency of the jury
instructions."
Id., at 285, 851 P. 2d, at 1096-1097.
prove by clear and convincing evidence that defendant[s have]
shown wanton disregard for the health, safety, and welfare of
others .... If you decide this issue against the defendant[s], you
may award punitive damages, although you are not required to do so,
because punitive damages are discretionary. In the exercise of that
discretion, you shall consider evidence, if any, of the following:
First, the likelihood at the time of the sale [of the three-wheeled
vehicle] that serious harm would arise from defendants' misconduct.
Number two, the degree of the defendants' awareness of that
likelihood. Number three, the duration of the misconduct. Number
four, the attitude and conduct of the defendant[s] upon notice of
the alleged condition of the vehicle. Number five, the financial
condition of the defendant[s]. And the amount of punitive damages
may not exceed the sum of $5 million.''' 316 Ore. 263, 282, n. 11,
851 P. 2d 1084, 1095, n. 11 (1993).
420
We granted certiorari, 510 U. S. 1068 (1994), to consider
whether Oregon's limited judicial review of the size of punitive
damages awards is consistent with our decision in
Has
lip.
II
Our recent cases have recognized that the Constitution imposes a
substantive limit on the size of punitive damages awards.
Pacific Mut. Life Ins. Co. v.
Has lip, 499 U. S. 1 (1991); TXO
Production Corp. v.
Alliance Resources Corp., 509 U. S. 443 (1993).
Although they fail to "draw a mathematical bright line between the
constitutionally acceptable and the constitutionally unacceptable,"
id., at 458;
Has lip, 499 U. S., at 18, a majority of
the Justices agreed that the Due Process Clause imposes a limit on
punitive damages awards. A plurality in
TXO assented to the
proposition that "grossly excessive" punitive damages would violate
due process, 509 U. S., at 453-455, while JUSTICE O'CONNOR, who
dissented because she favored more rigorous standards, noted that
"[i]t is thus common ground that an award may be so excessive as to
violate due process," id., at 480. In the case before us today we
are not directly concerned with the character of the standard that
will identify unconstitutionally excessive awards; rather, we are
confronted with the question of what procedures are necessary to
ensure that punitive damages are not imposed in an arbitrary
manner. More specifically, the question is whether the Due Process
Clause requires judicial review of the amount of punitive damages
awards.
The opinions in both
Haslip and
TXO strongly
emphasized the importance of the procedural component of the Due
Process Clause. In
Has lip, the Court held that the
common-law method of assessing punitive damages did not violate
procedural due process. In so holding, the Court stressed the
availability of both "meaningful and adequate review by the trial
court" and subsequent appellate review. 499 U. S., at 20.
Similarly, in
TXO, the plurality opinion
421
found that the fact that the "award was reviewed and upheld by
the trial judge" and unanimously affirmed on appeal gave rise "to a
strong presumption of validity." 509 U. S., at 457. Concurring in
the judgment, JUSTICE SCALIA (joined by JUSTICE THOMAS) considered
it sufficient that traditional common-law procedures were followed.
In particular, he noted that" 'procedural due process' requires
judicial review of punitive damages awards for reasonableness."
Id., at 471.
All of those opinions suggest that our analysis in this case
should focus on Oregon's departure from traditional procedures. We
therefore first contrast the relevant commonlaw practice with
Oregon's procedure, which that State's Supreme Court once described
as "a system of trial by jury in which the judge is reduced to the
status of a mere monitor."
Van Lom v.
Schneiderman,
187 Ore. 89, 113, 210 P. 2d 461, 471 (1949). We then examine the
constitutional implications of Oregon's deviation from established
common-law procedures.
III
Judicial review of the size of punitive damages awards has been
a safeguard against excessive verdicts for as long as punitive
damages have been awarded. One of the earliest reported cases
involving exemplary damages,
Huckle v.
Money, 2 Wils.
205, 95 Eng. Rep. 768 (C. P. 1763), arose out of King George Ill's
attempt to punish the publishers of the allegedly seditious
North Briton, No. 45. The King's agents arrested the
plaintiff, a journeyman printer, in his home and detained him for
six hours. Although the defendants treated the plaintiff rather
well, feeding him "beef steakes and beer, so that he suffered very
little or no damages," 2 Wils., at 205, 95 Eng. Rep., at 768, the
jury awarded him £300, an enormous sum almost 300 times the
plaintiff's weekly wage. The defendant's lawyer requested a new
trial, arguing that the jury's award was excessive. Plain-
422
tiff's counsel, on the other hand, argued that "in cases of tort
... the court will never interpose in setting aside verdicts for
excessive damages."
Id., at 206, 95 Eng. Rep., at 768. While
the court denied the motion for new trial, the Chief Justice
explicitly rejected plaintiff's absolute rule against review of
damages amounts. Instead, he noted that when the damages are
"outrageous" and "all mankind at first blush must think so," a
court may grant a new trial "for excessive damages."
Id., at
207, 95 Eng. Rep., at 769. In accord with his view that the amount
of an award was relevant to the motion for a new trial, the Chief
Justice noted that "[u]pon the whole I am of opinion the damages
are not excessive."
Ibid.
Subsequent English cases, while generally deferring to the
jury's determination of damages, steadfastly upheld the court's
power to order new trials solely on the basis that the damages were
too high.
Fabrigas v.
Mostyn, 2 Black. W. 929, 96
Eng. Rep. 549 (C. P. 1773) (Damages "may be so monstrous and
excessive, as to be in themselves an evidence of passion or
partiality in the jury"); 2
Sharpe v.
Brice, 2 Black.
W. 942, 96 Eng. Rep. 557 (C. P. 1774) ("It has never been laid
down, that the Court will not grant a new trial for excessive
damages in any cases of tort");
Leith v.
Pope, 2
Black. W. 1327, 1328, 96 Eng. Rep. 777, 778 (C. P. 1779) ("[I]n
cases of tort the Court will not interpose on account of the
largeness of damages, unless they are so flagrantly excessive as to
afford an internal evidence of the prejudice and partial-
2 As in many early cases, it is unclear whether this case
specifically concerns punitive damages or merely ordinary
compensatory damages. Since there is no suggestion that different
standards of judicial review were applied for punitive and
compensatory damages before the 20th century, no effort has been
made to separate out the two classes of cases. See Brief for Legal
Historians Daniel R. Coquillette et al. as
Amici Curiae 2,3,
6-7, 15 (discussing together "punitive damages, personal injury,
and other cases involving difficult-to-quantify damages").
423
ity of the jury");
Jones v.
Sparrow, 5 T. R. 257,
101 Eng. Rep. 144 (K. B. 1793) (new trial granted for excessive
damages);
Goldsmith v.
Lord Sefton, 3 Anst. 808, 145
Eng. Rep. 1046 (Exch. 1796) (same);
Hewlett v.
Cruchley, 5 Taunt. 277, 281, 128 Eng. Rep. 696, 698 (C. P.
1813) ("[I]t is now well acknowledged in all the Courts of
Westminster-hall, that whether in actions for criminal
conversation, malicious prosecutions, words, or any other matter,
if the damages are clearly too large, the Courts will send the
inquiry to another jury").
Respondent calls to our attention the case of
Beardmore
v.
Carrington, 2 Wils. 244, 95 Eng. Rep. 790 (C. P. 1764),
in which the court asserted that "there is not one single case,
(that is law), in all the books to be found, where the court has
granted a new trial for excessive damages in actions for torts."
Id., at 249, 95 Eng. Rep., at 793. Respondent would infer
from that statement that 18th-century common law did not provide
for judicial review of damages. Respondent's argument overlooks
several crucial facts. First, the
Beardmore case antedates
all but one of the cases cited in the previous paragraph. Even if
respondent's interpretation of the case were correct, it would be
an interpretation the English courts rejected soon thereafter.
Second,
Beardmore itself cites at least one case that it
concedes granted a new trial for excessive damages,
Chambers
v.
Robinson, 2 Str. 691, 93 Eng. Rep. 787 (K. B. 1726),
although it characterizes the case as wrongly decided. Third, to
say that "there is not one single case ... in all the books" is to
say very little, because then, much more so than now, only a small
proportion of decided cases was reported. For example, for 1764,
the year
Beardmore was decided, only 16 Common Pleas cases
are recorded in the standard reporter. 2 Wils. 208-257, 95 Eng.
Rep. 769-797. Finally, the inference respondent would draw, that
18th-century English common law did not permit a judge to order new
trials for excessive damages, is explicitly rejected by
Beardmore itself,
424
which cautioned against that very inference: "We desired to be
understood that this court does not say, or lay down any rule that
there can never happen a case of such excessive damages in tort
where the court may not grant a new trial." 2 Wils., at 250, 95
Eng. Rep., at 793.
Common-law courts in the United States followed their English
predecessors in providing judicial review of the size of damages
awards. They too emphasized the deference ordinarily afforded jury
verdicts, but they recognized that juries sometimes awarded damages
so high as to require correction. Thus, in 1822, Justice Story,
sitting as Circuit Justice, ordered a new trial unless the
plaintiff agreed to a reduction in his damages.3 In explaining his
ruling, he noted:
"As to the question of excessive damages, I agree, that the
court may grant a new trial for excessive damages .... It is indeed
an exercise of discretion full of delicacy and difficulty. But if
it should clearly appear that the jury have committed a gross
error, or have acted from improper motives, or have given damages
excessive in relation to the person or the injury, it is as much
the duty of the court to interfere, to prevent the wrong, as in any
other case." Blunt v. Little, 3 F. Cas. 760, 761-762
(No. 1,578) (CC Mass. 1822).
See also
Whipple v.
Cumberland Mfg. Co., 29 F.
Cas. 934, 937-938 (No. 17, 516) (CC Me. 1843).
3 While Justice Story's grant of a new trial was clearly in
accord with established common-law procedure, the
remittitur-withdrawal of new trial if the plaintiff agreed to a
specific reduction of damages-may have been an innovation. See
Dimick v.
Schiedt, 293 U. S. 474, 482-485
(1935). On the other hand, remittitur may have a better historical
pedigree than previously thought. See
King v.
Watson,
2 T. R. 199-200, 100 Eng. Rep. 108 (K. B. 1788) ("[O]n a motion in
the Common Pleas to set aside the verdict for excessive damages ...
the Court recommended a compromise, and on
Hurry's agreeing
to accept 1500 [pounds] they discharged the rule").
425
In the 19th century, both before and after the ratification of
the Fourteenth Amendment, many American courts reviewed damages for
"partiality" or "passion and prejudice." Nevertheless, because of
the difficulty of probing juror reasoning, passion and prejudice
review was, in fact, review of the amount of awards. Judges would
infer passion, prejudice, or partiality from the size of the
award.4
Coffin v.
Coffin, 4 Mass. 1, 41 (1808) (In
cases of personal injury, "a verdict may be set aside for excessive
damages" when "from the exorbitancy of them the court must conclude
that the jury acted from passion, partiality, or corruption");
Taylor v.
Giger, 3 Ky. 586, 587 (1808) ("In actions
of tort ... a new trial ought not to be granted for excessiveness
of damages, unless the damages found are so enormous as to shew
that the jury were under some improper influence, or were led
astray by the violence of prejudice or passion");
McConnell
v.
Hampton, 12 Johns. 234, 235 (N. Y. 1815) (granting new
trial for excessive damages and noting: "That Courts have a legal
right to grant new trials, for excessive damages in actions for
torts, is no where denied ... ");
Belknap v.
Boston &
Maine R. Co., 49 N. H. 358, 374 (1870)
(setting aside both compensatory and punitive damages, because
"[w]e think it evident that the jury were affected by some
partiality or prejudice").
Nineteenth-century treatises similarly recognized judges'
authority to award new trials on the basis of the size of damages
awards. 1 D. Graham, A Treatise on the Law of New Trials 442 (2d
ed. 1855) ("[E]ven in personal torts, where the jury find
outrageous damages, clearly evincing partiality, prejudice
and passion, the court will interfere for the relief
4 This aspect of passion and prejudice review has been
recognized in many opinions of this Court.
Browning-Ferris
Industries of Vt., Inc. v.
Kelco Disposal, Inc.,
492 U. S. 257,
272 (1989);
Pacific Mut. Life Ins. Co. v.
Haslip,
499 U. S. 1,21, n.
10 (1991);
id., at 27 (SCALIA, J., concurring);
TXO
Production Corp. v.
Alliance Resources Corp., 509 U. S. 443, 467 (1993)
(KENNEDY, J., concurring); id., at 476-478 (O'CONNOR, J.,
dissenting).
426
of the defendant, and order a new trial"); T. Sedgwick, A
Treatise on the Measure of Damages 707 (5th ed. 1869) ("The court
again holds itself at liberty to set aside verdicts and grant new
trials ... whenever the damages are so excessive as to create the
belief that the jury have been misled either by passion, prejudice,
or ignorance"); 3 J. Sutherland, A Treatise on the Law of Damages
469 (1883) (When punitive damages are submitted to the jury, "the
amount which they may think proper to allow will be accepted by the
court, unless so exorbitant as to indicate that they have been
influenced by passion, prejudice or a perverted judgment").
Modern practice is consistent with these earlier authorities. In
the federal courts and in every State, except Oregon, judges review
the size of damages awards. See
Dagnello v.
Long Island
R. Co., 289 F.2d
797, 799-800, n. 1, (CA2 1961) (citing cases from all 50 States
except Alaska, Maryland, and Oregon);
Nome v.
Ailak,
570 P. 2d 162, 173174 (Alaska 1977);
Alexander &
Alexander, Inc. v.
B. Dixon Evander &
Assocs.,
Inc., 88 Md. App., at 716-722, 596 A. 2d, at 709-711, cert.
denied, 605 A. 2d 137 (Md. 1992);
Texaco, Inc. v.
Pennzoil, Co., 729 S. W. 2d 768 (Tex. App. 1987);
Grimshaw v.
Ford Motor Co., 119 Cal. App. 3d 757, 174
Cal. Rptr. 348 (1981); Draper, Excessiveness or Inadequacy of
Punitive Damages Awarded in Personal Injury or Death Cases, 12 A.
L. R. 5th 195 (1993); Schnapper, Judges Against JuriesAppellate
Review of Federal Civil Jury Verdicts, 1989 Wis. L. Rev. 237.
IV
There is a dramatic difference between the judicial review of
punitive damages awards under the common law and the scope of
review available in Oregon. An Oregon trial judge, or an Oregon
appellate court, may order a new trial if the jury was not properly
instructed, if error occurred during the trial, or if there is no
evidence to support any punitive damages at all. But if the
defendant's only basis for relief is the
amount of punitive
damages the jury awarded, Oregon
427
provides no procedure for reducing or setting aside that award.
This has been the law in Oregon at least since 1949 when the State
Supreme Court announced its opinion in Van
Lom v.
Schneiderman, 187 Ore. 89, 210 P. 2d 461 (1949),
definitively construing the 1910 amendment to the Oregon
Constitution.5
In that case the court held that it had no power to reduce or
set aside an award of both compensatory and punitive damages that
was admittedly excessive.6 It recognized that the constitutional
amendment placing a limitation on its power was a departure from
the traditional common-law approach.7 That opinion's
characterization of Oregon's "lonely eminence" in this regard, id.,
at 113, 210 P. 2d, at 471, is still an accurate portrayal of its
unique position. Every other State in the Union affords postverdict
judicial review of the
5 The amended Article VII, § 3, of the Oregon Constitution
provides: "In actions at law, where the value in controversy shall
exceed twenty dollars, the right of trial by jury shall be
preserved, and no fact tried by a jury shall be otherwise
re-examined in any court of this State, unless the court can
affirmatively say there is no evidence to support the verdict."
6 "The court is of the opinion that the verdict of $10,000.00 is
excessive.
Some members of the court think that only the award of punitive
damages is excessive; others that both the awards of compensatory
and punitive damages are excessive. Since a majority are of the
opinion that this court has no power to disturb the verdict, it is
not deemed necessary to discuss the grounds for these divergent
views."
Van Lom v.
Schneiderman, 187 Ore., at 93, 210
P. 2d, at 462 (1949).
7 "The guaranty of the right to jury trial in suits at common
law, incorporated in the Bill of Rights as one of the first ten
amendments of the Constitution of the United States, was
interpreted by the Supreme Court of the United States to refer to
jury trial as it had been theretofore known in England; and so it
is that the federal judges, like the English judges, have always
exercised the prerogative of granting a new trial when the verdict
was clearly against the weight of the evidence, whether it be
because excessive damages were awarded or for any other reason. The
state courts were conceded similar powers .... [U]p to 1910, when
the people adopted Art. VII, § 3, of our Constitution, there was no
state in the union, so far as we are advised, where this method of
control of the jury did not prevail."
Id., at 112-113,210 P.
2d, at 471.
428
amount of a punitive damages award, see
supra, at 426,
and subsequent decisions have reaffirmed Oregon judges' lack of
authority to order new trials or other relief to remedy excessive
damages.
Fowler v.
Courtemanche, 202 Ore. 413, 448,
274 P. 2d 258, 275 (1954) ("If this court were authorized to
exercise its common law powers, we would unhesitatingly hold that
the award of $35,000 as punitive damages was excessive ... ");
Tenold v.
Weyerhaeuser Co., 127 Ore. App. 511, 873 P.
2d 413 (1994) (Oregon court cannot examine jury award to ensure
compliance with $500,000 statutory limit on noneconomic
damages).
Respondent argues that Oregon's procedures do not deviate from
common-law practice, because Oregon judges have the power to
examine the size of the award to determine whether the jury was
influenced by passion and prejudice. This is simply incorrect. The
earliest Oregon cases interpreting the 1910 amendment squarely held
that Oregon courts lack precisely that power.
Timmins v.
Hale, 122 Ore. 24, 43-44, 256 P. 770, 776 (1927);
McCulley v.
Homestead Bakery, Inc., 141 Ore. 460,
465-466, 18 P. 2d 226, 228 (1933). Although dicta in later cases
have suggested that the issue might eventually be revisited, see
Van Lom, 187 Ore., at 106, 210 P. 2d, at 468, the earlier
holdings remain Oregon law. No Oregon court for more than half a
century has inferred passion and prejudice from the size of a
damages award, and no court in more than a decade has even hinted
that courts might possess the power to do SO.8 Finally, if Oregon
courts
8 The last reported decision to suggest that a new trial might
be ordered because the size of the award suggested passion and
prejudice was
Trenery v.
Score, 45 Ore. App. 611,
615, 609 P. 2d 388, 389 (1980) (noting that "[i]t is doubtful" that
passion and prejudice review continues to be available); see also
Foley v.
Pittenger, 264 Ore. 310, 503 P. 2d 476
(1972). More recent decisions suggest that the type of passion and
prejudice review envisioned by the common law and former Ore. Rev.
Stat. § 17.610 (repealed by 1979 Ore. Laws, ch. 284, § 199) is no
longer available. See
Tenold v.
Weyerhaeuser Co., 127
Ore. App. 511, 873 P. 2d 413 (1994).
429
could evaluate the excessiveness of punitive damages awards
through passion and prejudice review, the Oregon Supreme Court
would have mentioned that power in this very case. Petitioners
argued that Oregon procedures were unconstitutional precisely
because they failed to provide judicial review of the size of
punitive damages awards. The Oregon Supreme Court responded by
rejecting the idea that judicial review of the size of punitive
damages awards was required by
Has lip. 316 Ore., at 263,
851 P. 2d, at 1084. As the court noted, two state appellate courts,
including the California Supreme Court, had reached the opposite
conclusion.
Id., at 284, n. 13, 851 P. 2d, at 1096, n. 13.
If, as respondent claims, Oregon law provides passion and prejudice
review of excessive verdicts, the Oregon Supreme Court would have
had a more obvious response to petitioners' argument.
Respondent also argues that Oregon provides adequate review,
because the trial judge can overturn a punitive damages award if
there is no substantial evidence to support an award of punitive
damages. See
Fowler v.
Courtemanche, 202 Ore., at
448-449, 274 P. 2d, at 275. This argument is unconvincing, because
the review provided by Oregon courts ensures only that there is
evidence to support
some punitive damages, not that there is
evidence to support the amount actually awarded. While Oregon's
judicial review ensures that punitive damages are not awarded
against defendants entirely innocent of conduct warranting
exemplary damages, Oregon, unlike the common law, provides no
assurance that those whose conduct is sanctionable by punitive
damages are not subjected to punitive damages of arbitrary amounts.
What we are concerned with is the possibility that a culpable
defendant may be unjustly punished; evidence of culpability
warranting some punishment is not a substitute for evidence
providing at least a rational basis for the particular deprivation
of property imposed by the State to deter future wrongdoing.
430
v
Oregon's abrogation of a well-established common-law protection
against arbitrary deprivations of property raises a presumption
that its procedures violate the Due Process Clause. As this Court
has stated from its first due process cases, traditional practice
provides a touchstone for constitutional analysis.
Murray's
Lessee v.
Hoboken Land &
Improvement Co., 18
How. 272 (1856);
Tumey v.
Ohio, 273 U. S. 510 (1927);
Brown v.
Mississippi, 297 U. S. 278 (1936);
In re Winship, 397 U. S. 358, 361
(1970);
Burnham v.
Superior Court of Cal., County of
Marin, 495 U. S.
604 (1990);
Pacific Mut. Life Ins. Co. v.
Haslip,
499 U. S. 1 (1991).
Because the basic procedural protections of the common law have
been regarded as so fundamental, very few cases have arisen in
which a party has complained of their denial. In fact, most of our
due process decisions involve arguments that traditional procedures
provide too little protection and that additional safeguards are
necessary to ensure compliance with the Constitution.
Ownbey
v.
Morgan, 256
U. S. 94 (1921);
Burnham v.
Superior Court of Cal.,
County of Marin, 495 U. S. 604 (1990);
Pacific Mut. Life Ins. Co. v.
Haslip, 499 U. S. 1 (1991).
Nevertheless, there are a handful of cases in which a party has
been deprived of liberty or property without the safeguards of
common-law procedure.
Hurtado v.
California, 110 U. S. 516 (1884);
Tumey v.
Ohio, 273 U. S. 510 (1927);
Brown v.
Mississippi, 297 U. S. 278 (1936);
In re Oliver, 333 U. S. 257 (1948);
In re Winship,
397 U. S., at 361. When the absent procedures would have provided
protection against arbitrary and inaccurate adjudication, this
Court has not hesitated to find the proceedings violative of due
process.
Tumey v.
Ohio, 273 U. S. 510 (1927);
Brown v.
Mississippi, 297 U. S. 278 (1936);
In re Oliver, 333 U. S. 257 (1948);
In re Winship, 397 U. S., at 361. Of course, not all
deviations from established procedures result in constitutional
infirmity. As the Court noted in
Hurtado, to hold all
procedural
431
change unconstitutional "would be to deny every quality of the
law but its age, and to render it incapable of progress or
improvement." 110 U. S., at 529. A review of the cases, however,
suggests that the case before us is unlike those in which
abrogations of common-law procedures have been upheld.
In
Hurtado, for example, examination by a neutral
magistrate provided criminal defendants with nearly the same
protection as the abrogated common-law grand jury procedure.
Id., at 538. Oregon, by contrast, has provided no similar
substitute for the protection provided by judicial review of the
amount awarded by the jury in punitive damages. Similarly, in
International Shoe Co. v.
Washington, 326 U. S. 310 (1945),
this Court upheld the extension of state-court jurisdiction over
persons not physically present, in spite of contrary
well-established prior practice. That change, however, was
necessitated by the growth of a new business entity, the
corporation, whose ability to conduct business without physical
presence had created new problems not envisioned by rules developed
in another era. See
Burnham, 495 U. S., at 617. In addition,
the dramatic improvements in communication and transportation made
litigation in a distant forum less onerous. No similar social
changes suggest the need for Oregon's abrogation of judicial
review, nor do improvements in technology render unchecked punitive
damages any less onerous. If anything, the rise of large,
interstate and multinational corporations has aggravated the
problem of arbitrary awards and potentially biased juries.9
9 Respondent cites as support for his argument
Chicago, R.
I. &
P. R.
Co. v.
Cole, 251 U. S. 54, 55 (1919)
(Holmes, J.). In that case, the Court upheld a provision of the
Oklahoma Constitution providing that "'the defense of contributory
negligence ... shall ... be left to the jury.'"
Chicago, R.
I. provides little support for respondent's case. Justice
Holmes' reasoning relied on the fact that a State could completely
abolish the defense of contributory negligence. This case, however,
is different,
432
Punitive damages pose an acute danger of arbitrary deprivation
of property. Jury instructions typically leave the jury with wide
discretion in choosing amounts, and the presentation of evidence of
a defendant's net worth creates the potential that juries will use
their verdicts to express biases against big businesses,
particularly those without strong local presences. Judicial review
of the amount awarded was one of the few procedural safeguards
which the common law provided against that danger. Oregon has
removed that safeguard without providing any substitute procedure
and without any indication that the danger of arbitrary awards has
in any way subsided over time. For these reasons, we hold that
Oregon's denial of judicial review of the size of punitive damages
awards violates the Due Process Clause of the Fourteenth
Amendment.1o
VI
Respondent argues that Oregon has provided other safeguards
against arbitrary awards and that, in any event, the exercise of
this unreviewable power by the jury is consistent with the jury's
historic role in our judicial system.
Respondent points to four safeguards provided in the Oregon
courts: the limitation of punitive damages to the amount specified
in the complaint, the clear and convincing standard of proof,
preverdict determination of maximum allowable punitive damages, and
detailed jury instructions. The first,
because the
TXO and
Haslip opinions establish that
States cannot abolish limits on the award of punitive damages.
10 This case does not pose the more difficult question of what
standard of review is constitutionally required. Although courts
adopting a more deferential approach use different verbal
formulations, there may not be much practical difference between
review that focuses on "passion and prejudice," "gross
excessiveness," or whether the verdict was "against the great
weight of the evidence." All of these may be rough equivalents of
the standard this Court articulated in
Jackson v.
Virginia, 443
U. S. 307,324 (1979) (whether "no rational trier of fact could
have" reached the same verdict).
433
limitation of punitive damages to the amount specified, is
hardly a constraint at all, because there is no limit to the amount
the plaintiff can request, and it is unclear whether an award
exceeding the amount requested could be set aside. See
Tenold v.
Weyerhaeuser Co., 127 Ore. App. 511, 873 P.
2d 413 (1994) (Oregon Constitution bars court from examining jury
award to ensure compliance with $500,000 statutory limit on
noneconomic damages). The second safeguard, the clear and
convincing standard of proof, is an important check against
unwarranted imposition of punitive damages, but, like the "no
substantial evidence" review discussed
supra, at 429, it
provides no assurance that those whose conduct is sanctionable by
punitive damages are not subjected to punitive damages of arbitrary
amounts. Regarding the third purported constraint, respondent cites
no cases to support the idea that Oregon courts do or can set
maximum punitive damages awards in advance of the verdict. Nor are
we aware of any court which implements that procedure. Respondent's
final safeguard, proper jury instruction, is a wellestablished and,
of course, important check against excessive awards. The problem
that concerns us, however, is the possibility that a jury will not
follow those instructions and may return a lawless, biased, or
arbitrary verdict.ll
11 Respondent also argues that empirical evidence supports the
effectiveness of these safeguards. It points to the analysis of an
amicus showing that the average punitive damages award in a
products liability case in Oregon is less than the national
average. Brief for Trial Lawyers for Public Justice as
Amicus
Curiae. While we welcome respondent's introduction of empirical
evidence on the effectiveness of Oregon's legal rules, its
statistics are undermined by the fact that the Oregon average is
computed from only two punitive damages awards. It is well known
that one cannot draw valid statistical inferences from such a small
number of observations.
Empirical evidence, in fact, supports the importance of judicial
review of the size of punitive damages awards. The most exhaustive
study of punitive damages establishes that over half of punitive
damages awards were appealed, and that more than half of those
appealed resulted in reductions or reversals of the punitive
damages. In over 10% of the cases
434
In support of his argument that there is a historic basis for
making the jury the final arbiter of the amount of punitive
damages, respondent calls our attention to early civil and criminal
cases in which the jury was allowed to judge the law as well as the
facts. See
Johnson v.
Louisiana, 406 U. S. 356, 374,
n. 11 (1972) (Powell, J., concurring). As we have already
explained, in civil cases, the jury's discretion to determine the
amount of damages was constrained by judicial review.12 The
criminal cases do establish-as does our practice today-that a
jury's arbitrary decision to acquit a defendant charged with a
crime is completely unreviewable. There is, however, a vast
difference between arbitrary grants of freedom and arbitrary
deprivations of liberty or property. The Due Process Clause has
nothing to say about the former, but its whole purpose is to
prevent the latter. A decision to punish a tortfeasor by means of
an exaction of
appealed, the judge found the damages to be excessive. Rustad,
In Defense of Punitive Damages in Products Liability: Testing Tort
Anecdotes with Empirical Data, 78 Iowa L. Rev. 1, 57 (1992). The
above statistics understate the importance of judicial review,
because they consider only appellate review, rather than review by
the trial court, which may be even more significant, and because
they ignore the fact that plaintiffs often settle for less than the
amount awarded because they fear appellate reduction of damages.
See ibid.
12Judicial deference to jury verdicts may have been stronger in
18thcentury America than in England, and judges' power to order new
trials for excessive damages more contested. See Nelson, The
EighteenthCentury Background of John Marshall's Constitutional
Jurisprudence, 76 Mich. L. Rev. 893, 904-917 (1978); M. Horwitz,
The Transformation of American Law, 1780-1860, p. 142 (1977).
Nevertheless, because this case concerns the Due Process Clause of
the Fourteenth Amendment, 19thcentury American practice is the
"crucial time for present purposes."
Burnham v.
Superior
Court of Cal., County of Marin, 495 U. S. 604, 611
(1990). As demonstrated
supra, at 424-426, by the time the
Fourteenth Amendment was ratified in 1868, the power of judges to
order new trials for excessive damages was well established in
American courts. In addition, the idea that jurors can find law as
well as fact is not inconsistent with judicial review for excessive
damages. See
Coffin v.
Coffin, 4 Mass. 1, 25, 41
(1808).
435
exemplary damages is an exercise of state power that must comply
with the Due Process Clause of the Fourteenth Amendment. The
common-law practice, the procedures applied by every other State,
the strong presumption favoring judicial review that we have
applied in other areas of the law, and elementary considerations of
justice all support the conclusion that such a decision should not
be committed to the unreviewable discretion of a jury.
The judgment is reversed, and the case is remanded to the Oregon
Supreme Court for further proceedings not inconsistent with this
opinion.
It is so ordered.
JUSTICE SCALIA, concurring.
I join the opinion of the Court, but a full explanation of why
requires that I supplement briefly the description of what has
occurred here.
Before the 1910 amendment to Article VII, § 3, of the Oregon
Constitution, Oregon courts had developed and were applying
common-law standards that limited the size of damages awards. See,
e. g., Adcock v.
Oregon R. Co., 45 Ore. 173, 179-182,
77 P. 78, 80 (1904) (approving trial court's decision to grant a
remittitur because the jury's damages award was excessive); see
also
Van Lom v.
Schneiderman, 187 Ore. 89, 96-98,
112-113,210 P. 2d 461, 464, 471 (1949). The 1910 amendment, by its
terms, did not eliminate those substantive standards but altered
the procedures of judicial review:
"[N] 0
fact tried by a
jury shall be otherwise re-examined in any court of this state,
unless the court can affirmatively say there is no evidence to
support the verdict" (emphasis added). The Oregon courts appear to
believe that a statelaw "reasonableness" limit upon the amount of
punitive damages subsists, but cannot be enforced through the
process of judicial review. In
Van Lom, for example, the
Oregon Supreme Court had no trouble concluding that the damages
award was excessive, see 187 Ore., at 91-93, 210 P. 2d, at
436
462, but held that the amendment had removed its "power to
correct a miscarriage of justice by ordering a new trial," id., at
112-113, 210 P. 2d, at 471.
The Court's opinion establishes that the right of review
eliminated by the amendment was a procedure traditionally accorded
at common law. The deprivation of property without observing (or
providing a reasonable substitute for) an important traditional
procedure for enforcing stateprescribed limits upon such
deprivation violates the Due Process Clause.
JUSTICE GINSBURG, with whom THE CHIEF JUSTICE joins,
dissenting.
In product liability cases, Oregon guides and limits the
factfinder's discretion on the availability and amount of punitive
damages. The plaintiff must establish entitlement to punitive
damages, under specific substantive criteria, by clear and
convincing evidence. Where the factfinder is a jury, its decision
is subject to judicial review to this extent:
The trial court, or an appellate court, may nullify the verdict
if reversible error occurred during the trial, if the jury was
improperly or inadequately instructed, or if there is no evidence
to support the verdict. Absent trial error, and if there is
evidence to support the award of punitive damages, however,
Oregon's Constitution, Article VII, § 3, provides that a properly
instructed jury's verdict shall not be reexamined.1 Oregon's
procedures, I conclude, are adequate to pass the Constitution's due
process threshold. I therefore dissent from the Court's judgment
upsetting Oregon's disposition in this case.
1 Article VII, § 3, of the Oregon Constitution reads:
"In actions at law, where the value in controversy shall exceed
$200, the right of trial by jury shall be preserved, and no fact
tried by a jury shall be otherwise re-examined in any court of this
state, unless the court can affirmatively say there is no evidence
to support the verdict."
437
I A
To assess the constitutionality of Oregon's scheme, I turn first
to this Court's recent opinions in
Pacific Mut. Life Ins.
Co. v.
Haslip, 499 U. S. 1 (1991), and
TXO Production Corp. v.
Alliance Resources Corp.,
509 U. S. 443
(1993). The Court upheld punitive damage awards in both cases, but
indicated that due process imposes an outer limit on remedies of
this type. Significantly, neither decision declared any specific
procedures or substantive criteria essential to satisfy due
process. In
Has lip, the Court expressed concerns about
"unlimited jury discretion-or unlimited judicial discretion for
that matter-in the fixing of punitive damages," but refused to
"draw a mathematical bright line between the constitutionally
acceptable and the constitutionally unacceptable." 499 U. S., at
18. Regarding the components of "the constitutional calculus," the
Court simply referred to "general concerns of reasonableness and
[the need for] adequate guidance from the court when the case is
tried to a jury."
Ibid.
And in
TXO, a majority agreed that a punitive damage
award may be so grossly excessive as to violate the Due Process
Clause. 509 U. S., at 453-454, 458 (plurality opinion); id., at
466-467 (KENNEDY, J., concurring in part and concurring in
judgment); id., at 479-480 (O'CONNOR, J., dissenting). In the
plurality's view, however, "a judgment that is a product" of "fair
procedures ... is entitled to a strong presumption of validity";
this presumption, "persuasive reasons" indicated, "should be
irrebuttable, ... or virtually so."
Id., at 457, citing
Has lip, 499 U. S., at 24-40 (SCALIA, J., concurring in
judgment), and id., at 40-42 (KENNEDY, J., concurring in judgment).
The opinion stating the plurality position recalled
Haslip's
touchstone: A "'concern [for] reasonableness' " is what due process
essentially requires. 509
438
u. S., at 458, quoting
Haslip, 499 U. S., at 18. Writing
for the plurality, JUSTICE STEVENS explained:
"[WJe do not suggest that a defendant has a substantive due
process right to a correct determination of the 'reasonableness' of
a punitive damages award. As JusTICE O'CONNOR points out, state law
generally imposes a requirement that punitive damages be
'reasonable.' A violation of a state law 'reasonableness'
requirement would not, however, necessarily establish that the
award is so 'grossly excessive' as to violate the Federal
Constitution." 509 U. S., at 458, n. 24 (citation omitted).
B
The procedures Oregon's courts followed in this case satisfy the
due process limits indicated in
Haslip and
TXO; the
jurors were adequately guided by the trial court's instructions,
and Honda has not maintained, in its full presentation to this
Court, that the award in question was "so 'grossly excessive' as to
violate the Federal Constitution."
TXO, 509 U. S., at 458,
n. 24.2
1
Several preverdict mechanisms channeled the jury's discretion
more tightly in this case than in either
Haslip or
TXO. First, providing at least some protection against
unguided, utterly arbitrary jury awards, respondent Karl Oberg was
permitted to recover no more than the amounts specified in the
complaint, $919,390.39 in compensatory damages and $5 million in
punitive damages. See Ore. Rule Civ. Proc. 18B (1994);
Wiebe
v.
Seely, 215 Ore. 331, 355-358, 335 P. 2d 379, 391 (1959);
Lovejoy Specialty Hosp. v.
Advocates for Life, Inc.,
121 Ore. App. 160, 167, 855 P. 2d 159, 163 (1993). The trial court
properly instructed the jury on this damage
2 The Supreme Court of Oregon noted that "procedural due process
in the context of an award of punitive damages relates to the
requirement that the procedure employed in making that award be
fundamentally fair," while the substantive limit declared by this
Court relates to the size of the award. 316 Ore. 263, 280, n. 10,
851 P. 2d 1084, 1094, n. 10 (1993).
439
cap. See 316 Ore. 263, 282, n. 11, 851 P. 2d 1084, 1095, n. 11
(1993). No provision of Oregon law appears to preclude the
defendant from seeking an instruction setting a lower cap, if the
evidence at trial cannot support an award in the amount demanded.
Additionally, if the trial judge relates the incorrect maximum
amount, a defendant who timely objects may gain modification or
nullification of the verdict. See
Timber Access Industries
Co. v.
U. S.
Plywood-Champion Papers, Inc., 263
Ore. 509, 525-528, 503 P. 2d 482, 490-491 (1972).3
Second, Oberg was not allowed to introduce evidence regarding
Honda's wealth until he "presented evidence sufficient to justify
to the court a prima facie claim of punitive damages." Ore. Rev.
Stat. § 41.315(2) (1991); see also § 30.925(2) ("During the course
of trial, evidence of the defendant's ability to pay shall not be
admitted unless and until the party entitled to recover establishes
a prima facie right to recover [punitive damages]."). This
evidentiary rule is designed to lessen the risk "that juries will
use their verdicts to express biases against big businesses."
Ante, at 432; see also Ore. Rev. Stat. § 30.925(3)(g) (1991)
(requiring factfinder to take into account "[t]he total deterrent
effect of other punishment imposed upon the defendant as a result
of the misconduct").
Third, and more significant, as the trial court instructed the
jury, Honda could not be found liable for punitive damages unless
Oberg established by "clear and convincing evidence" that Honda
"show[ed] wanton disregard for the health, safety and welfare of
others." § 30.925 (governing product liability actions); see also §
41.315(1) ("Except as otherwise specifically provided by law, a
claim for punitive damages shall be established by clear and
convincing evidence.").
3 The Court's contrary suggestion,
ante, at 433, is based
on
Tenold v.
Weyerhaeuser Co., 127 Ore. App. 511, 873 P. 2d 413
(1994), a decision by an intermediate appellate court, in which the
defendant does not appear to have objected to the trial court's
instructions as inaccurate, incomplete, or insufficient, for
failure to inform the jury concerning a statutorily mandated
$500,000 cap on noneconomic damages.
440
"[T]he clear-and-convincing evidence requirement," which is
considerably more rigorous than the standards applied by Alabama in
Has lip 4 and West Virginia in
TXO,5 "constrain[s]
the jury's discretion, limiting punitive damages to the more
egregious cases."
Has lip, 499 U. S., at 58 (O'CONNOR, J.,
dissenting). Nothing in Oregon law appears to preclude a new trial
order if the trial judge, informed by the jury's verdict,
determines that his charge did not adequately explain what the
"clear and convincing" standard means. See Ore. Rule Civ. Proc. 64G
(1994) (authorizing court to grant new trial "on its own
initiative").
Fourth, and perhaps most important, in product liability cases,
Oregon requires that punitive damages, if any, be awarded based on
seven substantive criteria, set forth in Ore. Rev. Stat. §
30.925(3) (1991):
"(a) The likelihood at the time that serious harm would arise
from the defendant's misconduct;
"(b) The degree of the defendant's awareness of that
likelihood;
"(c) The profitability of the defendant's misconduct;
"(d) The duration of the misconduct and any concealment of
it;
"(e) The attitude and conduct of the defendant upon discovery of
the misconduct;
"(f) The financial condition of the defendant; and
"(g) The total deterrent effect of other punishment imposed upon
the defendant as a result of the misconduct, including, but not
limited to, punitive damage awards to
4 The
Haslip jury was told that it could award punitive
damages if" 'reasonably satisfied from the evidence'" that the
defendant committed fraud.
Pacific Mut. Life Ins. Co. v.
Haslip, 499 U.
S. 1, 6, n. 1 (1991).
5 The
TXO jury was instructed to apply a preponderance of
the evidence standard. See
TXO Production Corp. v.
Alliance Resources Corp., 509 U. S. 443, 463, n. 29
(1993).
441
persons in situations similar to the claimant's and the severity
of criminal penalties to which the defendant has been or may be
subjected."
These substantive criteria, and the precise instructions
detailing them,6 gave the jurors "adequate guidance" in making
6 The trial court instructed the jury:
"'Punitive damages: If you have found that plaintiff is entitled
to general damages, you must then consider whether to award
punitive damages. Punitive damages may be awarded to the plaintiff
in addition to general damages to punish wrongdoers and to
discourage wanton misconduct.
"'In order for plaintiff to recover punitive damages against the
defendantEs], the plaintiff must prove by clear and convincing
evidence that defendant[s have] shown wanton disregard for the
health, safety, and welfare of others ....
"'If you decide this issue against the defendant[s], you may
award punitive damages, although you are not required to do so,
because punitive damages are discretionary.
"'In the exercise of that discretion, you shall consider
evidence, if any, of the following:
"'First, the likelihood at the time of the sale [of the
all-terrain vehicle] that serious harm would arise from defendants'
misconduct.
'''Number two, the degree of the defendants' awareness of that
likelihood.
"'Number three, the duration of the misconduct.
"'Number four, the attitude and conduct of the defendant[s] upon
notice of the alleged condition of the vehicle.
'''Number five, the financial condition of the defendant[s].'''
316 Ore., at 282, n. 11, 851 P. 2d, at 1095, n. 11.
The trial judge did not instruct the jury on § 30.925(3)(c),
"profitability of [Honda's] misconduct," or § 30.925(3)(g), the
"total deterrent effect of other punishment" to which Honda was
subject. Honda objected to an instruction on factor (3)(c), which
it argued was phrased "to assume the existence of misconduct," and
expressly waived an instruction on factor (3)(g), on the ground
that it had not previously been subject to punitive damages. App.
to Brief for Plaintiff-Respondent in Opposition in No. S38436
(Ore.), p. 2. In its argument before the Supreme Court of Oregon,
Honda did not contend that the trial court failed to instruct the
jury concerning the "[ § 30.925(3)] criteria," or "that the jury
did not properly apply those criteria." 316 Ore., at 282, n. 11,851
P. 2d, at 1095, n. 11.
442
their award, see
Haslip, 499 U. S., at 18, far more
guidance than their counterparts in
Has lip 7 and
TX08 received. In
Has lip, for example, the jury was
told only the purpose of
7The trial judge in
Haslip instructed the jury:
"Now, if you find that fraud was perpetrated then in addition to
compensatory damages you may in your discretion, when I use the
word discretion, I say you don't have to even find fraud, you
wouldn't have to, but you may, the law says you may award an amount
of money known as punitive damages.
"This amount of money is awarded to the plaintiff but it is not
to compensate the plaintiff for any injury. It is to punish the
defendant. Punitive means to punish or it is also called exemplary
damages, which means to make an example. So, if you feel or not
feel, but if you are reasonably satisfied from the evidence that
the plaintiff[s] ... ha[ve] had a fraud perpetrated upon them and
as a direct result they were injured [then] in addition to
compensatory damages you may in your discretion award punitive
damages.
"Now, the purpose of awarding punitive or exemplary damages is
to allow money recovery to the plaintiffs, ... by way of punishment
to the defendant and for the added purpose of protecting the public
by deterring the defendant and others from doing such wrong in the
future. Imposition of punitive damages is entirely discretionary
with the jury, that means you don't have to award it unless this
jury feels that you should do so.
"Should you award punitive damages, in fixing the amount, you
must take into consideration the character and the degree of the
wrong as shown by the evidence and necessity of preventing similar
wrong." 499
"'In addition to actual or compensatory damages, the law permits
the jury, under certain circumstances, to make an award of punitive
damages, in order to punish the wrongdoer for his misconduct, to
serve as an example or warning to others not to engage in such
conduct and to provide additional compensation for the conduct to
which the injured parties have been subjected.
"'If you find from a preponderance of the evidence that TXO
Production Corp. is guilty of wanton, wilful, malicious or reckless
conduct which shows an indifference to the right of others, then
you may make an award of punitive damages in this case.
"'In assessing punitive damages, if any, you should take into
consideration all of the circumstances surrounding the particular
occurrence, including the nature of the wrongdoing, the extent of
the harm inflicted, the
443
punitive damages (punishment and deterrence) and that an award
was discretionary, not compulsory. We deemed those instructions,
notable for their generality, constitutionally sufficient. 499 U.
S., at 19-20.
The Court's opinion in
Haslip went on to describe the
checks Alabama places on the jury's discretion
postverdictthrough excessiveness review by the trial court,
and appellate review, which tests the award against specific
substantive criteria.
Id., at 20-23. While postverdict
review of that character is not available in Oregon, the seven
factors against which Alabama's Supreme Court tests punitive awards
9 strongly resemble the statutory criteria Oregon's juries are
instructed to apply. 316 Ore., at 283, and n. 12, 851 P. 2d, at
1095-1096, and n. 12. And this Court has often acknowledged, and
generally respected, the presumption that juries follow the
instructions they are given. See,
e. g.,
intent of the party committing the act, the wealth of the
perpetrator, as well as any mitigating circumstances which may
operate to reduce the amount of the damages. The object of such
punishment is to deter TXO Production Corp. and others from
committing like offenses in the future. Therefore the law
recognizes that to in fact deter such conduct may require a larger
fine upon one of large means than it would upon one of ordinary
means under the same or similar circumstances.' " 509 U. S., at
463, n. 29.
9 The Alabama factors are:
"(a) whether there is a reasonable relationship between the
punitive damages award and the harm likely to result from the
defendant's conduct as well as the harm that actually has occurred;
(b) the degree of reprehensibility of the defendant's conduct, the
duration of that conduct, the defendant's awareness, any
concealment, and the existence and frequency of similar past
conduct; (c) the profitability to the defendant of the wrongful
conduct and the desirability of removing that profit and of having
the defendant also sustain a loss; (d) the 'financial position' of
the defendant; (e) all the costs of litigation; (f) the imposition
of criminal sanctions on the defendant for its conduct, these to be
taken in mitigation; and (g) the existence of other civil awards
against the defendant for the same conduct, these also to be taken
in mitigation." 499 U. S., at 21-22, citing
Green Oil Co. v.
Hornsby, 539 So. 2d 218, 223-224 (Ala. 1989), and
Central
Alabama Elec. Cooperative v.
Tapley, 546 So. 2d 371,
376-377 (Ala. 1989).
444
Shannon v. United States, post, at 584-585; Richardson v. Marsh,
481 U. S. 200,
206 (1987).
As the Supreme Court of Oregon observed,
Haslip
"determined only that the Alabama procedure, as a whole and in its
net effect, did not violate the Due Process Clause." 316 Ore., at
284, 851 P. 2d, at 1096. The Oregon court also observed, correctly,
that the Due Process Clause does not require States to subject
punitive damage awards to a form of postverdict review "that
includes the possibility of remittitur." 10
Ibid. Because
Oregon requires the factfinder to apply § 30.925's objective
criteria, moreover, its procedures are perhaps more likely to
prompt rational and fair punitive damage decisions than are the
post hoc checks employed in jurisdictions following
Alabama's pattern. See
Has lip, 499 U. S., at 52 (O'CONNOR,
J., dissenting) ("[T]he standards [applied by the Alabama Supreme
Court] could assist juries to make fair, rational decisions.
Unfortunately, Alabama courts do not give the[se] factors to the
jury. Instead, the jury has standardless discretion to impose
punitive damages whenever and in whatever amount it wants."). As
the Oregon court concluded, "application of objective criteria
ensures that sufficiently definite and meaningful constraints are
imposed on the finder of fact." 316 Ore., at 283, 851 P. 2d, at
1096. The Oregon court also concluded that the statutory criteria,
by adequately guiding the jury, worked to "ensur[e] that the
resulting award is not disproportionate to a defendant's conduct
and to the need to punish and deter."
Ibid.ll
10 Indeed, the compatibility of the remittitur with the Seventh
Amendment was not settled until
Dimick v.
Schiedt,
293 U. S. 474
(1935).
11 Oregon juries, reported decisions indicate, rarely award
punitive damages. Between 1965 and the present, awards of punitive
damages have been reported in only two product liability cases
involving Oregon law, including this one. See Brief for Trial
Lawyers for Public Justice as
Amicus Curiae 10, and n. 7.
The punitive award in this case was about 5.4 times the amount of
compensatory damages and about 258 times the plaintiff's
out-of-pocket expenses. This amount is not far distant from
445
2
The Supreme Court of Oregon's conclusions are buttressed by the
availability of at least some postverdict judicial review of
punitive damage awards. Oregon's courts ensure that there is
evidence to support the verdict:
"If there is no evidence to support the jury's decisionin this
context, no evidence that the statutory prerequisites for the award
of punitive damages were met-then the trial court or the appellate
courts can intervene to vacate the award. See ORCP 64B(5) (trial
court may grant a new trial if the evidence is insufficient to
justify the verdict or is against law); Hill v.
Garner, 277 Ore. 641, 643, 561 P. 2d 1016 (1977) (judgment
notwithstanding the verdict is to be granted when there is no
evidence to support the verdict); State v. Brown, 306
Ore. 599, 604, 761 P. 2d 1300 (1988) (a fact decided by a jury may
be re-examined when a reviewing court can say affirmatively that
there is no evidence to support the jury's decision)." Id.,
at 285, 851 P. 2d, at 1096-1097.
The State's courts have shown no reluctance to strike punitive
damage awards in cases where punitive liability is not established,
so that defendant qualifies for judgment on that issue as a matter
of law. See,
e. g., Badger v.
Paulson Investment Co.,
311 Ore. 14,28-30,803 P. 2d 1178, 1186-1187
(1991); Andor v.
United Airlines, 303 Ore. 505, 739 P. 2d 18
(1987);
Schmidt v.
Pine Tree Land Development Co., 291 Ore. 462,
631 P. 2d 1373 (1981).
In addition, punitive damage awards may be set aside because of
flaws in jury instructions. 316 Ore., at 285, 851 P. 2d, at 1097.
See,
e. g., Honeywell v.
Sterling Furniture
the award upheld in
Haslip, which was more than 4 times
the amount of compensatory damages and more than 200 times the
plaintiff's out-ofpocket expenses. See 499 U. S., at 23. The $10
million award this Court sustained in
TXO, in contrast, was
more than 526 times greater than the actual damages of $19,000. 509
U. S., at 453.
446
Co., 310 Ore. 206, 210-214, 797 P. 2d 1019, 1021-1023 (1990)
(setting aside punitive damage award because it was prejudicial
error to instruct jury that a portion of any award would be used to
pay plaintiff's attorney's fees and that another portion would go
to State's common injury fund). As the Court acknowledges, "proper
jury instructio[n] is a wellestablished and, of course, important
check against excessive awards."
Ante, at 433.
II
In short, Oregon has enacted legal standards confining punitive
damage awards in product liability cases. These state standards are
judicially enforced by means of comparatively comprehensive
preverdict procedures but markedly limited postverdict review, for
Oregon has elected to make factfinding, once supporting evidence is
produced, the province of the jury. Cf.
Chicago, R. 1. &
P. R. Co. v.
Cole, 251 U. S. 54, 56 (1919)
(upholding against due process challenge Oklahoma Constitution's
assignment of contributory negligence and assumption of risk
defenses to jury's unreviewable decision; Court recognized State's
prerogative to "confer larger powers upon a jury than those that
generally prevail");
Minnesota v.
Clover Leaf Creamery
Co., 449 U. S.
456, 479 (1981) (STEVENS, J., dissenting) (observing that
"allocation of functions within the structure of a state
government" is ordinarily "a matter for the State to determine").
The Court today invalidates this choice, largely because it
concludes that English and early American courts generally provided
judicial review of the size of punitive damage awards. See
ante, at 421-426. The Court's account of the relevant
history is not compelling.
A
I am not as confident as the Court about either the clarity of
early American common law or its import. Tellingly, the Court
barely acknowledges the large authority exercised by American
juries in the 18th and 19th centuries. In the early
447
years of our Nation, juries "usually possessed the power to
determine both law and fact." Nelson, The EighteenthCentury
Background of John Marshall's Constitutional Jurisprudence, 76
Mich. L. Rev. 893, 905 (1978); see,
e. g., Georgia v.
Brailsford, 3 Dall. 1, 4 (1794) (Chief Justice John Jay,
trying case in which State was party, instructed jury it had
authority "to determine the law as well as the fact in
controversy").12 And at the time trial by jury was recognized as
the constitutional right of parties "[i]n [s]uits at common law,"
U. S. Const., Arndt. 7, the assessment of "uncertain damages" was
regarded, generally, as exclusively a jury function. See Note,
Judicial Assessment of Punitive Damages, the Seventh Amendment, and
the Politics of Jury Power, 91 Colum. L. Rev. 142, 156, and n. 69
(1991); see also id., at 156-158, 163, and n. 112.
More revealing, the Court notably contracts the scope of its
inquiry. It asks: Did common-law judges claim the power to overturn
jury verdicts they viewed as excessive? But full and fair
historical inquiry ought to be wider. The Court should inspect,
comprehensively and comparatively, the procedures employed-at trial
and on appeal-to fix the amount of punitive damagesP Evaluated in
this manner, Oregon's scheme affords defendants like Honda
more procedural safeguards than 19th-century law
provided.
As detailed
supra, at 440-441, Oregon instructs juries to
decide punitive damage issues based on seven substantive factors
and a clear and convincing evidence standard. When the Fourteenth
Amendment was adopted in 1868, in contrast, "no particular
procedures were deemed necessary to circumscribe a jury's
discretion regarding the award of [pu-
12 Not until
Sparfv. United States, 156 U. S. 51, 102 (1895),
was the jury's power to decide the law conclusively rejected for
the federal courts. See Riggs, Constitutionalizing Punitive
Damages: The Limits of Due Process, 52 Ohio St. L. J. 859, 900
(1991).
13 An inquiry of this order is akin to the one made in
Haslip. See
supra, at 443-444.
448
nitive] damages, or their amount."
Has lip, 499 U. S., at
27 (SCALIA, J., concurring in judgment). The responsibility
entrusted to the jury surely was not guided by instructions of the
kind Oregon has enacted. Compare 1 J. Sutherland, Law of Damages
720 (1882) ("If, in committing the wrong complained of, [the
defendant] acted recklessly, or wilfully and maliciously, with a
design to oppress and injure the plaintiff, the jury in fixing the
damages may disregard the rule of compensation; and, beyond that,
may, as a punishment of the defendant, and as a protection to
society against a violation of personal rights and social order,
award such additional damages as in their discretion they may deem
proper."), with Ore. Rev. Stat. § 30-925 (1991) (requiring jury to
consider,
inter alia, "likelihood at the time that serious
harm would arise from the defendant's misconduct"; "degree of the
defendant's awareness of that likelihood"; "profitability of the
defendant's misconduct"; "duration of the misconduct and any
concealment of it").
Furthermore, common-law courts reviewed punitive damage verdicts
extremely deferentially, if at all. See,
e. g.,
Day
v.
Woodworth, 13 How. 363, 371 (1852) (assessment of
"exemplary, punitive, or vindictive damages ... has been always
left to the discretion of the jury, as the degree of punishment to
be thus inflicted must depend on the peculiar circumstances of each
case");
Missouri Pacific R. Co. v.
Humes, 115 U. S. 512, 521 (1885)
("[t]he discretion of the jury in such cases is not controlled by
any very definite rules");
Barry v.
Edmunds, 116 U. S. 550, 565 (1886)
(in "actions for torts where no precise rule of law fixes the
recoverable damages, it is the peculiar function of the jury to
determine the amount by their verdict"). True, 19th-century judges
occasionally asserted that they had authority to overturn damage
awards upon concluding, from the size of an award, that the jury's
decision must have been based on "partiality" or "passion and
prejudice."
Ante, at 425. But courts rarely
exer-
449
cised this authority. See T. Sedgwick, Measure of Damages
707 (5th ed. 1869) (power "very sparingly used").
B
Because Oregon's procedures assure "adequate guidance from the
court when the case is tried to a jury,"
Haslip, 499 U. S.,
at 18, this Court has no cause to disturb the judgment in this
instance, for Honda presses here only a
procedural due
process claim. True, in a footnote to its petition for certiorari,
not repeated in its briefs, Honda attributed to this Court an
"assumption that procedural due process requires [judicial] review
of
both federal substantive due process and state-law
excessiveness challenges to the size of an award." Pet. for Cert.
16, n. 10 (emphasis in original). But the assertion regarding
"state-law excessiveness challenges" is extraordinary, for this
Court has never held that the Due Process Clause requires a State's
courts to police jury factfindings to ensure their conformity with
state law. See
Chicago, R. 1. &
P. R. Co. v.
Cole, 251 U. S., at 56. And, as earlier observed, see
supra, at 438, the plurality opinion in
TXO disavowed
the suggestion that a defendant has a federal due process right to
a correct determination under state law of the "reasonableness" of
a punitive damages award. 509 U. S., at 458, n. 24.
Honda further asserted in its certiorari petition footnote:
"Surely ... due process (not to mention Supremacy Clause
principles) requires, at a minimum, that state courts entertain and
pass on the federal-law contention that a particular punitive
verdict is so grossly excessive as to violate substantive due
process. Oregon's refusal to provide even that limited form of
review is particularly indefensible." Pet. for Cert. 16, n. 10.
But Honda points to no definitive Oregon pronouncement
postdating this Court's precedent-setting decisions in
Haslip
450
and
TXO demonstrating the hypothesized refusal to pass on
a federal-law contention.14
It may be that Oregon's procedures guide juries so well that the
"grossly excessive" verdict Honda projects in its certiorari
petition footnote never materializes. Cf.
supra, at 444, n.
11 (between 1965 and the present, awards of punitive damages in
Oregon have been reported in only two product liability cases,
including this one). If, however, in some future case, a plea is
plausibly made that a particular punitive damage award is not
merely excessive, but "so 'grossly excessive' as to violate the
Federal Constitution,"
TXO, 509 U. S., at 458, n. 24, and
Oregon's judiciary nevertheless insists that it is powerless to
consider the plea, this Court might have cause to grant review. Cf.
Testa v.
Katt, 330 U. S. 386 (1947) (ruling on
obligation of state courts to enforce federal law). No such case is
before us today, nor does Honda, in this Court, maintain otherwise.
See 316 Ore., at 286, n. 14, 851 P. 2d, at 1097, n. 14;
supra, at 444-445, n. 11 (size of award against Honda does
not appear to be out of line with awards upheld in
Haslip
and
TXO).
To summarize: Oregon's procedures adequately guide the jury
charged with the responsibility to determine a plaintiff's
qualification for, and the amount of, punitive damages, and on that
account do not deny defendants procedural due process; Oregon's
Supreme Court correctly refused to rule that "an award of punitive
damages, to comport with the requirements of the Due Process
Clause,
always must be subject to a form of post-verdict or
appellate review" for excessiveness, 316 Ore., at 284, 851 P. 2d,
at 1096 (emphasis
14 In its 1949 decision in
Van Lom v.
Schneiderman, 187 Ore. 89, 210 P. 2d 461, the Supreme Court
of Oregon merely held that it lacked authority to order a new trial
even though an award of damages was excessive under
state
law. See
ante, at 435-436 (SCALIA, J., concurring). No
federallimit had yet been recognized, and the
Van Lom court
had no occasion to consider its obligation to check jury verdicts
deemed excessive under
federal law.
451
added); the verdict in this particular case, considered in light
of this Court's decisions in
Haslip and
TXO, hardly
appears "so 'grossly excessive' as to violate the substantive
component of the Due Process Clause,"
TXO, 509 U. S., at
458. Accordingly, the Court's procedural directive to the state
court is neither necessary nor proper. The Supreme Court of Oregon
has not refused to enforce federal law, and I would affirm its
judgment.
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