Punitive damages and valuing harm

Minnesota Law Review

Volumn 92, Issue 1, 2007, Pages 83-160

  Klass, Alexandra B ^a  

^a UNIVERSITY OF MINNESOTA LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 38149026348     PISSN: 00265535     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (443)

1. Jacque v. Steenberg Homes, Inc., 563 N.W.2d 154, 157 (Wis. 1997).
2. Id. ("Steenberg determined that the easiest route to deliver the mobile home was across the Jacques' land.").
3. Id.
4. Id.
5. Id.
6. Id. at 158.
7. No. CIV. A. CV 191-178, 1997 WL 423108, at *4 (S.D. Ga. June 9, 1997), vacated in part, 170 F.3d 1320 (11th Cir. 1999).
8. Id. at *2-3 (describing the "most egregious" conduct as the failure of Combustion Engineering to do more to prevent the acidic water problem).
9. Id. at *2-3; see also Johansen v. Combustion Eng'g, Inc., 170 F.3d 1320, 1336 (11th Cir. 1999).
10. Johansen, 170 F.3d at 1327.
11. Id. at 1339.
12. 563 N.W.2d 154, 156-58 (Wis. 1997).
13. See id. at 156.
14. Johansen, 1997 WL 423108, at *1.
15. See id.
16. See Johansen, 170 F.3d at 1340 (upholding a punitive damages award of $4.35 million).
17. Johansen, 1997 WL 423108, at *4.
18. 517 U.S. 559(1996).
19. Id. at 585.
20. Id. at 575.
21. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425 (2003).
22. Id.
23. Id. at 426.
24. See id. at 425 (noting that damages may comport with due process where an egregious act results in a small amount of economic damages or where noneconomic harm might be difficult to determine).
25. See infra Part III.A.
26. See infra Part III.A.
27. See infra Part III.A.
28. See M. STUART MADDEN & GERALD W. BOSTON, LAW OF ENVIRONMENTAL AND TOXIC TORTS 66-68 (3d ed. 2005) (citing RESTATEMENT (SECOND) OF TORTS § 821C (1979)) (stating that the law has been slow to recognize the right of private persons to bring actions for public nuisance to recover for environmental harm without a showing of "special injury" because, in part, the theory remains that only sovereigns should maintain actions for public harm);
29. ROBERT V. PERCIVAL ET AL., ENVIRONMENTAL REGULATION 74-75 (5th ed. 2006) (discussing the limitations of private nuisance claims brought to recover for environmental harms, noting that class actions have "not played a significant role in redressing environmental damage," and concluding that even when the aggregate damage is significant, the damage to individual victims "may be insufficient to make a lawsuit worthwhile"); see also infra Part III.C (exploring the standing and valuation difficulties in environmental harm cases).
30. The court in Johansen avoided this error and allowed a ratio of punitive damages to compensatory damages of 100-to-1. Johansen v. Combustion Eng'g, Inc., 170 F.3d 1320, 1337 (11th Cir. 1999); see infra Part III.B.1 (discussing cases that reduced punitive damages to a single-digit ratio).
31. RESTATEMENT (SECOND) OF TORTS § 908(1) (1979).
32. See Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 432 (2001); W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 2, at 9 (5th ed. 1984) (noting that the main purposes of punitive damages are to punish the defendant and deter both the defendant and others from acting in a similar manner);
33. LINDA L. SCHLUETER, 1 PUNITIVE DAMAGES § 1.4(B), at 16-17 (5th ed. 2005) (observing that the most widely accepted purposes of punitive damages have been punishment and deterrence);
34. Catherine M. Sharkey, Punitive Damages as Societal Damages, 113 YALE L.J. 347, 356-57 (2003) (stating that courts and academic commentators agree that punishment (or retribution) and deterrence are the two prevailing justifications for punitive damages).
35. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416 (2003).
36. Id. (citing Cooper Indus., 532 U.S. at 432;
37. RESTATEMENT (SECOND) OF TORTS § 903, at 453-54 (1979)).
38. Id. (citing Cooper Indus., 532 U.S. at 432; BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 568 (1996)).
39. Id.
40. SCHLUETER, supra note 31, § 4.2(A)(2), at 159-62 (discussing the pleading requirements and the basis for a claim in a punitive damages case).
41. 2A STUART M. SPEISER ET AL., THE AMERICAN LAW OF TORTS § 8:46, at 167 (2003).
42. KEETON ET AL., supra note 31, § 2, at 9 (noting that some decisions have mentioned "reimbursing the plaintiff for elements of damage which are not legally compensable, such as wounded feelings or the expenses of suit" as an additional purpose of punitive damages); SPEISER ET AL., supra note 37 (noting that punitive damages are intended, in part, to "reimburse for losses too remote to be considered elements of strict compensation" (citing Hofer v. Lavender, 679 S.W.2d 470, 474 (Tex. 1984))).
43. SPEISER ET AL., supra note 37, § 8.46, at 169-70 (citing Stockett v. Tolin, 791 F. Supp. 1536, 1560-61 (S.D. Fla. 1992); Blue Cross & Blue Shield of Miss., Inc. v. Maas, 516 So. 2d 495, 497 (Miss. 1990) (awarding punitive damages to plaintiffs acting as "private attorneys general" to reward the plaintiffs' public service and encourage litigation to address injustices)).
44. Id. at 170 (citing Tuttle v. Raymond, 494 A.2d 1353, 1358 (Me. 1985) (noting that the "potential for recovering an exemplary award" provides an incentive for "private civil enforcement of society's rules against serious misconduct")).
45. Id. (citing Tuttle, 494 A.2d at 1358).
46. Although the Supreme Court has warned that the wealth of a defendant cannot justify an otherwise unconstitutional award, it has recognized that it is not inappropriate for states to allow juries to account for the defendant's wealth when assessing punitive damages, as many states do. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 427-28 (2003) (citing BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 591 (1996) (Breyer, J., concurring)); Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 21-22 (1991) (finding that Alabama's standards for reviewing punitive damages awards, which allow a defendant's wealth to be one of many considerations, sufficiently constrain jury discretion); see 2 DAN B. DOBBS, THE LAW OF TORTS 1066-68 (2001) (listing a defendant's wealth as one of the factors courts and legislatures present as a basis for assessing the amount of punitive damages). The rationale for allowing juries to consider the defendant's wealth in assessing punitive damages, but not compensatory damages, is that it obviously takes more money to punish a wealthy defendant and deter future misconduct than it does a defendant of modest means. See id. at 1068; infra notes 335-39 and accompanying text.
47. 2 DOBBS, supra note 42, at 1066-67 (listing the "traditional" factors for assessing punitive damages); SCHLUETER, supra note 31, § 5.6(F)(4), at 338-40 (citing the provisions of a California model jury instruction); Rachel M. Janutis, Reforming Reprehensibility: The Continued Viability of Multiple Punitive Damages After State Farm v. Campbell, 41 SAN DIEGO L. REV. 1465, 1470-76 (2004) (setting forth jury instructions on punitive damages in numerous states).
48. See infra note 82 and accompanying text.
49. Anthony J. Sebok, Punitive Damages: From Myth to Theory, 92 IOWA L. REV. 957, 964-65 (2007) (summarizing numerous empirical studies of punitive damages since the 1980s);
50. see Theodore Eisenberg et al., The Relation Between Punitive and Compensatory Awards: Combining Extreme Data with the Mass of Awards, in CIVIL JURIES AND CIVIL JUSTICE: PSYCHOLOGICAL AND LEGAL PERSPECTIVES (Brian H. Bornstein et al. eds., forthcoming Nov. 2007) (manuscript at 5-21, available at http://ssrn.com/abstract=929565) (analyzing various data sets on punitive damages from 1985 through 2004).
51. W. Kip Viscusi, The Blockbuster Punitive Damages Awards, 53 EMORY L.J. 1405, 1405-08, 1428 tbl.1 (2004) (discussing the media attention given to punitive damages awards, the interest of tort reformers, and the rise of "blockbuster" awards, ranging from $100 million to over $1 billion); see Williams v. Philip Morris Inc., 127 P.3d 1165, 1167-68, 1171 (Or. 2006) (affirming a punitive damages award of $79.5 million against Philip Morris based on a plaintiff smoker's compensatory damages award of $521,485), vacated sub nom. Philip Morris USA v. Williams, 127 S. Ct. 1057 (2007); infra note 83 (discussing the activity of state legislatures and tort reformers).
52. See, e.g., Viscusi, supra note 46, at 1405 ("Punitive damages represent the most visible symptom of the ills of the U.S. tort system."); infra note 82 (citing debates over whether punitive damages really are a problem in today's tort system).
53. See Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 443 (2001) (holding that appellate courts should apply a de novo standard in reviewing the constitutionality of punitive damages awards).
54. BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 599-600 (1996) (Scalia, J., dissenting) (stating that the majority's decision represents the first instance of the Court's invalidation of a punitive damages award as unreasonably large); In re The Exxon Valdez, 472 F.3d 600, 603 (9th Cir. 2006) (per curiam) (noting that as of the time of the Exxon Valdez spill in 1989, the Supreme Court had never invalidated a punitive damages award on grounds that the size of the award violated due process), amended by 490 F.3d 1066 (9th Cir. 2007), cert. granted, 76 U.S.L.W. 3224 (U.S. Oct. 29, 2007) (No. 07-219), cert. denied, 76 U.S.L.W. 3222 (U.S. Oct. 29, 2007) (No. 07-276).
55. 492 U.S. 257 (1989).
56. Id. at 275-76.
57. Id. at 276. The Court did not reach the issue of due process limitations on punitive damages because it found that the petitioners had not properly preserved the issue for appeal. Id. at 276-77.
58. Id.; see TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443, 453-55 (1993) (stating that the respondents do not dispute that the Fourteenth Amendment imposes a substantive limit on the amount of a punitive damages award but that they contend the Court's scrutiny should be the same rational basis scrutiny appropriate for reviewing state economic legislation).
59. Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 7-8 (1991).
60. Id. at 15-18.
61. Id. at 18-19.
62. Id. at 23.
63. 509 U.S. 443 (1993).
64. Id. at 459.
65. Id. at 461-62.
66. Id. at 462 (quoting Haslip, 499 U.S. at 18).
67. BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996).
68. See id. at 585.
69. Id. at 563 & n.1.
70. Id. at 564-65. The state supreme court subsequently reduced the punitive damages award to $2 million. Id. at 567.
71. Id. at 575.
72. Id. at 575-76.
73. Id. at 580-81 & n.33.
74. Id.
75. Id. at 582.
76. Id.
77. Id. at 583-84.
78. 538 U.S. 408, 418 (2003).
79. Id. at 413-14.
80. Id. at 415. The trial court reduced the punitive damages award but the state supreme court reinstated it. Id.
81. Id. at 418.
82. Id. at 424.
83. Id. at 425.
84. Id. (reaffirming language in BMW that a larger ratio might be constitutional if an "egregious act" results in a small amount of economic harm, if the injury is hard to detect, or if the monetary value is difficult to determine).
85. Id.
86. Pecuniary damages compensate the plaintiff for the economic consequences of the injury such as medical expenses, lost earnings, and loss of custodial care. See McDougald v. Garber, 536 N.E.2d 372, 374-75 (N.Y. 1989). Nonpecuniary damages compensate the plaintiff for pain and suffering, loss of enjoyment of life, and other physical and emotional consequences of the injury. See id.
87. Howard A. Denemark, Seeking Greater Fairness When Awarding Multiple Plaintiffs Punitive Damages for a Single Act by a Defendant, 63 OHIO ST. L.J. 931, 939-40 (2002) (stating that both the public and the courts are being misled by "[p]opular press reports [that] erroneously claim that the United States is in the midst of an unprecedented explosion of litigation with the indiscriminate use of punitive damages forcing legitimate enterprises out of existence");
88. Steven B. Hantler et al., Is the "Crisis" in the Civil Justice System Real or Imagined?, 38 LOY. L.A. L. REV. 1121, 1129-32 (2005) (arguing that recovery for noneconomic damages, such as awards for pain and suffering, "are starting to supplement punitive damages awards as a source of 'jackpot justice' damages for plaintiffs"); Sharkey, supra note 31, at 349 ("Large punitive damages awards get attention."); Viscusi, supra note 46, at 1405 ("Punitive damages represent the most visible symptom of the ills of the U.S. tort system.");
89. Catherine M. Sharkey, Punitive Damages: Should Juries Decide?, 82 TEX. L. REV. 381, 381-82 (2003)
90. (reviewing CASS R. SUNSTEIN ET AL., PUNITIVE DAMAGES: HOW JURIES DECIDE (2002)) (describing the proliferation of recent academic work on the jury's role in determining punitive damages, and noting the Supreme Court and lower courts' reliance on this academic work);
91. Catherine M. Sharkey & Jonathan Klick, The Fungibility of Damage Awards: Punitive Damage Caps and Substitution 1 (Columbia Law Sch., Columbia Law and Econ. Working Paper No. 298; Fla. State Univ. Coll. of Law, Law and Econ. Paper No. 912,256, 2007), available at http://ssm.com/abstract=912256 (noting that blockbuster punitive awards tend to dominate the academic and popular debates and have fueled recent legislative efforts to cap or constrain such awards);
92. see also DAVID C. JOHNSON, THE ATTACK ON TRIAL LAWYERS AND TORT LAW 3-9 (2003), available at http://commonwealinstitute.org/reports/TortReport.pdf (describing the right-wing tort reform agenda that is focused on achieving judicial and legislative reforms in limiting punitive damages and noneconomic harm); Eisenberg et al., supra note 45 (manuscript at 3-4) (concluding that empirical data show that punitive damages have not increased over time, are rarely awarded, and are most frequently awarded where intentional misbehavior occurred); American Tort Reform Association, About ATRA, http://www.atra.org/ about/ (last visited Oct. 16, 2007) (stating that the ATRA supports an aggressive civil justice reform agenda that includes, among others, limits on punitive damages and limits on noneconomic damages).
93. JOHNSON, supra note 82, at 17 (citing the success of tort reform advocates in 2002 and 2003 to legislate state punitive damage caps in Alaska, Mississippi, and Texas, and noneconomic damage caps in Colorado, Idaho, Nevada, Ohio, Oklahoma, Texas, and West Virginia); Sharkey & Klick, supra note 82, app. A, at 31 (showing twenty-one states with punitive damages caps, with most enacted beginning in the mid-1980s and through the 1990s); id. app. B, at 33 (showing seven states with caps on noneconomic damages). In a few states, courts have invalidated noneconomic damage caps as unconstitutional. Id.
94. Browning-Ferris Indus., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 282 (1989) (O'Connor, J., concurring in part and dissenting in part).
95. Id.
96. Id. (citing Brief of the Pharm. Mfrs. Ass'n. & Am. Med. Ass'n as Amici Curiae in Support of Petitioners, Browning-Ferris Indus. Inc. v. Kelco Disposal, Inc., 492 U.S. 257 (1989) (No. 88-556), 1989 WL 1127717, at *5-23).
97. Id.
98. Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 42 (1991) (O'Connor, J., dissenting).
99. Id. at 43.
100. Id. at 62.
101. Id. at 62 (quoting Oki Am., Inc. v. Microtech Int'l, 872 F.2d 312, 315 (9th Cir. 1989) (Kozinski, J., concurring)).
102. Id. at 61.
103. See id. at 61 (citing KENNETH R. REDDEN, PUNITIVE DAMAGES § 2.3(A) (1980);
104. Note, Exemplary Damages in the Law of Torts, 70 HARV. L. REV. 517, 519-20 (1957)).
105. 532 U.S. 424 (2001).
106. Id. at 443.
107. Id. at 437 (quoting Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 459 (1996) (Scalia, J., dissenting)) (internal quotation marks omitted).
108. Id. at 437 n.11. According to other sources, courts have allowed recovery for pain and suffering associated with physical injuries since ancient times, but it was not until well into the twentieth century that courts routinely began allowing recovery for pure emotional distress and other nonpecuniary damages without physical impact. Nancy Levit, Ethereal Torts, 61 GEO. WASH. L. REV. 136, 141-46 (1992) (tracing the history of the judicial recognition of emotional distress claims);
109. Jeffrey C. Dobbins, Note, The Pain and Suffering of Environmental Loss: Using Contingent Valuation to Estimate Nonuse Damages, 43 DUKE L.J. 879, 888 (1994) (stating that claims for nonmarket losses are far greater today than they were under traditional common law and that claims for pure emotional distress were not regularly permitted until well into the 1900s).
110. Cooper Indus., 532 U.S. at 437 n.11.
111. Id.
112. Id. at 437-38. But see Anthony J. Sebok, What Did Punitive Damages Do? Why Misunderstanding the History of Punitive Damages Matters Today, 78 CHI.-KENT L. REV. 163, 164 (2003) (arguing that the Court made a historical error in Cooper Industries when it posited that punitive damages served primarily as a compensatory function in the early years of American tort law). Even if the Court was incorrect that the primary purpose of punitive damages in early tort law was to compensate for losses that were not previously recognized as a category of compensatory damages but now are, the fact remains that compensation was and can still be a component of punitive damages. See, e.g., Sharkey & Klick, supra note 82 (suggesting that punitive damages and noneconomic compensatory damages are more fungible than has been acknowledged); supra text accompanying notes 37-39 (discussing the historic purposes of punitive damages).
113. Cooper Indus., 532 U.S. at 446-47 (Ginsburg, J., dissenting).
114. Id.
115. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 426 (2003).
116. Id.
117. Id. (quoting RESTATEMENT (SECOND) OF TORTS § 908 cmt. c (1979)).
118. 127 S. Ct. 1057, 1057 (2007).
119. Id. at 1060-61.
120. Id.
121. Williams v. Philip Morris Inc., 127 P.3d 1165, 1171 (Or. 2006), vacated sub nom. Philip Morris USA v. Williams, 127 S. Ct. 1057 (2007). The Court's opinion appears to contain a mathematical error in adding economic and non-economic damages. The error has been corrected in the text of this Article.
122. Williams, 127 S. Ct. at 1061.
123. Id. at 1061-62.
124. Id. at 1062.
125. Id. at 1063.
126. Id. at 1063-64.
127. Id. at 1063.
128. Id.
129. Id. at 1063-65.
130. Id. at 1065.
131. Id.
132. Williams v. Philip Morris Inc., 127 P.3d 1165, 1171 (Or. 2006), vacated sub nom. Philip Morris USA v. Williams, 127 S. Ct. 1057 (2007).
133. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425 (2003); BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 582-83 (1996).
134. See State Farm, 538 U.S. at 425; BMW, 517 U.S. at 582 (allowing higher ratios when the conduct is egregious and the economic injury is small, hard to detect, or difficult to value).
135. Brantner Farms, Inc. v. Garner, No. C6-01-1572, 2002 WL 1163559, at *1 (Minn. Ct. App. June 4, 2002).
136. Id. at *6.
137. Id. at *1.
138. Id. at *6.
139. Id.
140. Id.
141. Roberie v. VonBokern, No. 2004-SC-00250-DG, 2006 WL 2454647, at *3 (Ky. Aug. 24, 2006).
142. Id. at *7 (citing BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 583 (1996)).
143. Id. at *8 (citing Williams v. Kaufman County, 352 F.3d 994, 1016 (5th Cir. 2003) (upholding a punitive damages award of $15,000 based on nominal damages of $100); Provost v. City of Newburgh, 262 F.3d 146, 164 (2d Cir. 2001) (upholding a $10,000 punitive damages award where there was no compensable injury and only nominal damages of $1)).
144. Jacque v. Steenberg Homes, Inc., 563 N.W.2d 154, 156 (Wis. 1997).
145. Id. at 159-60 (quoting Dolan v. City of Tigard, 512 U.S. 374, 384 (1994)).
146. Id. at 160-61.
147. Id. at 164-65; see Gianoli v. Pfleiderer, 563 N.W.2d 562, 570 (Wis. Ct. App. 1997) (upholding a punitive damages award of $200,000 based on a compensatory damages award of $12,000 in a land-based tort case on the grounds that conduct toward neighbors was outrageous and that the case was "not a situation in which a runaway jury awarded mind-boggling punitive damages that require a reining in by a judge").
148. See Mark Geistfeld, Constitutional Tort Reform, 38 LOY. L.A. L. REV. 1093, 1098 (2005) (stating that punitive damages can be justified as a "means of protecting the plaintiff's individual tort right from wrongful infringements by the defendant"); Sebok, supra note 45, at 1036 (advising that punitive damages "fit within a scheme of civil recourse and provide a unique form of redress where citizens have suffered the indignity of a willful violation of their private rights").
149. Defamation is a communication that tends "to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." RESTATEMENT (SECOND) OF TORTS § 559 (1977). Because of First Amendment concerns, plaintiffs who are public officials or public figures must establish that the defendant "published a knowing or reckless falsehood" to recover presumed or actual damages for defamation. 2 DOBBS, supra note 42, at 1121, 1192. Where the issue involves a matter of public concern, private-figure plaintiffs must establish negligence or some other fault plus actual damages and, if warranted, punitive damages. Id. Where the alleged defamation is of no public concern, private-figure plaintiffs can recover presumed damages and punitive damages, if appropriate. Id.
150. See Sherman v. Kasotakis, 314 F. Supp. 2d 843, 874-75 (N.D. Iowa 2004) ("[M]any civil rights violations will fall into this category of cases in which it is difficult to assess a monetary value to the harm suffered, thus resulting in only the imposition of nominal damages, but where punitive damages are warranted."); 2 DOBBS, supra note 42, at 1192.
151. See Sherman, 314 F. Supp. 2d at 874-75.
152. See supra text accompanying note 97 (discussing judicial recognition of pain and suffering damages).
153. But see infra notes 325-26 and accompanying text (discussing the lack of precision in jury instructions for awards of pain and suffering and other nonpecuniary damages).
154. See Sebok, supra note 45, at 1036 (proposing a theory of punitive damages that "provide [s] a unique form of redress where citizens have suffered the indignity of a willful violation of their private rights").
155. Romanski v. Detroit Entm't, L.L.C., 428 F.3d 629, 635, 649-50 (6th Cir. 2005) (upholding a punitive damages award but reducing it from $875,000).
156. Id. at 632-34.
157. Id. at 632.
158. Id. at 645.
159. Id. at 645-46 (quoting Argentine v. United Steel Workers of Am., AFL-CIO, 287 F.3d 476, 488 (6th Cir. 2002) (sustaining a 42.5-to-1 ratio and a $400,000 punitive damages award in a union retaliation case)).
160. Sunlight Saunas, Inc. v. Sundance Sauna, Inc., No. 04-2597-KHV, 2006 WL 3021109, at *5-7 (D. Kan. Oct. 23, 2006).
161. Id. at *6.
162. Id. at *6-7.
163. See Nemecek v. Santee, No. 05-0518, 2006 WL 334298, at *3 (Iowa Ct. App. Feb. 15, 2006) (stating that "harm" does not equate with "damages" and concluding that the harm "clearly exceeded the amount of compensatory damages awarded him"); Molenaar v. United Cattle Co., 553 N.W.2d 424, 429 (Minn. Ct. App. 1996) (focusing on punishment and deterrence but also discussing the need for punitive damages to ensure society's reinforcement of personal accountability); Jacque v. Steenberg Homes, Inc., 563 N.W.2d 154, 160 (Wis. 1997) (noting that the law infers some damage for direct entry on the land of another, whether or not compensatory damages are awarded, as nominal damages represent recognition that although "immeasurable in mere dollars, actual harm has occurred") (citing KEETON ET AL., supra note 31, § 13, at 67-84).
164. See Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 437-48, n.11 (2001) (noting that the types of compensatory damages available to plaintiffs, including pain and suffering, broadened in the twentieth century, rendering it unnecessary for punitive damages to contain a compensatory component to account for a plaintiff's inability to recover for those injuries).
165. Id.
166. See supra notes 123-50 and accompanying text.
167. Tyson Foods, Inc. v. Stevens, 783 So. 2d 804, 805-07 (Ala. 2000).
168. Id. at 806.
169. Id.
170. Id.
171. Id. at 808.
172. Id.
173. Id. at 807.
174. Id. at 809.
175. Id.
176. Id. at 810.
177. Id.
178. Id.
179. Id. at 810-11.
180. Id. (citing Green Oil Co. v. Hornsby, 539 So. 2d 218, 223 (Ala. 1989)). The court noted that other people living near the hog farm incurred "the same kind of injury the Stevenses suffered." Id.
181. Id. at 811-12 (Johnstone, J., concurring in part and dissenting in part).
182. Id. at 811 (Houston, J., concurring in part and dissenting in part).
183. See id. (citing Prudential Ballard Realty Co. v. Weatherly, 792 So. 2d 1045, 1052-54 (Ala. 2000) (Houston, J., concurring)).
184. Id. at 810-12.
185. Id. at 810-11.
186. See id. at 809-10.
187. Id. at 811-12 (Johnstone, J., concurring in part and dissenting in part). In Ballard Realty, Justice Houston established his formula of a $20,000 award or three times the compensatory damages award. Ballard Realty Co., 792 So. 2d at 1052 (Houston, J., concurring in part and dissenting in part). Justice Johnstone also concurred, stating that he agreed with Justice Houston's benchmark approach but that it may require reevaluation in "peculiar" cases. Id. at 1056 (Johnstone, J., concurring in part and dissenting in part). Apparently, Justice Johnstone found the facts surrounding the environmental pollution in the Tyson case sufficiently "peculiar" to warrant departing significantly from Justice Houston's benchmark approach. Id.
188. See Tyson Foods, 783 So. 2d at 811.
189. Id.
190. BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 582 (1996).
191. E.T. Holdings, Inc. v. Amoco Oil Co., No. C95-1034 MJM, 1998 WL 34113907, at *14-16 (N.D. Iowa Dec. 27, 1998).
192. Id. at *1.
193. Id. at *3-9.
194. Id.
195. Id. at *12, *15.
196. Id. at *9.
197. Id. at *10, *16.
198. Id. at *14.
199. Id. at *14-16.
200. See id. at *16 ("[T]he Court finds that the punitive damages verdict was not the product of passion or prejudice.").
201. Id.
202. Id. at *15.
203. Id.
204. See id.
205. City of Modesto Redev. Agency v. Dow Chem. Co., Nos. 999345, 999643, 2006 WL 2346275, at *1 (Cal. Super. Ct. Aug. 1, 2006).
206. Id. at *7.
207. Id. at *1. The jury also awarded punitive damages of $75,000 against a third defendant, R.R. Street & Co. Id.
208. Id. at *1, *8.
209. Under California law, the court reviewed: "(1) the reprehensibility of defendant's conduct, (2) the requirement of a reasonable relationship between the amount of punitive damages and the harm to the plaintiff, . . . (3) in view of the defendant's financial condition, the amount that is necessary to punish the defendant and discourage future wrongful conduct," and (4) "the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases." Id. at *6 (citing Simon v. San Paolo U.S. Holding Co., 113 P.3d 63, 70 (Cal. 2005)).
210. Id. at *5 (citing BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996)).
211. Id.
212. Id. at *7 (listing instructions given to the jury).
213. Id. at *10-13, *16-17.
214. Id. at *10-11.
215. Id. at *11.
216. Id.
217. Id.
218. Id. at *14-15.
219. Id. at *15.
220. See SCHLUETER, supra note 31, § 6.4(B), at 379-83 (discussing judicial review of the adequacy and excessiveness of punitive damages awards).
221. Johansen v. Combustion Eng'g, Inc., 170 F.3d 1320 (11th Cir. 1999).
222. Id. at 1339.
223. Id. at 1326.
224. Id. at 1326-27. The jury originally awarded $45 million in punitive damages which the lower court reduced first to $15 million based on state law, and later to $4.35 million based on the BMW guideposts. See id.
225. Id. at 1336.
226. Id. at 1338 (quoting BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 582 (1996)).
227. Id.
228. Id.
229. Id.
230. Id. (citing TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443, 462 n.28 (1993)).
231. Id. at 1338-39.
232. Id. at 1338 (quoting BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 576 (1996)) (internal quotation marks omitted).
233. Id. (quoting BMW, 517 U.S. at 576) (internal quotation marks omitted).
234. Id.; see Action Marine, Inc. v. Cont'l. Carbon, Inc., No. 3:01-CV-994-MEF, 2006 WL 173653, at *7-8 (M.D. Ala. Jan. 23, 2006) (affirming a punitive damages award nearly ten times that of the compensatory damages award for wrongful emissions of carbon black onto plaintiffs' properties and stating that the case would have supported a much larger punitive damages award because of the reprehensibility of the conduct, injury to the environment, and need to deter the defendant and others from a "pollute and pay" environmental policy) (citing Johansen v. Combustion Eng'g, Inc., 170 F.3d 1320, 1339 (11th Cir. 1999)), aff'd, 481 F.3d 1302 (11th Cir. 2007), petition for cert. filed, 76 USLW 3082 (U.S. Aug 24, 2007) (No. 07-257).
235. 901 So. 2d 1117 (La. Ct. App. 2005), vacated sub nom. Exxon Mobil Corp. v. Grefer, 127 S. Ct. 1371 (2007).
236. Grefer, 127 S. Ct. at 1371.
237. Grefer, 901 So. 2d at 1124-28.
238. Id. at 1127.
239. Id. at 1127-28. The plaintiffs' claims were for negligence, strict liability, nuisance, and fraud. Id.
240. Id. at 1128.
241. Id.
242. Id. at 1136.
243. Id. at 1137-38.
244. Id. at 1141-42.
245. Id. at 1150.
246. Id. at 1151.
247. Id. at 1152.
248. The court allowed the defendant's wealth to be a consideration but not the basis for affirming the $1 billion punitive damages award. See id. at 1151. The evidence at trial included the fact that Exxon was the largest corporation in the world with assets of $251 billion, year 2000 revenues of $228,439 billion, and a year 2000 total net worth of $174 billion. Id. at 1150-51.
249. In re The Exxon Valdez, 296 F. Supp. 2d 1071 (D. Alaska 2004), vacated per curiam, 472 F.3d 600 (9th Cir. 2006), amended by 490 F.3d 1066 (9th Cir. 2007), cert. granted, 76 U.S.L.W. 3224 (U.S. Oct. 29, 2007) (No. 07-219), cert. denied, 76 U.S.L.W. 3222 (U.S. Oct. 29, 2007) (No. 07-276).
250. Id. at 1076.
251. Id.
252. Id. at 1076-77.
253. Id. at 1077.
254. Id. at 1078.
255. Id. at 1078-80.
256. Id. at 1082.
257. In re The Exxon Valdez, 472 F.3d 600, 601 (9th Cir. 2006) (per curiam) ("The resolution of punitive damages has been delayed because the course of this litigation has paralleled the course followed by the Supreme Court when, in 1991, it embarked on a series of decisions outlining the relationship of punitive damages to the principles of due process embodied in our Constitution."), amended by 490 F.3d 1066 (9th Cir. 2007), cert. granted, 76 U.S.L.W. 3224 (U.S. Oct. 29, 2007) (No. 07-219), cert. denied, 76 U.S.L.W. 3222 (U.S. Oct. 29, 2007) (No. 07-276).
258. In re The Exxon Valdez, 296 F. Supp. 2d at 1084. Even though it reduced the award, it did so only upon the express direction of the Court of Appeals for the Ninth Circuit and stated that it still believed the original $5 billion punitive damages award was appropriate and constitutional. Id.
259. Id. at 1110.
260. Id. at 1098.
261. Id. (citing TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443, 460 (1993)).
262. Id. at 1099-1103.
263. Id. at 1101.
264. Id. at 1103.
265. Id.
266. Id. at 1104 (citing BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 582 (1996)).
267. See id.
268. Id. at 1105.
269. Id. at 1105-06.
270. Id. at 1110.
271. Id. at 1106, 1110.
272. In re The Exxon Valdez, 472 F.3d 600, 602, 625 (9th Cir. 2006) (per curiam), amended by 490 F.3d 1066 (9th Cir. 2007), cert. granted, 76 U.S.L.W. 3224 (U.S. Oct. 29, 2007) (No. 07-219), cert. denied, 76 U.S.L.W. 3222 (U.S. Oct. 29, 2007) (No. 07-276).
273. Id. at 601.
274. Id.
275. Id. at 618-19.
276. Id. at 619-23. Exxon argued that the measure of harm was only $20.3 million because the court should subtract $493 million representing amounts paid to plaintiffs through Exxon's voluntary claims program and other settlements. Id. at 619. The only difference between the district court's harm value and the court of appeals' harm value was a $9 million overpayment that the court of appeals found the district court had overlooked and should not have been included in the final number. See id. at 623.
277. Id. at 618, 624.
278. See In re The Exxon Valdez, 296 F. Supp. 2d 1071, 1103 (D. Alaska 2004), vacated per curiam, 472 F.3d 600 (9th Cir. 2006), amended by 490 F.3d 1066 (9th Cir. 2007), cert. granted, 76 U.S.L.W. 3224
279. See Grefer v. Alpha Technical, 901 So. 2d 1117, 1138-39 (La. Ct. App. 1995), vacated sub nom. Exxon Mobil Corp. v. Grefer, 127 S. Ct. 1371 (2007); Johansen v. Combustion Eng'g, Inc., No. CIV. A. CV 191-178, 1997 WL 423108, at *1 (S.D. Ga. June 9, 1997), vacated in part, 170 F.3d 1320 (11th Cir. 1999).
280. See PERCIVAL ET AL., supra note 28, at 948-49 (discussing the range of civil and criminal penalties for violating federal environmental standards, including fines of up to $50,000 and three years in prison for knowing violations, and fines of up to $250,000 and fifteen years in prison for violations that knowingly endanger another).
281. See TONY DUTZIK, COPIRG FOUND., THE STATE OF ENVIRONMENTAL ENFORCEMENT 22-26 (2002) (on file with author) (citing the lack of budget, staff, effective enforcement policies, political will, and accountability as reasons why state governments have failed to effectively enforce environmental protection laws);
282. Barry Breen, Citizen Suits for Natural Resources Damages: Closing a Gap in Federal Environmental Law, 24 WAKE FOREST L. REV. 851, 873-76 (1989) (discussing enforcement problems as the result of limited funding and "institutional forces endemic to the way any large organization makes decisions");
283. William W. Buzbee, Contextual Environmental Federalism, 14 N.Y.U. ENVTL. L.J. 108, 115 (2005) ("It is a common view that during the past five years the environmental zeal of the federal executive branch has waned, resulting in fewer new or strengthened laws, fewer strengthened regulations, and less federal enforcement than one would have expected in a more proenvironment administration.").
284. See DUTZIK, supra note 269, at 22-26; PLATER ET AL., ENVIRONMENTAL LAW AND POLICY 1027-28 (3d ed. 2004) (discussing Congress's use of citizen-suit provisions to address breakdowns in federal enforcement of environmental laws because of a lack of resources and political pressure from the executive branch); Buzbee, supra note 269, at 121 (stating that growth-oriented tax and labor policies, along with the impact of interest group pressures, often lead state and local governments to underenforce existing laws and regulations).
285. Compare DUTZIK, supra note 269, at 22-26 (asserting that state enforcement of environmental laws fails because of a lack of budget, staff, effective enforcement policies, political will, and accountability), and Buzbee, supra note 269, at 121 (arguing that underenforcement of environmental statutes and regulations arises, in part, from inherent inertial forces and interest group pressures), with Richard L. Revesz, Federalism and Environmental Regulation: A Public Choice Analysis, 115 HARV. L. REV. 553, 571-78 (2001) (rejecting the claim that federal environmental regulations arise out of the clash between environmental and business interests, and listing several alternative public choice accounts of environmental regulation).
286. Revesz, supra note 271, at 559 (addressing the causes of "underregulation" of state environmental statutes); see Buzbee, supra note 269, at 121 (noting the "temptation to fail to implement and enforce laws and regulations").
287. See Baughman v. Bradford Coal Co., 592 F.2d 215, 218 (3d Cir. 1979) ("Congress intended citizen suits to both goad the responsible agencies to more vigorous enforcement of the anti-pollution standards and, if the agencies remained inert, to provide an alternate enforcement mechanism."); Gardeski v. Colonial Sand & Stone Co., 501 F. Supp. 1159, 1168 (S.D.N.Y. 1980) (stating that the legislative history of the Clean Air Act suggests a "sensitive handling of citizen suits, that reflects Congress's conviction that such suits can perform an indispensable function").
288. Conservation Law Found, v. Browner, 840 F. Supp. 171, 174-76 (D. Mass. 1993) (stating that the congressional purpose of the Clean Air Act's citizen-suit provision was to authorize citizens to act as private attorneys general because the Act's sponsors were wary of federal environmental agencies' lack of will and resources); PLATER ET AL., supra note 270, at 1027-28, 1033 (stating that, beginning in 1970, Congress included citizen-suit provisions in virtually all the major environmental laws because it viewed such suits as an "efficient policy instrument" and a "participatory mechanism" at a time when limited resources or lack of political will made enforcement of environmental regulations difficult).
289. See infra notes 292-301 and accompanying text.
290. See infra notes 279-88 and accompanying text.
291. RESTATEMENT (SECOND) OF TORTS § 821B (1979); id. § 821B(2) (listing the criteria for deciding if an interference is unreasonable).
292. See id. § 821C(2)(b) (stating that a public official or agency may represent the state or political subdivision in public nuisance actions).
293. See. e.g., Denise E. Antolini, Modernizing Public Nuisance: Solving the Paradox of the Special Injury Rule, 28 ECOLOGY L.Q. 755, 757-60 (2001) (explaining problems with the public nuisance doctrine that presently limit plaintiff standing to seek recovery for community-based social and environmental problems).
294. RESTATEMENT (SECOND) OF TORTS § 821C(1) (1979).
295. See MADDEN & BOSTON, supra note 28, at 66-78 (listing cases in which plaintiffs who suffered personal injury, or whose privately-owned land or chattels were harmed, met the special injury requirement).
296. In re The Exxon Valdez, 104 F.3d 1196, 1197-98 (9th Cir. 1997).
297. Id. at 1197.
298. Id. at 1198.
299. Id. at 1197-98; see In re The Exxon Valdez, No. A89-0095-CV, 1994 WL 182856, at *3 (D. Alaska Mar. 23, 1994) (dismissing plaintiffs' claims because they sought a recovery of nonmarket claims of cultural damage which was "not founded" on any legal theory recognized by maritime law), aff'd, 104 F. 3d 1196 (9th Cir. 1997).
300. In re The Exxon Valdez, 104 F.3d at 1198 (noting that any claims arising out of damage to the Natives' subsistence way of life "miss the mark" because the right to a subsistence way of life is "shared by all Alaskans").
301. See supra notes 268-74 and accompanying text (discussing the role private lawsuits play in filling federal and state enforcement gaps).
302. See Kirstin H. Engel, Harnessing the Benefits of Dynamic Federalism in Environmental Law, 56 EMORY L.J. 159, 167, 180-81 (2006) (discussing the federal government's failure to address "environmental issues posing interstate externalities" and its current "deregulatory and passive approach toward environmental regulation");
303. Alexandra B. Klass, Modern Public Trust Principles: Recognizing Rights and Integrating Standards, 82 NOTRE DAME L. REV. 699, 749 n.280 (2006) (citing authorities that discuss the failure of the federal government to enforce existing environmental regulations and its decision not to enact new regulations to address growing environmental problems). For an analysis of the problem of underenforcement of federal and state environmental statutes, see supra notes 268-72 and accompanying text. For a discussion of the difficulties states have in valuing damages to natural resources, see infra Part III.C.2.
304. RESTATEMENT (SECOND) OF TORTS § 821D (1979).
305. Id. § 822.
306. See id. § 929(1)(a); see also Grefer v. Alpha Technical, 901 So. 2d 1117, 1139-42 (La. Ct. App. 1995), vacated sub nom. Exxon Mobil Corp. v. Grefer, 127 S. Ct. 1371 (2007). The Grefer decision discussed earlier remains unusual, however, in that the plaintiff recovered restoration costs without first incurring those costs or obtaining government approval for a remediation plan, and because the restoration costs significantly exceeded the value of the property. See id. at 1141 (allowing recovery of $56 million in restoration costs even though market value of the property was $1.5 million and the court could not force the plaintiff to use the money for a cleanup). For a discussion of cases that measure harm to land from past invasions, see MADDEN & BOSTON, supra note 28, at 255-70.
307. 33 U.S.C. § 1321(f)(4) (2000) (listing a provision of the Clean Water Act allowing for the recovery of costs of removal for oil or hazardous substance from navigable waters and other related areas, including any costs or expenses incurred "in the restoration or replacement of natural resources damaged or destroyed"); 33 U.S.C. § 2706(d) (2000); 42 U.S.C. §§ 9607(a)(4)(C), 9607(f) (2000) (containing CERCLA provisions allowing recovery for natural resource damages caused by the release of a hazardous substance).
308. 42 U.S.C. § 9607(a)(4)(C) (2000). CERCLA defines "natural resources" as "land, fish, wildlife, biota, air, water, ground water, drinking water supplies, and other such resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by the United States [,] . . . any State or local government, any foreign government, any Indian tribe, or, if such resources are subject to a trust restriction on alienation, any member of an Indian tribe." 42 U.S.C. § 9601(16).
309. See 42 U.S.C. § 9607(a)(4)(C).
310. See 33 U.S.C § 2706(d).
311. See 42 U.S.C. § 9607(a)(4).
312. In re The Exxon Valdez, 296 F. Supp. 2d 1071, 1078-79 (D. Alaska 2004) (discussing the settlement between Exxon, the United States, and the State of Alaska for damages to natural resources), vacated per curiam, 472 F.3d 600 (9th Cir. 2006), amended by 490 F.3d 1066 (9th Cir. 2007), cert. granted, 76 U.S.L.W. 3224 (U.S. Oct. 29, 2007) (No. 07-219), cert. denied, 76 U.S.L.W. 3222 (U.S. Oct. 29, 2007) (No. 07-276).
313. James P. Power, Reinvigorating Natural Resource Damage Actions Through the Public Trust Doctrine, 4 N.Y.U. ENVTL. L.J. 418, 448 (1995) (concluding that the CERCLA natural resource damage provision has "enormous potential" for recovery of damages, but that the actual experience has been disappointing with only fifty suits brought since 1980 and only two suits that have gone to trial);
314. see AMY W. ANDO ET AL., ILL. WASTE MGMT. & RESEARCH CTR., NATURAL RESOURCE DAMAGE ASSESSMENT: METHODS AND CASES 2 (2004), available at http://www.wmrc.uiuc.edu/main_sections/info_services/library_docs/RR/RR108.pdf (discussing the various statutes that allow recovery of natural resource damage, but detailing the difficulty states face in bringing actions upon such statutes and developing valuation techniques to conduct damage assessments). But see N.J. Dep't of Envtl. Prot. v. Exxon Mobil Corp., 923 A.2d 345, 354 (N.J. Super. Ct. App. Div. 2007) (holding as a matter of first impression that the New Jersey Spill Compensation and Control Act's definition of "cleanup and removal costs" gives the state the right to recover for the "loss of use" of natural resources injured or destroyed by an illegal discharge, in addition to the costs of physical restoration).
315. Breen, supra note 269, at 867-68 (stating that the experience with natural resource damage claims as of 1989 "is largely one of missed opportunities" with relatively few federal or state claims filed); Gordon Johnson, Deputy Bureau Chief, Envtl. Prot. Bureau, Office of N.Y. Attorney Gen., Address at the Columbia Law School Symposium: The Role of State Attorneys General in National Environmental Policy (Sept. 20, 2004), in 30 COLUM. J. ENVTL. L. 461, 462-63 (2003) (expressing concern that damages associated with smaller spills, while frequent, often are not pursued by states because of the time and money required to bring such lawsuits).
316. But see Gerald F. George, Litigation of Claims for Natural Resource Damages, SE98 ALI-ABA 397, 399 & n.2 (2000) (Westlaw) (stating that claims for natural resource damage under CERCLA have become "commonplace" with sixty-seven claims resolved by the federal government as of 1996 for payments totaling over $135 million, but noting that few claims have gone to trial, resulting in little case law).
317. See ANDO ET AL., supra note 298, at 2; PLATER ET AL., supra note 270, at 942-44 (discussing disagreements between government agencies and stakeholders on how to value natural resource damages and the general uncertainty in this area of the law); Dale Thompson, Valuing the Environment: Courts' Struggles with Natural Resource Damages, 32 ENVTL. L. 57, 58-61 (2002) (detailing difficulties in valuing natural resource damages).
318. See Michael J. Wittke, Comment, Municipal Recovery of Natural Resource Damages Under CERCLA, 23 B.C. ENVTL. AFF. L. REV. 921, 941-43 (1996) (arguing that local governments should be given standing to sue for natural resource damages under CERCLA and that "[i]t is the extraordinary case, such as the Exxon Valdez disaster, that warrants widespread notice and action" leading to federal and state government involvement).
319. See Antolini, supra note 279, at 757-60 (discussing the interest of scholars and practitioners in reinvigorating private party actions and common law remedies to address the lack of federal enforcement of environmental laws); Breen, supra note 269, at 874-76 (stating that the government apparatus for bringing enforcement actions is cumbersome and subject to significant budget restrictions and arguing that citizen suits for natural resource damages would result in substantial gains in both environmental compliance and recovery of natural resource damages); Alexandra B. Klass, Common Law and Federalism in the Age of the Regulatory State, 92 IOWA L. REV. 545, 579-80 (2007) (discussing the lack of federal enforcement of environmental law and the need for an increased role by state governments, local governments, and private parties in environmental protection efforts).
320. See Klass, supra note 302, at 570 & n.143 (citing savings clauses in federal environmental statutes and numerous cases interpreting savings clauses to allow for common law claims to enjoin environmental harm and obtain damages for such harm).
321. Ohio v. U.S. Dep't of the Interior, 880 F.2d 432, 462-64 (D.C. Cir. 1989) ("From the bald eagle to the blue whale and snail darter, natural resources have values that are not fully captured by the market system. . . . Option and existence values may represent 'passive' use, but they nonetheless reflect utility derived by humans from a resource, and thus, prima facie, ought to be included in a damage assessment.") (citations omitted); PLATER ET AL., supra note 270, at 183-94 (discussing the difficulty of valuing natural resources).
322. See Lisa Heinzerling, Professor of Law, Georgetown Univ. Law Ctr., Address at the Columbia Law School Symposium: The Role of State Attorneys General in National Environmental Policy (Sept. 20, 2004), in 30 COLUM. J. ENVTL. L. 449, 454-56 (2005) (discussing efforts to value the loss of natural resources, including the use of contingent valuation surveys); Thompson, supra note 300, at 58-61 (discussing the difficulties of valuing nonmarket commodities such as natural resources and problems with the Contingent Valuation Method (CVM) of calculating "nonuse values" in natural resource damages cases).
323. PLATER ET AL., supra note 270, at 188.
324. Id.
325. Id.
326. See Ohio, 880 F.2d at 476 n.73 (explaining existence value); James Peck, Measuring Justice for Nature: Issues in Evaluating and Litigating Natural Resources Damages, 14 J. LAND USE & ENVTL. L. 275, 279-81 (1999) (discussing methods of valuation, including a biocentric approach (as opposed to an anthropocentric approach) which recognizes the intrinsic value of natural resources independent of human satisfactions).
327. Ohio, 880 F.2d at 475 n.72.
328. PLATER ET AL., supra note 270, at 188.
329. Ohio, 880 F.2d at 475 (quoting 43 C.F.R. § 11.83(d)(5)(i) (1988)) (internal quotation marks omitted).
330. Id.
331. See id. at 476-79 (sustaining Department of the Interior regulations relying on CVM for calculating option and use values).
332. Gretchen C. Daily, Introduction: What Are Ecosystem Services?, in NATURE'S SERVICES: SOCIETAL DEPENDENCE ON NATURAL ECOSYSTEMS 1, 3 (Gretchen C. Daily ed., 1997) (defining ecosystem services as "the conditions and processes through which natural ecosystems, and the species that make them up, sustain and fulfill human life"). Ecosystem services support "ecosystem goods" such a seafood, forage, timber, biomass fuels, natural fiber, and pharmaceutical and industrial products. Id.
333. See Geoffrey Heal et al., Protecting Natural Capital Through Ecosystem Service Districts, 20 STAN. ENVTL. L.J. 333, 341 (2001).
334. See James Salzman, Creating Markets for Ecosystem Services: Notes from the Field, 80 N.Y.U. L. REV. 870, 871-77 (2005) (discussing developments in research on ecosystem services and reviewing initiatives around the world which have sought to create markets for natural capital);
335. James Salzman & J.B. Ruhl, Currencies and the Commodification of Environmental Law, 53 STAN. L. REV. 607, 609-16 (2000) (analyzing environmental trading markets (ETMs) such as wetland banking programs, air pollution trading programs, and species habitat programs, and suggesting that modifications to such programs would better capture the value of nonfungible resources).
336. See generally NATURE'S SERVICES: SOCIETAL DEPENDENCE ON NATURAL ECOSYSTEMS, supra note 315 (containing a collection of articles on economic and ecological issues surrounding ecosystem services).
337. See Lawrence H. Goulder & Donald Kennedy. Valuing Ecosystem Services: Philosophical Bases and Empirical Methods, in NATURE'S SERVICES: SOCIETAL DEPENDENCE ON NATURAL ECOSYSTEMS, supra note 315, at 23, 33-35 (discussing methods for valuing nonuse and nonconsumptive values from ecosystems).
338. See supra Part III.B.1.
339. PLATER ET AL., supra note 270, at 942.
340. See id. at 942-45 (discussing CERCLA remedies).
341. See In re The Exxon Valdez, 296 F. Supp. 2d 1071, 1078-79 (D. Alaska 2004), vacated per curiam, 472 F.3d 600 (9th Cir. 2006), amended by 490 F.3d 1066 (9th Cir. 2007), cert. granted, 76 U.S.L.W. 3224 (U.S. Oct. 29, 2007) (No. 07-219), cert. denied, 76 U.S.L.W. 3222 (U.S. Oct. 29, 2007) (No. 07-276).
342. Brian R. Binger et al., The Use of Contingent Valuation Methodology in Natural Resource Damage Assessments: Legal Fact and Economic Fiction, 89 NW. U. L. REV. 1029, 1030 (1995).
343. Compare id. at 1030-31 & n.8, 1032-34 (criticizing the use of CVM in natural resource damage assessments and citing to recent economic literature), with Frank B. Cross, Natural Resource Damage Valuation, 42 VAND. L. REV. 269, 285-92 (1989) (discussing the nonuse values of natural resources), Dobbins, supra note 97, at 944-46 (arguing that CVM should be utilized to quantify natural resource nonuse values and comparing the valuation process to that for nonpecuniary losses such as pain and suffering), and Judith Robinson,
344. Note, The Role of Nonuse Values in Natural Resource Damages: Past, Present, and Future, 75 TEX. L. REV. 189, 213 (1996) (concluding that CVM "provides the best available method for quantifying nonuse values; despite the intangible nature of the injuries").
345. McDougald v. Garber, 536 N.E.2d 372, 375 (N.Y. 1989).
346. See Geistfeld, supra note 136, at 1106 ("The absence of well-defined standards for determining pain and suffering damages is well known."); see also Jennifer H. Arlen, Note, An Economic Analysis of Tort Damages for Wrongful Death, 60 N.Y.U. L. REV. 1113, 1114 (1985) ("[C]urrent wrongful death damage rules, which base recovery . . . on the future income of the victim, are not efficient[, but] it is not possible to design efficient damages rules to govern recovery for loss of life."); supra note 97 and accompanying text.
347. See, e.g., J.B. RUHL ET AL., THE LAW AND POLICY OF ECOSYSTEM SERVICES 266-71 (2007).
348. See supra Part III.A.
349. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425 (2003); BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 582 (1996).
350. See supra Part III.A.
351. See supra Part III.A.
352. See supra Part III.A.
353. See supra Part III.A.
354. See infra notes 385-86 and accompanying text (discussing some scholars' use of the term "environmental torts" to refer to toxic tort cases with significant nonpecuniary damages and their arguments that such cases are in particular need of punitive damage reform); see also supra Part II.B (discussing the types of cases driving the Supreme Court's constitutional restrictions on punitive damages).
355. In re The Exxon Valdez, 236 F. Supp. 2d 1043, 1065 (D. Alaska. 2002), amended by 296 F.Supp.2d 1071 (D. Alaska 2004), vacated per curiam, 472 F.3d 600 (9th Cir. 2006), amended by 490 F.3d 1066 (9th Cir. 2007), cert. granted, 76 U.S.L.W. 3224 (U.S. Oct. 29, 2007) (No. 07-219), cert. denied, 76 U.S.L.W. 3222 (U.S. Oct. 29, 2007) (No. 07-276).
356. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 427 (2003).
357. See, e.g., TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443, 462 n.28 (1993) (stating that it is "well-settled law" that the net worth of the defendant can be considered in setting punitive damages); see also supra note 42 (discussing the validity of using the defendant's wealth in assessing punitive damages).
358. See supra notes 42-43 and accompanying text (discussing factors state courts direct juries to use when setting punitive damages).
359. RESTATEMENT (SECOND) OF TORTS § 908 (1979) (stating that the trier of fact may consider the means of the defendant).
360. The Exxon Valdez was carrying 53 million gallons of oil when it ran aground on Bligh Reef. In re The Exxon Valdez, 296 F. Supp. 2d 1071, 1077-78 (D. Alaska 2004), vacated per curiam, 472 F.3d 600 (9th Cir. 2006), amended by 490 F.3d 1066 (9th Cir. 2007), petition for cert. filed, 76 U.S.L.W. 3073 (U.S. Aug. 20, 2007) (No. 07-219), petition for cert. filed, 76 U.S.L.W. 3082 (U.S. Aug. 28, 2007) (No. 07-276). Experts estimated that 11 million gallons were discharged in the grounding of the ship, but had Captain Hazelwood succeeded in his efforts to back the ship off Bligh Reef, significantly more oil - perhaps the entire cargo - would have spilled. Id.
361. Grefer v. Alpha Technical, 901 So. 2d 1117, 1123-26 (La. Ct. App. 2005), vacated sub nom. Exxon Mobil Corp. v. Grefer, 127 S. Ct. 1371 (2007); see supra note 225 and accompanying text.
362. City of Modesto Redev. Agency v. Dow Chem. Co., Nos. 999345, 999643, 2006 WL 2346275, at *1 (Cal. Super. Ct. Aug. 1, 2006); supra notes 193-94 and accompanying text.
363. In re The Exxon Valdez, 490 F.3d 1066, 1086 (9th Cir. 2007), cert. granted, 76 U.S.L.W. 3224 (U.S. Oct. 29, 2007) (No. 07-219), cert. denied, 76 U.S.L.W. 3222 (U.S. Oct. 29, 2007) (No. 07-276).
364. See RESTATEMENT (SECOND) OF TORTS § 306 (1965) (requiring a plaintiff to suffer illness or other "bodily harm" to recover for negligent infliction of emotional distress); id. § 46 (requiring a plaintiff to suffer "bodily harm" in connection with emotional distress to recover for intentional infliction of emotional distress against a defendant);
365. JAMES A. HENDERSON ET AL., THE TORTS PROCESS 667-76 (6th ed. 2003) (discussing the development of the tort of intentional infliction of emotional distress); see also supra notes 139-54 (discussing courts' use of punitive damages as a substitute for the inability to compensate for invasions of person or property).
366. See, e.g., Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 437 n.11 (2001).
367. See, e.g., Geistfeld, supra note 136, at 1097-98 (2005) (stating that the punitive damages in cases involving the violation of a plaintiff's individual rights punish the wrong to the plaintiff rather than to society, resulting in no overlap with any related criminal penalties and thus not raising an issue of "double punishment").
368. See supra note 43 and accompanying text (discussing factors for punitive damages).
369. See supra notes 97-99 and accompanying text (discussing and critiquing existing and historical standards for recovery of damages).
370. See supra notes 306-14 and accompanying text.
371. See supra note 79 and accompanying text.
372. See 127 S. Ct. 1057, 1063-64 (2007).
373. See supra Part III.C.2.
374. See supra notes 311-14 (discussing CVM for assessing nonuse values).
375. See, e.g., N.J. Dep't of Envtl. Prot. v. Exxon Mobil Corp., 923 A.2d 345, 401, 409-10 (N.J. Super. Ct. App. Div. 2007) (holding as a matter of first impression that the New Jersey Spill Compensation and Control Act's definition of "cleanup and removal costs" gives the state the right to recover for "loss of use" of natural resources injured or destroyed by a discharge in addition to the costs of physical restoration).
376. Aaron R. Petty, Note, How Qui Tam Actions Could Fight Public Corruption, 39 U. MICH. J.L. REFORM 851, 863-70 (2006) (discussing history and current trends in qui tam actions).
377. 31 U.S.C. § 3730(d) (2000) (providing that private parties can obtain between fifteen and twenty-five percent of the recovery or settlement if the government decides to proceed with the suit after notice, and between twenty-five and thirty percent of the recovery or settlement if the government decides not to proceed with the suit); see The False Claims Act Legal Center, State False Claims Acts, http://www.taf.org/statefca.htm (last visited Oct. 16, 2007) (showing states with false claims acts and providing links to the text of such laws); see also Petty, supra note 355, at 865-70 (discussing the recovery provisions of state and federal qui tam laws).
378. United States v. Northrop Corp., 59 F.3d 953, 967-68 (9th Cir. 1995) (stating the qui tam provisions of the False Claims Act exist to deter fraud, return funds to the federal treasury, and vindicate the public interest); S. REP. NO. 99-345, at 2 (1986), as reprinted in 1986 U.S.C.C.A.N. 5266, 5267 ("In the face of sophisticated and widespread fraud, the Committee believes only a coordinated effort of both the Government and the citizenry will decrease this wave of defrauding public funds.").
379. See infra notes 403-08 and accompanying text.
380. See supra Part III.A.1.
381. See supra notes 325-26 and accompanying text.
382. See supra notes 325-26 and accompanying text; see also Levit, supra note 97, at 179-80 (arguing that allowing recovery for nonpecuniary harm requires courts to be sensitive to the "real nature" of injuries and prevents a "hopelessly inauthentic account of humanity" that would endure under a fiction where only physical injuries "actually hurt"); Margaret Jane Radin, Essay, Compensation and Commensurability, 43 DUKE L.J. 56, 74 (1993) (awarding compensation for pain and suffering allows the justice system to recognize a wrong and signify its weightiness even though money "is unrelated to the harm suffered"); Dobbins, supra note 97, at 885 (contending that allowing recovery of nonuse values as a part of natural resource damages serves to value those losses in the same way as recovery for nonmarket pain and suffering damages in tort suits).
383. Grefer v. Alpha Technical, 901 So. 2d 1117, 1147-52 (La. Ct. App. 2005), vacated sub nom. Exxon Mobil Corp. v. Grefer, 127 S. Ct. 1371 (2007).
384. Id. at 1149-50.
385. See Nos. 999345, 999643, 2006 WL 2346275, at *11 (Cal. Super. Ct. Aug. 1, 2006); supra notes 195-202 and accompanying text.
386. In re The Exxon Valdez, 296 F. Supp. 2d 1071, 1078-79 (D. Alaska 2004) (discussing the natural resource damage settlement), vacated per curiam, 472 F.3d 600 (9th Cir. 2006), amended by 490 F.3d 1066 (9th Cir. 2007), cert. granted, 76 U.S.L.W. 3224 (U.S. Oct. 29, 2007) (No. 07-219), cert. denied, 76 U.S.L.W. 3222 (U.S. Oct. 29, 2007) (No. 07-276); John Tomlin, Comment, Waking the Sleeping Giant: Analyzing New Jersey's Pursuit of Natural Resource Damages from Responsible Polluting Parties in the Lower Passaic River, 23 PACE ENVTL. L. REV. 235, 246-47 (2005-2006) (reporting that the contingent valuation method determined that the damages to natural resources from the Exxon Valdez spill were $3 billion, which played a role in Exxon's agreement to settle those claims).
387. In re The Exxon Valdez, 472 F.3d 600, 601 (9th Cir. 2006) (per curiam), amended by 490 F.3d 1066 (9th Cir. 2007), cert. granted, 76 U.S.L.W. 3224 (U.S. Oct. 29, 2007) (No. 07-219), cert. denied, 76 U.S.L.W. 3222 (U.S. Oct. 29, 2007) (No. 07-276).
388. See supra notes 274, 303 and accompanying text (discussing savings clauses in federal environmental statutes and judicial recognition that Congress intended statutory citizen suits and common law actions to supplement enforcement of federal environmental laws).
389. See supra notes 31-36 and accompanying text.
390. In re The Exxon Valdez, 296 F. Supp. 2d at 1103.
391. Id. at 1104.
392. In re The Exxon Valdez, 472 F.3d at 624.
393. Johansen v. Combustion Eng'g, Inc., 170 F.3d 1320 (11th Cir. 1999).
394. Id. at 1337-38.
395. Id. at 1338-39.
396. Id.
397. See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 426 (2003).
398. Philip Morris USA v. Williams, 127 S. Ct. 1057 (2007).
399. Id. at 1063-64.
400. Id.
401. See BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 575 (1996) ("Perhaps the most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant's conduct.").
402. See Williams, 127 S. Ct. at 1063 ("[T]o permit punishment for injuring a nonparty victim would add a near standardless dimension to the punitive damages equation.").
403. Id. at 1060-62 (finding the punitive damages award violated due process because the jury instructions allowed the jury to consider harm to smokers across the state); State Farm Mut. Auto Ins. Co. v. Campbell, 538 U.S. 408, 419-20, 422 (2003) (concluding that the punitive damages award violated due process because it attempted to punish defendant for its "operations throughout the country" which "bore no relation to the [plaintiffs'] harm"); BMW, 517 U.S. at 564 (stating that the punitive damages were based, in part, on nearly one thousand cars throughout the state that had fraudulently been repainted).
404. See supra notes 269-71 and accompanying text (discussing limitations in federal and state enforcement of environmental laws).
405. Even in environmental harm cases involving large corporations such as Exxon Mobil and Dow Chemical, the number of potential plaintiffs in a position to sue based on harm to the physical environment, even with loosened standing requirements, is likely to be far less than the number of potential plaintiffs in any nationwide consumer fraud or product liability action involving personal injury or emotional harm. See supra Part III.C.1 (discussing standing limitations for environmental harm cases).
406. See Jim Gash, Solving the Multiple Punishments Problem: A Call for a National Punitive Damages Registry, 99 NW. U. L. REV. 1613, 1621 (2005) ("As with products liability claims, environmental injury claims hold the potential for numerous plaintiffs to allege individual injuries arising out of a single act or course of conduct on behalf of a single defendant.");
407. Robert L. Rabin, Environmental Liability and the Tort System, 24 HOUS. L. REV. 27, 30, 39-43 (1987) (discussing "environmental harms" with reference to toxic tort cases involving thousands of victims);
408. W. Kip Viscusi, The Social Costs of Punitive Damages Against Corporations in Environmental and Safety Torts, 87 GEO. L.J. 285, 285 (1998) (referring to "environmental" cases to discuss toxic tort accidents leading to injury and death).
409. See Viscusi, supra note 385, at 285-86 (arguing for the elimination of punitive damages for corporate risk and environmental decisions, but relying primarily on "environmental" cases involving toxic tort accidents leading to personal injury and death); see also CASS R. SUNSTEIN ET AL., PUNITIVE DAMAGES: HOW JURIES DECIDE 19, 64-74 (2002) (basing conclusions on mock jury data assessing "products liability and environmental damage torts" although the only environmental case studied involved damage solely to public resources and was not brought by a private party).
410. See supra note 385.
411. See Thomas B. Colby, Beyond the Multiple Punishment Problem: Punitive Damages and Punishment for Individual Private Wrongs, 87 MINN. L. REV. 583, 583-91 (2003); Denemark, supra note 82, at 931; Gash, supra note 385, at 1613.
412. Philip Morris USA v. Williams, 127 S. Ct. 1057, 1060 (2007); State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 412 (2003).
413. See supra note 326 and accompanying text (discussing the lack of precision in jury instructions for awards of pain and suffering and other nonpecuniary damages).
414. See supra Part III.C (discussing the difficulty of bringing suits for natural resource damages and valuing such damages).
415. See Williams, 127 S. Ct. at 1063-64 (invalidating a punitive damages award to the wife of a smoker because of concern that the jury based the punitive damages award on harm to other smokers across the state); State Farm, 538 U.S. at 419-24 (stating that the punitive damages award was excessive because it was based significantly on defendants' nationwide misconduct with regard to processing insurance claims rather than on conduct directed toward the plaintiff).
416. See State Farm, 538 U.S. at 425 ("Our jurisprudence and the principles it has now established demonstrate . . . that, in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.").
417. See Sharkey, supra note 31, at 350-52, 389-414.
418. Id. at 351-52.
419. Id. at 389.
420. Id. at 390.
421. Id. at 410-14.
422. Alaska, Georgia, Illinois, Indiana, Iowa, Missouri, Oregon, and Utah all have statutes that require some percentage of punitive damages awards in all or certain classes of cases to be paid to the state or an agency within the state. Id. at 373, 375-80.
423. Id. at 380-86, 402-15 (discussing the judicial apportionment of punitive damages between the plaintiff and the state in the absence of controlling legislation).
424. Johansen v. Combustion Eng'g, Inc., 170 F.3d 1320, 1338 (11th Cir. 1999) (allowing a ratio larger than single digits and focusing on the state's interest in deterring environmental pollution); Grefer v. Alpha Technical, 901 So. 2d 1117, 1137-38 (La. Ct. App. 2005), vacated sub nom. Exxon Mobil Corp. v. Grefer, 127 S. Ct. 1371 (2007) (reviewing remediation estimates with reference to the state's interest in cleaning up the property and serving as a trustee for public natural resources); Jacque v. Steenberg Homes, Inc., 563 N.W.2d 154, 160-61 (Wis. 1997) (focusing on society's interest in preserving the integrity of the legal system and protecting the interests of individual landowners in awarding punitive damages).
425. Johansen, 170 F.3d at 1333, 1338-39; Grefer, 901 So. 2d at 1137-38; Jacque, 563 N.W.2d at 160-61.
426. See supra note 399.
427. Sharkey, supra note 31, at 377-78 (noting that Alaska, Indiana, Iowa, Missouri, Utah, Oregon, and Illinois permit split-recovery in all cases and citing and quoting the relevant state statutes). In addition, since 2003, six states have proposed legislation that would deny plaintiffs any portion of punitive damages awards, although no state has yet enacted such legislation. See Kelly-Rose Garrity, Note, Whose Award Is It Anyway?: Implications of Awarding the Entire Sum of Punitive Damages to the State, 45 WASHBURN L.J. 395, 395-96, 403 (2006).
428. Sharkey, supra note 31, at 377-78.
429. Id. at 379-80.
430. Existing split-recovery legislation in some states already ensures that the state does not receive its percentage of recovery until after the plaintiff's attorneys fees are recovered from the total award. Id. at 378-79 (stating that in most, but not all, states with split-recovery statutes, the percentage allocated to the state is calculated after all applicable costs and fees, including the plaintiff's full contingency fee, are recovered by the plaintiff).
431. See supra notes 355-57 and accompanying text.
432. Sharkey, supra note 31, at 380-86.
433. Id.
434. Miller v. Cudahy Co., 592 F. Supp. 976, 1009 (D. Kan. 1984) (affirming an award of $10 million in punitive damages to the plaintiff based on the defendant's intentional acts of pollution, but holding the award in abeyance contingent upon the defendant's agreement to undertake cleanup efforts); Sharkey, supra note 31, at 380-86 (citing Dardinger v. Anthem Blue Cross & Blue Shield, 781 N.E.2d 121, 121-22, 144-46 (Ohio 2002) (remitting a $49 million punitive damages award in a bad faith insurance claim case to $10 million and awarding two-thirds of that amount, after attorneys fees, to a cancer research fund)).
435. See, e.g., Klass, supra note 302, at 570; Sharkey, supra note 31, at 424.
436. Grefer v. Alpha Technical, 901 So. 2d 1117, 1150 n.26 (La. Ct. App. 2005), vacated sub nom. Exxon Mobil Corp. v. Grefer, 127 S. Ct. 1371 (2007).
437. Transcript of Proceedings at 2-3, Kennedy Bldg. Assocs. v. Viacom, 2006 WL 305279 (D. Minn. Feb. 8, 2002) (No. 99-CV-1833 JMR/FLN).
438. Grefer, 901 So. 2d at 1150 n.26; Transcript of Proceedings at 2-3, Kennedy Bldg. Assocs., 2006 WL 305279 (No. 99-CV-1833 JMR/FLN).
439. Sharkey & Klick, supra note 82, at 1-2 (discussing findings that the adoption of punitive damage caps leads to statistically significant increases in compensatory damages awards and citing studies showing similar inflation of compensatory awards where mock jurors were prohibited from awarding punitive damages); see Wangen v. Ford Motor Co., 294 N.W.2d 437, 447 (Wis. 1980) ("[I]f punitive damages are not allowed, juries [will] give vent to their desire to punish the wrongdoer under the guise of increasing the compensatory damages, particularly those awarded for pain and suffering." (citing 2 FOWLER V. HARPER & FLEMING JAMES, JR., THE LAW OF TORTS § 25.1, at 1300 (1956))).
440. Sharkey & Klick, supra note 82, at 3 (quoting Michelle Chernikoff Anderson & Robert J. MacCoun, Goal Conflict in Juror Assessments of Compensatory and Punitive Damages, LAW & HUM. BEHAV. 313, 315 (1999)) (internal quotation marks omitted);
441. see Catherine Sharkey, Crossing the Punitive-Compensatory Divide, in CIVIL JURIES AND CIVIL JUSTICE: PSYCHOLOGICAL AND LEGAL P ERSPECTIVES (Brian H. Bornstein et al. eds., forthcoming Nov. 2007) (discussing how juries use compensatory damages to punish defendants when caps are placed on punitive damages).
442. See supra notes 31-36 and accompanying text (discussing recognized purposes of punitive damages).
443. See Philip Morris USA v. Williams, 127 S. Ct. 1057, 1063-64 (2007) (allowing harm to the public and nonparties to be considered as part of the reprehensibility guidepost of punitive damages).