Vanderbilt Law Review


Aileen L. Nagy

First Page



Punitive damages are a civil penalty "aimed at deterrence and retribution" that further the state's interest in punishing unlawful conduct.' They are meant to "sting" and should be imposed proportionally according to the "egregiousness of the harm and the wealth of the transgressor." While compensatory damages are intended to compensate plaintiffs for their concrete losses, punitive damages use the plaintiff as an instrument for "visiting [] punishment upon [the] extreme tortious misdeeds" of defendants. As such, it is well settled that no individual plaintiff is entitled to punitive damages; however, "it is equally true that no transgressor is entitled to be relieved of exposure to them."

When punitive damages are sought through adjudication of individual claims, it is feared that multiple claims brought by individual plaintiffs will over-punish defendants while giving victims who "race to the courtroom door" a windfall not available to later claimants. For years, courts have struggled with concerns about duplicative punishment of defendants and the equitable distribution of such awards among plaintiffs. With the recent influx of mass tort cases dealing with products liability, courts can no longer ignore these issues.

The concept of a punitive damages class has emerged as a potential means of providing distributive justice to plaintiffs, while still protecting defendants from multiple, successive punishments. In this regard, some parties have sought to certify mandatory punitive damages classes under Federal Rule 23(b)(1)(B) when "litigation would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests." In other words, in the punitive damages context, a mandatory class may be utilized where ''multiple punitive damage claims for the same conduct threaten to deplete the defendant's assets as to foreclose or diminish later claims for both punitive and compensatory damages, [or] where multiple punitive damages claims... may exhaust the substantive legal limits that the Supreme Court has set as permissible punishment." This Note will focus on the latter of these claims.

The traditional application of Rule 23(b)(1)(B) and current Supreme Court precedent interpreting the rule may weigh against the certification of mandatory punitive damages classes. In Ortiz v. Fibreboard, the United States Supreme Court extensively explored the application of mandatory classes based on a limited fund under Federal Rule 23(b)(1)(B). In particular, the Court focuses on limited fund class actions, laying down the necessary requirements for class certification on a limited fund rationale. The Court held that there must be evidence that the fund is limited, that the "whole of the inadequate fund be devoted to the overwhelming claims," and the claimants be identified by a "common theory of recovery [and] treated equitably among themselves."