Dunn v. HOVIC

WEIS, Circuit Judge,

dissenting.

I dissent from the judgment of the court permitting punitive damages in this case.

Asbestos litigation is unique. The large number of persons exposed to asbestos has caused a proliferation of claims, the likes of which courts have never seen, causing serious concern that the traditional tort system cannot adequately process the litigation. As this Court said in In re School Asbestos Litigation, 789 F.2d 996, 1000 (3d Cir.1986), asbestos litigation presents “an unparalleled situation in American tort law.”

In 1986, an estimated 30,000 personal injury suits had been filed against asbestos man*1394ufacturers and producers. Id. That figure has since increased substantially. By 1990, 30,401 asbestos cases were pending in the federal courts alone, with about double that amount in the state courts, for a total of approximately 90,000 cases. Judicial Conference Ad Hoc Comm. on Asbestos Litig., Report to the Chief Justice of the United States and Members of the Judicial Conference of the United States (Mar. 1991), reprinted in Asbestos Litig. Rep., Mar. 14, 1991, at 22,-698, 22,702-03. A study completed by the National Center for State Courts reports that there may be as many as 129,000 cases pending in state courts alone, making the total of federal and state cases approximately 160,000. State Judges Asbestos Litig. Comm., Megatorts: The Lessons of Asbestos Litigation (July 21, 1992), reprinted in Mea-ley’s Litig. Rep. — Asbestos, Nov. 20, 1992, at B-l. Another report estimates that between 1990 and 2049 another 668,363 asbestos-related claims will be filed. Eric Stallard & Kenneth Mantón, Estimates and Projections of Asbestos-Related Mesothelioma and Exposures Among Manville Personal* Injury Settlement Trust Claimants, 1990-2049, at 42 (Draft Nov. 9, 1992).

It is not only claims for personal injuries and deaths resulting from asbestos that have inundated the courts. In addition, thousands and thousands of property damage cases further diminish the available pool of resources. See, e.g., In re School Asbestos Litig., 789 F.2d at 1005.

As might be expected, the flood of asbestos cases has taken its toll on the defendant asbestos manufacturers. The Ad Hoc Committee reported that of the twenty-five major asbestos companies, eleven had filed petitions in bankruptcy. Judicial Conference Ad Hoc Comm., supra, at 22,705. Later reports indicate that fifteen or sixteen companies have filed for bankruptcy. State Judges Asbestos Litig. Comm., supra, at B-2; Don J. DeBenedictis, Model for Asbestos Settlements, A.B.A.J., Apr. 1993, at 22. Moreover, that “number does not include the numerous smaller distributors that have been targeted in the wake of absent manufacturers and who have in turn become insolvent.” Peter H. Schuck, The Worst Should Go First: Deferral Registries in Asbestos Litigation, 15 Harv.J.L. & Pub.Pol’y 541, 555 (1992).

The first of the major asbestos manufacturers to enter bankruptcy was Johns-Man-ville, which sought to use Chapter 11 essentially as a giant interpleader action. As part of the Manville reorganization, a trust was created to settle pending and future asbestos claims. Although the trust concept had the potential for equitably distributing assets to present and future claimants, the bankruptcy proceeding was itself very expensive and the results ultimately proved to be unsatisfactory.

Even though punitive damages were not allowed, the trust was essentially insolvent after operating for only a year and a half. In re Joint E. & S. Dist. Asbestos Litig., 129 B.R. 710, 754 (E. & S.D.N.Y.1991), vacated on procedural grounds, 982 F.2d 721 (2d Cir.1992). Reports indicate that the trust received 192,347 claims, Stefan Fatsis, Lower Sums for Victims of Asbestos, quoted in Phila. Inquirer, Mar. 18, 1992, at C8, and that the trust’s funds of approximately $2.6 billion were overshadowed by present and future liabilities estimated as high as $7 billion, see In re Joint E. & S. Dist. Asbestos Litig., 129 B.R. at 765. The swift depletion of assets was caused by high transaction costs, the failure to anticipate the magnitude of claims, and the fact that the average settlement was much higher than expected. Id. at 754-62. Additionally, the trust paid on a first come, first served basis, rather than on priority determined by the extent of injury.

The district court intervened to impose measures for a more equitable distribution of the funds and eventually approved an arrangement that altered the distribution process so that those most seriously injured were paid first. Id. at 768-70. In addition, a serious attempt was made to predict future claims so that present and future claimants would be paid an equitable percentage of their claims’ value. Id.

In commenting on the settlement, the district court noted the grim prospects for future asbestos claimants in the absence of a solution. The current defendants “do not have, and they probably will not have, assets to pay for their current and contingent as*1395bestos liabilities given the present mode of disposing of asbestos claims.” Id. at 907. The Manville experience, thus, demonstrates that even purely compensatory payments for future claims are in jeopardy.

Subsequent claims and bankruptcy filings have increased the likelihood that future claimants will not be able to recover for their injuries. As the Ad Hoe Committee said:

“[A] large number of individuals have claims ... that are not yet ripe for adjudication. Because many of the defendants in these cases have limited assets that may be called upon to satisfy the judgments obtained under current common tort rules and remedies, there is a ‘real and present danger that the available assets will be exhausted before those later victims can seek compensation to which they are entitled.’ Jackson v. Johns-Manville Sales Corp., 750 F.2d 1314, 1330 (5th Cir.1985), cert. denied, 478 U.S. 1022, 106 S.Ct. 3339, 92 L.Ed.2d 743 (1986).”

Judicial Conference Ad Hoc Comm., sttpra, at 22,715-16. As one of its recommendations to Congress, the Committee suggested legislation “requiring treatment of available assets to take into account future claimants.” Id. at 22,716.

It is within this setting of burgeoning litigation, corporate collapse, and future compensatory inadequacy that the present case involving punitive damages arises.

This Court is confronted for the first time with an asbestos case brought under Virgin Islands law where punitive damages have been awarded. We are in a position similar to that of state supreme courts in determining the common law and Restatements applicable within this jurisdiction. We write on a clean slate and shoulder a clear responsibility to resolve a difficult issue. We are .not bound, nor excused, by mistaken determinations in other jurisdictions in the past.

The desirability of permitting punitive awards has been subjected to vigorous assault in recent years, particularly in cases like the one before us. Whether the theories underlying exemplary damages hold true in the mass tort context has been questioned in such cases as: In re Bendectin Prod. Liab. Litig., 749 F.2d 300, 305-07 (6th Cir.1984); In re Northern Dist. of Cal., Dalkon Shield IUD Prod. Liab. Litig., 693 F.2d 847, 851-52 (9th Cir.1982); In re Federal Skywalk Cases, 680 F.2d 1175, 1179-83 (8th Cir.1982); and In re “Agent Orange” Prod. Liab. Litig., 100 F.R.D. 718, 725 (E.D.N.Y.1983). In none of those instances, however, did the problem match the magnitude of the asbestos litigation crisis. As the State Judges Litigation Committee reports, “There is no more controversial issue in mass tort litigation than punitive damages.” State Judges Asbestos Litig. Comm., supra, at B-9.

I do not propose to enter the debate here over the merits of punitive damages in general.1 For purposes of this case, I accept the premise that in appropriate cases punitive damages may be assessed in the Virgin Islands. See Restatement (Second) of Torts § 908(2);2 Acosta v. Honda Motor Co., 717 F.2d 828, 833-41, (3d Cir.1983). However, it is necessary to discuss the justifications for punitive damages and whether those purposes are served in the mass tort area.

I propose to meet head-on an issue presented here — that is, whether unfairness to *1396injured persons whose claims will come due after available funds have been exhausted requires a common law bar on continuing punitive awards. I will also review punitive awards in terms of unfairness to asbestos defendants and due process. See TXO Prod. Corp. v. Alliance Resources Corp., — U.S. —, 113 S.Ct. 2711, 125 L.Ed.2d 366 (1993); Pacific Mut. Life Ins. v. Haslip, 499 U.S. 1, 26-27, 111 S.Ct. 1032, 1053, 113 L.Ed.2d 1 (1991). Although there are serious questions of bias, prejudice, and improper closing arguments to the jury present in this record, I will not discuss them here.

I.

COMMON LAW PUNITIVE DAMAGES

The Restatement (Second) of Torts § 908(2) provides that “[pjunitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others.” (emphasis supplied). Comment a explains that “[t]he purposes of awarding punitive damages ... are to punish the person doing the wrongful act and to discourage him and others from similar conduct in the future.”

When considering punitive awards, several basic principles must be emphasized. First, punitive damages are designed for retribution and deterrence. “They are not compensation for injury. Instead, they are private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 350, 94 S.Ct. 2997, 3012, 41 L.Ed.2d 789 (1974). The fairness inherent in due process requires that punitive assessments not exceed those amounts necessary to inflict retribution and prevent reoccurrence. See, e.g., Vasbinder v. Scott, 976 F.2d 118, 121 (2d Cir.1992). When retribution and deterrence are accomplished without the imposition of punitive damages, use of that weapon is no longer justified.

Second, punitive damages are a windfall. They do not reimburse losses that plaintiffs have suffered, but provide an amount over and above that necessary for fair compensation. See, e.g., City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 267, 101 S.Ct. 2748, 2759, 69 L.Ed.2d 616 (1981).

Third, there is no compelling reason why injured but fully compensated plaintiffs should receive punitive awards. The aims of retribution and deterrence can be accomplished by making punitive damages payable to the state.3 Indeed, nine states have enacted statutes that designate that a portion of any punitive award goes to the state, ranging from 20% in New York to 75% in Iowa and Georgia. Colo.Rev.Stat. § 13-21-102(4); Fla.Stat.Ann. § 768.73; Ga.Code Ann. § 51-12 — 5.1(e)(2); Ill.Ann.Stat. ch. 110, para. 2-1207; Iowa Code Ann. § 668A.l(2)(b); Mo. Ann.Stat. § 537.675; N.Y.Civ.Prac.L. & R. § 8701; Or.Rev.Stat. § 18.540; Utah Code Ann. § 78-18-K3).4

In the asbestos context, punitive awards are not needed for retribution and deterrence. Actually, there is little conduct to deter because few asbestos-containing products are still manufactured in the United States.5 Owens-Corning, the defendant in this case, ceased manufacturing asbestos-containing Kaylo in November 1972, more than twenty years 'ago, and no longer produces or *1397distributes any asbestos-containing products. That being so, this punitive award cannot be justified by a concern that Owens-Corning will continue its challenged practice in the future. See Magallanes v. Superior Court, 167 Cal.App.3d 878, 213 Cal.Rptr. 547, 552 (Ct.App.1985) (“[T]he objective of deterrence has little relevance where the offending goods have long since been removed from the marketplace.”).

Moreover, the avalanche of compensatory claims against asbestos manufacturers has surely served as more of a punishment and deterrent than individual punitive assessments in isolated cases against manufacturers of other types of products. As one judge has explained:

“No manufacturer could engage consciously in wrongdoing that would expose it to such overwhelming strict liability with any reasonable expectation of doing so profitably. On the contrary, the prospect of exposure to massive litigation in strict liability provides the impetus for manufacturers to take affirmative steps to ensure the safety of their products, since mere non-negligent behavior is no guarantee against strict liability.
The significance of punitive damages as a deterrent depends upon the size of the penalty increase relative to the ‘base penalty’ exacted by strict liability compensatory awards. Because of the dimensionless character of the prospects for future litigation in this instance, the ‘base penalty,’ for all practical purposes, is illimitable. Correspondingly, the significance of punitive damages as a deterrent diminishes to the vanishing point.”

Jackson v. Johns-Manville Sales Corp., 727 F.2d 506, 527 (1984), vacated, 750 F.2d 1314 (5th Cir.1985) (en banc).

That point is illustrated strikingly by Owens-Corning’s experience. Compensatory awards have consumed all profits made from the sale of asbestos-containing products. Total gross sales of Kaylo were $142,720,000. As of May 31, 1991, defendant had paid claims for “hundreds of millions of dollars” in 62,588 cases and incurred litigation expenses in excess of $100 million. In 1990 alone, $117 million was paid on 12,300 claims. In addition, 86,192 cases are presently pending with hundreds more being filed each month. In these circumstances, punitive awards are certainly not necessary to provide an effective deterrent.

Some courts and commentators have expressed concerns that the denial of punitive damages in a mass tort setting might in effect reward defendants because the harm caused was so extensive.6 However, such concerns have no validity here. It is disingenuous to speak of reaping a “reward” when compensatory damages dwarf any profits made from asbestos-containing products and those damages by themselves have forced manufacturers into bankruptcy.7

The Ad Hoc Committee cited a 1984 Rand study reporting that in a sample period between 1980 and 1982, punitive damages total-ling $4,934,000 had been awarded in asbestos cases. Judicial Conference Ad Hoc Comm., supra, at 22,724 n. 54. More recent figures are substantially higher.8 In testimony before a House Subcommittee on February 26, *13981992, Judge William Schwarzer, the Director of the Federal Judicial Center, said:

“Punitive damages compete with compensatory damages for the increasingly scarce resources of asbestos defendants and their insurers. Until the claims of future claimants become liquidated, distribution of punitive damages to current claimants creates a risk of exhausting funds before potential claimants discover their injuries. Some mechanism to avoid this outcome, at least until more precise information becomes available about future claims, may be necessary for a national solution that has meaning for future claimants.”

Asbestos Litigation Crisis in Federal and State Courts: Hearings Before the Subcomm. on Intellectual Property and Judicial Administration of the House Comm. on the Judiciary, 102d Cong., 2d Sess. 132-33 (1992) (statement of Hon. William W. Schwarzer).

Judge Schwarzer also noted that less than 1% of asbestos cases proceed to judgment. Id. at 137. Thus, punitive damages as such are only available in that small percentage of cases. Moreover, they are not awarded in every trial even though the same defendant and the same conduct is at issue. Nevertheless, the potential for punitive awards is a weighty factor in settlement negotiations and inevitably results in a larger settlement agreement than would ordinarily be obtained. To the extent that this premium exceeds what would otherwise be a fair and reasonable settlement for compensatory damages, assets that could be available for satisfaction of future compensatory claims are dissipated. Id. at 137-38.

Rather early in the wave of asbestos litigation, a minority of the Court of Appeals for the Fifth Circuit forcefully questioned whether the industry’s resources would be adequate to compensate future claimants. Jackson v. Johns-Manville Sales Corp., 750 F.2d 1314, 1330 (5th Cir.1985) (en banc) (Clark, J., joined by four others dissenting), later appeal, 781 F.2d 394, 415-17 (5th Cir.1986) (en bane) (Clark, J., joined by four others dissenting). A majority of that Court decided to certify to a state court the question of whether plaintiffs could recover punitive damages in asbestos cases. The dissenting judges, arguing that the problem was national' in scope, advocated taking a more forceful stand. Noting that the “field of asbestos litigation [had] exploded,” they pointed out that an “already astronomical and still growing number of plaintiffs [are] seeking individual recoveries against a finite pool of assets belonging to a relatively small group of defendants.” Jackson, 750 F.2d at 1330.

Taking issue with the decision to certify the question to the state court, the dissent observed that “[a] state seeking to protect its own citizens can only shape its law to maximize the recovery of its own early plaintiffs, so that at least those individuals will not be impeded in the legal scramble for. a share of insufficient assets.” Id. The situation has only worsened since the time of the Jackson opinions, and a panel of that same Court in 1990 conceded its “misgivings” over awarding punitive damages in asbestos cases, but found itself shackled by binding precedent. King v. Armstrong World Indus., 906 F.2d 1022, 1033 (5th Cir.1990). ‘

As the Jackson dissent commented and as we discussed in In re School Asbestos Litigation, 789 F.2d at 1001, parochial concerns tend to influence the decision to make punitive damages available in cases of this nature. That approach was apparent, for example, in Fischer v. Johns-Manville Corp., 103 N.J. 643, 512 A.2d 466 (1986). In discussing the suggestion that a limitation on punitive awards be imposed, the Fischer Court said: “Such a cap would be ineffective unless applied uniformly. To adopt such a cap in New Jersey would be to deprive our citizens of punitive damages without the concomitant benefit of assuring the availability of compensatory damages for later plaintiffs. This we decline to do.” Id. at 478. What that opinion failed to acknowledge was that giving windfall punitive awards to early plaintiffs poses the likely prospect that some future New Jersey plaintiffs will be unable to recover compensatory damages for their injuries.

The New Jersey Supreme Court also stated that it failed “to see the distinction, in the case of Johns-Manville [before its bankruptcy], between the effect of compensatory damages and that of punitive damages.” Id. at *1399477. To some extent, the Court was correct. Every dollar expended on punitive awards, as well as those expended in compensatory damages, will diminish, eventually to the point of exhaustion, resources available for paying future plaintiffs’ claims. There is, however, an important distinction. Compensatory damages are a remedy for injuries suffered. Punitive awards are not. A dissenting justice in Fischer posed an apt rhetorical question: “But why, for example, should a few Daikon Shield users receive several millions in punitive-damages awards, while others receive nothing from the bankrupt A.H. Robins Co.?” Id. at 488 n. 3 (O’Hern, J., dissenting).

Unquestionably, a national solution is needed. Despite the deteriorating situation, Congress has declined to act, and class actions are an inadequate remedy. In the meantime, the drain on available resources continues. It is time — perhaps past due — to stop the hemorrhaging so as to protect future claimants.

The parochial concerns that have influenced some states to allow punitive damages would justify the majority’s decision here. But at some point, some jurisdiction must face up to the realities of the asbestos crisis and take a step that might, perhaps, lead others to adopt a broader view. Courts should no longer wait for congressional or legislative action to correct common law errors made by the courts themselves. Mistakes created by courts can be corrected by courts without engaging in judicial activism.9 It is judicial paralysis, not activism, that is the problem in this area. As we said in Frilette v. Kimberlin, 508 F.2d 205, 212 (3d Cir.1974) (en banc), it is not necessary to wait for legislative action when the error was judge made and it can be corrected in the same fashion. “We cannot escape the fact that what has been done is in the nature of what, in the words of Chief Justice Hughes, might be called a ‘self-inflicted wound.’ ” Id.

I am persuaded that, at this point, the available resources of asbestos manufacturers will be exhausted before all deserving claimants have received compensatory damages.10 Predictions of future events, of course, always carry some risk of error. In this instance, however, the storm warnings are too foreboding to be brushed aside. Absolute certainty likely will appear only after disaster has struck — when the time for effective anticipatory action has vanished. If there is to be error in forecasting, I would prefer that it be in favor of redress for future claimants, rather than largesse for those who have received adequate relief.

The cruel reality underlying the issue in this case cannot be ignored. As Chief Judge Clark said in the Jackson case: “This seminal case concerns much more than [an] individual claim_ We know better. Our dockets tell us so_” 781 F.2d at 416. It is already late in the day, but we have an obligation to take what steps we can.

It should require no extended discussion to conclude that in establishing a proper priority, compensation for victims should rank first. Next must come necessary but reasonable administrative costs attributable to com*1400pensation.11 Far down the list — if not at the very bottom — should come punitive awards, which are by definition over and above adequate compensation. Exemplary awards are an element that can equitably and easily be eliminated.

Under current conditions, even if the purposes of punishment and deterrence were served, it is fanciful to believe that such factors are worthy of consideration in assessing priorities to limited funds. In this context, the benefits of punitive awards are outweighed by their costs to society. Cf. David G. Owen, The Moral Foundations of Punitive Damages, 40 Ala.L.Rev. 705, 724-25, 737-39 (1989).12 Punishment and deterrence cannot justify extra-compensatory awards when they penalize future claimants by depleting available funds.

Society’s interest in protecting future claimants demands that present plaintiffs— both those who go to trial and those who settle — forego the “bonus” offered by punitive damage verdicts or high settlements achieved by their threat. Courts must recognize that the public interest outweighs parochial concerns in having citizens within their jurisdictions “get theirs” now. Such a selfish approach, after all, is unjust, not only to future claimants in other parts of the country, but within the courts’ own jurisdictions as well.13

I have no doubt that this Court has the power to prohibit punitive awards in asbestos cases within the Virgin Islands and I am convinced that it has an obligation to do so in order to protect the interests of those whose claims for compensation will be jeopardized.

II.

DUE PROCESS

Some of the same considerations that are important in deciding whether punitive awards are appropriate under local law also play a part in determining whether the assessment of such sums violates due process.

Although plaintiff here asserts that Owens-Corning failed to provide a sufficient basis for a ruling on due process, the record establishes that pretrial motions to dismiss punitive damage claims were denied by the district court. After the jury had begun its deliberations on punitive damages in the bifurcated trial, the defense renewed its contention that they would be unconstitutional because of previous awards. Counsel stated that four punitive awards had been entered against Owens^Corning, but indicated that there might be others as well.

*1401The district court concluded that a punitive award would not be unconstitutional because “even in view of [defendant’s] negative net worth [the amount] is certainly not enough to sting the company ... [a]nd it’s not unconstitutional because your client to this date has been subjected to a huge burden with respect to punitive damages.”

In post-trial proceedings, the district court directed both parties to furnish information on punitive awards in other asbestos cases during the preceding two years. In response, plaintiff listed thirty-eight cases— two of which included punitive awards against Owens-Corning of $4,150,000 and $5,000,000. In his statement, plaintiff admitted that “other juries had reached the same conclusion regarding OCF’s conduct and awarded punitive damages accordingly.”

Defendant filed an extensive compilation, and an analysis of the thirty-eight cases listed by plaintiff, together with an affidavit detailing the punitive awards against Owens-Corning to that date. In its submission, defendant listed $19,975,000 awarded against it in punitive damages.

On this record, defendant adequately preserved its objections asserting a denial of due process.

The Supreme Court has indicated that punitive awards may violate substantive due process. In TXO, — U.S. at —, 113 S.Ct. at 2720, the Court concluded that as to the verdict at issue there, “we are not persuaded that the award was so ‘grossly excessive’ as to be beyond the power of the State to allow.” In Haslip, 499 U.S. at 35 n. 11, 111 S.Ct. at 1052 n. 11, the Court noted that punitive awards may be required to comport with “procedural and substantive [due process] protections.”

Due process concerns are present in two aspects that have a correlation to the criminal field — proportionality and repetitiveness. The Supreme Court has made it clear that the Excessive Fines Clause of the Eighth Amendment and the Double Jeopardy Clause of the Fifth Amendment are not directly applicable to suits between private litigants. See Browning-Ferris Indus. v. Kelco Disposal, Inc., 492 U.S. 257, 260, 109 S.Ct. 2909, 2912, 106 L.Ed.2d 219 (1989); United States v. Halper, 490 U.S. 435, 451, 109 S.Ct. 1892, 1903, 104 L.Ed.2d 487 (1989); see also Hansen v. Johns-Manville Prod., 734 F.2d 1036, 1042 (5th Cir.1984). Nevertheless, the analogy between “punishment” in the criminal field and exemplary awards in civil litigation is strong enough that the rationale in the former area is useful in analyzing the scope of the latter.

As one commentator remarked, “[T]o punish the guilty beyond their guilt is not different from punishment of the innocent, and it cannot be done in a manner consistent with ordinary notions of justice.” Dan B. Dobbs, Ending Punishment in “Punitive” Damages: Deterrence-Measured Remedies, 40 Ala.L.Rev. 831, 854 (1989). “By definition, punitive damages are based upon the degree of defendant’s culpability.” Massachusetts Bonding & Ins. v. United States, 352 U.S. 128, 133, 77 S.Ct. 186, 189, 1 L.Ed.2d 189 (1956).

Neither TXO nor Haslip provide much guidance in the mass tort area because the wrongful conduct in each case affected only the other party to the suit. Obviously, such limited disputes are quite unlike asbestos litigation, where literally thousands of plaintiffs have brought suits against a relatively small number of manufacturers and where punitive awards are sought on essentially the same basis — an alleged failure to warn.

As a.further complication in the asbestos field, sheer volume, varying state laws, and concerns for future, not-yet-identified, claimants make consolidation of all the asbestos claims impossible. Legal scholars have discussed this problem and proposed legislation to permit class actions and similar procedures to remedy the problem.14

Some commentators suggest that the first award of punitive damages arising from a course of conduct should preempt all subsequent punitive claims. Others point to the asserted unfairness of permitting early plain*1402tiffs to receive all of the punitive damages that can rationally be sustained, thus depriving later claimants of a similar opportunity. Still others suggest that juries in later cases should be fully informed as to all of the punitive damages that have been previously awarded. Asbestos defendants object to this proposal because such information might prejudice jurors, convincing them that.punitive damages should be awarded in all cases.

Each of those proposals present problems of their own. The formidable complications unique to the mass tort field have led most courts that have been presented with due process challenges to deflect the attack by deciding each case on a subsidiary factual or procedural issue and deferring to a later date the thorny question of due process. See, e.g., Johnson v. Celotex Corp., 899 F.2d 1281, 1287-88 (2d Cir.1990) (inadequate record); Racich v. Celotex Corp., 887 F.2d 393, 397 (2d Cir.1989) (same).

Even the few opinions that have thoughtfully discussed due process objections have been deterred by governing law in their jurisdiction. For instance, in Juzwin v. Amtorg Trading Corp., 705 F.Supp. 1053 (D.N.J.), vacated, 718 F.Supp. 1233 (D.N.J.1989), the court was troubled by the serial'imposition of punitive damages in asbestos cases, but ultimately decided that it would be inequitable to deny them to one plaintiff when other plaintiffs in the same and other state jurisdictions would nevertheless still have the opportunity to seek such awards.15 That approach is understandable, but undesirable nevertheless. The rationale is faulty because it skews the scales by placing the emphasis on the wrong party.

The earlier part of this opinion weighed the rights of future claimants to compensation against the opportunity of current claimants to receive windfalls. That balancing did not rest on a concern for asbestos defendants, but rather was based on the assumption that they owed fair and reasonable compensation based on either negligence or strict liability — even to the extent of insolvency.

However, because punitive awards are windfalls and not compensation, courts should place less emphasis on plaintiffs’ rights when evaluating due process arguments. Plaintiffs’ entitlements are, after all, met by compensatory damages.16 Instead, when considering the substantive due process limits on punitive awards, a court’s analysis should focus on the defendants. See Malcolm E. Wheeler, The Constitutional Case for Reforming Punitive Damages Procedures, 69 Va.L.Rev. 269, 292 (1983) (“As courts have uniformly held, no plaintiff has a right to punitive damages: the purpose of punitive damages is to vindicate the public interest, not that of a particular plaintiff.”).

If it were possible for a single jury to consider the extent of harm as well as the number of victims and then factor that data into a single punitive award against an asbestos manufacturer, there would be no basis for imposing punishment thereafter. See, e.g., In re “Agent Orange” Prod. Liab. Litig., 100 F.R.D. at 728 (“In theory, ... when a plaintiff recovers punitive damages against a defendant, that represents a finding by the jury that the defendant was sufficiently punished for the wrongful conduct. There must, therefore, be some limit, either as a matter of policy or as a matter of due process, to the amount of times defendants may be punished for a single transaction.”). The difficulty is that in asbestos litigation, no single jury can assess a punitive damage award that includes all victims. Thus, courts must confront the unavoidable and undeniable fact that defendants are being punished over and over again for the same general course of conduct. See Roginsky v. Richardson-Merrell, Inc., 378 F.2d 832, 839-41 (2d Cir.1967).

Although Halper, 490 U.S. at 451, 109 S.Ct. at 1903, found that the “protections of *1403the Double Jeopardy Clause are not triggered by litigation between private parties,” that opinion uses language that is quite instructive in a due process analysis. As the Court observed:

“It is commonly understood that civil proceedings may advance punitive as well as remedial goals, and, conversely, that both punitive and remedial goals may be served by criminal penalties. The notion of punishment, as we commonly understand it, cuts across the division between the civil and the criminal law.... Simply put, a civil as well as a criminal sanction constitutes punishment when the sanction as applied in the individual case serves the goals of punishment.”

Id. at 447-48, 109 S.Ct. at 1901 (citations omitted). Those goals are retribution and deterrence. Id. at 448, 109 S.Ct. at 1901; see also Austin v. United States, — U.S. — , 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993) (question is not whether statutory forfeiture is “civil or criminal, but rather whether it is punishment”).

Because punitive damage awards serve the same purposes as criminal sanctions, Courts of Appeals concede that, at some point, multiple punitive awards in mass tort cases violate due process. See, e.g., Simpson v. Pittsburgh Corning Corp., 901 F.2d 277, 281-82 (2d Cir.1990); Johnson, 899 F.2d at 1287-88; Racich, 887 F.2d at 398 (“We agree that the multiple imposition of, punitive damages for the same course of conduct may raise serious constitutional concerns, in the absence of any limiting principle.”); cf. In re School Asbestos Litig., 789 F.2d at 1004-05. Those opinions, however, have not extensively explored the dimensions of this constitutional argument.

Initially, it is important to note the wrongful conduct charged to asbestos manufacturers — a failure to warn of the dangerous characteristics of the substance for years after those dangers became known to the industry. We also observe that asbestos was taken off the market in 1971. Punitive awards that are made today, therefore, punish corporate defendants over and over again for transgressions that occurred thirty to sixty years ago. Payment of those awards not only jeopardizes the ability to provide compensation for future plaintiffs, but also, by forcing companies into bankruptcy, injures employees, customers, and trade creditors who took no part in, and had no knowledge of, the wrong doing.

Moreover, unlike the situation in TXO, these cases do not involve a scenario in which the incumbent corporate officials personally participated in fraudulent and malicious activity. Punitive awards in asbestos cases usually do not punish the individuals who were responsible for the offensive conduct. See American Law Inst., supra, at 254-55. Thus, in this field, punishment is not only repetitive, but is inflicted on. a vicarious basis. Basic notions of due process are offended by punishment that occurs over and over again as has happened in asbestos litigation.17

It may be argued that it would be unfair to disallow punitive awards at this point' because current plaintiffs thus will not receive what earlier ones did. That is true. Nevertheless, such unevenness does not justify continued punishment of asbestos defendants. It would have been better had the matter of punitive damages been resolved at the beginning of the asbestos crisis, but it was not. Courts must grapple with the problem as it now exists. We are confronted with the alternative of permitting current plaintiffs to receive windfalls or stopping punishment that violates due process. The choice is obvious.

The other phase of substantive due process is proportionality. In its opinion, the Haslip majority noted that substantive due process “standards provide for a rational relationship in determining whether a particular award is greater than reasonably necessary to punish and deter.” 499 U.S. at 35, 111 S.Ct. at 1052. Similarly, in her dissent, Justice O’Connor recognized that whether an award is grossly excessive is an “important substantive due *1404process concern.” Id. at 92, 111 S.Ct. at 2002 (O’Connor, J., dissenting). We may take from Haslip, therefore, that a punitive award that is greater than reasonably necessary to punish and deter violates substantive due process. See id. at 31-32, 111 S.Ct. at 1057.

Courts must also remember that punitive damages are intended to “sting,” not to destroy. See In re Northern Dist. of Cal. “Dalkon Shield” IUD Prods. Liab. Litig., 526 F.Supp. 887, 899 (N.D.Cal.1981), vacated on other grounds, 693 F.2d 847 (9th Cir.1982). Indeed, in its early years the common law dictated that punitive awards should not be so large as to threaten the economic viability of defendants.

Because punitive damages are quasi-criminal, an analogy may be found in the early English practice of amercements. See John C. Jeffries, Jr., A Comment on the Constitutionality of Punitive Damages, 72 Va.L.Rev. 139, 154-58 (1986). A wrongdoer could buy “peace” through the payment of a fíne or amercement to the king. Id. at 154. Chapter 20 of the Magna Carta, 9 Hen. III, ch. 14 (1225), limited the king’s power to impose fines, providing that a freeman shall be amerced “saving always his position; and a merchant in the same way, saving his trade; and a villein shall be amerced in the same way, saving his tillage.” James Tait, Studies in Magna Carta: Waynagium and Contenementum, in 27 Eng.Hist.Rev. 720, 727 (Reginald L. Poole ed. 1912). Thus, the penalty inflicted should not, in any event, destroy the offender’s means of making a living in his particular trade or calling. Magna Carta guaranteed not just bare survival, but continued productive economic viability.18

Having arrived at the principle that at some point further repetitive punitive damages are neither rational nor fair, the difficult question is how to determine when that point has been reached. Some assistance may be found in the approach that courts use to determine whether a traditional punitive award is excessive. Many of the same factors considered in the usual one-on-one case are helpful.

For example, in Haslip, 499 U.S. at 30-31, 111 S.Ct. at 1057, the Court approved Alabama’s judicial review that included such considerations as:

(a) a reasonable relationship between the award and harm from defendant’s conduct;

(b) the reprehensibility of defendant’s conduct, its duration, defendant’s awareness or concealment, and the existence and frequency of past misconduct;

(c) the profitability to defendant of the conduct;

(d) the financial position of defendant;

(e) all the costs of litigation;

(f) the imposition of criminal sanctions; and

(g) the existence of other civil awards against defendant for the same conduct.

In TXO, — U.S. at —, 113 S.Ct. at 2719, the plurality opinion relied on a general concern of reasonableness. In general, these considerations give the courts some basis on which to decide whether punitive damages should be permitted. However, other matters unique to mass torts — other punitive awards, the effect of those awards on current and future claimants for compensation, and the adverse effect on settlement of pending claims — must also enter into the calculus. After taking all these factors into account to determine that a defendant has been adequately deterred and punished, a court must strike down all subsequent punitive awards in order to preserve due process.

As a practical matter, we note that those manufacturers that have become bankrupt may have already escaped from the burden of punitive damages.19 To the extent, howev*1405er, that liability for exemplary awards may be joint and several in some jurisdictions, the inability of one defendant to pay punitives imposes an additional burden on those still solvent.

The amount of awards returned against Owens-Corning is ' more than enough for punishment. Although some verdicts may have been reduced on appeal and others compromised in later settlement agreements, that diminution is no doubt more than offset by the amount other settlements have been inflated because of the threat of punitive damages.

The fact that this company concedes that it would not be driven into bankruptcy by the punitive damage award here does not moot due process objections. If bankruptcy is the test, then due process relief will always come too late. In this case, punitive awards already assessed against Owens-Corning equal a substantial portion of the company’s total Kaylo sales. The sum of compensatory awards, punitive damages, and litigation expenses dwarf any profits.

Owens-Corning has been able to remain solvent by producing goods not related to its ill-fated venture into asbestos products.20 That fact should have no bearing on whether defendant should be punished more than a company whose activities were limited to asbestos and has become bankrupt. Repetitious punishment should not depend on the wealth or poverty of the offender. Due process is the right of every citizen, corporate or individual, wealthy or impoverished. Moreover, and perhaps more importantly,' although the case before us only involves one defendant, the holding will apply to other asbestos litigation within this circuit.

I am persuaded that the punitive damages award against Owens-Corning should be stricken. The amounts awarded in prior litigation have been more than adequate to meet the needs of punishment and deterrence. Thus, permitting an award to the plaintiff serves no rational purpose.

I dissent.

Judge GREENBERG, Judge HUTCHINSON, and Judge SCIRICA join in this dissent.

. For a representative — but by no means complete — sample of articles, see Dennis N. Jones, et al., S. Brett Sutton & Barbara D. Greenwald, Multiple Punitive Damages Awards for a Single Course of Wrongful Conduct: The Need for a National Policy to Protect Due Process, 43 Ala.L.Rev. 1 (1991); Richard A. Seltzer, Punitive Damages in Mass Tort Litigation: Addressing the Problems of Fairness, Efficiency and Control, 52 Fordham L.Rev. 37 (1983); Special Project, An Analysis of the Legal, Social, and Political Issues Raised by Asbestos Litigation, 36 Vand.L.Rev. 573 (1983); Symposium, Punitive Damages, 40 Ala.L.Rev. 687 (1989); Symposium, Punitive Damages, 56 S.Cal.L.Rev. 1 (1982).

. Professor Prosser, a Reporter for the Restatement (Second) of Torts, conceded that punitive damages in mass torts present a "problem which has arisen to haunt the courts.” Noting the issue of multiple awards, he wrote: "The question might well lead to a re-examination of the whole basis and policy of awarding punitive damages.” William L. Prosser, The Law of Torts § 2, at 13 (4th ed. 1971). Indeed, a recent report to the American Law Institute suggests major alterations in the law of punitive damages. 2 American Law Inst., Reporters' Study on Enterprise Responsibility for Personal Injury: Approaches to Legal and Institutional Change 256-64 (1991).

. See E. Jeffrey Grube, Punitive Damages: A Misplaced Remedy, 66 S.Cal.L.Rev. 839, 850-55 (1993).

. The constitutionality of such provisions has been challenged in three of those states. In Gordon v. State, 585 So.2d 1033, 1035-36 (Fla.App.1991), aff'd, 608 So.2d 800 (Fla.1992), cert. denied, - U.S. -, 113 S.Ct. 1647, 123 L.Ed.2d 268 (1993), the Court found the Florida provision constitutional because a claimant does not have a cognizable right to the recovery of punitive damages. However, in McBride v. General Motors Corp., 737 F.Supp. 1563 (M.D.Ga.1990), and Kirk v. Denver Pub. Co., 818 P.2d 262 (Colo. 1991), the courts found statutes unconstitutional. McBride held that the Georgia statute violated the Equal Protection Clause because it only applied to product liability claimants and allowed non-product liability claimants to recover 100% of their awards. 737 F.Supp. at 1569-70. Kirk ruled that a punitive damages judgment is a private property right and that the Colorado statute is an unconstitutional taking of property. 818 P.2d at 272.

.Lester Brickman, The Asbestos Litigation Crisis: Is There a Need for an Administrative Alternative?, 13 Cardozo L.Rev. 1819, 1863-66 (1992).

. "[W]e do not believe that defendants should be relieved of liability for punitive damages merely because, through outrageous misconduct, they may have managed to seriously injure a large number of persons. Such a rule would encourage wrongdoers to continue their misconduct because, if they kept it up long enough to injure a large number of people, they could escape all liability for punitive damages.” Froud v. Celotex Corp., 107 Ill.App.3d 654, 63 Ill.Dec. 261, 264, 437 N.E.2d 910, 913 (Ill.App.1982), rev'd on other grounds, 98 Ill.2d 324, 74 Ill.Dec. 629, 456 N.E.2d 131 (Ill.1983).

. As one commentator explained, punitive damages seek "to deter a specific course of conduct by decreeing that a manufacturer already condemned to ‘death’ via bankruptcy for engaging in a course of conduct resulting in enormous compensatory liability, would again be condemned to extinction if the act were" particularly heinous. 'Dying’ a second time is certainly inconvenient and while the prospect may accelerate the rate of the 'first' death, that hardly constitutes deterrence.” Lester Brickman, supra, at 1864.

.The compilation of judgments that defendant provided to the court in this case lists a single punitive award for $150 million and other awards from 1989 and 1990 totaling approximately $113 million.

. In his dissertation prepared for the LLM program for Judges at the University of Virginia Law School, Judge Surrick concludes that punitive damages have no place in asbestos litigation. He says that balancing social and economic consequences mandates that conclusion. He also refers to "judge-made doctrines” of punitive damages in asbestos litigation and says that appellate courts should rise above parochial considerations. "When the reasons for a rule no longer exist, the rule should be abolished.” Honorable R. Barclay Surrick, Punitive Damages and Asbestos Litigation in Pennsylvania: Punishment or Annihilation?, 87 Dick.L.Rev. 265, 301 (1983).

. As Judge Weinstein has concluded: "overhanging th[e] massive failure of the present system is the reality that there is not enough money available from traditional defendants to pay for current and future claims. Even the most conservative estimates of future claims, if realistically estimated on the books of many present defendants, would lead to a declaration of insolvency...." In re Joint E. & S. Dist. Asbestos Litig., 129 B.R. at 751; see also Jack B. Weinstein & Eileen B. Hershenov, The Effect of Equity on Mass Tort Law, 1991 U.Ill.L.Rev. 269, 290 (“Our view is that from the beginning mass torts should be treated similarly to a bankruptcy proceeding. No matter how financially healthy the defendants in these huge cases, the sheer number of present and future victims means that we arc ultimately dealing with a limited compensation fund.”).

. The high transaction costs of asbestos cases that diminish the pool of available assets have been authoritatively documented. They arc also a very serious problem, but one that cannot be addressed here.

. Professor Owen, whose endorsement of punitive damages in products liability cases has been widely cited, see David G. Owen, Punitive Damages in Products Liability Litigation, 74 Mich.L.Rev. 1257, 1325 (1976), stated: "[0]nce the bankruptcy of the defendant manufacturer appears to be a real and imminent possibility, punitive damages should no longer be available at all.” It is interesting that in a later law review article, Professor Owen substantially modified his endorsement of punitive damages and cautioned against excessive awards. See David G. Owen, Problems in Assessing Punitive Damages Against Manufacturers of Defective Products, 49 U.Chi.L.Rev. 1 (1982).

. It is worth noting that two trial courts have recognized that punitive awards present a danger that available funds will be inadequate to pay compensatory damages.

Judge Marshal A. Levin of the Maryland Circuit Court of Baltimore City ordered that payment of punitive awards for approximately 8,500 plaintiffs in a consolidated proceeding be deferred until compensatory damages have been satisfied. Abate v. A.C. & S., Inc., No. 89236704, slip op. at 26 (Md.Cir.Ct. Baltimore City Dec. 9, 1992).

In a somewhat similar action, Judge Charles Weiner of the United States District Court for the Eastern District of Pennsylvania (to whom the multi-district panel has assigned some 30,000 federal asbestos cases) severs punitive damages claims from the compensatory ones. In ordering cases back to transferor courts for trial, Judge Weiner provides that "the issue of punitive damages must be resolved at a further date.” E.g., In re Asbestos Prods. Liab. Litig. (No. VI), No. MDL 875, slip op. at 2 (E.D.Pa. June 8, 1993) (order relating to No. 92-6377 from the Southern District of New York).

In reality, it is quite likely that in many instances the delay will result in payment of no punitive damages, or at a time so far in the future that many of the plaintiffs will no longer be alive.

. Dennis N. Jones, S. Brett Sutton & Barbara D. Greenwald, supra, at 23-32; David G. Owen, supra, 74 Mich.L.Rev. at 1325; Richard A. Seltzer, supra, at 83-91; Comment, Mass Liability and Punitive Damages Overkill, 30 Hastings L.J. 1797, 1800-08 (1979).

. See also Jim Fieweger, Note, The Need for Reform of Punitive Damages in Mass Tort Litigation: Juzwin v. Amtorg Trading Corp., 39 DePaul L.Rev. 775 (1990); N. Todd Leishman, Note, Juzwin v. Amtorg Trading Corp.: Toward Due Process Limitations on Multiple Awards of Punitive Damages in Mass Tort Litigation, 1990 Utah L.Rev. 439.

. Arguments can be made for distributing punitive awards among all who suffered from the defendants’ conduct — but that proposition is irrelevant in determining that, at some point, due process demands an end to punishment.

. See William W. Schwarzer, Punishment Ad Absurdum, 11 Cal.Law. 116 (1991) (“Surely allowing successive awards of punitive damages for the same conduct is offensive to the most basic notions of due process and to the spirit underlying the constitutional bar against double jeopardy. More important, it is poor public policy.”).

. John C. Jeffries, Jr., supra, at 154-58. The Amercements Clause of Magna Carta is discussed in detail in Browning-Ferris, 492 U.S. at 268-73, 109 S.Ct. at 2916-19. The majority recognized that the Amercements Clause limited abuses "by requiring that the amercement not be so large as to deprive him of his livelihood,” but concluded that such history did not justify the application of the Eighth Amendment to punitive awards in private suits. Id.

. A punitive award is dischargeable in bankruptcy unless a plaintiff can show that the bankrupt maliciously or willfully caused the plaintiff's *1405injury. 11 U.S.C. § 523(6). In strict liability cases, this standard is generally not met. 1 James D. Ghiardi & John J. Kircher, Punitive Damages: Law and Practice § 9.19 .(1983). Moreover, even if met, bankruptcy courts may exercise their equitable powers to deny such damages. See In re A.H. Robins Co., 89 B.R. 555 (E.D.Va.1988) (disallowing punitive damages because they would frustrate a successful reorganization of the company in this Daikon Shield case).

. The ALI Reporters Study calling for punitive damages reform notes that corporate wealth is typically spread among various corporate subsidiaries. Thus, it often is only an accident of the corporate structure that places this wealth in the hands of the particular defendant entity. American Law Inst., supra, at 254; see Victor E. Schwartz & Mark A. Behrens, The American Law Institute Reporters' Study on Enterprise Responsibility for Personal Injury: A Timely Call for Punitive Damages Reform, 30 San Diego L.Rev. (Fall 1993).