dissenting.
But for its decision not to have the jury in this case consider the punitive damages claims in light of the principles it suggests today, I would join the opinion of the Court. With the exception that I believe that the jury should be clearly convinced that the proofs measure up to the standard, I find myself in basic accord with the Court’s emphasis on the need to instruct juries on the purposes of punitive damages, the consideration of proportion in an award, the nature of conduct to be sanctioned, and the effect of prior awards in their deliberations. I also agree with the Court’s recognition of the importance of possible class disposition. I am also in accord with the Court’s view that the manufacturer’s conduct here would meet its test of “ ‘utter and reckless disregard of [the user’s] safety and well-being,’ ” ante at 661 (quoting 193 N.J.Super. 113, 131 (App.Div.1984)), or my own view of the test as involving “a conscious and outrageous indifference to the risks of marketing, manufacturing, or producing its product.” Infra at 679. I find in the conduct a conscious indifference to the worker’s well-being.
Still, whatever may be our views of the conduct involved, the parties should have the issues resolved in accordance with principles of broad application. Hence I choose to express my modest disagreement with the comprehensive and instructive guidance provided in the majority opinion, which guidance will, in itself, do much to advance the future resolution of these issues.
On another occasion I have expressed my views about the relationship of punitive damages to modern tort law. See *675Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37, 54-64 (1984) (O’Hern, J., concurring). I am occasioned to repeat many of those concerns here.
Since an early premise of punitive damages was that “one purpose of large awards was to prevent dueling,” Note, Exemplary Damages in the Law of Torts, 70 Harv.L.Rev. 517, 522 (1957) (footnote omitted), this doctrine bears careful scrutiny. In this context of products liability, I would root an award of punitive damages in its remaining valid purpose: respecting and insuring the dignity of the individual. Failure to shape the doctrine to modern tort law has caused it to fall into disrepute and prompted the call for abolition of punitive damages, particularly in the products-liability context.1 I continue to believe that a correctly structured doctrine of punitive damages can serve the interests of society. I express here the standards and guidelines that I believe necessary to deal effectively with punitive damages in the context of mass-exposure, products-liability litigation. To do so I must first review the purposes of the doctrine and its relation to our doctrine of products liability.
Punitive damages are said to be assessed in addition to compensatory damages to punish a defendant for the commis*676sion of an aggravated or outrageous act of misconduct and to deter the defendant and others from such conduct in the future. See Leimgruber v. Claridge Assocs., 73 N.J. 450, 454 (1977); see also Owen, Punitive Damages in Products Liability Litigation, 74 Mich.L.Rev. 1257, 1277-87 (1976) (examining the functions of punitive damages and their applicability to products-liability litigation). Tort law developed as an adjunct to criminal law; therefore, it was natural to include punishment and deterrence among its objectives. 1 F. Harper & F. James, The Law of Torts § 1.3, at 8 (1956). Punitive damages were thus one means by which early society sought to control injurious behavior that grossly violated accepted norms.
Punitive damages were originally associated with dignatory torts and outrageous acts to another’s reputation. The case that comes to mind concerning a person’s honor is one in which one person physically insults another, but without injury, thereby humiliating the victim. See Kiser v. Neumann Co. Contractors, Inc., 426 S.W.2d 935, 938 (Ky.1967). This notion of insult within the primitive doctrine of punitive damages would be expanded well beyond its original purpose and would be largely irrelevant if applied to modern consumer-products-liability law.
As noted, the classic punitive-damages claim arises from a single incident involving two parties, making it possible for a single jury to determine an appropriate punishment without considering the possibility of additional sanctions by other juries. Furthermore, punitive damages have always been appropriately recognized when there was no adequate recovery for a legal wrong. Huckle v. Money, 95 Eng.Rep. 768 (1763) (exemplary damages appropriate where King’s constable wrongfully detained plaintiff). The “sense of outrage and insult” encompassed in injuries inflicting emotional distress has been one of the driving forces in the development of punitive damages awards. Symposium Discussion — The History of Punitive Damages, 56 S.Cal.L.Rev. 155, 155 (1982). Our law may provide recompense for such injury in the form of emotion*677al suffering, provided that there is a sufficient nexus between the actor and the injured individual. Portee v. Jaffee, 84 N.J. 88, 98-99 (1980). With this as background, we approach the modem mass-exposure, products-liability case.
A. PUNITIVE DAMAGES ARE INAPPROPRIATE IN ORDINARY STRICT PRODUCTS-LIABILITY CASES
The history of punitive damages demonstrates that there is a strong doctrinal inconsistency in permitting a punitive-damages claim in an action based upon strict products liability. See Tozer, Punitive Damages and Products. Liability, 39 Ins. CounsJ. 300, 301 (1972). In a long series of cases, summarized in O’Brien v. Muskin Corp., 94 N.J. 169 (1983), this Court outlined its view of the purposes of strict products-liability law.' First, the underlying purpose is a shared concern about the proper allocation of the risk of loss upon all parties in the stream of commerce, id. at 181-84; second, strict liability is imposed in part to relieve plaintiffs sometimes overwhelming burdens of proof, id. at 179; and third, central to our analysis of strict tort liability is the premise that it is the condition of the product that determines liability, not the conduct of the manufacturer, id. at 180; see also Feldman v. Lederle Laboratories, 97 N.J. 429, 450 (1984) (“[Ejmphasis of the strict liability doctrine is upon the safety of the product, rather than the reasonableness of the manufacturer’s conduct. It is a product-oriented approach to responsibility”). In Freund v. Cellofilm Properties, Inc., 87 N.J. 229 (1981), the Court emphasized that even in failure-to-warn cases, the manufacturer’s liability is predicated not on the manufacturer’s conduct but on the safety of the product:
[O]nly safe products should be marketed — a safe product being one whose utility outweighs its inherent risk, provided that risk has been reduced to the greatest extent possible consistent with the product’s continued utility. [M at 238 n. 1.]
One of the judicial benefits of strict liability is the simplification of proof in complex tort litigation. See, e.g., Beshada v. *678Johns-Manville Prods. Corp., 90 N.J. 191, 209 (1982) (“salutary goals of [imposing strict liability include] increasing product safety research and simplifying tort trials”). Hence, in the asbestos context a central goal of Beshada is undermined if not lost entirely when each trial invites reexamination of what the asbestos industry knew about the product and when, rather than the safety of the product. See Brodeur, Annals of Law— the Asbestos Industry on Trial, The New Yorker (June 10, 1985-July 1, 1985). As noted, one of our goals in adopting strict liability was to meet the changing needs of society and to “eas[e] the burden of proof for a plaintiff injured by a defective product, a policy that is achieved by eliminating the requirement that the plaintiff prove the manufacturer’s negligence.” O’Brien v. Muskin Corp., supra, 94 N.J. at 179 (citing Keeton, Product Liability and the Meaning of Defect, 5 St. Mary’s L.J. 30, 34-35 (1973)). In a cause of action based upon a theory of strict liability we focus upon the product itself and not whether defendant “knew or should have known of the harmful attributes of its product while the product was under its control in order to charge it with that knowledge * * *. Once the product is deemed dangerous, the defendant’s lack of fault is irrelevant.” Michalko v. Cooke Color & Chem. Corp., 91 N.J. 386, 394-95 (1982) (citations omitted). Since the conduct of the manufacturer is largely irrelevant, in the ordinary strict liability case punitive damages are inappropriate.
B. PUNITIVE DAMAGES ARE APPROPRIATE IN CERTAIN CASES INVOLVING MASS EXPOSURE TO HIGHLY DANGEROUS SUBSTANCES OR MATERIALS
Notwithstanding that punitive damages are inappropriate in strict products-liability cases, there may be cases involving incidents of mass exposure to unsafe products that are so outrageous that they call for a societal imposition of sanctions that do more than just make the victims whole. I would *679recognize punitive damages in certain circumstances, such as mass-exposure, hazardous-substance cases, where the conduct of the manufacturer constitutes such an outrageous affront to the individual that punishment is necessary. In doing so, the modern use of punitive damages would be conformed to its ancient relationship to dignatory torts.
In so ruling, a court must develop an analytical framework to identify those cases in which the assessment of punitive damages is appropriate and to provide guidance for trial and appellate courts. I would hold that: (1) punitive damages should be based upon a finding that the actions of a manufacturer exhibit a conscious and outrageous indifference to the risk that its product may be excessively dangerous to consumers; (2) the factfinder must base this determination on clear and convincing evidence of such indifference; (3) juries must be carefully instructed of the measure of damages with specific standards that should relate to the unconscionable profit realized by the outrageous acts of the manufacturers; and (4) courts should, whenever possible, resolve the common question of liability for punitive damages at an early stage of the litigation as a class action.
(1) The Standard for Imposition of Punitive Damages
“The concept of punitive damages embodies a rule for individualized punishment of a wrongdoer whose conduct toward the plaintiff is particularly outrageous.” Collins v. Eli Lilly Co., 116 Wis.2d 166, 202, 342 N.W.2d 37, 54, cert. denied sub nom. E.R. Squibb & Sons, Inc. v. Collins, — U.S.-, 105 S.Ct. 107, 83 L.Ed.2d 51 (1984). If the manufacturer displays such a conscious and outrageous indifference to the risks of marketing, manufacturing, or producing its product, then punitive damages should be awarded. This indifference should equate with something more significant than “willful and wanton” conduct, a concept that our law has not sharply defined. See *680Krauth v. Israel Geller, 31 N.J. 270, 277 (1960).2 I recognize that the use of any verbal formula does not convey with unerring accuracy the concept that we wish to impart. To this extent, we are trapped in the language of the law. Commentators have pessimistically characterized such verbal variations as “negligence ‘with the addition of a vituperative epithet,’ ” Ellis, Fairness and Efficiency in the Law of Punitive Damages, 56 S.Cal.L.Rev. 1, 36 (1982) (quoting Wilson v. Brett, 152 Eng. Rep. 737, 739 (Ex.Ch.1842)).
Still we must try to give content to the phrase that we choose to impart the degree of failure of conduct that will warrant imposition of the sanction of punitive damages.
I believe that the phrase conscious indifference to the risks of marketing the product will convey the requirement that the manufacturer was aware of the risk at the time the product was marketed. This concept conveys an indifference to human values that I regard as essential to the imposition of punitive damages. “[T]he thing that outrages the juries in those cases is precisely the notion of the defendant manufacturer supposedly using consumers in the instrumentalist fashion for dollars.” Symposium Discussion, supra, 56 S.Cal.L.Rev. at 158. Such conduct is an insult to the personal well-being of the victim equivalent to that which prompted the early development of the doctrine. Punitive-damages awards are acceptable when the indifference and disregard exhibited by the manufacturer, who sees the consumer as a human test laboratory, constitute an affront to the dignity of the individual. See, e.g., Grimshaw v. Ford Motor Co., 119 Cal.App.3d 757, 174 Cal.Rptr. 348 (1981) ($3,500,000 punitive-damages award, which had been reduced from $125 million, upheld for marketing Ford Pinto *681with inherently dangerous gas tank when avoidance would have involved minimal costs).
I agree with the majority that in a products-liability action the concept of election of remedies does not preclude the imposition of punitive damages. In such an action, the plaintiff is relieved of the burden of proving knowledge of the dangerous propensity of the product, Freund v. Cellofilm Properties, Inc., supra, 87 N.J. at 244, but is not precluded from demonstrating in the risk-utility analysis that the manufacturer made a conscious choice to expose users to an unreasonable risk of harm that could have been avoided or minimized with a slight burden to the utility of the product.
In presenting the differing standards of conduct to a jury a court will confront some difficulties, but such difficulties will not be insurmountable.
(2) The Quality of Proof Required
Since awarding punitive damages in a products-liability case has such serious consequences, the burden of proof must reflect the gravity of the decision. Standards of proof are devices of the law that guarantee that the public will have confidence in the integrity of the decision. Santosky v. Kramer, 455 US. 745, 757, 102 S.Ct. 1388, 1396, 71 L.Ed.2d 599, 609 (1982). In assessing exemplary damages, common-law juries are asked to fulfill one of the most solemn roles of society, that of punishing its members. “[Pjarticularly careful scrutiny” is warranted when punitive damages are allowed. Roginsky v. Richardson-Merrell, Inc., 378 F.2d 832, 852 (2d Cir.1967). “Three jurisdictions have recently modified their punitive damages laws to provide that punitive damages may be awarded only if the plaintiff has proved by ‘clear and convincing evidence’ that the defendant acted with the requisite culpability. * * * [Another state] requires that plaintiffs prove their punitive damages claims beyond a reasonable doubt.” Wheeler, The Constitutional Case for Reforming Punitive Damages *682Procedures, 69 Va.L.Rev. 269, 296-97 (1983) (footnotes omitted). I believe that a party seeking punitive damages in this context should prove the requisite “ ‘outrageous’ conduct by clear and convincing proof.” Acosta v. Honda Motor Co., 717 F.2d 828, 839 (3d Cir.1983) (interpreting Virgin Islands law in absence of any existing precedent); accord Wangen v. Ford Motor Co., 97 Wis.2d 260, 297, 294 N.W.2d 437, 457 (1980); Model Uniform Prod. Liab. Act § 120(A), discussed in 44 Fed.Reg. 62,748 (1979). If society is to have confidence that under the circumstances the sanction is warranted, this standard of proof is necessary in awarding punitive damages.
(3) Standards and Measures for the Award of Punitive Damages
Historically, courts have been loath to inquire into the amount of jury verdicts for punitive damages. The inability or unwillingness of courts to deal with standards for punitive damages is a residue of the early history of common law. It was “at comparatively a recent period that the jury has relinquished its control over actions even of contract, and that any approach has been made to a fixed and legal measure of damages.” T. Sedgwick, A Treatise on the Measure of Damages 214 (1847), quoted in M. Horwitz, The Transformation of American Law, 1780-1860, at 83 (1977). Only by degrees was the principle recognized “ ‘that the amount of compensation [was] to be regulated by the direction of the court, and that the jury cannot substitute their vague and arbitrary discretion for the rules which the law lays down.’ ” Horwitz, supra, at 83 (quoting Sedgwick, supra, at 214). “The doctrine of exemplary damages is thus seen to have originated in a survival in this limited class of cases of the old arbitrary power of the jury.” 1 T. Sedgwick, A Treatise on the Measure of Damages § 349, at 689 (9th ed. 1912). Appellate records are replete with evidence that judges desperately seek guidance on this issue in instructing juries. Note, Exemplary Damages in The Law of Torts, supra, 70 Harv.L.Rev. at 529-30; see also Note, The Expand*683ing Availability of Punitive Damages in Contract Actions, 8 Ind.L.Rev. 668, 672 (1975) (lack of ascertainable standards responsible for reluctance of courts to interfere with punitive damages awards). I believe that guidance can be given to juries in their instructions. Instructions can include identification and examination of the recurring forms of marketing misbehavior that have been considered most deserving of punishment, such as fraudulent misconduct, knowing violations of safety standards, inadequate testing and manufacturing procedures, and failure to warn of known dangers before marketing as well as post-marketing failure to remedy known dangers. See Owen, Punitive Damages In Products Liability Litigation, supra, 74 Mich.L.Rev. at 1329-52, 1369-70.
In addition to marketing misbehavior, juries should balance society’s interests against the defendant’s interests. Factors to consider include the severity of threatened harm, the degree of reprehensibility of defendant’s conduct, the profitability of the conduct, the financial condition of the enterprise, the amount of compensatory damages assessed, the cost of litigation, the potential criminal sanctions, and other civil actions against the defendant based on the same conduct.
In this way, trial courts could give greater content to the framework within which a jury should assess punitive damages. The jury should be instructed about the purposes of the doctrine, which do not include giving plaintiffs a windfall; that in products-liability cases recovery of punitive damages should be based upon the extent to which the manufacturer’s marketing conduct exhibits a conscious or reckless indifference to the risk that its product may be excessively dangerous to consumers; that the jury’s imposition of sanctions should serve to shape the manufacturer’s conduct to reflect its concern for human values without diminishing the utility of the mass-produced merchandise. Furthermore, one of the underlying, unwritten premises of awarding punitive damages is that plaintiffs are often under-compensated by compensatory damages. Expenses of litigation, counsel fees, and expert fees are extremely high and *684burden plaintiffs. A candid recognition of this issue would be consistent with reality. Finally, some consideration of the relationship of an award of punitive damages to an award of compensatory damages is appropriate and should be brought to the jury’s attention. Nappe, supra, 97 N.J. at 55-57 (O’Hern, J., concurring).
(4) Management of Punitive Damages in Multi-Party Litigation
The remaining issue, although not raised below, concerns how to resolve the problem of punitive damages in multiple-lawsuit, multi-party litigation. The basic principles of justice — that claimants be treated fairly, that litigation must come to an end, and that a party cannot be repeatedly sued on the same cause of action — are violated by excessive multiple punishments.
Punitive damages may be inappropriate in situations where numerous plaintiffs file suit against the same defendant for damages arising out of a single “mass disaster.” Long, Punitive Damages: An Unsettled Doctrine, 25 Drake L.Rev. 870, 887 (1976). First, one plaintiff can collect a substantial award, thereby affecting another who may be equally deserving of such an award. Second, punitive damages are to “reflect the total penalty which must be imposed to punish and deter the defendant.” Bartolo v. Boardwalk Regency Hotel Casino, Inc., 185 N.J.Super. 534, 545 (Law Div.1982) (citing Leimgruber v. Claridge Assocs., supra, 73 N.J. at 454). Third, courts should not relitigate identical issues or inflict repeated punishment for the same offense. Finally, by determining punitive damages on a case-by-case basis, courts are consuming their judicial resources.
In order to avoid such problems, whenever possible, all punitive-damages claims should be pursued together in one class action. See Putz & Astiz, Punitive Damage Claims of Class Members Who Opt Out: Should They Survive?, 16 U.S.F.L. Rev. 1, 29-31 (1981); see also Morris, Punitive Damages in *685Tort Cases, 44 Harv.L.Rev. 1173, 1194 (1931) (“When a defendant’s conduct results in harm to more than one plaintiff there are no difficulties if there is but one suit”); Roginsky v. Richardson-Merrell, Inc., supra, 378 F.2d at 839-40 n. 11. (“If there were any way in which all cases could be assembled before a single court * * * it might be possible for a jury to make one award to be held for appropriate distribution among all successful plaintiffs”).3
Such a resolution would call for a court to play a more active role in the management of complex multi-party litigation of this type. It is simply impossible for a legal system to approach these problems in the way in which it previously considered lawsuits between individuals. See, e.g., Rosenberg, The Causal Connection in Mass Exposure Cases: A “Public Law” Vision of the Tort System, 97 Harv.L.Rev. 849, 852 (1984) (if “complex damage actions against manufacturers of toxic agents are tried under traditional methods of case-by-ease adjudication, they will likely consume hundreds of millions of dollars’ worth of public and private resources”); Trangsrud, Joinder Alternatives in Mass Tort Litigation, 70 Cornell L.Rev. 779, 781-82 (1985) (“The perceived inefficiencies, costs, and delays associated with mass tort litigation have provoked calls for reform * * * ”). Traditionally, courts that adjudicate the rights of many parties *686to litigation, as in bankruptcy, trusts and estates, or other institutional settings, have undertaken such roles.
The advantages of the class action would be many and varied. A class-action disposition would provide the most practical means of attacking the problems of mass-exposure litigation and punitive-damages claims. It would thus be possible to “determine the rights of a large group of similarly interested claimants in a single proceeding.” See Seltzer, Punitive Damages in Mass Tort Litigation: Addressing the Problems of Fairness, Efficiency and Control, 52 Fordham L.Rev. 37, 63 (1983).
Unlimited multiple punishment for a single act “determined in a succession of individual lawsuits and bearing no relation to the defendants’ culpability or the actual injuries suffered by victims * * * would violate the sense of ‘fundamental fairness’ that is essential to constitutional due process.” In Re Federal Skywalk Cases, 680 F.2d 1175, 1188 (8th Cir.1982) (citing Roginsky v. Richardson-Merrell, Inc., supra, 378 F.2d at 838-41, and Putz & Astiz, supra, 16 U.S.F.L.Rev. at 29-31). By settling the punitive-damages issue in one proceeding, the defendant’s entire liability would be determined, individual class claimants would receive a fair share of the sanction, and no further litigation of the issue would be needed.
Class actions would promote the legal system’s productivity in dealing with mass-exposure litigation. The purpose of class treatment of viable mass-exposure claims would not be to reallocate resources, but rather to conserve them for more productive use by reducing litigation and administration costs, thus awarding more benefits to the victim. See Rosenberg, supra, 97 Harv.L.Rev. at 910.
The majority cites studies that “show that between eleven million and thirteen million workers have been exposed to asbestos.” Ante at 663. Other studies indicate that in the last forty years, over 21 million Americans have been significantly exposed to asbestos. See Jackson v. Johns-Manville *687Sales Corp., 750 F.2d 1314, 1323 (5th Cir.1985). Not unexpectedly, more money is channelled to the expenses of litigation than to the expenses of the victims for recovery. Costs of adjudication in asbestos litigation total $1.59 to every $1 provided to a victim. Newman, Rethinking Fairness: Perspectives on the Litigation Process 7-8 (1984) (Thirty-ninth Benjamin N. Cardozo Lecture) (citing Kakalik, Ebener, Felstiner, Haggstrom & Shanley, Variation in Asbestos Litigation, Compensation and Expenses 89, Table 9.3 (Institute for Civil Justice, Rand Corp. 1984)).
As of January 1985, there were approximately 467 pending mass-exposure-asbestos claims in the United States District Court for the District of New Jersey. In the Superior Court of New Jersey there were approximately 1,316 personal-injury claims represented in 392 docketed asbestos cases venued in Middlesex County alone. Obviously, some of these docketed cases will be adjudicated before others. The class action would be fairer to all victims. Since punitive damages awarded in prior suits are a factor to be considered in determining the amount of such damages, Bartolo v. Boardwalk Regency Hotel Casino, Inc., supra, 185 N.J.Super. at 545 (citing 4 Restatement (Second) of Torts § 908 comment (e) (1979)), early litigators will be setting the trend by fixing money awards at the risk of victims who recover less later.4 By allowing a class action in New Jersey, this Court would be promoting judicial economy by centralizing the litigation in the court that will adjudicate those primary issues related to the case. In Re Federal Sky walk Cases, supra, 680 F.2d at 1186. I would not represent that we can undertake to resolve the national problems of asbestos litigation. See In re School Asbestos Litig., *688789 F.2d 996, 1008 (3d Cir.1986) (certification of nationwide class of punitive-damages claims related to property losses overruled). I also recognize that individual claimants have an important interest in separate trial of personal claims.
Still, this Court has recognized a duty to deal with mass-exposure litigation. Beshada v. Johns-Manville Prods. Corp., supra, 90 N.J. 191; Gold v. Johns-Manville Sales Corp., 553 F.Supp. 482 (D.N.J.1982). Resolution of mass-exposure litigation can best be achieved by narrowing the issues that must be litigated.
The justifications for imposing punitive damages include deterring outrageous conduct in the future, punishing such conduct, expressing society’s disapproval of such outrageous conduct, and providing incentives for private civil enforcement. Mallor & Roberts, Punitive Damages: Toward a Principled Approach, 31 Hastings L.J. 639, 647-50 (1980). Class certification will achieve these goals. In addition, class-action certification will save time and money for the parties and for the public and will help courts to resolve multiple lawsuits and to manage multi-party litigation in the punitive-damages setting.
In this case, because the trial court’s charge to the jury was in terms of a mere preponderance of proof that the conduct of Johns-Manville met its test, and did not contain what I believe to be the necessary further definition of the appropriate standards for imposition of punitive damages, the judgment for punitive damages should be reversed and remanded for further proceedings. I would invite consideration of certifying the punitive-damages claims for class disposition.
For affirmance — Justices CLIFFORD, HANDLER and POLLOCK — 3.
For reversal — Justices O’HERN and GARIBALDI — 2.
New Jersey Assembly Bill No. 2401, as well as other measures introduced on May 5, 1986, concerns changes in the collateral source rule, punitive damages awards, product liability actions, and joint and several liability. On the federal side, S. 1999, A Bill to Regulate Interstate Commerce by Providing for a Uniform Product Liability Law and For Other Purposes, is in the Senate Committee on Commerce, Science, and Transportation. California’s voters have adopted Proposition 51 to curtail punitive-damages claims against municipalities. See Cal.Civ.Code §§ 1431, 1431.1-1431.5 (adopted in June 3, 1986, primary election) (cited in Brown v. Superior Court, 182 Cal.App. 3d 1125, 1144 n. 5, 227 Cal.Rptr. 768, 780 n. 5 (1986)). Justice Rehnquist has noted that "a significant number of American jurisdictions refuse to condone punitive damages awards.’’ Smith v. Wade, 461 U.S. 30, 59, 103 S.Ct. 1625, 1642, 75 L.Ed.2d 632, 653 (1983) (Rehnquist, J., dissenting); see also Product Liability Act: Hearing Before the Subcommittee on the Consumer of the Committee on Commerce, Science, and Transportation, 99th Cong., 1st Sess. 27-29 (1985) (availability of punitive damages); id. at 94, 103 S.Ct. at 1659 (increased difficulty of obtaining punitive damages under S. 100).
In some contexts, we have employed this concept but have sharply limited it to situations in which a jury is dealing with average human behavior and canvassing ordinary conduct that is well within the norm of everyday experience. Mahoney v. Carus Chem. Co., 102 N.J. 564 (1986) (firemen’s rule); see also Foldi v. Jeffries, 93 N.J. 533, 549-50 (1983) (parental immunity).
Those courts that have resisted class-action remedies have basically been involved with cases that present problems of different laws not resolvable in one forum. The rights of a Dalkon-Shield-IUD victim in California may differ from the rights of one in Iowa. In re Northern Dist. of Calif., Daikon Shield IUD Prods. Liab. Litig. 693 F.2d 847, 852-54 (9th Cir.1982), cert. denied sub nom. A.H. Robins Co. v. Abed, 459 U.S. 1171, 103 S.Ct. 817, 74 L.Ed.2d 1015 (1983). 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.? See Sugarman, Doing Away with Tort Law, 73 Calif.L.Rev. 555, 602 (1985). The Agent Orange case demonstrated the feasibility of applying a federal common law in certain situations. In re “Agent Orange" Prod. Liab. Litig., 100 F.R.D. 718, 724-26 (E.D.N.Y.1983), mandamus denied, 725 F.2d 858 (2d Cir.), cert. denied, 465 U.S. 1067, 104 S.Ct. 1417, 79 L.Ed.2d 743 (1984); but see In re School Asbestos Litig., 789 F.2d 996, 1005-07 (3d Cir.1986).
It is naive to assume that manufacturers would want to introduce evidence of this nature in the liability trial. Perhaps the issue can be considered separately or in judicial evaluation of the award.