Foreward: The Use and Control of Punitive Damages

Punitive damages are on the march.Almost overnight, they seemed to spring from nowhere onto center stage in private litigation of virtually every type.'In the very recent past, punitive damages have spread into more and more corners of civil litigation, such as admiralty, 2 insurer bad faith, 3 business torts of various types, 4 drunk driving, 5 and professional malpractice, 6 to name only a few.Perhaps the area of tort litigation most pervasively affected by the spread of punitive damages is products liability.7 Punitive t Professor of Law, University of South Carolina.The author would like to acknowledge that his colleagues, Pat Hubbard and Dennis Nolan, were of no help whatsoever in the preparation of this Foreword.1. See, e.g., Schwartz, Deterrence and Pumshment in the Common Law of Punitive Damages.A Comment, 56 S. CAL.L. REV.133, 133 (1982) ("[punitive damages] are now dramatically awarded in cases in which liability of any sort would have been almost out of the question merely fifteen years ago").See generally Symposum: Punitive Damages, 56 S. CAL.L. REV. 1 (1982) (analysis of fairness and efficiency of punitive damages) [hereinafter cited as Symposiuml.2. See, e.g., Dyer v. Merry Shipping Co., 650 F.2d 622 (5th Cir.1981) (punitive damages may be recovered under general maritime law for willful and wanton creation or maintenance of unseaworthy conditions).3. See, e.g., Neal v. Farmers Ins.Exch., 21 Cal.3d 910, 582 P.2d 980, 148 Cal.Rptr.389 (1978) (punitive damages may be awarded where insurer acts with oppression in denying its insured a reasonable settlement).4. See, e.g., Miley v. Oppenheimer & Co., 637 F.2d 318 (5th Cir.1981) (stockbroker "churned" client's account).5. See, e.g., Taylor v. Superior Court, 24 Cal.3d 890, 598 P.2d 854, 157 Cal.Rptr.693 (1979) ("conscious disregard of the probable dangerous consequences" of drunk driving may constitute "malice" and warrant punitive damages).6.Nelson v. Gaunt, 125 Cal.App.3d 623, 178 Cal.Rptr.167 (1981) (doctor knowingly administered illegal medical procedure).7.Among the considerable writing on this aspect of the topic, I am most familiar with Owen, Problems in Assessing Punitive Damages Against Manufacturers of Defective Products, 49 U. CHI.L. REV. 1 (1982) [hereinafter cited as Problems]; and Owen, Punitive Damages in Products Liability Litigation, 74 MICH.L. REV.1257 (1976) [hereinafter cited as Punitive Damages].A helpful, more recent article is Seltzer, Punilive Damages in Mass Tort Litigation.Addressing the Problems of Fairness, Ejfiency and Control, 52 FORDHAM L. REV.37 (1983); see also Meyers & Barrus, Punitive Damages in Products Liability Cases.A Survey, 51 INS.COUNS.J.