[*] Managing partner of the law firm of Rumberger, Kirk & Caldwell in Tallahassee, Florida. The author is a graduate of Eckerd College and the University of Virginia School of Law. He represents the Florida Chamber of Commerce and affiliated business interests in tort reform efforts before the Florida Legislature. He wishes to express his appreciation to his law partner, Ms. Mary Chaisson, and Mr. David Ramba of the Florida League of Cities, for their invaluable assistance in preparing this article. Return to text.

[1] See William A. Worthington, The "Citadel" Revisited: Strict Tort Liability and the Policy of Law, 36 S. TEX. L. REV. 227, 229 & n.8 (1995). A "tort" is a "private or civil wrong or injury, including action for bad faith breach of contract, for which the court will provide a remedy in the form of an action for damages." BLACK'S LAW DICTIONARY 1489 (6th ed. 1990). Return to text.

[2] See Worthington, supra note 1, at 262-63. Return to text.

[3] Worker's compensation (FLA. STAT. ch. 440 (1997)) and automobile no-fault (FLA. STAT. §§ 627.730-.7405 (1997)) are two examples of social welfare programs that have displaced parts of Florida's tort law system. In these and other similar instances, the welfare program guarantees compensation without regard to fault, in exchange for relinquishing traditional common law rights to sue in tort for personal injuries. See Seaboard Coast Line R.R. v. Smith, 359 So. 2d 427, 429 (Fla. 1978); American Freight Sys., Inc. v. Florida Farm Bureau Cas. Ins. Co., 453 So. 2d 468, 470 (Fla. 2d DCA 1984). Under Florida's present tort system, however, some claimants can receive compensation without regard to the fault of the defendant, as in the dangerous instrumentality doctrine, or collect 100% of economic damages against a defendant only 5% at fault for those damages. See FLA. STAT. § 768.81 (1997). Yet, these same claimants retain all traditional common law remedies in tort. See id. Return to text.

[4] See Livingston v. Smalley Transp. Co., 603 So. 2d 526, 528 (Fla. 3d DCA 1992); City of Tamarac v. Garchar, 398 So. 2d 889, 897 (Fla. 4th DCA 1981), overruled on other grounds, 502 So. 2d 1241 (Fla. 1987) (finding that the jury never clearly determined fault because they were not provided with intoxication instructions). Return to text.

[5] Florida repealed its 12-year-old statute of repose in 1986 by deleting it from section 95.03(2), Florida Statutes. See FLA. STAT § 95.03(2) (1985); see also Owens-Corning Fiberglass Corp. v. Corcoran, 679 So. 2d 291, 291 (Fla. 3d DCA 1996); Alfred W. Cortese, Jr. & Kathleen L. Blaner, The Anti-Competitive Impact of U.S. Product Liability Laws: Are Foreign Businesses Beating Us at Our Own Game?, 9 J.L. & COM. 167, 175 & n.47 (1989). Return to text.

[6] See Fabre v. Marin, 623 So. 2d 1182, 1187 (Fla. 1993) (holding that joint and several liability is abolished only as to noneconomic damages). Return to text.

[7] See W. R. Grace & Co.—Conn. v. Waters, 638 So. 2d 502, 504 (Fla. 1994) (holding that prior punitive damages assessed against the defendant do not preclude subsequent awards against the same defendant for injuries arising from the same conduct). Return to text.

[8] Fla. HB 2117 (1997). Return to text.

[9] See FLA. H.R. RULE 96 (1996-98). Return to text.

[10] See Kirk W. Dillard, Illinois' Landmark Tort Reform: The Sponsor's Policy Explanation, 27 LOY. U. CHI. L.J. 805, 809 nn.1, 16-17 (1996). Return to text.

[11] See id. at 809 n.17. Return to text.

[12] See BRIAN J. OSTROM & NEAL B. KAUDER, EXAMINING THE WORK OF STATE COURTS, 1995: A NATIONAL PERSPECTIVE FROM THE COURT STATISTICS PROJECT 24 (1996). Return to text.

[13] See Dillard, supra note 10, at 809 n.16. Return to text.

[14] See Worthington, supra note 1, at 250; Dillard, supra note 10, at 811 n.27. Return to text.

[15] See PETER W. HUBER & ROBERT E. LITAN, THE LIABILITY MAZE: THE IMPACT OF LIABILITY LAW ON SAFETY AND INNOVATION 3 (1991). Return to text.

[16] Id. (citation omitted). Return to text.

[17] See id. at 7-8. Return to text.

[18] See id. Return to text.

[19] See Worthington, supra note 1, at 245-49. Return to text.

[20] See Cortese & Blaner, supra note 5, at 173-86. Return to text.

[21] See id.; Worthington, supra note 1, at 230, 245-53. Return to text.

[22] See MASON DIXON & HANK FISHKIND, NATIONAL FEDERATION OF INDEPENDENT BUSINESS SURVEY OF FLORIDA BUSINESS (1997) (presented at the FAIR Press Conference on April 15, 1997) (on file with Fla. St. U. L. Rev., Tallahassee, Fla.) [hereinafter SURVEY]. The survey was taken from 772 business owners and executives from Florida firms with less than 500 employees. The interviews were conducted by telephone from March 24 through April 10, 1997. See also HENRY H. FISHKIND, EXECUTIVE SUMMARY: ECONOMIC EFFECTS OF TORT REFORM ON FLORIDA'S ECONOMY (1997) (on file with Fla. St. U. L. Rev., Tallahassee, Fla.) [hereinafter EXECUTIVE SUMMARY]. Return to text.

[23] See SURVEY, supra note 22, at 7. Return to text.

[24] See EXECUTIVE SUMMARY, supra note 22, at 2. Return to text.

[25] See id. at 3; see also SURVEY, supra note 22, at 4. Return to text.

[26] See EXECUTIVE SUMMARY, supra note 22, at 3; see also, SURVEY, supra note 22, at 5. Return to text.

[27] See SURVEY, supra note 22, at app. 5. Return to text.

[28] See EXECUTIVE SUMMARY, supra note 22, at 2. Dr. Fishkind's summary of findings showed that almost 68% of the businesses surveyed named liability reform as one of the top three issues to be addressed by the Legislature, and another 31% ranked it among the top 10 issues. Return to text.

[29] See THOMAS J. CAMPBELL ET AL., LIABILITY REFORMS' CAUSES AND ECONOMIC IMPACTS: SOME EMPIRICAL EVIDENCE 27 (National Bureau of Econ. Research Working Paper, No. 4989, 1995). Return to text.

[30] See id. Return to text.

[31] See id. Return to text.

[32] See id. Return to text.

[33] See id.; see also Dillard, supra note 10, at 816 n.43. Return to text.

[34] See George L. Priest, Products Liability Law and the Accident Rate, in LIABILITY: PERSPECTIVES AND POLICY 184 (1988); Fla. HB 2117 (1997). The FAIR Bill does not create absolute bars to liability or cap damages. The statute of repose is, at most, a temporal limitation to suit, not a complete bar to liability. See id. Return to text.

[35] See Fla. H.R. Comm. on Educ. Servs., PCB 97-06 (1997) (Economic Impact Statement of Apr. 14, 1997) (on file with comm.). Return to text.

[36] See, e.g., Livingston v. Smalley Transp. Co., 603 So. 2d 526, 528 (Fla. 3d DCA 1992) (holding that the defendant could be held liable for the accident even though the driver was 50% at fault and there was evidence to suggest that the driver was under the influence of alcohol); see also FLA. STAT. § 768.81 (1997). Return to text.

[37] See SURVEY, supra note 22, at App. 5; George L. Priest, The Modern Expansion of Tort Liability: Its Sources, Its Effects and Its Reform, 5 J. ECON. PERSPECTIVES 31, 31 (1991). Return to text.

[38] See Walt Disney World Co. v. Wood, 515 So. 2d 198, 202 (Fla. 1987). Return to text.

[39] See HUBER & LITAN, supra note 15, at 5. Return to text.

[40] "[I]f courts had been attaching liability on grounds of accident prevention, then claims and claims payouts would have mirrored the accident rate." Id. at 5 (citation omitted). Return to text.

[41] See Louisville and Nashville R.R. v. Yniestra, 21 Fla. 700, 729 (1886). Return to text.

[42] See id. Return to text.

[43] Id. Return to text.

[44] See Pamela Burch Fort et al., Florida's Tort Reform: Response to a Persistent Problem, 14 FLA. ST. U. L. REV. 505, 508-09 (1986). Return to text.

[45] Id. at 508. Return to text.

[46] Id. at 509. Return to text.

[47] See id. Return to text.

[48] 280 So. 2d 431 (Fla. 1973). Return to text.

[49] Id. at 437. Return to text.

[50] Id. at 439 (emphasis omitted). Return to text.

[51] Id. at 438. Return to text.

[52] See id. (holding that "[i]f plaintiff and defendant are both at fault, the former may recover, but the amount of his recovery may be only such proportion of the entire damages plaintiff sustained as the defendant's negligence bears to the combined negligence of both the plaintiff and the defendant"). Return to text.

[53] See id. at 439. Return to text.

[54] See id. Return to text.

[55] See id. Return to text.

[56] See FLA. STAT. § 768.81(3) (1997). Return to text.

[57] 515 So. 2d 198 (Fla. 1987). Return to text.

[58] See id. at 199. Return to text.

[59] See id. Return to text.

[60] See id. at 202. Return to text.

[61] See Tort Reform and Insurance Act, ch. 86-160, § 60, 1986 Fla. Laws 695, 755 (amending FLA. STAT. § 768.81(3) (1985)). As for noneconomic damages, "each defendant is liable for only his own percentage share of noneconomic damages." Smith v. Department of Ins., 507 So. 2d 1080, 1091 (Fla. 1987); see also FLA. STAT. § 768.81(2) (1997). As for economic damages, "with respect to a party whose percentage of fault equals or exceeds that of a particular claimant, the court shall enter judgment . . . against that party on the basis of the doctrine of joint and several liability." Id. § 768.81(3). Joint and several liability continues to apply to all actions in which damages (economic/noneconomic) do not exceed $25,000. See FLA. STAT. § 768.81(5) (1997). Return to text.

[62] See FLA. STAT. § 768.81 (1997). In his dissent in Walt Disney World, Justice McDonald explained the intrinsic unfairness of combining comparative fault with joint and several liability in Florida's tort system:

The doctrines of joint and several liability and contributory negligence are consistent with each other. Each tortfeasor, as a part of the whole, is liable for the whole. Comparative negligence, which does not bar, but reduces a recovery to the extent of individual fault, requires a separation of fault between the injured party and the other tortfeasors. It would be a mismatch of legal concepts to have a separation theory for the plaintiffs and joint liability responsibility for defendants. Comparative negligence recognized the ability of a court to determine and apportion damages in relation to the harm caused. Joint and several, in contrast, presumes the inability of the judiciary to divide fault among parties. We have now said that we can. Accordingly, when the comparative negligence doctrine comes into play, as it did in this case, the law of joint and several liability should be repudiated and each defendant held accountable for only the percentage of damage determined by the trier of fact to have been caused by his conduct. Id. at 202 (McDonald, J., dissenting). Return to text.

[63] See West v. Caterpillar Tractor Co., 336 So. 2d 80, 89 (Fla. 1976) (holding that "a manufacturer may be liable under the theory of strict liability in tort, as distinct from breach of implied warranty of merchantability"). Return to text.

[64] Ford Motor Co. v. Hill, 404 So. 2d 1049, 1052 (Fla. 1981) (holding that because collisions are foreseeable events, "the scope of the liability should be commensurate with the scope of foreseeable risks"). Return to text.

[65] See Kraemer v. General Motors Acceptance Corp., 572 So. 2d 1363, 1365 (Fla. 1990); see also Susco Car Rental Sys. v. Leonard, 112 So. 2d 832, 837 (Fla. 1959). Return to text.

[66] See FLA. STAT. § 95.11 (1997) (providing for a four-year statute of limitation for product liability actions, without a statute of repose); see also Owens-Corning Fiberglass Corp. v. Corcoran, 679 So. 2d 291, 291 (Fla. 3d DCA 1996). Return to text.

[67] See OSTROM & KAUDER, supra note 12, at 26. Return to text.

[68] See Florida Chamber of Com., Issue Brief: Characteristics of the Disposition of Negligence Cases in Florida, 1980-94, in FLORIDA'S COMPARATIVE FAULT LAW 8-11 (1995) (an economic consulting services special report prepared for the Florida Chamber of Commerce). Return to text.

[69] See JURY VERDICT RES. SERV., 1997 FLORIDA VERDICT SURVEY 12 (Lynn Godfrey & Traci Stocker eds., 1997). Return to text.

[70] See id. at 13. Return to text.

[71] Repub., Clearwater. Return to text.

[72] See Fla. HB 2117, § 2 (1997). Return to text.

[73] See id. § 3. Return to text.

[74] See id. § 4. Return to text.

[75] See id. § 8. Return to text.

[76] See id. § 6. Return to text.

[77] See id. § 7. Return to text.

[78] 336 So. 2d 80 (Fla. 1976). Return to text.

[79] See id. at 89. Return to text.

[80] Id. Return to text.

[81] See Auburn Mach. Works Co. v. Jones, 366 So. 2d 1167, 1169 (Fla. 1979). Among the factors that must be considered in this analysis are:

"(1) the usefulness and desirability of the product, (2) the availability of other and safer products to meet the same need, (3) the likelihood of injury and its probable seriousness, (4) the obviousness of the danger, (5) common knowledge and normal public expectation of danger (particularly for established products), (6) the avoidability of injury by care in use of the product (including the effect of instructions or warnings), and (7) the ability to eliminate the danger without seriously impairing the usefulness of the product or making it unduly expensive."

Id. at 1170 (quoting an uncited article by Dean Wade). See also Huddell v. Levin, 537 F.2d 726, 735 (3d Cir. 1976); see generally Radiation Tech., Inc. v. Ware Constr. Co., 445 So. 2d 329, 331 (Fla. 1983); Cassisi v. Maytag Co., 396 So. 2d 1140, 1145-46 & n.9 (Fla. 1st DCA 1981). Return to text.

[82] FLORIDA STANDARD JURY INSTRUCTIONS IN CIVIL CASES § PL 5 (1997). Return to text.

[83] See generally Cortese & Blaner, supra note 5, at 187 & nn. 118-121. Return to text.

[84] Worthington, supra note 1, at 247 (citation omitted). Return to text.

[85] Florida's 12-year statute of repose for strict products liability claims was repealed in 1986. See Owens-Corning Fiberglass Corp. v. Corcoran, 679 So. 2d 291, 291 (Fla. 3d DCA 1996); see also Cortese & Blaner, supra note 5, at 175 & n.47. Return to text.

[86] See Cortese and Blaner, supra note 5, at 187-91. A design engineer in Florida is faced with an intractable dilemma due to this exposure for unlimited product liability. If an engineer develops a simple, inexpensive way to improve the safety of a 20-year-old widget, the present state of Florida law discourages that innovation. If a product liability suit is brought seeking damages for personal injuries arising from use of the 20-year-old widget, the plaintiff lawyer will use the newer, safer design as proof that the earlier design was "unreasonably dangerous." Thus, the perpetual risk of liability concerning the older widget creates disincentives to the improvement of that product. See id. Return to text.

[87] See Piper Aircraft Seeks Chapter 11 Protection, N.Y. TIMES, July 4, 1991, at D1. Return to text.

[88] See id. In 1970, private aircraft manufacturers produced 17,000 planes. In 1987, they produced less than 1100 planes. See Worthington, supra note 1, at 249. In large part because of the risk of perpetual product liability in the aircraft industry, thousands of aircraft workers were laid off, unemployment in the industry was over 50%, and the cost of liability insurance averaged $100,000 per plane produced. See W. KIP VISCUSI, REFORMING PRODUCTS LIABILITY 8 (1991). In response to this liability crisis, Congress passed the General Aviation Revitalization Act of 1994, which was signed into law on August 17, 1994. It created an 18-year statute of repose in actions against manufacturers of general aviation aircraft. See General Aviation Revitalization Act of 1994, Pub. L. No. 103-298, 108 Stat. 1552 (1994). Return to text.

[89] See Fla. HB 2117, § 2 (1997). Return to text.

[90] Pullum v. Cincinnati, Inc., 476 So. 2d 657, 659 (Fla. 1985). Return to text.

[91] Id. at 660. Return to text.

[92] See GA. CODE ANN. § 51-1-11(b)(2) (1997). Return to text.

[93] See ILL. COMP. STAT. ANN. 5/13-213(c)(1) (West 1997). Return to text.

[94] The statute cannot constitutionally be applied to situations where a person uses or consumes a product that inflicts injury within the 12-year period (giving rise to an accrued cause of action), but where injury does not manifest itself until after the period of repose. See Conley v. Boyle Drug Co., 570 So. 2d 275, 283 (Fla. 1990); Diamond v. E. R. Squibb & Sons, Inc., 397 So. 2d 671, 672 (Fla. 1981); Pullum, 476 So. 2d at 659. Return to text.

[95] See Fla. HB 2117, § 2 (1997). Return to text.

[96] See id. Return to text.

[97] See id. § 3. Return to text.

[98] See Kraemer v. General Motors Acceptance Corp., 572 So. 2d 1363, 1367 (Fla. 1990); Susco Car Rental Sys. v. Leonard, 112 So. 2d 832, 835-36 (Fla. 1959) (holding the owner of a car liable when the owner consents to the use of the vehicle "beyond his own immediate control"); Lynch v. Walker, 31 So. 2d 268, 271 (Fla. 1947). Return to text.

[99] See Susco Car Rental Sys., 112 So. 2d at 835-36. Return to text.

[100] See Meister v. Fisher, 462 So. 2d 1071 (Fla. 1984) (golf carts); Paterson v. Deeb, 472 So. 2d 1210 (Fla. 1st DCA 1985) (holding the owner liable for the conduct of the thief); see also Gomez v. Avis Rent A Car Sys., Inc., 596 So. 2d 510 (Fla. 3d DCA 1992); Stupak v. Winter Park Leasing, Inc., 589 So. 2d 396 (Fla. 5th DCA 1991); Lambert v. Indian River Elec., Inc., 551 So. 2d 518 (Fla. 4th DCA 1989); Michalek v. Shumate, 524 So. 2d 426 (Fla. 1988); Tribbitt v. Crown Contractors, Inc., 513 So. 2d 1084 (Fla. 1st DCA 1987). Return to text.

[101] W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS 523-24 (5th ed. 1984). Return to text.

[102] 617 So. 2d 1051, 1053 (Fla. 1993) (stating that "[i]t appears that Florida is the only jurisdiction that imposes . . . strict vicarious liability upon the owner of a motor vehicle who voluntarily entrusts it to another"). Return to text.

[103] See Hoffman v. Jones, 280 So. 2d 431, 438 (Fla. 1973). Return to text.

[104] FLA. STAT. § 768.81 (1997). Return to text.

[105] See Act Effective Oct. 1, 1986, ch. 86-229, 1986 Fla. Laws 1771, 1772 (amending FLA. STAT. § 324.021 (9) (1985)). Return to text.

[106] See Kitchen v. K-Mart Corp., 22 Fla. L. Weekly S435, S438 (Fla. July 17, 1997) (finding the store negligent for selling a firearm to an obviously intoxicated customer who subsequently shot the petitioner). Return to text.

[107] See Fla. HB 2117, § 3 (1997). Return to text.

[108] See DEPARTMENT OF HIGH. SAF. & MOTOR VEH., TRAFFIC CRASH FACTS 5 (1996). Return to text.

[109] See, e.g., Livingston v. Smalley Trans. Co., 603 So. 2d 526, 528 (Fla. 3d DCA 1992). Return to text.

[110] See Fla. HB 2117, § 4 (1997). Return to text.

[111] See id. Return to text.

[112] See id. Return to text.

[113] See Kitchen v. K-Mart, 22 Fla. L. Weekly S435, S438 (Fla. July 17, 1997) (applying negligent entrustment to a store for selling a firearm to an obviously intoxicated customer who subsequently shot the petitioner, thus equating liability with fault). Return to text.

[114] 623 So. 2d 1182 (Fla. 1993). Return to text.

[115] See id. at 1185. Return to text.

[116] See id. at 1187 (citing Brown v. Keill, 580 P.2d 867, 874 (Kan. 1978)). Return to text.

[117] See FLA. STAT. § 768.81(3) (1997). Return to text.

[118] See Fla. HB 2117, § 8 (1997). Return to text.

[119] See VICTOR E. SCHWARTZ, AM. TORT REFORM ASS'N, COMMENTS BEFORE THE UNITED STATES SENATE JUDICIARY COMMITTEE 2 (1995) (summarizing Mr. Schwartz's testimony before Congress on the imposition of punitive damages) (on file with author) [hereinafter SCHWARTZ'S SENATE COMMENTS]; Dillard, supra note 10, at 807 n.10; Robert D. Cooter, Punitive Damages for Deterrence: When and How Much?, 40 ALA. L. REV. 1143, 1145-46 (1989); Dorsey D. Ellis, Jr., Punitive Damages, Due Process, and the Jury, 40 ALA. L. REV. 975, 975-76, 987-88 (1989) [hereinafter Ellis, Punitive Damages]; Malcolm E. Wheeler, A Proposal for Further Common Law Development of the Use of Punitive Damages in Modern Product Liability Litigation, 40 ALA. L. REV. 919, 940-41 (1989); John Calvin Jeffries, Jr., A Comment on the Constitutionality of Punitive Damages, 72 VA. L. REV. 139, 139 (1986); Dorsey D. Ellis, Jr., Fairness and Efficiency in the Law of Punitive Damages, 56 S. CAL. L. REV. 1, 55-60 (1982) [hereinafter Ellis, Fairness and Efficiency]. Return to text.

[120] See SCHWARTZ'S SENATE COMMENTS, supra note 119, at 1-2; see also Dillard, supra note 10, at 807 n.10. Return to text.

[121] Editorial, Trial Lawyers' Triumph, WASH. POST, Mar. 19, 1996, at A16. Return to text.

[122] See BMW of N. Am., Inc. v. Gore, 116 S. Ct. 1589 (1996); TXO Prod. Corp. v. Alliance Resources Corp., 509 U.S. 443 (1993); Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1 (1991); Browning-Ferris Ind. v. Kelco Disposal., Inc., 492 U.S. 257 (1989). Return to text.

[123] See Chrysler Corp. v. Wolmer, 499 So. 2d 823, 825 (Fla. 1986). Return to text.

[124] Gordon v. State, 608 So. 2d 800, 801 (Fla. 1992) (citation omitted). Return to text.

[125] See GEORGE L. PRIEST, COMMENTS BEFORE THE SENATE COMMITTEE ON THE JUDICIARY ON PUNITIVE DAMAGES TORT REFORM 2 (1995) (on file with author) [hereinafter PRIEST'S SENATE COMMENTS]. Return to text.

[126] See id. Return to text.

[127] See STEPHEN M. TURNER ET AL., WASHINGTON LEGAL FOUNDATION, PUNITIVE DAMAGES EXPLOSION: FACT OR FICTION? 2, 4 (1992). Return to text.

[128] See id. Return to text.

[129] ERIK MOLLER, TRENDS IN CIVIL JURY VERDICTS SINCE 1985 40 (1996). Return to text.

[130] See PRIEST'S SENATE COMMENTS, supra note 125, at 2. Return to text.

[131] See SCHWARTZ'S SENATE COMMENTS, supra note 119, at 4; see also Adams v. Whitfield, 290 So. 2d 49, 51-52 (Fla. 1974) (holding that evidence of legal malice, not actual malice, is needed to justify a punitive damage award). Return to text.

[132] See Campbell v. Government Employees Ins. Co., 306 So. 2d 525, 531-32 (Fla. 1974) (holding that punitive damages were available for "evil-doing," "outrageous highhandedness," or for conduct committed with "malice, moral turpitude, [or] wantonness") (citation omitted). Return to text.

[133] FLORIDA STANDARD JURY INSTRUCTIONS IN CIVIL CASES § PD(a)(2)(3) (1997) [hereinafter 1997 CIVIL JURY INSTRUCTIONS]; see also Glickstein v. Setzer, 78 So. 2d 374, 375 (Fla. 1955). Return to text.

[134] 1997 CIVIL JURY INSTRUCTIONS, supra note 133; see also Glickstein, 78 So. 2d at 375. Return to text.

[135] See Jeffries, supra note 119, at 139; see also Cooter, supra note 118, at 1145-46; Ellis, Punitive Damages, supra note 119, at 975-76, 987-88; Ellis, Fairness and Efficiency, supra note 119, at 55-60; Wheeler, supra note 119, at 940-41. Return to text.

[136] See W. R. Grace & Co.—Conn. v. Waters, 638 So. 2d 502, 504 (Fla. 1994); see also SCHWARTZ'S SENATE COMMENTS, supra note 119, at 1, 4. Return to text.

[137] Roginsky v. Richardson-Merrell, Inc., 378 F.2d 832, 839 (2d Cir. 1967). Return to text.

[138] See SCHWARTZ'S SENATE COMMENTS, supra note 119, at 5-6. Return to text.

[139] See Joseph Nocera, Dow-Corning Succumbs, FORTUNE, Oct. 30, 1995, at 137; Richard Hazelton, The Tort Monster That Ate Dow-Corning, WALL ST. J., May 17, 1995, at A21. Return to text.

[140] See Memorandum of Law of Defendants Dow-Corning Corporation and Dow-Corning Wright Corporation in Support of Their Motion for Certification of a Mandatory Class Action as to Punitive Damages, In re Silicone Gel Breast Implant Prod. Liab. Litigation, No. CV 92-P-10000-S (N.D. Ala. Oct. 25, 1994). Return to text.

[141] See id. Return to text.

[142] See Voluntary Petition, In re Dow-Corning Corp., No. 95-20512 (Bankr. E.D. Mich. May 15, 1995); see also Nocera, supra note 139, at 137; Hazelton, supra note 139, at A21. Return to text.

[143] See Hall v. Baxter Healthcare Corp., 947 F. Supp. 1387, 1394 (D. Or. 1996). Return to text.

[144] See id. at 1392-94. Return to text.

[145] See id. at 1394, 1414-15. Return to text.

[146] See id. at 1394, 1402, 1407, 1411, 1417; see also, Nocera, supra note 139, at 137; Hazelton, supra note 139, at A21.

The breast implant controversy is far from over. On July 30, 1997, Bankruptcy Judge Arthur J. Spector ruled that common issue causation trials should be held in Dow-Corning's Chapter 11 case to resolve the threshold question of whether scientific evidence supports claims that breast implants cause disease. See Court Issues Opinion That Common Issue Causation Trials Should Resolve Legal Debate on Breast Implants, FINANCIAL NEWS, July, 30, 1997, at 8. No causation trial has yet been scheduled. On August 25, 1997, Dow-Corning announced a proposed reorganization plan, which could provide $2.4 billion for resolving breast implant claims, depending upon the number of claimants voting to accept the plan. See Dow-Corning Announces New Plan of Reorganization to Resolve Chapter 11 Filing, FINANCIAL NEWS, Aug. 25, 1997, at 2. As more people vote in support of the plan, individual settlement amounts increase, because less money is required for the trial process. See id. The Bankruptcy Court has not yet ruled on this plan of reorganization. See id.

On August 19, 1997, a jury in Louisiana rendered a verdict against Dow Chemical, one of Dow-Corning's parents, finding that Dow Chemical had failed to investigate or had concealed evidence concerning the health risks of breast implants. See Spitzfaden v. Dow Corning Corp., No. 92-2589 (Orleans Parish Civ. Dist. Ct. 1997). That jury verdict did not, however, address the question of whether breast implants caused the pervasive disease claimed by plaintiffs. On December 3, 1997, a Louisiana judge decertified the suit as a class action. See Pamela Coyle, Implant Suit in Pieces After Ruling Cases Not Alike, Judge Decides, NEW ORLEANS TIMES- PICAYUNE, Dec. 2, 1997, at A1. Return to text.

[147] Dunn v. HOVIC, 1 F.3d 1371, 1398 (3d Cir. 1993) (Weis, J., dissenting). Return to text.

[148] See Nocera, supra note 139, at 137; Hazelton, supra note 139, at A21. Return to text.

[149] William W. Schwarzer, Punishment Ad Absurdum, CAL. LAW., Oct. 1991, at 116. Return to text.

[150] See SCHWARTZ'S SENATE COMMENTS, supra note 119, at 2. Return to text.

[151] See Jeffries, supra note 119, at 139; see also Coiter, supra note 119, at 1145-46; Ellis, Punitive Damages, supra note 119, at 975-76, 987-88; Ellis, Fairness and Efficiency, supra note 118, at 55-60; Wheeler, supra note 119, at 940-41. Return to text.

[152] MOLLER, supra note 129, at 40. Return to text.

[153] Id. Return to text.

[154] See GEORGE MEROS, PUNITIVE DAMAGES SURVEY: 1989-1996 (1997) (compiling information from the punitive damage statistics in the FLORIDA JURY VERDICT REPORTER from 1989-1996) (on file with author). Return to text.

[155] See SCHWARTZ'S SENATE COMMENTS, supra note 119, at 16. Return to text.

[156] See Fla. HB 2117, § 7(2)(a) (1997). The Florida Supreme Court noted in W. R. Grace & Co.—Conn. v. Waters, 638 So. 2d 502, 505 (Fla. 1994), that only Congress could resolve definitively the problem of repetitive punitive damage awards, due to the limited reach of individual state legislation. However, in the absence of a comprehensive federal solution, an incremental improvement in Florida is at least a step in the right direction. Return to text.

[157] See Fla. HB 2117, §7(2)(b) (1997). Return to text.

[158] See id. § 6. Return to text.

[159] See id. Return to text.

[160] See id. Return to text.

[161] See ALA. CODE § 6-11-20(a) (1996); ALASKA STAT. § 09.17.020 (Michie 1996); CAL. CIV. CODE § 3294 (West 1996); KY. REV. STAT. ANN. § 411.184(2) (Michie 1997); MISS. CODE ANN. § 11-1-65 (1)(a) (1997); N.C. GEN. STAT. § 1D-15(b) (1996); N.D. CENT. CODE § 32-03.2-11 (1997); OR. REV. STAT. § 18.537 (1996); TEX. CIV. PRAC. & REM. CODE ANN. § 41.003(a) (West 1997). Return to text.