Do We Need Punitive Damages?

Massachusetts Is One Of The Few States That Does Not Recognize Punitives. Why Has There Never Been A Push For Them?

Published: 1:00 am Mon, November 29, 1999

By WENDY L. PFAFFENBACH Massachusetts Lawyers Weekly

The laws of the Babylonians, the Hindus and the Romans all contained precursors to the modern punitive damage doctrine. The books of Exodus, Deuteronomy and Luke all tell of instances where multiple damages should be levied against a wrong doer. And a majority of U.S. states continue to follow this ancient philosophy.But not Massachusetts.In the midst of a sea of retribution, Massachusetts remains a lonely island, one of the few states in the country that does not allow for punitive damages.Should the option at least be explored? While there is seemingly no movement for punitives anywhere among the organized bar, many lawyers (plaintiffs’ lawyers, to be sure) would welcome punitive damages with open briefcases.But thus far judges’ and lawmakers’ continued rejection of punitive damages seems an inevitability in our state, a historical stubbornness evolved into a untouchable principle of tort law.For many practitioners and scholars, however, there remains hope that Massachusetts will one day follow suit and “come in from the cold.”

‘Hidden From History’

Local litigators are familiar with the fact that punitive damages are not recoverable in the commonwealth except where expressly authorized by statute. (See sidebar.)But few have considered the historical underpinnings for the state’s stance on punitive damages, and those who research the history of punitive damages — or the historical lack of punitive damages — find the record strangely silent.The doctrine of punitive damages derives from the English common law doctrine of exemplary damages which in turn traces its origins back to the 13th-century concept of multiple damages.According to Michael L. Rustad, a professor at Suffolk University Law School who believes Massachusetts should adopt punitive damages, English courts used exemplary damages to “punish powerful elites for acts of oppression against the common people.”Along with the rest of the common law, the doctrine of exemplary damages was exported to the colonies, and several late 18th-century American cases used the doctrine to punish dueling, the breaking of an engagement and other willful, wanton conduct.By the 1850s most jurisdictions in the U.S. had adopted punitive damages, says Rustad.However, if Massachusetts jurists ever considered the doctrine the cases remain silent on any debate. Indeed, by 1891 the lack of punitive damages in Massachusetts was so firmly established that Oliver Wendell Holmes, then a judge on the Supreme Judicial Court, dismissed a plaintiff’s claim with two sentences.“The damages recovered are measured in all cases by the injury caused,” Holmes wrote. “Vindictive or punitive damages are never allowed in this state.”The other cases that discuss punitive damages simply echo Holmes’ basic statement.“It was the policy of our common law not to have such things,” says Wayne E. Hartwell, director of education and counsel at the Social Law Library. “The policy was to make the plaintiff whole for what was lost. Once the plaintiff received compensation for his actual injuries there was no reason for punitive damages.”As Rustad observes, “the specific reason why Massachusetts is one of the few states not to adopt punitive damages [seems] hidden from history.”Similarly, in recent history, Massachusetts lawyers have not approached the question of punitive damages. A look back in recent history reveals no significant case or legislative lobbying effort aimed at bringing about broad punitives.“There has never been a significant [pro-punitive damage] movement,” says Rustad. “Periodically, trial attorneys will present bills that don’t get very far.”This apparent lack of interest in, or resignation to, the state of the law is perplexing to at least one prominent jurist.Recently retired SJC Chief Justice Herbert P. Wilkins says he “often wondered why [the SJC] didn’t have more complaints [addressing the question of] punitive damages.”

Functional Equivalents

According to Rustad, even if a state does not have punitive damages it will develop a functional equivalent to the doctrine.“In Massachusetts’ case they have a more rigorous public regulation model,” says Rustad. “Rather than having punitive damages from the common law what has developed is a very well-developed set of statutory protections and a strong Attorney General’s Office.”The Consumer Protection Division of the AG’s office is Massachusetts’ equivalent to punitive damages, Rustad explains.Furthermore, the statutory development of punitive damages in wrongful death cases, toxic torts and medical malpractice — along with Chapter 93A — leaves very few areas that the public regulators missed, he adds.“Punitive damages is a gap filler; it basically fills in conduct that is undetected by the public regulators,” he says. “Where there is already fairly strong public regulation there seems to be less of a need for punitive damages.”But plaintiffs’ attorneys don’t necessarily believe that government regulation can fill the gap.“The attorney general … is only able to cover so much and it’s a small portion of what exists throughout the state,” says Warren F. Fitzgerald, president of the Massachusetts Academy of Trial Attorneys. “In fact, the vast majority of private wrongs and harms are addressed by individual plaintiffs’ lawyers bringing cases on behalf of private citizens.”Lawyers in favor of punitive damages pointed out that the attorney general can’t possibly address many of the smaller harms visited upon the public by manufacturers and businesses.Joanne D’Alcomo, chair of the Boston Bar Association’s Litigation Section’s Tort Committee, says that “certainly, the Attorney General’s Office tries to make an impact but it really only takes on the most pronounced cases.”It is up to private plaintiffs’ attorneys to pursue the lesser, but still significant harms, and in the absence of punitive damages, private attorneys often can not afford to take on many consumer claims, she adds.Attorneys note that punitive damages are especially helpful in cases where a large number of people are harmed a little bit. In these cases an individual plaintiff might not be harmed enough to bring an individual case but the potential defendant still profits enormously from the combined effect of the wrong.If punitive damages are not available in these cases there is no threat to deter the manufacturer’s or business’ behavior, says Fitzgerald.“Manufacturers … do repeatedly get away with numerous minor violations because as they sit individually they don’t cause enough damages to justify a law suit,” he says. “There is no doubt that adding punitive damages [prevents] egregious conduct where the damage may be significant but not significant enough to warrant the very substantial costs of a lawsuit case-by-case.”Proponents say punitive damages are also necessary to stop defendants from conducting the type of risk/benefit analysis made famous in a case involving the ill-fated automobile known as the Pinto. In that case, the car manufacturer determined that it was more cost-efficient to pay compensatory damages for injuries caused by the unsafe Pinto than it was to pay an extra $11 per car to install a safer feature.Douglas K. Sheff, president-elect of the MATA, notes that “allowing for the absence of punitive damages allows big business defendants to act recklessly, even maliciously, when it is cost effective to do so.”But Wilkins says the state is “fortunate” not to have punitive damages.“We don’t want the first plaintiff to receive all the money,” he says. “A civil penalty where the money goes to the state to deal with the underlying problem [is preferable to punitive damages].”Hartwell explains that there is no need for punitive damages in Massachusetts because the current system — which allows for recovery of punitive and multiple damages in over 60 statutes — works well.“The law of punitive damages should continue to develop as an overlay over the common-law foundation,” he says.Hartwell adds that the Legislature and courts are right to reject a “broad brush” approach to punitive damages, and that the Legislature’s current case-by-case approach to punitive damages avoids the “loudly unpredictable” situation created by general punitive damages.

Bad Climate

Even if the commonwealth needs punitive damages, there is little chance of any successful movement in the current political climate, lawyers observe. Although a majority of states do allow for punitive damages, in the last few years at least 46 states have enacted tort reform legislation aimed at eliminating or curbing punitive damage awards.“In Massachusetts, as in the nation, there is a real bias against plaintiffs in the civil justice system,” says D’Alcomo. “Under the common law, as a practical matter, … punitive damages are not politically viable at this time.”Fitzgerald agrees that the current political climate works against any movement for punitive damages.“In any area that [people tried to add punitive damage recoveries] there would be sufficient political opposition to keep the status quo in place,” he said. “If a move was made to add punitive damages in product liability cases there would be an outcry by manufacturers that this was antithetical to the business climate in the state … and so on with landlords, hospitals and doctors … it’s something that in this climate will not be easily attained.”In the absence of empirical data, the judiciary and the Legislature will not recognize punitive damages, notes Rustad.“There is no evidence that Massachusetts has an overwhelming need for the introduction of [punitive damages],” he says. “[The plaintiffs’ attorneys] would have to show some burden of production that the current system of public regulation … is not working appropriately.”Still, Rustad states that adopting broad punitive damages “would be a strong statement that we are a state that protects our consumers.”