The Supreme Court held in BMW v. Gore that states may not use punitive damages awards to punish a defendant for the impact of its conduct in other states. BMW involved an obvious violation of that principle: The plaintiff introduced evidence of approximately 1,000 vehicles that BMW had sold around the country without disclosing pre-sale refinishing, asked the jury to punish BMW $4,000 for each vehicle, and then received a punitive award of exactly $4 million—1,000 X $4,000.
But in many other cases, the violation is more opaque. Sometimes evidence of the number of “victims” of the conduct is introduced, but the punitive award does not bear a precise or readily ascertainable relationship to that number. In other cases, the plaintiff doesn’t introduce the number at all, but merely emphasizes that there are many other victims around the country and then receives an outsized punitive award.
How then is a court to know whether the award constitutes impermissible punishment for harms suffered by out-of-state victims?