800px-Judge_Henry_FriendlyAs early as 1967, Judge Friendly worried about the phenomenon of punitive damages overkill in mass tort litigation. Fifty years later, the problem persists.

Last week, a Philadelphia, Pennsylvania, jury awarded a plaintiff $2.5 million in compensatory damages and $17.5 million in punitive damages—seven times the compensatory damages—in the latest of a large series of cases alleging that Johnson & Johnson subsidiary Ethicon had failed to warn about the risks of its pelvic-mesh device. In previous cases, juries had imposed punitive awards of $5 million, $7 million, and $10 million.

In each prior case, the trial court has refused to reduce the award of punitive damages. From all appearances, blinded by J&J’s substantial net worth, the courts in these cases have given no serious consideration to the prospect that either individually or in the aggregate the punitive damages are excessive.  Nor have they given any weight to the fact that J&J has been exonerated in other pelvic mesh trials.

My colleagues and I have opined repeatedly about the proper methodology for determining whether an individual punitive award in a mass-tort context is excessive, including in this post involving a different J&J product—talcum powder. And my colleague Andy Frey also has addressed the fallacies involved in relying on corporate finances as a basis for setting punitive awards in this post regarding use and misuse of wealth evidence.

It remains to be seen whether courts will start taking seriously the concerns expressed half-a-century ago by one of the most eminent jurists in our nation’s history.