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IN RE ASBESTOS SCH. LITIG.

August 2, 1985

IN RE: ASBESTOS SCHOOL LITIGATION; THIS DOCUMENT RELATES TO: ALL ACTIONS


The opinion of the court was delivered by: KELLY

KELLY, J.

 MEMORANDUM AND ORDER

 Presently before me is stipulating defendants' *fn1" motion for a preliminary injunction. *fn2" Stipulating defendants seek to enjoin Spartanburg County, South Carolina School District Seven (School District) whose case is listed for trial on August 5, 1985, *fn3" from: introducing any evidence that is relevant solely to plaintiffs' punitive damages claims; arguing the punitive damage claim to the jury; and requesting that the jury be charged on the issue of punitive damages.

 In my Memorandum and Order of September 28, 1984, 104 F.R.D. 422, I certified the class as to punitive damages, under Fed. R. Civ. P. 23(b)(1)(B) which, although allowing a plaintiff class member to opt out of the punitive damage class, I restricted the remedies available to the party who opted out by prohibiting separate litigation of punitive damages. *fn4" 104 F.R.D. at 438. The essence of my ruling was fairness to the defendants as well as to the plaintiffs.

 The purpose of punitive damages claims "are not compensation for injury. Instead, they are private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence." Gertz v. Robert Welch, Inc., 418 U.S. 323, 350, 41 L. Ed. 2d 789, 94 S. Ct. 2997 (1974); International Brotherhood of Electrical Workers v. Foust, 442 U.S. 42, 48, 60 L. Ed. 2d 698, 99 S. Ct. 2121 (1979). Plaintiff School District has contended that South Carolina law would apply to the products liability suit which was brought in the District Court of South Carolina because of the various contacts plaintiff has with the state. I do not rule on this matter, but for the instant matter I will assume that South Carolina law applies. Plaintiff School District argues in its brief in opposition to the instant motion that South Carolina law is distinguishable from the general premise of punitive damages. Plaintiff suggests that punitive damages under South Carolina law are compensatory in nature, in that it compensates for a right of a party which is taken away. Plaintiff cites, inter alia, Oliver v. Columbia, N. & L. R. Co., 65 S.C. 1, 43 S.E. 307 (S.C. 1902) to support its position. I do not agree with plaintiff's argument. The Supreme Court of South Carolina in Oliver overruled exceptions to the trial court's charge to the jury concerning punitive damages. Id. at 320-323. The portion of the jury charge which was the focus of the exception stated:

 
* * * *
 
Therefore, gentlemen, if in this case it is established to your satisfaction, by the preponderance of the evidence, then your verdict would be a sum of money representing not only actual injury sustained, or compensation for this injury, but also an additional amount, as I have said before, to punish the defendant, to make an example, so as to keep the defendant and others in the same kind of business from such wrongdoing, if such be proven.

 Oliver at 320-321.

 The Supreme Court of South Carolina in Oliver commented on the jury charge, indeed upholding it:

 
'Exemplary or punitive damages go to the plaintiff, not as a fine or penalty for a public wrong, but in vindication of a private right which has been willfully invaded; and, indeed, it may be said that such damages in a measure compensate or satisfy for the willfulness with which the private right was invaded, but, in addition thereto, operating as a deterring punishment to a wrongdoer and as a warning to others. ' While, therefore, exemplary damages are not awarded 'as a fine or penalty for a public wrong, ' they are awarded as a 'punishment' to the wrongdoer for the willful invasion of a private right, 'and as a warning to others. ' And this, as Judge Benet charged, is 'for public good, '-- an example -- 'for the benefit of others. ' These two exceptions are overruled.

 Id. at 321-322 (citations omitted).

 Indeed, all the court was stating was that the private person/party who was injured had the right/standing to sue for punitive damages, rather than the general public. However, the purpose of punitive damages is to provide for the benefit of the public. See also Rogers v. Florence Printing Company, 233 S.C. 567, 106 S.E. 2d 258, 261 (1958) (Individual has standing to bring punitive damage claim rather than public; punitive damages are gauged or allocated as to the "willfulness" of a defendant and operate to punish the wrongdoer, and warn others).

 In certain situations where wanton or intentional wrongdoings are found, punitive damage claims may arise to a "right" of a plaintiff; however, equally balanced against this "right", is the obligation that the defendant be punished fairly. In Re Asbestos School Litigation, 104 F.R.D. 422, 434-438 (E.D. Pa. 1984). Fairness is the cornerstone of equity. Thus, the fairness which defendant receives in not being subject to successive claims to punish for purported wrongs also benefits the many plaintiffs who may be ...


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