Baker v. National State Bank6/21/2002
oportionate to means of defendant). Moreover, for virtually each case cited by the Bank in support of its argument that the remitted ratio in this case is too high, other cases have sustained even higher ratios. Compare, e.g., Ortiz-Del Valle v. Nat'l Basketball Assoc., 42 F. Supp. 2d 334, 345 (S.D.N.Y. 1999) (concluding that ratio of 58.3 to one was high), with Deters v. Equifax Credit Info. Serv., Inc., 202 F.3d 1262, 1272-73 (10th Cir. 2000) (affirming ratio of fifty-nine to one).
We also agree with plaintiffs that there is little meaning behind the Bank's assertion that in New Jersey, no punitive damage awards in the million dollar range have survived appellate review. The Bank provides a list and brief summary of appellate cases in this State involving punitive awards under LAD. The summaries indicate that in many of the cases, the punitive awards were reversed on appeal. A closer review, however, indicates that virtually all of the awards were reversed, not because they were excessive, but for other reasons. See Cavuoti, supra, 161 N.J. at 131 (affirming Appellate Division reversal of award due to failure to give upper management charge); Mogull v. CB Commercial Real Estate Group, Inc., 162 N.J. 449, 474-75 (2000) (remanding to Appellate Division to determine whether award complied with BMW and whether failure to give upper management charge was reversible error); Maiorino v. Schering-Plough Corp., 302 N.J. Super. 323, 354-55 (App. Div.) (reversing award because of failure to give upper management charge and because award was excessive), certif. denied, 152 N.J. 189 (1997); Spragg v. Shore Care, 293 N.J. Super. 33, 59-60 (App. Div. 1996) (vacating award because of lack of evidence of malicious conduct); Granziel v. City of Plainfield, 142 N.J. 513 (1995) (remanding for reconsideration in light of Rendine v. Pantzer, supra, 141 N.J. at 292); Catalane v. Gilian Instrument Corp., 271 N.J. Super. 476, 500 (App. Div. 1994) (setting aside jury verdict and punitive damages award because of erroneous jury instructions), certif. denied, 136 N.J. 298 (1994); Wachstein v. Slocum, 265 N.J. Super. 6, 23 (App. Div.), (ordering new trial on issue of damages resulting from retaliatory transfer), certif. denied, 134 N.J. 563 (1993); Hurley v. Atlantic City Police Dep't, 174 F.3d 95, 124 (3d Cir. 1999), (vacating punitive damages award because of failure to give upper management jury charge), cert. denied, 528 U.S. 1074, 120 S. Ct. 786, 145 L. Ed. 2d 663 (2000).
An analysis of other cases is of minimal assistance and fails to support the Bank's assertion that the $1.8 million punitive damages award is grossly excessive. See Swinton v. Potomac Corp., 270 F.3d 794, 819 (9th Cir. 2001) (stating that " e find little comfort in trying to discern parameters from other cases because the circumstances vary so widely" and results only in a "scatter graph"), cert. denied, ___ U.S. ___, 122 S. Ct. 1609, ___ L. Ed. 2d ___ (2002).
We are satisfied that the remitted, $1.8 million award did not violate the Bank's substantive due process rights. Since the Bank engaged in intentional misconduct, a punitive damages award exceeding the compensatory damages award by six times is not unreasonable or excessive. This conclusion is buttressed by the PDA, which imposes a cap of five times compensatory damages. Although the PDA does not apply to LAD actions, it is still somewhat helpful "as a normative measure of the limits of proportion." Baker, supra, 161 N.J. at 231. To exceed the PDA cap by a measure of one is not unreasonable or violative of the Bank's constitutional rights, especially when that cap does not even apply.
It remains for consideration whether a "less drastic remedy" would have been sufficie
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