Seventh Amendment Restrictions on the Assessment of Punitive Damages

Seventh Amendment Restrictions on the
Assessment of Punitive Damages
The Seventh Amendment does not prohibit federal legislation mandating that a judge assess
the amount o f punitive damages after a jury determines liability in a products liability
case.
September 29, 1989
M em oran dum O p in io n f o r t h e A c t in g A s s is t a n t A t t o r n e y G e n e r a l
C ivil D ivisio n
This responds to your request for the opinion of this Office concerning
whether the Seventh Amendment prohibits federal legislation mandating
that a judge assess the amount of punitive damages after a jury deter­
mines liability in a products liability case. For the reasons set forth below,
we conclude that such legislation would not violate the Seventh
Amendment.1
We believe that the Supreme Court’s decision in Tull v. United States,
481 U.S. 412, 425-27 (1987), establishes that Congress may authorize a
judge to determine the amount of punitive damages. In Tull, the Court
held that while the Seventh Amendment guarantees a right to a jury tried
to determine liability in actions seeking civil penalties authorized by the
Clean Water Act, there is no corresponding right to have a jury determine
the amount o f the civil penalties. The Court explained:
The Seventh Amendment is silent on the question whether
a jury must determine the remedy in a trial in which it must
determine liability. The.aaswer must depend on whether the
jury must shoulder this responsibility as necessary to pre­
serve the “substance o f the common-law right of trial by
jury.” Is a jury role necessary for that purpose? We do not
think so. ‘“Only those incidents which are regarded as fun­
damental, as inherent in and o f the essence of the system of
1The Seventh Amendment provides:
In Suits at common law, where the value in controversy shall exceed twenty dollars, the
nght o f trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-exam­
ined in any Court o f the United States, than according to the rules o f common law.
U.S Const, amend VII
307
trial by jury, are placed beyond the reach o f the legislature.’”
The assessment of a civil penalty is not one o f the “most fun­
dament elements.”
Id. at 425-26 (footnote and citations omitted). The Court observed that
typically the amount o f a civil penalty is specified by statute, and “[s]ince
Congress itself may fix the civil penalties, it may delegate that determi­
nation to trial judges.” Id. at 427. Accordingly, the Court held that “a
determination o f a civil penalty is not an essential function o f a jury trial,
and that the Seventh Amendment does not require a jury trial for that
purpose in a civil action.” Id. at 427.
The Fourth Circuit’s recent decision in Shamblin’s Ready Mix, Inc. v.
Eaton Corp., 873 F.2d 736, 74CM2 (4th Cir. 1989), illustrates that Tull
extends to the assessment of punitive damages. In Shamblin’s Ready Mix,
the court held that a judge may reduce the amount of punitive damages
awarded by a jury without remanding for a new trial. The court concluded
that “ [t]he measure of damages in a cause o f action for a tort is not a fun­
damental element o f a trial.” Id. at 742. The court found Tull dispositive:
There is no principled distinction between civil penalties
and the modem concepts o f punitive damages. Both serve
the same purposes to deter and punish proscribed conduct.
Cf. Tull, 481 U.S. at 422 n.7, 107 S. Ct. at 1838 n.7. Consistent
with Tull, we hold that the seventh amendment does not
require that the amount o f punitive damages be assessed by
a jury.
873 F.2d at 742.2
We agree that punitive damages are indistinguishable from civil penal­
ties for the purpose o f the Seventh Amendment. Therefore, based on the
Supreme Court’s holding in Tull, we conclude that the Seventh
Amendment does not bar federal legislation authorizing judges to assess
the appropriate amount of punitive damages.
LYNDA GUILD SIMPSON
Deputy Assistant Attorney General
Office of Legal Counsel
2 The recent decisions holding that a statutory cap on the amount o f damages does not violate the
Seventh Amendment provide another example o f permissible restrictions on the role o f a jury See Davis
v. Omitowoju , 883 F.2d 1155, 1158-65 (3d Cir 1989); Boyd v. Bulala, 877 F.2d 1191, 1196 (4th Cir. 1989),
Franklin v. Mazda Motor Corp , 704 F. Supp. 1325, 1334 (D. Md. 1989)
308