Judge Weinstein previously certified a mandatory no-opt-out class under Rule 23(b)(1) for all smokers with respect to claims for punitive damages. The certification was based on a “limited punishment” theory, under which “the limited fund involved would be the constitutional cap on punitive damages, set forth in BMW v. Gore and related cases.” While the Second Circuit acknowledged the possibility of a “constitutional cap on total allowable aggregate punitive damage awards,” the court noted that it was ultimately unclear whether successive punitive damage awards, each passing constitutional muster, could reach a point beyond which no additional punitive damages could be awarded. Assuming,arguendo, that such a limit exists, plaintiffs, nevertheless, could not meet Ortiz’s burden of establishing the inadequacy of the fund, given “the totals of the aggregated liquidated claims and the fund available for satisfying them, set definitely at their maximums.” The court additionally expressed concerns that the assessment of punitive damages prior to an actual determination of compensatory damages might run afoul of State Farm v. Campbell’s requirement that the punitive damage award bear a sufficient nexus to the actual and potential harm to the plaintiff class, and that it will be reasonable and proportionate to those harms. In re: Simon II Litigation, 407 F.3d 125 (2d Cir. 2005).
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