Norris O. and Betty J. Whitley - Page 11

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          punitive damages are meant to punish the defendant, or to deter             
          or stop him or her and others from similar conduct in the future,           
          and (3) the ability of the wrongdoer to pay.  See Gamble v.                 
          Stevenson, supra at 354; Hicks v. Herring, supra at 155; Fennell            
          v. Littlejohn, 125 S.E.2d 408 (S.C. 1962).  The fact that South             
          Carolina law measures an award of punitive damage by the                    
          financial status of the wrongdoer, see South Carolina Farm Bureau           
          Mut. Ins. Co. v. Love Chevrolet, Inc., 478 S.E.2d 57 (S.C. 1996);           
          McCourt v. Abernathy, 457 S.E.2d 603, 608 (S.C. 1995); Gamble v.            
          Stevenson, supra at 354; Reid v. Kelly, 262 S.E.2d 24 (1980);               
          Hicks v. Herring, supra at 155, adds to our belief that a                   
          punitive damage award under that law is tied directly to                    
          inflicting punishment upon the defendant, rather than                       
          compensating the plaintiff for his or her loss.  South Carolina             
          law also provides no formula under which punitive damages are to            
          be measured, leaving the amount of a punitive damage award up to            
          the judgment and discretion of the jury, subject, of course, to             
          the power held by a trial judge to change the jury's verdict.               
          See Gilbert v. Duke Power Co., 179 S.E.2d 720, 723 (S.C. 1971).             
          The amount of the award, therefore, lacks any direct nexus to the           
          extent of the personal injury suffered by the plaintiff on                  
          account of the defendant's wrongdoing.                                      
               Nor do we agree with petitioner's argument that the trilogy            
          of O'Gilvie v. United States, 519 U.S. 79 (1996), Commissioner v.           
          Schleier, 515 U.S. 323 (1995), and United States v. Burke,                  
          504 U.S. 229 (1992), should be applied only prospectively.                  

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