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The Trouble with Punitive Damages

By Brian Harris

I have to admit it is enticing for plaintiffs to put a punitive damage claim into cases. Punitive damages can make the case worth go sky high, theoretically.   So, why not put them into every case you can?  There is a troubling truth for plaintiffs: Beware of punitive damage claims. In the wrong case and with the wrong strategy, they can actually hurt you.

A case example

In a terrible case in which an alleged household appliance defect caused the death of a child, the plaintiff held mock trials to discover how jurors would respond to the case and how jurors determined the case?s worth.  The plaintiff was seeking punitive damages and put forth evidence of corporate misconduct that included clear knowledge of other incidents caused by the defect and the destruction of physical evidence from those incidents.

Despite some pretty devastating evidence against the company, jurors believed that plaintiffs? accusations regarding the company?s behavior were unreasonably severe.  The issue was that, despite clear jury instruction, jurors believed that punitive damages translate into ?intent? to harm or knowledge that the harm definitely would occur. Instead, jurors seemed to characterize this company?s perspective as similar to most companies: ?business is business.? Specifically, despite the evidence, jurors did not believe that this company would do anything ?on purpose? or with the belief that a child could be killed.  In their minds, it was just too severe an accusation.

In this instance, jurors did not award punitive damages, but did seriously consider them.  This was the case because there was so much evidence for the plaintiff to make a strong and reasonable argument about corporate behavior, in general. Jurors were willing to consider the punitive claims toward the defendant because they perceived a pattern of negligence as a lack of care or consideration vs. an isolated incident or a mistake.

Instead of awarding punitive damages, though, jurors simply pumped up the compensatory damages. In essence, these jurors decided to ?punish? without directly accusing a company of knowingly doing something so terrible.

When punitive damages can actually hurt you

I have seen other cases in which the court has allowed the jury to decide punitive damages when 1) the defendant is an individual (like in a medical malpractice case) and/or 2) the defendant?s misconduct evidence is not clear-cut and does not extend outside of the claims at issue in a specific case (again, a pattern of lack of care vs. an isolated incident). 

In these cases, the introduction of punitive damages caused jurors to feel that the plaintiff?s accusations were so harsh, that they worked against the plaintiff?s liability claims. In these cases, jurors either became sympathetic toward and protective of the individual who was being accused of such terrible things and/or they asked: if you are going way out of reach here, where else are you padding your story?

The risk is clear: If jurors feel out of sync with the plaintiff on punitive damage arguments, that sentiment may invade and pollute the entire plaintiff?s case.

How can I make my punitive damage argument stronger?

The first order of business is to think carefully about when to ask for punitive damages. In most cases, punitive damages are most well received when the evidence is clear and extends outside of the specific incident at issue. Is this a pattern of behavior or an isolated incident?

Once punitive damages are in, it helps to make it clear what punitive damages do and do not mean. For example, in the case example, we argued: 

?By asking for punitive damages, are we saying that Company X has set out to harm children? Of course not. That would be absurd. Does it mean, though, that Company X let a product go out into the community that it knew had a defect? Yes. That it knew this kind of accident could happen? Yes. That it knew the kinds of horrific injuries these accidents cause to kids? Yes.  Ladies and gentlemen, we are not saying that Company X wants to hurt little children. What we are saying is that, knowing of the risk, it did nothing to protect children like ?Joey?.  We submit to you that placing the risk into the community while closing its eyes and crossing its fingers is the same thing as knowingly allowing this and other accidents to happen.?

Melissa M. Gomez, Ph.D. is a jury consultant and owner of MMG Jury Consulting, LLC. She holds a Ph.D. in psychology from the University of Pennsylvania. Her experience includes work on more than 100 jury trials in Philadelphia and across the country, with a focus on the psychology of juror learning, behavior and decision-making. She has more than a decade of expertise in research design and methodology, as well as in behavioral and communication skills training.

This posting is for general informational purposes only and should not be construed or interpreted as advice specific to any matter. Each case is different and no strategy applies uniformly to all.

If you have any questions regarding jury psychology that you would like to see addressed in this blog, please contact Dr. Gomez at melissa@mmgjury.com or call 215-292-7956.

Melissa M. Gomez, Ph.D.
MMG Jury Consulting, LLC
www.mmgjury.com

Full post as published by The Legal Intelligencer Blog on March 04, 2010 (boomark / email).