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Punitive Damages ? The Silly Season

By Joe Consumer

There?s been a lot of silly talk about ?punitive damages? lately ? the kind of damages awarded when hideous misconduct is involved - so we thought this might be a good opportunity to revisit this misused and misunderstood topic. First, some of the silly talk.

Lanny Davis, former Clintonista turned corporate lobbyist (or even worse) gave a Wall Street Journal interviewer his views about medical malpractice, arguing that judges and juries shouldn?t be allowed to handle them.  His argument was based on so-called ?facts? like this:

The problem in the system comes when you move beyond compensatory damages and into the realm of punitive damages. That?s when you penalize a doctor for gross negligence or recklessness. ? After all, negligence is not an intentional act. It?s an unintentional act. If it is intentional, then it moves into the realm of the criminal, and that?s really not what people are worried about here.

Worried about?  Who?s worried about punitive damages in medical malpractice cases?  They barely exist.  There were six in the entire state court system in the last year the Bureau of Justice Statistics looked at this. SIX!  And no doubt, they were in cases of horrible misconduct or abuse, and hopefully will still be available when and if families file their civil suits against the Delaware pediatrician who (allegedly) raped and sexually abused 103 children. Hopefully, Delaware does not go down the road of capping punitive damages overall, a direction in which South Caroline may be headed right now, even in the face of ?runaway Toyotas.?

Here is what else the Bureau of Justice Statistics has to say about the frequency of punitive damages:  Punitive damages were sought in only 13% of the approximately 14,000 general civil trials with plaintiff winners in 2005; Punitive damages were awarded to only 5% of plaintiff winners, and the median overall punitive damage was $64,000! 

Indeed, a couple of stories recently showed just how reluctant juries are to award punitive damages even against huge corporations, let alone doctors.  First, a story we told you about last week concerning the corporate hog farm, the stench of which was impossible to live around.  No punitives.  The second came in a Louisiana verdict Friday against Exxon Mobil.  The case was brought by 16 former employees because "offshore drilling pipes they cleaned over decades contained radioactive contamination.?   While awarding ?nearly $1.2 million as compensation for the increased risk they face of developing cancer ? jurors declined to award the workers punitive damages.?  This is even after an earlier jury actually did award punitives in a similar case, an award that was later greatly reduced even thought the court found Exxon?s behavior ?reprehensible.?

So where exactly is the crisis?  To paraphrase a certain Senate Majority Leader, people are entitled to their opinion about punitive damages, but they?re not entitled to their own facts.  Go sit in the corner, Lanny!

Full post as published by ThePopTort on March 08, 2010 (boomark / email).