January 24, 2008

Recent Punitive Damages Scholarship

California's appellate courts will soon begin issuing opinions helping to formulate the required jury instructions that will need to be given in light of Philip Morris v. Williams. (See here for a discussion of three pending CA cases on this issue.) A recent article by two Duke Law Professors discusses the nationwide question of how to elucidate specific jury instructions from that opinion: Vidmar, Neil and Wolfe, Matthew W., "Fairness Through Guidance: Jury Instruction on Punitive Damages After Philip Morris v. Williams" . Charleston Law Review, Vol. 2, 2007 Available at SSRN: http://ssrn.com/abstract=1025997

Abstract:
Punitive damages present a significant issue in American law. Phillip Morris v. Williams - the United States Supreme Court's most recent foray into punitive damages litigation - has once again raised procedural and substantive due process matters regarding fairness to defendants and reawakened debate in this area. Proponents of punitive damages argue that the awarding of punitive damages protects the community from wanton or predatory acts - or other behavior that violates social norms - by sanctioning the defendant and sending a general message that the actions are reprehensible and will not be tolerated. Opponents argue that the punitive damage awards by juries have gotten out of hand, and that in addition to being unfair to defendants, they have the potential to put a company out of business or substantially hinder a company's viability. With so much at stake on both sides, and with the Supreme Court's frequent intervention in this arena, punitive damage doctrine is primed for clarity and guidance. The purpose of this Article is to provide this clarity and guidance by proposing model jury instructions on punitive damages in light of Phillip Morris and its immediate predecessors.

The Article proceeds in four parts. Part I introduces the Supreme Court's debate in Phillip Morris v. Williams, borrowing liberally from the Court's opinion to establish the current doctrine on punitive damage awards. Part II then analyzes the problem that drafters face in the wake of Phillip Morris in revising model jury instructions. Part III offers some criteria to solve this dilemma, including offering juries written instructions, detailing the Court's requirements, and defining fairness. Part IV presents a first take on what model jury instructions that meet these criteria might look like. In conclusion, we articulate the next steps in providing jurors with the guidance necessary to make informed and fair decisionmaking vis-à-vis punitive damage awards.