January 28, 2011

AP story illustrates confusion about punitive damages

Earlier this week, the Associated Press reported about a case in which the Fifth Circuit asked the Mississippi Supreme Court to decide whether that state's cap on punitive damages is constitutional. 

When I saw the story, it seemed like good material for this blog.  But further investigation revealed that the case in question (Learmonth v. Sears, Roebuck & Co.) has nothing to do with punitive damages.  The Fifth Circuit's opinion asks the Mississippi Supreme Court to decide the constitutionality of a cap on noneconomic damages (emotional distress, pain & suffering, etc.).

The AP reporter clearly didn't understand that noneconomic damages are a form of compensatory damages, and are quite different from punitive damages.  In fact, the AP story actually says noneconomic damages are "also called punitive damages."  Umm, no.  The AP ran a correction the following day.

I don't want to be too critical of the AP for making this mistake.  Since we launched this blog over two years ago, I have seen a number of other stories making the same mistake.  In fact, if you read a comment page for almost any story about a proposal to cap noneconomic damages, there's a good chance you'll see several comments mistakenly assuming the cap applies to punitive damages.  Apparently, despite all the discussion of punitive damages in the press in recent years, many members of the public (and even a few reporters) are unclear on the basic concept.