April 9, 2013

Plaintiffs seek $2.5 billion in punitive damages for Las Vegas hepatitis outbreak

The Associated Press reports that the plaintiffs' attorneys in a Nevada lawsuit against a healthcare provideder have asked the jury for an award of $2.5 billion in punitive damages.  The jury has already awarded $24 million in compensatory damages to the two plaintiffs, who were both infected with hepatitis during routine outpatient endoscopy procedures.

Plaintiffs in the Vegas hepatitis litigation have already rung the bell for $500 million in punitive damages.  In that case, the plaintiffs were sued two drug companies that made and distributed propofol, the anesthetic drug used during the procedure. The plaintiffs alleged that the companies supplied the drugs in vials that were larger than necessary, tempting the healthcare providers to re-use the vials on multiple patients, even though the vials were labeled for individual use.

In this latest case, the plaintiffs' request for $2.5 billion raises the question: why would a plaintiffs' attorney ask for an amount of punitive damages that is more than 100 times the amount of the plaintiff's actual harm, when such an award would surely be stricken as unconstitutionally excessive?  Perhaps it's because he read "Punitive Damages, How Juries Decide," by Cass Sunstein and others.  Sunstein found that the most significant predictor for a large punitive damages award is a large request.  That seems to hold true no matter how large the request is. So the plaintiffs' attorney may be thinking that he won't really get 2.5 billion, but he'll end up getting more, all other things being equal, than he would have gotten by asking for something more reasonable.