To move for new trial; 2. 177. Ct. App. .’ This does not mean, however, that the defendant’s similar, wrongful conduct toward others should not be considered in determining the, Cal.App.4th 543, 560 [131 Cal.Rptr.3d 382]. The Liability and Damages Phases of the Trial Should be Tried by the Same If a defendant decides not to bifurcate, the plaintiff is free to present evidence in support of punitive damages during the liability phase of the trial. INTRODUCTION Like a bad car wreck, a large award of punitive damages seems to bring out the rubberneckers – critics, scholars, appellate lawyers, and legislators. (, (1993) 509 U.S. 443, 459 [113 S.Ct. (See, “A jury must be instructed . real money in a specific amount to be set by the jury. The purposes of punitive damages are to, ] knew was likely to occur because of [his/her/. . By Robert Sparks. 1589, 134 L.Ed.2d, California Civil Jury Instructions (CACI) (2020). [¶] A number of cases have held that noncompliance with a court order, to disclose financial condition precludes a defendant from challenging the, sufficiency of the evidence of a punitive damages award on appeal.” (, • “[T]he purpose of punitive damages is not served by financially destroying a, defendant. In order to protect defendants from the premature disclosure, of their financial position when punitive damages are sought, the Legislature, • “[C]ourts have held it is reversible error to try the punitive damages issue to a, new jury after the jury which found liability has been excused.” (, • “The purpose of punitive damages is to punish wrongdoers and thereby deter the, • “Punitive damages are to be assessed in an amount which, depending upon the, defendant’s financial worth and other factors, will deter him and others from, committing similar misdeeds. c. Punitive damages may be awarded only if compensatory damages have been awarded in the first stage of the trial. 2d 502 (Fla. 1994). When compensatory damages are substantial, then a lesser ratio, perhaps only, equal to compensatory damages, can reach the outermost limit of the due process, guarantee. An instruction on this point should be included within this instruction if, Courts have stated that “[p]unitive damages previously imposed for the same, conduct are relevant in determining the amount of punitive damages required to, sufficiently punish and deter. As we noted in a prior post, many state legislatures and supreme courts have mandated that the amount of punitive damages be tried separately from other issues in the case if the defendant so requests.The principal impetus for mandating this procedure was concern that evidence of the defendant's financial condition, though assumed to be relevant to the amount of punitive damages, is … Case No. Bifurcation allows the defendant to avoid that risk by introducing evidence of other punitive awards only after it has been found liable. This article is not intended to discuss the bifurcation of the determination of the amount of punitive damages from the main portion of the trial, which procedure was approved by the Supreme Court of Florida in W.R. Grace & Co. v. Waters, 638 So. The fact that the plaintiff sought to recover punitive damages for alleged fraud in obtaining a release in her second cause of action, did not deprive the defendants of their defense of a release of the cause of action asserted in plaintiff's first cause of action; nor should it deprive the defendant of the right to have that issue determined, when, as here, the plaintiff not only consents but joins in the request for … ‘In most cases, evidence of earnings or profit alone are not sufficient “without examining the, liabilities side of the balance sheet.” [Citations. You may not increase the, punitive award above an amount that is otherwise appropriate, resources. In California, punitive damages are generally available, in non-breach of contract cases, when a plaintiff has proven by clear and convincing evidence that the defendant acted with “oppression, fraud, or malice[. 1057, 166 L.Ed.2d 940].) . equitable relief is obtained or where nominal damages are awarded or, as here, where compensatory damages are unavailable.” (, 809]] has refined the disparity analysis to take into account the. particular nature of the defendant’s acts in light of the whole record; clearly, different acts may be of varying degrees of reprehensibility, and the more, reprehensible the act, the greater the appropriate punishment, assuming all other, factors are equal. 1 case no. As Guideposts points out, however, the second phase of trial presents an opportunity for a defense to present evidence that cuts against the need for punitive damages. The parties make the following express waivers of rights: 1. that it may not use evidence of out-of-state conduct, to punish a defendant for action that was lawful in the jurisdiction where it, 422.) Proc., § 425.13). For example, evidence of subsequent remedial measures, changes in corporate culture, or penalties already imposed for the same conduct may persuade the jury that punishment is unnecessary, or that only a small punishment is warranted. Civil Jury Instructions (Aug. 2007 rev.) . Whether the conduct caused physical harm; weak or vulnerable and took advantage of [him/her/, (b) Is there a reasonable relationship between the amount of punitive, discourage future wrongful conduct? The folks over at Mayer Brown's Guideposts have a new post entitled "To Bifurcate or Not to Bifurcate," discussing whether it is strategically wise for defendants to take advantage of the bifurcation procedure that exists for punitive damages trials in many states, including California. harmed the plaintiff also posed a substantial risk of harm to the general public, and so was particularly reprehensible - although counsel may argue in a, particular case that conduct resulting in no harm to others nonetheless posed a, grave risk to the public, or the converse. “It follows that the wealthier the wrongdoing defendant, the larger the … The defendant in this case requested bifurcation under section 3295. Punitive Damages, §§ 14.1-14.12. But we're still waiting for a published California opinion to address this issue and put to rest the notion that the second phase should focus entirely on the defendant's financial condition. The plaintiff is seeking an award of. ]” Punitive damages are intended to punish, and thereby deter, wrongful acts. Our jurisprudence and the principles it has now established, demonstrate, however, that, in practice, few awards exceeding a single-digit ratio, between punitive and compensatory damages, to a significant degree, will satisfy, due process. [HOT] Read Latest COVID-19 Guidance, All Aspects... [SCHEDULE] Upcoming COVID-19 Webinars & Online Programs [GUIDANCE] COVID-19 and Force Majeure Considerations California law authorizes punitive damages to punish and discourage “oppression, fraud, or malice.” Courts have explained that punitive damages are “an expression of moral condemnation” for conduct done with “willful and conscious disregard of the … injury, harm, or damage actually suffered by the plaintiff and proved at trial. There is no fixed formula for determining the amount of punitive, damages, and you are not required to award any punitive damages. In … . 14-ml-2570, S.D. So too is the amount of any punitive damage award. That argument doesn't make much sense, given that the jury's task in the second phase is to evaluate the reprehensibility of the defendant's conduct. Bifurcation of Punitive Damages At trial, determinations regarding punitive damages are sometimes "bifurcated," or tried separately, from other issues. Bifurcation Serves the Ends of Convenience and Judicial Economy.....5 4. . 15 [85 Cal.Rptr.2d 726], original italics.). following factors in determining the amount: 1. 2017) Torts, §§ 1727, 1729, 1731. (See Civil Code section 3295(d).) ), • “[I]n some cases, the defendant’s financial condition may combine with high, reprehensibility and a low compensatory award to justify an extraordinary ratio, between compensatory and punitive damages. We decline again to impose a bright-line ratio which a punitive damages, award cannot exceed. [Eugene Volokh] 5th Cir. United States District Court Northern District of California UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION NAIDONG CHEN, et al., Plaintiffs, v. FLEETCOR TECHNOLOGIES INC., Defendant. 3940, 3942, 3943, 3945, 3947, and 3949 could convey this distinction better by stating more explicitly, that evidence of harm caused to others may be considered for the one purpose, but not for the other, and by providing that explanation together with the, reprehensibility factors rather than in connection with the reasonable relationship, 21 [71 Cal.Rptr.3d 775], internal citation omitted. When we touched on this issue in one of our early posts back in 2008, we noted that some California lawyers take the position that when a trial is bifurcated pursuant to section 3295(d), the only relevant evidence for the second phase of trial is evidence of the defendant's financial condition. Ind. . that an award of exemplary damages must be, accompanied by an award of compensatory damages [or its equivalent] is still, sound. Bifurcation is Necessary to Avoid the Risk of Jury Confusion.....6 B. A plaintiff, seeking punitive damages is not seeking a mere declaration by the jury that he is, entitled to punitive damages in the abstract. INDIANAPOLIS — An Indiana federal magistrate judge on Oct. 30 denied a motion by Cook Medical Inc. to bifurcate the issue of punitive damages during discovery and during trials involving the device maker’s inferior vena cava (IVC) filters (In Re: Cook Medical, Inc., IVC Filters Marketing, Sales Practices and Product Liability Litigation, MDL Docket No. The California Supreme Court, in Donnelly v. Southern Pacific CO. (1941) 18 Cal.2d 863, gave the following examples from the United States Supreme Court of when negligent conduct would warrant punitive damages: "This is the type of misconduct that the federal courts characterize as "willful and wanton negligence." d. In the second stage of a bifurcated trial, the trier of fact shall determine if a defendant is liable for punitive damages… The post observes that many defense lawyers prefer not to bifurcate the issue of punitive damages into a separate phase of trial. Punitive Damages Chapter 24 1 PUNITIVE DAMAGES: ISSUES ARISING AT TRIAL AND ON APPEAL I. . • “[Section 3295(d)] affects the order of proof at trial, precluding the admission of, evidence of defendants’ financial condition until after the jury has returned a, verdict for plaintiffs awarding actual damages and found that one or more, defendants were guilty of ‘oppression, fraud or malice,’ in accordance with Civil, 272, 274-275 [34 Cal.Rptr.2d 490], internal citations omitted. Unfortunately, California cases have never squarely addressed that issue. We believe that an instruction on these issues should, clearly distinguish between the permitted and prohibited uses of such evidence, and thus make clear to the jury the purposes for which it can and cannot, consider that evidence. [A]n award of more than four times the amount of, compensatory damages might be close to the line of constitutional, impropriety. See Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal.App.4th 976, 991: New Indianapolis Hotels, LLC, Case No. 3. 16-cv-00135-lhk28 order order re: defendant’s motions in limine and motion to bifurcate punitive damages 1 2 3 4 5 6 7 8 9 10 11 To recover an award of punitive damages, it should be enough to show the defendant is a menace to society, who thought nothing of robbing, stealing, and pillaging to make a profit no matter who got hurt. Plaintiff argues that bifurcation will prejudice them and will only prolong the trial which will result in a waste of additional resources for … ), • “ ‘[T]he most important indicium of the reasonableness of a punitive damages, award is the degree of reprehensibility of the defendant’s conduct.’ We have, instructed courts to determine the reprehensibility of a defendant by considering, whether: the harm caused was physical as opposed to economic; the tortious, conduct evinced an indifference to or a reckless disregard of the health or safety, of others; the target of the conduct had financial vulnerability; the conduct, involved repeated actions or was an isolated incident; and the harm was the, result of intentional malice, trickery, or deceit, or mere accident. In our view, Judicial Council of California. Justia - California Civil Jury Instructions (CACI) (2020) 3942. appropriate declaration and support papers as provided by California law. 3-E. California Tort Damages (Cont.Ed.Bar 2d ed.) Punishment on these bases, creates the possibility of multiple punitive damages awards for the same, conduct . The bracketed phrase should not be given if an award, of compensatory damages is the “true measure” of the harm or potential harm, [rejecting consideration for purposes of assessing punitive damages of the plaintiff’s, loss of the benefit of the bargain if the jury had found that there was no binding, Read the optional final sentence of factor (c) only if the defendant has presented, Read the optional final sentence if there is a possibility that in arriving at an amount, of punitive damages, the jury might consider harm that the defendant’s conduct may, 353-354 [127 S.Ct. You must now decide the amount, if any, that you should award [, punish a wrongdoer for the conduct that harmed the plaintiff and to. California courts have also held that punitive damages may be awarded if a defendant is guilty of willful and wanton negligence. Proof must be shown – by clear and convincing evidence – … (Exception: The same jury must hear both phases of a bifurcated punitive damages trial.) In forums that deem evidence of a defendant’s financial condition relevant to the amount of punitive damages, refusing to bifurcate the proceedings so that the introduction of such evidence is deferred until after the other issues in the case have been decided substantially increases the risk that the jury’s determination of those other issues will be infected by financial evidence that has no probative … ), (1998) 63 Cal.App.4th 1128, 1166 [74 Cal.Rptr.2d 510]. Consequently, the trial court erred in failing to so instruct the jury.” (, • “We conclude that the rule . 15 California Forms of Pleading and Practice, Ch. In cases where “motive matters,” that is, punitive damages cases where the plaintiff must prove malice or fraud, or, for example, discrimination cases, the other side’s prior bad acts are admissible. The unpublished opinion we discussed back in 2008 discussed the fact that the defendant presented mitigating evidence during the second phase of a bifurcated trial. ‘[T]o consider, the defendant’s entire course of conduct in setting or reviewing a punitive, damages award, even in an individual plaintiff’s lawsuit, is not to punish the, defendant for its conduct toward others. A plaintiff is entitled to such damages only after the jury, in, the exercise of its untrammeled discretion, has made the award.’ ” (, • “In light of our holding that evidence of a defendant’s financial condition is, essential to support an award of punitive damages, Evidence Code section 500, mandates that the plaintiff bear the burden of proof on the issue. They, demonstrate what should be obvious: Single-digit multipliers are more likely to, comport with due process, while still achieving the State’s goals of deterrence, and retribution, than awards with ratios in range of 500 to 1 . Bifurcation is Necessary to Avoid Prejudice to Dollar Tree.....6 5. The issue of trial bifurcation when dealing with punitive damages cases has been a hotly contested issue dating back to 1994 when the W.R. Grace & Co. Conn. v. Waters decision was issued by the Florida Supreme Court. Civil Code section 3295(d). 1962). You must not, use the amount of punitive damages awarded in other cases to determine the, amount of the punitive damage award in this case, except to the extent you, determine that a lesser award, or no award at all, is justified in light of the. . 16-CV-00135-LHK ORDER RE: DEFENDANT’S MOTIONS IN LIMINE AND MOTION TO BIFURCATE PUNITIVE DAMAGES ), • “Though due process does not permit courts or juries, in the calculation of, punitive damages, to adjudicate the merits of other parties’ hypothetical claims, against a defendant under the guise of the reprehensibility analysis, this does not, mean that the defendant’s similar wrongful conduct toward others should not be, considered in determining the amount of punitive damages. . 318, 813 P.2d 1348], (2017) 16 Cal.App.5th 932, 942 [224 Cal.Rptr.3d 751]. . Based in Sonoma, he is a managing editor and 40-year contributor to the monthly publication California … The likelihood of future punitive damage awards may, also be considered, although it is entitled to considerably less weight.” (, 525], internal citations omitted.) ), • “Evidence of the defendant’s financial condition is a prerequisite to an award of, punitive damages. 1513, 155 L.Ed.2d. ‘Indeed, it is likely, that blind adherence to any one standard [of determining wealth] could, sometimes result in awards which neither deter nor punish or which deter or. ), • “With the focus on the plaintiff’s injury rather than the amount of compensatory, damages, the [‘reasonable relation’] rule can be applied even in cases where only. News and commentary on punitive damages litigation in California and nationwide. Punitive Damages Under California Law. If, you decide to award punitive damages, you should consider all of the. Ct. Justice Willett) Praises His Old Colleagues' Speed …. The plaintiffs assert that this type of bifurcation is unfair because jurors will be left An award of nominal damages cannot support an award of punitive damages. [Ca Civil § 3295(d)] Motion To Consolidate Or Coodinate: When separate lawsuits have common issues of law or fact, the court may order them consolidated or coordinated for trial. State Farm Mutual Automobile Insurance Co., supra, (1996) 49 Cal.App.4th 1645, 1661 [57 Cal.Rptr.2d, (1995) 39 Cal.App.4th 1045, 1048 [46 Cal.Rptr.2d 144], internal. considerations are the nature of the defendant’s conduct, the defendant’s wealth, 211 Cal.App.3d 1598, 1602 [260 Cal.Rptr. CACI Nos. News and commentary on punitive damages litigation in California and nationwide. (c)), prohibiting claims for punitive damages from stating an amount or amounts (§ 3295, subd. . January 21, 2014. 11. The purpose is to deter, not to destroy.” (, • “[A] punitive damages award is excessive if it is disproportionate to the, • “It has been recognized that punitive damages awards generally are not, permitted to exceed 10 percent of the defendant’s net worth.” (, • “While ‘there is no rigid formula and other factors may be dispositive especially, when net worth is manipulated and fails to reflect actual wealth,’ net worth is, often described as ‘the critical determinant of financial condition.’ [¶] A plaintiff, seeking punitive damages must provide a balanced overview of the defendant’s, financial condition; a selective presentation of financial condition evidence will, Cal.App.5th 638, 648 [245 Cal.Rptr.3d 608], internal citation omitted. 2d 341,343 (Fla. 2d Dist. . . Many defense trial lawyers prefer to avoid a second round of closing arguments before a jury that has already rejected the defendant's arguments on liability and found that the defendant acted with malice. Civil Code section 3294. ), • “The wealth of a defendant cannot justify an otherwise unconstitutional punitive, U.S. at p. 427, internal citation omitted. (c)), prohibiting claims for punitive damages from stating an amount or amounts (§ 3295, subd. The granting or, withholding of the award of punitive damages is wholly within the control of the, jury, and may not legally be influenced by any direction of the court that in any, case a plaintiff is entitled to them. By placing the defendant’s conduct on one occasion into, the context of a business practice or policy, an individual plaintiff can, demonstrate that the conduct toward him or her was more blameworthy and, warrants a stronger penalty to deter continued or repeated conduct of the same, [180 Cal.Rptr.3d 382], internal citations omitted. Another relevant yardstick is the amount of compensatory, damages awarded; in general, even an act of considerable reprehensibility will, not be seen to justify a proportionally high amount of punitive damages if the, actual harm suffered thereby is small. • When Punitive Damages Permitted. Because the award, whatever its amount, cannot be sustained absent evidence of the defendant’s, financial condition, such evidence is ‘essential to the claim for relief.’ ” (, • “A defendant is in the best position to know his or her financial condition, and, cannot avoid a punitive damage award by failing to cooperate with discovery, orders. The relevant. (a)), revising the definitions of "malice" and "oppression" to require "despicable" conduct (§ 3294, subd. . (2005) 35 Cal.4th 1159 [29 Cal.Rptr.3d 379, (1978) 21 Cal.3d 910, 929 [148 Cal.Rptr. • “The purpose of punitive damages is to punish wrongdoers and thereby deter the commission of wrongful acts.” ( Neal, supra , 21 Cal.3d at p. 928, fn. 2711, 125 L.Ed.2d 366] [considering the, hypothetical of a person wildly firing a gun into a crowd but by chance only, damaging a pair of glasses].) (1991) 54 Cal.3d 105, 119 [284 Cal.Rptr. These issues are relevant to punitive damages and some liability questions. The folks over at Mayer Brown's Guideposts have a new post entitled "To Bifurcate or Not to Bifurcate," discussing whether it is strategically wise for defendants to take advantage of the bifurcation procedure that exists for punitive damages trials in many states, including California. California Civil Code, sections 3294-3296, Largest Punitive Damages Awards to Survive Appeal. A Standing Ovation for the Ninth Circuit’s Latest Food-Labeling Class-Action Decision, “Texas v. Pennsylvania Would Have Upended the Electoral College; Texas’s innovative injury would allow any state to sue any other state, directly in the Supreme Court, for breach of its election laws”, “Report: Social media manipulation affects even US senators”, SLAPP: 2/2 DCA Affirms $33,060 In Fees Awarded Against SLAPPing Defendants For Filing A Frivolous Motion To Strike For The Sole Purpose Of Delay, Lawyer Files Document “Under Plenty of Perjury”, Evans & Pasquale on Products Liability for FDA-Regulated AI/ML Software, Fight the Power: Ninth Circuit sides with the Constitution over totalitarianism in smackdown of Governor Sisolak, Interesting panels during this year's virtual Golden State Institute, October 27-29, 2020, Guideposts | Punitive Damages Blog | Law Lawyers | Mayer Brown LLP, Eighth Circuit Okays 25:1 Ratio In Fraud Case, REMOTE MEDIATION DURING THE PANDEMIC SHELTER IN PLACE PERIOD. Sup. 2570, No. (, 113 P.3d 63].) • “[T]he ‘net’ concept of the net worth metric remains critical. By the same token, of course, the function of punitive damages is, not served by an award which, in light of the defendant’s wealth and the gravity, of the particular act, exceeds the level necessary to properly punish and deter.”, • “[T]he Constitution’s Due Process Clause forbids a State to use a punitive, damages award to punish a defendant for injury that it inflicts upon nonparties or, are, essentially, strangers to the litigation.” (, • “Evidence of actual harm to nonparties can help to show that the conduct that. .” (, • “Nonetheless, because there are no rigid benchmarks that a punitive damages, award may not surpass, ratios greater than those we have previously upheld may, comport with due process where ‘a particularly egregious act has resulted in. Because compensatory damages are designed to, make the plaintiff ‘whole,’ punitive damages are a ‘windfall’ form of recovery.”, Cal.Rptr.2d 898, 882 P.2d 894], internal citations omitted. [Citation. The existence, of any one of these factors weighing in favor of a plaintiff may not be sufficient, to sustain a punitive damages award; and the absence of all of them renders any, • “[I]n a case involving physical harm, the physical or physiological vulnerability, of the target of the defendant’s conduct is an appropriate factor to consider in, determining the degree of reprehensibility, particularly if the defendant, deliberately exploited that vulnerability.” (, • “[W]e have been reluctant to identify concrete constitutional limits on the ratio, between harm, or potential harm, to the plaintiff and the punitive damages, award. (d) The court shall, on application of any defendant, preclude the admission of evidence of that defendant's profits or financial condition until after the trier of fact returns a verdict for plaintiff awarding actual damages and finds that a defendant is guilty of malice, oppression, or fraud in accordance with Section 3294.. Such evidence may not have been relevant to the issues of liability, but may become relevant during the second phase. [Any award you impose may not exceed [, [Punitive damages may not be used to punish [. The court in, instruction be given if evidence of other punitive damage awards is introduced into, If you determine that a defendant has already been assessed with punitive, damages based on the same conduct for which punitive damages are requested, in this case, you may consider whether punitive damages awarded in other cases, have sufficiently punished and made an example of the defendant. ), (2015) 239 Cal.App.4th 165, 194 [191 Cal.Rptr.3d 263], internal, 21 Cal.3d at p. 928, internal citations and footnote omitted. BIFURCATION OF PUNITIVE DAMAGES. For CEB, he has also authored California Tort Guide, now in its third edition, California Workers’ Damages Practice, now in its second, and chapters and parts of other CEB books. Other reforms pertaining to punitive damages included raising the burden of proof for recovery to "clear and convincing evidence" (§ 3294, subd. But the wreck of a punitive damage award is seldom as bad as it looks. . . Upon the clearest proof of malice in fact, it is, still the exclusive province of the jury to say whether or not punitive damages, shall be awarded. ), • “It follows that the wealthier the wrongdoing defendant, the larger the award of, exemplary damages need be in order to accomplish the statutory objective.”, • “ ‘A plaintiff, upon establishing his case, is always entitled of right to, compensatory damages. 64, Punitive Damages - Individual Defendant - Bifurcated Trial, ] in punitive damages. 13.) Bowen v. Manuel, 144 So. Of course, there remains a risk that the jury will use the punitive awards from prior cases as a measuring stick for its own punitive award, so defendants may elect not to introduce it even at the cost of forfeiting the argument that they have been punished enough.