TortsProf Blog

The Decision to Award Punitive Damages: An Empirical Study

Theodore Eisenberg, Michael Heise, Nicole Waters, & Martin Wells (all Cornell Law except Waters, who is with the National Center for State Courts) have posted to SSRN The Decision to Award Punitive Damages:  An Empirical Study.  Here is the abstract:

Empirical studies have consistently shown that punitive damages are rarely awarded, with rates of about three to five percent of plaintiff trial wins. Using the 2005 data from the Bureau of Justice Statistics Civil Justice Survey, this article shows that knowing in which cases plaintiffs sought punitive damages transforms the picture of punitive damages. Not accounting for whether punitive damages were sought obscures the meaningful punitive damages rate, the rate of awards in cases in which they were sought, by a factor of nearly 10, and obfuscates a more explicable pattern of awards than has been reported. Punitive damages were surprisingly infrequently sought, with requests found in about 10% of tried cases that plaintiffs won. Punitive damages were awarded in about 30% these trials. Awards were most frequent in cases of intentional tort, with a punitive award rate of over 60%. Greater harm corresponded to a greater probability of an award: the size of the compensatory award was significantly associated with whether punitive damages were awarded, with a rate of approximately 60% for cases with compensatory awards of $1 million or more. Regression models correctly classify about 70% or more of the punitive award request outcomes, Judge-jury differences in the rate of awards exist, with judges awarding punitive damages at a higher rate in personal injury cases and juries awarding them at a higher rate in nonpersonal injury cases. These puzzling adjudicator differences may be a consequence of the routing of different cases to judges and juries.

--CJR

Personal Injury Roundup No. 39 (6/05/09)

Happy birthday today to both my Dad (62) and my brother (34).  In torts...

Reform, Legislation, Policy

• Ted Frank on the "tort tax"  (Overlawyered)
• GM and Chrysler products liability claims (Day on Torts) (The Pop Tort)

New Lawsuits

• Beaumont, TX man files suit alleging surgeon left a needle inside his body that perforated his bladder.  (Southeast Texas Record)
• A Girl Scout and her mom filed suit against a prominent San Francisco litigator, alleging that he failed to put his car into park before stepping out of it.  The car hit the two of them while they were selling Girl Scout cookies.  Both plaintiffs suffered severe leg injuries; the mother's left leg was amputated above the knee.  (San Francisco Chronicle)

Trials, Settlements and Other Ends

• Walter Olson reports that the San Francisco Zoo has settled with the brothers injured in a tiger attack on Christmas Day 2007.  (Overlawyered)
• Injured longshoreman avoids removal to federal court; receives $5M in damages. (VLW Blog)
• Lackawanna County, PA woman receives $1.88 M in failure-to-diagnose cancer case on behalf of her late husband.  (Scranton Times-Tribune)

Damages

• $4M awarded in Maryland cerebral palsy lawsuit (AboutLawsuits.com)
• Finger amputation pain-and-suffering awards range from $85,000 to $2M (Hochfelder/New York Injury Cases Blog)

Appeals    

• Washington Supreme Court holds that strict liability applies retroactively to all claims, such as from asbestos exposure, that occurred prior to the adoption of strict liability in the state.   Download Opinion 80728-1[1] [PDF]  It should be noted that Ohio reached the opposite result in DiCenzo v. A-Best Prods. Co., Inc., 897 N.E.2d 132 (Ohio 2008), cert. denied, 2009 WL 185427 (U.S. Mar. 30, 2009).

Miscellaneous

          Ron Miller on "Personal Injury Verdicts and the Recession"

Thanks to Mark Behrens.

--CJR

New Tort Study by the Pacific Research Institute

Today at Point of Law, Walter Olson directs his readers to "Tort Law Tally," a new study by the Pacific Research Institute.  The executive summary provides the following:

Of the 25 tort reforms that we examine, the statistical analysis identifies 18 reforms to state civil-justice systems that significantly reduced tort losses and tort insurance premiums from 1996 through 2006. For some categories of tort cases, specific reforms cut payouts by more than 50 percent. The cumulative effect of reforms across all tort categories is a 47-percent reduction in losses and a 16-percent reduction in insurance premiums for consumers. Some tort reforms are highly effective at reducing costs in certain tort categories, but are ineffective in other tort categories. It is important that reformers pick the right tool for each problem. If we order the tort reforms according to each reform's ability to reduce aggregate tort losses, the top eight reforms are: attorney-retention sunshine (12 percent), Daubert/Frye (10 percent), frivolous lawsuits (7 percent), jury service (6 percent), appeal-bond caps (4 percent), negligence standard (3 percent), non-economic-damage caps (2 percent), and medical-malpractice damage caps (1 percent).

--CJR

California Supreme Court Hears Arguments in Right of Publicity Case

The California Supreme Court hears arguments today in an interesting right of publicity case that pits California's statutory right of publicity - which prohibits the use of likenesses without consent -  against the statutory single publication rule, which limits damages to one instance.   In the past, the single publication rule has been applied to libel cases, so the defendant is only liable for the one offending statement even though thousands of copies of the book were published.  

Now, however, in Christoff v. Nestle, the court will consider whether the single publication rule applies to the photo of a male model that Nestle used for Taster's Choice labels (as well as advertisements, coupons) in 22 countries without his consent.   The Recorder has more on the story.

- SBS

Two New Suits Filed Over Missouri Sludge

On Friday, two new plaintiffs filed suit over the tannery sludge spread on farmland around Cameron, Missouri.   Plaintiffs allege that the sludge is connected to the unusual high number of brain tumors in Cameron's small population.    About Lawsuits has more. 

- SBS

Bausch & Lomb Settles Eye Cleanser Suits

According to the Boston Globe (AP), Bausch & Lomb has settled around 600 lawsuits based on fungal eye infections allegedly caused by its contact lens cleaner. 

- SBS

Supreme Court Summarily Reverses Fear of Cancer Case

In a per curiam opinion(pdf) yesterday, the Supreme Court summarily reversed a $5 million verdict under FELA because the trial court rejected the defendant's proposed jury instruction stating that the jury had to find that the plaintiff's fear of cancer was "genuine and serious."  The ABA Journal has more on the decision.   Justice Stevens and Justice Ginsburg both issued dissenting opinions. 

- SBS

Vermont Passes Gift Disclosure Law

FDA Law Blog reports that Vermont just passed a new law prohibiting gifts from drug & medical device manufacturers to physicians or health care providers subject to a few exceptions such as samples or clinical trials.   Even then, the new law requires disclosure to the state (though disclosure is not required for samples).  FDA Law Blog has full coverage.

- SBS