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Why Punitive Damages Are Hard To Get

Tort reformers like to pretend that it is easy to get millions and millions of dollars in punitive damages from juries. The data does not support that notion. In addition, there are a number of very real, very practical reasons why juries do not often make large awards of punitive damages. This post will relate just one such reason. It is called bifurcation.

The New Jersey Vioxx trial has gone to the jury. ABC News reports the procedure:

If the jury awards compensatory damages, there would be a separate trial to determine a punitive damage award. New Jersey has no cap on compensatory damages, but punitive damages are capped at five times compensatory damages. Lawyers from both sides said such a trial would be very short and would begin soon, but the judge has not announced specific plans.

I am not familiar with New Jersey law but in Georgia, the liability and punitive damages phases of the trail are similarly bifurcated.

In Georgia, at the end of the presentation of evidence and closing arguments, the jury deliberates and makes a decision on whether or not liability has been proved, and, if so, the amount compensatory damages. At the end of the verdict form will be a question for the jury as to whether or not punitive damages should be awarded. If the jury decides to award punitive damages, they check that box, and return their verdict form. After a while, they are summoned back to the courtroom where each side has an opportunity to present evidence on the punitive damage issue. At the close of that evidence and closing arguments, and another charge by the court, the jury retires to consider the punitive damage question.

If the jury decides against punitive damages, they get to go home. If they decide to make a punitive damage award, they are made to wait around a while and then are hauled back into the courtroom to listen to lawyers talk some more.

The Vioxx jury in New Jersey has been hearing testimony for about seven weeks. The jurors probably believe that they have had enough lawyer talk for a lifetime. Do you really think that jurors would voluntarily choose to listen to more lawyer talk unless they felt a compelling need to do so?

It is true that the actual length of the punitive damages portion of the trial will very likely be quite short. I know that mine have always been measured in minutes. Nonetheless, the jury can not be sure of that when making the decision. Sure, the judge and the plaintiff’s lawyer may have promised the jury that further proceedings will be short but, after a seven week trial, protestations of brevity by counsel and the court may lack a certain credibility. Jurors would prefer that cases be wrapped up in a pretty bow within 60 minutes, less about 10 for commercials. Real life suffers by comparison.

If the jury decides to endure more presentation of evidence, it will be because the jurors feel that they have a message than needs sending. The jury may be right or wrong, depending on one’s perspective, but it is very unlikely that the jury will act frivolously. They will only award punitive damages if they feel compelled by the evidence to do so.

As an aside, if the New Jersey case reaches the point of a punitive damage trial, Merck faces an awkward dilemma. If the jury decides that Merck is liable and is considering punitive damages, they are going to want an apology from Merck.

The failure to apologize may offend jurors who, by their lights, have just spoken a truth that they would like Merck to hear.

If Merck fails to apologize, some jurors may get the impression that Merck did not hear the verdict and, perhaps, that a way needs to be found to attract Merck’s attention. Large numbers will get Merck’s attention, or so a juror might reason. Such reasoning may lead to a larger award than would otherwise be made.

On the other hand, Merck can, perhaps, limit the size of any punitive damage award by apologizing. An apology lets the jury know that the original message was heard loud and clear and does not need to be re-sent.

Any apology, however, would have to be carefully worded so that it will not be read back to the next Vioxx jury. That is a tight rope to walk. Of course, Merck does not face that dilemma unless and until the jury has found it liable in the underlying liability/compensatory damage case.

I will let you know when I read of a verdict.

Posted by Dwight Meredith at November 2, 2005 01:16 PM