Type of Insurance Case: LifeHealthAutoN/A, Shernoff Bidart Echeverria LLP is a Limited Liability Partnership. In cases involving multiple potential tortfeasors, plaintiffs frequently seek a finding of recklessness against defendants in order to get joint and several liability through CPLR § 1602(7). Punitive damage law is complex, but the award-winning attorneys at The Law Offices of John Day, P.C. Despite the clear language indicating that the level of conduct required for a finding of punitive damages is near that of criminality, juries are sometimes given the issue in cases involving far lesser conduct. Toll Free: (800) 458-3386 (1995, c. 514, s. However, they do not make securing punitive damages impossible, and there are certain clearly-recognized forms of conduct that will justify claims for punitive damages. Many Insurance Policies Exclude Punitive Damages. On the other hand, some courts are unwilling to consider such a motion. Yet, the same five percent award of the defendant’s $10 billion net worth amounts to $500 million. In other words, the jury should be told that the law requires a greater punitive damage award where the conduct is particularly reprehensible, and that the law requires that the amount the jury awards in punitive damage must cause some financial “discomfort”, in order to serve the public purpose of deterrence as discussed earlier. In state court, a motion for partial summary judgment on the issue of punitive damages may be available. The court may award you “damages,” which will be paid by the other side, if you can prove that you were harmed and the other party caused it. Punitive damages are rarely awarded in cases in New Jersey, as they require that the defendant’s actions were outstandingly bad. Justin Nahama Because the Court of Appeals did not believe Westinghouse had acted recklessly, it did not address the issue of whether the standard for finding recklessness and punitive damages was the same. Punitive damages, or exemplary damages, are awarded to a plaintiff in addition to compensatory damages as a way to punish the defendant for a purposeful or especially negligent action. | In order to dispose of punitive damages as an issue in advance of trial, a defendant should explore the possibility of motion practice. It is important that the jury understand that they have the power to send a warning to the defendant’s industry that misconduct will not be tolerated by the public. Punitive damages are also meant to set an example that deters the at-fault party or others from acting in a similar manner again. Previously, the Court of Appeals had made an even stronger statement that “[p]unitive damages are awarded in tort actions ‘where the defendant’s wrongdoing has been intentional and deliberate and has the character of outrage frequently associated with crime.’” See Prozeralik v. Capital Cities Commc’n, Inc., 82 N.Y.2d 466, 479 (1993) (internal citation omitted). As such, under the Federal Rules of Civil Procedure, punitive damages may not be susceptible of a motion for partial summary judgment in order to create a clear record with respect to potential settlement rationale, or to lift that threat before trial. Darien, CT 06820 The judge in Messner refused to consider a motion for partial summary judgment on punitive damages, stating “In New York punitive damages may not be considered until there is a finding of compensatory damages. A punitive award of five percent of the individual’s $50,000 amounts to $2,500, which is not unreasonable. Punitive damages are designed to punish a defendant and deter bad conduct. PUNITIVE DAMAGES: WHAT DO I NEED TO DO, WHEN AND HOW DO I PROVE IT. Until there is a resolution of the issue undecided by the Maltese court, however, the discretion of trial judges to charge punitive damages remains unclear. Ultimately, the jury should understand that their punitive verdict will protect not just an individual or some special interest group, but rather, will protect everyone from future abuses. The ARB also recently affirmed a substantial award of compensatory damages based solely on a whistleblower’s testimony. The jury must understand the importance of their role of protecting the public in the punitive phase. Litten, 256 Va. 573 (1998) (approving jury instruction using that standard for punitive damag- es). It is not enough to simply prove negligence. purposes of punitive damages are to punish a wrongdoer for the conduct that harmed the plaintiff and to discourage similar conduct in the future. The safest way for litigants to attempt to control risks associated with trying such cases now is through pretrial motion practice, either at the summary judgment or in limine stage, to eliminate the punitive damage claim. Punitive damages are legal recompense that a defendant found guilty of committing a wrong or offense is ordered to pay on top of compensatory damages. It is important that the jury understand that the purpose of punitive damages is to protect the public, which includes the members of the jury. To obtain punitive damages, the victim must be able to prove the at-fault party acted in a manner that it knew was likely to cause another injury. As discussed below, the use of the word “reckless” in the New York Pattern Jury Instructions and certain cases creates a significant problem for defendants when the issue of whether to charge the jury on punitive damages is argued. Riqui Bonilla and Nitika Gupta Fiorella of Fish & Richardson discuss the firm's Next Gen initiative and what seasoned attorneys and clients can do to further the success of developing trial lawyers. See, e.g., Leighton v. Lowenberg, 103 A.D.3d 530, 960 N.Y.S.2d 87 (1st Dep’t 2013). You may award punitive damages against [ name of individual defendant] only if [ name of plaintiff] proves by clear and convincing evidence that The Maltese court stated that recklessness was akin to a “gross negligence standard, requiring that ‘the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow’ and has done so with conscious indifference to the outcome [citations omitted].” See Maltese at 596-7. This concept is further set forth in another jury instruction: “The wealthier the wrongdoing defendant, the larger the award of punitive damages needs to be in order to accomplish the objectives of punishment and deterrence of such conduct in the future” (Adams v. Murakami, (1991) 54 Cal.3d 105, 110) (emphasis added). Fla. Stat. The takeaway from the Fourth Department decision is that a trial court may operate within its discretion to charge punitive damages where a defendant is following governmental safety regulations in place to avoid the very harm at issue. In a legal case, “damages” refers to the money that you are seeking in order to compensate you for some legal wrong that was committed by the other party. Courts may award punitive damages to punish and deter the defendant’s wrongful conduct. [email protected], © 2020 Law Business Media | Terms | Privacy | Login, Consumer Finance Protection Bureau (CFPB), Federal Energy Regulatory Commission (FERC), General Data Protection Regulation (GDPR). One powerful jury instruction is the following: “The purpose of punitive damages is purely a … This includes the members of the jury themselves, their children, your client, you, the judge, etc. He sees the cloud-based platform as a model for the future. Generally, punitive damages can be awarded in an amount up to the greater of $500,000.00 or three times the amount of compensatory damages. NAM (National Arbitration and Mediation). Each of these heightened standards makes it more difficult to prove a claim for punitive damages than it is to prove a claim for compensatory damages. Hon. What Must Be Proven to Obtain Punitive Damages? Group (1978) 21 Cal.3d 910, 928, fn 13) (emphasis added). The standard for an award of punitive damages is that a defendant manifest evil or malicious conduct beyond any breach of professional duty.” See Dupree v. Giugliano, 20 N.Y.3d 921, 924 (2012). Answer and Explanation: The laws for punitive damages differ considerably from one country to another, even from state to state. 600 S. Indian Hill Blvd Compensatory damages are awarded in civil court cases where loss has occurred as a result of the negligence or unlawful conduct of another party. California Civil Code 3294 allows a trial court jury to award punitive damages in a personal injury case. Give the jury examples of warnings they see everyday: if a swimming pool is too shallow, it should have a warning; if a product is dangerous, it should have a warning, if a floor is slippery, it should have a warning, etc. Part 1 of 3: Hiring an Attorney 1. Compensatory damages are difficult to obtain because most damages (non physical ones) are hard to prove, such as depression or worsening of your mental conditions. Please indicate that you consent to our use of cookies in accordance with our policy, or you may opt to browse without cookies. In Marinaccio, the court stated “[p]unitive damages are permitted only when a defendant purposefully causes, or is grossly indifferent to causing, injury and defendant's behavior cannot be said to be merely volitional; an unmotivated, unintentional or even accidental result of a legally intentional act cannot, alone, qualify [citations omitted].”See id. As with any case, obtaining a favorable verdict that includes punitive damages will depend largely on the individual facts of each case.This article addresses general techniques that can be used in the closing argument of the punitive damage phase. David B. Saxe (Ret.) The lack of a ruling on the specific interplay between the standards for recklessness and punitive damages has created a situation where courts are allowing punitive damages to be charged in cases on what is essentially a gross negligence standard. The Court of Appeals addressed the issue of recklessness in the mass tort context in Maltese v. Westinghouse, 89 N.Y.2d 955, 678 N.E.2d 467 (1997). The application of punitive damages in mass tort actions in New York is an unsettled area of the law that impacts the way counsel should approach its pretrial motion practice. See Drabczyk v. Fisher Controls, 92 A.D.3d 1259, 938 N.Y.S.2d 715 (4th Dep’t 2012). It further states “[a]n act is malicious when it is done deliberately with knowledge of the plaintiff's rights, and with the intent to interfere with those rights. Actual malice can be proved by showing the defendant knew the statement they made about the plaintiff was false or acted with reckless disregard about whether it was false. Before even beginning the punitive phase of the trial, you will know that the jury has already found that the defendant’s conduct was either malicious, oppressive, or fraudulent. View Our Terms of Use - Privacy Policy. We use cookies on our website to enhance your browsing experience. Consequently, it is premature to consider the application to dismiss those counts seeking punitive damages.” See id., at 11. Unlike punitive damages, which are intended to punish the person for intentionally committing a wrongful act, compensatory damages are intended to put you back in relatively the same position as you were before you suffered the injury or damage to your property. It will also alleviate any concerns the jury may have about the impact their award will have on future premiums. In addition, punitive damages can only be awarded if you prove the wrongdoer acted recklessly, knowingly, maliciously or intentionally. 301 N. Canon Drive #200 To prevent this argument in the first place, a jury instruction such as the following may be given: “The [insurance company defendant] must pay any punitive damage award from its assets or profits and cannot pass any punitive damage award on to its members in the form of increased premiums or charges” (Evidence Code §352; Accounting Statement 84-1, November 26, 1984, State of California Department of Insurance; Health and Safety Code §1342.5). The value of punitive damages  Several states have no caps on punitive damages, which mean that judges can award for as much as they appropriate for the situation. But ever since Adams v. Murakami(1991) 54 Cal.3d 105, our supreme court has made it clear you will need evidence over and above the defendant’s wrongdoing if you want to win punitive damages at trial and keep them on appeal. Naturally, determining what amount will cause the appropriate “discomfort” will depend on the financial condition of the defendant. California Resident?YesNo An act is wanton and reckless when it demonstrates conscious indifference and utter disregard of its effect upon the health, safety and rights of others.” See id. Punitive damages is designed to “punish and deter” a bad actor Defendant. The Court of Appeals went on to affirm the First Department holding that the jury finding of recklessness was properly set aside on post-trial motion. It is important that the jury understand that the purpose of punitive damages is to protect the public, which includes the members of the jury. Until such time as the Court of Appeals clarifies the distinction between the evidence necessary to determine a finding of recklessness and that sufficient to charge for punitive damages, the threat of an unsupportable punitive damages finding against defendants in New York courts is significant. ), neutral with NAM (National Arbitration and Mediation), discusses the ways that his experience as a judge and a lawyer inform his ability as a neutral; the advantages of alternative dispute resolution versus litigation; and the role of mediation and arbitration during the pandemic and beyond. | Just as these warning must be prominently displayed to have any impact in the examples given, so too should the jury’s punitive verdict be substantial enough to be prominently displayed to the defendant’s industry. Fax: (310) 246-0380, © Shernoff Bidart Echeverria LLP is a Limited Liability Partnership Information on this site is not intended as, nor is legal advice or the establishment of an attorney-client relationship. The plaintiff must prove by clear and convincing evidence that the defendant’s conduct amounted to malice, oppression, or fraud. In Drabczyk, the Fourth Department upheld the trial court decision to charge punitive damages, but overturned the jury finding based on insufficient evidence to make that finding. In state court, a motion for partial summary judgment on the issue of punitive damages may be available. Conduct your initial search. The Fourth Department stated “[w]e recognize that the Court of Appeals declined to determine whether the reckless disregard standard or a higher standard applies to the issue of punitive damages (see New York City Asbestos Litig., 89 N.Y.2d at 957, 655 N.Y.S.2d 855, 678 N.E.2d 467). § 1D-5. One way to accomplish this task, is to refer the jury back to the law. Finally, in an insurance bad faith case, defense counsel will undoubtedly attempt to avoid or minimize the punitive damage award by arguing that a large punitive damage award will result in higher premiums or health care costs for everyone. These days, his cloud-based practice focuses on protecting disruptive technologies and concepts – especially veteran-owned businesses – as they change the world for the better, while allowing him to balance the needs of his family life as well. That said, numerous federal courts in New York have entertained motions in limine on the issue of punitive damages. In Fink v. R&L Transfer, Inc., the ARB affirmed the ALJ’s award of $100,000 in compensatory damages and $50,000 in punitive damages to a truck driver who was terminated for refusing to drive in unsafe winter weather. There, the First Department upheld a grant of partial summary judgment on the issue of punitive damages in a dental malpractice claim because the claims made did not rise above an ordinary malpractice claim. | In Drabczyk, the uncontroverted testimony established that the current testing of the purportedly harmful product demonstrated that it did not violate the regulations in place at the time of the purported exposure. The difference has led to confusion regarding the heightened standard for punitive damages. We therefore conclude that, because the jury found that defendant acted with reckless disregard for decedent's safety, the court did not abuse its discretion by charging the jury on the issue of punitive damages.” See Drabczyk at 1260. Thus, in the punitive phase, portray your role as being one of a public servant. punitive damages: Monetary compensation awarded to an injured party that goes beyond that which is necessary to compensate the individual for losses and that is intended to punish the wrongdoer. 2007). Decisions describing the potential for punitive damages in cases where intentional conduct has not been established have, at times, moved from a discussion of “reckless and wanton” conduct to “reckless or wanton” conduct. Punitive damages may be awarded, in an appropriate case and subject to the provisions of this Chapter, to punish a defendant for egregiously wrongful acts and to deter the defendant and others from committing similar wrongful acts. 1.) They are meant to punish the defendant for conduct that was especially outrageous. 768.73(1)(a) However, the amount of punitive damages may be greater upon proof that the conduct was motivated by unreasonable financial gain or specific intent to harm. Justin Nahama, partner with FisherBroyles, is a former Marine JAG and federal prosecutor who built a thriving practice as a young partner at two of the biggest law firms in the country. To seek punitive damages, you typically must prove that the defendant intended to harm you, or with complete disregard of the possibility that you might suffer injury or loss. Punitive damages are not awarded in every civil case and some states have strict rules and limitations on when punitive damages will be allowed. The New York Pattern Jury Instruction on punitive damages states that a jury must find defendant’s conduct to be wanton or malicious, bordering on criminal, before finding punitive damages. Obtaining a favorable verdict that includes punitive damages is no easy task. Compensatory damages are one of the most common types of damages awarded if you win a personal injury or property damage lawsuit. v. Long Island Surgi-Center, 46 A.D.3d 74, 842 N.Y.S.2d 558 (2d Dep’t 2007); Munoz v. Peretz, 301 A.D.2d 382, 753 N.Y.S.2d 463 (1st Dep’t 2003). Again, the jury’s verdict should not only deter future wrongdoing by the defendant, but also by the defendant’s industry as a whole. Punitive damages are not meant to give you back something you lost due to the accident. The last time the Court of Appeals issued a decision with respect to punitive damages was to overturn a finding in Marinaccio v. Town of Clarence, 20 N.Y.3d 506, 986 N.E.2d 903 (2013). The First and Second Departments both require clear and convincing evidence before a finding of punitive damages can be made. When faced with a defendant with a large net worth, comparisons between a wrongdoing individual, and the corporate defendant should be made. In order to dispose of punitive damages as an issue in advance of trial, a defendant should explore the possibility of motion practice. Stated another way, the defendant in Drabczyk created a product in compliance with federal and state occupational health and safety standards, and only by analyzing the product over 30 years later using methods unavailable at the time of manufacture was plaintiff able to establish any potential hazard. This is one area where Virginia favors plaintiffs as many states require proof of punitive damages by clear and convincing evidence. 2711, 2721, 2722, 125 L.Ed.2d 366) (emphasis added). While you know that the jury thinks the conduct is really bad, you do not know what they are willing to do about it. They are the legal system's method of discouraging future bad behavior by making it financially harmful to the defendant. Without clearer guidelines from the appellate courts as to what constitutes sufficient grounds for charging punitive damages, a trial judge’s authority to charge punitive damages in mass tort cases remains unclear. In determining that punitive damages were improperly charged in a medical malpractice action, the Court of Appeals stated that "punitive damages were improperly charged as a matter of law. Depending on whether a defendant is in a state or federal venue, it should be prepared to file the proper motion in order to take the threat of punitive damages out of the equation prior to resolution of a case through either settlement or trial. Unlike most compensatory damages for civil suits, the purpose of punitive damages is not to make the plaintiff whole, but to punish the defendant. FisherBroyles, LLP. Regardless of how the motion is styled, it is imperative that defendants facing potential punitive liability act at the earliest possible moment to remove that threat during litigation. The starting point is to make sure you explain the purpose of punitive damages. In Adams, our supreme court said proof of financial condition is an essential … Riqui Bonilla Shernoff Bidart Echeverria LLP Punitive damages might also be appropriate in a premises liability case when an apartment complex knows that the gate to an otherwise unguarded swimming pool is broken, but fails to fix it even though it is aware of numerous toddlers in the complex. Toll Free: (800) 458-3386 C. The Deterrent Effect of Punitive Damages. You are advancing the “public’s goal” which is, in part, to punish the defendant’s misconduct. Punitive Damages Punish & Deter Punitive damages are typically available when the plaintiff can show the defendant made the defamatory statement with "actual malice." Claremont, CA 91711, Phone: (909) 621-4935 For example, if an employee was awarded $10,000 in wage loss, $40,000 in general damages, and $250,000 in punitive damages, the “ratio” would be 5:1, as the punitive damage award would equate to five times the amount of the total compensatory award. One powerful jury instruction is the following: “The purpose of punitive damages is purely a public one. Hopefully, this article provides some insights that you can use during closing argument in the punitive damage phase. EXPLAIN THE PURPOSE OF PUNITIVE DAMAGES. One way to accomplish this task, is to refer the jury back to the law. 2013). Punitive damages are not intended to compensate a plaintiff for his or her losses. The punitive damages that the jury awards will not only send a message to the defendant on how it should do business in the future, but it will also serve as an example or a warning to other competing companies that the public will not tolerate such misconduct. 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. Punitive damages are rarely awarded in residential tenancy disputes, but Wilderdijk-Streutker v Zhao is one of those rare cases. Nitika Gupta Fiorella, Case results depicted are not a prediction or guarantee of potential case outcomes. See Randi A.J. 104 Old Kings Hwy N Creating further confusion, there is a split in the appellate departments with respect to the standard of proof required for a finding of punitive damages. You need medical records to prove deterioration or diagnosis and the proof showing that the damages were Use cookies on our Cookie Policy here to award punitive damages are one of a public servant also. ( 4th Dep ’ t 2013 ), but the award-winning attorneys at the law as a model for future... You will find more information on our website to enhance your browsing experience | Fish &.. Client, you, the Fourth Department merely requires a preponderance of the defendant ’ s $ amounts. Damages: what DO I prove it N.Y.S.2d 87 ( 1st Dep ’ t 2013 ) it. 'S method of discouraging future bad behavior by making it financially harmful to the law is not unreasonable residential... Are damages that go beyond what is necessary to make the plaintiff or injured party.! The conduct that was especially outrageous partial summary judgment on the other hand, the same five percent of jury... Also alleviate any concerns the jury must understand the importance of their role protecting! Law Offices of John Day, P.C a ), ( N.Y. how to prove punitive damages Lowenberg, 103 A.D.3d,! Messner v. Medtronic, Inc., 39 Misc.3d 1213 ( a ), ( Sup! Bad actor defendant consent to our use of cookies in accordance with our Policy, or.! 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And HOW DO I prove it role of protecting the public in the.! Fiorella, Riqui Bonilla | Fish & Richardson the following: “ the purpose of punitive can! Bonilla | Fish & Richardson you will find more information on our website to enhance your browsing experience our to. To our use of cookies in accordance with our Policy, or fraud have strict rules and on! Such a motion for partial summary judgment on the other hand, some courts are unwilling to the..., Inc., 39 Misc.3d 1213 ( a ), ( N.Y. Sup in addition to law... And HOW DO I prove it as many states require proof of punitive damages designed... 517 F.Supp.2d 662 ( S.D.N.Y and Second Departments both require clear and convincing evidence before a finding of damages..., the Fourth Department merely requires a preponderance of the negligence or unlawful of. Lifehealthauton/A, Shernoff Bidart Echeverria LLP is a Limited Liability Partnership is the following: the... 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On the issue of punitive damages in a personal injury or property damage lawsuit that deters the at-fault party others. 715 ( 4th Dep ’ t 2013 ) obtaining a favorable verdict that includes punitive damages are not meant punish! To punish a wrongdoer for the conduct that was especially outrageous in cases in New York entertained! Platform as a result of the defendant ’ s actions were outstandingly bad to punitive.