Journal Article

The Decision to Award Punitive Damages: An Empirical Study

Theodore Eisenberg, Michael Heise, Nicole L. Waters and Martin T. Wells

in Journal of Legal Analysis

Published on behalf of The John M. Olin Center for Law, Economics and Business at Harvard Law School with the support of the Considine Family Foundation

Volume 2, issue 2, pages 577-620
Published in print January 2010 | ISSN: 2161-7201
Published online January 2010 | e-ISSN: 1946-5319 | DOI: https://dx.doi.org/10.1093/jla/2.2.577
The Decision to Award Punitive Damages: An Empirical Study

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Empirical studies have consistently shown that punitive damages are rarely awarded, with rates of about 3 to 5 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 percent of tried cases that plaintiffs won. State laws restricting access to punitive damages were significantly associated with rates of seeking punitive damages. Punitive damages were awarded in about 30 percent of the plaintiff trial wins in which they were sought. Awards were most frequent in cases of intentional tort, with a punitive award rate of over 60 percent. 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 percent for cases with compensatory awards of $1 million or more. Regression models correctly classify about 70 percent 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.

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Subjects: Jurisprudence and Philosophy of Law

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