Punitive Damages Reform

Punitive damages are awarded not to compensate a plaintiff, but to punish a defendant for intentional or malicious misconduct and to deter similar future misconduct.    

PROBLEM:  While punitive damages awards are infrequent, their frequency and size have grown greatly in recent years.  More importantly, they are routinely asked for today in civil lawsuits.  The difficulty of predicting whether punitive damages will be awarded by a jury in any particular case, and the marked trend toward astronomically large amounts when they are awarded, have seriously distorted settlement and litigation processes and have led to wildly inconsistent outcomes in similar cases.

ATRA’S POSITION:  ATRA supports state legislation that: establishes a liability “trigger” that reflects the intentional tort origins and quasi‑criminal nature of punitive damages awards ‑ “actual malice;” requires “clear and convincing evidence” to establish punitive damages liability; and requires proportionality in punitive damages so that the punishment fits the offense.   ATRA supports federal legislation that addresses the special problem of multiple punitive damages awards.  Such legislation would protect against unfair overkill, guard against possible due process violations, and help preserve the ability of future claimants to recover basic out‑of‑pocket expenses and damages for their pain and suffering.

OPPOSITION:  The personal injury bar’s argument against punitive damages reform – that a jury should have broad discretion to award punitive damages in order to punish and deter misconduct – fails to address the quasi-criminal nature of punitive damages necessitating such procedural safeguards for the award of punitive damages as a showing that the defendant acted with “actual malice.” 

STATE REFORMS

ALABAMA

Punitive Damages Reform: SB 137 (1999): Ala. Code § 6-11-21.  Limits the award of punitive damages in most non-physical injury cases to the greater of three times the award of compensatory damages or $500,000.  Limits the award of punitive damages in non-physical injury cases against businesses with a net worth of less than $2 million to the greater of $50,000 or 10% of the business’s net worth up to $200,000.  Limits the award of punitive damages in physical injury cases to the greater of three times the award of compensatory damages or $1.5 million.  Prohibits application of the rule of joint and several liability in actions for punitive damages, except for wrongful death actions, actions for intentional infliction of physical injury, and class actions.  Provides that the limit on punitive damages will be adjusted on January 1, 2003 and increased at three‑year intervals in accordance with the Consumer Price Index.

Punitive Damages Reform: (1987): Ala. Code § 6-11-20.  Requires a plaintiff to show by “clear and convincing” evidence that a defendant acted with “wanton” conduct for the recovery of punitive damages.  Limits the award of punitive damages to $250,000.  The statute setting a $250,000 limit on punitive damages awards violated the right to jury trial under the State Constitution.  Henderson v. Alabama Power Co., 627 So. 2d 878 (Ala. 1993).  Requires trial and appellate judges to review all punitive damages awards and reduce those that are excessive based on the facts of the case.  The Alabama Supreme Court held the judicial review of all awards unconstitutional in Armstrong v. Roger’s Outdoor Sports, Inc., May 10, 1991.

ALASKA

Medical Liability Reform: Contingent Fee Reform: Alaska Stat. § 9.60.080.  Requires that contingent fees be calculated exclusive of punitive damages.

Punitive Damages Reform: SB 337 (1986).  Requires a plaintiff to prove punitive damages by “clear and convincing” evidence.

Punitive Damages Reform: HB 58 (1997).  Limits the award of punitive damages in most cases to the greater of three times the award of compensatory damages or $500,000.  Limits the award of punitive damages to the greater of four times compensatory damages, four times the aggregate amount of financial gain, or $7,000,000, when the defendant’s action is motivated by financial gain.  Limits punitive damages in unlawful employment practices lawsuits to: $200,000, when the employer has less than 100 employees in the state; $300,000, when the employer has more than 100, but less than 200 employees in the state; $400,000, when the employer has more than 200, but less than 500 employees in the state; and $500,000, when the employer has more than 500 employees in the state.  Requires a plaintiff to show by “clear and convincing” evidence that a defendant acted with “reckless indifference” or was engaged in “outrageous” conduct.  Requires the determination of awards for punitive damages to be made in a separate proceeding.  Requires that 50% of punitive damages awards be paid to the state treasury.  The reform did not violate the right to a jury trial, the right to equal protection, or the right to substantive due process in the State or Federal Constitutions, the separation of powers doctrine, or the right of access to the courts or ban on “special legislation” in the State Constitution).  Evans v. State, 2002 WL 1998141 (Alaska Aug. 30, 2002). 

ARIZONA

Punitive Damages Reform: Clear and Convincing Evidence: Linthicum v. Nationwide Life Ins. Co., 723 P.2d 675 (Ariz. 1986).  Requires a plaintiff to prove punitive damages by “clear and convincing” evidence.

Punitive Damages Reform: FDA-Approved Drugs: SB 1453 (1989).  Establishes a government standards defense to punitive damages for FDA-approved drugs.

ARKANSAS

Punitive Damages Reform: HB 1038 (2003).  Raises the standard for the imposition of punitive damages to “clear and convincing” evidence of actual fraud, malice, or willful or wanton conduct and charges.  Limits the award of punitive damages to the greater of $250,000 or three times compensatory damages, not to exceed $1,000,000.  Provides for a bifurcated proceedings for punitive damages.

CALIFORNIA

Punitive Damages Reform: SB 241 (1987): Cal. Civ. Code § 3294(a).  Requires a plaintiff to show by “clear and convincing” evidence that a defendant acted with oppression, fraud, or malice.  Requires the determination of awards for punitive damages to be made in a separate proceeding, allowing evidence of defendants’ financial conditions only after a finding of liability.

COLORADO

Medical Liability Reform: Punitive Damages: HB 1069 (1990).  Provides that punitive damages shall not be alleged in a professional negligence suit until discovery is substantially completed. Provides that discovery cannot be reopened without an amended pleading. Provides that physicians cannot be held liable for punitive damages because of the bad outcome of a prescription medication as long as it was administered in compliance with current FDA protocols.  Prohibits punitive damages from being assessed against physicians because of the act of another unless he directed the act or ratified it.

Punitive Damages Reform: HB 1186 (2003).  Prohibits a plaintiff from filing a claim for punitive damages unless the plaintiff can show evidence of willful or wanton action that would justify such a claim.

Punitive Damages Reform: HB 1069 (1990).  Bars the award of punitive damages in professional negligence lawsuits until discovery has been substantially completed.  Prohibits discovery from being reopened without an amended pleading.  Bars the award of punitive damages against physicians being sued for a bad outcome of a prescription medication, where the physician complied with FDA protocols.  Bars the award of punitive damages against a physician being sued for the act of another, where the physician neither directed nor ratified the act.

Punitive Damages: FDA-Approved Drugs: HB 1093 (1991).  Expands 1990's prohibition against seeking punitive damages in cases in which FDA approved drugs are administered by a physician, to include medically prescribed drugs or products used on an experimental basis (when such experimental use has not received specific FDA approval) and when the patient has given informed consent.         

Punitive Damages Reform: HB 1197 (1986): Colo. Rev. Stat. § 13-21-102(1)(a).  Provides that an award for punitive damages may not exceed an award for compensatory damages.  Permits a court to reduce a punitive damages award if deterrence can be achieved without the award.  Permits a court to increase a punitive damages award to three times an award for compensatory damages if misbehavior continues during trial.  Requires one-third of punitive damages awards to be paid to the state fund.  The law requiring plaintiff to pay one-third of any punitive damages award collected to the State general fund was an unconstitutional taking of property without just compensation under both the Federal and Colorado Constitutions.  Kirk v. Denver Publishing Co., 818 P.2d 262 (Colo. 1991).

Punitive Damages Reform: “Beyond a Reasonable Doubt:” Colo. Rev. Stat. § 13-25-127(2).  Requires a plaintiff to prove punitive damages “beyond a reasonable doubt.”

CONNECTICUT

Punitive Damages Reform: Conn. Gen. Stat. Ann. § 52-240b.  Limits punitive damages in product liability actions to two times the award of compensatory damages. 

FLORIDA

Medical Liability Reform: Nursing Homes: Punitive Damages: SB 1202 (2001).  Requires a plaintiff to prove punitive damages by clear and convincing evidence in cases against nursing home facilities.  Limits punitive damages against nursing home facilities to the greater of three times the award of compensatory damages or $1 million.  Limits punitive damages against nursing home facilities to the greater of $4 million or four times the award of compensatory damages, where conduct is proven to be motivated by financial gain.  Sets no limit on the award of punitive damages against nursing home facilities, where intentional harm is proven. 

Punitive Damages Reform: HB 775 (1999): Fla. Stat. § 768.73.  Limits punitive damages to the greater of three times the award of compensatory damages or $500,000.  Limits punitive damages to he greater of four times compensatory damages or $2,000,000, where the defendant’s wrongful conduct was motivated by an unreasonable financial gain or the likelihood of injury was known.  Prohibits the award of multiple punitive damages awards based on the same act or course of conduct unless the court makes a specific finding that earlier punitive damages awards were insufficient.  Requires a plaintiff to prove by clear and convincing evidence that a defendant acted with intentional misconduct or gross negligence for the award of punitive damages.  Outlines circumstances when an employer is liable for punitive damages arising from an employee’s conduct.  The reform does not apply to cases involving abuses to the elderly or children, or cases where the defendant is intoxicated.

Punitive Damages Reform: SB 465 (1986).  Limits punitive damages to three times the award of compensatory damages, unless a plaintiff can demonstrate by “clear and convincing” evidence that a higher award would not be excessive.  Requires sixty percent of the award to be paid to the state’s General Fund or Medical Assistance Trust Fund.  (The reform was amended in 1992 so that 35% of any punitive damages award goes to the state’s General Fund or Medical Assistance Trust Fund.)  The punitive damages limit and "clear and convincing" evidence requirement is constitutional.  Smith v. Department of Insurance, 507 So.2d 1080 (Fla. 1987).  The statute requiring plaintiffs to pay 60% of any punitive damages award to the State did not violate State or Federal right to jury trial, equal protection, or due process protections, and was not unconstitutional special legislation.  Gordon v. State of Florida, 608 So. 2d 800 (Fla. 1992) cert. denied, 507 U.S. 1005 (1993). 

GEORGIA

Punitive Damages Reform: Clear and Convincing Evidence: Ga. Code Ann. § 51-12-5.1.  Requires a plaintiff to prove punitive damages by “clear and convincing” evidence.

Punitive Damages Reform: Limits on Damages: Ga. Code Ann. § 51-12-5.1 (f)(g).  Limits punitive damages to $250,000 unless the plaintiff demonstrates that the defendant acted with a specific intent to harm.

IDAHO

Punitive Damages Reform: HB 92 (2003): Idaho Code § 6-1604.  Limits the award of punitive damages to the greater of three times the award of compensatory damages or $250,000.  Raises the standard for the imposition of punitive damages to “clear and convincing” evidence.

Punitive Damages Reform: SB 1223 (1987).  Requires a plaintiff to show by a preponderance of evidence that a defendant’s conduct was “oppressive, fraudulent, wanton, malicious or outrageous” for the award of punitive damages.

ILLINOIS

Punitive Damages Reform: SB 1200 (1986).  Prohibits a plaintiff from pleading punitive damages in an original complaint.  Requires a subsequent motion for punitive damages to show at a hearing a reasonable chance that the plaintiff will recover an award for punitive damages at trial.  Requires a plaintiff to show that the defendant acted “willfully and wantonly.”  Provides discretion to the court to award punitive damages among the plaintiff, the plaintiff’s attorney, and the State Department of Rehabilitation Services. 

Punitive Damages Reform: HB 20 (1995).  Limits the award of punitive damages to three times the award of economic damages.  Prohibits the award of punitive damages absent a showing that the defendant engaged in conduct “with an evil motive or with a reckless indifference to the rights of others.”  Requires the determination of awards for punitive damages to be made in a separate proceeding.  The reform is unconstitutional. Best v. Taylor Machine Works,Inc., 689 N.E.2d 1057 (Ill. 1997).

INDIANA

Punitive Damages Reform: HB 1741 (1995): Ind. Code Ann. § 34-51-3-4.  Limits the award of punitive damages to the greater of three times the award of compensatory damages or $50,000.  Requires 75% of punitive damage awards to be paid to the state fund.

IOWA

Punitive Damages Reform: SB 2265 (1986): Iowa Code Ann. § 668A.1.  Requires a plaintiff to show that a defendant acted with “willful and wanton disregard for the rights and safety of another.”  (In 1987 the evidence standard was elevated to “clear, convincing, and satisfactory” evidence.)  Requires 75% or more of all punitive damages awards to be paid to the State Civil Reparations Trust Fund.  The statute directing 75% of punitive damages awards to a civil reparation trust fund did not violate the equal protection or due process clauses of the State or Federal Constitutions.  Shepherd Components, Inc. v. Brice Petrides-Donohue & Associates, Inc., 473 N.W.2d 612 (Iowa 1991).

Punitive Damages Reform: SF 482 (1987).  Requires a plaintiff to show by a “preponderance of clear, convincing, and satisfactory evidence that the conduct of the defendant from which the claim constituted willful and wanton disregard for the rights or safety of another.”

KANSAS

Punitive Damages Reform: HB 2731 (1988). Kan. Stat. Ann. § 60-3701.  Limits the award of punitive damages to the lesser of a defendant’s annual gross income or $5 million.  (The 1992 legislature amended this statute to allow a judge who felt a defendant’s annual gross income was not a sufficient deterrent to look at 50% of the defendant’s net assets and award the lesser of that amount or $5 million.)  Requires a plaintiff to show that a defendant acted with willful or wanton conduct, fraud, or malice.  Requires the determination of awards for punitive damages to be made in a separate proceeding.

Punitive Damages Reform: HB 2025 (1987).  Limits the award of punitive damages to the lesser of defendant’s highest annual gross income during the preceding five years or $5 million.  Provides that if the defendant earned more profit from the objectionable conduct than either of these limits, the court could award 1.5 times the amount of that profit.  Requires the determination of awards for punitive damages to be made in a separate proceeding.  Requires a plaintiff to prove punitive damages by “clear and convincing” evidence.  Provides seven criteria for the judge to consider in punitive damages cases, including whether this is the first award against a given defendant.

KENTUCKY

Punitive Damages Reform: HB 551 (1988).  Ky. Rev. Stat. Ann. § 411.184(2).  Requires, for the award of punitive damages, a plaintiff to show by “clear and convincing” evidence that a defendant acted with oppression, fraud or malice.  The 1988 punitive damages reform statute requiring a plaintiff to show that the defendant acted with “flagrant indifference to the rights of the plaintiff and with a subjective awareness that such conduct will result in human death or bodily harm” as a predicate for punitive damages liability violated “jural rights” provisions of the State Constitution.  Williams v. Wilson, 972 S.W.2d 260 (Ky. 1998).

LOUISIANA

Punitive Damages Reform: HB 20 (1996).  Repeals the statute that authorized punitive damages to be awarded for the wrongful handling of hazardous substances.  (The Louisiana courts had established precedents substantially expanding liability based upon the repealed statute.)

MAINE

Punitive Damages Reform: Tuttel v. Raymond, 494 A.2d 1353 (Me. 1985).  Requires a plaintiff to prove punitive damages by “clear and convincing” evidence.

MARYLAND

Punitive Damages Reform: Owens-Illinois v. Zenobia, 601 A.2d 633 (Md. 1992).  Requires a plaintiff to prove punitive damages by “clear and convincing” evidence.

MINNESOTA

Punitive Damages Reform: (1990).  Minn. Stat. Sec. 549.20.  Requires a plaintiff to show that a defendant acted with “deliberate disregard” for the award of punitive damages.  (The former standard required only a showing of “willful indifference.”)  Requires the determination of awards for punitive damages to be made in a separate proceeding at the request of the defendant.  Grants trial and appellate judges the power to review all punitive damages awards.

Punitive Damages Reform: SB 2078 (1986).  Prohibits plaintiffs from pleading punitive damages in an original complaint.  Requires a plaintiff to make a prima facie showing of liability before an amendment of pleadings is permitted by the court.

Punitive Damages Reform: Clear and Convincing Requirement: Minn. Stat. Ann. § 549.20.  Requires a plaintiff to prove punitive damages by clear and convincing evidence.

MISSISSIPPI

Punitive Damages Reform: HB 13 (special session) (2004); Amended Miss. Code Ann. § 11-1-65.  Modifies and lowers some caps on punitive damages, based upon the net worth of a defendant.

·        $20 million for a defendant with a net worth of more than $1 billion;

·        $15 million for a defendant with a net worth of more than $750 million but not more than $1 billion

·        $5 million for a defendant with a net worth of more than $500 million but not more than $750 million (new law);

·        $3.75 million for a defendant with a net worth of more than $100 million but not more than $500 million (new law);

·        $2.5 million for defendants with a net worth of more than $50 million but not more than $100 million (new law);

·        Two percent of the defendant’s net worth for a defendant with a net worth of $50 million or less (new law).

Punitive Damages Reform: HB 1270 (1993): Miss. Code Ann. § 11-1-65(1)(a).  Requires a plaintiff to prove punitive damages by “clear and convincing” evidence.  Requires the determination of awards for punitive damages to be made in a separate proceeding.  Prohibits the award of punitive damages in the absence of compensatory awards.  Prohibits the award of punitive damages against an innocent seller.  Establishes factors for the jury to consider when determining the amount of a punitive damages award.

MISSOURI

Punitive Damages Reform: H.B. 393 (2005); § 510.263 R.S.Mo.  Limits punitive damages to $500,000 or five times the judgment, whichever is greater.  Limit does not apply to certain cases involving housing discrimination.

Punitive Damages Reform: HB 700 (1987).  Requires the determination of awards for punitive damages to be made in a separate proceeding.  Permits the jury to set the amount for punitive damages if, in the first stage, the jury finds a defendant liable for punitive damages.  Permits the admissibility of evidence of a defendant’s net worth only during the proceeding for the determination of punitive damages.  Requires 50% of all punitive damages awards to be paid to the state fund.  Prohibits multiple punitive damages awards under certain conditions.

Punitive Damages Reform: Clear and Convincing Requirement: Rodriguez v. Suzuki Motor Corp., 936 S.W.2d 104 (Mo. 1996).  Requires a plaintiff to prove punitive damages by clear and convincing evidence.

MONTANA

Punitive Damages Reform: SB 363 (2003): Mont. Code Ann. § 27-1-220.  Limits punitive damages, unless otherwise expressed by statute, to $10 million or 3 percent of a defendant’s net worth, whichever is less.  It does not limit the amount of punitive damages that may be awarded in class action lawsuits.

Punitive Damages Reform: HB 212 (2003); Amended Mont. Code Anno., § 27-1-221 (2010).  Brings Montana statute into conformity with Supreme Court decision that punitive damages may be awarded by a two-thirds verdict rather than the previous requirement that punitive damages awards must be unanimous.  In Finstad v. W.R. Grace & Co., 2000 MT 228, 301 Mont. 240, 8 P.3d 778 (2000), the Montana Supreme Court held that the portion of section 27-1-221(6), MCA, which requires that an award of punitive damages must be unanimous as to liability and amount, violates Article II, section 26, of the Montana Constitution, guaranteeing a verdict by a two-thirds majority in all civil cases.

Punitive Damages Reform: HB 442 (1987): Mont. Code Ann. § 27-1-221(5).  Requires a plaintiff to show by “clear and convincing” evidence that a defendant acted with “actual fraud” or “actual malice.”  Requires the determination of awards for punitive damages to be made in a separate proceeding.  Permits the admissibility of evidence of a defendant’s net worth only during the proceeding for the determination of punitive damages.  Requires a judge to review all punitive damages awards and to issue an opinion on his decision to increase or decrease an award, or to let it stand.

Punitive Damages Reform: Unanimous Jury: SB 212 (1997); Amended Mont. Code Anno., § 27-1-221 (2010):  Requires a unanimous jury to determine the amount of punitive damages awards.

NEVADA

Punitive Damages Reform: AB 307 (1989).  Limits punitive damages awards to $300,000, where the award for compensatory damages is less than $100,000, and to three times the award for compensatory damages, where the award for compensatory damages is $100,000 or more.  The reform does not apply to cases against a manufacturer, distributor, or seller of a defective product; an insurer who acts in bad faith; a person violating housing discrimination laws; a person involved in a case for damages caused by toxic, radioactive, or hazardous waste; or a person for defamation.  Requires a plaintiff to show by “clear and convincing evidence” that a defendant acted with “oppression, fraud, or malice.”  Requires the determination of awards for punitive damages to be made in a separate proceeding.  Permits the admissibility of evidence of a defendant’s finances only during the proceeding for the determination of punitive damages.   

NEW HAMPSHIRE

Punitive Damages Reform: HB 513 (1986).  Prohibits the award of punitive damages.

NEW JERSEY

Punitive Damages Reform: Actual Malice: SB 2805 (1987).  Requires a plaintiff to show that a defendant acted with “actual malice” or “wanton and willful disregard” for the rights of others.  Requires the determination of awards for punitive damages to be made in a separate proceeding.  Provides for an FDA government standards defense to punitive damages.  The reform does not apply to cases involving environmental torts.

Punitive Damages Reform: Damages Limits: SB 1496 (1995): N.J. Stat. Ann. § 2A:15‑5.14.  Limits the award of punitive damages to the greater of five times the award of compensatory damages or $350,000.  The reform does not apply to cases involving bias crimes, discrimination, AIDS testing disclosure, sexual abuse, and injuries caused by drunk drivers.

Punitive Damages Reform: Clear and Convincing Evidence: N.J. Stat. Ann. § 2A:15-5.12.  Requires a plaintiff to prove punitive damages by “clear and convincing evidence.”

NEW YORK

Punitive Damages Reform: SB 7589 (1992).  Requires that 20% of all punitive damages awards be paid to the New York State General Fund.

NORTH DAKOTA

Punitive Damages: Clear and Convincing Evidence: N.D. Cent. Code § 32-03.2-11.  Requires a plaintiff to prove punitive damages by “clear and convincing” evidence.

Punitive Damages Reform: Damages Limit: N.D. Cent. Code § 32.03.2‑11(4).  Limits punitive damages to the greater of two times compensatory damages or $250,000.

Punitive Damages Reform: HB 1297 (1997); Amended N.D. Cent. Code, § 32-03.2-11.  Requires a plaintiff to show by a preponderance of the evidence that a defendant acted with oppression, fraud, or actual malice before a moving party may amend pleadings and claim punitive damages.

OHIO

Punitive Damages Reform: AM Sub SB 80 (2004); ORC Ann. 2315.12.  Limits punitive damages to not more than two times compensatory damages.  Limits punitive damages for small businesses to the lesser of two times compensatory damages or 10 percent of a defendants net worth, not to exceed $350,000.  Small businesses are defined as having less than 100 employees or manufacturers that have less than 500 employees. Prohibits the award of punitive damages if punitive damages have already been awarded based on the same act or conduct that is alleged, except under certain circumstances.

Punitive Damages Reform Bifurcated Trial: AM Sub SB 80 (2004); ORC Ann. 2315.21.  Provides that in jury trials, if punitive damages are requested by any party, the trial is bifurcated so that the jury considers compensatory damages in one stage, and punitive damages in a second stage.

Punitive Damages Over-the-Counter Drugs and Medical Devices: AM Sub SB 80 (2004); ORC Ann. 2305.10.  Provides that manufacturers of over-the-counter drugs and medical devices are not liable for punitive damages if the FDA approved the product.  This was an extension of existing law which provided for a government standards defense for manufacturers of prescription drugs.

Punitive Damages Reform: HB 350 (1996): Ohio Rev. Code Ann. § 2307.80(A).  Limits the amount of punitive damages recoverable from all parties except large employers to the lesser of three times the award of compensatory damages or $100,000.  Limits the amount of punitive damages recoverable from large employers (more than 25 employees on a full time permanent basis) to the greater of three times the award of compensatory damages or $250,000.  Requires the determination of awards for punitive damages to be made in a separate proceeding at the request of either party.  Limits multiple punitive damages awards based on the same act or course of conduct.  Expands the governmental defense standards to include non‑drug manufacturers and manufacturers of over‑the‑counter drugs and medical devices.  The comprehensive 1996 tort reform law violated the doctrine of separation of powers and the one-subject provision of the State Constitution.  State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 715 N.E.2d 1062 (Ohio 1999).  The limit on punitive damages violated the jury trial provision of the State Constitution.  Crowe v. Owens Corning Fiberglas, 718 N.E.2d 923 (Ohio 1999).

Punitive Damages Reform: HB 1 (1987).  Requires a plaintiff to show by “clear and convincing” evidence that she suffered “actual damages” because a defendant acted with “malice, aggravated or egregious fraud, oppression or insult” for the award of punitive damages.  Provides a government standard defense for FDA approved drugs. 

OKLAHOMA

Prejudgment Interest Reform: SB 488 (1986).  Prohibits the assessment of prejudgment interest on punitive damages awards.  Sets the prejudgment interest rate at 4% above the U.S. Treasury Bill. 

Punitive Damages Reform: SB 263 (1995): Okla. Stat. Ann. tit. 23, § 9.1.  Codifies factors that the jury must consider in awarding punitive damages.  Provides that when a jury finds by “clear and convincing” evidence that the defendant: (1) acted in “reckless disregard for the rights of others,” the award is limited to the greater of $100,000 or actual damages awarded; or (2) acted intentionally and with malice, the award is limited to $500,000; two times the award of actual damages; or the increased financial benefit derived by the defendant or insurer as a direct result of the conduct causing injury.  The limit does not apply if the court finds evidence beyond a reasonable doubt that the defendant acted intentionally and with malice in conduct life‑threatening to humans.

Punitive Damages Reform: SB 488 (1986).  Limits the award of punitive damages to the award of compensatory damages unless the plaintiff establishes her case by “clear and convincing” evidence, in which case no limit applies. 

OREGON

Punitive Damages Reform: SB 482 (1995): Or. Rev. Stat. § 18.537.  Requires 40% of punitive damages awards to be paid to the prevailing party, 60% to the state fund, and no more than 20% to the attorney of the prevailing party.  Requires a plaintiff to show by “clear and convincing” evidence that a defendant “acted with malice or has shown a reckless and outrageous indifference to a highly unreasonable risk of harm and has acted with a conscious indifference to the health, safety and welfare of others.”  Provides for court review of jury-awarded punitive damages.  Bars the claiming of punitive damages in an original complaint.  Requires a plaintiff to show a prima facie case for liability before amending a complaint to include a punitive damages claim.  The split-recovery statute allocating 60% of punitive damages award to the state did not violate the right to a remedy, the right to a jury trial, the takings or tax provisions, or the separation of powers under the State Constitution.  DeMendoza v. Huffman, 2002 WL 1827841 (Or. Aug. 8, 2002).

Punitive Damages Reform: SB 323 (1987).  Requires a plaintiff to prove punitive damages by “clear and convincing” evidence.  Provides an FDA standards defense to punitive damages.

PENNSYLVANIA

Punitive Damages Reform: HB 2210 (1996).  Limits punitive damages to 200% of compensatory awards.  Raises the standard of defense in punitive damage cases to “willful or wanton misconduct or reckless indifference to the rights or others.”  Provides for bifurcated trials.   

SOUTH CAROLINA

Punitive Damages Reform: Clear and Convincing Evidence: H 2610 (1988): S.C. Code Ann. § 15-33-135.  Requires a plaintiff to prove punitive damages by “clear and convincing” evidence.

SOUTH DAKOTA

Periodic Payment of Future Damages: SB 281 (1986).  Mandates periodic payment of punitive damages when requested by a party to the lawsuit if future damages exceed $100,000.

Punitive Damages Reform: SB 280 (1986): S.D. Codified Laws Ann. § 21-1-4.1.  Requires a plaintiff to prove by “clear and convincing” evidence that a defendant acted with “willful, wanton, or malicious” conduct.   

TENNESSEE

Punitive Damages Reform: Hodges v. S.C. Toof & Co., 833 S.W.2d 896 (Tenn. 1992).  Requires a plaintiff to prove punitive damages by “clear and convincing” evidence.

TEXAS

Punitive Damages Reform: HB 4 (2003). Tex. Civ. Prac. & Rem. Code §§ 41.003. Requires unanimous jury verdict to award punitive damages.  Specifies that jury must be so instructed.

Punitive Damages Reform: SB 25 (1995): Tex. Civ. Prac. & Rem. Code §§ 41.003, 41.008.  Limits the award of punitive damages to the greater of $200,000 or two times the award of economic damages plus non‑economic damages up to $750,000.  Requires a plaintiff to show by “clear and convincing” evidence that a defendant acted with malice, defined as the “conscious indifference to the rights, safety, or welfare of others.”  Requires the determination of awards for punitive damages to be made in a separate proceeding at the request of the defendant.

Punitive Damages Reform: SB 5 (1987).  Requires a plaintiff to show that a defendant’s actions were fraudulent, malicious, or grossly negligent.  Limits the award of punitive damages to the greater of four times the amount of actual damages or $200,000.

UTAH

Punitive Damages Reform: SB 24 (1989): Utah Code Ann. § 78-18-1.  Requires a plaintiff to show by “clear and convincing” evidence that a defendant’s actions were “knowing and reckless.”  (The law previously required only a showing that a defendant’s actions were “reckless.”)  Provides a government standard defense for FDA approved drugs.  Requires the determination of awards for punitive damages to be made in a separate proceeding on a defendant’s motion.  Requires 50% of all punitive damage awards over $20,000 to be paid to the state fund.

VIRGINIA

Punitive Damages Reform: SB 402 (1987): Va. Code Ann. § 8.01-38.1.  Limits the award of punitive damages to $350,000.  The Virginia Court of Appeals upheld the constitutionality of this statute in Wackenhut Applied Technologies Center Inc. v. Syngetron Protection Systems, No. 91‑1655, November 1992.

WISCONSIN

Punitive Damages Reform: Clear and Convincing Evidence” Wangen v. Ford Motor Co., 294 N.W.2d 437 (Wis. 1980).  Requires a plaintiff to prove punitive damages by “clear and convincing evidence.”

Punitive Damages Reform: Malicious Conduct: SB 11 (1995).  Requires a plaintiff to show that a defendant acted “maliciously or in intentional disregard of the rights of the plaintiff” for the recovery of punitive damages.