26 Pages Posted: 2 Jun 2009 Last revised: 14 Jul 2009
Date Written: June 1, 2009
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.
Keywords: punitive damages, litigation, juries, tort
JEL Classification: K00, K10, K13, K40, K41
Suggested Citation: Suggested Citation
Eisenberg, Theodore and Heise, Michael and Waters, Nicole L. and Wells, Martin T., The Decision to Award Punitive Damages: An Empirical Study (June 1, 2009). Cornell Legal Studies Research Paper No. 09-011; CELS 2009 4th Annual Conference on Empirical Legal Studies Paper. Available at SSRN: https://ssrn.com/abstract=1412864 or http://dx.doi.org/10.2139/ssrn.1412864
By Dan Markel