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Friday, February 02, 2007

What are punitive damages for?

Thanks to Tony Sebok, I recently came across this interesting article in the Tampa Tribune about a plaintiff who, after being awarded $7.5 million in compensatory damages in a wrongful death suit, decided to forego further pursuit of punitive damages against the defendant, whose carwash killed the plaintiff's wife.

To Mac Brown, his lawsuit against the carwash responsible for his wife's death was never about the money. After being awarded more than $7.5 million in compensatory damages, Brown stunned a Hillsborough County courtroom Friday by turning his back on even more - possibly tens of millions of dollars in punitive damages. "The jury has spoken and justice has been done," attorney Steve Yerrid announced to jurors and spectators. "Mr. Brown believes forgiveness is a virtue. … He believes enough pain has been inflicted." With that, he said, Brown was withdrawing his claim for punitive damages. Had he decided to pursue the claim, Brown could have received much more, according to juror Jennifer Townsend. "We were starting to talk about" how much to award Brown, she said. "It would have been substantial - tens of millions of dollars."

Mac Brown's act of "forgiveness" seems to vindicate, in an unusual way, one of the claims that Tony advances in his forthcoming article, Punitive Damages: From Myth to Theory. In that paper, Tony argues that a plaintiff's unilateral power to choose not to pursue punitive damages is evidence of an interpretation of punitive damages as a vehicle for state-sanctioned private revenge. It also illuminates the idea of tort law as civil recourse that Tony, John Goldberg, and Ben Zipursky have been adumbrating in their collective work interpreting the structure of tort law.

That said, a subsequent email exchange among a handful of damages scholars revealed that the case might be more complicated than the newspaper article reveals.

It might well be that this case presented facts that would not sustain appellate scrutiny of punitive damages at all, notwithstanding some jurors' willingness to award more. The facts of the story in the article indicate that the case may have lacked sufficient reprehensibility on the part of the defendant. If that's true, then Mac Brown's forgiveness might have been prudent as well as benignly motivated. As Tom Baker noted, in a world where punitive damages are not insured and where the defendant might not have especially deep pockets, it might have been strategic for a plaintiff's lawyers to say, "Ladies and Gentlemen of the Jury, we are not seeking vengeance here, and so we will forgo our punitive damages claims, but please make sure every penny of the compensatory damages is awarded." (I'm not saying this is what happened in Brown's case though; in fact, if the story is correct, it did not happen here, since the jury made its award of compensatory damages prior to Brown's decision to forego punitive damages.)

To return to whether this case is a good indicator of the civil recourse theory, I think that Tony is correct as a descriptive matter. I have little doubt that Tony, John and Ben have invaluably improved our understanding of the structure of tort law through their descriptive theory of civil recourse. But the interpretive theory they offer need not be accepted as a prescriptive theory, and to my mind, we should not confuse the familiar with the necessary. Let me briefly elaborate on this in the context of punitive damages in particular.

The fact that a plaintiff like Mac Brown decided not to pursue punitive damages is not a dispositive reason for the claim of punitive damages to wither and die. After a plaintiff receives a compensatory damages amount, the state could decide to pursue what I call "retributive damages" against a wrongdoer, assuming there's a trigger of reprehensibility. Alternatively, or in addition, the state or its agent could seek what Cathy Sharkey calls social compensation, or what economists call optimal deterrence from the defendant--all independent of the plaintiff's choice to be satisfied with compensatory damages. Of course, tort law could be structured so that the plaintiff does participate in (and reap some benefit from) pursuing these extracompensatory damages goals, but there's no reason he has to and there is no personal right to punitive damages at all--as a few states have abolished them altogether. These are some of the lines of inquiry I'm pursuing in my Retributive Damages trilogy of articles, the first of which I'll be sharing more of in this space later this month.

Update: Ted Frank, from Overlawyered, has a more critical analysis of the case worth looking at.

Posted by Administrators on February 2, 2007 at 05:45 PM in Article Spotlight, Dan Markel, Legal Theory, Torts | Permalink


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This raises interesting implications for those states (Florida used to be one) that require any punitive damage award to be split between the plaintiff and the state, which generally puts its portion towards public uses, such as a tort victims compensation fund. For more on split recovery statutes and for a shameless plug of my own scholarshop, see Scott Dodson, Note, Assessing the Practicality and Constitutionality of Alaska's Split Recovery Punitive Damages Statute, 49 DUke L.J. 1335 (2000).

Posted by: Scott Dodson | Feb 6, 2007 11:02:08 AM

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