Separating Compensatory and Punitive Damage Award Decisions by Trial Bifurcation

In a simulated products liability trial, we tested the effects of bifurcating decisions regarding compensatory and punitive damage awards. Fifty-nine groups of 5-7 jurors heard evidence in a unitary or bifurcated format, deliberated about the case to a unanimous decision, and awarded damages. Trial bifurcation decreased variability in compensatory damage awards across juries hearing the same case, and also decreased the tendency for juries to award extremely high compensatory damages. In addition, deliberation led to lower compensatory awards in the low injury severity condition and higher awards in the high injury severity condition. Jurors reported that they were using evidence more appropriately when the decisions were bifurcated. Implications of evidence bifurcation in civil trials are discussed.     

Punitive Damage Decision Making: The Decisions of Citizens and Trial Court Judges

Some states have allocated the authority to determine the amount of punitive damages to judges rather than to juries. This study explored the determination of damages by jury-eligible citizens and trial court judges. The punitive damage awards of both groups were of similar magnitude and variability. The compensatory damages of jurors were marginally lower but, in some conditions, were more variable than the compensatory damage awards of judges. Both groups appropriately utilized information about both the actual and potential severity of the harm to the plaintiff in determining punitive damages and used only the actual severity of the injury in determining compensatory damages. The punitive damage awards of both groups were influenced by the wealth of the defendant, but the compensatory damage awards of judges were marginally more influenced by defendant wealth than those of citizens. The results are discussed in the context of proposals for punitive damages reform.     

Compensating Plaintiffs and Punishing Defendants: Is Bifurcation Necessary?

Critics of the civil jury have proposed several procedural reforms to address the concern that damage awards are capricious and unpredictable. One such reform is the bifurcation or separation of various phases of a trial that involves multiple claims for damages. The purpose of this study was to assess the effects of bifurcating the compensatory and punitive damages phases of a civil tort trial. We manipulated the wealth of the defendant and the reprehensibility of the defendant's conduct (both sets of evidence theoretically related to punitive but not to compensatory damages) across three cases in a jury analog study. We wondered whether jurors would misuse the punitive damages evidence in fixing compensatory damages and whether bifurcation would effectively undo this practice. Our findings indicated that mock jurors did not improperly consider punitive damages evidence in their decisions about compensation. Moreover, bifurcation had the unexpected effect of augmenting punitive damage awards. These findings raise questions about the merits of bifurcation in cases that involve multiple claims for damages.     

Juror Judgments in Civil Cases: Effects of Plaintiff's Requests and Plaintiff's Identity on Punitive Damage Awards

Two experiments were conducted to study the manner in which civil jurors assess punitive damage awards. Jury-eligible citizens were shown a videotaped summary of an environmental damage lawsuit and told that the defendant had already paid compensatory damages. They were asked to judge liability for punitive damages and, if damages were to be assessed, to assign a dollar award. Three independent variables were manipulated in the case materials: the dollar amounts that were explicitly requested by the plaintiffs in their closing arguments to the jury, the geographical location of the defendant corporation, and the location of the lead plaintiff. Consistent with prior findings of anchor effects on judgments, we found that the plaintiffs requested award values had a dramatic effect on awards: the higher the request, the higher the awards. We also found that local plaintiffs were awarded more than were geographically remote plaintiffs, while the location of the defendant company did not have reliable effects on the awards. The implications of these results for procedures in civil trials and for theories of juror decision making are discussed.     

The Effects of Limiting Punitive Damage Awards

In response to concerns that jury awards in tort cases are excessive and unpredictable, nearly every state legislature has enacted some version of tort reform that is intended to curb extravagant damage awards. One of the most important and controversial reforms involves capping (or limiting) the maximum punitive damage award. We conducted a jury analogue study to assess the impact of this reform. In particular, we examined the possibility that capping punitive awards would cause jurors to inflate their compensatory awards to satisfy their desires to punish the defendant, particularly in situations where the defendant's conduct was highly reprehensible. Relative to a condition in which punitive damages were unlimited, caps on punitive damages did not result in inflation of compensatory awards. However, jurors who had no option to award punitive damages assessed compensatory damages at a significantly higher level than did jurors who had the opportunity to do so. We discuss the policy implications of these findings.     

Goal Conflict in Juror Assessments of Compensatory and Punitive Damages

Recent tort reform debates have been hindered by a lack of knowledge of how jurors assess damages. Two studies investigated whether jurors are able to appropriately compartmentalize compensatory and punitive damages. In Study 1, mock jurors read a trial summary and were asked to assess compensatory and punitive damages in one of three conditions: (a) compensatory damages only, (b) punitive damages for the plaintiff, or (c) punitive damages for the state treasury. Results suggest that jurors who did not have the option to award punitive damages inflated compensatory damages via pain and suffering awards. Jurors were marginally more likely to award punitive damages when the plaintiff was the recipient. Mock jurors in Study 2 read a similar case summary and were asked to assess compensatory and punitive damages. Two factors were varied in Study 2: (a) egregiousness of the defendant's conduct, and (b) the recipient of any punitive damages (the plaintiff vs. a consortium of state funds). Jurors were more likely to award punitive damages when the defendant's conduct was more egregious and when the plaintiff was the recipient. The results suggest leakage between compensatory and punitive damage judgments, contrary to the law's mandate.     

A Study of Juror and Jury Judgments in Civil Cases: Deciding Liability for Punitive Damages

A study was conducted to investigate civil juries' decisions concerning defendants' liability for punitive damages in tort cases. A total of 121 six-member mock juries composed of jury-service-eligible citizens were presented summaries of previously decided cases and given a comprehensive instruction on the defendant's liability for punitive damages. Most of the mock juries decided that the consideration of punitive damages was warranted, although appellate and trial judges had concluded that they were not warranted. The tendency to find the defendant liable was partly due to jurors' failure systematically to consider the full set of legally necessary conditions for the verdicts they rendered. Individual differences in the jurors' backgrounds were not strongly related to their verdicts; income and ethnicity were weakly related to judgments. The social processes in deliberation on civil juries were similar to the dynamics of deliberation that have been observed in criminal juries.     

Juries and Unpredictability in Products Liability Damage Awards

The size and variability of jury damage awards in tort cases has been a contentious issue for over a decade. Nevertheless, there has been little empirical work addressing the relationship between the size of jury awards to products liability victims and their compensable losses. This paper examines this relationship using a sample of California cases. A compensatory model of damages based on plaintiff, injury, and case characteristics explains a large proportion of the variance in damage awards suggesting that juries rely heavily on monetary and non-monetary loss estimates in determining damages. The evidence argues against charges of unpredictability, and indicates undercompensation on average.     

Plaintiff injury and defendant reprehensibility: Implications for compensatory and punitive damage awards

A criticism of the civil jury is that jurors' decisions about damages are capricious and arbitrary. In particular, critics point to the skyrocketing nature of punitive damage assessments as evidence of a system run amok. The purpose of this study was to examine the factors that influence jurors' decisions about compensatory and punitive awards. We assess whether, as the law intends, jurors' decisions about compensation are influenced by the severity of the plaintiff's injury but not by the reprehensibility of the defendant's conduct, and whether assessments of punitive damages are related to the defendant's conduct but not to the plaintiff's injury. Across three cases, mock jurors generally utilized relevant information and ignored irrelevant factors in their decisions about damages. Results are discussed in terms of the extent to which juror decision making comports with legal doctrine.     

从比较法的角度看我国惩罚性赔偿制度的必要性

惩罚性赔偿金是英美法上的一项重要制度,具有损害填补、惩罚被告的作用,而德、法等大陆法系国家奉行单纯的补偿性民事责任制度,排斥对于惩罚性赔偿金合法性的认同。我国最早在《消费者权益保护》第49条对其加以规定,取得较好的社会效果,然而2009年颁布的《侵权责任法》并未将惩罚性赔偿原则写入总则,而是局限于产品责任之中。因此,完善惩罚性赔偿金制度有其必要性,通过对惩罚性赔偿制度的介绍以及英美法规定的研习,对我国惩罚性赔偿制度提出建议。     

Welfare Implications of Costly Litigation under Strict Liability

This article examines a model of strict liability with costlylitigation and presents conditions under which (1) potentialinjurers take optimal precautions, (2) increasing the cost oflitigation enhances precaution and social welfare, (3) the optimallevel of liability exceeds the compensatory level, and (4) increasingthe rate of settlement enhances social welfare. The resultshave implications for controversies surrounding fee shifting,optimal damage awards (e.g., punitive damages), and the socialdesirability of settlement. The most striking implication isthat fee shifting in favor of prevailing plaintiffs is sociallydesirable in low-transaction-cost settings.     

The effects of outlier presence,plaintiff population size,and aggregation of plaintiffs on simulated civil jury decisions

An experiment was performed to determine the effects of the size of the plaintiff population, the presence or absence of an outlier, defined as a plaintiff whose injuries were significantly more severe than other plaintiffs, and whether plaintiffs were tried individually or were aggregated in a group. Sixty-six person juries were assigned to one of eleven experimental conditions, listened to a 4-h toxic tort tria, and after deliberating, delivered verdicts on liability, and damage awards. The verdicts were increased significantly by the presence of an outlier and by an increase in the plaintiff population. While the punitive awards were higher in the outlier condition, there was also a tendency for juries to find the company not liable.The meaning of the above findings, as well as the fact that juries exhibited great variability in their verdicts was discussed. Evidence as to the decision-making process of the juries was also gathered and discussed.This research was supported by National Science Foundation Grant SES 860 9892 and by a University of Toledo College of Arts and Sciences Faculty Development Grant. Special thanks to members of the Toledo Repertoire Theatre and University of Toledo Theatre Department for their assistance in preparing the materials for this study.     

惩罚性违约金制度探析

我国《合同法》承认违约金具有补偿性和惩罚性,但并未明确规定在何种情况下为补偿性违约金,何种情况下为惩罚性违约金,而不同性质的违约金其责任适用亦不同。为避免违约金责任适用的混乱,发挥违约金责任应有的功效,在对违约金性质进行分析的基础上,提出违约金的性质应由当事人约定,对补偿性违约金可依法进行国家干预,对惩罚性违约金的最高限额应进行限制。     

侵犯著作权的惩罚性赔偿与表达自由

著作权侵权具有易发性、难以预防和控制、侵权成本低与维权成本高的特点。传统民法认为,侵权损害赔偿只具有填补损害的功能。然而,作品作为一种典型的公共产品,著作权人对作品的控制较弱,补偿性损害赔偿难以为著作权提供足够保护。因此,在著作权侵权救济中应引入惩罚性赔偿。同时,考虑到惩罚性赔偿有可能会不合理地限制作品的传播进而影响到社会公众的表达自由,在惩罚性赔偿的适用范围和条件上应当做出一定限制。     

Juries Don't Make Legal Decisions! And Other Problems: A Critique of Hastie et al. on Punitive Damages

Hastie, Schkade, and Payne (1998) published a simulation experiment intended to study the performance of jurors and juries regarding verdicts on whether punitive damages should be allowed. They concluded that juries were not very competent and discussed the legal policy implications of this conclusion. I identify a fatal conceptual flaw that renders the study irrelevant to legal policy: The jurors were asked to decide law, a decision that is the responsibility of the trial judge, not the jury. I also identify a number of misstatements and unsupported assertions in the article.     

我国民法中惩罚性赔偿制度新探

惩罚性赔偿的思想不仅仅只存在于普通法系之中,它是一种世界性意义的赔偿规则(罚则)。一般民事责任与惩罚性赔偿责任的社会功能相差甚远,且适用范围不一。我国历来民事立法中就有惩罚性赔偿的法律文化传统,当前在我国民事立法中的几个惩罚性赔偿条文不仅不能为当前市场诚信程度不高的信用环境起到充分的弥补作用,而且它们本身设计上也不尽合理。我们应当秉持开放的眼光,对惩罚性赔偿制度进行结构上的重构,这也是我国法学理论和司法实践亟待解决的问题。     

PUNITIVE DAMAGES,CHINESE TORT LAW,AND THE AMERICAN EXPERIENCE

In a country such as China, with abundant consumer products and the inevitability of product defects, claims for punitive damages are sure to arise under Article 47 of the new Chinese Tort Law. Article 47 provides that “(w)hereany producer or seller knowingly produces or sells defective products, causing death or serious damage to the health of others, the injured party may request appropriate punitive damages.” As Chinese jurists and scholars interpret Article 47, they may wish to consider whether lessons can be drawn from the American experience. During the past two decades, few areas of American law have changed more radically than the law on punitive damages. While there were once few restraints on the ability of a judge or jury to impose punitive damages in a case involving egregious conduct, today there are a host of limitations embodied in American state and federal law. In many American states, statutes or judicial decisions restrict the ability of a court to award punitive damages by narrowly defining the types of conduct that will justify a punitive award, raising the standard of proof, capping the amount of punitive damages, requiring a portion of a punitive award to be forfeited to the state, or limiting vicarious liability for punitive damages. In addition, under federal constitutional law, the principle of due process limits the imposition of punitive damages by scrutinizing the ratio between compensatory and punitive damages and prohibiting an award to be based on harm to persons other than the plaintiff. An examination of these developments from a comparative law perspective may prove useful to the implementation of Article 47.     

Reducing Variability in Civil Jury Awards

The purpose of the present study was to test several procedures that could be adopted for reducing unwanted variability in civil damage awards. Four methods for providing guidance to jurors (and judges) about the distribution of awards in comparable cases were compared to each other, to a no-guidance control, and to the capping of awards at a specified maximum, which has been the most commonly legislated solution. The findings of this study suggest several alternative solutions that are better able than caps to solve the problem of unwanted variability in awards.     

The Tort Remedy in Search and Seizure Cases: A Case Study in Juror Decision Making

Civil suits for damage awards against police officers alleged to have engaged in illegal searches have long been suggested as an alternative to the exclusionary rule as a remedy for police misconduct. A review of empirical literature on the incidence and outcomes of such suits suggests that defendant officers often prevail and that the awards do not seem large enough to produce the punishment and deterrence effect often claimed by proponents of the tort remedy. Using an experimental technique involving simulated trials and adults called for jury service as subjects, we examine the effects of two procedural aspects of such suits on juror awards. The extent of municipal liability and the substitution of the U.S. government as plaintiff do not appear to affect the incidence or size of compensatory or punitive damage awards. Denying jurors information about the outcome of the search does appear likely to increase damage awards. The article both explores factors affecting juror decision-making in these cases and illustrates the utility and limitations of the experimental method for testing suggested policy innovations.     

Juror Judgments in Civil Cases: Hindsight Effects on Judgments of Liability for Punitive Damages

An experiment was conducted to investigate whether hindsight bias influences an important class of legal decisions—civil jurors' judgments of liability for punitive damages. Jury-eligible citizens were shown a videotaped summary of the circumstances surrounding an environmental damage lawsuit. Some subjects were presented a foresight perspective and asked to judge whether or not a railroad should comply with an order to stop operations on a section of track that had been declared hazardous. Other subjects were asked to judge whether the railroad was liable for punitive damages after an accident occurred. Three independent variables were manipulated: temporal perspective with one third of the subjects assessing risks in foresight and two thirds assessing risks in hindsight; subject role with one half of the subjects asked to assume the role of a juror rendering a verdict and one half the role of a citizen whose personal opinion was solicited; and, in the hindsight conditions only, the amount of damage ($240,000 vs. $24,000,000) caused by the accident. Almost all measures of participants' judgments and thoughts about the case showed dramatic foresight–hindsight differences. The participants' role had an effect on some measures; for example, participants in the juror role exhibited slightly smaller hindsight effects when judging liability than did those in the citizen role. The magnitude of the damage caused by the accident had no effects on any measures.