66.750 Punitive Damages; Amount; Guidelines

66.750 Punitive Damages; Amount; Guidelines (Note: Georgia statutory law does not recognize guidelines for punitive damages. State Farm Mutual Automobile Insurance Company v. Campbell, 538 US 408; 123 S. Ct. 1513 (2003) arises from another state and has not been interpreted in Georgia as of this writing. Procedures and evidence addressed are specific to that case; however, in broad language, the opinion addresses and condemns perceived due process problems that occur in many jurisdictions, including Georgia. The trial judge needs to be aware of its (6-3) holding and the trend that it supports. Much of its language may be dicta, but the case is perceived by many to be a bellwether case on punitive damages. The extent of the effect is not known. The guidelines of State Farm Mutual Automobile Insurance Company v. Campbell, are written for postjudgment review, but there is strong language suggesting that postjudgment review (as has often been relied on in Georgia) may not suffice as a substitute for jury guidance and may not be adequate to comply with due process. Punishment without due process (i e., notice of prohibited conduct and severity of punishment) is the issue, and therefore some guidance adjusted to the evidence is probably necessary. The extent of required guidance is not known. Prompted by a very strong trend in U.S. cases, Georgia case law, especially Hospital Authority of Gwinnett Co. V. Jones, has recognized the guidelines that follow. Some of these guidelines may conflict with or duplicate those suggested in State Farm v. Campbell. Adjustments to the charge have been made accordingly.) In considering the amount of punitive damages, you may consider the following factors: a. the nature and egregiousness (reprehensibility) of the defendant's conduct (See 66.760 Reprehensibility; Amplified) b. the extent and duration of the defendant's wrongdoing and the (possibility) (likelihood) of its recurrence (the word "possibility" is from the opinion; substitution of "likelihood" may avoid a burden of proof conflict.) c. the intent of the defendant in committing the wrong d. the profitability of the defendant's wrongdoing (give only if supported by evidence) e. the amount of actual damages awarded f. the previous awards of punitive damages against the defendant (for the same or similar conduct) (parenthetical qualifier added due to language of State Farm v. Campbell; give only if supported by evidence). g. potential or prior criminal (civil) sanctions against the defendant based upon the same wrongful acts (give only if supported by evidence) h. the financial circumstances, that is, the financial condition and or the net worth of the defendant (give only if supported by evidence) (Note: The supreme court identifies net worth an area with great potential for bias but gives no guidance for a charge or other solution. A general sympathy charge has been criticized as insufficient. Consider giving a limiting charge on sympathy and prejudice specifically addressing financial circumstances. See 66.773 Bias, Sympathy, Prejudice and 02.550 Sympathy.) i. any other pertinent circumstances (Note: This catchall is from Georgia case law but may violate due process and State Farm v. Campbell.) Hospital Authority of Gwinnett Co. v. Jones, 259 Ga. 759, 764 (1989); reversed on other grounds State Farm and BMW v. Gore, 517 US 559 (1996) set the following guidelines for review of any punitive award: a. degree of reprehensibility of the defendant's conduct; b. proportionality between conduct, compensatory award, and punitive award; and c. comparison between the punitive award and authorized civil penalties imposed in comparable cases. (Note: The potential for these issues is predictable and should be known by both counsel well in advance of trial. The committee strongly suggests that the trial judge insist, to the degree practicable, on a "high-low" agreement from counsel and/or a stipulated range of proportion between actual and punitive damages. Failing that, in pretrial conference, the judge should attempt to obtain and record consensus on how these issues can best be met.)