U.S. Department of Justice 
Office of Justice Programs 
Bureau of Justice Statistics 

March 2011, NCJ 233094

Punitive Damage Awards in State Courts, 2005

By Thomas H. Cohen, J.D., Ph.D., BJS Statistician
and Kyle Harbacek, BJS Intern

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This file is text only without graphics and many of the tables. A Zip
archive of the tables in this report in spreadsheet format (.csv) and the full
report including tables and graphics in .pdf format are available from
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Punitive damages were sought in 12% of the estimated 25,000 tort and
contract trials concluded in state courts in 2005. Punitive damages were
awarded in 700 (5%) of the 14,359 trials where the plaintiff prevailed.
Among the trials in which punitive damages were requested by plaintiff
winners, 30% received these damages. The median punitive damage award
for the 700 trials with punitive damages was $64,000 in 2005, and 13% of
these cases had punitive awards of $1 million or more.

Damages awarded in civil trial litigation can take the form of
compensatory or punitive awards. Punitive damages are not awarded for
the purpose of compensating injured plaintiffs, but are almost exclusively
reserved for civil claims in which the defendant's conduct was considered
grossly negligent or intentional. Punitive damages are intended to serve as
a means for punishing the defendant and deterring others from committing
similar actions (Black's Law Dictionary, 1990).

This BJS special report examines tort and contract cases concluded by
bench or jury trial in which punitive damages were sought or granted in a
national sample of state trial courts in 2005. The report on punitive
damages in civil trials is the fourth in a series based on data collected from
the 2005 Civil Justice Survey of State Courts (CJSSC). The CJSSC
examines tort, contract, and real property cases disposed by bench and jury
trials in general jurisdiction courts in 2005. Since the CJSSC
is based on a 2005 disposition date, many of these cases were filed in prior
years, but disposed in 2005. Cases were classified as trials for inclusion in
the CJSSC if both litigants appeared at trial, both sides presented contested
evidence, at least one litigating party sought monetary damages, and the
trial was heard through completion.

The CJSSC provides case-level information about sampled civil trials,
such as characteristics of litigants involved in trials, type of trial (i.e.,
bench or jury), civil trial winners, compensatory and punitive damage
awards, and case processing times. The 2005 CJSSC examined tort,
contract, and real property trials concluded in a national sample of urban,
suburban, and rural jurisdictions. Prior iterations of the CJSSC focused on
tort, contract, and real property trial litigation in a sample of the nation's
75 most populous counties. The 2005 CJSSC also represents the first time
that information was collected on whether litigants requested punitive
damages in civil trial litigation.

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HIGHLIGHTS

*Litigants sought punitive damages in 12% of the estimated 25,000 civil
trials concluded in 2005.

*Punitive damages were sought in 10% of all tort trials; however, for
certain case types including slander or libel, conversion, and intentional
tort cases, punitive damages were requested in approximately 30% of
trials.

*Punitive damages were awarded in 700 (5%) of the 14,359 trials where
plaintiffs prevailed.

*Plaintiffs received punitive damages in 30% of the 1,761 civil trials in
which these damages were requested and the plaintiff prevailed.

*The median punitive damage award was $64,000, and 13% of cases with
punitive awards had damages of $1 million or more.

*In 76% of the 632 civil trials with both punitive and compensatory
damages, the ratio of punitive to compensatory damages was 3 to 1 or less.

*Differences in punitive damages between bench and jury trials were
greater in contract cases than in tort cases.

*Litigants filed motions for post-trial relief in nearly half of civil trials 
with punitive damages and appeals in about a third of civil trials with
punitive damages.
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Punitive damages were sought in 12% of civil trials

Punitive damages were sought in 12% of the estimated 25,000 tort and
contract trials concluded in the national sample of counties in 2005 (table
1). Real property trials are not analyzed in this report because information
on plaintiff winners receiving punitive damages for this case type were not
available.

Punitive damages were sought in 10% of the 16,057 tort trials; however,
for certain tort case types, such as slander or libel, conversion, and
intentional tort cases, punitive damages were requested in approximately
30% of trials. For the more common tort case types, including premises
liability, automobile accident, and medical malpractice--which together
accounted for 84% of tort trials--litigants requested punitive damages in
7% of these cases.

Punitive damages were sought in 16% of the 8,874 contract trials
concluded in the national sample in 2005. For certain contract case types,
such as tortious interference, fraud, and employment discrimination cases,
punitive damages were sought in more than 30% of trials. In some of the
more common contract case types, such as seller plaintiff cases, punitive
damages were sought in less than 10% of trials.

The variation in punitive damage claims by case type might be influenced
by the legal elements inherent in the CJSSC case categories. Certain civil
claims, such as intentional torts (e.g., assault or battery) or slander or 
libel tend to have elements of willful or intentional behavior that would be
expected to support a punitive damages request.*** Footnote 1 Eisenberg,
Theodore; Heise, Michael; 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:
http://ssrn.com/abstract=1412864.*** Other CJSSC case categories, such
as automobile accident or premises liability, typically do not involve
elements of intentional or reckless behavior that could be used to support a
punitive damages award.

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Report focuses on punitive damages in the 3% of civil cases concluded by
trial 

When examining punitive damage awards in civil trial litigation, it is
important to consider that the number of cases being analyzed is relatively
small compared to the entire universe of potential civil dispositions. The
2005 CJSSC included aggregate counts of civil trial and non-trial
dispositions in 116 jurisdictions. In these jurisdictions, an estimated 3% of
the 439,341 civil cases were disposed of by bench or jury trial (table 2).
Trial rates varied slightly across the primary civil case categories with 4% 
of tort and 2% of contract cases being resolved through bench or jury trial.
Although punitive award figures are available for the 3% of civil cases
disposed through trial, no information is available about punitive damages
as part t of the settlement agreement for civil cases that settled.
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Punitive damages were sought in a fifth of trials involving individuals
suing government defendants

The CJSSC data allow for an examination of punitive damage claims by
the characteristics of plaintiffs and defendants involved in civil trial
litigation. In more than 70% of civil trials, individuals sued either other
individuals or businesses (table 3). For these trials, punitive damages were
requested relatively infrequently. Punitive damages were sought in 10% of
trials in which both the plaintiff and defendant were individuals and 16%
of trials in which the plaintiff was an individual and the defendant a
business. The third most common litigant pairing category involved
businesses suing other businesses, and punitive damages were sought in
13% of these cases. Punitive damages were also sought in about 21% of
trials with individual plaintiffs and government defendants.

Litigants sought punitive damages in 25% of trials with compensatory
awards exceeding $1 million

Compensatory damages are awarded for the purpose of compensating
injured parties for economic (e.g., lost wages and medical expenses) or
non-economic (pain and suffering) damages. Litigants sought punitive
damages in 12% of civil trials with compensatory awards ranging from $1
to $100,000, and 15% of trials with compensatory awards ranging from
$100,001 to $1 million (table 4). Punitive damages were sought in 25% of
civil trials with compensatory awards above $1 million.

Punitive damages were awarded in 5% of trials with plaintiff winners

Punitive damages were awarded in 700 (5%) of the 14,359 civil trials in
which the judge or jury found for the plaintiff (table 5). By general case
type, punitive damages were awarded in a higher percentage of contract
trials (8%) than tort trials (3%). Several prevalent case categories,
including medical malpractice, automobile accident, and premises liability,
recorded punitive damages being awarded in 1% or less of cases.

In comparison to these case categories, several specific case types
concluded with relatively higher rates of punitive damage awards. Among
torts, punitive damages were awarded in nearly a third of intentional tort
cases. For contracts, courts awarded punitive damages in more than a fifth
of contractual fraud or employment discrimination cases.

Punitive damages were awarded in nearly 1 of every 3 trials in which these
damages were requested

The overall percentage of civil trials with plaintiff winners awarded
punitive damages increases to 30% when the base of trials is reduced to
include only those 1,761 trials in which punitive damages were sought
(table 6). Punitive damages were awarded in 23% of tort and 35% of
contract trials in which these damages were requested.

Punitive damages were awarded in 7% of trials involving individual
plaintiffs and business defendants

Overall, there was little difference in the percentage of trials with punitive
damage awards when categorized by litigant pairings. The percentage of
trials with punitive damages ranged from 3% in cases involving business
litigants only to 7% in cases involving individual plaintiffs and business
defendants (table 7). Among trials in which punitive damages were
requested, damages were awarded in a third involving individual plaintiffs
and business defendants (33%) (not shown in table).

Median punitive damage awards were $64,000

The median damage amounts awarded to plaintiff winners in the 700 trials
with punitive damages was $64,000 (table 8). Nearly 30% of punitive
awards equaled or exceeded $250,000 and 13% were $1 million or more.
For the general civil case categories, the median punitive awards ranged
from $55,000 in tort to $69,000 in contract cases.

In 76% of trials with punitive damages the ratio of punitive to
compensatory awards was 3 to 1 or less

The relationship between the plaintiff's economic and non-economic
losses and the amount of punitive damages awarded, as expressed by the
ratio of compensatory and punitive damages, has been an area of interest
in Supreme Court jurisprudence. In several cases--culminating in the 2003
decision of State Farm Automobile Insurance Company v. Campbell (123
S.Ct. 1513: 1524, April 7, 2003)--the Court held that, "Few awards
exceeding a single digit ratio between punitive and compensatory damages
will satisfy due process." Eight percent of trials with punitive damages
reported ratios of punitive to compensatory awards of greater than 10 to 1
(not shown in table).

In 76% of the 632 civil trials with both punitive and compensatory awards,
the ratio of punitive to compensatory damages was 3 to 1 or less (table 9).
In trials with a ratio of punitive to compensatory awards ranging between 1
to 1 and 3 to 1, the median punitive and compensatory awards were similar
($100,000). About 24% of trials with punitive damages registered a ratio
of punitive to compensatory awards of more than 3 to 1. In these trials, the
median compensatory award was about $22,000, while the median
punitive award was $352,000.

Differences in punitive damages between bench and jury trials were
greater in contract than tort cases

Juries and judges differ more frequently in contract than in tort cases in
terms of punitive damage award activity. Between tort bench and jury
trials, no detectable differences were observed between the percent that
requested or were awarded punitive damages (table 10). Even when the
population of tort cases was restricted to those in which punitive damages
were sought, the percentage of litigants awarded these damages in jury and
bench trials were identical (22%) (not shown in table).

In contrast to tort cases, punitive damages were sought more frequently
and awarded more often in contract jury trials than in contract bench trials.
Punitive damages were sought in 28% of jury and 9% of bench trials
involving contract claims. In cases with plaintiff winners, punitive
damages were awarded in 20% of contract cases adjudicated before juries
and 2% of contract cases tried before judges.

Post-trial motions were filed in nearly half of trials with punitive damages

After a trial reaches final verdict or judgment, litigants can file post-trial
motions seeking to modify or overturn the trial court outcome. These
motions include motions for judgments notwithstanding the verdict, or
motions for a new trial, to modify the award, or for some other form of
relief. Overall, litigants filed post-trial motions in nearly half (47%) of the
700 civil trials with punitive damage awards (table 11). In comparison,
post-trial motions were filed in about 30% of the 14,550 civil trials with
plaintiff winners, including those with and without punitive awards (not
shown in table).

Litigants filed appeals in nearly a third of trials with punitive damages

Filing a notice with the trial court to take an appeal to the state's
intermediate appellate court or court of last resort represents another
option for litigants seeking to overturn or modify a verdict or judgment
that they believe does not comply with state law. Notices of appeal were
filed with the trial court by one or both parties in 29% of the 700 civil
trials with punitive damage awards (table 12). Among the 14,550 civil
trials with plaintiff winners, the percent in which an appeal was filed by
one or both parties was 17% (not shown in table). Notices of appeal were
filed in a fifth of tort and a third of contract cases with punitive damages.

Methodology

The Civil Justice Survey of State Courts (CJSSC) examines tort, contract,
and real property trials disposed of in general jurisdiction courts. The 2005
CJSSC contained two sampling frames. First, the sample was designed so
that inferences could be made about general civil trials litigated in the
nation's 75 most populous counties. The 75 most populous counties design
was maintained in order to compute trends in civil trial litigation. The
sample design for the 75 most populous counties sample was the same as
the ones used for the 2001, 1996, and 1992 BJS civil trial studies.

Selection of counties

The sample is a stratified sample with 46 of the 75 most populous counties
selected. The 75 most populous counties were divided into five strata: four
were based on civil disposition data obtained in 1992 through telephone
interviews with court staff in the general jurisdiction trial courts, and one
stratum was added in 2001 to reflect population changes. Stratum 1
consisted of the 14 counties with the largest number of civil case
dispositions. Every county in stratum 1 was selected with certainty.
Stratum 2 consisted of 13 counties with 11 chosen for the sample. From
strata 3, 10 of the 18 counties were selected. Nine of the 26 counties in
stratum 4 were included in the sample. Stratum 5 was added to the 2001
sample to replace Norfolk County, Massachusetts, a stratum 4 site that
participated in the 1992 and 1996 studies but that fell out of the 75 most
populous counties in the 2000 census. Mecklenburg County, North
Carolina, and El Paso County, Texas, were randomly selected from the
four counties whose population increased sufficiently that they joined the
ranks of the 75 most populous counties.

In addition to sampling civil trial litigation in the nation's 75 most
populous counties, a sample of counties from which to estimate the civil
trial litigation outside the 75 most populous was developed. The sample of
civil trial litigation outside the nation's 75 most populous counties was
constructed by first forming 2,518 primary sampling units (PSUs) from
3,066 counties--3,141 U.S. counties total minus the 75 counties from the
2001 CJSSC. The PSUs were formed through use of the following criteria:
(1) they respected state lines, (2) they were based on one or more
contiguous counties, and (3) they required a minimum estimated 2004
population of 10,000 persons. The average number of counties in each
PSU was 1.22, with a maximum of 5 counties per PSU.

The 2,518 PSUs were stratified into 50 strata according to census region,
levels of urbanization, and population size, which was based on the square
root of the estimated 2004 population in each of these PSUs. Two PSUs
were selected with equal probability within each of the fifty strata for a
total of 100 PSUs and 110 counties in the supplemental sample. Hence, a
total of 156 counties, 46 representing the nation's 75 most populous and
110 representing the remainder of the nation, were used for the sample. All
PSUs selected for the CJSSC either participated or substitutes were found
for non-responsive units from a shadow sample; therefore, non-response
adjustments were not needed for this survey.

Selection of cases

The second stage of the sample design generated lists of cases for coding.
Each participating jurisdiction identified cases disposed of by jury trial or
bench trial between January 1, 2005, and December 31, 2005. Some
jurisdictions produced a list covering 12 months of trials for a fiscal year.
Trial cases sampled met the following criteria for jury and bench trials:
both litigants appeared at trial, both sides presented contested evidence, at
least one litigating party sought monetary damages, and the trial was heard
through completion. These criteria excluded many cases initially classified
as bench or jury trials from the sample. Civil trials in state courts of
limited jurisdiction and small claim cases were also excluded.

Weighting

For the sample of civil trials occurring in the nation's 75 most populous
counties, data on 7,682 civil trials met the study criteria. When these trials
are weighted to the nation's 75 most populous counties, they represent
10,813 civil trials. For the sample of civil trials occurring outside the
nation's 75 most populous counties, data on 1,190 civil trials met the study
criteria. When these trials are weighted, they represent 16,135 civil trials
disposed in counties outside the nation's 75 most populous (appendix table
1).

The weighted estimate of 26,948 civil trials represents a small percentage
of the reported 7.5 million civil cases filed in all unified/general
jurisdiction state courts nationwide in 2005. This nationwide count
comprises all tort, contract, real property, small claims, probate/estate,
mental health cases,  and other civil cases filed in state courts of
unified/general jurisdiction. Although no nationwide counts of tort and
contract filings in state courts are available, the National Center for State
Courts Court Statistics Project reports 425,611 tort cases being filed in the
unified/general jurisdiction courts of 32 states and 1,121,979 contract
cases being filed in the unified/general jurisdiction courts of 28 states in
2005 (LaFountain, R., Schauffler, R., Strickland, S., Raftery, W., &
Bromage, C., Examing the Work of State Courts, 2006; A National
Perspective from the Court Statistics Project (National Center for State
Courts 2007)).

Confidence of intervals

Because the data come from a sample, a sampling error and confidence
intervals are associated with each reported number. Confidence intervals
and standard errors for several key variables are reported in table 10 and
appendix table 2. These confidence intervals show where the reported
CJSSC numbers would fall 95% of the time in repeated sampling. BJS
statisticians examined the distribution of unweighted outcome statistics
and the sampling error, confidence intervals, and coefficients of variation
associated with each to identify outcome statistics most prone to sampling
error. Those statistics with a coefficient of variation twice the estimated
mean were deemed to be statistically unreliable and were not included in
this report.

Collection of counts of all civil dispositions

In conjunction with collecting detailed case level information on general
civil trials, the counties participating in this survey were asked to complete 
a survey instrument constructed in a spreadsheet format that contained
information on all general civil cases disposed in 2005. Frequency counts
were obtained for trial and non-trial dispositions in these counties. The
non-trial dispositions included cases dismissed for want of prosecution,
granted default or summary judgments, settled or withdrawn prior to trial,
settled through mediation or another method of alternative dispute
resolution, or transferred to another court. This secondary data collection
was used to gather disposition outcomes in trial and non-trial cases by case
types.

GLOSSARY

Torts--Claims arising from personal injury or property damage caused by
negligent or intentional acts of another person or business. Examples of
torts include--

Automobile accident--Personal injury or death caused by the negligent
operation of a motor vehicle (not boat or airplane).

Conversion--Personal injury or property damage caused by the
unauthorized use or control of another's personal property.

Intentional tort--Personal injury, death, or property damage caused by
another's intentional act.

Medical malpractice--Personal injury or death caused by a medical
professional's negligent care.

Other professional malpractice--Personal injury, death, or property damage
caused by the negligent act of a non-medical professional.

Other negligent acts--Negligence for an act not represented by other case
categories.

Premises liability--Personal injury or death caused by dangerous condition
of residential or commercial property.

Product liability--Personal injury or damage caused by the negligent
manufacture or design of a product or exposure to toxic substances.

Slander, Libel, or Defamation--Damage caused to the career or reputation
of an individual due to false accusations, comments, or statements made
by another.

Contracts--Cases that include all allegations of breach of contract.

Buyer plaintiff--Buyer claims no delivery or delivery of incomplete,
incorrect, or poor quality goods or services.

Employment discrimination--Firing, failure to promote, or failure to hire
due to age, race, gender, or religion. Also, any dispute between employer
and employee not based on an allegation of discrimination.

Fraud--Claim of negligent or intentional misrepresentation of the nature of
a person, product, or service within a legal contract.

Other contract claim--Any contractual dispute other than the case
categories
used in this study, such as stockholder claims.

Rental/lease agreement--A dispute between a landlord and a tenant over
the terms of a lease or rental property.

Seller plaintiff--Any debt collection for delivery of goods or services,
including lenders seeking payment of money owed by a buyer or
borrowers.

Tortious interference--Dispute alleging a defendant's intentional procuring
of breach of a commercial or contractual relationship and damages.

Damage award terms

Compensatory damages--Damages awarded to compensate plaintiffs for
financial losses, pain, suffering, or emotional distress resulting from
defendants' negligence. Compensatory damages include both economic
and non-economic damages:

Economic damages--Economic damages are awarded for actual financial
losses (e.g., medical costs, lost wages, lost future earnings, property
damages) suffered by litigant.

Non-economic damages--Non-economic damages are awarded for pain
and suffering, emotional distress, or loss of consortium.

Punitive damages--Punitive damages are awarded as a punishment for
intentionally or grossly negligent behavior. They are awarded for the
purposes of punishment rather than compensation.

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The Bureau of Justice Statistics is the statistical agency of the
U.S. Department of Justice. James P. Lynch is the director.

This report was written by Thomas H. Cohen and Kyle Harbacek 
under the supervision of Duren Banks. Ron Malega verified the report.
Nicole L. Waters, Ph.D. of the National Center for State Courts provided
comments. Catherine Bird and Jill Thomas edited the report, Barbara
Quinn produced the report, and Jayne Robinson prepared the report for
final printing under the supervision of Doris J. James.

March 2011, NCJ 233094

This report in portable document format and in ASCII and its related
statistical data and tables are available at the website:
http://www.bjs.gov/index.cfm?ty=pbdetail&iid=2376.
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