The drafting of jury instructions on punitive damages presents unique challenges for defense lawyers. On the one hand, it is generally necessary to ask for an instruction that goes beyond existing law in order to preserve the argument that the law should be changed. That is how the harm-to-nonparties issue was teed up in Philip Morris v. Williams. And just importantly, because most pattern instructions on punitive damages are fairly perfunctory, it is often necessary to propose a more expansive alternative to ensure that the jury is adequately apprised of even existing law.
On the other hand, proposing an instruction that goes too far can result in reversal of a favorable verdict if the trial court goes along and gives it. That is what happened in Cain v. Lee, a case recently decided by the Virginia Supreme Court.