As we have observed in a prior post, defendants in punitive damages cases often fail to develop evidence in mitigation of the amount of punitive damages, enabling the plaintiff to focus the jury on evidence about the defendant’s wealth and to argue—essentially with no resistance—that a substantial award of punitive damages will be necessary to change the defendant’s conduct in light of that wealth.

Hip ImplantBucking this trend, Wright Medical Technology and Wright Medical Group, the defendants in multidistrict litigation alleging defects in their hip implants, have developed evidence designed to persuade juries that large punitive awards would be unnecessary and counterproductive. In particular, the Wright Medical defendants have developed evidence about the various deleterious effects that a large punitive award might have.  They also have developed evidence relating to their good “corporate character.”


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ChoicesIn a recent post, we set forth our views on why, with some forethought, traditional bifurcation—i.e., trying liability for the underlying tort, compensatory damages, and liability for punitive damages in the first phase and, if necessary, the amount of punitive damages in a second phase—can be a beneficial procedural safeguard for defendants.  Sometimes, however, circumstances may dictate other forms of bifurcation, or even trifurcation.
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Two Sides to a StoryAs we noted in a prior post, many state legislatures and supreme courts have mandated that the amount of punitive damages be tried separately from other issues in the case if the defendant so requests.  The principal impetus for mandating this procedure was concern that evidence of the defendant’s financial condition, though assumed to be relevant to the amount of punitive damages, is undeniably irrelevant to and presents a grave risk of prejudicing the resolution of the other issues in the case—i.e., liability for the underlying tort, comparative fault, compensatory damages, and liability for punitive damages.

We will address in a future post why the assumption that an organization’s financial condition is relevant to the setting of punitive damages is false.  But the purpose of this post is to take sides in the debate over whether this safeguard—colloquially known as bifurcation—is worth invoking.


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The lawyer for the plaintiff in a punitive damages case frequently asks the jury to return a particular amount of punitive damages.  Often the requested amount is very large—far more than the plaintiff realistically expects to recover, and certainly greater than the Constitution would permit.

Concept-Stuck_Anchor_16353254LargeThis strategy has a clear purpose:  Suggesting an arbitrary large number sets the jury’s “frame of reference” and anchors its assessment of the proper amount of punishment.  A substantial and mounting body of social science research demonstrates that jurors exposed to high numerical “anchors” return much higher awards—even if those anchors are self-evidently arbitrary, and even if they are presented to jurors as “limits,” “caps,” or “maximums.”  The plaintiff’s request has the effect of starting the jury’s discussion at the suggested level—even if the request bears no relationship at all to the facts or the evidence in the case.


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