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.
Bucking 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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This 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.