The Decision to Award Punitive Damages: An Empirical Study

Empirical studies have consistently shown that punitive damages are rarely awarded, with rates of about 3 to 5 percent of plaintiff trial wins. Using the 2005 data from the Bureau of Justice Statistics Civil Justice Survey, this article shows that knowing in which cases plaintiffs sought punitive damages transforms the picture of punitive damages. Not accounting for whether punitive damages were sought obscures the meaningful punitive damages rate, the rate of awards in cases in which they were sought, by a factor of nearly 10, and obfuscates a more explicable pattern of awards than has been reported. Punitive damages were surprisingly infrequently sought, with requests found in about 10 percent of tried cases that plaintiffs won. State laws restricting access to punitive damages were significantly associated with rates of seeking punitive damages. Punitive damages were awarded in about 30 percent of the plaintiff trial wins in which they were sought. Awards were most frequent in cases of intentional tort, with a punitive award rate of over 60 percent. Greater harm corresponded to a greater probability of an award: the size of the compensatory award was significantly associated with whether punitive damages were awarded, with a rate of approximately 60 percent for cases with compensatory awards of $1 million or more. Regression models correctly classify about 70 percent or more of the punitive award request outcomes. 1 Eisenberg is Henry Allen Mark Professor of Law and Adjunct Professor of Statistical Sciences, Cornell University; Heise is Professor of Law, Cornell Law School; Waters is Senior Court Research Associate, National Center for State Courts; Wells is Charles A. Alexander Professor of Statistical Sciences, Cornell University, Professor of Clinical Epidemiology and Health Services Research, Cornell University Weill Medical College. The data analyzed here were gathered under a grant from the Bureau of Justice Statistics and are archived at the Interuniversity Consortium for Political and Social Research, Civil Justice Survey of State Courts, 2005, Study No. 23862. The views expressed here are those of the authors and not those of either the National Center for State Courts or of the Bureau of Justice Statistics. Earlier versions of this paper were presented at the Max Planck Institute for Research on Collective Goods, Bonn, Germany, at the 2009 meeting of the Southeastern Association of Law Schools, and at the Poster Session of the 2009 Conference on Empirical Legal Studies, University of Southern California, Gould School of Law. Eisenberg has analyzed the 2005 Civil Justice Survey data in connection with an expert report for the estate of a plaintiff with a possible punitive damages claim. Fall 2010: Volume 2, Number 2 ~ Journal of Legal Analysis ~ 577 Judge-jury differences in the rate of awards exist, with judges awarding punitive damages at a higher rate in personal injury cases and juries awarding them at a higher rate in nonpersonal injury cases. These puzzling adjudicator differences may be a consequence of the routing of different cases to judges and juries.