Center for America

Speaker's Resource: 6. Punitive Damages, p 7

 

 

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Key Reference Citations (KRC)

 

Proposals for Reform

  • “The American Tort Reform Association (ATRA) urges states to rein in punitive damage awards and recommends the following specific reform measures:

    • Establish a liability trigger to reflect intentional tort origins and quasi-criminal nature of criminal nature of punitive damage awards – actual malice.

    • Require clear and convincing evidence to establish punitive damage liability.

    • Require proportionality in punitive damages so that punishment fits the offense.

    • Enact federal legislation to address multiple punitive damage awards (to protect against overkill, due process violations, and help preserve ability of future claimants to recover basic out of pocket expense and pain and suffering.”

(www.namic.org  State Legislative and Regulatory Resources, Punitive Damages Reform)

  • ATRA issues paper on Punitive Damages Reform

  • In "Reining In Punitive Damages 'Run Wild': Proposals For Reform By Courts And Legislatures" by Victor Schwartz, Mark Behrens and Joseph Mastrosimone, (Brooklyn Law Review, Vol.65, p.1003, 2000) the authors propose the following:

(1) establishing a liability "trigger" that reflects the intentional tort origins and quasi-criminal nature of punitive damages awards -- "clear and convincing evidence" of "actual malice";

(2) requiring proportionality in punitive damages so that the punishment fits the offense;

(3) permitting a defendant to request "bifurcation" of a punitive damages trial, so that the proceedings on punitive damages would be separate from and subsequent to the proceedings on compensatory damages before the same jury;

(4) precluding plaintiffs from introducing prejudicial net worth evidence;

(5) precluding evidence of a defendant's out-of-state conduct to award and calculate punitive damages;

(6) encouraging the development and marketing of lifesaving and life-enhancing pharmaceuticals, vaccines, and medical devices by creating a defense to punitive damages based on compliance with FDA pre-market approval standards, except in cases where the approval was obtained through fraud or bribery; and

(7) federal legislation to address the special problem of multiple punitive damages awards; this would protect against unfair overkill, guard against possible due process violations, and help preserve the ability of future claimants to recover basic out-of-pocket expenses and damages for their pain and suffering.

 

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