15. Punitive Damages

• Pages: 307-324
• Author: Frank Talbott V,Samuel L. Tarry Jr.,Richard C. Beaulieu,Davis M. Walsh

15

Punitive Damages

Frank Talbott V, Samuel L. Tarry Jr.,

Richard C. Beaulieu, and Davis M. Walsh1

State law varies on when punitive damages are available and

how they can be proven. This chapter provides an overview of

the underlying principles that govern punitive damage awards,

and then applies those principles to the infectious disease out-

break context.

Infectious outbreaks create risks of serious injury and death. If not

managed correctly, outbreaks can become epidemics; epidemics

can become pandemics. Those involved are expected to take swift

action to curtail, mitigate, and eliminate risks of further harm. Those

that do not—or are perceived to have not done so—face lawsuits that

threaten compensatory damages.

But what about instances where defendants acted egregiously, or

worse than negligently, by ignoring the risk or taking no action to

address it? Worse, what if some take afrmative steps to interfere with

those attempting to address the risk? Limiting liability of intentional

1. Frank Talbott V is a litigator at McGuireWoods LLP. Samuel L. Tarry Jr. is a liti-

gation partner at McGuireWoods LLP. Richard Beaulieu is a litigation partner at

McGuireWoods LLP. Davis M. Walsh is a litigation partner at McGuireWoods LLP.

307

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actors to compensatory damages might not go far enough. From a

policy standpoint, compensatory damages might not seem a suf-

cient consequence. In the limited circumstances of truly outrageous

conduct, punitive damages may be warranted.

This chapter discusses the role that punitive damages play in out-

break lawsuits. After a brief overview of punitive damages principles,

it discusses the three general factors that must be assessed to determine

whether punitive damages are warranted, with some examples from

outbreak cases. The chapter then turns to some miscellaneous consid-

eration relative to punitive awards, including varying evidentiary stan-

dards of proof, statutory or constitutional limits, and bifurcation issues.

Overview of Punitive Damages Principles

As the Supreme Court has explained, it should be presumed that an

award of compensatory damages will make an injured party whole.2

Punitive damages, on the other hand, seek to punish or deter behav-

ior. Thus, they are reserved only for conduct deemed “sufciently

serious”3 or “reprehensible.”4

A decision to award punitive damages “rests in the discretion of

the nder of fact even when the factual predicate for such an award

has been established.”5 However, the fact nder (typically the jury)

should remember that compensatory damages themselves can already

accomplish these twin goals. Indeed, compensatory damages “already

contain a punitive element.”6 So, too, do compensatory damages serve

as a deterrent to bad behavior.7 Only if compensatory damages fail

to offer any punishment or deterrence should punitive damages be

awarded.8 And mere liability on an underlying cause of action cannot

serve as the basis for imposition of punitive damages.9

2. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 419 (2003).

3. Smith v. Wade, 461 U.S. 30, 52 (1983).

4. State Farm, 538 U.S. at 408.

5. Alston v. Chrysler Corp., 1999 WL 463703, at *1 (Del. Super. Ct. May 24, 1999).

6. State Farm, 538 U.S. at 426.

7. Memphis Community Sch. Dist. v. Stachura, 477 U.S. 299, 307 (1986).

8. Lane v. Hughes Aircraft Co., 22 Cal. 4th 405, 424–25 (Cal. 2000) (Brown, J.,

concurring).

9. Clay v. Ferrellgas, Inc., 118 N.M. 266, 269 (1994).

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