C. Amount of Award

• Library: South Carolina Damages Supplement (SCBar) (2017 Ed.)

C. Amount of Award

The United States Supreme Court has determined that while punitive damage awards themselves are within the exclusive province of the jury,⁵⁸ the amount of damages awarded is merely a policy judgment or "an expression of [their] moral condemnation"⁵⁹ and not a "fact" within the meaning of the Seventh Amendment's Reexamination Clause. They have reasoned that juries do not engage in a "finely tuned exercise of deterrence calibration when awarding punitive damages."⁶⁰ Therefore, the amount of a punitive damage award is not a "fact" to be determined by the jury.⁶¹

While those beating the drum of "tort reform" claim runaway juries and runaway verdicts require drastic measures, an examination of reliable and unimpeachable evidence shows such measures are not necessary. In March of 2005, the United States Department of Justice published a survey of general civil bench and jury trials that produced a punitive damages award in the nation's 75 most populous counties in 2001.⁶² This survey found that in 2001 juries awarded punitive damages to a mere 6% of all successful plaintiffs,⁶³ with the median award being only $50,000.⁶⁴ Significantly, the percentage of successful plaintiffs receiving punitive damage awards from juries in 2001 was the same as it was in 1992.⁶⁵ Moreover, the median award actually decreased from $63,000 in 1992 to $50,000 in 2001.⁶⁶ Furthermore, the punitive damage award exceed the compensatory damage award in only 39% of the civil trials with punitive damages.⁶⁷

The Department of Justice published another report on punitive damage awards in 2011, this time involving trials in state courts in 2005.⁶⁸ In 2005, over 14,000 plaintiffs prevailed in civil trials but only 5% were awarded punitive damages.⁶⁹ The median punitive damage award was $64,000, with only 13% being $1 million or more.⁷⁰ Moreover, in 76% of the trials with both punitive and compensatory damage awards, the ratio of punitive to compensatory damages was three to one or less.⁷¹ This research proves that contrary to the claims of those clamoring for additional tort reform, punitive damage awards are, in fact, not rising.

The foregoing research is consistent with earlier research specific to South Carolina, through which Professor Patrick Hubbard determined that "punitive awards are not common" in South Carolina.⁷² In fact, such verdicts are particularly rare in products liability, medical malpractice, and premises liability cases.⁷³ Based on follow-up research,⁷⁴ Professor Hubbard proved that "[p]unitive awards are rare and, with occasional exceptions, are relatively modest."⁷⁵

Studies also find that judges and juries do not differ significantly in awarding punitive damages. In fact, studies indicate that jurors are no more generous than judges in awarding punitive damages.⁷⁶ Judges can be affected by bias because, contrary to the jury, they are free to hear all evidence and testimony during a trial, whereas a jury does not hear evidence deemed inadmissible or that which is excluded.⁷⁷ Further, juries are not repeat performers and are less likely to be pressured by public criticism for unpopular decisions.⁷⁸ Finally, juries are groups drawn at random from a community and, therefore, are a reliable "sampling," which can adequately estimate that particular community's valuation of a particular injury.⁷⁹

Even though the foregoing studies revealed that a complete overhaul of the system was wholly unwarranted and that the efforts of proponents of tort reform to severely restrict the jury's independence in awarding punitive damages were unnecessary, South Carolina enacted the South Carolina Fairness in Civil Justice Act of 2011, which applies to all actions accruing on or after January 1, 2012.⁸⁰ Among other things, this Act provides that punitive damages may not exceed the greater of three times the amount of compensatory damages or $500,000.⁸¹ However, the limitation can be raised to the greater of four times the amount of compensatory damages or $2 million if the trial court finds either (1) that the wrongful...