D. Bifurcation and Trifurcation of Cases

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

D. Bifurcation and Trifurcation of Cases

Scholars predict that the issues of bifurcation of compensatory and punitive damage awards and the concept of judge-assessed punitive damage amounts will be the next test cases taken to the High Court.⁹⁰

1. State Court

South Carolina legal scholars had argued that bifurcating civil trials into liability and damages phases would increase a plaintiff's burden and favor the defendant -especially in products liability and medical malpractice litigation.⁹¹ South Carolina courts had also expressed wariness to allow bifurcation.⁹² For instance, the South Carolina Court of Appeals had held that "a trial should be bifurcated only if the issues are so distinct that trial of each alone would not result in injustice."⁹³ Nonetheless, as part of the South Carolina Fairness in Civil Justice Act of 2011, South Carolina now requires bifurcation of liability and punitive damages determinations if requested by any defendant against whom punitive damages are sought.⁹⁴

Specifically, the South Carolina Fairness in Civil Justice Act of 2011 mandates that at the first stage of the bifurcated trial, where the jury must determine liability for compensatory damages, evidence relevant only to the issues of punitive damages is not admissible.⁹⁵ Moreover, punitive damages may be awarded at a second stage only if compensatory or nominal damages have been awarded and only if the plaintiff proves by clear and convincing evidence that his harm was the result of the defendant's willful, wanton, or reckless conduct.⁹⁶ In determining the amount of punitive damages, the jury may consider all relevant evidence, including, but not limited to: (1) the defendant's degree of culpability; (2) the severity of the harm caused by the defendant; (3) the extent to which the plaintiff's own conduct contributed to the harm; (4) the duration of the conduct, the defendant's awareness, and any concealment by the defendant; (5) the existence of similar past conduct; (6) the profitability of the conduct to the defendant; (7) the defendant's ability to pay; (8) the likelihood the award will deter the defendant or others from like conduct; (9) the awards of punitive damages against the defendant in any state or federal court action alleging harm from the same act or course of conduct complained of by the plaintiff; (10) any criminal penalties imposed on the defendant as a result of the same act or course of conduct complained of by the plaintiff; and (11) the amount of any civil fines assessed against the defendant as a result of the same act or course of conduct complained of by the plaintiff.⁹⁷ If punitive damages are awarded, the trial court...