F. Review of Punitive Damages on Appeal

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

F. Review of Punitive Damages on Appeal

1. Federal Court

In 2001, the United States Supreme Court radically altered the standard of review for punitive damages.¹⁹⁴ It ultimately determined that punitive damages awarded by the jury will now be reviewed under a de novo standard by appellate courts rather than the abuse of discretion standard. What of the Seventh Amendment¹⁹⁵ prohibition that "no fact tried by a jury, shall be otherwise re-examined in any Court of the United States"? The United States Supreme Court avoided this problematic issue by indicating that while damages awards themselves are within the exclusive province of the jury,¹⁹⁶ arguing that the amount of damages awarded is merely a policy judgment or "an expression of [their] moral condemnation" and not a "fact" within the meaning of the Seventh Amendment's Re-examination Clause.¹⁹⁷

The Court's logic was effectively based on the notion that after two hundred years, trial judges and juries were suddenly unable to responsibly determine an appropriate amount of punitive damages. The Court espoused that juries do not engage in a "finely tuned exercise of deterrence calibration when awarding punitive damages" and, therefore, the function punitive damages serve as a deterrent to future conduct does not indicate that the damage award is a "fact."¹⁹⁸ The Court also suggested that there are differences in "institutional competence"¹⁹⁹ of trial and appellate judges, further justifying a de novo review of punitive damages awards by appellate courts according to the analysis enumerated in Gore.²⁰⁰ Finally, the Court concluded that trial judges have superior perspective only in areas of witness credibility and demeanor.²⁰¹ They found trial judges and appellate judges to be equally capable with respect to determining the second Gore factor. However, they found the third factor, calling for a comparison of awards in other cases, to be better suited to the expertise of appellate court judges. Apparently, the United States Supreme Court has concluded that trial court judges are less competent in comparing the results of similar cases, justifying the Court's conclusion that a de novo review is necessary to unify precedent and stabilize the law.²⁰²

2. State Court

Prior to 2009, the South Carolina Supreme Court, in Gamble v. Stevenson,²⁰³had developed an eight factor post-verdict review which trial courts were required to conduct to determine if a punitive damages award comported with due process: (1) defendant's degree of culpability; (2) duration of the conduct; (3) defendant's awareness or concealment; (4) the existence of similar past conduct; (5) likelihood the award will deter the defendant or...