Even those who are otherwise highly critical of allowing jurors to assess punitive damages agree that American juries are well suited to determining the degree of reprehensibility
of a defendant's misconduct.
First and most important is the reprehensibility
of the defendant's conduct--the more reprehensible it is, the larger an appropriate punitive damages award can be.
, the Court clarified and confirmed the five elements to be used by the lower courts when examining the severity of the defendant's harmful conduct to determine punitive awards.
The Court noted that the presence of a single factor involved in the reprehensibility
analysis may not be sufficient.
On the tendency of comparative reprehensibility
analysis to nullify the Fourth Amendment by substituting contemporary values for those the founders expressed in the text, see Yale Kamisar, "Comparative Reprehensibility
" and the Fourth Amendment Exclusionary Rule, 86 MICH.
He also argued that the jury and the Oregon courts appropriately considered the fact that the industry's fraud endangered the lives and health of many Oregonians, in addition to Jesse Williams, as an element in the reprehensibility
of Philip Morris's conduct.
It is not readily apparent how one would make a meaningful comparison of reprehensibility
But the Supreme Court has said--and emphatically--repeated--that "the most important indicium of the reasonableness of a punitive damages award" is the reprehensibility
of the defendant's conduct.
The concept is inherently flawed because it is premised on a unidimensional assessment of cases: an assessment on the basis of reprehensibility
Rather, we conclude that courts have consistently held that when a bad-faith policy or practice of an insurance company is applied to the specific plaintiff, the plaintiff is entitled to discover and ultimately present evidence of that policy or practice at trial in order to prove that the insurer intentionally injured the plaintiff and to show the insurer's reprehensibility
and recidivism in order to assist the jury in calculating appropriate punitive damages," Surrick wrote.
Moreover, because the legal system (inexplicably) has not yet fully internalized the insights of law and economics theory, unrelated considerations, such as the wealth of the defendant or the reprehensibility
of the defendant's conduct, continue to play a role in punitive damage awards.
The appeals court in that case established factors to consider in deciding whether an award is excessive: "the degree of reprehensibility
of defendant's conduct, the wealth of the defendant, the amount of compensatory damages, and an amount which would serve as a deterrent effect on like conduct by defendant and others who may be so inclined.