The Decision to Award Punitive Damages: An Empirical Study

Abstract

Empirical studies have consistently shown that punitive damages are rarely awarded, with rates of about 3 to 5 percent of plaintiff trial wins. Using the 2005 data from the Bureau of Justice Statistics Civil Justice Survey, this article shows that knowing in which cases plaintiffs sought punitive damages transforms the pic- ture of punitive damages. Not accounting for whether punitive damages were sought obscures the meaningful punitive damages rate, the rate of awards in cases in which they were sought, by a factor of nearly 10, and obfuscates a more explicable pattern of awards than has been reported. Punitive damages were sur- prisingly infrequently sought, with requests found in about 10 percent of tried cases that plaintiffs won. State laws restricting access to punitive damages were signifi- cantly associated with rates of seeking punitive damages. Punitive damages were awarded in about 30 percent of the plaintiff trial wins in which they were sought. Awards were most frequent in cases of intentional tort, with a punitive award rate of over 60 percent. Greater harm corresponded to a greater probability of an award: the size of the compensatory award was significantly associated with whether punitive damages were awarded, with a rate of approximately 60 percent for cases with compensatory awards of $1 million or more. Regression models cor- rectly classify about 70 percent or more of the punitive award request outcomes.