How to Calculate Punitive Damages

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 What Are Punitive Damages?

Punitive damages, also known as exemplary damages, are awarded at trial as a way of punishing the wrongdoer, in legal terminology the “defendant” in a lawsuit. They are supposed to deter others from engaging in the same wrongful actions. Punitive damages may be awarded in certain cases when it is proven that the defendant committed an act that can be characterized as especially egregious, wanton, fraudulent, or done intentionally or recklessly.

Punitive damages are a type of damages that are awarded in addition to compensatory damages in some cases. Some states have a cap on the amount of punitive damages that can be awarded, whereas other states limit punitive damages to a “reasonable” amount based on the value of the entire case or other, additional factors.

What are Some Guidelines on How to Calculate Punitive Damages?

Punitive damages are available only in certain types of personal injury claims. Calculation of the amount varies from state to state. Some general rules for calculating punitive damages include:

  • The defendant’s actions usually must amount to something more than mere negligence. That is, the defendant must have acted with a clear disregard for principles of care and safety. An example of this would be an intentional tort, such as assault or battery;
  • Punitive damages are generally awarded in addition to “actual” damages, that is compensatory damages, i.e., damages that are intended to reimburse the victim for their economic losses;
  • In most states, punitive damages must be proportionate to the compensatory damages award. One common limitation is that they cannot exceed four times the amount of compensatory damages.

Some states place more stringent limitations on the amount of punitive damages that can be awarded. For example, in the state of Virginia, an award of punitive damages cannot exceed $350,000. Caps on punitive damages are especially prevalent for lawsuits involving medical malpractice, and state limits on medical malpractice awards range from $250,000 to $750,000 depending on the state.

By contrast, the state of Maryland limits the amount of a punitive damage award only in medical malpractice cases. However, making a case for punitive damages in Maryland is more difficult than it might be in other states. To win an award of punitive damages in a personal injury case in Maryland, the victim must prove that the defendant acted with an evil motive or intent to cause injury or that the defendant’s actions were deliberate.

This rule applies to claims for both negligence and intentional torts, like civil assault and battery claims, as well as negligence claims. In addition, the victim has a heavier burden of proof with respect to punitive damages than other elements of their civil case. The victim has to prove that the defendant acted with a deliberate, evil or wrongful motive by clear and convincing evidence. The standard of proof for other elements of a civil claim is proof by a preponderance of the evidence.

What Are Some Examples of Punitive Damages Awards in a Personal Injury Claim?

As stated above, the basic requirements for punitive damages include: malicious or intentional conduct by the defendant and an existing compensatory damages award. For this reason, punitive damages for negligence are unlikely; something more than simple negligence must be shown to justify punitive damages.

Some examples of personal injury claims that may lead to an award of punitive damages include:

  • Class actions where large numbers of people were injured, such as in a toxic oil spill;
  • Cases where the defendant’s conduct was intentional;
  • Conduct resulting in severe bodily injury to the plaintiff;
  • Malpractice cases where a physician committed an obvious error;
  • Cases where the defendant’s actions were motivated by ill-will or malicious motives, or where their conduct is far outside acceptable social norms.

When Are Punitive Damages Awarded in a Personal Injury Claim?

Punitive damages may be awarded for a variety of acts in a personal injury claim. Examples of conduct that might lead to an award of punitive damages may include:

  • Extreme negligence in a medical malpractice case, such as the defendant doctor performing the wrong surgery on a patient or leaving a surgical implement in the patient’s body;
  • Conduct that is extremely dangerous and exposes the public to a high degree of harm, such as brandishing a weapon in a crowded place;
  • Conduct that displays an extreme disregard for laws and statutes, such as driving at a speed well above the limit on crowded streets. In Virginia, punitive damages can be issued if a defendant caused an accident that resulted in injury or death and the following can be shown:
    • The defendant had a blood alcohol concentration of 0.15 percent or more, and
    • It can be proven that in the course of drinking alcohol, the defendant knew or should have known that their ability to operate a motor vehicle would be impaired.

There can be other conditions on the awarding of punitive damages in other states. In the state of West Virginia, for example, an award of punitive damages may be made in a civil action against a defendant only if the victim proves conduct by the defendant with clear and convincing evidence. In a civil lawsuit, the usual standard of proof is by a preponderance of the evidence. It is more difficult to prove a fact by clear and convincing evidence.

In addition to a higher standard of proof, the conduct must be proven to have been done with actual malice toward the victim or with a conscious and reckless indifference to the health and safety of other people.

In West Virginia, the amount of punitive damages cannot exceed four times the amount of compensatory damages or $500,000, whichever is greater. In addition, the trial of a case in which the victim seeks punitive damages must proceed in a special manner. The first stage is a standard civil trial in which the jury determines liability for compensatory damages. If the jury determines that the defendant is liable for compensatory damages, then the judge has to decide whether there is enough evidence to go forward with a consideration of punitive damages.

If the judge decides there is enough evidence, the jury then can consider whether to award punitive damages. The jury may award punitive damages in an amount that is four times the value of compensatory damages in the case or $500,000, whichever is more. If the jury awards more than either of these amounts, the just is allowed to reduce the award to the amounts allowed under West Virginia law.

What’s a Treble Damages Award?

In certain civil lawsuits, when authorized by a federal or state statute, a judge will allow a victim to collect three times the amount of compensatory damages as punitive damages, or treble damages. In order for the plaintiff to collect these treble damages, state law must support both the awarding of punitive damages and tripling of compensatory damages as the measure of punitive damages.

Again, there must be a statute on the books or case law that authorizes treble damages. An example is the federal False Claims Act, which allows the U.S. government to recover treble damages from defense contractors who knowingly submit false claims to defraud the government. Other federal statutes authorize awards of treble damages in cases involving patent infringement, willful trademark counterfeiting and antitrust violations.

What Should I Do if I Need to File a Punitive Damages Claim?

A person who is seeking double or treble damages first wants to ensure that their case is the type that warrants an award of punitive or treble damages. If they are satisfied that the law in their state, or federal law, supports this type of damages award in their case, they must then allege the right causes of action and claim an award of punitive damages in the complaint they file with the court.

This could mean writing the complaint so that it alleges the kind of conduct on the part of the defendant that justifies an award of punitive damages. In Maryland, for example, the defendant’s conduct must be something that can be characterized as outrageous, wanton, or, even better, intentional, deliberate, or done with malice. This could mean alleging an intentional tort, such as assault, battery or intentional infliction of emotional distress, as opposed to simple negligence.

A person filing a lawsuit in which punitive or treble damages is supported by law, will be considered to have waived their right to them, if they did not specifically request it in their complaint. They might be able to overcome the failure to request punitive or treble damages in their complaint by filing a motion early on in the trial, but it is best to request it in the beginning. The worst that can happen is that a judge rules that punitive or treble damages are not legally supported in the case. So, it is important to think about the possibility of claiming punitive damages right from the inception of the case.

A person would also want to research the law regarding punitive damages in their state in order to learn whether some kind of special procedure, possibly including a heavier burden of proof, is required as it is in the state of West Virginia. If it is, the person wants to be prepared for it.

How Can a Lawyer Help With Punitive Damages Awards?

There are nuances and technicalities in the law of punitive damages and they vary from one state to another. An experienced personal injury lawyer can help you understand whether you have a claim that warrants punitive damages. Working with an attorney can help ensure that you pursue all of the remedies available in your situation, including punitive or treble damages.

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