United States: How To Defend Effectively A Punitive Damages Claim ~ Part 2

A. Pre-trial Motions:

Motions in limine may perhaps be a defense counsel’s very best tool in confining the scope of inquiry at the time of trial to narrow matters of relevance. One important motion that should be made is one to limit all references or evidence of punitive damages at trial until such time as the plaintiff makes a prima facie showing of entitlement to such relief. This motion in limine should especially include a request that the plaintiff be restricted in her opening statement from making any reference to or providing a full factual discussion of the issue of punitive damages. Another issue which should be dealt with in a motion in limine is a request that any evidence of other misconduct on the part of the defendant, including evidence of other lawsuits, be barred. In addition, if the judge usually issue a pre-trial instruction to the jury regarding punitive damages, defense counsel should consider filing a motion in limine if there is any reasonable basis to ask the judge to delay reference to the punitive damages claim because of its weakness and the likelihood that it might be subject to a motion for a directed verdict.⁶⁹

One of the issues that repeatedly presents itself in cases involving claims for punitive damages is the plaintiff’s attempt to introduce pattern and practice evidence. Pursuant to this theory, the plaintiff will attempt to introduce evidence of other claims against the defendant that, although not necessarily similar to the claim which gives rise to the instant claim for punitive damages, nevertheless bolsters the plaintiff’s case that the defendant is a horrendous entity worthy of punishment.⁷⁰

Sometimes, in response to specific discovery requests, plaintiffs will not disclose the identity and nature of other claims they intend to present evidence of at trial. In these particular cases, defense counsel should present a motion in limine to exclude evidence of other claims as a sanction for discovery abuse.⁷¹ Defense counsel should also file motions in limine designed to force the court to establish what the evidence of other activities can and cannot be used to prove at the time of trial. Once defense counsel has convinced the court to make a record articulating as specifically as possible the relevance of the evidence of the defendant’s conduct in unrelated matters, defense counsel can, through other motions in limine or trial objections, prevent the plaintiff from using pattern and practice evidence for purposes other than that which the court has approved as relevant.⁷²

By filing carefully reasoned and judicially supported motions in limine, defense counsel can either narrow the issues at trial or at the very least, clarify them, so that defense counsel can gain a more thorough understanding of the plaintiff’s trial strategy. The pretrial motions presented by the defense should be designed to make the plaintiff, in resisting them, reveal as much as possible about the theory of his or her claim and the tactics of his or her attack. An effective pre-trial motion strategy may also acquaint the defense team with nuances of the plaintiff’s case which may ultimately prove helpful during the trial.⁷³

Another motion that defense counsel should seriously consider is a motion to bifurcate or trifurcate the trial. If the court orders the trial bifurcated, the jury first hears evidence pertaining to liability and the amount of actual damages. If the jury finds that liability exists for punitive damages, the same jury then hears evidence relevant only to the amount of punitive damages and makes its findings based upon the evidence presented during both phases of the bifurcated trial.⁷⁴ If the court orders the trial trifurcated, the jury first decides the issue of liability, then the issue of compensatory damages, then the issue of punitive damages.

Most courts, but not all, have the power to order a bifurcated trial.⁷⁵ In fact, at least 13 states now require bifurcation of trials in which punitive damages are sought.⁷⁶ Some of these 13 states require bifurcation of the entire punitive damages claim, including liability and amount. In the majority, however, only the amount of punitive damages is bifurcated from the remaining issues.⁷⁷

The ability to bifurcate the trial is important because it can stop the admission of harmful evidence which may not be admissible on any issue other than punitive damages. It also promotes efficiency in that if the jury finds for the defendant on the liability question, the punitive aspects of the case need never be tried. The gist of these motions is that the plaintiff’s proof of his compensatory damages action does not involve evidence of defendant’s aggravated conduct or, just as importantly, wealth. When presenting a motion to bifurcate, defense counsel should argue to the court that trying the punitive damages claim with the compensatory damages claim would introduce evidence which would unfairly prejudice the defendant in the jury’s consideration of the basic liability and compensatory damages issues.

B. Trial Briefs:

If a claim for punitive damages is actually going to be tried, a trial brief should be submitted to the court discussing solely the punitive damages aspect of the case. A punitive damages award is a severe penalty to be imposed upon a defendant and should be treated as such by the trial judge and all opposing counsel from the very beginning of the proceeding. Therefore, the trial brief ought to outline arguments supporting the delay of all statements from the plaintiff’s attorney about punitive damages until the necessary evidence has been produced to justify placing the claim before the jury. The trial brief should also state the requirements to be fulfilled by the plaintiff before submitting arguments and before the court instructs the jury on the issue of punitive damages.

C. Selecting A Jury:

In a case involving punitive damages, it is vitally important that the defense attorney conveys to the jury, from the very first time the venire enters the courtroom until the time that the jurors are released from jury service, that defense counsel is committed to the defendant’s cause. Nothing can harm a defendant more than a prospective juror’s initial impression that defense counsel either doesn’t care about the defendant or, worse, believes the defendant deserves to get hit with a punitive damages award.

Before defense counsel begins to conduct the voir dire, he or she should observe the prospective jurors. Special attention should be paid to the age, sex, ethnic background, dress and demeanor of each individual. An effort should be made to determine what the prospective jurors are reading and what they are doing with their time while they are waiting. Personal characteristics and interests which make the prospective jurors appealing to defense counsel make them good candidates for the jury -- or at least the kinds of individuals on whom defense counsel should focus once voir dire begins.⁷⁸

During voir dire, defense counsel should describe his or her client to the prospective jurors in such a manner that they will not see the defendant as a callous institution. Defense counsel should emphasize that the defendant acted as a responsible corporation or individual would have acted in similar circumstances. Special attention should be paid to desensitizing some of the punitive damages issues which the plaintiff will undoubtedly raise during trial, including the extent of the injuries, disabilities, and the claimed amount of loss.⁷⁹

Defense counsel should present the defendant’s theory of the case beginning with voir dire. The defense theory, to the extent that the court will permit, should include references to both the facts and the law which support the defendant’s version of events. The theory of the case can often be presented during voir dire by describing hypothetical situations, similar to the facts of the case, and then asking the jurors if they, in those situations, would be troubled or would find it difficult to return a verdict for someone in the defendant’s position.⁸⁰

One of the key issues which should be addressed during voir dire is the burden of proof. Regardless of the jurisdiction, a juror must be able to follow the court’s instruction on the burden of proof. This is especially important when the case is proceeding in a jurisdiction where proof of punitive damages requires that the plaintiff prove its case by more than a preponderance of the evidence. In such a situation, defense counsel must describe the purpose of punitive damages and determine whether prospective jurors can distinguish between compensatory and punitive damages and determine if prospective jurors have any preconceived opinions that the plaintiff is entitled to be compensated.⁸¹

One other consideration should be kept in mind, especially in a products liability action. Defense counsel in such actions should make a list of all of the products made by the defendant that might have been used by the jurors. The names of each of the products should be read to the jury during voir dire. Prospective jurors should then be questioned by counsel during voir dire about their use of these products. Jurors who provide favorable comments or impressions about the defendant’s products should be targeted for inclusion on the jury.⁸²

Over the years, numerous studies have been performed regarding the types of individuals who are inclined and disinclined to grant punitive damages. Although defense counsel should never ignore his or her instincts regarding a particular juror, there are some types of individuals that defense counsel should strive to keep off the jury in a punitive damages case. There are those who suggest that individuals who are depressed and underemployed are more likely to award punitive damages.⁸³ In addition, some studies suggest that individuals who have suffered significant personal losses, such as the death of love ones, job disappointments, divorces or similar traumas are particularly more prone to award punitive damages.⁸⁴ In addition, individuals who lack a set of values or who are strongly liberal in their social and political beliefs are likely to be punitive damages jurors.⁸⁵ Interestingly enough, some suggest that women are slightly more likely than men to award punitive damages.⁸⁶ In order to impanel a defense jury in a punitive damages case, defense counsel should look for people who have had problems in their lives and have overcome them on their own. Ideal jurors may even express some hesitancy about levying punitive damages on a defendant who either acted reasonably under the circumstances or who merely made a mistake. Moreover, some commentators have suggested that conservative, well-educated, intelligent, or financially well-off individuals are less likely to part with the defendant’s money, and should seriously be considered for inclusion on a punitive damages jury.⁸⁷

D. Opening Statement:

The opening statement is, without a doubt, the most important part of any trial. The jurors are receptive to new information and they are eager to learn about the defendant’s legal position. The jurors want to know if the plaintiff’s allegations are true and if the defendant is really as bad as the plaintiff’s attorney has led them to believe it is. The jurors want defense counsel to tell them in the opening statement where the plaintiff is wrong and defense counsel should not disappoint. The jurors must be provided with short, concise, and believable explanations that support the defendant’s position that punitive damages are totally inappropriate in the case.⁸⁸

E. Presenting Evidence:

1. Present The Theory Of The Defense:

During the trial, the defense attorney should make a special effort to elicit witness testimony designed to bolster the defendant’s theory of the case. This is defense counsel’s opportunity to put the theory which was originally formulated back when the complaint was first filed into play. Several theories have proven successful in resisting punitive damages claims, particularly in products liability actions, and defense counsel would be well advised to adopt or utilize one or more of these theories:

1. There is not really a danger or a defect in the product itself.
2. The injury was caused by the plaintiff’s assumption of the risk or misuse of the product.
3. Even after the course of conduct was set in motion, the plaintiff’s personal action could have prevented the occurrence.
4. The manufacturer did not know -- and could not have known -- of the hazard or defect at the time of manufacture.
5. The defendant knew of some danger associated with the use of its product and, through investigation, research, and testing, determined certain safety precautions which were adequately explained to the plaintiff or the user on the label.
6. The defendant complied with all state and federal regulations in the manufacture and distribution of the product.
7. The activities of the manufacturer were reasonable and all that one would expect based upon the knowledge available.
8. To the extent that there have been other injuries associated with the use of similar products, the manufacturer’s product was somehow different, or the way in which the product was used was different.⁸⁹

2. Personalize The Corporate Defendant:

During the trial, defense counsel must bear in mind that the plaintiff will be seeking to have the jury not only compensate him, but also punish the defendant. Therefore, a primary goal of defense counsel should be to personalize the corporate defendant. The jury must understand that "the corporation" is a composition of individual employees. An award of punitive damages against a corporation affects these individuals. The corporation, as a legal entity, is incapable of suffering, but an award of punitive damages hurts little people who depend upon the corporation for their livelihood. Defense counsel must convey to the jurors that injury to the defendant affects employees, stockholders, suppliers, charities and often whole communities, who may rely upon the company’s continued health. Any information which helps the jury understand that the defendant corporation is not inately selfish or motivated by greed should be used to the defendant’s advantage.⁹⁰

One way to personalize the corporate defendant, and favorably affect the jury’s evaluation of the corporation’s integrity, is to present knowledgeable and appealing corporate representatives throughout the course of the trial. This "humanizing" of the defendant should start during the voir dire, when defense counsel has seated to next to him at counsel table the defendant’s most appealing representative who appears to be the very personification of good faith, sincerity, professionalism, honesty and credibility.⁹¹

The corporate representatives must have sufficient stature within the corporation so as to signal the defendant’s concern with the case. These defense witnesses should be carefully selected based not only on what they know, but on how they will reflect the defendant’s interest and integrity. Without question, the jury’s perception of the defendant’s personality will be derived from the composite personality of the company people who are placed before the court.

In a products liability action, the manufacturer’s top-level manager must be called to testify to show concern for the plaintiff and for the product. The manager must have some familiarity with the product, be able to describe it, and discuss the concerns that management has for overall safety, its image, and the consumer. The person chosen to represent the manufacturer in this capacity has to be an amenable, quick-witted individual who can project an image of trust of the jury and the court. In addition, he or she must have time to become fully prepared about all aspects of the litigation.⁹²

If the litigation involves the adequacy of a warning label, the designer of the label, or the official with the responsibility for insuring that the label was properly drawn, must testify. The designer of the label can provide testimony regarding why the label was drawn and the way it was, how the language was chosen, and what safety factors were considered. Nothing is worse than to have a challenge against the label, without any real person stepping up for the defendant to take responsibility for the label. To fail to put such a person on the witness stand is to invite disaster.⁹³

4. Emphasize The Reasonableness Of The Defendant’s Conduct:

Defense counsel must affirmatively demonstrate the reasonableness of the defendant’s conduct in light of the circumstances as they existed at the relevant time. Especially in products liability cases, it is important to show whether there were prior complaints or accidents, and if so, whether and when the defendant learned of them. If the defense counsel can show that the defendant has a clean record -- no citations issued, no fines levied, no lawsuits filed, and no licenses suspended or revoked, defense counsel can argue that the defendant satisfied society’s recognized standards of conduct and, therefore, should not be punished with an award of punitive damages.⁹⁴

5. Portray The Defendant As Honest And Forthright:

It cannot be emphasized too much that at the trial of a punitive damages claim it is of paramount importance to persuade the jury that the defendant is making a full and frank disclosure. The slightest hint of deception or of a cover-up can be fatal. Defense counsel should exude the attitude that the more the jury knows, the better the outcome will be for the client. Defense witnesses should be adequately prepared before trial to ensure that they will not appear evasive or defensive when they testify. If the defense witnesses and counsel appear less than forthright at trial, the jury will naturally assume that the defendant’s course of conduct was undertaken with the same level of integrity.

6. Point Out The Culpable Conduct Of The Plaintiff And Others:

To the extent possible, the defense should shift the jury’s attention from the defendant’s conduct to the conduct of the plaintiff or others. All of the plaintiff’s behavior, including his personal habits, domestic disputes, exaggerations, malingering, and other types of behavior, must be thoroughly described to the jury. If the plaintiff’s actions, as viewed against the jurors’ reasonable expectations, suggest that the injury was really the plaintiff’s own fault, the defense must be ready to assert forcefully the theories of contributory negligence or assumption of the risk.⁹⁵ Although comparative negligence, misuse and assumption of the risk may not bar an award of punitive damages as a matter of law, most juries will still sense something fundamentally unfair in punishing a defendant for an injury that would not have occurred but for the plaintiff’s own negligence or misuse of the product.

The defense should not lose sight of one of the primary advantages for focusing on the plaintiff’s behavior or the behavior of another party (including a co-defendant). Evidence of the plaintiff’s fault, or another party’s fault, may serve as an effective counter-balance to an allegation of outrageous behavior on behalf of the defendant. If defense counsel can plant in the jury’s mind the notion that the defendant is not the only party at fault, the threat of a punitive damages award will be greatly reduced.⁹⁶

Defense counsel should also remember that although some experts suggest that the jury must be continually reminded of the plaintiff’s fault and greed and the high burden for establishing an entitlement to punitive damages, such a frontal attack on the plaintiff may backfire. A caveat worth remembering is the importance of being subtle. Juries are rarely amenable to defendants who try to excuse their behavior solely by attacking others.

7. Show Compliance With Applicable State/Federal Standards:

Even in those states that do not have a presumption under which a defendant who complied with applicable state or federal standards has a complete defense to a punitive damages claim, the defendant’s compliance with applicable standards should still be emphasized. Defense counsel should ensure that the jury understands the defendant’s concern for the safety of the product, service or other instrumentality which allegedly caused the damages. The jury should also be reminded of the manufacturer’s attempt to build safety into their products by observing specific design criteria. Even if the jury finds that the criteria were inadequate, the defendant’s demonstrated concern for the quality of its product or service may preclude an award of punitive damages. Again, the most important thing to remember is that defense counsel is attempting to avoid presenting the jury with the perception of indifference.

8. Introduce Evidence Of Subsequent Remedial Measures:

Careful consideration should be given as to whether the defendant will favor or oppose the introduction of post-accident remedial changes. Post-accident changes may serve as indications of corporate concern for safety. Such evidence can also support the defendant’s argument that no punitive damages award is required, since the problem has voluntarily been remedied by the defendant. If, however, such a strategy is chosen, defense counsel should strongly consider moving to bifurcate the punitive damages claim in order to avoid the possibility of an admission of liability as to the compensatory damages claim.

9. Justify The Defendant’s Actions -- Do Not Apologize:

In explaining the defendant’s conduct, a clear distinction must be made between apology and justification. Apologies during trial offer too little too late. To avoid a punitive damages award, what must be presented at trial is a clear explanation of the decisions and conduct of the defendant which demonstrates that the defendant’s conduct, although perhaps faulty, is not deserving of punishment. If the jury does not receive a clear and logical explanation for the events which led to the manufacturer of an allegedly defective product or the provision of an allegedly substandard service, it will assume the worse. Knowing that a corporate defendant is naturally driven by the profit motive, a jury given no other explanation will infer that the defendant placed selfish business concerns over concerns for the safety of its product or service.

10. Educate The Jury Regarding The Purpose And Effect Of Punitive Damages:

During the defendant’s case, the jury must be reminded of the practical effects of a substantial award of punitive damages. A plaintiff seeking to punish a corporate defendant will undoubtedly highlight the corporation’s total assets and net worth. Of course, the profits and operating margins of most corporations reflect much smaller values. If punitive damages are to serve a curative function, the cure should not kill the patient. Moreover, the amount of the punishment should bear some rational relationship to the harm caused by the defendant. If punitive damages have been awarded against the defendant in other suits on account of the same defective product or service, defense counsel should carefully consider whether to bring that fact to the jury’s attention in mitigation of the imposition of an additional punitive damages award.

F. Moving For A Directed Verdict:

After the close of the plaintiff’s case-in-chief, defense counsel should move for a directed verdict on the punitive damages claim. This is defense counsel’s last chance to keep the issue of punitive damages away from the jury. Depending upon the jurisdiction’s standard of proof, defense counsel may have an increasingly good chance of winning such a motion. In those jurisdictions, for example, where the plaintiff must show by "clear and convincing evidence" that the defendant acted with malice or engaged in wanton, gross or outrageous conduct, trial judges are often receptive to a motion for a directed verdict where the plaintiff has failed to bring out truly damaging evidence that would meet the state’s heightened burden of proof.

G. Preserving The Record For Appeal:

In the event that defense counsel’s motion for a directed verdict is denied, and the jury is charged with addressing the issue of punitive damages, defense counsel must make a concerted effort, before the return of the verdict, to preserve all error in connection with the punitive damages issues. Defense counsel must make sure that: (1) all appropriate objections have been stated with sufficient particularity for the record; (2) that all necessary offers of proof have been made; and (3) that any exhibits have been properly offered into evidence.

H. Utilizing Jury Instructions And Closing Argument:

Jury instructions and closing argument offer defense counsel a final opportunity to educate the jury on the very limited legal basis for the imposition of punitive damages. Counsel should emphasize that the terms used in the instructions to describe the conduct warranting punitive damages are precise legal concepts. Those terms (e.g., "reckless," "malice," etc.) should be defined for the jury and should be contrasted with mere negligence. The jury must understand that punitive damages are an extraordinary remedy only awarded for truly outrageous conduct.

Defense counsel should use closing argument as his or her last opportunity to present the defendant’s theory of the case to the jury. Defense counsel should appear, during the course of closing argument, fair and reasonable and should make every effort to not overreach during the course of closing argument. In the event that a punitive damages award is probable, an outward denial of fault will most likely prove to be counter-productive. In that type of case, in order to avoid an excessively large punitive damages verdict, counsel should consider providing the jury with specific guidance as to the amount of punitive damages that should be awarded if they are inclined to do so. Such guidance may well serve as a way to reign in a potential runaway punitive damages verdict.

If punitive damages are in fact awarded, defense counsel should undertake further efforts following the return of the verdict. One study cited by the United States Supreme Court in the case of Honda Motor Co., Ltd. v. Oberg found that "over half of punitive damages awards were appealed, and that more than half of those appealed resulted in reductions or reversals of the punitive damages."⁹⁷

A. Judgment Notwithstanding The Verdict:

If the jury returns a punitive damages award, counsel should request that the trial court enter judgment notwithstanding the verdict on the punitive damages claim based on the insufficiency of the evidence presented at trial. Such a motion may have significant potential where the standard of proof exceeds the preponderance of the evidence standard. Moreover, the trial court may be more sympathetic to the defense arguments against an award of punitive damages once it knows that the plaintiff will be fairly compensated for her actual damages.

B. Remittitur:

Even where the trial court believes that an award of punitive damages is warranted in some amount, defense counsel may successfully argue for remittitur based on the unreasonable amount of the punitive damages awarded. Recently, remittitur has frequently been granted to reduce punitive damages awards to reasonable levels. Counsel should take care to preserve arguments regarding remittitur for purposes of appeal, as errors with respect to punitive damages are often the focus of review in the appellate courts.

Defending a punitive damages claim requires particular care and preparation since most of the evidence used to prove the claim is initially under the control of the defendant and the risk of incurring a substantial verdict is ever present. Before responding to discovery, defense counsel should aggressively seek out the facts and formulate a precise defense strategy. Throughout the proceedings, defense counsel should pursue the issue offensively, continuously challenging the basis of the punitive damages claim and seeking to limit its scope.

At trial, the jury’s attention should be directed to the plaintiff’s conduct. The defendant corporation’s own conduct should be explained accurately within its historical context, without apology. What the jury seeks is a logical explanation for what occurred in the case. Jurors will forgive mistakes in judgment by a defendant, but they will not forgive -- or forget -- evasiveness, dishonesty or disinterest by defense witnesses or counsel. Defense counsel must clearly explain the purpose and legal limits of the punitive damages remedy, and demonstrate why punitive damages should not be awarded. To ignore the punitive damages issue, or to fail to draw out the particulars of the defendant’s conduct and the applicable law, is to court disaster.

1 Michelle M. Jockner, Punitive Damages: The U.S. Supreme Court’s Meandering Path, 83 Ill. B.J. 576-75 (November, 1995) citing Fast Food Patron Has Her Way, Chicago Tribune, August 19, 1994 at B1; James Gross, Jury Awards $7.1 Million in Sex Case, N.Y. Times, September 2, 1994 at A8 col. 1; Peter Applebome, G. M. Is Held Liable Over Fuel Tanks In Pickup Trucks, N.Y. Times, Feb. 3, 1994 at A1; Proctor v. Davis, 1994 Ill. App. Lexis 995 (1^st Dist. 1994) (1-92-3513 cons., 1^st Dist. 1994) (unreleased opinion); and Keith Schneider, Exxon is Ordered To Pay $5 Billion For Alaska Spill, N.Y. Times, Sept. 17, 1994 at Sec. 1, p.1.

2 Michelle M. Jockner, Punitive Damages: The U.S. Supreme Court’s Meandering Path, 83 Ill. B.J. 576-75 (November, 1995) citing McDonald’s Java Suit Is Settled, Chi. Sun-Times Dec. 2, 1994 at p. 26; Judge Reduces Sex Harassment Award, Wash. Times, Nov. 29, 1994 at I2; Proctor v. Davis, 1995 Ill. App. Lexis 604, 640 (1^st Dist. 1995) (unreleased opinion); David Bailey and Brian Cummings, Once-Record Punitive Damages Award Is Zeroed Out: ‘No Duty to Warn’, Chi. Daily L. Bull., Sept. 26, 1995 at p.1; GMC v. Moseley, 213 G.A. App. 875, 447 S.E.2d 302 (1994); Carol McHugh Sanders, Record-Breaking Case Sent In High Court, Chi. Daily L. Bull., Oct. 27, 1995 at p.1, col. 5; Andrew Blum, Exxon Vows To Appeal Valdez Punies: ‘Substantial Evidence’ Backs $5 Billion Award, The Nat’l. L.J., Feb. 13, 1995 at p. B1, col. 1.

3 Restatement (Second) of Torts, Section 908. Such damages have been characterized as "exemplary", because they make an example of a defendant; "punitive", because they punish the defendant; "vindictive" because they exact revenge upon the defendant; and "smart money", because they make the defendant smart (in the sense of pain, not intelligence). John D. Kitch, Proving and Disproving Punitive Damages, 21 Litigation 13-14 (Winter 1995).

4 Restatement (Second) of Torts, Section 908.

5 Kitch, supra, p. 13 (Winter 1995).

6 Exodus 22:9.

7 Gary T. Walker and Kenneth E. Keller, Punitive Damage Claims in Products Liability Actions, For the Defense, p. 25 (Oct. 1988).

8 Huckle v. Money, 95 Eng. Rep. 768 (K.B. 1763).

9 Walker and Keller, supra, p. 26.

10 Huckle v. Money, 95 Eng. Rep. 768 (K.B. 763).

11 Coryell v. Colbaugh, 1 N.J.L. 77 (1791).

12 Day v. Woodworth, 54 U.S. 363 (1851).

13 Walker and Keller, supra, p. 26; see also Smith v. Wade, 461 U.S. 30, 35 (1983).

14 Walker and Keller, supra, p. 25.

15 Mallor and Roberts, Punitive Damages: Toward A Principled Approach, 31 Hastings L.J. 639 (1980).

16 John M. Thomas, Compliance With Government Standards And The New Product Liability Restatement, 1, 7-8; Corporate Legal Times Conference: "How To Minimize and Manage Products Liability Cases," Oct. 12-13, 1995 citing In re Air Crash Disaster Near Chicago, 644 F.2d 594 (7^th Cir. 1981), cert. denied, 454 U.S. 878 (1981); Sheperd v. Boston Old County Insurance Co., 811 F. Supp. 225 (S.D. Miss. 1992); People’s Bank & Trust Co. v. Piper Aircraft Corp., 598 F. Supp. 377 (S.D. Fla. 1984).

17 Meyer v. Crane Communications, Inc., 1992 WL 77655 (N.D. Ill. April 6, 1992).

18 Kitch, supra, p. 14.

19 Id.

20 Id.

21 See, e.g., In re Paris Air Crash, 622 F.2d 1315 (9^th Cir. 1980) (wrongful death); Eisert v. Grumberg Roofing & Sheet Metal Co., 314 M.W.2d 226 (Minn. 1982) (wrongful death and property damage); Cal. Civ. Code Sec. 818.

22 Kitch, supra, p. 15

23See, Chrysler Corporation v. Wolmer, 499 So.2d 823, 824 (S. La. 1986).

24 Schwartz v. Sears, Roebuck & Co., 669 F.2d 1091 (5^th 1982) (applying Texas law).

25 See, Grimshaw v. Ford Motor Co., 119 Cal. App. 3d 757, 174 Cal. Rptr. 348 (1981); Dorsey v. Honda Motor Co., 655 F.2d 650 (5^th Cir. 1981); Rinker v. Ford Motor Co., 567 S.W.2d 655 (Mo. App. 1978); Wangen v. Ford Motor Co., 97 Wis.2d 260, 294 N.W.2d 437 (1980).

26 See, Moore v. Remington Arms Co., 100 Ill. App. 3d 1102, 427 N.E.2d 608 (1981); Leichtamer v. American Motors Corp., 67 Ohio St. 2d 456, 424 N.E.2d 568 (1981).

27 See, Loitz v. Remington Arms Co., 138 Ill.2d 404, 563 N.E.2d 397 (1990); Deitemann v. Times, Inc., 449 F.2d 245 (9^th Cir. 1971); Clements v. Withers, 437 S.W.2d 818 (Tex. 1969).

28 Walker and Keller, supra, p. 27. See also, Agarwal v. Johnson, 25 Cal.3d 932, 160 Cal. Rptr. 141 (1979).

29 Kutcha v. Allied Builders Corp., 21 Cal. App. 3d 541, 98 Cal. Rptr. 588 (1971).

30 U.S. Concrete Pipe Co. v. Bould, 437 So.2d 1061 (Fla. 1983).

31 See, Country Roads, Inc. v. Witt, 737 S.W.2d 362 (Tex. App. 1987).

32 See, Rosenzweig & Sons v. Jones, 50 Ariz. 302, 72 P.2d 417 (1937).

33 Orkin Exterminating Co. v. Traina, 486 N.E.2d 1019 (Ind. 1986).

34 See, e.g., Tuttle v. Raymond, 494 A.2d 1353 (Me. 1985); Unfried v. Libert, 20 Idaho 708, 119 P.885 (1911); Linthicum v. Nationwide Life Ins. Co., 150 Ariz. 326, 723 P.2d 675 (1986); Cal. Civ. Code Sec. 3294(a).

35 Colo. Rev. Stats. Sec. 13-25-172(2).

36 See, Minn. Stat. Sec. 549.191; Idaho Code Section 6-1604(2); 735 Illinois Compiled Statutes 5/2-604.1; and Fla. Laws, 1986, Ch. 160, Sec. 768.72.

37 James D. Ghiardi and John J. Kircher, Punitive Damages Law and Practice, Ch. 9, p. 68 (1997); see, e.g., Tenn. Code Ann. Sec. 28-3104, which provides a one year limitations period in which to bring a civil action seeking compensatory or punitive damages for violations of the Federal Civil Rights statutes.

38 Ghiardi and Kircher, supra, p. 68.

39 See, 28 U.S.C. §2671 et seq. and 45 U.S.C. §51 et seq.

40 Stuart M. Gordon and Diane R. Crowley, Defending the Punitive Damages Claim, 49 Ins. Couns. J. 300, 311 (July, 1982); Ind. Code Sec. 34-4-16.5-4; Or. Rev. Stat. Sec. 30.270; Wis. Stat. Sec. 893.80 (4); Lawrence v. Virginia Ins. Reciprocal, 979 F.2d 1053 (CA5 1992).

41 See, Diaz v. McAllen State Bank, 975 F.2d 1145 (CAN 5 1992).

42 83 Ill. B.J. at 288; McDaniel v. McNeal Laboratories, Inc., 196 Neb. 190, 240 N.W.2d 822 (1976).

43 Ghiardi and Kircher, supra, p. 69, citing W. Page Keeton, et al., Prosser & Keeton on Torts, Sec. 65 (5^th Ed. 1984).

44 Ghiardi and Kircher, supra, p. 69

45 Traister v. Gerton, 626 P.2d 737 (Colo. App. 1981); see also, Garrett v. Olsen, 71 Or. App. 93, 691 P.2d 123 (1984).

46 Ghiardi and Kircher, supra, p. 70.

47 Ghiardi and Kircher, supra, p. 70, citing Hamilton County Bank v. Hinkle Creek Friends Church, 478 N.E.2d 689 (Ind. App. 1985).

48 Pacific Mutual Life Ins. Co. v. Haslip, 499 U.S. 1, 111 S.Ct. 1032 (1991).

49 TXO Production Corp. v. Alliance Resources Corp., 113 S.Ct. 2711 (1993).

50 Honda Motor Co. v. Oberg, 114 S.Ct. 2331 (1994).

51 BMW of North America v. Gore, 116 S. Ct. 1589 (1996).

52 Juzwin v. Amtorg Trading Corp., 705 F. Supp. 1053 (D.N. J. 1989), vacated on other grounds, 718 F. Supp. 1233 (D.N.J. 1989).

53 Browning-Ferris Industries v. Kelco Disposal, Inc., 492 U.S. 257 (1989).

54James McKowan, Punitive Damages: State Trends and Developments, 14 Rev. Lit. 419 (1995) citing, Fla. Stat. Ann. Sec. 768.73 (West Supp. 1994); Ga. Code Ann. Sec. 51-12-5.1(e)(2) (Miche Supp. 1994); Utah Code Ann. Sec. 78-18-1(3)(Supp. 1994).

55 It should be noted that the double jeopardy clause does not apply to cases between private parties. United States v. Halper, 490 U.S. 435, 451 (1981).

56 Albert H. Parnell, An Aggressive Defense Against Punitive Damages Claims (Part I), For the Defense, 18, 20 (Oct. 1987).

57 Id.

58 Id.

59 It is advised that defense counsel establish his client’s corporate document retention system early on. The defense lawyer should look for a categorization of documents, retention periods for each category, a document destruction process and enforcement and control procedures. Michael A. Brown, Preventing Litigation in Products Liability Cases: Can It Be Done?, 1,5, Corporate Legal Times Conference: "How To Minimize And Manage Products Liability Cases," Oct. 12-13, 1995.

60 See, e.g., Cal. Civ. Code Sec. 3295 (1987); Rupert v. Sellers, 48 App. Div. 2d 265, 368 (N.Y.2d 904).

61 See, e.g., Smith v. Colorado Interstate Gas Co., 794 F. Supp. 1035, 1044 (D. Colo. 1992); Shane v. Rhines, 672 P.2d 895 (Alaska 1983); Fowler v. Mantooth, 683 S.W.2d 250, 253 (Ky. 1984); Texas Public Utilities Corp. v. Edwards, 358 So.2d 1025 (Ala. 1978).

62 Kitch, supra, p. 16.

63 Id.

64 See, e.g., Motsch v. Pine Roofing Co., 178 Ill. App. 3d 169 533 N.E.2d 1 (1^st Dist. 1989).

65 Kitch, supra, p.16.

66 Parnell, supra, p. 22.

67 Id.

68 Gombos v. Ashe, 158 Cal. App. 2d 517, 322 P.2d 933 (1958).

69 Albert H. Parnell, An Aggressive Defense Against Punitive Damages Claims (Part II), For the Defense, p. 25 (Nov. 1987).

70 Jonathan Gross, Defending "Pattern & Practice" Evidence In Punitive Damages Cases, Defense Counsel Journal, p. 403 (July 1994).

71 Gross, supra, p. 405.

72 Gross, supra, p. 406.

73 Parnell (Part II), supra, p.25

74 Steven G. Goode, Defending Against Punitives, 21 Litigation 29, 31 (Winter 1995).

75 See, e.g., Federal Rule of Civil Procedure 42(b); Ala. Code R. 42(b) (1990); Alaska R. Ct. 42(b); Ariz. Rev. Stat. Ann. R. 42(b) (1987); Ark. Code Ann. R. 42(b) (Michie 1994); Col. Rev. Stat. R. 42(b) (1990); Del. Code Ann. R. 42(b) (1991); D.C. Code Ann. Sec. 11-946 (1989) (explaining that federal procedural rules govern in the District of Columbia); Idaho Ct. R. 42(b) (1995); Ind. Code Ann. Sec. 34 App. R. 42(b) (West. 1987); Iowa Code Ann. R. 186 (West. 1987); Kan. Stat. Ann. Sec. 60-242(b) (1983); Ky. Rev. Stat. Ann. R. 42.02 (Michie/Bobb-Merrill 1994-95); Md. R. Civ. P. 2-503(b); Mich. Ct. R. 2.505(b); Mont. Code Ann. R. 42(b) (1993); N.D. Cent. Code 42(b) (1994-95); Ohio Rev. Code Ann. R. 42(b) (Baldwin 1992); R.I. Gen. Law R. 42(b) (1994); Tenn. Code Ann. R. 42.02 (1994-95); Utah Ct. R. 42(b); Vt. Stat. Ann. R. 42(b) (1988); W. Va. Code R. 42(b) (1994); Wyo. Stat. R. 42(b) (1977).

76 They are California, Georgia, Kansas, Minnesota, Missouri, Montana, Nevada, New Jersey, North Dakota, Ohio, Tennessee, Texas, Utah and Wyoming. Goode, supra, p. 31.

77 Id.

78 Steven A. Cozen and Joann Selleck, Picking A Jury In A Punitive Damages Case, For the Defense 13, 14 (Jan. 1988).

79 Id. at 14-15.

80 Id. at 15.

81 Id.

82 Parnell (Part II), supra, p. 26.

83 Walker and Keller, supra, p. 31; Debra Cassens Moss, Punitive - Damages Jurors: Study Suggests Selecting Depressed People, ABA Journal, p. 18 (Sept. 1, 1988).

84 Id.

85 Id.

86 Moss, supra, p. 18.

87 Cozen and Selleck, supra, pp. 16-17.

88 Parnell (Part II), supra, pp. 27-28.

89 Alan F. Herman, Damages: Practical Tips on the Trial of the Issue of Punitive Damages, DRI Damages Seminar Coursebook, p. B-54 (March 1997).

90 Goode, supra, at 32.

91 Cozen and Selleck, supra, p. 16.

92 Parnell (Part II), supra, p. 30.

93 Id.

94 Goode, supra, p. 32.

95 Parnell, supra, p. 28.

96 Id.

97 Honda Motor Co., Ltd. v. Oberg, 114 S.Ct. 2331, 2341 (1994).