disfigurement. For example, after the drug manufac-
turer Merck was found liable for the death of a Houston
man who had been taking the painkiller Vioxx, it was
required to pay millions of dollars to the man’s widow
to compensate her for pain and suffering. Noneconomic
damages are especially difficult to assess because they
have no obvious metric: There is no cost accounting of
one’s pain and suffering. Juries have sometimes been
criticized for being capricious and unpredictable in
determining damages (as described below), and criti-
cism often focuses on an unexpected award for pain
and suffering.
Punitive damage awards are intended not to com-
pensate for injuries but rather to punish wrongdoers
for malicious and egregious behavior or gross negli-
gence and to deter that party and others from similar
conduct in the future. For example, juries have
assessed large punitive damage awards against tobacco
companies after finding that the companies knew
about the health risks of cigarette smoking long before
they made those risks known to the public. As another
example, juries have awarded billions of dollars in
punitive damages in cases stemming from the 1989
grounding of an Exxon oil tanker in Prince William
Sound, Alaska, which devastated miles of shoreline,
destroyed wildlife habitats, and financially ruined the
local fishing industry. Punitive awards are usually not
made in the absence of compensatory awards, and
appellate court decisions require some reasonable
relationship between the two.Size of Damage Awards
The examples provided above were of large damage
awards in high-profile cases; jurors have often been
criticized for assessing damages of these magnitudes.
In fact, though, multimillion dollar awards are atypi-
cal. According to data compiled by the Bureau of
Justice Statistics from the 75 most populous counties
in the United States in 2001, the median damages
awarded to plaintiffs who prevailed at trial (only
approximately half of all plaintiffs who went to trial)
was a modest $27,000. Awards varied considerably by
type of case. For example, the median awards in auto-
mobile negligence and medical malpractice cases
were $16,000 and $422,000, respectively. Awards in
excess of $1 million were rare, given in only 8% of
cases in which plaintiffs prevailed.
Punitive damage awards were also rare and, when
provided, were modest. According to the Bureau of
Justice data, only 6% of winning plaintiffs wereawarded punitive damages, and these awards were
given only in certain kinds of cases: tort cases involv-
ing slander/libel or intentional wrongdoing and con-
tract cases involving partnership disputes, employment
discrimination, and fraud. Punitive damages are rare in
personal injury cases. The median punitive damages
awarded in jury trials in 2001 was $50,000 ($83,000 in
contract trials and $25,000 in tort trials), and only 12%
of plaintiff winners who received punitive damages
were awarded $1 million or more.
Despite the fact that the median damage award is
modest, some damage awards—particularly punitive
damage awards—are indeed very large and contribute
to the perception that juries are erratic and capricious
in the manner in which they assess damages. Indeed,
this perception has gelled into significant criticism of
jurors’ ability to be fair and impartial in the awarding
of damages, and on several occasions the U.S.
Supreme Court has considered appeals based on the
apparent excessiveness of a punitive damage award.Controversy Surrounding
Decisions About Damages
Criticism regarding damage award decision making
has centered on two concerns: first, that juries are
overly sympathetic to plaintiffs in awarding excessive
sums of money, especially for punitive damages, and
second, that they are biased against wealthy or deep-
pocketed defendants. Valerie Hans and colleagues
have examined both of these assumptions empirically
by interviewing jurors who served in civil cases and
by conducting laboratory-based research studies.
Their data indicate that rather than favoring plaintiffs,
most jurors tend to be skeptical of their motives. For
example, the majority of jurors agreed that there are
far too many frivolous lawsuits and that people are too
quick to sue. When questioned about their own delib-
erations, jurors indicated that they questioned the
legitimacy of plaintiffs’ complaints and scrutinized
their motives. Jurors said they looked unfavorably on
plaintiffs who did not seem as badly injured as they
claimed or who had preexisting medical conditions.
Jurors also scrutinized whether plaintiffs might have
contributed to their own injuries and were unsympa-
thetic to those who did little to mitigate their injuries.
In fact, some jurors described themselves as acting as
a defense against illegitimate grievances and frivolous
lawsuits. So, far from being overly sympathetic to
plaintiffs, jurors apparently tend to be skeptical of
their claims.182 ———Damage AwardsD-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 182