How often are punitive damages actually awarded? A September 2011 White Paper purports to shed some light on this controversial issue. The White Paper was created and published by a national consumer organization, the Center for Justice and Democracy, which describes its mission as protecting the civil justice system and advocating against the tort reform movement. Citing a national sampling of state court data compiled by the U.S. Department of Justice up to 2005, the White Paper concludes that despite beliefs and fears to the contrary by defendants, punitive damages are rarely sought, rarely awarded, and that the typical punitive damage award is modest. There are, however, some important open questions about the generalizability and strength of the conclusions that can be drawn from the underlying data set that the White Paper does not acknowledge, and important countervailing findings from the underlying DOJ report itself that the White Paper does not discuss.

The White Paper reports that in 2005, punitive damages were only sought in 12% of all concluded state court civil trials. By litigation area, this broke down to 10% of tort trials (including 8% of medical malpractice cases and 12% of product liability cases), and 16% of contract cases. Examination of the underlying DOJ report data, however, reveals that these numbers were as high as 32% for both employment cases and for fraud cases. Furthermore, the White Paper argues, punitive damages were only awarded in 5% of all concluded 2005 state court civil trials in which plaintiffs prevailed. Broken down by litigation area, punitive damages were awarded in 8% of those contract cases, 3% of tort cases, and only 1% of product liability cases and medical malpractice cases. However, examination of the underlying DOJ report data reveals that these numbers were as high as 30% for intentional tort, 23% for fraud, and 22% for employment matters. Moreover, what the White Paper does not report is that in state court trials in 2005 in which plaintiff winners actually sought punitive damages, they received punitive damages 30% of the time (in 23% of such tort cases, and 35% of such contract cases). Similarly, individual plaintiff winners who had requested punitive damages in cases against business defendants were awarded punitive damages 33% of the time. The statistics regarding the incidence of punitive damage awards differ markedly then depending on whether the underlying data take account of whether or not the plaintiff winner had actually requested them.

The White Paper also reports that most punitive damage awards were modest. For example, the reported median punitive damage award to victorious plaintiffs in state court civil trials in 2005 was $64,000, and the ratio of punitive damages to compensatory damages was typically 3 to 1 or less. That said, punitive damage awards exceeded $1 million in 13% of those cases.

The White Paper argues that judges and juries use similar reasoning when making punitive damage award decisions in tort cases, on the basis of the underlying DOJ report’s finding that there was no detectable statistical difference between awards from the bench versus jury in tort cases. Examination of the underlying data revealed, however, that these data only compared the frequency of bench versus jury punitive damage awards, not the amounts; and also that juries were significantly more likely to award punitive damages in contract cases than judges were (again, for civil cases concluded in state courts in 2005). For example, according to the DOJ report, juries awarded punitive damages to plaintiff winners in an estimated 20% of contract cases, versus a statistically lower estimated corresponding 2% for bench trials. Thus, the true picture is considerably more complicated than the White Paper presents, and the DOJ data set itself does not provide sufficient evidence for the White Paper authors’ conclusions that judges and juries “use similar reasoning” when making punitive damage awards (even in just tort cases).

The White Paper notes that 38 states have passed tort reform laws that restrict or ban punitive damage awards. But in arguing that punitive damage awards are infrequently sought and awarded (and therefore that tort reformers’ fears are unfounded or at least exaggerated), the White Paper does not attempt to disentangle (and the underlying study did not address) how much of the reported rarity in punitive damage awards is due to barriers imposed by state tort reform laws (in 2005), versus intrinsic reasoned restraint by fact-finders in doling out punitive damage awards. That is, it is unclear the extent to which the reported low frequency and typical amount of punitive damage awards when the data are aggregated across states is an artifact of laws in certain of those states restricting fact-finders’ ability to award punitive damages where, absent restrictions, they otherwise might have. It is also important to bear in mind that the data stem from concluded state court cases, and it would be interesting to factor in the potential influence that seeking punitive damages has on encouraging settlement. The DOJ report itself notes that the findings were based on 3% of civil cases concluded by state court trials in 2005, which is a small fraction of the universe of potential civil dispositions.

To further enable interpretation of these data and their implications in a broader context, it would also be interesting to access more recent data (i.e., post-2005) to see whether the trend has changed over the past six years. The White Paper reports that a comparison of these data for the 75 most populous U.S. counties, with data dating back to 1996, shows that the incidence of punitive damage awards had been consistently low, and has decreased in frequency from 2001 to 2005. It would also be instructive to compare parallel data from the federal court system.

For now, these are interesting data points worthy of deeper and broader investigation before drawing strong conclusions about jurors’ propensity to award punitive damages.

Dr. David Perrott leads DecisionQuest's research team in New York. Originally from Australia, he holds a Ph.D. in Social Psychology from Northwestern University and a law degree from the University of New South Wales in Sydney, Australia. Dr. Perrott has consulted on a number of high-stakes litigation matters in federal and state venues throughout the United States, working on cases involving antitrust, product liability, contract matters, labor and employment issues, intellectual property, and professional malpractice. He can be reached at This e-mail address is being protected from spambots. You need JavaScript enabled to view it , or in New York by telephone at 212.577.9450.