J. Punitive Damages (10/98)
1. Cases filed after July 22, 1987 and on or before October 26, 1995 (1/97)See footnote 1,See footnote 2
You are now to consider whether or not punitive damages should be awarded to the plaintiff because of [insert a description of the specific failure to warn or other products liability claim giving rise to a charge for punitive damages]See footnote 3. However, the plaintiff is not automatically entitled to punitive
damages solely because you have found that the defendant has [insert a description of the specific failure to warn or other products liability claim giving rise to a charge for punitive damages] or because you have awarded damages to compensate the plaintiff for his/her injury. You may award punitive damages only if the plaintiff has proven by a preponderance of the evidenceSee footnote 4 certain matters that I am now going to explain to you.
Initially, I want to advise you that the purposes of punitive damages are different from the purposes of compensatory damages. Compensatory damages are intended to compensate the plaintiff for the actual injury or loss the plaintiff suffered as a result of the defendant's misconduct. In contrast, punitive damages are intended to punish a wrongdoer and to deter that wrongdoer and others from similar wrongful conduct in the future.See footnote 5 They are designed to require the wrongdoer to pay an amount of money that is sufficient to punish the individual(s) [or enterprise] for particular conduct and to deter
that person(s) [or enterprise] from misconduct in the future. Punitive damages are also designed to serve as an example to discourage anyone else from committing similar misconduct.
I will now explain the considerations that govern your decision on whether punitive damages can be awarded to the plaintiff in this case. To support an award of punitive damages, you must find that the defendant was (1) aware of or wrongfully indifferent to an unnecessary risk of injury; and (2) refused to take steps to reduce that danger to an acceptable level.See footnote 6 This means that you must find that the defendant's conduct was malicious or that the defendant acted in wanton and willful disregard of the safety of another who foreseeably might be harmed by the product. Malicious conduct is demonstrated by intentional wrongdoing in the sense of an evil-minded act. Willfulness or wantonness is demonstrated by a deliberate act or failure to act with knowledge of a high degree of probability of harm and reckless indifference to the consequences of such action or omission.See footnote 7
To justify punitive damages, you should consider all relevant evidence, including, but not limited to, the following: (1) consider the likelihood at the relevant time that serious harm would arise from the defendant's conduct; (2) consider whether the defendant was aware of or recklessly disregarded the likelihood that the serious harm at issue would arise from the defendant's conduct; (3) consider what the defendant did upon learning that its initial conduct would likely cause harm; and (4) consider the length of time that the defendant engaged in the conduct and whether the defendant concealed the conduct.See footnote 8
If you decide that the defendant has engaged in the type of wrongdoing that justifies punitive damages, you must then decide the amount of punitive
damages that should be awarded. In determining the amount of punitive damages, you must consider all relevant evidence, including, but not limited to evidence of the four factors that I previously mentioned in connection with your determination as to whether punitive damages should be awarded at all. As you may recall, these factors are (1) the likelihood at the relevant time that serious harm would arise from the defendant's conduct; (2) the defendant's awareness of or reckless disregard of the likelihood that the serious harm at issue would arise from the defendant's conduct; (3) the conduct of the defendant upon learning that its initial conduct would likely cause harm; and (4) the duration of the conduct or any concealment of the conduct by the defendant. In addition to these factors, you should also consider the profitability of the misconduct to the defendant; consider when the misconduct was terminated; and consider the financial condition of the defendant or the defendant's ability to pay the punitive damages award.See footnote 9
In deciding upon an amount of punitive damages, you should make sure that there is a reasonable relationship between the actual injury and the punitive damages.See footnote 10 Punitive damages may, however, be higher than, equal to, or lower than actual damages.See footnote 11 After considering all these factors, you should exercise your judgment and determine whether punitive damages should be awarded in this case and, if so, in what amount.
2. Cases filed on or after October 27, 1995) (1/97)See footnote 12
NOTES
This charge incorporates the statutory changes applicable to products liability cases in Public Law 1995, ch. 142, N.J.S.A. 2A:15-5.9 et seq., the “Punitive Damages Act,” and should only be used for products liability causes of action filed on or after October 27, 1995.See footnote 13 The Punitive Damages Act includes the following procedural requirements:
(a) Punitive damages must be specifically prayed for in the complaint.
(b) Actions involving punitive damages shall, if requested by any defendant, be conducted in a bifurcated trial. However, in light of Herman v. Sunshine Chemical Specialties, 133 N.J. 329, 342 (1993), the trial court should conduct a bifurcated trial on punitive damages even if the defendant has not made such a request. The statute also requires a bifurcated trial with the liability and damages phases of a punitive damages action tried separately at the second stage of the bifurcated trial. Evidence relevant only to punitive damages shall not be admissible in the liability and compensatory damages phase. This differs from the manner in which punitive damages actions arising before the effective date of the Punitive Damages Act are tried. (See Model Jury Charge 6.20, NOTES).
(c) Punitive damages may be awarded only if compensatory damages have been awarded. Nominal damages can not support an award of punitive damages.
(d) When there are two or more defendants, an award of punitive damages must be specific as to each defendant and each defendant is liable only for the award made against him or her.
(e) There is a cap on punitive damages -- five times the amount of compensatory damages or $350,000, whichever is greater. The jury shall not be informed that there is a cap on punitive damages.
(f) Before entering judgment for punitive damages, the trial judge must ascertain whether the award is reasonable and justified in light of the purposes of punitive damages. The judge may reduce or eliminate the award if the judge considers that such action is necessary to satisfy the requirements of the statute. N.J.S.A. 2A:15-5.14(a).
If you find the defendant has [insert a description of the specific failure to warn or other products liability claim giving rise to a charge for punitive damages],See footnote 14 you must consider whether or not to award punitive damages to the plaintiff. Punitive damages are awarded as a punishment of the defendant and as a deterrent to others from following his or her example. The plaintiff
is not automatically entitled to punitive damages simply because you have found that the defendant has [insert a description of the specific failure to warn or other products liability claim giving rise to a charge for punitive damages] or because you have awarded damages to compensate the plaintiff for his/her injury. You may award punitive damages only if the plaintiff has proven certain matters that I am going to explain to you.
Initially, I want to advise you that the purposes of punitive damages are different from the purposes of compensatory damages. Compensatory damages are intended to compensate the plaintiff for the actual injury or loss the plaintiff suffered as a result of the defendant's misconduct. In contrast, punitive damages are intended to punish a wrongdoer and to deter the wrongdoer and others from similar wrongful conduct in the future.See footnote 15 Punitive damages are designed to require the wrongdoer to pay an amount of money that is sufficient to punish the defendant for particular conduct and to deter that defendant from misconduct in the future. Punitive damages are also designed to serve as an example to discourage anyone else from committing similar acts.
I will now explain the considerations that should govern your decision on whether punitive damages should be awarded to the plaintiff in this case. To support an award of punitive damages you must find that the plaintiff has proved, by clear and convincing evidence, that the harm suffered by the plaintiff was the result of defendant's actions or omissionsSee footnote 16 and that either (1) the defendant's conduct was malicious or (2) the defendant acted in wanton and willful disregard of another's rights. Malicious conduct is intentional wrongdoing in the sense of an evil-minded act. Willful or wanton conduct is a deliberate act or omission with knowledge or a high degree of probability of harm to another who foreseeably might be harmed by defendant's acts or omissions and reckless indifference to the consequence of the acts or omissions.
Remember that I instructed you that the plaintiff must prove certain factors by clear and convincing evidence to be awarded punitive damages. Clear and convincing evidence means that standard of evidence which leaves no serious or substantial doubt about the correctness of the conclusions drawn from the evidence. This standard does not mean that the plaintiff must
persuade you beyond a reasonable doubt, but it does require more than a preponderance of evidence to support an award of punitive damages.
In determining whether punitive damages are to be awarded, you should consider all relevant evidence, including but not limited to the following: (1) you should consider the likelihood, at the relevant time, that serious harm would arise from the defendant's conduct; (2) consider the defendant's awareness or reckless disregard of the likelihood that such serious harm would arise from the defendant's conduct; (3) consider the conduct of the defendant upon learning that its initial conduct would likely cause harm; and (4) consider the duration of the conduct or any concealment of that conduct by the defendant.See footnote 17
If you decide that the defendant has engaged in the type of wrongdoing that justifies punitive damages, you must then decide the amount of punitive damages that should be awarded.
In determining that amount of punitive damages you must consider all relevant evidence, including but not limited to, evidence of the four factors that
I previously mentioned to you in connection with your determination as to whether punitive damages should be awarded at all. As you may recall, these factors are (1) the likelihood, at the relevant time, that serious harm would arise from the defendant's conduct; (2) the defendant's awareness or reckless disregard of the likelihood that such serious harm would arise from the defendant's conduct; (3) the conduct of the defendant upon learning that its initial conduct would likely cause harm; and (4) the duration of the conduct of any concealment of it by the defendant. In addition to these factors, you should also consider the profitability of the misconduct to the defendant; consider when the misconduct was terminated; and consider the financial condition of the defendant or the defendant's ability to pay the punitive damages award.See footnote 18
Finally you should make sure that there is a reasonable relationship between the actual injury and the punitive damages.See footnote 19
After considering all these factors, you should exercise your judgment and determine (1) whether punitive damages should be awarded in this case; and (2) if you decide to award punitive damages, what the proper amount should be.
--------------------------------------------------------------------------------
Footnote: 1 The Committee notes that the Supreme Court of the United States has held that the common law method for assessing punitive damages is not per se unconstitutional. Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 111 S. Ct. 1032, 113 L. Ed. 2d 1 (1991). See also TXO Production Corp. v. Alliance Resources Corp., 113 S. Ct. 2711, 509 U.S. 443 (upholding the constitutionality of a punitive damage award 526 times as large as the actual damages).
On the bifurcation of compensatory and punitive damages proceedings, see Herman v. Sunshine Chemical Specialties, Inc., 133 N.J. 329, 342, 346 (1993) and N.J.S.A. 2A:58C-5b.
--------------------------------------------------------------------------------
Footnote: 2 N.J.S.A. 2A:58C-1 through 7 governs all products liability actions filed after the date of enactment (July 22, 1987) and before the effective date (October 27, 1995) of the Punitive Damages, Act, N.J.S.A. 2A:15-5.9 et seq. On the effective date of the Punitive Damages Act, See NOTES to Model Civil Jury Charge 6.20 Damages--Punitive. These instructions are designed for cases tried under N.J.S.A. 2A:58C-1 through 7 which substantially codified the common law with respect to punitive damages in products liability actions. Where modifications are appropriate for pre-statute cases, these changes have been set forth in the accompanying notes.
--------------------------------------------------------------------------------
Footnote: 3 The Supreme Court has held that a charge on punitive damages is appropriate in a failure to warn, strict products liability action. Herman v. Sunshine Chemical Specialties, Inc., 133 N.J. 338 (1993); Fisher v. Johns-Manville Corp., 103 N.J. 643, 670-71 (1986). Both the statute governing products liability actions and the Supreme Court's decisions indicate that such a charge would also be proper in other products liability actions where there may be
a basis for punitive damages. The model charge has been designed for a failure to warn case and should be appropriately modified for other products liability actions.
--------------------------------------------------------------------------------
Footnote: 4 N.J.S.A. 2A:58C-5a prescribes preponderance of evidence standard of proof.
--------------------------------------------------------------------------------
Footnote: 5 Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37, 48-49 (1984); DeGiovanni v. Pessel, 55 N.J. 188, 190-91 (1970).
--------------------------------------------------------------------------------
Footnote: 6 Fisher v. Johns-Manville Corp., 103 N.J. 670-71.
--------------------------------------------------------------------------------
Footnote: 7 N.J.S.A. 2A:58C-5a and Fisher v. Johns-Manville Corp., 103 N.J. 655, 671.
--------------------------------------------------------------------------------
Footnote: 8 N.J.S.A. 2A:58C-5b provides that the trier of fact must consider these four factors in determining whether punitive damages should be awarded. However, the trier of fact may consider additional factors since the four statutory factors are not intended to be exclusive.
In pre-statute cases, the following paragraph should be substituted for the paragraph in the text accompanying this note:
In determining whether the defendant's conduct was sufficiently serious to justify punitive damages, you should consider the seriousness of the hazard to the public; the degree of the defendant's awareness of the hazard and of its excessiveness; the cost of correcting or reducing the risk; the length of time of both the improper marketing behavior and its cover-up; the attitude and conduct of the enterprise upon discovery of the misconduct; and the defendant's reasons for failure to act. Fisher v. Johns-Manville Corp. 103 N.J. 672-3.
--------------------------------------------------------------------------------
Footnote: 9 N.J.S.A. 2A:58C-5d provides that the trier of fact must consider these factors in determining whether punitive damages should be awarded. However, the trier of fact may consider additional factors since the statutory factors are not intended to be exclusive. The trial judge should also instruct the jurors on any other aggravating or mitigating factors, if warranted by the evidence, that may justify an increase of reduction in the amount of punitive damages. With regard to the "financial condition" factor, see Herman vs. Sunshine Chemical Specialties, Inc., 133 N.J. 345.
In pre-statute cases, the following paragraph should be substituted for the paragraph in the text accompanying this note:
If you decide that the defendant has engaged in the type of wrongdoing that justifies punitive damages, you must then decide the amount of punitive damages that should be awarded. In determining the amount of punitive damages you must consider all of the circumstances in this case including (1) the profitability, if it can be determined, of the marketing misconduct; (2) the amount of plaintiff's litigation expenses; (3) the financial condition of the enterprise and the probable effect on it of a particular judgment or, in other words, the ability to pay an award of punitive damages; and (4) the total punishment the enterprise will probably receive from other sources for the same misconduct. Fisher v. Johns-Manville Corp., 193 N.J. 673.
--------------------------------------------------------------------------------
Footnote: 10 Fisher v. Johns-Manville Corp. 103 N.J. 643, 673 (1986); Leimgruber, 73 N.J. 458.
--------------------------------------------------------------------------------
Footnote: 11 In cases under the statute governing products liability actions, punitive damages may not be awarded in the absence of an award of compensatory damages. N.J.S.A. 2A:58C-5b. In pre-statute actions, the following language should be inserted at this point in the instruction: "Punitive damages may also be awarded for wrongful conduct even if you have not decided to award compensatory damages." See Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 50.
--------------------------------------------------------------------------------
Footnote: 12 The Committee believes that the trial judge has discretion to decide whether or not to explain at the outset of a trial that there is a request for punitive damages. In any event, the trial judge should take into account the possible length of the bifurcated procedures in a punitive damages action when discussing the trial days it will take to complete the case.
--------------------------------------------------------------------------------
Footnote: 13 On the effective date of the Punitive Damages Act, see the NOTES to Model Civil Jury Charges 6.20 Damages--Punitive.
--------------------------------------------------------------------------------
Footnote: 14 The Supreme Court has held that a charge on punitive damages is appropriate in failure to warn, strict products liability action. Herman v. Sunshine Chemical Specialities, Inc., 133 N.J. 338 (1993); Fisher v. Johns-Manville Corp., 103 N.J. 643, 670-671 (1986). Both the statute governing products liability actions and the Supreme Court's decisions indicate that such a charge would also be proper in other products liability actions where there may be a basis for punitive damages. The model charge has been designed for a failure to warn case and should be appropriately modified for other products liability actions.
--------------------------------------------------------------------------------
Footnote: 15 Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37, 48-49 (1984); DeGiovanni v. Pessel, 55 N.J. 188, 190-91 (1970).
--------------------------------------------------------------------------------
Footnote: 16 N.J.S.A. 2A:15-5.12(a).
--------------------------------------------------------------------------------
Footnote: 17 See N.J.S.A. 2A:15-5.12(b). Sec. 5.12(b) provides that the trier of fact must consider these four factors in determining whether punitive damages should be awarded. However, the trier of fact may consider additional factors since the four statutory factors are not intended to be exclusive.
--------------------------------------------------------------------------------
Footnote: 18 See N.J.S.A. 2A:15-5.12(c). Sec. 5.12(c) provides that the trier of act must consider these factors in determining whether punitive damages should be awarded. However, the trier of fact may consider additional factors, if appropriate, since the statutory factors are not intended to be exclusive. See, e.g., the factors in Model Charge 6.20 (i.e., nature of the wrongdoing; the extent of the harm inflicted by the wrongdoing, the intent of the defendant; or the effect of the judgment on the defendant). The trial judge should also instruct the jurors on any other aggravating or mitigating factors, if warranted by the evidence, that may justify an increase or reduction in the amount of punitive damages. With regard to the “financial condition” factor, see Herman v. Sunshine Chemical Specialities, Inc., 133 N.J. 329, 345 (1993).
--------------------------------------------------------------------------------
Footnote: 19 Fisher v. John Manville Corp., 103 N.J. 643, 675 (1987).
--------------------------------------------------------------------------------
Model Civil Jury Charges
