Uncapping Compensation in the Gore Punitive Damage Analysis

Abstract

BMW of North America, Inc. v. Gore rests, in part, on the “understandable relationship” between a civil jury’s award of compensatory and punitive damages. Gore identifies three guideposts to determine whether a jury’s award of punitive damages are excessive: (1) the degree of reprehensibility of defendant’s conduct; (2) the disparity between compensatory and the punitive damages; and (3) the difference between punitive damages and civil penalties authorized or imposed in comparable cases. This Article argues that Gore’s second guidepost is based on a false premise as it applies in States that have capped compensatory damage awards: that the plaintiff has been fully reimbursed for actual losses. This Article contributes to existing scholarship on state law compensatory damage caps and the Gore punitive damage analysis by identifying the defect the former produces in the latter. This Article maintains that capped compensatory damages in State law tort actions also caps the Gore punitive damage analysis. This Article advocates uncapping Gore where state procedures do not allow trial judges the opportunity to review a civil jury’s award for reasonableness, where the civil jury is not informed of the cap, or where the civil jury has no opportunity to reconsider an award that exceeds the cap. Without such protections, Gore fails its dual obligation in civil litigation to protect civil defendants against unreasonably high awards and guard severely injured plaintiffs against arbitrarily low awards.