PJC Malpractice 2024

E XEMPLARY D AMAGES

PJC 85.3

Multiple plaintiffs. For multiple plaintiffs, a separate finding on the amount of exemplary damages awarded to each is appropriate. See Tex. Civ. Prac. & Rem. Code §71.010. For an example of submission of apportionment in a single question, see PJC 85.4. Prejudgment interest not recoverable. Prejudgment interest on exemplary dam ages is not recoverable. Tex. Civ. Prac. & Rem. Code § 41.007. Limits on conduct to be considered. A defendant’s lawful out-of-state conduct may be probative on some issues in a punitive damages case in certain circumstances. State Farm Mutual Automobile Insurance Co. v. Campbell , 538 U.S. 408, 422 (2003). When such evidence is admitted, “[a] jury must be instructed ... that it may not use evidence of out-of-state conduct to punish a defendant for action that was lawful in the jurisdiction where it occurred.” Campbell , 538 U.S. at 422. Evidence that the defendant’s conduct caused harm to persons who are not before the court may also be probative of the reprehensibility of the defendant’s conduct. Philip Morris USA v. Williams , 549 U.S. 346, 355–57 (2007). But when this type of evidence is admitted, the jury should be instructed that it may not punish a defendant for the harm the defendant’s conduct allegedly caused to other persons who are not parties to the litigation. Williams , 549 U.S. at 357. Neither Campbell nor Williams specifies whether the requirement of an instruction means a limiting instruction at the time the evidence is offered, an instruction in the jury charge, or both. Source of definitions and instructions. The definition of exemplary damages is derived from Tex. Civ. Prac. & Rem. Code §§41.001(5), 41.011(a). The factors to consider are from Tex. Civ. Prac. & Rem. Code § 41.011(a). The unanimity instruction is derived from Tex. Civ. Prac. & Rem. Code §41.003(d). See also Tex. Civ. Prac. & Rem. Code §§ 41.001(7), (11), 41.003(a), (e), 41.004(a); Tex. R. Civ. P. 226a. Limitation on amount of recovery. Exemplary damages awarded against a defendant ordinarily may not exceed an amount equal to the greater of— (1)(A) two times the amount of damages; plus (B) an amount equal to any noneconomic damages found by the jury, not to exceed $750,000; or (2) $200,000. Tex. Civ. Prac. & Rem. Code § 41.008(b). These limitations will not apply in favor of a defendant found to have “knowingly” or “intentionally” committed conduct described as a felony in specified sections of the Texas Penal Code. See Tex. Civ. Prac. & Rem. Code § 41.008(c), (d).

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