punitive damages 2d v2 2012 pam

Document Sample
punitive damages 2d v2 2012 pam Powered By Docstoc

 Civil rights litigation, 15:20            Public policy violation, 10:38
 Products liability actions, 6:4-6:27
                                          AGGRAVATED CONDUCT
ABUSE OF PROCESS                           DeŽned, 11:23
 Professional liability for damages,
      17:10                               AGGRAVATING
                                             CIRCUMSTANCES DAMAGES
ACCOUNTS AND ACCOUNTING                    Wrongful death actions, aggravating
 Professional liability of accountants,        circumstances damages deemed
      17:14                                    equivalent to punitive damages,
                                               5:10, 5:21
 Instructions to jury, 11:20              AGREEMENTS
ADDITUR AND REMITTITUR                     Contracts and Agreements (this
 Generally, 18:1-18:15                          index)
 Additur, generally, 18:11-18:15           Settlements (this index)
 Appellate procedure, 18:3                AMERICAN BAR ASSOCIATION
 Discretion of jury, 18:4                  Model jury instructions, 11:2, 11:19,
 Excessiveness of award, generally,            11:21, 11:23, 11:29
       18:5-18:8                           Reform proposals, 21:11
 Federal courts, 18:9, 18:12
 Introductions, 18:1, 18:11               AMERICANS WITH
 Legislation                                 DISABILITIES ACT
    additur, 18:14                         Civil right litigation under, 15:34-
    reforms as to excessive or inade-           15:37
         quate verdicts, 21:25
 Prejudice and other improper             AMERICAN TORT REFORM
       considerations, 18:7                  ASSOCIATION
 Purpose of punitive damages, 18:8         Reform proposals, 21:13
 Ratios, size of verdict, 18:6            AMOUNT OF DAMAGES
 Remittitur, generally, 18:1-18:10
                                           Bifurcation of trial only as to, 12:11
 Size of verdict, 18:6
                                           Instructions to jury, factors for jury to
 State courts, additur, 18:13, 18:14            consider, 11:21, 11:22
 Summaries, 18:10, 18:15                   Legislative reforms, limitations on
 Trial procedure, 18:2, 18:3                    recovery, 21:16-21:18
ADMIRALTY CASES                            Liability for punitive damages, gener-
 Generally, 4:15                                ally, 5:18-5:37

 Civil rights litigation under Age         Constitutional issues preserved for,
      Discrimination in Employment             3:8
      Act, 15:29-15:31                     Remittitur, appellate procedure, 18:3

                  Punitive Damages Law and Practice Second Edition

 Contribution or Apportionment of            DAMAGES—Cont’d
     Damages (this index)                  Perspective, keeping punishment in,
                                           Products Liability (this index)
 Generally, 4:14
                                           Rationale for awarding damages,
ARCHITECTS                                      generally, 2:1-2:13, 4:12-4:16
 Professional liability for damages,
      17:16                               BAD FAITH
                                           Pleading Forms (this index)
 Instructions to Jury (this index)        BANKRUPTCY
                                           Postjudgment considerations, 9:19
  Pleadings, 10:20 (Form)                 BASIS FOR RULE
ASSIGNMENT                                 Generally, 1:2
  Liability for damage claims, 5:13       BATTERY AND ASSAULT
ASSUMPTION OF LIABILITY                    Pleadings, 10:20 (Form)
  Successor corporations, purchase
      agreement, 22:4                     BIAS OR PREJUDICE
                                            Remittitur, size of verdict, 18:7
ATTORNEY GENERAL                            Wealth of defendant, 9:9
 Control of multiple awards, 5:32
                                          BIFURCATION OF TRIAL
 Fees, 5:22                                 Generally, 12:1-12:15
 Professional liability for damages,        Amount of award, bifurcation only as
      17:8-17:10                                 to, 12:11
                                            Conclusion, 12:14
ATTORNEYS’ FEES                             Demand for damages, separate trial
 Amount of, 5:22                                 of, 12:3
AUTOMOBILES                                 Discovery, deferral of, 12:10
 Pleadings, passenger against               Federal Rule 42(b), 12:2-12:4
      intoxicated driver of automobile,     Federal Rule and statutes, 12:6
      10:24 (Form), 10:26 (Form)            Introduction, 12:1
AWARDS OF PUNITIVE                          Issues, statutes requiring bifurcation
   DAMAGES                                       of, 12:7-12:9
 See also more speciŽc headings             Jury trial considerations, 12:12
 Civil deterrents, rationale, 2:6           Legislative reforms, 21:23
 Civil punishment, rationale, 2:2-2:5       Motion and order, 12:15
 Conduct Justifying Award (this             Practical aspects, 12:13
       index)                               Punitive damages, bifurcation of,
 Control, punishment without, 2:12               12:4
 First award, limit to, 5:30                State statutes, judicial discretion to
 Liability insurance aecting punish-            allow or disallow, 12:8
       ment, 2:3                            Statutes, 12:5-12:9
 Multiple Awards (this index)
 Other considerations, rationale, 2:10-   BREACH OF WARRANTY
       2:12                                Products liability actions, 6:3


 Presumptions and Burden of Proof           —Cont’d
     (this index)                         Municipal immunity from punitive
                                               damages, 15:14, 15:23
CALIFORNIA                                Negligence as basis for liability,
 Instructions to Jury (this index)             15:19
CARMACK AMENDMENT                         Persons protected, 15:2, 15:8
 Instructions to jury, 11:30              Pleadings, 10:31 (Form), 15:10,
CHILDREN AND MINORS                       Punitive damages, generally, 15:6 et
 Air gun sold to minor, action for             seq.
      injury to another minor, plead-     QualiŽed immunity, 15:9
      ings, 10:35 (Form)                  Strict liability, 15:20
 Conduct of children aecting             Title IX of Americans with Dis-
      liability, 5:4                           abilities Act, 15:37
 Flammable sleepwear, pleadings in        Title VII, actions under, 15:24-15:27
      negligence in manufacture of,
      10:13 (Form)                      CLASS ACTIONS
                                         Aircraft manufacturer, death of pas-
                                              sengers, 10:14.5
 Conict of Laws (this index)
                                        COMPARATIVE IMPAIRMENT
  Generally, 15:1 et seq.                Conict of laws, 23:16
  Age Discrimination in Employment
       Act, 15:29-15:31                 COMPENSATORY DAMAGES
  Americans with Disabilities Act,       Civil rights litigation, 15:11, 15:21,
       15:34-15:37                            15:26
  Civil Rights Act of 1964, 15:24-       Defamation actions, 13:14
       15:27                             Instructions to jury, punitive damages
  Civil Rights Act of 1991, 15:28             as not compensatory, 11:16-
  Compensatory damages, 15:11,                11:27
       15:21, 15:26                      Jurisdictions treating punitive dam-
  Education amendments of Americans           ages as, 4:2-4:5
       with Disabilities Act, 15:37      Misrepresentation actions, 19:16,
  Enforcement of judgment, 15:30              19:17
  Evidence requirements, 15:5, 15:17     Prerequisite to recovery of punitive
  Fair Housing Act, 15:32, 15:33              damages, 5:21
  42 U.S.C.A. § 1981, actions under,     Products liability, public policy
       15:2-15:7                              issues, 6:7
  42 U.S.C.A. § 1982, actions under,    COMPUTERS
       15:8-15:14                        Products liability claims, computer
  42 U.S.C.A. § 1983, actions under,         used in organizing, 6:32
  Housing and employment, pleadings     CONDUCT JUSTIFYING AWARD
       in actions for discrimination,    Generally, 5:1-5:5
       10:31 (Form)                      Contribution or apportionment of
  Immunity from damages, 15:6,                damages, 16:3, 16:4
       15:14, 15:23                      Infants and insane persons, conduct
  Limitation on punitive damages,             of, 5:4
       15:13                             Intent to cause harm, 5:2

                  Punitive Damages Law and Practice Second Edition

   —Cont’d                                   Equal protection, 3:5
 Legislative and judicial deŽnitions,        Excessive Žnes clause, 3:6
     5:1                                     Federal Court Civil Rights Act,
 Legislative reforms, 21:24                       actions against police ocers
 Misrepresentation actions, 19:19                 under, 10:29 (Form)
 Products liability, 6:19                    Full faith and credit, postjudgment
 Reckless conduct causing harm, 5:3               considerations, 9:20
 Vicarious liability, 5:5                    Immunity from damages in civil
                                                  rights litigation, 15:6, 15:14,
CONFLICT OF LAWS                                  15:23
 Generally, 23:1 et seq.                     Introduction, 3:1
 Better law approach, 23:9, 23:10
                                             Other constitutional challenges, 3:7
 Comparative impairment test, 23:16
                                             Seizure of property and eviction of
 Conclusion, 23:22                                tenant from residential premises,
 Depecage, 23:20                                  10:27 (Form)
 Federal multidistrict litigation, 23:14-    Speech and press, freedom of, 3:4
                                             Strict liability in products liability
 Foreign laws, punitive sanctions                 actions, 6:6
      sought in United States under,
      23:21                                 CONSTRUCTIVE FRAUD
 Foreign plaintis, 23:19                    Generally, 19:12
 Forum non conviens, 23:19
 Governmental interest approach,            CONTEMPORARY ENGLISH
      23:7, 23:8                               VIEW
 Introduction, 23:1                          Generally, 1:3
 Kentucky approach, 23:11
                                            CONTINUATION OF BUSINESS
 Lex loci delicti, 23:2, 23:3, 23:18
 Louisiana approach, 23:12.5                 Successor corporations, 22:7, 22:8
 Michigan approach, 23:12                   CONTRACTS AND AGREEMENTS
 Modern approaches to, 23:4-23:12            Contribution or apportionment of
 Nontort choice of law issues, 23:13              damages, settlements, 16:10
 Punitive sanctions sought in United         Federal tax consequences, evidence
      States under foreign laws, 23:21            of settlement agreements, 14:12
 SigniŽcant relationship test, 23:5,         Instructions to jury in actions for
      23:6, 23:15                                 breach, 11:15
 SpeciŽc issue test, 23:17                   Insurance (this index)
 Tobacco litigation, 23:22                   Liability in contract actions, 5:7, 5:9
 Trial considerations, 9:5                   Misrepresentation actions, contract
CONNECTICUT                                       versus tort, 19:7
 Compensatory damages, Connecticut           Punitive damages, generally, 5:7, 5:9
    treating punitive damages, 4:3           Successor corporations, purchase
                                                  agreement, 22:4
 Generally, 3:1-3:9                         CONTRIBUTION OR
 Appeal, preserving constitutional             APPORTIONMENT OF
     issues for, 3:8                           DAMAGES
 Double jeopardy, 3:2                        Generally, 16:1-16:11
 Due process, 3:3                            Case law and other authorities, 16:7


   APPORTIONMENT OF                         Generally, 13:1-13:15
   DAMAGES—Cont’d                           Business defamation, Federal tax
 Conduct warranting award of puni-               consequences of damage
      tive damages, 16:3, 16:4                   awards, 14:7
 Doctrine of contribution, 16:1, 16:2       Compensatory damages, 13:14
 Doctrine of punitive damages, 16:3,        Defenses to, 13:8
      16:4                                  DeŽnition of defamatory, 13:6
 History of contribution doctrine, 16:1     Elements of defamation, 13:5-13:7
 Jurisdiction as to apportionment of        Federal tax consequences of damage
      damages, 16:8, 16:9                        awards, 14:5-14:7
 Medical malpractice, 16:4                  Interest and persons protected by,
 Public policy, contribution for puni-           13:2
      tive damages, 16:6                    Introduction, 13:1
 Settlements, 16:10                         Libel and slander, 13:4
 Summary, 16:11                             New York Times Company v. Sul-
 Tortfeasors, contribution among,                livan, 13:9, 13:10
      16:2                                  Nonpecuniary remedies, 13:13
CORPORATIONS                                Personal defamation, Federal tax con-
                                                 sequences of damage awards,
 Successor Corporations (this index)
COST OF DOING BUSINESS                      Private individuals, defamation of,
 Products liability, 6:12                        13:11
                                            Publication, 13:7
COSTS, FEES, AND EXPENSES                   Public policy violation, 10:38
 Attorneys’ fees, 5:22                      Punitive damages, generally, 13:15
CRIMINAL LAW                                Remedies available, 13:12-13:15
 Defamation Actions (this index)            Types of actions, 13:3, 13:4
 Fraud, Deceit, and Misrepresenta-         DEFENSES
      tion (this index)                     Generally, 9:11-9:17
 Liability, 5:15-5:17                       Defamation actions, 13:8
 Mitigation of damages, evidence of         Medical malpractice, statutory limits,
      criminal sanctions in, table, 5:36         17:19
 Punitive damages, criminal liability,      Professional liability for damages,
      5:15-5:17                                  17:18
 Sanctions aecting civil liability,
      5:15                                 DEFINITIONS
                                            Aggravated conduct, 11:23
DEATH                                       Conduct justifying punitive damages,
 Trial, death of plainti or defendant,         5:1
      9:8                                   Defamatory, 13:6
 Wrongful Death Actions (this               Successor corporations, 22:1
DECEIT                                      Conict of laws, 23:20
 Fraud, Deceit, and Misrepresenta-
     tion (this index)                     DETERRENCE AND
DE FACTO BUSINESS MERGERS                   Rationale for awarding punitive dam-
 Vicarious liability, 24:11                      ages, 4:13

                   Punitive Damages Law and Practice Second Edition

DISCHARGE FROM                           ENGINEERS
    EMPLOYMENT                            Professional liability for damages,
  Generally, 5:14                              17:15
DISCOVERY                                EQUAL PROTECTION
  Generally, 9:9                          Generally, 3:5
  Bifurcation of trial, deferral of      EQUITY
       discovery, 12:10
                                          Generally, 20:1-20:6
  Financial information, 9:9
                                          Availability of damages in equity,
  Products liability actions, pretrial         20:6
       discovery, 6:30
                                          Equitable remedies, 20:3
DISCRIMINATION                            Impediments to damages, 20:5
  Civil Rights Litigation (this index)    Introduction, 20:1
DOUBLE JEOPARDY                           Merger of law and equity courts, 20:2
                                          Misrepresentation actions, law versus
 Generally, 3:2
                                               equity, 19:6
DRAM SHOP ACTIONS                         Products liability actions, equity of
 Pleading forms, 10:37 (Form)                  punishing shareholders, 6:10
                                          Punitive damages, generally, 6:10,
DRIVING UNDER THE                              20:4
 Instructions to jury, 11:27             EVIDENCE AND WITNESSES
                                            generally, 9:9
 Multiple defendants in drug                bifurcation of trial, deferral of
     manufacturer actions, 6:35                   discovery, 12:10
DUE PROCESS                                 products liability actions, pretrial
 Generally, 3:3                                   discovery, 6:30
 Wrongful death actions, aggravating      Financial status of defendant, table,
     circumstances damages, 5:21               5:37
                                          Legislative reform, evidence of
EARLY HISTORY OF PUNITIVE                      defendant's wealth, 21:20
   DAMAGES                                Misrepresentation actions, 19:11,
 Generally, 1:1                                19:15, 19:21
EMOTIONAL DISTRESS                        Mitigation of damages, evidence of
 Contribution or apportionment of              criminal sanctions in, table, 5:36
      damages, medical malpractice,       Presumptions and Burden of Proof
      16:4                                     (this index)
 Pleadings, allegation accompanying       Products Liability (this index)
      cause of action, 10:19 (Form),      Taxation (this index)
      10:23 (Form), 10:28 (Form)
                                         EXCESSIVE AND INADEQUATE
EMPLOYER AND EMPLOYEE                       AWARDS
 Discrimination based sex and hostile     Additur and Remittitur (this index)
      work environment, pleadings,
      10:31 (Form)                       EXCESS LIABILITY ACTIONS
 Vicarious Liability (this index)         Generally, 8:1-8:6
 Workers’ Compensation (this              First-party insurance, 8:4
      index)                              Introduction, 8:1
 Wrongful discharge, 5:14                 Nature of action, 8:2


   —Cont’d                                     MISREPRESENTATION
 Punitive damages, generally, 8:6              —Cont’d
 Statutory liability, 8:5                   DeŽnitions, problems with, 19:2
 Third-party insurance, 8:3                 Elements of misrepresentation, 19:8-
FAIR HOUSING ACT                            Evidence
  Civil rights litigation, 15:32, 15:33        presumptions, burden of proof, and
FALSE ARREST                                         inferences, 19:15, 19:21
  Pleadings, claim against town, 10:21         scienter and intent, 19:11
       (Form)                               Forms of misrepresentation, 19:3
                                            Historical development, 19:4-19:7
FEDERAL COURTS                              Instructions to jury for injurious
  Additur and remittitur, 18:9, 18:12             falsehood actions, 11:28
FEDERAL LEGISLATIVE                         Intent, evidence of, 19:11
    REFORM                                  Introduction, 19:1
  Generally, 21:27                          Knowledge, evidence of, 19:11
                                            Law versus equity, 19:6
FEDERAL MULTIDISTRICT                       Measure of compensatory damages,
    LITIGATION                                    19:16
  Conict of laws, 23:14-23:18              Misrepresentation actions, generally,
FINANCIAL INFORMATION                             19:1-19:21
  Discovery, 9:9                            Negligent misrepresentation, 19:13
                                            Pleadings, 19:14, 19:20
FINES AND PENALTIES                         Presumptions, burden of proof, and
  Excessive Žnes clause, 3:6                      inferences, 19:15, 19:21
FIRST-PARTY INSURANCE                       Products liability awards, 6:26
  Excess liability actions, 8:4             Professional liability for damages,
FOREIGN STATE OR COUNTRY                    Punitive damages, generally, 19:18-
  Conict of laws, 23:19, 23:21                   19:21
  Liability in actions against foreign      Scienter, evidence of, 19:11
       governments, 5:12
                                          FULL FAITH AND CREDIT
FORMS                                       Postjudgment considerations, 9:20
  Pleading Forms (this index)
                                           Instructions to jury, 11:14
  Conict of laws, foreign plaintis,
      23:19                               GOVERNMENTAL BODIES AND
    MISREPRESENTATION                      Vicarious liability, 24:8-24:10
  Generally, 19:1-19:21                   HAZARDOUS MATERIALS
  Compensatory damages, 19:16,             Pleadings, toxic contamination of real
      19:17                                     property, 10:32 (Form)
  Conduct justifying punitive damages,     Toxins, action against building owner
      19:19                                     and contractor for exposure dur-
  Constructive fraud, 19:12                     ing renovation of building,
  Contract versus tort, 19:7                    10:28 (Form)

                   Punitive Damages Law and Practice Second Edition

   —Cont’d                                      —Cont’d
 Ultrahazardous activity, pleadings in       Arizona—Cont’d
      claim for cause of action, 10:22          punitive damages not compensa-
      (Form)                                          tory, 11:16
                                                torts alone as no basis for punitive
HISTORICAL PERSPECTIVE                                damages, 11:16
  Generally, 1:1-1:3                         California
IDENTITY AND IDENTIFICATION                     generally, 11:3
  Successor corporations, 22:6                  drunken driving, 11:27
                                                injurious falsehood actions, 11:28
                                                libel and slander, 11:25
  Instructions to jury, 11:4
                                                punitive damages not compensa-
IMMUNITIES AND PRIVILEGES                             tory, 11:17
  Civil rights litigation, immunity from        vicarious liability, 11:26
       punitive damages, 15:6, 15:14,        Carmack amendment of Interstate
       15:23                                       Commerce Act, 11:30
                                             Compensatory damages, punitive
INADEQUACY OF AWARDS                               damages as not considered,
  Additur and Remittitur (this index)              11:16-11:27
INCOMPETENT OR INSANE                        Contract breach and punitive dam-
    PERSONS                                        ages, Minnesota, 11:15
  Conduct aecting liability, 5:4            Discretion of jury in awarding puni-
                                                   tive damages, 11:19
INDEPENDENT DUTY TO WARN                     Drunken driving, 11:27
  Successor corporations, 22:11              Factors for jury in determining
                                                   amount of damages, 11:21,
INFANTS                                            11:22
  Children and Minors (this index)           General instructions, generally, 11:2-
INFERENCES                                         11:13
                                             Georgia, 11:14
  Presumptions and Burden of Proof
      (this index)                           Illinois, 11:4
                                             Injurious falsehood actions, 11:28
INJUNCTIONS                                  Kansas, factors for jury in determin-
  Pleadings, injunction against                    ing amount of damages, 11:22
       developer and realty company          Libel and slander, 11:25
       for discrimination in sale of         Malice, Arizona, 11:24
       house accommodations, 10:30           Minnesota, 11:5, 11:15
                                             Mississippi, 11:6
INSTRUCTIONS TO JURY                         Model jury instructions, generally,
  Generally, 11:1 et seq.                          11:1-11:30
  ABA model instructions, 11:2, 11:19,       Multiple awards, 5:29
      11:21, 11:23, 11:29                    New York, 11:7
  Actual damages, prerequisite of,           Nominal damages, prerequisite of,
      11:20                                        11:20
  Aggravated conduct deŽned, 11:23           North Dakota, 11:8
  Arizona                                    Ohio, 11:9
    malice, 11:24                            Oregon, 11:10


    —Cont’d                                     DECREES—Cont’d
  Prerequisite of actual or nominal           Civil rights litigation, enforcement of
       damages, 11:20                              judgment, 15:30
  Texas, 11:11                                Pleadings, injunction against
  Torts alone as no basis for punitive             developer and realty company
       damages, Arizona, 11:16                     for discrimination in housing
  Trademark infringement, 11:29                    sales, 10:30 (Form)
  Vicarious liability, 11:26                  Postjudgment considerations, gener-
  West Virginia, 11:12                             ally, 9:18-9:20
  Wisconsin, 11:13                            Transfer of assets prior to judgment,
  Wrongful death actions, aggravating              5:20
       circumstances damages, 5:10            Verdicts, 9:16, 18:6

INSURANCE                                   JURISDICTION
  Generally, 2:3                              Apportionment of damages, jurisdic-
                                                   tion as to, 16:8, 16:9
  Alliance of American insurers,
       reform proposals, 21:8                 Trial considerations, 9:4
  Discovery, relevance of insurance         JURISDICTIONAL AMOUNT
       coverage, 9:9                          Generally, 5:25
  Excess liability actions, 8:3, 8:4
  First-party insurance, excess liability   JURY AND JURY TRIAL
       actions, 8:4                           Bifurcation of trial, 12:12
  Legislative reforms as to insurance         Determination of amounts, 5:23
       coverage, 21:22                        Discretion of jury as to amount of
  Products liability, coverage removing            award, 5:23
       punishment-deterrent eect,            Instructions to Jury (this index)
       6:11                                   Judicial control of awards, 5:24
  Removal of punishment-deterrent             Multiple awards, control of, 5:29
       eect through, 6:11                    Punitive damages, generally, 5:23
  Third-party insurance, excess liability     Remittitur, discretion of jury, 18:4
       actions, 8:3
INTENTIONAL INFLICTION OF                     Conduct Justifying Award (this
    EMOTIONAL DISTRESS                           index)
  Public policy violation, 10:38
INTENT OR MOTIVE                             Instructions to jury, 11:22
  JustiŽcation for damages for intent to    KENTUCKY
       cause harm, 5:2
                                             Conict of laws, 23:11
  Misrepresentation actions, evidence
       of motive, 19:11                     KNOWLEDGE
  Products liability, proŽt motive, 6:22     Notice and Knowledge (this index)
  Instructions to jury as to Carmack         Pleadings, eviction of tenant and
       amendment, 11:30                           seizure of property from resi-
                                                  dential premises, 10:27 (Form)
    DECREES                                 LEGISLATIVE REFORM
  Bifurcation of trial, order for, 12:15     Generally, 21:14-21:27

                  Punitive Damages Law and Practice Second Edition

 Abolition of punitive damage awards,       Conict of laws, 23:12.5
       21:19                                Prohibition of punitive damages, 4:7
 Conduct, types of, 21:24                   Reform proposals from Louisiana
 Dollar amount, limitation of, 21:17            trial lawyers association, 21:10
 Evidence of defendant's wealth,
       21:20                               MALFEASANCE, MISFEASANCE,
                                              AND NONFEASANCE
 Excessive or inadequate verdicts,
       21:25                                Medical professional, liability of,
 Federal legislation, 21:27                     17:5-17:7
 Insurance coverage, 21:22                 MALICE OR SPITE
 Introduction, 21:14                        Instructions to jury, 11:24, 11:25
 Judicial determination of amount of
       award, 21:26                        MALICIOUS PROSECUTION
 Limitations                                Professional liability for damages,
    pleading limitations, 21:20
    recovery, limitations on, 21:16-       MALPRACTICE
         21:18                              Legal malpractice, professional
 Payment to state fund, 21:18                   liability for damages, 17:9
 Pleading limitations, 21:20
                                           MARITIME AND ADMIRALTY
 Presumptions and burden of proof,            CASES
                                            Generally, 4:15
 Separate trials, 21:23
 Wealth of defendant, proving, 21:21       MASSACHUSETTS
                                            Prohibition of punitive damages, 4:8
 Conict of laws, 23:2, 23:3, 23:18        MEASURE OF DAMAGES
                                            Misrepresentation actions, measure
LIABILITY FOR PUNITIVE                          of compensatory damages,
    DAMAGES                                     19:16
  For particular matters regarding
       liability, see more speciŽc head-   MEDICAL MALPRACTICE
       ings                                 Contribution or apportionment of
  Generally, 5:1-5:37                           damages, 16:4
                                            Defenses, statutory limits, 17:19
                                           MEDICAL PROFESSIONALS
  Defamation actions, generally, 13:4
                                            Professional liability for damages,
  Instructions to jury, 11:24, 11:25             17:4-17:7
LIMITATIONS AND                            MERGERS
    RESTRICTIONS                            Vicarious liability, de facto business
  Civil rights litigation, limitation on        mergers, 24:11
       punitive damages, 15:13
  Criminal sanctions as restriction,       MICHIGAN
       5:16                                 Compensatory damages, Michigan
  Legislative reform                            treating punitive damages as,
    pleading limitations, 21:20
                                            Conict of laws, 23:12
    recovery, limitations, 21:16-21:18
  Multiple awards, 5:30, 5:31              MINNESOTA
  Single recovery, limits on, 5:31          Instructions to jury, 11:15


MINORS                                    NEGLIGENCE
 Children and Minors (this index)          Products liability actions, 6:2
 Fraud, Deceit, and Misrepresenta-         Prohibition of punitive damages, 4:10
     tion (this index)
                                          NEW YORK
MISSISSIPPI                                Instructions to jury, 11:7
 Instructions to jury, 11:6
                                          NOMINAL DAMAGES
                                           Instructions to jury as to prerequisite
 Admission of evidence of criminal              of, 11:20
     sanctions, table, 5:36
 Criminal sanctions as, 5:17              NORTH DAKOTA
MODEL JURY INSTRUCTIONS                    Instructions to jury, 11:8
 Instructions to Jury (this index)        NOTICE AND KNOWLEDGE
MODEL UNIFORM PRODUCTS                     Misrepresentation actions, evidence
   ACT                                         of knowledge in, 19:11
 Generally, 6:37                           Motion to strike allegation of puni-
                                               tive damages, form of notice,
MOTIVE                                         10:36 (Form)
 Intent or Motive (this index)             Products liability, knowledge of
                                               defect as evidence justifying
MOTOR VEHICLES                                 award, 6:21
 Pleadings, passenger against
      intoxicated driver of automobile,   OHIO
      10:24 (Form), 10:26 (Form)           Instructions to jury, 11:9
MULTIPLE AWARDS                           OREGON
 Generally, 5:27-5:34                      Instructions to jury, 11:10
 Add-on punishments, 5:33
 Consolidation and class certiŽcation,    PERSONAL INJURIES
      5:28                                  Federal taxation consequences of
 Jury instructions, 5:29                        damage awards for, 14:3, 14:4,
 Limitations, 5:30, 5:31                        14:9
 Overview, 5:34
                                          PHARMACIES AND
 Rewarding private attorneys general,         PHARMACISTS
                                            Pleadings, action for damages from
MULTIPLE PARTIES                                 alteration of prescription by
 Determination of amount in claims of            pharmacist, 10:33 (Form)
      multiple plaintis, 5:26              Professional liability of pharmacists,
 Drug manufacturer actions, multiple             17:17
      defendants in, 6:35
                                          PHYSICIANS AND SURGEONS
 Trial considerations, 9:6, 9:7
                                           Pleadings, physician's action against
MUNICIPAL IMMUNITY                              attorney and law Žrm for mali-
 Civil rights litigation, 15:14, 15:23          cious bringing of medical mal-
                                                practice action, 10:34 (Form)
NEBRASKA                                   Professional liability for damages,
 Prohibition of punitive damages, 4:9           17:4-17:7

                  Punitive Damages Law and Practice Second Edition

PLEADING FORMS                             PLEADING FORMS—Cont’d
  Generally, 10:1-10:37                      Health care insurer, allegations
  Abusive treatment, actions against               against, 10:15
       police ocers under Federal           Hostility in work environment,
       Court Civil Rights Act, 10:29               actions for discrimination based
  Air gun sold to minor, action for                on, 10:31
       injury to another minor, 10:35        Injunction, action against developer
  Arrest, actions against police ocers            and realty company for
       under Federal Court Civil Rights            discrimination in sale of house
       Act as to lawfulness of, 10:29              accommodations, 10:30
  Assault and battery action, claim for,     Intoxicated driver of automobile,
       10:20                                       passenger against, 10:24, 10:26
  Bad faith                                  Introduction, 10:1
    collection proceedings instituted        Introductory comments, 10:2, 10:6
          against insured, 10:18             Judgment in excess of policy limits,
    health care insurer, allegations               10:18
          against, 10:15                     Negligence actions. Torts, infra
    judgment in excess of policy             Notice of motion to strike allegation
          limits, 10:18                            of punitive damages, 10:36
    payment of claim, allegations as to            (Form)
          malicious denial of, 10:17         Pharmacy and pharmacist, action for
    settlement oers, rejection of,                damages from alteration of pre-
          10:18                                    scription, 10:33
    workmen's compensation insurer,          Physician, action against attorney and
          allegations against, 10:16,              law Žrm for malicious bringing
          10:17                                    of medical malpractice action,
  Children's ammable sleepwear,                   10:34
       allegations as to negligence of       Police ocers, actions under Federal
       manufacturer of, 10:13                      Court Civil Rights Act, 10:29
  Collection proceedings instituted          Procedural rule references, 10:8
       against insured, 10:18                Products liability
  Dram shop actions, 10:37 (Form)               children's ammable sleepwear,
  Emotional distress, allegation                      allegations as to negligence of
       accompanying cause of action                   manufacturer of, 10:13
       for, 10:19, 10:23, 10:28                 defective products, allegations
  Employment, actions for discrimina-                 against distributors and
       tion based on sex and hostile                  manufacturer of, 10:10
       work environment, 10:31                  equipment rental corporation, fail-
  Eviction of tenant and seizure of                   ure to equip with safety
       property, residential premises,                devices, 10:11
       10:27                                    third-party manufacturer in
  Exposure to toxins during renovation                workmen's compensation
       of building, 10:28                             actions, 10:12
  False arrest, claim against town for,      Rear-end collision, action against
       10:21                                       intoxicated host driver, 10:26
  Federal Court Civil Rights Act,            Red light, action against intoxicated
       actions against police ocers,              host driver for failure stop at,
       10:29                                       10:26
  Flammable sleepwear, allegations as        Search, actions against police ocers
       to negligence of manufacturer               under Federal Court Civil Rights
       of, 10:13                                   Act, 10:29


PLEADING FORMS—Cont’d                        PLEADING FORMS—Cont’d
  Seizure of property and eviction of          Workmen's compensation—Cont’d
       tenant, residential premises,            third-party manufacturer in actions
       10:27                                          for, 10:12
  Settlement oers, rejection of, 10:18        Wrongful death actions, negligence
  Shotgun manufacturer, defective                  in overmedication by nursing
       design and manufacture, 10:14               home and sta, 10:25
  Signatures                                   Wrongful death and survival action,
    attorney, 10:4, 10:5                           10:37 (Form)
    party suing in person, 10:3              PLEADINGS
  Speeding, action against intoxicated         Civil rights litigation, 10:31 (Form),
       host driver, 10:26                           15:10, 15:17
  Statutory references, 10:7
                                               Forms. Pleading Forms (this index)
                                               Legislative reform, pleading limita-
    assault and battery action, claim
                                                    tions, 21:20
          for, 10:20
    driver of automobile, passenger            Misrepresentation actions, 19:14,
          against intoxicated driver,               19:20
          10:24, 10:26                         Signing and signature, 10:3-10:5
    emotional distress, allegation             Trial considerations, 9:3, 9:12
          accompanying cause of action       PREJUDICE OR BIAS
          for, 10:19, 10:23, 10:28             Remittitur, size of verdict, 18:7
    false arrest, claim against town for,
          10:21                              PRESS, FREEDOM OF
    negligence actions, generally,             Generally, 3:4
    rear-end collision, action against       PRESUMPTIONS AND BURDEN
          intoxicated host driver, 10:26         OF PROOF
    red light, action against intoxicated      Generally, 9:10
          host driver for failure stop at,     Legislative reforms, 21:15
          10:26                                Misrepresentation actions, 19:15,
    speeding, action against                        19:21
          intoxicated host driver, 10:26       Professional liability, 17:3-17:17
    ultrahazardous activity, claim in        PRETRIAL DISCOVERY
          cause of action involving,
          10:22                                Products liability actions, 6:30
    wrongful death actions, negligent        PRIVATE ATTORNEYS GENERAL
          overmedication by nursing            Control of multiple awards, 5:32
          home and sta, 10:25
  Toxic contamination of real property,      PRIVILEGES AND IMMUNITIES
       10:32                                   Civil rights litigation, immunity from
  Toxins, action against building owner             punitive damages, 15:6, 15:14,
       and contractor for exposure dur-             15:23
       ing renovation of building,
       10:28                                 PRODUCTS LIABILITY
  Ultrahazardous activity, claim in            Generally, 6:1-6:39
       cause of action involving, 10:22        Alternatives to punitive damages,
  VeriŽcation of pleadings, 10:9                    6:13
  Workmen's compensation                       Awards, generally, 6:19-6:27
    bad faith allegations against              BeneŽts of product outweighing
          insurer, 10:16, 10:17                     harm, 6:24

                  Punitive Damages Law and Practice Second Edition

  Compensatory damages as sucient           Public policy as to strict liability,
        deterrent, 6:7                            generally, 6:7-6:14
  Computer, use in organizing claims,        Representative cases, 6:39
        6:32                                 Roginsky and Toole: The Battlelines
  Conclusions as to public policy                 Formed, 6:5
        issues, 6:14                         Statutes, generally, 6:36-6:38
  Conduct warranting damages, 6:19           Strict liability, 6:4-6:27
  Constitutional challenges to strict        Summary of award of damages, 6:27
        liability, 6:6                       Tools at plainti's disposal in
  Cost of doing business, punitive dam-           organizing claim, 6:31, 6:32
        ages as, 6:12
                                             Trial strategy, 6:30, 6:33
  Drug manufacturer actions, multiple
        defendants in, 6:35                  Underlying cause of actions, 6:16,
  Equity of punishing shareholders,
        6:10                                 Warranty, breach of, 6:3
  Evidence justifying award                PROFESSIONAL LIABILITY
     generally, 6:20-6:26                    Generally, 17:1-17:20
     beneŽts of product outweighing
                                             Abuse of process and malicious pros-
           harm, 6:24
                                                  ecution, 17:10
     fraud, 6:26
                                             Accountants, 17:14
     industry standards, 6:25
     knowledge of defect, 6:21               Architects, 17:16
     precautionary or remedial steps,        Attorneys, 17:8-17:10
           failure to take, 6:23             Burden of proof, 17:3-17:17
     proŽt motive, 6:22                      Defenses, 17:18
  Forms. Pleading Forms (this index)         Duty of professionals, 17:2
  Fraud, 6:26                                Engineers, 17:15
  Industry standards justifying awards,      Evidence, burden of proof, 17:3-
        6:25                                      17:17
  Insurance coverage removing punish-        Fraud, 17:11
        ment-deterrent eect, 6:11
                                             Legal malpractice, 17:9
  Introduction, 6:1
  Knowledge of defect, 6:21                  Malfeasance, misfeasance, and
                                                  nonfeasance by medical profes-
  Majority view of underlying cause of            sional, 17:5-17:7
        action, 6:18
  Model Uniform Products Act, 6:37           Malicious prosecution and abuse of
                                                  process, 17:10
  Nature of claims, 6:15-6:18
                                             Medical professionals, 17:4-17:7
  Negligence, 6:2
  Organizing punitive damages claim,         Other professionals, 17:13-17:17
        generally, 6:28-6:35                 Pharmacists, 17:17
  Plainti's claim, organization of,         Presumptions and burden of proof,
        generally, 6:28-6:35                      17:3-17:17
  Precautionary or remedial steps, fail-     Statutory liability, 17:12
        ure to take, 6:23                    Statutory prohibition on damages,
  Preliminary considerations, 6:29                17:19
  Pretrial discovery, 6:30                   Summary, 17:20
  ProŽt motive as evidence justifying        Types of conduct warranting award
        award, 6:22                               of punitive damages, 17:4


PROFIT AND LOSS                            REMITTITUR
  Motive as evidence justifying award,      Additur and Remittitur (this index)
                                           RESPONDEAT SUPERIOR
    DAMAGES                                 Vicarious Liability (this index)
  Jurisdictions prohibiting, 4:6-4:11
PUBLICATION                                 Limitations and Restrictions (this
  Defamation by, 13:7                           index)
PUBLIC POLICY                              ROGINSKY AND TOOLE
  Contribution or apportionment of          Products liability, Roginsky and
       damages, 16:6                            Toole: The Battlelines Formed,
  Federal tax consequences of damage            6:5
       awards, 14:15
                                           SALES AND TRANSFERS
  Strict liability in products liability
       actions, generally, 6:7-6:14          Assets transferred prior to judgment,
RECIDIVISM                                   Judgment, transfer of assets prior to,
 Deterrence, damages as, 2:7-2:9                  5:20
                                             Pleadings, action for injury to minor
RECKLESS CONDUCT                                  for air gun sold to another
 Generally, 5:3                                   minor, 10:36 (Form)
REFORM PROPOSALS                             Reform, sales proposals, 21:5
 Generally, 21:1-21:13                       Successor corporations, transferred
 ABA proposals, 21:11                             assets, 22:10
 Alliance of American insurers             SCIENTER
      proposals, 21:8                        Misrepresentation actions, evidence
 American law institute proposals,               of scienter, 19:11
 American Tort Reform Association,         SEARCH AND SEIZURE
      21:13                                  Eviction of tenant and seizure of
 Arnold proposals, 21:3                           property, pleadings, 10:27
 Columbia legislative drafting                    (Form)
      research fund proposals, 21:9          Police ocers, pleadings in actions
 Defense bar proposals, 21:2                      under Federal Court Civil Rights
 Farmers insurance group proposals,               Act, 10:29 (Form)
      21:6                                 SEPARATE TRIALS
 Introduction, 21:1
                                             Bifurcation of Trial (this index)
 Kasten proposals, 21:4
 Legislative Reform (this index)           SETOFF
 Louisiana trial lawyers association         Plainti's punitive damages, 2:11
      proposals, 21:10
 Owen proposals, 21:7                      SETTLEMENTS
 Sales proposals, 21:5                       Contribution or apportionment of
                                                  damages, 16:10
REMEDIAL STEPS                               Federal tax consequences for award
 Punitive damages, failure to take                of damages, 14:8, 14:12
      precautionary or remedial steps,       Pleadings, rejection of settlement
      6:23                                        oers, 10:18 (Form)

                   Punitive Damages Law and Practice Second Edition

  Employment, actions for discrimina-        Generally, 22:1-22:11
     tion based on sex, 10:31 (Form)         Assumption of liability, purchase
                                                  agreement, 22:4
                                             Cessation of oending misconduct,
                                             Continuation of operation or product
  Pleading forms, 10:14                           line, 22:7, 22:8
SICKNESS OR ILLNESS                          DeŽnition, 22:1
  Federal taxation consequences of           Identity, 22:6
      damage awards for, 14:3                Introduction, 22:3
                                             Liability, generally, 22:2
                                             Misconduct, cessation of, 22:9
                                             Operations, continuation of, 22:7
  Conict of laws, 23:5, 23:6, 23:15
                                             Policy considerations, 22:11
SIGNING AND SIGNATURE                        Product line, continuation of, 22:8
  Pleadings, 10:3-10:5 (Forms)               Purchase agreement, 22:4
                                             Transferred assets, 22:10
SLANDER AND LIBEL                            Vicarious liability, 22:5
  Defamation actions, generally, 13:4
  Instructions to jury, 11:24, 11:25       SUMMARY OF STATES’
SPECIFIC ISSUE TEST                          Generally, Table 4-1
  Conict of laws, 23:17
SPEECH, FREEDOM OF                          Generally, 14:1-14:15
  Generally, 3:4                            Avoidance of taxation, evidence of
SPITE OR MALICE                                   plans for, 14:10
  Instructions to jury, 11:24, 11:25        Business defamation, 14:7
                                            Business-related expenses, deduct-
STATE STATUTES                                    ibility of, 14:13
  See also more speciŽc entries             Commissioner v. Glenshaw Glass
  Bifurcation of trial, judicial discre-          Company, 14:2
       tion, 12:8                           Deductibility of damages, 14:13-
  Bifurcation of trial, 12:5-12:9
                                              generally, 14:5-14:7
  Excess liability actions, 8:5
                                              business defamation, 14:7
  Pleadings, statutory references, 10:7
       (Form)                                 personal defamation, 14:6
  Products liability actions, 6:36-6:38     Evidence
  Professional liability for damages,         avoidance of taxation, plans for,
       17:12, 17:19                                  14:10
  Statutory actions and penalty provi-        litigation records as, 14:11
       sions, 5:11                            receipt of damages for personal
                                                     injuries, proof of, 14:9
STRICT LIABILITY                              settlement agreements, 14:12
  Civil rights litigation, 15:20            Federal tax consequences of punitive
  Products liability actions, generally,          damage awards, generally, 14:1-
       6:4-6:27                                   14:15


TAXATION—Cont’d                          TRIAL—Cont’d
 Individual deductibility, 14:15          Defenses, 9:11-9:17
 Introduction, 14:1                       Discovery
 Litigation records as evidence, 14:11       generally, 9:9
 Miscellaneous awards and settle-            products liability actions, pretrial
      ments, 14:8                                  discovery, 6:30
 Personal injuries, 14:3, 14:4, 14:9      Evidence and witnesses
 Public policy issues, 14:14                 burden of proof, 9:10
 Receipt of damages for personal             discovery, supra
      injuries, proof of, 14:9            Full faith and credit, 9:20
 Records of litigation as evidence,       Interest on money, postjudgment
      14:11                                     considerations, 9:18
 Settlement agreements, 14:8, 14:12       Jurisdiction, 9:4
 Sickness or illness, receipt of dam-     Jury and Jury Trial (this index)
      ages on account of, 14:3            Multiple parties, 9:6, 9:7
TEXAS                                     Pleadings, 9:3, 9:12
 Compensatory damages, Texas treat-       Postjudgment considerations, gener-
      ing punitive damages as, 4:5              ally, 9:18-9:20
 Instructions to jury, 11:11              Posttrial stage, 9:17
                                          Pretrial discovery, 6:30
THIRD-PARTY INSURANCE                     Products liability, trial strategy, 6:30,
 Excess liability actions, 8:3                  6:33
                                          Remittitur, trial procedure, 18:2, 18:3
                                          Venue, 9:4
 Conict of laws, 23:22
                                          Verdicts, 9:16
TORTS                                     Voir dire, 9:13
 Generally, 5:8-5:10                     ULTRAHAZARDOUS ACTIVITY
 Contribution among tortfeasors, 16:2     Pleadings in claim for cause of
 Forms. Pleading Forms (this index)            action, 10:22 (Form)
 Liability, generally, 5:8-5:10
 Misrepresentation actions, contract     VENUE
      versus tort, 19:7                   Trial considerations, 9:4
 Wrongful Death Actions (this            VERDICTS
                                          Generally, 9:16
TRADEMARK INFRINGEMENT                    Legislative reform, excessive or inad-
 Instructions to jury, 11:29                  equate verdicts, 21:25
                                          Remittitur, discretion of jury, 18:6
                                         VERIFICATION OF PLEADINGS
 Generally, 9:1-9:20
                                          Forms, 10:9 (Form)
 Additur, trial procedure, 18:2, 18:3
 Bankruptcy, postjudgment                VICARIOUS LIABILITY
     considerations, 9:19                  Generally, 2:4, 24:1-24:12
 Bifurcation of Trial (this index)         Authorization of act by principal,
 Burden of proof, 9:10                          24:3
 Checklists of practical suggestions,      Conduct justifying damages, 5:5
     9:1, 9:2                              Conservative view, 24:2, 24:9
 Conict of laws, 9:5                      De facto business mergers, 24:11
 Death of plainti or defendant, 9:8       Employment discrimination, 24:12

                   Punitive Damages Law and Practice Second Edition

VICARIOUS LIABILITY—Cont’d                 WEALTH—Cont’d
  Governmental bodies and agencies,         Proving defendant's wealth, legisla-
       24:8-24:10                               tive reform, 21:21
  Instructions to jury, 11:26
                                           WEST VIRGINIA
  Liberal view, 24:7, 24:10
                                            Instructions to jury, 11:12
  Managerial agent's acts within scope
       of employment, 24:5                 WISCONSIN
  Punishment, vicarious liability aect-    Instructions to jury, 11:13
       ing, 2:4
  RatiŽcation of agent's act by            WITNESSES
       principal, 24:6                      Evidence and Witnesses (this index)
  Respondeat superior doctrine, 24:1       WORDS AND PHRASES
  Retention of unŽt agent by principal,     DeŽnitions (this index)
  Scope of employment, managerial          WORKERS’ COMPENSATION
       agent's acts within, 24:5            Insurer, bad faith allegations against
  Successor corporations, 22:5                   insurer, 10:16 (Form), 10:17
  Wrongful conduct deterred through,             (Form)
       2:8                                  Third-party manufacturer in
                                                 compensation actions, 10:12
VOIR DIRE                                        (Form)
 Generally, 9:13
                                           WRONGFUL DEATH ACTIONS
WARNINGS                                    Generally, 5:10, 5:35
 Successor corporations, independent        Aggravating circumstances damages
     duty to warn, 22:11                         deemed equivalent to punitive
WARRANTIES                                       damages, 5:10, 5:21
 Products liability, breach of warranty     Amount of damages, 5:19
     actions, 6:3                           Class action against aircraft
                                                 manufacturer, 10:14.5
                                            Overmedication by nursing home and
 Rationale for damages under, 4:16               sta, negligence in, 10:25
WASHINGTON STATE                                 (Form)
 Prohibition of punitive damages, 4:11      Pleading forms, 10:37 (Form)
WEALTH                                     WRONGFUL TERMINATION
 Discovery, 9:9                             Public policy violation, 10:38


Shared By: