INSTRUCTING JURIES ON PUNITIVE DAMAGES: DUE PROCESS
REVISITED AFTER PHILIP MORRIS V. WILLIAMS
*

Sheila B. Scheuerman
**
Anthony J. Franze
INTRODUCTION

Amidst the debate over tort reform—from the annual report on
1
“Judicial Hellholes” to the rankings of the best and worst states for
2
3
reform, to the yearly assessment of the “top 100” verdicts —punitive
*

**

1

2

3

Associate Professor of Law, Charleston School of Law. The authors would like to thank
Meredith R. Miller and Christopher J. Robinette for their helpful comments on earlier
drafts of this Article. In addition, we would like to thank Erica Bedenbaugh and James
Silvers for their excellent research assistance. Errors and omissions are ours alone.
Counsel, Arnold & Porter LLP, Washington, D.C.; Adjunct Professor of Law, Michigan
State University College of Law. During the course of my law practice, I have represented
clients in various appeals involving punitive damages issues, including Philip Morris USA
in the state appellate proceedings in Philip Morris USA v. Williams. Members of Arnold &
Porter LLP also were co-counsel for Philip Morris USA in the Supreme Court. The views
expressed in this Article are solely my own and not those of Arnold & Porter LLP or any
of the firm’s clients.
See, e.g., AM. TORT REFORM FOUND., JUDICIAL HELLHOLES 2007 (2007), http://www.
atra.org/reports/hellholes/report.pdf (discussing jurisdictions in which judges systematically apply laws and court procedures in a manner that is perceived to be both unfair and
unbalanced).
E.g., LAWRENCE J. MCQUILLAN & HOVANNES ABRAMYAN, PAC. RESEARCH INST., U.S. TORT
LIABILITY INDEX:
2006 REPORT (2006), http://special.pacificresearch.org/pub/
sab/entrep/2006/Tort_Index_06.pdf. For a discussion of the ongoing debate over the
nature and existence of a punitive damages crisis, see Anthony J. Sebok, Punitive Damages:
From Myth to Theory, 92 IOWA L. REV. 957, 962–76 (2007) (contrasting empirical studies by
Cass Sunstein, Theodore Eisenberg, and others on whether punitive damages awards are
“out of control”).
Since 2001, the National Law Journal has tracked the top 100 damages verdicts. E.g.,
Leigh Jones, Top 100 Verdicts of 2005: It’s A Harder Sell: Juries Will Make the Injured Whole,
But Big Punitives Are History, NAT’L L.J., Feb. 20, 2006, at S2. Of note, these reports reflect
a sharp decline in the size of punitive damages awards starting in 2003. Compare id. (“Total awards among the top 100 verdicts in 2005 slid for the third straight year, indicating
that juries are becoming ever stingier toward plaintiffs—at least with regard to the punitive damages they dole out.”), with Tresa Baldas, Verdicts Swelling from Big to Bigger: Jurors
Desensitized, or Just Plain Angry, NAT’L L.J., Nov. 25, 2002, at A1 (discussing rising
“megaverdicts” in 2001). Some have speculated that the reported drop is the result of
“defense counsel . . . [being] afraid of outlandish verdicts and . . . willing to settle to avoid
the risks.” Lindsay Fortado, Top 100 Verdicts of 2004: Despite Reputed Crisis, Med-Mal Verdicts Drop: Tort Reformers Talk of Runaway Juries, But Awards Are Down Again, NAT’L L.J.,

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damages remain a hot-button issue. While courts and academics have
focused extensively on the post-verdict due process limits on punitive
4
damages, few have analyzed the constitutionality of trial-level procedures, such as the punitive damages jury instructions used in state
5
and federal courts across the nation.
Shortly after the Supreme Court’s 2003 landmark decision in State
6
Farm Mutual Automobile Insurance Co. v. Campbell, we argued that, although State Farm primarily concerned the standards for post-verdict
review, it also suggested a sea-change in how juries must be instructed

4

5
6

Feb. 21, 2005, at S5 (discussing views of the general counsel to the American Tort Reform
Association). Others view the drop as the result of a “public relations [tort reform] campaign” by industry aimed at convincing the public that juries are out of control. Id. (discussing views of a senior litigator with the Center for Constitutional Litigation). Still others have suggested that the drop could be attributed in part to plaintiffs’ lawyers
exercising more caution in their arguments to the jury in light of the Supreme Court’s
recent decisions limiting punitive damages. See David Hechler, Top 100 Verdicts of 2004:
Smaller At The Top: Big Awards Continue To Drop, As Punitives Decline After 2003’s State
Farm, NAT’L L.J., Feb. 21, 2005, at S2 (“In the wake of State Farm, plaintiffs’ lawyers . . . are
trying to be careful in how they present the ratio . . . .” (internal quotation omitted)).
The potential reasons for the reported decline in the “top 100” punitive damages awards
are beyond the scope of this Article. We note, however, that an award of only one dollar,
if the result of improper procedures or considerations, can be unconstitutional.
E.g., Mathias v. Accor Economy Lodging, Inc., 347 F.3d 672, 674 (7th Cir. 2003) (“The
defendant appeals, complaining primarily about the punitive-damages award. It also
complains about some of the judge’s evidentiary rulings, but these complaints are frivolous and require no discussion.”); Steven L. Chanenson & John Y. Gotanda, The Foggy
Road for Evaluating Punitive Damages: Lifting the Haze from the BMW/State Farm Guideposts,
37 U. MICH. J.L. REFORM 441, 449–65 (2004) (reviewing the first Supreme Court cases to
place constitutional limits on jury awards of punitive damages); Laura J. Hines, Due Process
Limitations on Punitive Damages: Why State Farm Won’t Be the Last Word, 37 AKRON L. REV.
779, 782–89 (2004) (providing a review of the Supreme Court’s pre-2003 punitive damages jurisprudence).
See discussion infra Part III.
538 U.S. 408 (2003). For discussions of the potential impact of State Farm on punitive
damages law and practice, see generally Laura Clark Fey et al., The Supreme Court Raised Its
Voice: Are the Lower Courts Getting the Message? Punitive Damages Trends After State Farm v.
Campbell, 56 BAYLOR L. REV. 807, 858 (2004) (discussing judicial application of State Farm
one year after the decision and concluding that State Farm should be considered a “landmark” case); Lauren R. Goldman & Nickolai G. Levin, State Farm at Three: Lower Courts’
Application of the Ratio Guidepost, 2 N.Y.U. J.L. & BUS. 509, 510–11 (2006) (discussing the
judicial application of State Farm three years after the decision and concluding that “State
Farm has significantly altered the landscape of punitive damages litigation in a wide range
of cases”); Evan M. Tager, The Impact of State Farm v. Campbell: A Two-Year Retrospective,
COVERAGE (ABA Litig. Section, Chicago, Ill.), May/June 2005, at 1 (discussing the judicial
application of State Farm two years after the decision and concluding that it has had a
“mitigating effect” on punitive damages, but that this result was not as substantial as many
anticipated).

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7

to prevent arbitrary decision-making. Before State Farm, due process
challenges to punitive damages instructions were usually futile in
light of the Court’s 1991 approval of broad and amorphous instruc8
tions in Pacific Mutual Life Insurance Co. v. Haslip. Following State
Farm, however, we argued that this “Haslip-minimum” was constitutionally suspect, and that procedural due process requires states to
9
better guide and constrain the jury’s discretion. Specifically, in State
Farm, the Court for the first time stated that a jury must be instructed
on one of the substantive, post-verdict limits recognized by the
10
Court. As we argued then, “[t]his convergence of substantive and
procedural due process suggests that the core limits on punitive
damages, traditionally considered only post-verdict, influence preverdict procedural requirements and therefore should be provided to
11
the jury in the first instance.”
Yet few states revised their model jury instructions after State
12
13
Farm. And, while there were exceptions, courts failed to fully im14
plement State Farm in the instructional context.
On February 20, 2007, however, the Supreme Court issued Philip
15
Morris USA v. Williams (hereinafter Philip Morris), reversing a $79.5
million punitive damages verdict against a tobacco company on the
ground that the jury instruction used at trial failed to safeguard the
16
company’s due process rights. The Court held that “the Constitution’s Due Process Clause forbids a State to use a punitive damages
award to punish a defendant for injury that it inflicts upon nonparties
or those whom they directly represent, i.e., injury that it inflicts upon
17
those who are, essentially, strangers to the litigation.” Because the
plaintiff had argued that the jury should punish Philip Morris for the
7
8
9
10

11
12
13
14
15

16
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Anthony J. Franze & Sheila B. Scheuerman, Instructing Juries on Punitive Damages: Due
Process Revisited After State Farm, 6 U. PA. J. CONST. L. 423 (2004).
499 U.S. 1 (1991). See also Franze & Scheuerman, supra note 7, at 488–98 (discussing
Haslip’s impact on procedural due process challenges).
Franze & Scheuerman, supra note 7, at 517–24.
538 U.S. at 422 (“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.”).
Franze & Scheuerman, supra note 7, at 427.
See discussion infra Part III.
See discussion infra Part III.
See discussion infra Part III.
127 S. Ct. 1057 (2007). For discussions by scholars and practitioners concerning the impact of Philip Morris, see Symposium, Punitive Damages, Due Process, and Deterrence: The Debate After Philip Morris v. Williams, 2 CHARLESTON L. REV. 287, 287–519 (2008).
Philip Morris, 127 S. Ct. at 1064–65.
Id. at 1063.

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harm its alleged conduct caused to nonparties—the injuries to all sick
smokers in the state—and the court failed to instruct the jury on the
18
proper use of this argument, remand was required. In other words,
the substantive prohibition of awards that punish a defendant for
harm-to-others, traditionally considered post-verdict, should have
guided the trial procedures.
Philip Morris did not, however, mandate that courts use particular
19
jury instructions or adopt specific trial or pre-trial procedures.
Rather, “States have some flexibility to determine what kind of proce20
dures they will implement.” At the same time, “it is constitutionally
important for a court to provide assurance that the jury will ask the
21
right question, not the wrong one.”
The core issue after Philip Morris, then, is how courts should ensure that juries ask “the right question, not the wrong one.” To be
22
sure, states are free to experiment with novel procedures or to attempt to exclude certain types of evidence or arguments that may
23
pollute jury decision-making.
The reality, however, is that most
courts will turn to jury instructions as the principal means of guiding
24
the jury. The time, therefore, is ripe to revisit the constitutional requirements for punitive damages jury instructions.
Part I of this Article provides a brief overview of the Supreme
Court’s punitive damages jurisprudence from Haslip to State Farm. It
discusses the Court’s procedural and substantive due process paradigms and how those separate due process limits have merged over
the years. Part II discusses Philip Morris and examines how the decision confirmed that the substantive limits on punitive damages
awards do in fact guide the nature of procedural requirements. Part
III surveys the model jury instructions used in every state and in the
federal courts. This Part explains how most instructions fail to reflect
the substantive limits on punitive damages and, indeed, often direct
juries to consider unconstitutional factors in imposing punitive damages.

18
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20
21
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23
24

Id. at 1065.
See id.
Id.
Id. at 1064.
For arguments urging the need to look beyond “traditional approaches” to punitive damages procedures, see generally Michael P. Allen, Of Remedy, Juries and State Regulation of
Punitive Damages: The Significance of Philip Morris v. Williams, 63 N.Y.U. ANN. SURV. AM. L.
343, 378–79 (2008).
See infra text accompanying notes 296–98.
See infra text accompanying notes 296–99.

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Finally, Part IV identifies the substantive areas on which juries
should now be instructed. This Part argues that Philip Morris rejected
the premise adopted by many courts and model jury instruction
committees after State Farm that the substantive due process limits
apply only post-verdict. Part IV further contends that the Court also
confirmed that the substantive due process limits guide the “reasonableness” of punitive damages jury instructions. We conclude with a
proposal so simple that it should not be controversial: juries should
be told of the constitutional limits by which their awards will be
judged.
I. THE PUNITIVE DAMAGES PARADIGM
Over the past seventeen years, the Supreme Court has developed
a punitive damages framework that imposes both procedural and
substantive due process limits on punitive damages awards. In the
punitive damages context, substantive due process limits the amount
25
of an award—it asks whether an award’s amount is “excessive.” Procedural due process, on the other hand, is not concerned with the
size of the award, but the procedures used to safeguard a defendant’s
26
rights. As Professor Erwin Chemerinsky has explained:
Procedural due process, as the phrase implies, refers to the procedures
that the government must follow before it deprives a person of life, liberty, or property. Classic procedural due process issues concern what
kind of notice and what form of hearing the government must provide
when it takes a particular action.
Substantive due process, as that phrase connotes, asks whether the government has an adequate reason for taking away a person’s life, liberty,
or property. In other words, substantive due process looks to whether
there is a sufficient justification for the government’s action.

25

26

E.g., State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416 (2003) (“The Due
Process Clause of the Fourteenth Amendment prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeasor.”); BMW of N. Am., Inc. v. Gore, 517 U.S.
559, 562 (1996) (recognizing a substantive due process right against a “grossly excessive”
punitive damages award (internal quotation omitted)); TXO Prod. Corp. v. Alliance Res.
Corp., 509 U.S. 443, 453–54 (1993) (plurality opinion) (“[T]he Due Process Clause of the
Fourteenth Amendment imposes substantive limits ‘beyond which penalties may not go.’”
(quoting Seaboard Air Line R. Co. v. Seegers, 207 U.S. 73, 78 (1907))). For a criticism of
the Court’s substantive due process standard, see A. Benjamin Spencer, Due Process and
Punitive Damages: The Error of Federal Excessiveness Jurisprudence, 79 S. CAL. L. REV. 1085,
1088–89 (2006) (arguing that the Court’s substantive due process restrictions on punitive
damages lack precedent and conflict with the constitutional principles of reserved rights
and limited powers).
ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 523–24 (2d ed.
2002).

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....
[An] example of the distinction between procedural and substantive
due process can be found in challenges to large punitive damage awards.
Procedural due process requires that there be safeguards such as instructions to the jury to guide their discretion, and judicial review to ensure
the reasonableness of the awards. Substantive due process prevents ex27
cessive punitive damage awards, regardless of the procedures followed.

Although the distinction is not always noted by lower courts, the Supreme Court’s punitive damages decisions generally can be catego28
rized as addressing either procedural or substantive due process.
29
Indeed, the Court itself has blended the concepts. For instance, the
Court has used the same base legal standard for both substantive and
30
In
procedural due process rights: a “reasonableness standard.”
Haslip, the Court adopted a general “reasonableness and adequate
guidance” test to assess the constitutionality of state punitive damages
31
procedures, including trial-level and post-verdict procedures. In the
first substantive due process decision, TXO Production Corp. v. Alliance
32
Resources Corp., a plurality adopted the same general “reasonableness” standard to assess whether the amount of a punitive damages
33
award is constitutionally excessive.
What “reasonableness” meant for substantive due process was
34
fleshed out in BMW of North America, Inc. v. Gore, and later in State
Farm. In BMW, the Court identified three “guideposts,” applied postverdict, to determine whether an award is constitutionally excessive:
(1) the reprehensibility of the defendant’s conduct; (2) the relationship (or ratio) of punitive to compensatory damages; and (3) the
35
comparable civil or criminal penalties for the defendant’s conduct.
27
28

29
30
31
32
33
34
35

Id. (footnote omitted).
Three of the Court’s punitive damages decisions considered procedural protections. See
Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001); Honda Motor
Co. v. Oberg, 512 U.S. 415 (1994); Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1 (1991).
Another three addressed substantive due process limits. See State Farm, 538 U.S. 408;
BMW, 517 U.S. 559; TXO, 509 U.S. 443. Philip Morris can properly be viewed as covering
both procedural and substantive due process. The substantive component can be seen in
the Court’s ruling prohibiting an award based on harm to non-parties. Philip Morris USA
v. Williams, 127 S. Ct. 1057, 1065 (2007). The procedural component is evident in its
holding that adequate procedures are required to protect the substantive right. Id.
See Franze & Scheuerman, supra note 7, at 511.
See id. (explaining the Court’s use of a “reasonableness” standard in cases involving both
substantive and procedural due process).
499 U.S. at 18.
509 U.S. 443 (plurality opinion).
Id. at 458.
517 U.S. 559 (1996).
Id. at 574–75, 583.

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BMW also suggested, albeit obliquely, that punishing defendants for
out-of-state conduct or for harms the defendant’s conduct imposed
36
on non-parties is constitutionally impermissible.
State Farm further developed the BMW guideposts, holding that
“few awards exceeding a single-digit ratio between punitive and com37
pensatory damages, to a significant degree, will satisfy due process.”
The Court elaborated on the considerations underlying “reprehensi38
bility,” including its conclusion that “[a] defendant’s dissimilar acts,
independent from the acts upon which liability was premised, may
39
not serve as the basis for punitive damages.” Finally, the State Farm
Court confirmed that punishing a defendant for out-of-state conduct
40
is constitutionally improper and further suggested that the Constitution prohibits punishing a defendant for harms its conduct caused
41
non-parties.
Although the Court developed procedural due process standards
42
for post-verdict review of punitive damages, the Court’s consideration of the procedural due process requirements at the trial level
largely remained unexamined until State Farm, where signs of change
emerged. There, the Court noted that a jury must be instructed on a
particular substantive limit prohibiting punishment for out-of-state
43
conduct, thereby implicitly recognizing that substantive due process
44
limits guide “reasonableness” for procedural due process. In other
words, State Farm signaled that substantive limits identified by the
Court, such as the “guideposts” recognized in BMW, should be provided to the jury.

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40

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42

43
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See id. at 572 (“We think it follows from these principles of state sovereignty and comity
that a State may not impose economic sanctions on violators of its laws with the intent of
changing the tortfeasors’ lawful conduct in other States.”).
State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425 (2003).
Id. at 419.
Id. at 422–23. State Farm also noted that a defendant’s wealth “bear[s] no relation to the
award’s reasonableness or proportionality,” id. at 427, though the Court did not bar a
jury’s consideration of a defendant’s wealth.
Id. at 422 (“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.”).
See id. (“[T]he Utah courts erred in relying upon [lawful out-of-state conduct] and other
evidence: The courts awarded punitive damages to punish and deter conduct that bore
no relation to the Campbells’ harm.” (emphasis added)).
Despite being procedural due process cases, Cooper Industries and Oberg focus on postverdict review, not trial-level procedures. Cooper Indus., Inc. v. Leatherman Tool Group,
Inc., 532 U.S. 424, 430 (2001); Honda Motor Co. v. Oberg, 512 U.S. 415, 426–29 (1994).
State Farm, 538 U.S. at 422.
See Franze & Scheuerman, supra note 7, at 507–16.

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After State Farm, some courts and model instruction committees
45
began to incorporate the substantive limits into instructions. Most,
46
however, did not.
The principal stumbling block—beyond the
natural time it takes to implement changes in the law or model instructions—was that State Farm did not explicitly direct that all of the
47
substantive limits be provided to the jury. Thus, courts and committees often operated under a flawed assumption that the procedural
due process limits apply only pre-verdict, and the substantive due
48
process limits apply only post-verdict.
The Supreme Court confronted these views in Philip Morris.
II. PHILIP MORRIS USA V. WILLIAMS
A. The Dispute
Philip Morris involved what might be described as a typical tobacco
49
personal injury case.
For more than forty years, Jesse Williams
50
smoked Marlboro cigarettes manufactured by Philip Morris. Following Williams’s death from lung cancer, his widow sued the company

45

See sources cited infra notes 187–214.

46

See infra Part III. For a discussion of one potential reason for the slow pace of instructional reform, see generally Anthony J. Franze, Clinging to Federalism: How Reluctance To
Amend State Law-Based Punitive Damages Procedures Impedes Due Process, 2 CHARLESTON L.
REV. 297 (2008).

47

See infra text accompanying notes 243–52.

48

See, e.g., White v. Ford Motor Co., No. CV-N-95-0279-DWH, 2003 WL 23353600, at *26 (D.
Nev. Dec. 30, 2003) (finding that a reasonable relationship instruction was not required
under State Farm and concluding that a reasonable relationship inquiry was “inappropriate for jury consideration”); H. Alston Johnson, III, Civil Jury Instructions, in 18 LOUISIANA
CIVIL LAW TREATISE § 18.02 cmt. (2d ed. 2006), available at WL 18 LACIVL § 18.02
(“It . . . remain[s] an open question . . . whether the jury should be told that there may be
constraints on their assessment of punitive damages, i.e., told that such damages might
have to bear a ‘reasonable relationship’ to compensatory damages . . . . The better view is
probably that this is a legal issue for post-verdict motions or appeal, if the punitive damages are claimed to exceed that relationship.”); 2 PA. SUGGESTED STANDARD CIVIL JURY
INSTRUCTIONS § 14.02 subcomm. note (Pa. Bar Inst., 3d ed. 2005) (“Campbell addressed
the standards under which a reviewing court should measure the constitutionality of a
punitive damages award where a due process challenge has been raised, not the standards
a jury should apply in determining punitive damages in the first instance.”).

49

See Williams v. Philip Morris Inc. (Philip Morris V), 127 P.3d 1165 (Or. 2006), rev’d and remanded sub nom., Philip Morris USA v. Williams, 127 S. Ct. 1057 (2007).

50

Id., 127 P.3d at 1168.

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for fraud in Oregon state court, alleging that Philip Morris had lied
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to Mr. Williams about the dangers of smoking.
During closing arguments, the plaintiff’s lawyer urged the jury to
punish Philip Morris not only for the harm the company caused Mr.
Williams, but also for the harm the company’s conduct caused other
smokers—the “other Jesse Williams in the last 40 years in the State of
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Oregon.” In response, Philip Morris proposed an instruction that
directed the jury to limit any punitive award to the harm caused only
54
to Mr. Williams. The trial court, however, rejected the proposed in55
struction. Instead, the court charged the jury, consistent with the
56
state’s model jury instruction, merely that “[p]unitive damages are
awarded against a defendant to punish misconduct and to deter mis57
conduct.” The court further instructed the jury that punitive damages “are not intended to compensate the plaintiff or anyone else for
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damages caused by the defendant’s conduct.”

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52
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56

57
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Plaintiff also brought a negligence claim against Philip Morris. Id. at 1167. The jury,
however, declined to award any punitive damages on this claim. Id. at 1171.
Id. at 1167–68.
Brief for the Petitioner at 3, Philip Morris, 127 S. Ct. 1057 (No. 05–1256), 2006 WL
2190746 (quoting the plaintiff’s closing argument). Plaintiff’s counsel asked the jury to
punish not only for the past forty years of harm, but for future sick smokers as well:
“When you determine the amount of money to award in punitive damages against Philip
Morris . . . . [, i]t’s more than fair to think about how many more are out there in the future.” Id. at 3–4. The Supreme Court further quoted plaintiff’s closing argument: “In
Oregon, how many people do we see outside, driving home . . . smoking cigarettes? . . . [C]igarettes . . . are going to kill ten [of every hundred]. [And] the market
share of Marlboros [i.e., Philip Morris] is one-third [i.e., one of every three killed].”
Philip Morris, 127 S. Ct. at 1061 (alterations in original).
Philip Morris proposed that the jury be charged with the following instruction:
The size of any punishment should bear a reasonable relationship to the harm
caused to Jesse Williams by the defendant’s punishable misconduct. Although you
may consider the extent of harm suffered by others in determining what that reasonable relationship is, you are not to punish the defendant for the impact of its
alleged misconduct on other persons, who may bring lawsuits of their own in
which other juries can resolve their claims and award punitive damages for those
harms, as such other juries see fit.
Philip Morris V, 127 P.3d at 1175 (quoting the defendant’s proposed jury instruction).
Id.
Oregon’s model instruction provides in relevant part: “[Y]ou have the discretion to
award punitive damages. In the exercise of that discretion, you may consider the importance to society in deterring similar misconduct in the future.” OR. UNIF. CIVIL JURY
INSTRUCTIONS § 75.02 (Or. State Bar Comm. on Unif. Civil Jury Instructions, Supp. 2006).
See also infra note 153 (discussing Oregon’s model instruction).
Philip Morris, 127 S. Ct. at 1061 (alteration in original) (quoting the trial judge’s jury instruction).
Id. (internal quotations omitted).

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The jury ultimately awarded the plaintiff $821,000 in compensa59
tory damages and $79.5 million in punitive damages. After substantial post-verdict and appellate wrangling, the case landed in the Su60
preme Court.

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Id. The Oregon Court of Appeals noted that the $79.5 million punitive damages award
was equal to the company’s profits for roughly a two-week period during the year closest
to the trial. Williams v. Philip Morris USA (Philip Morris I), 48 P.3d 824, 841 (Or. Ct. App.
2002), aff’d on reh’g, 51 P.3d 670 (Or. Ct. App. 2002), vacated, 540 U.S. 801 (2003), remanded to 92 P.3d 126 (Or. Ct. App. 2004), aff’d, 127 P.3d 1165 (Or. 2006), vacated, 127 S.
Ct. 1057 (2007), rev’d and remanded sub nom., 127 S. Ct. 1057 (2007), verdict reinstated and
aff’d, 176 P.3d 1255 (Or. 2008), cert. granted, 128 S. Ct. 2904 (2008). Professor Keith N.
Hylton interprets the court’s use of Philip Morris’s profits as an attempt “to eliminate the
company’s gain from fraudulent conduct.” Keith N. Hylton, Reflections on Remedies and
Philip Morris v. Williams 5 (Boston Univ. Sch. of Law Working Paper Series, Law & Econ.,
Working Paper No. 07–06, 2007), available at http://ssrn.com/abstract_id=977998.
The trial court reduced the compensatory award to $521,000 under a state statutory cap,
Philip Morris V, 127 P.3d at 1171, and reduced the punitive damages award to $32 million
under the BMW guideposts. Id. at 1173. On appeal, Philip Morris argued that the punitive damages award violated both procedural and substantive due process. First, the size
of the award, regardless of the procedures used at trial, was so excessive that it violated
due process. It stressed that the $32 million punitive damages award, though reduced
from the jury’s larger award, still violated BMW and pointed to the 39-to-1 ratio of punitive damages to compensatory damages. Philip Morris I, 48 P.3d at 840–41. Second, Philip
Morris challenged the jury instructions used at trial. Id. at 837–38. Plaintiff appealed the
trial court’s reduction of the punitive damages award. Id. at 828. The Oregon Court of
Appeals rejected Philip Morris’s arguments and reinstated the jury’s original $79.5 million jury award. Id. at 824. Philip Morris appealed, and in 2003, the United States Supreme Court “GVR’d” the case (granted the petition, vacated the judgment, and remanded the case) to the Oregon Court of Appeals for reconsideration in light of its
intervening decision in State Farm. Philip Morris USA v. Williams (Philip Morris III), 540
U.S. 801 (2003). On remand, the Oregon Court of Appeals reaffirmed its initial opinion.
Williams v. Philip Morris USA (Philip Morris IV), 92 P.3d 126 (Or. Ct. App. 2004). Notably, the Oregon Court of Appeals relied on Oregon’s state law punitive damages factors
to justify rejection of Philip Morris’s proposed instruction. See id. at 142 (“[Oregon Revised Statute] 30.925(2)(g) requires a jury to consider evidence of punishments already
imposed on the defendant when it considers the amount of an award of punitive damages.”). The court further noted that those factors should be given to a jury. Id. The
Oregon Supreme Court affirmed the $79.5 million award, Philip Morris V, 127 P. 3d at
1168, and Philip Morris again petitioned for certiorari with the United States Supreme
Court. On May 30, 2006, the Supreme Court granted certiorari. Philip Morris USA v.
Williams, 126 S. Ct. 2329 (2006). For the proceeding history after the 2006 certiorari
grant, see infra note 95.

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B. The Supreme Court’s Decision
61

Justice Breyer in a 5-4 decision, joined by Chief Justice Roberts
62
and Justices Alito, Souter, and Kennedy, reversed and remanded the
63
$79.5 million punitive damages award against Philip Morris.
Although the Court had granted review to consider both the excessive64
ness of the award and the jury instruction issue, the Court limited its
decision to whether Oregon’s procedures allowing the jury to punish
65
for harm to non-parties violated the Constitution. The Court found
those procedures, specifically the jury instructions, constitutionally
66
deficient.
1. The Substantive Limit: Prohibiting Punitive Damages Based on Harm
to Non-Parties
In Philip Morris, the Court put to rest an argument urged by the
67
plaintiffs and adopted by the Oregon Court of Appeals that punitive
68
damages could be based on alleged harms to non-parties. Rather,

61

62
63
64

65
66
67
68

Justice Breyer has been in the majority for the Court’s punitive damages opinions since
he joined the Court in 1994. See, e.g., State Farm Mut. Auto. Ins. Co. v. Campbell, 538
U.S. 408 (2003); Cooper Indus. v. Leatherman Tool Group, 532 U.S. 424 (2001); BMW of
N. Am., Inc. v. Gore, 517 U.S. 559 (1996). In BMW, Justice Breyer wrote a separate concurring opinion to explain why the Alabama standards failed to protect against arbitrary
awards. 517 U.S. at 588 (Breyer, J., concurring). See also Franze & Scheuerman, supra
note 7, at 459–60 (discussing Justice Breyer’s concurring opinion).
Philip Morris was the first time Chief Justice Roberts and Justice Alito have considered punitive damages issues as members of the Supreme Court.
See Philip Morris, 127 S. Ct. at 1065.
Id. at 1062. In its petition for certiorari, Philip Morris asked the Court “to consider,
among other things, (1) its claim that Oregon had unconstitutionally permitted it to be
punished for harming nonparty victims; and (2) whether Oregon had in effect disregarded ‘the constitutional requirement that punitive damages be reasonably related to
the plaintiff’s harm.’” Id. (quoting Petition for Writ of Certiorari at I, Philip Morris, 127 S.
Ct. 1057 (No. 05–1256), 2006 WL 849860).
Id. at 1062–63.
Id. at 1065.
See Brief for Respondent at Part IV, Philip Morris, 127 S. Ct. 1057 (No. 05–1256); Philip
Morris I, 48 P.3d at 837.
The plaintiff and court relied on language in TXO Prod. Corp. v. Alliance Res. Corp., 509
U.S. 443 (1993) (plurality opinion), in support of the premise that a jury could award
punitive damages based on harm to non-parties. See Philip Morris I, 48 P.3d at 840–41;
Brief for Respondent, supra note 67, at 27–28. In TXO, the Court upheld a 526-to-1 ratio
by considering “the possible harm to other victims that might have resulted if similar future behavior were not deterred.” 509 U.S. at 460. Accord Franze & Scheuerman, supra
note 7, at 467 n.374 (explaining the “potential harm” analysis of TXO).

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the Court held that the Due Process Clause prohibits a state from
imposing punitive damages based on injuries that the defendant “inflicts upon nonparties or those whom they directly represent, i.e., injury that it inflicts upon those who are, essentially, strangers to the
70
litigation.”
The Court based its conclusion on two main grounds. First, the
Court reasoned that due process guarantees a defendant the “‘oppor71
tunity to present every available defense.’” Allowing a punitive damages award to be based on harm to non-parties would prevent the de72
fendant from raising all possible defenses. For example, the Court
noted that, unlike Mr. Williams, other allegedly injured smokers
73
might have known smoking was dangerous or might not have re74
75
lied upon Philip Morris’s statements about the risks of smoking.
Second, the majority expressed concern that allowing a jury to punish
a defendant based on harm to non-parties “would add a near stan76
77
dardless dimension to the punitive damages equation.” The Court
69

70
71
72
73

74
75

76

Arguably, the Court already closed this door in State Farm. See Franze & Scheuerman, supra note 7, at 499–500 (discussing the Court’s holding that the potential harm analysis
applies only to the plaintiff, not non-parties who also might have been injured by the defendant). Indeed, Philip Morris itself quoted State Farm in support of its conclusion:
“‘[W]e have been reluctant to identify concrete constitutional limits on the ratio between
harm, or potential harm, to the plaintiff and the punitive damages award.’” Philip Morris,
127 S. Ct. at 1063 (quoting State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 424
(2003)) (alteration in original).
Philip Morris, 127 S. Ct. at 1063. See also id. at 1065 (“[T]he Due Process Clause prohibits
a State’s inflicting punishment for harm caused strangers to the litigation.”).
Id. at 1063 (quoting Lindsey v. Normet, 405 U.S. 56, 66 (1972)).
See id.
Under Oregon law, a fraud cause of action requires the plaintiff to show:
(1) a representation; (2) its falsity; (3) its materiality; (4) the speaker’s knowledge
of its falsity or ignorance of its truth; (5) his intent that it should be acted on by
the person and in the manner reasonably contemplated; (6) the hearer’s ignorance of its falsity; (7) his reliance on its truth; (8) his right to rely thereon; (9)
and his consequent and proximate injury.
Estate of Schwarz v. Philip Morris Inc., 135 P.3d 409, 422 (Or. Ct. App. 2006) (quoting
Conzelmann v. N. W. P. & D. Prod. Co., 225 P.2d 757, 764–65 (1950)). Knowledge that
smoking is dangerous would negate the reliance element of the fraud claim.
Lack of reliance would defeat the fraud claim. See supra note 73 (describing elements of
the fraud claim under Oregon law).
See Philip Morris, 127 S. Ct. at 1063 (“Yet a defendant threatened with punishment for injuring a nonparty victim has no opportunity to defend against the charge, by showing, for
example . . . that the other victim was not entitled to damages because he or she knew
that smoking was dangerous or did not rely upon the defendant’s statements to the contrary.”).
Justice Breyer’s language echoes the warnings of Justice O’Connor in Haslip: “The most
modest of procedural safeguards would have made the process substantially more rational
without impairing any legitimate governmental interest. The Court relies heavily on the
State’s mechanism for postverdict judicial review, but this is incapable of curing a grant of

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reasoned that the questions created by the addition of non-party vic78
tims —such as “[h]ow many such victims are there? How seriously
were they injured? Under what circumstances did the injury oc79
cur?”—would add a risk of “arbitrariness [and] uncertainty” and are
80
therefore forbidden by due process.
2. Procedural Safeguards Needed To Protect Substantive Limit
As a threshold matter, the Court emphasized that due process entitles a defendant to procedural protections: “Unless a State insists
upon proper standards that will cabin the jury’s discretionary authority, its punitive damages system may deprive a defendant of ‘fair no81
tice . . . of the severity of the penalty that a State may impose.’”
Thus, the Court “emphasized the need to avoid an arbitrary determi82
nation of an award’s amount.”
The Court further recognized the overlap between the substantive
83
BMW guideposts and constitutionally required process. The majority reaffirmed its determination in State Farm that evidence of a defendant’s harm to others may be used by the jury to gauge the “rep84
rehensibility” of a defendant’s conduct under the BMW guideposts.
The Court explained that “[e]vidence of actual harm to nonparties
can help to show that the conduct that harmed the plaintiff also
posed a substantial risk of harm to the general public, and so was par85
ticularly reprehensible.”
But if such evidence, which could be misused by juries, is admit86
ted, procedural protections must be adopted. The jury may not “use
a punitive damages verdict to punish a defendant directly on account

77
78
79
80

81
82
83
84

85
86

standardless discretion to the jury.” Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 43
(1991) (O’Connor, J., dissenting) (citation omitted).
Philip Morris, 127 S. Ct. at 1063.
See id.
Id.
See, e.g., State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416 (2003) (“The Due
Process Clause of the Fourteenth Amendment prohibits the imposition of . . . arbitrary
punishments on a tortfeasor.”).
Philip Morris, 127 S. Ct. at 1062 (quoting BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 574
(1996)) (first alteration in original).
Id.
See id. at 1063–64.
See id.; see also id. at 1065 (“[A] jury consequently may take [harm to others] into account
in determining reprehensibility.”); Franze & Scheuerman, supra note 7, at 499, 504 (examining State Farm’s discussion of reprehensibility and out-of-state conduct).
Philip Morris, 127 S. Ct. at 1064.
Id. at 1065.

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of harms it is alleged to have visited on nonparties.”
Thus, the
Court held that “the Due Process Clause requires States to provide assurance that juries are not asking the wrong question, i.e., seeking,
not simply to determine reprehensibility, but also to punish for harm
88
caused [to] strangers.”
But what “assurance” is constitutionally required? As the Court itself asked, “[h]ow can we know whether a jury, in taking account of
harm caused others under the rubric of reprehensibility, also seeks to
89
The
punish the defendant for having caused injury to others?”
Court’s answer focused on the most basic procedural due process requirements: “[S]tate courts cannot authorize procedures that create
an unreasonable and unnecessary risk of any such confusion occur90
ring.” Thus, states must ensure that an award of punitive damages is
91
Furthermore, states
not based on arbitrariness, passion, or bias.
must ensure that a punitive damages award is not based on extraterri92
torial conduct.
Beyond those general statements, however, the Court left open
the question of exactly what process is required: “Although the States
have some flexibility to determine what kind of procedures they will
implement, federal constitutional law obligates them to provide some
93
form of protection in appropriate cases.” Ensuring these limits is a
matter of procedural due process: “[I]t is constitutionally important
87
88
89
90
91

92

93

Id. at 1064.
Id.
Id. at 1065.
Id.
See id. at 1064 (noting that consideration of harm to others for reprehensibility purposes
poses “risks of arbitrariness” and implicates “the concern for adequate notice”). Justice
Breyer has advocated this position since BMW. See BMW of N. Am., Inc. v. Gore, 517 U.S.
559, 588 (1996) (Breyer, J., concurring) (“Legal standards need not be precise in order
to satisfy this constitutional concern. . . . But they must offer some kind of constraint
upon a jury or court’s discretion, and thus protection against purely arbitrary behavior.”).
The Court recognized that the risk of a procedural due process violation is heightened
where evidence of harm to others is introduced at trial or where closing arguments focus
on harm to non-parties. See Philip Morris, 127 S. Ct. at 1065 (“In particular, we believe that
where the risk of that misunderstanding is a significant one—because, for instance, of the
sort of evidence that was introduced at trial or the kinds of argument the plaintiff made
to the jury—a court, upon request, must protect against that risk.”).
See Philip Morris, 127 S. Ct. at 1064 (“[P]unitive damages awards can, in practice, impose
one State’s (or one jury’s) policies (e.g., banning cigarettes) upon other States . . . .”); see
also Franze & Scheuerman, supra note 7, at 455–56 (discussing BMW’s recognition of federalism and sovereignty-based limits on punitive damages awards). But see generally Michael P. Allen, The Supreme Court, Punitive Damages and State Sovereignty, 13 GEO. MASON L.
REV. 1 (2004) (rejecting the argument that the Court’s due process analysis incorporates
federalism or sovereignty principles).
Philip Morris, 127 S. Ct. at 1065.

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for a court to provide assurance that the jury will ask the right ques94
tion, not the wrong one.”
Because the Oregon courts had assumed a punitive award could
be based on harm to non-parties, the Supreme Court held that “the
Oregon Supreme Court applied the wrong constitutional standard
when considering Philip Morris’ appeal” and remanded the case “so
that the Oregon Supreme Court can apply the standard” set forth in
95
Philip Morris.

94
95

Id. at 1064.
Id. at 1065. Upon remand, the Oregon Supreme Court reinstated and affirmed the $79.5
million punitive damages award. Williams v. Philip Morris Inc., 176 P.3d 1255 (Or. 2008),
cert. granted, 128 S. Ct. 2904 (2008). This time, however, the court relied on new state law
grounds. Id. at 1260. The court concluded that Philip Morris USA’s proposed
instruction failed to correctly state the statutory state law factors. Id. at 1263–64.
Specifically, the court faulted the use of the word “may” in describing the factors that the
jury could consider in determining the amount of a punitive damages award. Id. at 1262–
63. Rather, the court found that the instruction should have used the word “shall”
because the statutory factors were mandatory. Id. The court also found that the
proposed instruction misstated the Oregon standard for consideration of the defendant’s
wealth. Id. at 1263. But see infra text accompanying notes 276–91 (discussing
constitutional problems posed by financial condition instructions). The Oregon
Supreme Court’s reliance on these two new state law grounds constitutes a transparent
attempt to avoid further review by the United States Supreme Court. See, e.g., Michigan v.
Long, 463 U.S. 1032, 1039 (1983) (holding that presence of independent and adequate
state ground precludes review by the Supreme Court); see also Williams, 176 P.3d at 1260
(finding that remand rests “on an independent and adequate state ground for affirming
the trial judge’s ruling”). The Oregon Supreme Court’s remand decision has been
criticized as unprincipled and results-oriented. See, e.g., Anthony J. Sebok, The Oregon
Supreme Court Once Again Affirms a Blockbuster Punitive Damages Award Against Philip
Morris—Even in the Face of a U.S. Supreme Court Decision Seemingly to the Contrary, FINDLAW,
Feb. 12, 2008, http://writ.news.findlaw.com/sebok/20080212.html (“I would like the
United States Supreme Court to take some time out of its busy schedule to vacate the
recent Oregon decision, and to remand with instructions that the jury verdict to be
retried with instructions that do not violate the Constitution. That would be a fitting
response to a state court that seems to think that winning is the only thing that matters.”).
Just before this Article went to press, on June 9, 2008, the Supreme Court granted
certiorari, but limited its review to whether the Oregon Supreme Court’s use of a state
law procedural bar was proper. Philip Morris USA v. Williams, 128 S. Ct. 2904 (2008); see
also Petition for a Writ of Certiorari, Philip Morris USA v. Williams, No. 07–1216, available
at 2008 WL 795148.

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C. Justice Stevens’s Dissent
96

In his first dissenting opinion in a punitive damages case, Justice
97
Stevens appeared to reverse his stance on punitive damages. On the
one hand, he reiterated his view that State Farm and BMW were “cor98
rectly decided.” In Philip Morris, however, Justice Stevens viewed the
due process prohibition on punishment based on harm to others as
99
“novel,” and found the “distinction between taking third-party harm
into account in order to assess the reprehensibility of the defendant’s
conduct—which is permitted—from doing so in order to punish the
100
defendant ‘directly’—which is forbidden,” to be an elusive nuance.
101
Justice Stevens, in seeming contrast to his position in State Farm and
102
BMW, saw “no reason why an interest in punishing a wrongdoer for
harming persons who are not before the court should not be taken
into consideration when assessing the appropriate sanction for rep103
rehensible conduct.”
Justice Stevens justified his position by focusing on the purposes
104
of punitive damages: “retribution and deterrence.” Justice Stevens
noted that criminal sentencing permits consideration of prior crimes
96

97
98

99
100
101
102

103
104

See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 411 (2003) (majority opinion joined by Justice Stevens); Cooper Indus., Inc. v. Leatherman Tool Group, 532 U.S.
424, 426 (2001) (majority opinion authored by Justice Stevens); BMW, 517 U.S. at 562
(majority opinion authored by Justice Stevens); Honda Motor Co. v. Oberg, 512 U.S. 415,
418 (1994) (majority opinion authored by Justice Stevens); TXO Prod. Corp. v. Alliance
Res. Corp., 509 U.S. 443, 446 (1993) (plurality opinion authored by Justice Stevens).
See Philip Morris, 127 S. Ct. at 1065–67 (Stevens, J., dissenting).
Id. at 1066. In both of those opinions, the Court hinted at what Philip Morris made clear.
In State Farm, for example, the Court stated that “[d]ue process does not permit courts, in
the calculation of punitive damages, to adjudicate the merits of other parties’ hypothetical claims against a defendant under the guise of the reprehensibility analysis.” State
Farm, 538 U.S. at 423. See also BMW, 517 U.S. at 573–74 (rejecting reliance on defendant’s out-of-state conduct, which is necessarily directed at non-parties).
Philip Morris, 127 S. Ct. at 1066 (Stevens, J., dissenting). See also id. at 1067 (characterizing
the Court’s decision as a “new rule of substantive law”).
Id. at 1066–67.
538 U.S. at 423.
517 U.S. at 574 n.21. In BMW, the Court found that a punitive damages award cannot be
used to punish out-of-state conduct that was lawful where it occurred. Id. See also Franze
& Scheuerman, supra note 7, at 455–56 (discussing out-of-state conduct ruling in BMW).
Philip Morris, 127 S. Ct. at 1066 (Stevens, J., dissenting) (internal quotation and citation
omitted).
Id. See also State Farm, 538 U.S. at 409 (“[P]unitive damages should be awarded only if the
defendant’s culpability is so reprehensible to warrant the imposition of further sanctions
to achieve punishment or deterrence.”); BMW, 517 U.S. at 568 (“Punitive damages may
properly be imposed to further a State’s legitimate interests in punishing unlawful conduct and deterring its repetition.”); Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 19 (1991)
(“[P]unitive damages are imposed for purposes of retribution and deterrence.”).

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(i.e., harm to others) “as an aggravating factor in penalizing the con105
106
By analogy, Justice Stevens found it perduct before the court.”
missible “to enhance a penalty [of punitive damages] because the
conduct before the court, which has never been punished, injured
107
multiple victims.”
Finally, Justice Stevens commented on the practical difficulty of
the Court’s opinion: “When a jury increases a punitive damages
award because injuries to third parties enhanced the reprehensibility
of the defendant’s conduct, the jury is by definition punishing the de108
fendant—directly—for third-party harm.”
D. Justice Thomas’s Dissent
Justice Thomas wrote separately to reiterate his originalism-based
109
110
view, exemplified by dissenting opinions in BMW and State Farm,
that the Due Process Clause does not constrain the size of a punitive

105

106

107
108
109

110

Philip Morris, 127 S. Ct. at 1067 n.2 (Stevens, J., dissenting). Justice Stevens explained: “A
murderer who kills his victim by throwing a bomb that injures dozens of bystanders
should be punished more severely than one who harms no one other than his intended
victim.” Id. at 1067.
Justice Stevens recognized the weakness in his analogy: the Court has rejected treating
punitive damages as a criminal sanction. Id. at 1066 n.1. In Browning-Ferris Indus. of Vt.,
Inc. v. Kelco Disposal, Inc., the Court rejected an Excessive Fines Clause challenge to punitive damages awards. 492 U.S. 257, 262–76 (1989). However, Justice Stevens expressed
his view that Browning-Ferris was wrongly decided and that the Excessive Fines Clause applies to punitive damages awards. Philip Morris, 127 S. Ct. at 1066 n.1 (Stevens, J., dissenting); see also Sheila B. Scheuerman, The Road Not Taken: Would Application of the Excessive
Fines Clause to Punitive Damages Have Made a Difference?, 17 WIDENER L.J. 949 (2008) (concluding that applying the Excessive Fines Clause, as suggested by Justice Stevens, would
not have materially changed the current state of punitive damages jurisprudence). Justice Stevens further found that Oregon’s split-recovery statute, authorizing partial payment of a punitive damages award to the State, supported his view that punitive damages
awards should be treated as criminal sanctions. Philip Morris, 127 S. Ct. at 1066 (Stevens,
J., dissenting). See also Catherine M. Sharkey, Punitive Damages as Societal Damages, 113
YALE L.J. 347, 375–80 (2003) (describing normative goals of split-recovery statutes).
Philip Morris, 127 S. Ct. at 1067 n.2 (Stevens, J., dissenting).
Id. at 1067.
In BMW, Justice Thomas joined Justice Scalia’s dissenting opinion. See BMW, 517 U.S. at
598 (Scalia, J., dissenting) (“[T]he Constitution does not make [the size of punitive damages awards] any of our business . . . .”); cf. Cooper Indus., Inc. v. Leatherman Tool
Group, 532 U.S. 424, 443 (2001) (Thomas, J., concurring) (“[T]he Constitution does not
constrain the size of punitive damages awards.”).
State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 429 (2003) (Thomas, J., dissenting) (“I continue to believe that the Constitution does not constrain the size of punitive
damages awards.” (quoting Cooper Indus., 532 U.S. at 443 (Thomas, J., concurring))).

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damages award.
Notably, Justice Thomas recognized that the
Court’s procedural due process ruling was an “implementation of the
substantive due process regime this Court has created for punitive
112
damages.”
E. Justice Ginsburg’s Dissent
113

Justice Ginsburg, joined by Justices Scalia and Thomas, also is114
sued a separate dissenting opinion. Justice Ginsburg believed that
the Oregon Supreme Court’s decision was consistent with the major115
ity’s position. She viewed the majority’s opinion as requiring a jury
instruction explaining the proper use of harm-to-others evidence:
“The Court thus conveys that, when punitive damages are at issue, a
jury is properly instructed to consider the extent of harm suffered by
others as a measure of reprehensibility, but not to mete out punish116
ment for injuries in fact sustained by nonparties.” In Justice Ginsburg’s opinion, the Oregon judgment was consistent with that admo117
nition.
In addition, Justice Ginsburg found Philip Morris’s proposed jury
118
instruction to be confusing and noted that Philip Morris did not
preserve any objection to the charges actually given—a conclusion
119
Finally, Justice
shared by the Oregon Supreme Court on remand.
Ginsburg reiterated her views set forth in her dissenting opinions in

111

112
113

114

115
116
117
118
119

See Philip Morris, 127 S. Ct. at 1067–68 (Thomas, J., dissenting). Justice Thomas also
joined in Justice Ginsburg’s dissenting opinion. See infra text accompanying notes 113–
20.
Philip Morris, 127 S. Ct. at 1067 (Thomas, J., dissenting).
For the first time in a punitive damages case, Justice Scalia did not write separately to express his disagreement with the substantive due process limits on punitive damages
awards. Cf. State Farm, 538 U.S. at 429 (Scalia, J., dissenting); Cooper Indus., 532 U.S. at
443 (Scalia, J., concurring in judgment); BMW, 517 U.S. at 598 (Scalia, J., dissenting);
TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443, 470 (1993) (Scalia, J., concurring
in judgment). His failure to join Justice Thomas’s dissenting opinion is curious, but perhaps reflects an acceptance of stare decisis.
Philip Morris, 127 S. Ct. at 1068–69 (Ginsburg, J., dissenting). Though he did not join
Justice Ginsburg’s opinion, Justice Stevens expressed his agreement “with Justice Ginsburg’s explanation of why no procedural error even arguably justifying reversal occurred
at the trial in this case.” Id. at 1066 (Stevens, J., dissenting).
See id. at 1068 (Ginsburg, J., dissenting).
Id. (emphasis added).
See id. (“The Court identifies no evidence introduced and no charge delivered inconsistent with that inquiry.”).
See id. at 1069 (“A judge seeking to enlighten rather than confuse surely would resist delivering the requested charge.”).
See id.; see also supra note 95 discussing the remand decision.

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BMW and State Farm that deference should be given to state court rul120
ings on punitive damages.

III. HOW CURRENT TRIAL COURT PROCEDURES FAIL TO DIRECT JURIES
TO THE “RIGHT QUESTION”
As noted, Philip Morris did not mandate that courts use specific
121
jury instructions. Rather, “States have some flexibility to determine
122
what kind of procedures they will implement.” At the same time, “it
is constitutionally important for a court to provide assurance that the
123
jury will ask the right question, not the wrong one.” As a practical
matter, trying to get juries to ask the right question means either excluding potentially confusing evidence and argument, or expressly
advising the jury on the right questions in the form of jury instruc124
tions.
Simply put, in any punitive damages case that reaches the
jury, a court cannot escape the question of whether the instructions
sufficiently protect against “an unreasonable and unnecessary risk of
125
any such [jury] confusion occurring.”
126
Traditionally, courts have relied heavily on model instructions
and, for a variety of reasons, are reluctant to depart from these mod-

120

121
122
123
124

125
126

See Philip Morris, 127 S. Ct. at 1069 (Ginsburg, J., dissenting) (“I would accord more respectful treatment to the proceedings and dispositions of state courts that sought diligently to adhere to our changing, less than crystalline precedent.”); see also State Farm
Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 430 (2003) (Ginsburg, J., dissenting);
BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 607 (1996) (Ginsburg, J., dissenting); Franze
& Scheuerman, supra note 7, at 462 nn.330–33, 507 nn.586–91 (discussing Justice Ginsburg’s dissents in BMW and State Farm).
See supra text accompanying notes 90–94.
Philip Morris, 127 S. Ct. at 1065.
Id. at 1064.
Alternatively, states could remove the question of punitive damages from the jury’s consideration entirely. Indeed, Kansas and Ohio already have done so. See infra notes 130 &
136 (noting that under Kansas and Ohio law, the court assesses the amount of punitive
damages); see also CASS R. SUNSTEIN ET AL., PUNITIVE DAMAGES: HOW JURIES DECIDE 242–
58 (2002) (concluding that an optimal system would not involve a jury assessment of the
amount of punitive damages). Assuming punitive damages remain a jury question, however, exclusion of confusing evidence or argument, or provision of proper instructions
provide the principal procedural devices available to courts.
Philip Morris, 127 S. Ct. at 1065.
Both here and in our prior article, we discuss each jurisdiction’s “official” model instruction—those approved by the state courts or developed by state bar committees. See
Franze & Scheuerman, supra note 7, at 469 n.379. Still, some jurisdictions do not have
model punitive damages instructions. In those jurisdictions, parties often rely on “unofficial” model instructions published by lawyers in the state. Both this Article and our prior

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els. In 2004, we examined the model punitive damages instructions
in all fifty states, the District of Columbia, and federal courts, and we
grouped the instructions into three main categories:
• Haslip-minimum instructions: Instructions similar to the one
approved by the Court in Haslip that merely advises the jury to
consider three factors: (1) the purpose and nature of punitive
damages; (2) the principle that punitive damages constitute punishment for civil wrongdoing; and (3) an explanation that the im128
position of punitive damages is not compulsory.
• Haslip-plus-wealth instructions: Instructions that provide the
Haslip-minimum but also advise the jury to consider the financial
condition of the defendant when setting the amount of the
129
award.
• Multi-factor instructions: Instructions that advise juries to consider a number of factors, typically based on state law. Some, but
130
not all of the factors, are consistent with the federal guideposts.

127
128
129
130

article, see id., discuss these “unofficial” pattern instructions and note when a discussed instruction is not “official.”
See discussion infra Part III.A.
See Franze & Scheuerman, supra note 7, at 470–73; see also infra Part III.A.1.
See Franze & Scheuerman, supra note 7, at 473–75; see also infra Part III.A.2.
See Franze & Scheuerman, supra note 7, at 476–85; see also infra Part III.A.3. In addition,
as noted in our prior article, several states impose unique limits on punitive damages that
are reflected in the model instructions, none of which have changed in light of State Farm.
See Franze & Scheuerman, supra note 7, at 485–86. Connecticut limits the amount of punitive damages to the plaintiff’s trial costs. See, e.g., DOUGLAS B. WRIGHT & WILLIAM L.
ANKERMAN, 1 CONNECTICUT JURY INSTRUCTIONS (CIVIL) § 256(b) (4th ed. 1993) (“The
measure of [punitive] damages is the reasonable expense which [the plaintiff] has incurred, including counsel fees, in prosecuting this action, less the taxable costs, which if
he recovers, will be included in the judgment . . . .”). Kansas does not allow the jury to assess the amount of punitive damages. See PATTERN INSTRUCTIONS KAN.: CIVIL § 171.44
(Kan. Judicial Council PIK-Civil Advisory Comm., 3d ed. 2005) (informing the jury that
the court will conduct a hearing post-trial to determine the amount of punitive damages);
see, e.g., Trendel v. Rogers, 955 P.2d 150, 152 (Kan. Ct. App. 1998) (“The trier of fact determines if punitive damages should be awarded, and then the court, in a separate proceeding, establishes the amount of the award.”). New Hampshire generally prohibits punitive damages. See Franze & Scheuerman, supra note 7, at 486 n.448. Although New
Hampshire allows “enhanced damages” or “liberal compensatory damages,” WALTER L.
MURPHY & DANIEL C. POPE, NEW HAMPSHIRE CIVIL JURY INSTRUCTIONS § 9.14 (1994),
these damages are not awarded to punish the defendant. See Murray v. Dev. Servs. of Sullivan County, Inc., 818 A.2d 302, 308 (N.H. 2003) (“‘The reason behind awarding a verdict to the plaintiff is not to punish the defendant for any wrongdoing, but to compensate
the plaintiff for the injuries incurred as a result of the defendant’s legal fault.’”) (quoting
the trial court’s jury instructions). Nebraska generally bars punitive damages and therefore does not have a model punitive damages instruction. See 1 NEB. JURY INSTRUCTIONS:
CIVIL § 4 (Neb. Supreme Court Comm. on Practice & Procedure, 2d ed. 2008); see also
Franze & Scheuerman, supra note 7, at 492 n.447. Oklahoma incorporates a statutory cap

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We found that, without exception, the instructions used by state and
federal courts pre-State Farm either failed to provide any meaningful
guidance or were apt to direct juries to consider factors that con131
flicted with substantive due process limits on punitive damages. Little has changed since State Farm.
A. State Model Jury Instructions Post-State Farm
1. States Using Haslip-Minimum Instructions
Ten states continue to use model instructions comparable to the
132
“‘skeletal guidance’” approved by the Court seventeen years ago in
133
Haslip. Alabama’s model instruction, reviewed and approved by the
134
Court in Haslip, remains virtually unchanged since Haslip.
Mis135
136
137
138
139
souri, Ohio, Utah, Vermont, and Virginia have not changed

131
132

133
134

135

on punitive damages into its jury instructions. See OKLA. UNIFORM JURY INSTRUCTIONS:
CIVIL § 5.9 (Okla. Supreme Court Comm. for Uniform Jury Instructions, 2d ed. 2007).
See Franze & Scheuerman, supra note 7, at 470–88.
Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 63 (1991) (O’Connor, J., dissenting) (quoting Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 281 (1989)
(Brennan, J., concurring)).
These Haslip-like jurisdictions include Alabama, Colorado, Louisiana, Michigan, Missouri,
Ohio, Utah, Vermont, Virginia, and Washington.
See 1 ALA. PATTERN JURY INSTRUCTIONS CIVIL § 11.03 (Ala. Pattern Jury Instructions
Comm.—Civil, 2d ed. 2006), available at WL AL–APJICIV 11.03. This instruction provides
in relevant part:
The purpose of awarding punitive or exemplary damages is to allow money recovery to the plaintiff by way of punishment to the defendant, and for the added
purpose of protecting the public by deterring the defendant and others from doing such wrong in the future. The imposition of punitive damages is entirely discretionary with the jury. Should you award punitive damages, in fixing the
amount, you must take into consideration the character and degree of the wrong
as shown by the evidence in the case, and the necessity of preventing similar
wrongs.
Id. As in 2004, the Alabama instruction for punitive damages in libel cases provides the
same general information. Id. § 23.21. The Alabama instruction for fraud still does not
even live up to the Haslip components. Id. § 18.01.
See MO. APPROVED JURY INSTRUCTIONS (CIVIL) § 10.01 (Mo. Sup. Ct. Comm. on Civil Jury
Instructions 2008), available at WL MAI 10.01 (instructing the jury in the context of intentional tort cases that “if you believe the conduct of defendant . . . was outrageous . . . you
may award plaintiff an additional amount as punitive damages in such sum as you believe
will serve to punish defendant and to deter defendant and others from like conduct”); id.
§ 10.02, available at WL MAI 10.02 (providing similar instruction for conscious disregard
negligence cases); id. § 10.04, available at WL MAI 10.04 (providing similar instruction for
strict liability, product defect, or failure to warn cases); id. § 10.05, available at WL MAI
10.05 (providing similar instruction for product defect and failure to warn cases); id.
§ 10.06, available at WL MAI 10.06 (providing similar instruction for negligence and strict
liability cases); id. § 10.07, available at WL MAI 10.07 (providing similar instruction for
conscious disregard with specific acts/knowledge cases); id. § 4.15–4.16, available at WL

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MAI 4.15–4.16 (providing similar instruction for defamation cases); cf. Franze &
Scheuerman, supra note 7, at 471 n.394 (quoting the same).
See 1 OHIO JURY INSTRUCTIONS § 23.71 (Ohio Judicial Conference 2006), available at WL 1
OJI 23.71. This instruction provides in relevant part:
You will also decide whether the defendant shall be liable for punitive damages in
addition to any other damages that you award to the plaintiff. The purposes of
punitive damages are to punish the offending party and to make the offending
party an example to discourage others from similar conduct. You may decide that
the defendant is liable for punitive damages if you find by clear and convincing
evidence that . . . the defendant's acts or failures to act demonstrated malice, aggravated or egregious fraud, oppression, or insult . . . .
Id. Cf. Franze & Scheuerman, supra note 7, at 472 n.398 (quoting a previous version of
the jury instruction). Pursuant to a 2007 statute, the amount of damages in a products liability case is determined by the court. OHIO REV. STAT. § 2307.80(B) (2007). Notably,
the court is required to consider multiple factors in determining the amount, including
“[t]he total effect of other punishment imposed or likely to be imposed upon the manufacturer or supplier in question as a result of the misconduct, including awards of punitive or exemplary damages to persons similarly situated to the claimant.”
Id.
§ 2307.80(B)(7).
See MODEL UTAH JURY INSTRUCTIONS—CIVIL § 27.20 (Utah State Bar 1993). This instruction provides in relevant part:
Punitive damages may be awarded only if compensatory or general damages are
awarded and it is established by clear and convincing evidence that the acts or
omissions of the defendant were a result of willful and malicious conduct . . . .
If you find that punitive damages are proper in this case, you may award such
sum as, in your judgment, would be reasonable and proper as a punishment to the
defendant for such wrongs, and as a wholesome warning to others not to offend in
like manner.
Id. Cf. Franze & Scheuerman, supra note 7, at 471 n.395 (quoting the same).
See JOHN M. DINES ET AL., VERMONT JURY INSTRUCTIONS, CIVIL AND CRIMINAL § 7.46
(1993). This instruction was drafted by private parties and is not official. The instruction
provides in relevant part:
[P]unitive damages are awarded not to compensate (plaintiff) for any injury he
(she) may have suffered, but instead to punish (defendant) for his (her) conduct
and to deter (defendant) and others from acting in the same way.
As a general rule, punitive damages may be recovered in any action based on a
defendant’s tortious conduct. However, such damages are not recoverable as a
matter of legal right. Punitive damages may be awarded only when liability of the
defendant for actual damages has been established. Whether punitive damages
will be allowed and, if so, in what amount, is entirely within the discretion of the
jury.
Id. Cf. Franze & Scheuerman, supra note 7, at 473 n.400 (quoting the same). In addition,
the Vermont Bar Association has prepared model jury instructions. PLAIN ENGLISH JURY
INSTRUCTIONS No. 3.8 (Vt. Civil Jury Instruction Comm. 2005), available at
http://www.vtbar.org/Upload%20Files/WebPages/Attorney%20Resources/juryinstructi
ons/civiljuryinstructions/Civiljury.htm. The Bar Association’s model instruction, however, falls into the Haslip-plus-wealth category:
Punitive damages do not compensate plaintiffs for losses, but instead are meant to
punish for behavior and to stop others from acting similarly in the future.
....
In determining the amount of punitive damages, you should consider the
character and standing of [Name of Defendant], [his/her/its] financial status,
and the degree of bad motive or personal ill will in [his/her/its] acts.

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their Haslip-like instructions since State Farm. Indeed, for corporate
defendants, Vermont’s (unofficial) model instruction still facially
conflicts with the BMW guideposts, instructing the jury that the
“award of punitive damages need not bear any relationship to the
140
underlying compensatory damage award.”
141
142
143
The models in Colorado, Louisiana, and Michigan fail to
meet the Haslip-minimum, though these states have unique limitations on punitive damages.

139

140
141

142

143

Id. (brackets in original). But see id. No. 1.4 (using Haslip-like instruction for consumer
fraud cases), available at http://www.vtbar.org/Upload%20Files/WebPages/Attorney%
20Resources/juryinstructions/civiljuryinstructions/Civiljury.htm#CF14.
See VA. MODEL JURY INSTRUCTIONS—CIVIL NO. 9–080 (Model Jury Instructions Comm.
2007). This instruction provides in relevant part:
If you find that the plaintiff is entitled to be compensated for his damages, and
if you further believe by the greater weight of the evidence that the defendant
acted with actual malice toward the plaintiff or acted under circumstances
amounting to a willful and wanton disregard of the plaintiff’s rights, then you may
also award punitive damages to the plaintiff to punish the defendant for his actions and to serve as an example to prevent others from acting in a similar way.
Id. Cf. Franze & Scheuerman, supra note 7, at 472 n.396 (quoting the same). Since our
last Article, the numbering of the Virginia Model Instructions has changed. An “unofficial” Virginia model provides no more guidance:
Punitive Damages . . . are something in addition to full compensation, not given as
the plaintiff’s due, but as a punishment to the defendant and as a warning and example to deter him and others from committing like wrongs.
. . . [Y]ou may award the plaintiff such additional sum as punitive damages as
in your opinion are called for by the circumstances of the case.
RONALD J. BACIGAL & JOSEPH S. TATE, VIRGINIA PRACTICE SERIES § 23:17 (2007), available
at WL VAPRAC JI § 23:17.
DINES ET AL., supra note 138, § 7.47 (quotation omitted).
In 2004, Colorado fell into the “unique” category because its punitive damages instruction reflected a statutory cap on punitive damages. See Franze & Scheuerman, supra note
7, at 485–86 & n.443. The current instruction, however, provides the following guidance:
If you find beyond a reasonable doubt that the defendant acted in a (fraudulent)
(malicious) (willful and wanton) manner, in causing the plaintiff’s (injuries)
(damages) (losses), you shall determine the amount of punitive damages, if any,
that the plaintiff should recover.
Punitive damages, if awarded, are to punish the defendant and to serve as an
example to others.
COLO. JURY INSTRUCTIONS—CIVIL § 5:3 (Colo. Sup. Ct. Comm. on Civil Jury Instructions,
4th ed. 2006). Colorado’s statutory cap remains in effect and limits the amount of punitive damages to an amount no greater than the compensatory award. COLO. REV. STAT.
§ 13–21–102(1)(a) (2005).
Johnson, supra note 48, § 18.11 (instructing the jury that Louisiana does not permit punitive damages); id. § 18.02 (providing minimal guidance in model punitive damages
charge for hazardous substance cases). See also Ross v. Conoco, Inc., 828 So. 2d 546, 555
(La. 2002) (noting that Louisiana generally prohibits punitive damages unless authorized
by state statute).
See Casey v. Auto Owners Ins. Co., 729 N.W.2d 277, 286 (Mich. Ct. App. 2006) (noting
that Michigan generally prohibits punitive damages unless authorized by statute). Although Michigan allows “exemplary damages” in certain cases, these damages are considered an additional category of compensation rather than punishment. See McPeak v.

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Although punitive damages generally are not allowed under its
144
state law, Washington revised its model punitive damages instruc145
tion after State Farm.
Nevertheless, Washington still uses a basic
Haslip-minimum with the addition of a reasonable relationship com146
ponent.
In short, the Haslip-minimum provides scant guidance, and while
it does not affirmatively direct juries to the wrong question, it does
not guide them to the right one.
2. States Using “Haslip-plus-wealth” Instructions Post-State Farm
Eight states plus the District of Columbia continue to use “Haslip147
148
149
150
plus-wealth” instructions.
Arizona, Florida, Hawaii, Missis-

144

145
146

147

McPeak, 593 N.W.2d 180, 184 (Mich. Ct. App. 1999). This concept of “exemplary damages” as compensatory damages is reflected in Michigan’s official model jury instructions.
See 1 MICH. MODEL CIVIL JURY INSTRUCTIONS § 118.21 (Mich. Sup. Ct. Comm. on Model
Civil Jury Instructions 2008), available at http://courts.mi.gov/mcji/intentionaltorts/printCh118.htm. The unofficial model instructions, however, includes a charge on
“punitive damages” in addition to the “exemplary damages”: “[Y]ou may add to the
award of actual damages an amount you agree is proper as punitive and exemplary damages.” TIMOTHY BAUGHMAN ET AL, MICHIGAN NON-STANDARD JURY INSTRUCTIONS, CIVIL
§ 13.1 (2007), available at WL MI–NSJICV § 13:1 (emphasis added).
Washington generally prohibits punitive damages unless authorized by statute. WASH.
REV. CODE. ANN. § 64.34.100(1) (West 2005). Accordingly, the Washington Pattern Jury
Instructions do not include a basic punitive damages instruction. WASH. PATTERN JURY
INSTRUCTIONS—CIVIL § 35.01 (Wash. Sup. Ct. Comm. on Jury Instructions 2005), available
at WL 6 WAPRAC WPI 35.01. The pattern instructions, however, include a model for civil
rights actions. Id. § 348.02, available at WL 6 WAPRAC WPI 348.02.
See id. § 348.02 cmt.
See id. The pattern instruction provides:
If you find for (name of plaintiff), and if you award compensatory or nominal
damages, you may award punitive damages. You are not required to do so. The
purposes of punitive damages are not to compensate a plaintiff but rather to punish a defendant and to deter a defendant and others from committing similar acts
in the future.
....
. . . If you find that punitive damages are appropriate, you must use reason in
setting the amount. Punitive damages, if any, should be in an amount sufficient to
fulfill the purposes stated above, but should not reflect bias, prejudice, or sympathy toward any party. The amount of any punitive damages should also bear a reasonable relationship to any injury or harm actually or potentially suffered by
(name of plaintiff).
Id. § 348.02. The committee believed that adding the reasonable relationship sentence
“incorporate[d] holdings from Campbell, Cooper Industries, and Gore [sic].” Id. at 348.02
cmt.
“Haslip-plus-wealth” instructions include a consideration of the defendant’s wealth in addition to the Haslip-minimum. See supra text accompanying note 128 (explaining Haslipminimum). These states include Arizona, Arkansas, Florida, Hawaii, Mississippi, Nevada,
Oregon, and Texas.

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153

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sippi, Nevada, Oregon, and Texas, as well as the District of Co155
lumbia, have not materially changed their instructions in light of
148

149

150

151

See REVISED ARIZ. JURY INSTRUCTIONS (CIVIL)—PERSONAL INJURY DAMAGES 4 (Ariz. Civil
Jury Instructions Comm., 4th ed. 2005). The pattern instruction provides in relevant
part:
If you find [name of defendant] liable to [name of plaintiff], you may consider assessing additional damages to punish [name of defendant] or to deter [name of defendant] and others from similar misconduct in the future.
....
The law provides no fixed standard for the amount of punitive damages you
may assess, if any, but leaves the amount to your discretion. [However, if you assess punitive damages, you may consider the character of [name of defendant]’s
conduct or motive, the nature and extent of the harm to plaintiff that [name of defendant] caused, and the nature and extent of defendant’s financial wealth.]
Id. (brackets in original) (footnote omitted). Cf. Franze & Scheuerman, supra note 7, at
474 n.407 (quoting the same). The Civil Jury Instructions Committee expressly declined
to revise the instruction in light of State Farm. REVISED ARIZ. JURY INSTRUCTIONS (CIVIL)—
PERSONAL INJURY DAMAGES 4 cmt. 3 (Ariz. Civil Jury Instructions Comm., 5th ed. 2005)
(“Because of the developing constitutional law in this area, the Committee has elected
not to make substantive modifications to the RAJI Instruction on Punitive Damages. The
trial court should assess whether changes to the instruction are appropriate based on
Campbell and other decisions addressing constitutional issues.”) (citations omitted).
See FLA. STANDARD JURY INSTRUCTIONS IN CIVIL CASES § PD 2 (Fla. Sup. Ct. Comm. on
Standard Jury Instructions 2004). This instruction provides in relevant part:
In determining the amount of punitive damages, if any, to be assessed as punishment and as a deterrent to others, you should consider the following:
(1) the nature, extent and degree of misconduct and the related circumstances;
[(2) [the] [each] defendant’s financial resources; and]
[(3) any other circumstance which may affect the amount of punitive damages.]
Id. (brackets in original) (footnotes omitted). Cf. Franze & Scheuerman, supra note 7, at
474 n.409 (quoting the same). Although Florida amended its punitive damages instruction in 2004, the changes did not address State Farm or otherwise materially change the
instruction. See FLA. STANDARD JURY INSTRUCTIONS IN CIVIL CASES § PD 2 (Fla. Sup. Ct.
Comm. on Standard Jury Instructions 2004). The Committee is considering whether to
revise the instruction further in light of State Farm. See id. § PD.
See HAW. JURY INSTRUCTIONS § 8.12 (Haw. Civil Pattern Jury Instructions Comm. 2008),
available at WL HI R CIV JURY Instr. 8.12. This instruction provides in relevant part:
The purposes of punitive damages are to punish the wrongdoer and to serve as an
example or warning to the wrongdoer and others not to engage in such conduct.
....
The proper measure of punitive damages is (1) the degree of intentional, willful, wanton, oppressive, malicious or grossly negligent conduct that formed the basis for your prior award of damages against that defendant and (2) the amount of
money required to punish that defendant considering his/her/its financial condition. In determining the degree of a particular defendant’s conduct, you must
analyze that defendant’s state of mind at the time he/she/it committed the conduct which formed the basis for your prior award of damages against that defendant. Any punitive damages you award must be reasonable.
Id. Cf. Franze & Scheuerman, supra note 7, at 475 n.410 (quoting the same).
See MISS. MODEL JURY INSTRUCTIONS CIVIL § 11:15 (Miss. Judicial Coll. 2007), available at
WL MSPRACJIC § 11:15. This instruction provides in relevant part:
In assessing the amount of punitive damages, if any, which are appropriate in this
cause, you may consider:

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1. The financial condition and net worth of the defendant;
2. The nature and reprehensibility of the defendant’s wrongdoing, for example, the impact on the plaintiff, or the relationship of the plaintiff and
defendant;
3. The defendant’s awareness of the amount of harm being caused and the
defendant’s motivation for causing same;
4. The duration of the defendant’s misconduct and whether the defendant
attempted to conceal it;
5. Any other relevant factor shown by the evidence.
Id. Cf. Franze & Scheuerman, supra note 7, at 475 n.411 (quoting the same).
See NEV. PATTERN JURY INSTRUCTIONS, CIVIL, No. 10.20 (State Bar of Nev. 1986). This instruction provides in relevant part:
The law provides no fixed standards as to the amount of such punitive damages, but leaves the amount to the jury’s sound discretion, exercised without passion or prejudice.
In arriving at any award of punitive damages, you are to consider the following:
1. The reprehensibility of the conduct of the defendant;
2. The amount of punitive damages which will have a deterrent effect on
the defendant in the light of defendant’s financial condition.
Id. Cf. Franze & Scheuerman, supra note 7, at 475 n.412 (quoting the same).
See OR. UNIF. CIVIL JURY INSTRUCTIONS § 75.02 (Or. State Bar Comm. on Unif. Civil Jury
Instructions, Supp. 2006). This instruction provides in relevant part:
If you decide that the defendant has acted as claimed by the plaintiff, you have
the discretion to award punitive damages. In the exercise of that discretion, you
may consider the importance to society in deterring similar misconduct in the future.
If you decide to award punitive damages, you may consider the following items
in fixing the amount:
1. The character of the defendant’s conduct;
2. The defendant’s motive;
3. The sum of money that would be required to discourage the defendant
and others from engaging in such conduct in the future; and
4. The income and assets of the defendant.
The amount of punitive damages you award may not exceed $ [amount of
plaintiff’s prayer].
Id. (brackets in original). The Oregon State Bar Committee on Uniform Civil Jury Instructions noted that “[i]t may be necessary to instruct the jury on certain federal constitutional limits on punitive damages,” but did not provide any model language. Id. at cmt.
(citing Estate of Schwarz v. Philip Morris Inc., 135 P.3d 409 (Or. Ct. App. 2006)). In
Schwarz, the Oregon Court of Appeals held that a state may not punish a defendant for
out-of-state conduct that causes out-of-state harm. Id. In a concurring opinion, Judge
Linder noted that due process required that such an out-of-state instruction must be
given to the jury. Id. at 439 (Linder, J., concurring). Judge Linder reasoned that such a
“limiting instruction [was] required by the Due Process Clause,” and therefore, must be
given regardless of whether the defendant requested an out-of-state conduct instruction
or whether any requested instruction was even correct. Id. at 440.
See TEX. PATTERN JURY CHARGES § 8.6C (State Bar of Tex. Comm. on Pattern Jury Charges
2006). This instruction provides in relevant part:
“Exemplary damages” means any damages awarded as a penalty or by way of
punishment but not for compensatory purposes. Exemplary damages includes
punitive damages.
Factors to consider in awarding exemplary damages, if any, are—
a. The nature of the wrong.
b. The character of the conduct involved.
c. The degree of culpability of the wrongdoer.
d. The situation and sensibilities of the parties concerned.

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State Farm. Although Arkansas amended its instruction to include an
156
out-of-state conduct provision, it retained an instruction that the
157
jury should consider the defendant’s financial position.

155

156
157

e. The extent to which such conduct offends a public sense of justice and
propriety.
f. The net worth of [the defendant].
Id. (applying to actions filed on or after September 1, 2003). See also id. § 8.6B (Comm.
on Pattern Jury Charges of the State Bar of Tex. 2006) (providing similar instruction for
actions accruing on or after September 1, 1995, and filed before September 1, 2003); id.
§ 8.6A (providing similar instruction for actions accruing before September 1, 1995); cf.
Franze & Scheuerman, supra note 7, at 476 n.415 (quoting the 2002 version with identical
text). Over time, the definition of “exemplary damages” has changed somewhat in Texas.
Compare TEX. PATTERN JURY CHARGES: GEN. NEGLIGENCE, INTENTIONAL PERSONAL TORTS
§ 8.6C (State Bar of Tex. Comm. on Pattern Jury Charges 2006) (defining exemplary
damages as “any damages awarded as a penalty or by way of punishment but not for compensatory purposes”), with id. § 8.6B (defining exemplary damages as “damages awarded
as a penalty or by way of punishment”), and id. § 8.6A (defining exemplary damages as
“an amount that you may in your discretion award as an example to others and as a penalty or by way of punishment, in addition to any amount that you may have found as actual damages”).
1 STANDARDIZED CIVIL JURY INSTRUCTIONS FOR D.C. § 16.03 (Young Lawyers Section of the
Bar Ass’n of the D.C. 2006), available at LEXIS 1–16 Civil Jury Instructions for DC § 16.03.
This instruction provides:
If you find that the plaintiff is entitled to an award of punitive damages, then
you must decide the amount of the award. To determine the amount of the award
you may consider the [net worth] relative wealth of the defendant at the time of
trial, the nature of the wrong committed, the state of mind of the defendant when
the wrong was committed, the cost and duration of the litigation, and any attorney’s fees that the plaintiff has incurred in this case. Your award should be sufficient to punish the defendant for his or her conduct and to serve as an example to
prevent others from acting in a similar way.
Id. (brackets in original). Cf. Franze & Scheuerman, supra note 7, at 474 n.408 (quoting
the same).
See infra notes 226–27 and accompanying text (discussing Arkansas’ extraterritoriality instruction).
See ARK. MODEL JURY INSTRUCTIONS—CIVIL § 2218 (Ark. Sup. Ct. Comm. on Jury Instructions—Civil 2008), available at WL AR-JICIV AMI 2218. This instruction provides in relevant part:
Punitive damages may be imposed to punish a wrongdoer and to deter the wrongdoer and others from similar conduct. In order to recover punitive damages from
(defendant), (plaintiff) has the burden of proving [malice or intentional conduct].
....
[In arriving at the amount of punitive damages you may consider the financial
condition of (defendant), as shown by the evidence.]
....
You are not required to assess punitive damages against (defendant) but you
may do so if justified by the evidence.
Id. (second set of brackets in original). Cf. Franze & Scheuerman, supra note 7, at 474
n.405 (quoting the same). In Boerner v. Brown & Williamson Tobacco Co., 394 F.3d 594,
603–04 (8th Cir. 2005), the court concluded that the Arkansas instruction passed muster
under State Farm. But see id. at 606 (Bye, J., concurring) (concluding that Section 2218
did not satisfy State Farm).

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The Haslip-plus-wealth instructions are problematic because they
158
may direct juries to consider unconstitutional factors. For instance,
if a jury considers a corporate defendant’s profits from the alleged
wrongdoing in setting the award, it could be considering both harm
to non-parties and extraterritorial conduct of the defendant. In Romo
159
v. Ford Motor Co., for instance, the California Court of Appeal found
that California’s model jury instruction regarding wealth violated due
160
Romo was a products liability suit that
process under State Farm.
161
arose from the fatal rollover of a 1978 Ford Bronco. The jury was
instructed under Book of Approved Jury Instructions (BAJI)
No. 14.71 that in arriving at a punitive damages award, it should consider “‘[t]he amount of punitive damages which will have a deterrent
effect on the defendant in the [sic] light of defendant’s financial

158

But see Boerner, 394 F.3d at 603–04 (upholding Arkansas’s Haslip-plus-wealth instruction
under State Farm); Seltzer v. Morton, 154 P.3d 561, 596–98 (Mont. 2007) (upholding a
jury instruction to consider the defendant’s financial condition in determining punitive
damages); Gilbert v. Sec. Fin. Corp. of Okla., 152 P.3d 165, 178 (Okla. 2006) (concluding
that the factors in Oklahoma’s model instruction “do not run afoul of Gore and Campbell”); see also Acevedo-Luis v. Pagán, 478 F.3d 35, 39–40 (1st Cir. 2007) (upholding jury
instruction to consider defendant’s financial worth in assessing punitive damages in light
of state law challenge).

159

6 Cal. Rptr. 3d 793 (Cal. Ct. App. 2003), abrogated by Johnson v. Ford Motor Co., 113 P.3d
82, 97 (Cal. 2005). See also Valente v. UnumProvident Corp., No. A110056, 2006 WL
2512507, at *4 (Cal. Ct. App. Aug. 31, 2006) (noting that Johnson effectively overruled
Romo). The California courts appear to be in a state of confusion over the proper use of a
defendant’s wealth. See Henley v. Philip Morris Inc., 9 Cal. Rptr. 3d 29, 74 (Cal. Ct. App.
2004) (“Defendant correctly notes that the constitutional soundness of the third consideration has been rendered uncertain by [State Farm’s] seemingly categorical rejection of
the Utah Supreme Court’s reliance on the defendant’s ‘massive wealth’ as one justification for the award there.”); accord Century Sur. Co. v. Polisso, 43 Cal. Rptr. 3d 468, 495–97
(Cal. Ct. App. 2006) (upholding CAL. CIVIL JURY INSTRUCTIONS (BAJI) § 14.72.6 (Comm.
on Cal. Civil Jury Instructions 2007) in face of challenge that instruction improperly permits consideration of wealth); Alberts v. Franklin, No. D040310, 2004 WL 1345078, at *29
(Cal. Ct. App. June 16, 2004) (upholding CAL. CIVIL JURY INSTRUCTIONS (BAJI) § 14.72.2
(Comm. on Cal. Civil Jury Instructions 2007) because consideration of a defendant’s
wealth “does not render the overall instruction on punitive damages constitutionally infirm”); Bettelman Recreation Enters. v. City of S. El Monte, No. B155511, 2004 WL
1545404, at *9 (Cal. Ct. App. July 12, 2004) (upholding CAL. CIVIL JURY INSTRUCTIONS
(BAJI) § 14.71 (Comm. on Cal. Civil Jury Instructions 2007), in the face of a challenge
that the instruction improperly permitted consideration of wealth). But see infra note
166. The Johnson Court further stated that “due process does not prohibit state courts, in
awarding or reviewing punitive damages, from considering the defendant’s illegal or
wrongful conduct toward others that was similar to the tortious conduct that injured the
plaintiff or plaintiffs.” 113 P.3d at 90–91; see also id. at 92 (concluding that State Farm “did
not limit the concept to punishment and deterrence purely on behalf of the plaintiff”).
Accordingly, Johnson is itself suspect after Philip Morris.

160

Romo, 6 Cal. Rptr. 3d at 802.

161

Id. at 797–98.

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condition.’” The jury awarded the plaintiffs $5 million in compen163
The Calisatory damages and $290 million in punitive damages.
fornia Court of Appeal concluded that consideration of the defendant’s financial condition “fail[ed] to restrict the jury to punishment
and deterrence based solely on the harm to the plaintiffs, as appar164
ently required by federal due process.”
The court found that the
defendant’s wealth was an appropriate factor under State Farm, but
concluded that the jury’s use of wealth must be limited “only to determine the appropriate punishment for the present malicious conduct, not as a gauge for the imposition of a penalty that will actually
deter the entire type or course of conduct that affected these plain165
tiffs.”
Romo, although later implicitly abrogated by the California Su166
preme Court, is instructive. The case reflects the link between arguments, such as those in Philip Morris, expressly focused on harms to
non-parties, and other factors that may likewise direct the jury to pun167
ish a defendant based on this improper consideration.
Thus, in162
163
164

165
166

167

Id. at 805 (alteration in original) (quoting the trial court’s instruction).
Id. at 798.
Id. at 805. By contrast, in Century Surety the California Court of Appeal (Third District)
upheld California’s model instruction against a State Farm challenge. 43 Cal. Rptr. 3d at
496. In Century Surety, the defendant argued that California’s model instruction, CAL.
CIVIL JURY INSTRUCTIONS (BAJI) § 14.72.6 (Comm. on Cal. Civil Jury Instructions 2007),
violated BMW and State Farm “because it direct[ed] the jury to consider the defendant’s
financial condition in order to determine the amount of punitive damages that will have
a deterrent effect on the defendant.” Id. at 495. The court noted that a defendant’s financial condition has long been recognized as an essential factor in determining a punitive damage award. Id. (citing Adams v. Murakami, 813 P.2d 1348, 1350–52 (Cal. 1991)).
Relying on Simon v. San Paolo U.S. Holding Co., Inc., 113 P.3d 63 (Cal. 2005), the court determined that “‘the defendant’s financial condition remains a legitimate consideration in
setting punitive damages.’” Century Surety, 43 Cal. Rptr. 3d at 496. See also cases cited supra note 159.
Romo, 6 Cal. Rptr. 3d at 805 n.7.
See Johnson, 113 P.3d at 97 (criticizing Romo as “incorrectly suggest[ing] that due process
requires appellate review that is blind to the state’s interest in punishing and deterring a
wrongful corporate practice”); see also Valente v. UnumProvident Corp., No. A110056,
2006 WL 2512507, at *4 (Cal. Ct. App. Aug. 31, 2006) (noting that Johnson effectively
overruled Romo).
Philip Morris implicitly rejected the view, adopted by Romo, that though “the jury was fundamentally misinstructed concerning the amount of punitive damages it could award,” a
court can remedy the due process violation by remitting the punitive damages award to “a
level of punitive damages below which . . . no properly instructed jury was reasonably
likely to go.” Romo, 6 Cal. Rptr. 3d at 804–05. Philip Morris did not seek to read the jury’s
mind and instead remanded for reconsideration. The California Court of Appeal in
Romo reduced the punitive damages award to about $23.7 million. Id. at 812–13. Plaintiffs were given the option of consenting to the reduced award or a new trial on the
amount of punitive damages. Id.; cf. White v. Ford Motor Co., 312 F.3d 998, 1016 (9th

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structing a jury to consider a defendant’s wealth can create “an un168
reasonable and unnecessary risk of . . . [jury] confusion occurring.”
169
Yet, with the sole exception of Arkansas, no Haslip-plus-wealth jurisdiction also includes a harm-to-others instruction to prevent juries
from misapplying the wealth instruction.
3. Multi-factor Instructions Post-State Farm
170

Twenty-seven states instruct the jury to consider multiple factors
171
172
173
in setting the amount of punitive damages.
Delaware, Idaho,

168
169
170

171

172

173

Cir. 2002) (finding that no amount of post-verdict remittitur could remedy punitive damages award based on out-of-state conduct), amended on denial of reh’g, 335 F.3d 833 (9th
Cir. 2003).
Philip Morris USA v. Williams, 127 S. Ct. 1057, 1060 (2007).
See supra note 156.
As used both here and in our prior article, multi-factor instructions “typically inform the
jury to consider the reprehensibility of the defendant’s conduct, the financial condition
of the defendant, and, most importantly, the relationship (or proportionality) of the punitive damages to the plaintiff’s harm.” Franze & Scheuerman, supra note 7, at 477.
These states include Alaska, California, Delaware, Georgia, Idaho, Illinois, Indiana, Iowa,
Kentucky, Maine, Maryland, Massachusetts, Minnesota, Montana, New Jersey, New Mexico, New York, North Carolina, North Dakota, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, West Virginia, Wisconsin, and Wyoming.
See DEL. ONLINE CIVIL PATTERN JURY INSTRUCTIONS § 22.27 (Del. Super. Ct. 2000), available at WL DE-JICIV 22.27. This instruction provides in relevant part:
The law provides no fixed standards for the amount of punitive damages but
leaves the amount to your sound discretion, exercised without passion or prejudice. In determining any award of punitive damages, you must consider the following: the reprehensibility or outrageousness of [defendant’s name]’s conduct
and the amount of punitive damages that will deter [defendant’s name] and others like [him/her] from similar conduct in the future. You may consider [defendant’s name]’s financial condition for this purpose only. [Defendant’s name]’s
financial condition must not be considered in assessing compensatory damages.
Any award of punitive damages must bear a reasonable relation to [plaintiff’s
name]’s compensatory or nominal damages.
Id. (brackets in original). Cf. Franze & Scheuerman, supra note 7, at 478 n.420 (quoting
the same).
See IDAHO JURY INSTRUCTIONS No. 9.20 (Idaho Civil Jury Instructions Comm. 2003), available at http://www.isc.idaho.gov/juryinst_cov.htm. This instruction provides in relevant
part:
Punitive damages are not a matter of right, but may be awarded in the jury’s
sound discretion, which is to be exercised without passion or prejudice. The law
provides no mathematical formula by which such damages are to be calculated,
other than any award of punitive damages must bear a reasonable relation to the
actual harm done, to the cause thereof, to the conduct of the defendant, and to
the primary objective of deterrence.
Id. For cases where evidence of the defendant’s wealth was presented to the jury, an alternative instruction includes the language above, but adds the following:
(You have been permitted to hear evidence pertaining to defendant’s wealth
and financial condition. This evidence was admitted for your consideration only
with reference to the question of punitive damages in light of all other evidence
before you if you determine that such an award should be made in this case.)

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176

177

178

Iowa, Maryland, Massachusetts, Montana, New Jersey, New
179
180
181
182
Mexico, New York, North Carolina, Rhode Island, Tennes-

174

175

176

177

Id. No. 9.20.5. Cf. Franze & Scheuerman, supra note 7, at 478, n.421 (quoting the same).
See IOWA CIVIL JURY INSTRUCTIONS No. 210.1 (Iowa State Bar Ass’n 2004). This instruction provides in relevant part:
There is no exact rule to determine the amount of punitive damages, if any,
you should award. In fixing the amount of punitive damages, you may consider all
the evidence including:
1. The nature of defendant’s conduct.
2. The amount of punitive damages which will punish and discourage like
conduct by the defendant in view of [his] [her] [its] financial condition.
3. The plaintiff’s actual damages.
Id. (brackets in original). Cf. Franze & Scheuerman, supra note 7, at 478 n.422 (quoting
the same).
See MD. CIVIL PATTERN JURY INSTRUCTIONS § 10:13 (Md. Pattern Jury Instructions Comm.,
4th ed. 2006), available at WL MPJI MD–CLE S–10–1. This instruction provides in relevant part: “An award for punitive damages should be: (1) In an amount that will deter
the defendant and others from similar conduct. (2) Proportionate to the wrongfulness of
the defendant’s conduct and the defendant’s ability to pay. (3) But not designed to
bankrupt or financially destroy a defendant.” Id. Cf. Franze & Scheuerman, supra note 7,
at 481 n.433 (quoting the same).
See 1 MASS. SUPER. CT. CIVIL PRACTICE JURY INSTRUCTIONS § 5.3.5 (Mass. Continuing Legal
Educ., Inc. 2001), available at WL CIVJII MA–CLE 5–1 (providing a punitive damages instruction for discrimination actions). This instruction provides in relevant part:
In determining the amount of a punitive damage award, if any, you should
consider:
1. the character and nature of the defendant’s conduct;
2. the defendant’s wealth, in order to determine what amount of money is
needed to punish the defendant’s conduct and to deter any future acts of
discrimination;
3. the actual harm suffered by the plaintiff; and
4. the magnitude of any potential harm to other victims if similar future behavior is not deterred.
If you do award punitive damages, you should fix the amount by using calm
discretion and sound reason.
Id. Cf. Franze & Scheuerman, supra note 7, at 479 n.424 (quoting the same). Because
Massachusetts generally prohibits punitive damages unless authorized by statute, it does
not have a general model instruction for punitive damages. See MASS. GEN. LAWS ch. 106,
§ 1–106 (2007).
See MONT. PATTERN INSTRUCTIONS (CIVIL) No. 25.66 (Mont. Sup. Ct. Comm. on Civil Jury
Instructions 2003). This instruction provides in relevant part:
In determining the amount of punitive damages, you should consider all of the
attendant circumstances, including the nature, extent and enormity of the wrong,
the intent of the party committing it, the amount allowed as actual damages, and,
generally, all of the circumstances attending the particular act involved, including
any circumstances which may operate to reduce without wholly defeating punitive
damages.
Punitive damages should be of such an amount as will deter the defendant
from and warn others against similar acts of misconduct. Thus, the wealth of the
defendant is a fact to be considered by you in determining the amount of punitive
damages.
Id. Cf. Franze & Scheuerman, supra note 7, at 479 n.425.

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See N.J. MODEL CIVIL CHARGES § 8.62 (Model Civil Jury Charge Comm. 2007), available at
http://www.judiciary.state.nj.us/civil/civindx.htm. For actions after October 1995, this
instruction provides in relevant part:
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 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 [or] 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.
Finally you should make sure that there is a reasonable relationship between
the actual injury and the punitive damages.
Id. (footnote omitted). Cf. Franze & Scheuerman, supra note 7, at 484 n.439 (quoting an
older version of the instruction with identical text). New Jersey imposes a statutory cap
on punitive damages of “five times the liability of [the] defendant for compensatory damages or $350,000, whichever is greater,” but provides that the jury cannot be informed of
the cap. N.J. STAT. ANN. § 2A:15–5.14 & 5.16 (West 2006).
See 3 MITCHIE’S ANNOTATED RULES OF NEW MEXICO § 13–1827 (2008). This instruction
provides in relevant part:
Punitive damages are awarded for the limited purposes of punishment and to
deter others from the commission of like offenses. The amount of punitive damages must be based on reason and justice taking into account all the circumstances, including the nature of the wrong and such aggravating and mitigating
circumstances as may be shown. The amount awarded, if any, must be reasonably
related to the injury and to any damages given as compensation and not disproportionate to the circumstances.
Id. See also 3 MITCHIE’S ANNOTATED RULES OF NEW MEXICO § 13–861 (2008) (punitive
damages instruction for contracts and UCC sales cases unchanged); id. § 13–1718 (punitive damages instruction for bad faith cases unchanged); id. § 13–1011 (punitive damages
instruction for defamation cases unchanged); cf. Franze & Scheuerman, supra note 7, at
479 n.426 (quoting the same).
See N.Y. PATTERN JURY INSTRUCTIONS—CIVIL § 2:278 (Comm. on Pattern Jury Instructions
Ass’n of Sup. Ct. Justices 2007), available at WL NY PJI 2:278. For negligence actions, this
instruction provides in relevant part:
In arriving at your decision as to the amount of punitive damages you should
consider the nature and reprehensibility of what [the defendant] did. That would
include the character of the wrongdoing ([and any of the following factors where
applicable, such as:] whether [the defendant]’s conduct demonstrated an indifference to, or a reckless disregard of, the health, safety or rights of others, whether
the act(s) (was, were) done with an improper motive or vindictiveness, whether
the act or acts constituted outrageous or oppressive intentional misconduct, how
long the conduct went on, [the defendant]’s awareness of what harm the conduct
caused or was likely to cause, any concealment or covering up of the wrongdoing,
how often [the defendant] had committed similar acts of this type in the past and
the actual and potential harm created by [the defendant]’s conduct [and if appropriate,] (including the harm to individuals or entities other than [the plaintiff]. However, although you may consider the harm to individuals or entities
other than [the plaintiff] in determining the extent to which [the defendant’s]

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conduct was reprehensible, you may not add a specific amount to your punitive
damages award to punish [the defendant] for the harm [it] caused to others.)
The amount of punitive damages that you award must be both reasonable and
proportionate to the actual and potential harm suffered by [the plaintiff], and to
the compensatory damages you awarded [the plaintiff]. The reprehensibility of
[the defendant’s] conduct is an important factor in deciding the amount of punitive damages that would be reasonable and proportionate in view of the harm suffered by [the plaintiff] and the compensatory damages you have awarded [the
plaintiff].
You may also consider [the defendant]’s financial condition and the impact
your punitive damages award will have on [the defendant].
Id. Cf. Franze & Scheuerman, supra note 7, at 479–80 n.427 (quoting the 2003 version
with similar text); N.Y. PATTERN JURY INSTRUCTIONS—CIVIL § 3:30 (Comm. on Pattern
Jury Instructions Ass’n of Sup. Ct. Justices 2007) (punitive damages instruction for defamation cases unchanged); id. § 3:50 (punitive damages instruction for malicious prosecution cases unchanged).
See N.C. PATTERN JURY INSTRUCTIONS FOR CIVIL CASES § 810.98 (N.J. Conference of Super.
Ct. Judges 1988). This instruction provides in relevant part:
Whether to award punitive damages is a matter within the sound discretion of
the jury. Punitive damages are not awarded for the purpose of compensating the
plaintiff for his [injury] [damage], nor are they awarded as a matter of right.
If you decide, in your discretion, to award punitive damages, any amount you
award must bear a rational relationship to the sum reasonably needed to punish
the defendant for egregiously wrongful acts and to deter the defendant and others
from committing similar wrongful acts. In making this determination, you may
consider only that evidence which relates to
[the reprehensibility of the defendant’s motives and conduct]
[the likelihood, at the relevant time, of serious harm (to the plaintiff or others
similarly situated)]
[the degree of the defendant’s awareness of the probable consequences of his
conduct]
[the duration of the defendant’s conduct]
[the actual damages suffered by the plaintiff]
[any concealment by the defendant of the facts or consequences of his conduct]
[the existence and frequency of any similar past conduct by the defendant]
[whether the defendant profited by the conduct]
[the defendant’s ability to pay punitive damages, as evidenced by his revenues
or net worth].
Id. (brackets in original) (footnotes omitted) (emphasis in original). Cf. Franze &
Scheuerman, supra note 7, at 480 n.428 (quoting the same).
See MODEL CIVIL JURY INSTRUCTIONS FOR R.I. § 10403 (R.I. Bar Ass’n 2003). This instruction provides:
You may consider a defendant’s wealth in determining the appropriate
amount of punitive damages. Nevertheless, the amount of punitive damages you
award must reasonably relate to:
a) the character and degree of defendant’s wrongful conduct;
b) the amount of compensatory damages which you award;
c) the impact of the punitive damages on third parties; [and
d) the severity of any civil penalties which the state government could impose
on defendant for such wrongdoing.]
Id. (brackets in original). Cf. Franze & Scheuerman, supra note 7, at 480 n.429 (quoting
2002 version with identical text).

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see, West Virginia, and Wisconsin have not revised their multifactor instructions since State Farm. Likewise, the North Dakota in183

184

See TENN. PATTERN JURY INSTRUCTIONS—CIVIL § 14.56 (Comm. on Pattern Jury Instructions (Civil) of the Tenn. Judicial Conference 2007), available at WL TNPRACJIC 14.56.
This instruction provides in relevant part:
In making your decision [regarding the amount of punitive damages] you
must consider the instructions I have already given you and also the following:
1. The defendant’s net worth and financial condition;
2. The objectionable nature of defendant’s wrongdoing, the impact of the defendant’s conduct on the plaintiff, and the relationship of the parties;
3. The defendant’s awareness of the amount of harm being caused and the
defendant’s motivation in causing the harm;
4. The duration of the defendant’s misconduct and whether the defendant attempted to conceal the conduct;
5. The amount of money the plaintiff has spent in the attempt to recover the
losses;
6. Whether defendant profited from the activity, and if so, whether the punitive award should be in excess of the profit in order to deter similar future
behavior;
7. The number and amount of previous punitive damages awards against the
defendant based upon the same wrongful act;
8. Whether, once the misconduct became known to the defendant, the defendant tried to remedy the situation or offered a prompt and fair settlement for the actual harm caused; and
9. Any other circumstances shown by the evidence that bears on determining
the proper amount of the punitive award.
Id. Cf. Franze & Scheuerman, supra note 7, at 484–85 n.441 (quoting 2002 version with
identical text).
See W. VA. PROPOSED JURY INSTRUCTIONS FOR AUTO. & ROAD LAW PERSONAL INJURY
DAMAGE No. VIII (W. Va. State Bar 2000), at http://www.state.wv.us/wvsca/jury/
auto.htm#VIII (last visited Apr. 12, 2008). This instruction provides in relevant part:
In awarding punitive damages you may consider the following factors:
(1) Punitive damages should bear a reasonable relationship to the harm that is
likely to occur from defendant ______ ’s conduct as well as to the harm that
actually has occurred. If defendant ______’s actions caused or would likely
cause in a similar situation only slight harm, the damages should be relatively small. If the harm is grievous, the damages should be greater.
(2) You may consider whether defendant ______s [sic] conduct was reprehensible, and in doing so you should take into account how long defendant
______ continued in his actions, whether defendant ______ was aware that
its actions were causing or were likely to cause harm, whether defendant
______ attempted to conceal or cover up his actions or the harm caused by
such actions, whether/how often defendant ______ engaged in similar
conduct in the past.
(3) You may consider whether defendant ______ profited from’ [sic] his
wrongful conduct, and if you find defendant ______ did profit from his
conduct you may remove the profit and your award should be in excess of
the profit, so that the award discourages future bad acts by defendant
______.
(4) As a matter of fundamental fairness, punitive damages should bear a reasonable relationship to compensatory damages.
(5) In determining the amount of punitive damages, the financial position of
defendant ______ is relevant.
Id. Cf. Franze & Scheuerman, supra note 7, at 485 n.442 (quoting the same). An “unofficial” model charge suggests using the factors approved by the West Virginia Supreme
Court in Garnes v. Fleming Landfill, Inc., 413 S.E. 2d 897, 909 (W. Va. 1991). MICHIE’S

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struction, while revised after Philip Morris to incorporate a harm-to186
nonparties instruction, did not otherwise change after State Farm.

185

186

INSTRUCTIONS FOR VIRGINIA AND WEST VIRGINIA § 26–132 (5th ed. 2001). Accordingly,
the unofficial model instruction states in relevant part:
(1) Punitive damages should bear a reasonable relationship to the harm that is
likely to occur from the defendant’s conduct as well as to the harm that actually has occurred. If the defendant’s actions caused or would likely cause
in a similar situation only slight harm, the damages should be relatively
small. If the harm is grievous, the damages should be greater.
(2) The jury may consider (although the court need not specifically instruct on
each element if doing so would be unfairly prejudicial to the defendant),
the reprehensibility of the defendant’s conduct. The jury should take into
account how long the defendant continued in his actions, whether he was
aware his actions were causing or were likely to cause harm, whether he attempted to conceal or cover up his actions or the harm caused by them,
whether/how often the defendant engaged in similar conduct in the past,
and whether the defendant made reasonable efforts to make amends by offering a fair and prompt settlement for the actual harm caused once his liability became clear to him.
(3) If the defendant profited from his wrongful conduct, the punitive damages
should remove the profit and should be in excess of the profit, so that the
award discourages future bad acts by the defendant.
(4) As a matter of fundamental fairness, punitive damages should bear a reasonable relationship to compensatory damages.
(5) The financial position of the defendant is relevant.
Id. For a discussion of Garnes, see Franze & Scheuerman, supra note 7, at 494–95 nn.486–
92.
See 2 WIS. JURY INSTRUCTIONS—CIVIL § 1707.2 (Wis. Civil Jury Instructions Comm. 2007).
For products liability actions after May 1995, this instruction provides in relevant part:
If you determine that punitive damages should be awarded, you may then
award such sum as will accomplish the purpose of punishing or deterring wrongful
conduct. Factors you should consider in answering [this question] include:
1. the seriousness of the hazard to the public;
2. the profitability of the misconduct;
3. the attitude and conduct on discovery of the misconduct;
4. the degree of the manufacturer’s awareness of the hazard and of its excessiveness;
5. the employees involved in causing or concealing the misconduct;
6. the duration of both the improper behavior and its concealment;
7. the financial condition of the manufacturer and the probable effect on the
manufacturer of a particular judgment; and
8. the total punishment the manufacturer will probably receive from other
sources.
Id. Cf. Franze & Scheuerman, supra note 7, at 481–82 n.434 (quoting the 2002 version
with identical text).
See N.D. PATTERN JURY INSTRUCTIONS § C–72.00 (State Bar Ass’n of N.D. 2006). This instruction provides in relevant part:
If you decide to use your discretion to award a reasonable sum as exemplary or
punitive damages, then you must also find by clear and convincing evidence that:
1) the amount awarded bears a reasonable relationship to any harm that is
likely to result from the Defendant’s conduct and any harm that actually
has occurred; and
2) the amount awarded is consistent with the degree of reprehensibility of the
Defendant’s conduct and its duration.
[Further, in considering an award of exemplary or punitive damages, you must
also consider:

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Seven states, however, substantively revised their multi-factor puni187
Traditionally a trendtive damages instruction after State Farm.
188
setter in the model jury instructions movement, California’s revised
punitive damages instruction adds a provision on potential harm that
allows broad consideration of harm-to-others, adds factors to assess
the reprehensibility of the defendant’s conduct, and limits consideration of a defendant’s wealth:
There is no fixed formula for determining the amount of punitive
damages, and you are not required to award any punitive damages. If
you decide to award punitive damages, you should consider all of the following in determining the amount:
(a) How reprehensible was [name of defendant]’s conduct? In deciding how reprehensible [name of defendant]’s conduct was, you may
consider, among other factors:
1. Whether the conduct caused physical harm;
2. Whether [name of defendant] disregarded the health or safety of
others;
3. Whether [name of plaintiff] was financially weak or vulnerable
and [name of defendant] knew [name of plaintiff] was financially
weak or vulnerable and took advantage of [him/her/it];
4. Whether [name of defendant]’s conduct involved a pattern or
practice; and
5. Whether [name of defendant] acted with trickery or deceit.
(b) Is there a reasonable relationship between the amount of punitive
damages and [name of plaintiff]’s harm [or between the amount of
punitive damages and potential harm to [name of plaintiff] that [name
of defendant] knew was likely to occur because of [his/her/its] con-

187
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1) the extent to which the Defendant was aware of the conduct or concealed
it;
2) the extent to which the Defendant profited from the conduct and whether
or not it would be desirable to remove that profit or have the Defendant
also sustain a loss;
3) the extent to which the Defendant already has been punished for the same
conduct by criminal sanctions.]
Id. (brackets in original). After Philip Morris, the North Dakota Pattern Jury Commission
approved an additional instruction based on Philip Morris that provides:
In considering an award of exemplary or punitive damages, you may, in determining the reprehensibility of the Defendant’s conduct, consider the harm the
Defendant’s conduct has caused others. You may not, however, punish the Defendant for harm caused to others whose cases are not before you. You may punish the Defendant only for harm done to the Plaintiff.
N.D. PATTERN JURY INSTRUCTIONS § C—72.07 (State Bar Ass’n of N.D. 2007), available at
https://www.ndcourts.com/court/committees/patternjury/Instructions/March2007draf
ts.htm#p7207.
These states include Alaska, California, Kentucky, Maine, Minnesota, Pennsylvania, and
South Dakota.
See Franze & Scheuerman, supra note 7, at 477 & n.418 (noting California is a “leader in
the model jury instruction movement”).

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duct]? [Punitive damages may not be used to punish [name of defendant] for the impact of [his/her/its] alleged misconduct on persons
other than [name of plaintiff].]
(c) In view of [name of defendant]’s financial condition, what amount
is necessary to punish [him/her] and discourage future wrongful
conduct? You may not increase the punitive award above an amount
that is otherwise appropriate merely because [name of defendant] has
substantial financial resources. [Any award you impose may not ex189
ceed [name of defendant]’s ability to pay.]

189

JUDICIAL COUNCIL OF CAL. CIVIL JURY INSTRUCTIONS § 3940 (Judicial Council of Cal.
2007) (brackets in original) [hereinafter CACI]. See also id. § 3942 (providing same instruction for individual defendant in bifurcated trial); id. § 3943 (providing same instruction for principal liable for conduct of agent in non-bifurcated trial); id. § 3945 (providing same instruction for entity defendant in non-bifurcated trial); id. § 3947 (providing
same instruction for individual and entity defendant in non-bifurcated trial); id. § 3949
(providing same instruction for individual and corporate defendant in bifurcated trial).
For text of pre-State Farm CACI § 3940, see Franze & Scheuerman, supra note 7, at 477–78.
California continues to operate under two model instructions: Judicial Council of California Civil Jury Instructions (“CACI”) and the Book of Approved Jury Instructions
(“BAJI”). While the CACI and BAJI used to be essentially the same, recent revisions have
made the two models substantively different. Specifically, BAJI’s main punitive damages
instruction has not been revised to include consideration of potential harm, nor does it
limit use of a defendant’s financial condition:
The law provides no fixed standards as to the amount of such punitive damages, but leaves the amount to the jury’s sound discretion, exercised without passion or prejudice.
In arriving at any award of punitive damages, consider the following factors:
(1) The reprehensibility of the conduct of the defendant;
(2) The amount of punitive damages which will have a deterrent effect on the
defendant in the [sic] light of defendant’s financial condition;
(3) That the punitive damages must bear a reasonable relation to the injury,
harm, or damage [actually] suffered by the plaintiff.
CAL. CIVIL JURY INSTRUCTIONS (BAJI) § 14.71 (Comm. on Cal. Civil Jury Instructions
2007) (brackets in original). See also id. § 14.72.2 (providing same instruction for bifurcated trial). A separate BAJI instruction provides the detailed reprehensibility guidance
contained in the revised CACI—arguably with more precision and adherence to State
Farm:
In determining whether the conduct upon which you have based your finding
of liability is reprehensible, and if so, the degree of that reprehensibility, you
should consider whether:
1) The harm caused was physical as opposed to economic;
2) The wrongful conduct demonstrated an indifference to or a reckless disregard of the [rights,] health or safety of others;
3) The plaintiff[s] [was] [were] financially vulnerable;
4) The conduct involved repeated actions or was an isolated incident; and
5) The harm was the result of intentional malice, trickery, or deceit, rather
than mere accident.
Id. § 14.71.2 (brackets in original). Moreover, only BAJI has added an out-of-state conduct instruction, although CACI includes a similar point in its directions for use. See infra
note 219.

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Kentucky likewise has expanded the factors given to a jury when as190
Maine has added consideration of “harm
sessing reprehensibility.
to the general public,” and a new reasonable relationship instruc191
tion. Minnesota has added a harm-to-others instruction to its multi-

190

191

JOHN S. PALMORE & DONALD P. CETRULO, KENTUCKY INSTRUCTIONS TO JURIES (CIVIL)
§ 39.15 (5th ed. 2006). This instruction provides in relevant part:
Your discretion to determine and award an amount, if any, of punitive damages is limited to the following factors:
(a) the harm to P as measured by the damages you have awarded under Instruction [and the potential of further harm to P] caused by D’s [failure to
comply with his duties] [conduct toward P];
(b) the degree, if any, to which you have found from the evidence that D’s
[conduct toward P] [failure to comply with his duties] was reprehensible,
considering:
(i) [the harm caused was physical as opposed to economic] [the degree to
which D’s conduct evinced an indifference to or a reckless disregard of
the health or safety of others] [the degree to which P had financial vulnerability] [the degree to which D’s conduct involved repeated actions
as opposed to an isolated incident] [the degree to which the harm to P
was the result of intentional malice, trickery, or deceit, or mere accident]
(ii) evidence of D’s conduct occurring outside Kentucky may be considered
only in determining whether D’s conduct occurring in Kentucky was
reprehensible, and if so, the degree of reprehensibility. However, you
must not use out-of-state evidence to award P damages against D for
conduct that occurred outside Kentucty [sic].]
Id. (brackets in original). Oddly, Kentucky’s model instruction does not incorporate factors statutorily required by KY. REV. STAT. ANN. § 411.186 (West 1988). Pursuant to this
statute, the jury is required to consider:
(a) The likelihood at the relevant time that serious harm would arise from the
defendant’s misconduct;
(b) The degree of the defendant’s awareness of that likelihood;
(c) The profitability of the misconduct to the defendant;
(d) The duration of the misconduct and any concealment of it by the defendant; and
(e) Any actions by the defendant to remedy the misconduct once it became
known to the defendant.
Id. See also Snyder v. McCarley, No. 2002-CA-001282-MR, 2003 WL 22025843, at *2–3 (Ky.
Ct. App. Sept. 19, 2003) (Knopf, J., concurring) (agreeing with court’s remand for a new
trial on the assessment of punitive damages, but noting that failure to provide more detailed instructions may violate due process as suggested in State Farm and other Supreme
Court cases).
DONALD G. ALEXANDER, MAINE JURY INSTRUCTION MANUAL § 7–114 (4th ed. 2001). The
instruction provides in relevant part:
In deciding whether to award punitive damages and in determining the amount of
any such damages, you may consider [the following:]
[1.] All aggravating and mitigating factors indicated by the evidence, including
the reprehensibility of the defendant’s conduct toward the plaintiff. In
evaluating reprehensibility, you may consider the extent to which, if at all,
the conduct that harmed the plaintiff also posed a substantial risk of harm
to the general public. [And]
2. [Any criminal punishment that may have been imposed for the conduct in
question. When a criminal punishment has been imposed, it may be considered as mitigating the amount of damages].

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192

factor instruction. South Dakota has expanded its instructions and
193
added a reasonable relationship instruction.

192

193

The amount of punitive damages that you award must be reasonably related to
the harm to the plaintiff, including the harm caused by the reprehensibility of the
defendant’s conduct [and the ability of the defendant to pay such an award] . . . .
Id. (brackets in original). Even though revised post-Philip Morris, the Maine instruction
does not expressly limit consideration of out-of-state conduct, though “harm to the general public” is included only in “evaluating reprehensibility.” Id.
Apart from this harm-to-others addition, the Minnesota model instruction remains unchanged since State Farm. See MINN. PRACTICE SERIES JURY INSTRUCTIONS GUIDES—CIVIL
§ 94.10 (Minn. Dist. Judges Ass’n, Comm. on Civil Jury Instruction Guides 2007), available
at WL 4A MNPRAC CIVJIG 94.10. This instruction provides in relevant part:
If you decide to award punitive damages, consider, among other things, the
following factors:
[1. The seriousness of the hazard to the public that may have been or was
caused by (defendant)’s misconduct] [You may not consider any harm to
persons who are not parties to this case that was the result of lawful conduct
in another state]
[2. The profit (defendant) made as a result of the misconduct]
[3. The length of time of the misconduct and if (defendant) hid it]
[4. The amount (defendant) knew about the hazard and of its danger]
[5. The attitude and conduct of (defendant) when the misconduct was discovered]
[6. The number and level of employees involved in causing or hiding the misconduct]
[7. The financial state of (defendant)]
[8. The total effect of other punishment likely to be imposed on (defendant)
as a result of the misconduct. This includes compensatory and punitive
awards to (plaintiff) and other persons]
[9. The severity of any criminal penalty (defendant) may get.]
Id. (brackets in original) (footnote omitted). Cf. Franze & Scheuerman, supra note 7, at
483–84 n.438 (quoting the 2003 version with identical text). See infra note 223 for a discussion of Minnesota’s harm to others instruction.
See S.D. PATTERN JURY INSTRUCTIONS (CIVIL) No. 35–01 (State Bar of S.D., Civil Instructions Comm. 2004). This instruction provides in relevant part:
If you find that punitive damages should be awarded, then in determining the
amount, you must consider the following five factors:
1. The intent of the defendant.
In considering the defendant’s intent, you should examine the degree of reprehensibility of the defendant’s misconduct, including, but not limited to, the following factors:
a. Whether the harm caused was physical as opposed to economic;
b. Whether the tortious conduct evinced an indifference to, or reckless
disregard of, the health or safety of others;
c. Whether the target of the conduct was vulnerable financially;
d. Whether the conduct involved repeated actions or was an isolated incident; and
e. Whether the harm was the result of intentional malice, trickery or deceit, or mere accident.
2. The amount awarded in actual damages.
In considering this factor, you should consider:
a. whether the plaintiff has been completely compensated for the economic harm caused by the defendant;
b. the relationship between the harm (or potential harm) suffered by the
plaintiff and the punitive damages award;

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194

Since State Farm, Georgia, Illinois, Indiana, South Carolina, and
195
Wyoming are new additions to this category. Georgia moved from a
196
Haslip-like instruction to a multi-factor charge.
In addition, Georc. the magnitude of the potential harm, if any, that the defendant’s conduct would have caused to its intended victim if the wrongful plan had
succeeded; and
d. the possible harm to other victims that might have resulted if similar future behavior were not deterred.
The amount of punitive damages must bear a reasonable relationship to the
actual damages.
3. The nature and enormity of the wrong.
4. The defendant’s financial condition.
5. All of the circumstances concerning the defendant’s actions, including any
mitigating circumstances which may operate to reduce, without wholly defeating, punitive damages.
194

195

196

Id.
South Carolina’s “official” model punitive damages instruction, authored by the Civil Jury
Charge Committee of the South Carolina Bar, has not changed since State Farm. See S.C.
RECOMMENDED CIVIL JURY CHARGES No. 14.01 & 14.04 (State Bar of S.C., Civil Instructions Comm. 1989). Judge Ralph King Anderson, Jr., however, publishes an “unofficial”
set of model jury instructions, which reflect a multi-factor approach:
There is no formula or standard that can be used as a measure for assessing
punitive damages. However, factors relevant to your consideration of punitive
damages are:
(1) the character of the defendant’s acts;
(2) the nature and extent of the harm to plaintiff which defendant caused or
intended to cause;
(3) defendant’s degree of culpability;
(4) the punishment that should be imposed;
(5) duration of the conduct;
(6) defendant’s awareness or concealment;
(7) the existence of similar past conduct;
(8) likelihood the award will deter the defendant or others from like conduct;
(9) whether the award is reasonably related to the harm likely to result from
such conduct; and
(10) defendant’s wealth or ability to pay.
RALPH KING ANDERSON, JR., ANDERSON’S SOUTH CAROLINA REQUESTS TO CHARGE—CIVIL
§ 13–21 (2002). Judge Anderson, Jr., also acknowledges that the post-verdict guideposts
“can be submitted to the jury to assist in its determination of the award of punitive damages.” Id. at note.
Given the evolving law of punitive damages, Georgia added a caveat to the revised punitive damages instructions, stating: “The entire subject of punitive damages seems to be in
a state of flux and is hotly disputed. . . . The main benefit of what follows [in these pattern
instructions] is to acquaint the judge with likely issues and possible, not necessarily approved, charges.” 1 GA. SUGGESTED PATTERN JURY INSTRUCTIONS § 66.740 note (Council
of Super. Ct. Judges of Ga. 2007), available at WL GA–JICIV 66.740.
1 GA. SUGGESTED PATTERN JURY INSTRUCTIONS § 66.750 (Council of Super. Ct. Judges of
Ga. 2007), available at WL GA–JICIV 66.750. This instruction provides in relevant part:
In considering the amount of punitive damages, you may consider the following factors:
a. the nature and egregiousness (reprehensibility) of the defendant’s conduct
b. the extent and duration of the defendant’s wrongdoing and the (possibility) (likelihood) of its recurrence (the word ‘possibility’ is from the opinion; substitution of ‘likelihood’ may avoid a burden of proof conflict.)
c. the intent of the defendant in committing the wrong

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197

gia includes an “amplified” reprehensibility instruction, which permits consideration of harm-to-others: “In assessing reprehensibility,
you may consider whether . . . the conduct showed an indifference to
198
or a reckless disregard of the health or safety of others . . . .”
Illi199
200
nois and Indiana also moved from a Haslip-like instruction to a

197

198
199

d. the profitability of the defendant’s wrongdoing (give only if supported by evidence)
e. the amount of actual damages awarded
f. the previous awards of punitive damages against the defendant (for the
same or similar conduct) (parenthetical qualifier added due to language of State
Farm v. Campbell; give only if supported by evidence)
g. potential or prior criminal (civil) sanctions against the defendant based
upon the same wrongful acts (give only if supported by evidence)
h. the financial circumstances, that is, the financial condition and or the net
worth of the defendant (give only if supported by evidence)
i. any other pertinent circumstances . . . .
Id. (citation omitted). The Council of Superior Court Judges of Georgia, the authors of
these pattern instructions, expressly recognize that the final factor—“other pertinent circumstances”—“may violate due process and State Farm v. Campbell.” Id. at note.
Id. at § 66.760. This instruction provides:
In making your award, you should consider the degree of reprehensibility of
the defendant’s wrongdoing. You should consider all the evidence, both aggravating and mitigating, to decide how much punishment the defendant’s conduct deserves. In assessing reprehensibility, you may consider whether
a. the harm caused was physical, as opposed to economic;
b. the conduct showed an indifference to or a reckless disregard of the health
or safety of others;
c. the target of the conduct had financial vulnerability;
d. the conduct involved repeated actions or was an isolated incident;
e. the harm was the result of intentional malice, trickery, or deceit (or mere
accident) . . . .
Id.
Id.
See ILL. PATTERN JURY INSTRUCTIONS—CIVIL § 35.01 (Ill. Sup. Ct. Comm. on Pattern Jury
Instructions in Civil Cases 2007), available at http://www.state.il.us/court/Circuit
Court/JuryInstructions/35.01.pdf. The instruction provides in relevant part:
In arriving at your decision as to the amount of punitive damages, you should
consider the following three questions. The first question is the most important to
determine the amount of punitive damages:
1. How reprehensible was (defendant’s name) conduct?
On this subject , you should consider the following:
a) The facts and circumstances of defendant’s conduct;
b) The [financial] vulnerability of the plaintiff;
c) The duration of the misconduct;
d) The frequency of defendant’s misconduct;
e) Whether the harm was physical as opposed to economic;
f) Whether defendant tried to conceal the misconduct;
[g) other]
2. What actual and potential harm did defendant’s conduct cause to the
plaintiff in this case?
3. What amount of money is necessary to punish defendant and discourage
defendant and others from future wrongful conduct [in light of defendant’s financial condition]?
Id. (brackets in original).

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multi-factor instruction. Wyoming shifted from a Haslip-plus-wealth
201
style instruction to the multi-factor approach.

200

201

See 1 IND. PATTERN JURY INSTRUCTIONS—CIVIL No 11.105 (Ind. Civil Instructions Comm.,
2d ed. 2007). This instruction provides in relevant part:
You should consider the following factors to decide the amount of punitive
damages:
1. The degree of reprehensibility of the defendant’s misconduct that caused
the plaintiff’s harm.
2. The magnitude of the harm suffered by the plaintiff as a result of the defendant’s misconduct.
3. Evidence of [fines] [penalties] applicable to conduct similar to that which
you have found the defendant to have committed.
4. The defendant’s financial condition.
Id. (brackets in original). Like Georgia, see supra note 197, Indiana has also added an expanded reprehensibility instruction:
To determine the degree of reprehensibility of the defendant’s misconduct
you should consider the following:
1. Whether the harm caused was physical as opposed to economic;
2. Whether the misconduct showed an indifference to or a reckless disregard
of the health or safety of others;
3. Whether the [target of the misconduct] [plaintiff] had financially vulnerability;
4. Whether the misconduct involved repeated actions or was an isolated incident;
5. Whether the harm was the result of intentional malice, trickery, or deceit,
or mere accident.
Id. § 11.107 (brackets in original).
See WYO. CIVIL PATTERN JURY INSTRUCTIONS § 4.06A (Wyo. State Bar 2003). This instruction provides in relevant part:
The law provides no fixed standard as to the amount of such punitive damages,
but leaves the amount to [the jury’s] sound discretion to be exercised without passion or prejudice. In determining the punitive damage award, you should consider the following factors:
1. Punitive damages should bear a reasonable relationship to the harm that is
likely to occur from the defendant’s conduct as well as to the harm that actually has occurred. If the actual or likely harm is slight, the damages
should be relatively small. If grievous, the damages should be much
greater;
2. The degree of reprehensibility of a defendant’s conduct should be considered. The duration of this conduct, the degree of the defendant’s awareness of any hazard that [he][she] has caused or is likely to cause, and any
concealment or “cover up” of that hazard, and the existence and frequency
of similar past conduct are all relevant in determining this degree of reprehensibility;
3. If wrongful conduct was profitable to the defendant, the punitive damages
should remove the profit and should be in excess of the profit, so that the
defendant recognizes a loss;
4. The financial position of the defendant;
5. All of the costs of litigation should be included, so as to encourage plaintiffs to bring wrongdoers to trial;
6. If criminal sanctions have been imposed on the defendant for
[his][her][its] conduct, this should be taken into account in mitigation of
the punitive damage award;
7. If there have been other civil actions against the same defendant, based on
the same conduct, this should be taken into account in mitigation of the
punitive award.

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States continue to differ in their approach to a reasonable rela202
tionship instruction. Illinois, for example, includes a reasonable re203
lationship charge, but it is optional.
Indeed, many states do not
expressly instruct the jury that the punitive damages award must bear
a “reasonable relationship” to the plaintiff’s harm, but rather direct
the jury to consider the amount of actual damages or harm to plain204
tiff when determining the amount of punitive damages. Moreover,
205
206
Maryland and Wisconsin still do not provide any guidance on the
proportionality of a punitive damages award. Despite language sug207
gesting a reasonable relationship inquiry, Georgia disclaims any
reasonable relationship instruction:
208

In addition to reprehensibility, State Farm also identifies two other main
concerns. The committee can suggest no pattern charge on the other
two broad State Farm issues. Proportionality is marginally addressed by
[instructing the jury to consider the amount of actual damages awarded
and by a general reasonableness charge]. There are simply too many

202
203

204
205

206
207

208

Id. (all brackets in the original except the first set); see also Farmers Ins. Exch. v. Shirley,
958 P.2d 1040, 1052–53 (Wyo. 1998) (holding jury should be instructed on factors incorporated into model instruction).
See Franze & Scheuerman, supra note 7, at 481–82.
Illinois includes a specific reasonable relationship charge: “The amount of punitive damages must be reasonable [and in proportion to the actual and potential harm suffered by
the plaintiff.]” ILL. PATTERN JURY INSTRUCTIONS—CIVIL § 35.01 (Ill. Sup. Ct. Comm. on
Pattern Jury Instructions in Civil Cases 2007), available at WL IL–IPICIV 35.01 (brackets in
original). Illinois, however, makes the bracketed text optional: “Instructing a jury concerning ‘proportionality’ was not mandated or prohibited by State Farm or by Illinois case
law. Whether the bracketed language concerning ‘proportionality’ should be included in
the instruction should be decided on a case by case basis.” Id. at notes.
These states include Alaska, California, Idaho, Illinois, Iowa, Kentucky, Maine, Massachusetts, Montana, North Carolina, Pennsylvania, Rhode Island, and Tennessee.
See supra note 175. Indeed, the Maryland comments remain unchanged post-State Farm:
While the committee realizes that an award for punitive damages must bear a reasonable ratio to the actual harm suffered by the plaintiff, under current procedure
the trial judge is required to review the jury award to make sure that such a ratio is
present. Because of this, and the inherent complexity of the concept, no modification of the instruction is made to reflect this constitutional requirement.
MD. CIVIL PATTERN JURY INSTRUCTIONS § 10:12 cmt. (Md. Inst. for Continuing Prof’l.
Educ. of Lawyers, Inc., 4th ed. 2006), available at WL MPJI MD–CLE 10–313.
See supra note 185.
See 1 GA. SUGGESTED PATTERN JURY INSTRUCTIONS § 66.780 (Council of Super. Ct. Judges
of Ga. 2007), available at WL GA–JICIV 66.780. This instruction appears designed to address the reasonable relationship requirement, although the language is far from clear:
“Any award you make should be both reasonable and just in light of your previous award
of damages, the conduct and circumstances of the defendant, and the purpose of punitive damages.” Id.
The other issue identified by the Council of Superior Court Judges of Georgia was the
presentation of the comparable penalties guidepost to the jury. 1 GA. SUGGESTED
PATTERN JURY INSTRUCTIONS § 66.760 note (Council of Super. Ct. Judges of Ga. 2007),
available at WL GA–JICIV 66.760.

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variables and unanswered questions for this issue to be addressed by a
pattern charge. The supreme court [sic] declined to adopt a “bright line
ratio” and conceded that there is no rigid benchmark. Without more
guidance, the use of the word “proportional” in a charge may provoke or
209
raise more questions than it answers.

But some progress has been made. Since State Farm, Alaska now
has added consideration of the “amount of compensatory damages
210
awarded to the plaintiff.” Similarly, Pennsylvania requires the jury
to consider “the nature and extent of the harm to the plaintiff,” and
has now eliminated its facially improper statement that a punitive
damages award need not bear any relationship to the compensatory
211
damages award.

209
210

211

Id.
ALASKA CIVIL PATTERN JURY INSTRUCTIONS § 20.20B (Alaska Sup. Ct. Civil Pattern Jury
Instructions Comm. 2003), available at http://www.state.ak.us/courts/juryins.htm. For
“Actions Accruing on or after August 7, 1997,” this instruction provides:
The law provides no fixed measure as to the amount of punitive damages, but
leaves it to you to decide an amount that will fairly accomplish the purposes of
punishing the defendant and deterring the defendant and others from repeating
similar acts. In determining the amount of punitive damages to be awarded, you
may consider:
• the likelihood at the time of the conduct that serious harm would result
from the defendant’s conduct;
• the degree of the defendant’s awareness of the likelihood at the time of the
conduct that serious harm would result from the defendant’s conduct;
• the amount of financial gain that the defendant gained or expected to gain
as a result of the defendant’s conduct;
• the duration of the defendant’s conduct and any intentional concealment
of the conduct;
• the attitude and conduct of the defendant upon discovery of the conduct;
• the amount of compensatory damages awarded to the plaintiff;
• the financial condition of the defendant; and
• the total deterrence of other damages and punishment imposed on the defendant as a result of the conduct, including compensatory and punitive
damages awarded to other persons in situations similar to that of the plaintiff, and any criminal penalties to which the defendant has been or may be
subjected.
Id. The instruction for “Actions Accruing on or after June 11, 1986 and before August 7,
1997” has not changed. See id. § 20.20 (1999).
2 PA. SUGGESTED STANDARD CIVIL JURY INSTRUCTIONS § 14.02 (Pa. Bar Inst., 3d ed. 2005).
This instruction provides in relevant part:
If you decide that the plaintiff is entitled to an award of punitive damages, it is
your job to fix the amount of such damages. In doing so, you may consider any or
all of the following factors:
1. the character of the defendant’s act,
2. the nature and extent of the harm to the plaintiff that the defendant
caused or intended to cause [; in this regard you may include the plaintiff’s
trouble and expense in seeking to protect [his] [her] interests in legal proceedings and in this suit],
3. the wealth of the defendant insofar as it is relevant in fixing an amount that
will punish [him] [her] [it], and deter [him] [her] [it] and others from
like conduct in the future.

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1191

Notably, Georgia and Kentucky have added ratio charges—
instructions that go beyond advising of a reasonable relationship and
add a specific ratio of punitive to compensatory damages. Georgia,
for example, instructs the jury: “The measure of such damages is
your enlightened conscience as an impartial jury . . . (but not more
212
than (insert ratio range) to your compensatory award).” Kentucky
213
Finally, Wyoming likewise provides
includes a similar instruction.
concrete guidance, directing the jury that “slight” harm should translate to a “relatively small” punitive damages award, and conversely
214
that “[i]f [harm is] grievous, the damages should be much greater.”
Multi-factor instructions thus exemplify both the best and worst
aspects of current model instructions. Viewed in the best light, the
multi-factor instructions exhibit a slight trend toward incorporating
some substantive due process limits, such as the “reasonable relation215
ship” requirement. On the other hand, many multi-factor instructions direct juries to consider the wrong question, such as by giving
the jury a specific dollar figure to consider that may unduly influence
216
the calibration of any award.

212

213

214
215
216

It is not necessary that you award compensatory damages to the plaintiff in order to assess punitive damages . . . .
....
The amount of punitive damages awarded must not be the result of passion or
prejudice against the defendant on the part of the jury. The sole purpose of punitive damages is to punish the defendant’s outrageous conduct and to deter the defendant and others from similar acts.
Id. (brackets in original). The Committee recognized that the prior anti-reasonable relationship instruction “can no longer be considered an accurate statement of the law in the
wake of Campbell.” Id. at subcomm. note. For the text of the prior instruction, see Franze
& Scheuerman, supra note 7, at 482 n.436.
1 GA. SUGGESTED PATTERN JURY INSTRUCTIONS § 66.741 (Council of Super. Ct. Judges of
Ga. 2003) (citation omitted), available at WL GA–JICIV 77.741. The Council of Superior
Court Judges of Georgia, authors of the pattern jury instructions, suggest that the trial
court “insist, to the degree practicable, on a ‘high-low’ agreement from counsel and/or a
stipulated range of proportion between actual and punitive damages.” Id. at note. See
also id. § 66.741 at note (suggesting that the trial judge “obtain a range of ratios from a
stipulation in a pretrial order”).
PALMORE & CETRULO, supra note 190, § 39.15 cmt. Where “the trial court [can] determine at the conclusion of the evidence the degree to which the defendant’s conduct
might be regarded as reprehensible,” the following instruction is suggested: “Your award
of punitive damages, if any, shall not exceed a sum equal to [seven] times the total sum
awarded . . . .” Id.
WYO. CIVIL PATTERN JURY INSTRUCTIONS § 4.06A (Wyo. State Bar 2003).
See supra text accompanying notes 210–14.
See supra note 153.

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4. Out-of-State Conduct/Harm To Others Post-State Farm
Perhaps because State Farm more clearly required it, model jury
instruction committees were receptive to revising instructions to add
limits on punishing defendants for harm to non-parties or for extra217
territorial conduct. Courts too found such instructions required,
and ten jurisdictions have added extraterritoriality or other instruc218
tions, which explicitly or implicitly limit punitive damages for harms
to non-parties.
California, for example, has included a new extraterritoriality instruction in its Book of Approved Jury Instructions:
Evidence has been received of defendant’s conduct occurring outside
California. This evidence may be considered only in determining
whether defendant’s conduct occurring in California was reprehensible,
and if so, the degree of reprehensibility. The evidence is relevant to that
issue, if it bears a reasonable relationship to the California conduct which
is directed at or acts upon plaintiff, and demonstrates a deliberateness or
culpability by the defendant in the conduct upon which you have based
your finding of liability. Further, acts or conduct wherever occurring,
that are not similar to the conduct upon which you found liability cannot
be a basis for finding reprehensibility.
However, you must not use out-of-state evidence to award plaintiff
punitive damages against the defendant for conduct that occurred out219
side California.

217

218
219

See, e.g., Diesel Mach., Inc. v. B.R. Lee Indus., 418 F.3d 820, 838 (8th Cir. 2005) (“[T]he
punitive damage instruction should have limited the jury’s consideration of . . . out-ofstate conduct.”); Barnes v. Koppers, Inc., No. 3:03CV60-P-D, 2006 WL 940279, at *2 (N.D.
Miss. Apr. 11, 2006) (requiring parties to submit jury instructions limiting use of out-ofstate evidence under State Farm); Sand Hill Energy, Inc. v. Smith, 142 S.W.3d 153, 164–65
(Ky. 2004) (holding that jury should have been instructed on limited use of out-of-state
conduct evidence); see also Boerner v. Brown & Williamson Tobacco Co., 394 F.3d 594,
606 (8th Cir. 2005) (Bye, J., concurring in the result) (concluding that the Arkansas
model instruction failed constitutional scrutiny because it allowed punishment to be
based on harm to non-parties); Buell-Wilson v. Ford Motor Co., 46 Cal. Rptr. 3d 147, 180–
81 (Cal. Ct. App. 2006) (upholding jury instruction that the jury could not consider
Ford’s out-of-state conduct in imposing punitive damages), vacated Ford Motor Co. v.
Buell-Wilson, 127 S. Ct. 2250 (2007) (vacating and remanding for further consideration
in light of Philip Morris). But see Valente v. UnumProvident Corp., No. A110056, 2006 WL
2512507, at *4–8 (Cal. Ct. App. Aug. 31, 2006) (finding reversible error where jury was instructed to base its punitive damages award only on defendant’s conduct toward the
plaintiff).
These out-of-state conduct states include Arkansas, California, Georgia, Illinois, Indiana,
Kentucky, Minnesota, New York, North Dakota, and Texas.
CAL. CIVIL JURY INSTRUCTIONS (BAJI) § 14.71.1 (Comm. on Cal. Civil Jury Instructions
2007). The comments further provide that if evidence of the defendant’s out-of-state
conduct was admitted, “the jury must be instructed that it may not use this type of evidence to punish a defendant for conduct that was lawful in the jurisdiction where it oc-

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Georgia also added an extraterritoriality instruction:
You may have heard evidence of conduct and procedures of the defendant in other states that you may properly consider on the issue of intent and reprehensibility. You may not, however, consider for the issue
of punitive damages any conduct that was lawful where and when it occurred, nor in other states even though unlawful and which had no im220
pact on (the victim).

Several states have included an extraterritoriality instruction fo221
The model incused on State Farm’s lawful/unlawful distinction.
struction in Illinois, for example, provides: “In assessing the amount
of punitive damages, you may not consider defendant’s similar conduct in jurisdictions where such conduct was lawful when it was
222
223
224
committed.”
Minnesota and Indiana include a similar instruction.

220

221

222
223

224

curred.” Id. at note. CACI also requires an out-of-state conduct instruction in its directions for use: “‘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.’ . . . An instruction on this point should be included within this instruction if appropriate to the facts.” CACI, supra note 189, § 3940 (quoting State Farm Mut. Auto. Ins.
Co. v. Campbell, 538 U.S. 408, 422 (2003)). In addition, CACI has added a harm-toothers instruction: “Punitive damages may not be used to punish [name of defendant]
for the impact of [his/her/its] alleged misconduct on persons other than [name of
plaintiff].” CACI § 3940. Pursuant to the directions for use, courts should provide the
harm to others charge where “there is a possibility that the jury might consider harm that
the defendant’s conduct might have caused to nonparties in arriving at an amount of punitive damages.” Id. at cmt.
1 GA. SUGGESTED PATTERN JURY INSTRUCTIONS § 66.771 (Council of Super. Ct. Judges of
Ga. 2003), available at WL GA–JICIV 66.771. Georgia has a second limiting instruction
based on the similar/dissimilar distinction in State Farm:
You may have heard evidence of other conduct and procedures of the defendant. For the purpose of aggravation of punitive damages, you may not consider
evidence of any conduct of the defendant that is dissimilar to that which resulted
in the plaintiff’s injury, unless such dissimilar conduct was related to the specific
harm suffered by the plaintiff in this case.”
Id. § 66.772 (footnote omitted). See also State Farm, 538 U.S. at 422–23 (“A defendant’s
dissimilar acts, independent from the acts upon which liability was premised, may not
serve as the basis for punitive damages.”).
See State Farm, 538 U.S. at 422 (“A jury must be instructed, furthermore, 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.”).
ILL. PATTERN JURY INSTRUCTIONS—CIVIL § 35.01 (Ill. Sup. Ct. Comm. on Pattern Jury Instructions in Civil Cases 2007).
See MINN. PRACTICE SERIES JURY INSTRUCTIONS GUIDES—CIVIL § 94.10 (Minn. Dist. Judges
Ass’n, Comm. on Civil Jury Instruction Guides 2006). Minnesota added the following
language to its multi-factor instruction: “You may not consider any harm to persons who
are not parties to this case that was the result of lawful conduct in another state.” Id.
1 IND. PATTERN JURY INSTRUCTIONS—CIVIL No. 11.103 (Ind. Civil Instructions Comm., 2d
ed. 2007). Indiana added the following language to its instructions: “You may not use

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Kentucky has added an out-of-state conduct instruction to its multi-factor instruction, explaining that:
[The jury’s] discretion . . . is limited to the following factors:
....
(ii) evidence of D’s conduct occurring outside Kentucky may be considered only in determining whether D’s conduct occurring in
Kentucky was reprehensible, and if so, the degree of reprehensibility. However, you must not use out-of-state evidence to award P
225
damages against D for conduct that occurred outside Kentucky.

As noted, Arkansas also added an out-of-state conduct instruction
226
to its Haslip-plus-wealth model:
You have heard evidence regarding [defendant’s] conduct outside
the state of Arkansas. This evidence may be considered by you only for
the purpose of determining the blameworthiness of the conduct by [defendant] that occurred in Arkansas. You may not use evidence of [defendant’s] conduct outside of Arkansas to punish [defendant] for conduct that was lawful in the state where it occurred and that has had no
227
impact on Arkansas or its residents.
228

229

In addition, New York and Texas have added comments on an
out-of-state conduct instruction, but have failed to propose model

evidence of out-of-state conduct to punish the defendant for action that was lawful in the
jurisdiction where it occurred.” Id.
225

PALMORE & CETRULO, supra note 190, § 39.15.

226

See supra text accompanying note 156.

227

ARK. MODEL JURY INSTRUCTIONS—CIVIL § 2218A (Ark. Sup. Ct. Comm. on Jury Instructions—Civil 2007) (brackets in original). The Committee intended this instruction “to
respond to the constitutional concerns” articulated in BMW and State Farm. Id. at cmt.

228

See N.Y. PATTERN JURY INSTRUCTIONS—CIVIL § 2:278 cmt. (Ass’n of Sup. Ct. Justices 2006).
“Caveat 4” of New York’s Pattern Instruction notes that “[w]hen relevant, 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.” Id. (citation omitted).

229

See TEX. PATTERN JURY CHARGES: GEN. NEGLIGENCE, INTENTIONAL PERSONAL TORTS § 8.6
cmt. (Comm. on Pattern Jury Charges of the State Bar of Tex. 2006). Citing State Farm,
the Committee on Pattern Jury Charges of the State Bar of Texas recognized that “lawful
out-of-state conduct may be probative” in a punitive damages case, and noted that
“[w]hen 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.’” Id. (quoting State Farm Mut. Auto. Ins. Co. v. Campbell,
538 U.S. 408, 422 (2003)). The Committee further noted, “Campbell does not specify
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.” Id.

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230

language.
Finally, North Dakota (a multi-factor state) added a
231
harm-to-others instruction in response to the Philip Morris decision.
In sum, the pre- and post-State Farm landscape breaks down as follows:
Case Category

Ala., Colo., La.,
Mich., Mo., Ohio,
Utah, Vt., Va., and
Wash.

Haslip-PlusWealth

Ariz., Ark., D.C., Fla.,
Haw., Miss., Nev.,
Or., S.C., Tex., and
Wyo.

Ariz., Ark., D.C., Fla.,
Haw., Miss., Nev.,
Or., and Tex.

Multi-Factor

Alaska, Cal., Del.,
Idaho, Iowa, Ky.,
Me., Md., Mass.,
Minn., Mo., N.J.,
N.M., N.Y., N.C.,
N.D., Pa., R.I., S.D.,
Tenn., W. Va., and
Wis.

Alaska, Cal., Del.,
Ga., Idaho, Ill., Ind.,
Iowa, Ky., Me., Md.,
Mass., Minn., Mont.,
N.J., N.M., N.Y.,
N.C., N.D., Pa., R.I.,
S.C., S.D., Tenn., W.
Va., Wis., and Wyo.

None

Ark., Cal., Ga., Ill.,
Ind., Ky., Minn.,
N.Y., and Tex.

Conn., Colo., Kan.,
Neb., N.H., and Okla.

Conn., Kan., Neb.,
N.H., and Okla.

Out-of-State
Conduct/
Harm to Others
Other

231

Post-State Farm
Landscape

Ala., Ga., Ill., Ind.,
La., Mich., Mo.,
Ohio, Utah, Vt., Va.,
and Wash.

Haslip Instruction

230

Pre-State Farm
Landscape

Cf. COLO. JURY INSTRUCTIONS FOR CIVIL TRIALS § 5:3 cmt. 5 (Colo. Sup. Ct. Comm. on
Civil Jury Instructions, 4th ed. 2006) (noting that where evidence of out-of-state conduct
is admitted, the court should provide “such cautionary instructions as the court deems
necessary”).
N.D. PATTERN JURY INSTRUCTIONS § C-72.07 (N.D. State Bar Ass’n 2007), available at
http://www.sband.org/pattern_jury_instructions/results.asp?parent_category=civil&child
_category=%25&keywords=&prefix_num=c&cinumber=72.07&Submit=Search (“In
considering an award of exemplary or punitive damages, you may, in determining the
reprehensibility of the Defendant’s conduct, consider the harm the Defendant’s conduct
has caused to others. You may not, however, punish the Defendant for harm caused to
others whose cases are not before you. You may punish the Defendant only for harm
done to the Plaintiff. . . . Note: The Court should give this instruction when there has
been evidence or argument about the harm the Defendant’s conduct has caused to
others.”).

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B. Federal Model Jury Instructions Post-State Farm
Like state model jury instructions, the federal approach remains
largely unchanged since State Farm. While adding a comment con232
cerning State Farm, the leading federal practice handbook continues
to use a Haslip-like instruction:
In addition to actual damages, the law permits a jury, under certain
circumstances, to award the injured person punitive and exemplary damages in order to punish the wrongdoer for some extraordinary misconduct and to serve as an example or warning to others not to engage in
such conduct.
....
Whether or not to make any award of punitive and exemplary damages, in addition to actual damages, is a matter exclusively within the
province of the jury . . . .
. . . You should also bear in mind, not only the conditions under
which, and the purposes for which, the law permits an award of punitive
and exemplary damages to be made, but also the requirement of the law
that the amount of such extraordinary damages, when awarded, must be
fixed with calm discretion and sound reason, and must never be either
awarded, or fixed in amount, because of any sympathy, or bias, or preju233
dice with respect to any party to the case.

Likewise, the Fifth Circuit’s Haslip-plus-wealth instruction remains
234
unchanged since State Farm.
The Ninth Circuit similarly has not
232

233
234

KEVIN F. O’MALLEY, JAY E. GRENIG & WILLIAM C. LEE, 3 FEDERAL JURY PRACTICE AND
INSTRUCTIONS § 128.81 note (5th ed. Supp. 2007), available at WL FED–JI § 128.81. The
comment notes that the State Farm Court “also found that juries must be instructed that
they ‘may not use evidence of out-of-state conduct to punish a defendant for action that
was lawful in the jurisdiction where it occurred.’” Id. (quoting State Farm, 538 U.S. at
422). Notably, the comment seems to suggest that the jury should be instructed on the
BMW guideposts:
According to the Supreme Court, a jury should take into account the following
considerations: (1) degree of reprehensibility of the defendant’s conduct, (2) the
ratio between harm or potential harm to the plaintiff and the punitive damages
award, and (3) the relationship between the punitive damages award and civil
penalties authorized or imposed in comparable cases.
Id. (emphasis added).
Id. § 128.81. Cf. Franze & Scheuerman, supra note 7, at 487 (quoting the same).
See PATTERN JURY INSTRUCTIONS: FIFTH CIRCUIT, CIVIL CASES § 15.13 (Comm. on Pattern
Jury Instructions Dist. Judges Ass’n Fifth Circuit 2006). This instruction provides in relevant part:
In making any award of punitive damages, you should consider that the purpose of
punitive damages is to punish a defendant for shocking conduct, and to deter the
defendant and others from engaging in similar conduct in the future. The law
does not require you to award punitive damages, however, if you decide to award
punitive damages, you must use sound reason in setting the amount of the damages. The amount of an award of punitive damages must not reflect bias, prejudice, or sympathy toward any party. . . . [P]unitive damages should be awarded
only if the defendant’s misconduct, after having paid compensatory damages, is so

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235

changed its multi-factor instruction. The Seventh Circuit, which issued model instructions in 2004, uses language very similar to that of
236
the Ninth Circuit. While the Eleventh Circuit has added some additional guidance focusing the jury on the defendant’s conduct only
in the immediate case, the basic Haslip-plus-wealth instruction re237
mains unaltered.
Similarly, the Third Circuit uses a Haslip-plus238
wealth instruction.

235

236

237

reprehensible as to warrant the imposition of further sanctions to achieve punishment or deterrence. You may consider the financial resources of the defendant
in fixing the amount of punitive damages . . . .
Id. Cf. Franze & Scheuerman, supra note 7, at 488 n.452 (quoting the 1999 version with
identical text).
MANUAL OF MODEL CIVIL JURY INSTRUCTIONS FOR THE DIST. COURTS OF THE NINTH
CIRCUIT § 5.5 (Comm. on Model Civil Jury Instructions Within the Ninth Circuit 2007).
The instruction provides in relevant part:
If you find that punitive damages are appropriate, you must use reason in setting the amount. Punitive damages, if any, should be in an amount sufficient to
fulfill their purposes but should not reflect bias, prejudice or sympathy toward any
party. In considering punitive damages, you may consider the degree of reprehensibility of the defendant’s conduct and the relationship of any award of punitive damages to any actual harm inflicted on the plaintiff.
Id. Cf. Franze & Scheuerman, supra note 7, at 488 (quoting the 2001 version with identical text).
FEDERAL CIVIL JURY INSTRUCTIONS OF THE SEVENTH CIRCUIT § 7.23 (Comm. on Pattern
Civil Jury Instructions of the Seventh Circuit, Draft 2004), available at
http://www.wisbar.org/AM/Template.cfm?Section=Home&CONTENTID=52272&TEMP
LATE=/CM/ContentDisplay.cfm. The instruction provides in relevant part:
If you find that punitive damages are appropriate, then you must use sound
reason in setting the amount of those damages. Punitive damages, if any, should
be in an amount sufficient to fulfill the purposes that I have described to you, but
should not reflect bias, prejudice, or sympathy toward either/any party. In determining the amount of any punitive damages, you should consider the following
factors:
• the reprehensibility of Defendant’s conduct;
• the impact of Defendant’s conduct on Plaintiff;
• the relationship between Plaintiff and Defendant;
• the likelihood that Defendant would repeat the conduct if an award of
punitive damages is not made;
[• Defendant’s financial condition;]
• the relationship of any award of punitive damages to the amount of actual
harm the Plaintiff suffered.
Id. (brackets in original).
PATTERN JURY INSTRUCTIONS: ELEVENTH CIRCUIT, CIVIL CASES § 2.1 (Comm. on Pattern
Jury Instructions Dist. Judges Ass’n of the Eleventh Circuit 2005). This instruction provides in relevant part:
[I]f you further find that the Defendant did act with malice or reckless indifference to the Plaintiff’s [federally protected] rights, the law would allow you, in your
discretion, to assess punitive damages against the Defendant as punishment and as
a deterrent to others.
When assessing punitive damages, you must be mindful that punitive damages
are meant to punish the Defendant for the specific conduct that harmed the
Plaintiff in the case and for only that conduct. For example, you cannot assess punitive damages for the Defendant being a distasteful individual or business. Punitive

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One exception to the general lack of change in federal instructions is the Eighth Circuit, which modified its instruction in light of
239
Philip Morris.
The Eighth Circuit recommends that the following
multi-factor language be added to the Haslip-like base “if supported
by the evidence”:
[T]he law permits the jury under certain circumstances to award punitive
damages.
....
If you decide to award punitive damages, you should consider the following in deciding the amount of punitive damages to award:
1. how [reprehensible] [bad] [offensive] the defendant’s conduct
was. In this regard, you may consider whether the harm suffered
by the plaintiff was physical or economic or both; whether there
was violence, deceit, intentional malice, reckless disregard for
human health or safety; whether others were harmed by the same
conduct of the defendant that harmed the plaintiff; and whether

238

239

damages are meant to punish the Defendant for this conduct only and not for
conduct that occurred at another time. Your only task is to punish the Defendant
for the actions [it] [he] [she] took in this particular case.
If you find that punitive damages should be assessed against the Defendant,
you may consider the financial resources of the Defendant in fixing the amount of
such damages . . . .
Id. (brackets in original). Cf. Franze & Scheuerman, supra note 7, at 488 n.453 (quoting
the 2000 version of instruction).
MODEL CIVIL JURY INSTRUCTIONS FOR THE DIST. COURTS OF THE THIRD CIRCUIT § 6.4.2
(Comm. on Model Civil Jury Instructions Third Circuit 2007). This instruction provides
in relevant part:
If you decide to award punitive damages, then you should also consider the
purposes of punitive damages in deciding the amount of punitive damages to
award. That is, in deciding the amount of punitive damages, you should consider
the degree to which [defendant(s)] should be punished for the wrongful conduct
at issue in this case, and the degree to which an award of one sum or another will
deter [defendant(s)] or others from committing similar wrongful acts in the future.
[The extent to which a particular amount of money will adequately punish a
defendant, and the extent to which a particular amount will adequately deter or
prevent future misconduct, may depend upon a defendant’s financial resources.
Therefore, if you find that punitive damages should be awarded against [defendant(s)], you may consider the financial resources of [defendant(s)] in fixing the
amount of those damages.]
Id. (brackets in original).
MANUAL OF MODEL CIVIL JURY INSTRUCTIONS FOR THE DIST. COURTS OF THE EIGHTH
CIRCUIT § 4.50C (Comm. on Model Civil Jury Instructions Within the Eighth Circuit,
Supp. 2007). In the commentary, the Committee states:
This instruction attempts to incorporate the constitutionally relevant principles
set forth by the Supreme Court in Philip Morris USA v. Williams, . . . 127 S. Ct.
1057 (2007); State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003),
BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996), Honda Motor Co. v.
Oberg, 512 U.S. 415 (1994), and TXO Production Corp. v. Alliance Resources
Corp., 509 U.S. 443, 459-62 (1993).
Id.

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2.

3.

4.

5.
6.

7.

INSTRUCTING JURIES ON PUNITIVE DAMAGES

1199

there was any repetition of the wrongful conduct and past conduct of the sort that harmed the plaintiff;
how much harm actually resulted to the plaintiff, [but not to others,] from the defendant’s wrongful conduct [and not from the
defendant’s general conduct];
what amount of punitive damages, in addition to the other damages already awarded, is needed, considering the defendant’s financial condition, to punish the defendant for [his, her, its]
wrongful conduct toward the plaintiff and to deter the defendant
and others from similar wrongful conduct in the future;
in order to achieve the purposes of punitive damages set forth
above, the amount of any punitive damages award should bear a
reasonable relationship to the amount of compensatory damages
you awarded, if any;
[the amount of possible harm the defendant’s conduct could
cause the plaintiff in the future;]
[in order to achieve the purposes of punitive damages set forth
above, the amount of any punitive damages award should bear a
reasonable relationship to the harm likely to be caused in a similar situation by conduct similar to the defendant’s wrongful conduct;] [and]
[The amount of fines and civil penalties applicable to similar
240
conduct].

IV. GETTING TO THE “RIGHT QUESTION”: A PROPOSAL FOR
INSTRUCTIONAL REFORM
Philip Morris confirmed what State Farm only suggested: Due process requires that the jury be provided with more detailed guidance on
241
Courts must now evaluate whether their procepunitive damages.
dures, including model jury instructions, cause juries to ask “the right
question,” or instead, “create an unreasonable and unnecessary risk
242
of any [jury] confusion occurring.”
So what are the “right questions”? In State Farm, the Court stated
that an instruction preventing a jury from punishing a defendant for

240
241

242

Id. (brackets in original) (footnotes omitted).
As early as Haslip, Justice O’Connor criticized state punitive damages procedures for allowing juries to base their decisions on arbitrary reasons. Commenting on Alabama’s
skeletal jury instructions, Justice O’Connor stated:
“Alabama’s common-law
scheme . . . provides a jury with ‘such skeletal guidance’ that it invites—even requires—
arbitrary results. It gives free reign to the biases and prejudices of individual jurors, allowing them to target unpopular defendants and punish selectively. In short, it is the antithesis of due process.” Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 63 (1991)
(O’Connor, J., dissenting) (citation omitted).
Philip Morris USA v. Williams, 127 S. Ct. 1057, 1064, 1065 (2007).

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harms that occurred out-of-state—a substantive due process limit im243
In Philip Morris, while giving the
posed in BMW—was required.
states flexibility to devise procedural constraints, the Court found
that the trial court erred in failing to instruct the jury that it should
244
not punish the defendant for harms to non-parties, a substantive
245
due process limit.
Following the logic of State Farm and Philip Morris, the next step in
framing the “right questions” is to assess whether the other substantive due process limits are, or are not, appropriate for consideration
by the jury. The obvious starting points for procedures that protect
246
against “an unreasonable and unnecessary risk of [jury] confusion”
are the BMW guideposts, which guide the courts post-verdict in assess247
ing whether a punitive damages award comports with due process.
True, the Supreme Court has yet to hold that due process requires
248
the jury to be instructed on the guideposts. But over the past decade, the Supreme Court slowly has correlated the procedural and
249
substantive due process requirements, something confirmed in
Philip Morris, where the Court reiterated that protections are required
to ensure the substantive limits are not violated. Moreover, refuting
the premise that the guideposts are solely post-verdict considera250
tions, the Philip Morris Court found that the risk that a jury would
punish for harms to non-parties was present because the plaintiff was
permitted to submit evidence at trial of harm to others to establish
251
the defendant’s “reprehensibility.”
In other words, one of the
252
guideposts—reprehensibility—was considered by the jury at trial,

243
244
245
246
247
248

249
250

251
252

See State Farm, 538 U.S. at 422.
Philip Morris, 127 S. Ct. at 1063.
See State Farm, 538 U.S. at 424.
Philip Morris, 127 S. Ct. at 1065.
For the text of the guideposts, see supra text accompanying note 35.
See BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 602 (1996) (Scalia, J., dissenting) (“[I]f
those ‘interests’ are the most fundamental determinant of an award, one would think that
due process would require the assessing jury to be instructed about them.”); cf. 2 PA.
SUGGESTED STANDARD CIVIL JURY INSTRUCTIONS § 14.02 cmt. (Pa. Bar Inst. 2005) (“Campbell addressed the standards under which a reviewing court should measure the constitutionality of a punitive damages award where a due process challenge has been raised, not
the standards a jury should apply in determining punitive damages in the first instance.”).
See Franze & Scheuerman, supra note 7, at 427–32.
As Professor Anthony Sebok has noted, the Philip Morris Court’s “concern for the jury’s
adjudication of hypothetical cases was in conflict with the Court’s earlier confidence that
juries should be given broad discretion in the assessment of punitive-damages cases.” Sebok, supra note 2, at 999.
Philip Morris, 127 S. Ct. at 1064.
See id. at 1061–62.

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and procedural protections were constitutionally required to protect
the defendant’s substantive due process rights.
The guideposts are thus the starting point. First, the jury should
be advised to consider the “reprehensibility” of the defendant’s conduct. In State Farm, the Supreme Court identified a five-factor scale of
253
reprehensible conduct, and many state model instructions already
include comparable instructions concerning the nature of a defen254
The substantive limit is now sufficiently defined
dant’s conduct.
255
and understandable to craft an instruction.
Next, the jury should be instructed on the second BMW guidepost: that any punitive damages award must bear a reasonable rela256
tionship to the compensatory damages.
A reasonable relationship
instruction provides an inherent constraint on the jury’s discretion—
an anchor by which the jury can calibrate the punitive damages award
under the same constitutional standard considered by courts in postverdict review. A jury informed that its punitive award must be an257
chored to the compensatory award is less likely to assess the award
based on impermissible considerations, such as out-of-state conduct
or harm to others.
After State Farm, some instruction committees considered whether
to impose a reasonable relationship instruction. Kentucky, for in253

254
255

256
257

State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 419 (2003). The Court explained that reprehensibility should be determined by considering “whether: the harm
caused was physical as opposed to economic; the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others; the target of the conduct
had financial vulnerability; the conduct involved repeated actions or was an isolated incident; and the harm was the result of intentional malice, trickery, or deceit, or mere accident.” Id. See also Franze & Scheuerman, supra note 7, at 456 (discussing Court’s “sliding
scale of reprehensible conduct”).
See supra Part III.
Professor Neil Vidmar and Mr. Matthew W. Wolfe have proposed a set of model punitive
damages jury instructions that incorporate a detailed reprehensibility charge based on
BMW, State Farm, and Philip Morris. Neil Vidmar & Matthew W. Wolfe, Fairness Through
Guidance: Jury Instruction on Punitive Damages After Philip Morris v. Williams, 2
CHARLESTON L. REV. 307, 322–23 (2008).
See id. at 324 (proposing text of model reasonableness relationship instruction).
Practically speaking, a plaintiff’s harm is measured by the compensatory award. See State
Farm, 538 U.S. at 426 (“In sum, courts must ensure that the measure of punishment is
both reasonable and proportionate to the amount of harm to the plaintiff and to the
general damages recovered.”). As Professor Anthony Sebok has noted, a compensatory
damages award “serves as a proxy for the damage caused by the defendant’s tortious act,
thus anchoring punishment to harm.” Sebok, supra note 2, at 973–74. Indeed, Professor
Sebok notes that “rather than being the engine of punitive damages’ incoherence, the
anchoring effect of compensatory damages validates a defensible theory of punitive damages.” Id. at 987. That said, it should be noted that Professor Sebok believes that the reasonable relationship requirement “lacks any principled foundation.” Id. at 1029.

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stance, has come the closest to recognizing the overlap between the
substantive guideposts and the procedural due process limits on punitive damages: “To the extent possible, the guideposts should be
258
used by the jury to set punitive damages in the first instance.” Louisiana, on the other hand, determined that it is an “open question as
to whether the jury should be told that there may be constraints on
their assessment of punitive damages, i.e., told that such damages
might have to bear a ‘reasonable relationship’ to compensatory damages in order to pass constitutional muster,” and ultimately concluded that “[t]he better view is probably that this is a legal issue for
post-verdict motions or appeal, if the punitive damages are claimed to
259
exceed that relationship.”
260
States like Louisiana have it wrong. Where the procedural due
process standard is preventing the risk of jury confusion, a reasonable
relationship instruction provides definite guidance on how to set a
punitive damages award within substantive limits. Such an instruction does not have the conceptual difficulties Justice Stevens saw in a
harm-to-others instruction. Indeed, it is a simple concept: the
amount of a punitive damages award must be correlated to the com261
pensatory award. While informing the jury of a specific ratio could
258

259

260
261

PALMORE & CETRULO, supra note 190, § 39.15 cmt. See also ILL. PATTERN JURY
INSTRUCTIONS CIVIL § 35.01 (Ill. Sup. Ct. Comm. on Pattern Jury Instructions in Civil
Cases
2007),
available
at
http://www.state.il.us/court/CircuitCourt/JuryInstructions/35.01.pdf (stating that Illinois’s revision “sought to honor the three constitutional ‘guideposts’ established by U.S. Supreme Court [sic] while simultaneously emphasizing that the ultimate determination as to the size of the penalty imposed must be
dictated by the circumstances of each particular case”). Kentucky further recognized that
the comparable civil/criminal penalties guidepost “will not be a jury question in a typical
case,” PALMORE & CETRULO, supra note 190 § 39.15 cmt., but where the trial court admits
evidence of comparable penalties, the following addition to the main instruction is suggested: “The (fines) (penalties) that may be imposed for conduct comparable to D’s
conduct toward P.” Id. See also infra text accompanying notes 262–65 (discussing whether
to instruct on third guidepost).
Johnson, supra note 48, § 18.02. Accord 2 PA. SUGGESTED STANDARD CIVIL JURY
INSTRUCTIONS § 14.02 cmt. (Pa. Bar Inst. 2005) (“Campbell addressed the standards under
which a reviewing court should measure the constitutionality of a punitive damages award
where a due process challenge has been raised, not the standards a jury should apply in
determining punitive damages in the first instance.”).
See text accompanying supra note 259.
See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425 (2003) (“Single-digit
multipliers are more likely to comport with due process . . . . When compensatory damages are substantial, then a lesser ratio, perhaps only equal to compensatory damages, can
reach the outermost limit of the due process guarantee.”). But see Anthony J. Sebok, After
Philip Morris v. Williams: What Is Left of the “Single Digit” Ratio?, 2 CHARLESTON L. REV.
287, 293 (2008) (concluding that “it is very likely that the ratio rule will be abandoned by
the courts”). As Dean Thomas C. Galligan has noted, assuming punitive damages serve

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go even further to prevent “confusion,” procedural due process sets a
floor, not a ceiling, on procedural guarantees. The floor here means
that the jury should, at minimum, be told that compensatory awards
serve as a guide—rather than financial condition evidence, or harmto-others arguments, or random figures suggested during closing argument.
While the first two guideposts should be provided to juries, the
remaining guidepost presents unique considerations. The “third
262
guidepost”—comparable civil or criminal penalties —invites jury
confusion and should be limited to post-verdict review. As the Supreme Court noted in Cooper Industries, this factor “calls for a broad
263
legal comparison,” and is better suited to application by judges, not
264
juries. Even courts advocating the use of more detailed instructions
have determined that “there are too many complicating and prejudi265
cial factors in asking a lay jury to consider the third element.”
Having considered whether procedural due process requires
courts to instruct juries on the BMW guideposts, the question then
266
becomes whether additional factors in model instructions are consistent or conflict with the substantive due process limitations on punitive damages. The aim here is to prevent juries from asking the
“wrong question” more than it is getting them to the “right one.”

262
263
264
265

266

an efficient deterrence purpose, “compensatory damages alone will be enough to promote an adequate cost-benefit analysis” in some circumstances. Thomas C. Galligan, Jr.,
Disaggregating More-Than-Whole Damages in Personal Injury Law: Deterrence and Punishment,
71 TENN. L. REV. 117, 135 (2003) (quoting Ciraolo v. City of New York, 216 F.3d 236, 243
(2d Cir. 2000) (Calabresi, J., concurring)).
BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 583–85 (1996).
Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 440 (2001).
See id.
Geressy v. Digital Equip. Corp., 950 F. Supp. 519, 521 (E.D.N.Y. 1997). Accordingly, the
court approved a modification of the New York model instruction to include an instruction on the first two guideposts:
In fixing the amount, if any, you may consider the assets of defendant, what is reasonably required to vindicate New York State’s legitimate interests in punishment
and deterrence, if any, above the amount of civil damages awarded, the degree of
reprehensibility, if any, the disparity between the harm or potential harm suffered
by plaintiffs and the difference between punitive damages and the civil awards in
this case, and how egregious the conduct of defendant was compared to that of
others in its position.
Id. “This language adequately expresses the law as set out in [BMW] without requiring
the jury to make complex determinations and calculations involving civil and criminal
law.” Id. (citation omitted). See also PALMORE & CETRULO, supra note 190, § 39.15 cmt.
(recognizing that the comparable civil/criminal penalties guidepost “will not be a jury
question in a typical case”).
Most states with multi-factor instructions include additional, and potentially nonconstitutional, factors. See supra discussion in Part III.A.3.

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The issue presented by these instructions is how to balance the use of
evidence or argument that may be relevant for one purpose, such as
267
establishing the “reprehensibility” of a defendant’s conduct, while
also ensuring that evidence or argument is not misused for an im268
269
proper purpose —the classic context for a “limiting instruction.”
Examples include the two instructions specifically discussed by the
Supreme Court: the out-of-state conduct instruction discussed in
270
State Farm and the harm-to-others instructions discussed in Philip
271
Morris.
Where warranted by the evidence, both a harm-to-others
272
Although
and an out-of-state conduct instruction must be given.
273
Justice Stevens considered these concepts “elusive nuances,” courts
ask juries to perform such tasks anytime that they give a limiting in274
struction on the use of certain evidence. While it is far from clear
that juries always understand or follow the instructions they are given,
and much may depend on the way the instructions are written, it is a
basic principle that our jury system is “[b]ased on faith that the jury
275
will endeavor to follow the court’s instructions.”

267
268
269

270

271

272

273

274

275

See supra text accompanying notes 84–88.
See supra discussion in Part III.A.3; see also Franze & Scheuerman, supra note 7, at 508–11.
E.g., Thomas B. Colby, Beyond the Multiple Punishment Problem: Punitive Damages as Punishment for Individual, Private Wrongs, 87 MINN. L. REV. 583, 676 (2003) (“Indeed, it is a familiar principle that, when evidence is admitted for one purpose, but it would violate the
Constitution for the jury to consider it for a different purpose, the court should instruct
the jury not to consider the evidence for the impermissible purpose.”); see also 21A
CHARLES ALAN WRIGHT & KENNETH W. GRAHAM, JR., FEDERAL RULES OF EVIDENCE § 5066
(2d ed. 2007).
See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 422 (2003) (“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.”).
127 S. Ct. 1057, 1064 (2007) (“We therefore conclude that the Due Process Clause requires States to provide assurance that juries are not asking the wrong question, i.e., seeking, not simply to determine reprehensibility, but also to punish for harm caused strangers.”).
In an article that foreshadowed the Court’s holding in Philip Morris, in 2003 Professor
Thomas Colby advocated the use of a harm-to-others instruction. See Colby, supra note
269, at 675–76.
See supra Part II.B; see also Hylton, supra note 59, at 16 (finding the use of harm-to-others
evidence in assessing reprehensibility, but not punishment to be “a distinction that many
will find confusing”).
See WRIGHT & GRAHAM, supra note 269, § 5066; see also Alexandra B. Klass, Punitive Damages and Valuing Harm, 92 MINN. L. REV. 83, 128 (2007) (suggesting the jury be given limiting instruction on use of “harm to natural resources” evidence as permissible for reprehensibility analysis, but not punishment).
Delli Paoli v. United States, 352 U.S. 232, 242 (1957), overruled on other grounds by United
States v. Bruton, 391 U.S. 123 (1968). To be sure, scholars dispute the efficacy of the jury
system. E.g., SUNSTEIN ET AL., supra note 124, at 223–24 (concluding that juries do not
follow instructions). That debate, however, is beyond the scope of this Article.

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Besides out-of-state conduct and extraterritoriality, the principal
area of contention remains how to address evidence or argument
276
concerning a defendant’s wealth or financial condition.
In State
Farm, the Supreme Court recognized that evidence of a defendant’s
277
wealth may improperly influence the jury, but did not take the step
of stating that wealth evidence should be kept from the jury. Unlike
out-of-state conduct or harm-to-others evidence that may be relevant
to proving “reprehensibility,” it is unclear whether and how financial
condition evidence fits into the constitutional framework.
Financial condition, however, has long been integrated into state
278
punitive damages law.
While some states preclude wealth evi279
280
dence, other states permit, or even require, evidence of a defendant’s financial condition. The majority of model instructions advise
the jury to consider the defendant’s “financial condition” or “wealth”
281
when determining the amount of the award without also providing
any instructions on how the jury should do so. Similarly, a few jurisdictions instruct the jury to consider the defendant’s “ability to pay”
282
the award.
Related to a defendant’s wealth, several states’ model

276

277

278

279
280

281
282

See Michael L. Rustad, The Uncert-Worthiness of the Court’s Unmaking of Punitive Damages, 2
CHARLESTON L. REV. 459, 502–05 (2008) (predicting that the role of the defendant’s
wealth may be the next question addressed by the Supreme Court).
See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 427-28 (2003). The Court’s
concerns about the improper use of wealth evidence are supported by empirical studies:
The wealth of the defendant matters a great deal to dollar awards. People will impose significantly higher punitive damages awards on significantly wealthier defendants—
even though people do not see misconduct by wealthy defendants as more outrageous than equivalent misconduct by less-wealthy defendants. The lesson—
perhaps not surprising, but highly relevant to legal practice—is that jury awards
will be greatly affected by knowledge of wealth [sic] of the defendant.
SUNSTEIN ET AL., supra note 124, at 32.
See Belknap v. Boston & Maine R.R., 49 N.H. 358, 358 (1870); Flaacke v. Stratford, 64 A.
146, 147 (N.J. 1906); Harman v. Cundiff, 82 Va. 239, 246 (1886). For a discussion of the
history of using wealth in determining the amount of punitive damages, see Leila C. Orr,
Making a Case for Wealth-Calibrated Punitive Damages, 37 LOY. L.A. L. REV. 1739, 1741–43
(2004).
E.g., COLO. REV. STAT. § 13–21–102(6).
E.g., Adams v. Murakami, 813 P.2d 1348 (Cal. 1991) (holding that evidence of a defendant’s financial condition is a prerequisite to an award of punitive damages); see also Baxter v. Peterson, 58 Cal. Rptr. 3d 686 (Cal. Ct. App. 2007) (holding that an award of punitive damages cannot be sustained on appeal unless the trial record contains meaningful
evidence of the defendant’s financial condition).
See discussion supra Part III.
See sources cited supra notes 175 (Maryland), 178 (New Jersey), 181 (North Carolina), 189
(California), 194 (South Carolina), and 201 (Wyoming).

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instructions advise the jury to consider a defendant’s “profits” from
283
the wrongdoing in setting the punitive award.
Without additional guidance, these wealth-related instructions are
constitutionally suspect. As Philip Morris suggests, without clarification that the “profits” or “wealth” must be specifically tied to the con284
duct that harmed the plaintiff, and that profits or wealth must re285
late to in-state activities, these instructions invite the jury to base its
award on unconstitutional grounds. Moreover, basing an award on a
defendant’s financial condition or profits risks punishing a defendant
286
for harm to non-parties, a practice barred by Philip Morris, and further risks punishing a defendant for lawful conduct, a practice barred
287
by BMW. Consider the use of profits in Philip Morris. The Oregon
Court of Appeals expressly upheld the punitive damages award based
on the company’s profits: “[Philip Morris’s] profits for the year closest to the trial were over $1.6 billion, or approximately $30.7 million
per week. The jury’s award of $79.5 million, thus, is equal to a little
288
more than two and a half weeks’ profit.”
First, that calculation of
289
profits was based on national sales, not just sales in Oregon. Moreover, even focusing on Oregon profits alone, some of the other Oregon smokers may not have been entitled to any damages because they
did not rely on Philip Morris’s statements regarding the health effects
290
of smoking. As Professor Keith Hylton has noted, it would be “inappropriate” to use these lawful sales as the basis of a punitive dam-

283

284

285
286

287
288
289

290

See sources cited supra notes 178 (New Jersey), 181 (North Carolina), 183 (Tennessee),
184 (West Virginia), 185 (Wisconsin), 186 (North Dakota), 190 (Kentucky), 192 (Minnesota), 196 (Georgia), and 201 (Wyoming).
See supra text accompanying notes 86–89; see also Johnson v. Ford Motor Co., 113 P.3d 82,
95 (Cal. 2005) (“[G]ains made over some period of time and the harm or potential harm
to an individual plaintiff are not necessarily related . . . .”).
See supra text accompanying note 92.
See supra text accompanying notes 159–65 (discussing Romo v. Ford Motor Co., 6 Cal.
Rptr. 3d 793, 805 (Cal. Ct. App. 2003)); see also Hylton, supra note 59, at 10–11 (recognizing that basing punitive damages on a defendant’s profits necessarily includes transactions not before the court); Colby, supra note 269, at 675–76 (arguing that plaintiff’s
counsel should not be permitted to ask jury to take away profits from defendant’s entire
course of conduct and that jury should be instructed that it cannot remove profits based
on victims not before the court).
See BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 572 (1996).
Philip Morris I, 48 P.3d 824, 841 (Or. Ct. App. 2002). See also discussion supra note 59.
Brief for Respondent, supra note 67, at 15 (noting that the $1.6 billion figure was net
profits for 1997). See also id. at 32 (“The $79.5 million awarded represented just two-anda-half weeks’ domestic profit to Philip Morris in 1997.”). Certainly, under State Farm and
BMW, if a court admits evidence of a defendant’s wealth, it must be limited to in-state
profits.
Philip Morris, 127 S. Ct. at 1063; see also supra Part II (discussing Philip Morris).

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291

292

ages award. In short, unless a limiting instruction is provided, the
wealth-based instructions in most jurisdictions raise serious constitutional concerns and should be scrutinized to assess whether and in
what form the instructions should be retained after State Farm.
Finally, we conclude where the Court began: whether states
should instruct on the Haslip-minimum. The three Haslip factors do
little to guide the jury or prevent jury confusion. Standing alone, the
Haslip-minimum instructions are inherently constitutionally flawed.
As Justice O’Connor argued over fifteen years ago:
In my view, such instructions are so fraught with uncertainty that they
defy rational implementation. Instead, they encourage inconsistent and
unpredictable results by inviting juries to rely on private beliefs and personal predilections. Juries are permitted to target unpopular defendants,
penalize unorthodox or controversial views, and redistribute wealth.
Multimillion dollar losses are inflicted on a whim. While I do not question the general legitimacy of punitive damages, I see a strong need to
provide juries with standards to constrain their discretion so that they
may exercise their power wisely, not capriciously or maliciously. The
293
Constitution requires as much.

On the other hand, the Haslip-minimum instructions identify the
294
purposes of punitive damages, and importantly, that such awards
291

292
293

294

See Hylton, supra note 59, at 6. To the extent that evidence of a company’s profits, wealth
or financial condition are admitted, it may be impossible for the jury to segregate lawful
from unlawful transactions. Professor Hylton proposes an interesting solution: using statistical estimates of unlawful sales. See id. at 10 & n.30; id. at 12. A statistical solution,
however, would have to overcome Philip Morris’s holding that “the Due Process Clause
prohibits a State from punishing an individual without first providing that individual with
‘an opportunity to present every available defense.’” Philip Morris, 127 S. Ct. at 1063
(quoting Lindsey v. Normet, 405 U.S. 56, 66 (1972)). At the end of the day, asking the
jury to segregate unlawful transactions might “create an unreasonable and unnecessary
risk of any such [jury] confusion occurring.” Id. at 1065. At that point, the question becomes whether evidence of a defendant’s wealth or profits should be excluded.
See text accompanying supra notes 226–27 (noting that only Arkansas currently couples its
wealth instruction with a harm-to-others instruction).
Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 43 (1991) (O’Connor, J., dissenting). Justice
Scalia similarly criticized the Alabama jury instruction approved by the majority as “not
guidance but platitude.” Id. at 37 (Scalia, J. concurring).
See text accompanying supra note 128. Professor Sebok, however, notes that “[j]uries may
have many ways of interpreting the deterrence prong” of Haslip-minimum instructions.
Sebok, supra note 2, at 984. Using an efficient or optimal deterrence theory as a guide,
Professor Sebok notes that “research suggests that juries are producing awards that are
neither certain nor likely to bear a reasonable relationship to the amount of money that,
ex ante, would produce the correct incentives to invest in safety.” Id. But this argument
presupposes that the goal of punitive damages is efficient deterrence, as opposed to general deterrence. See generally Galligan, supra note 261, at 147 (discussing general deterrence purpose of punitive damages). Indeed, as Dean Galligan notes, while an efficient
deterrence theory of punitive damages may be “attractive,” “juries do not normally engage in such a finely tuned exercise of deterrence calibration when awarding punitive

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295

are not compulsory. Thus, so long as the Haslip-minimum instructions are combined with more detailed instructions as discussed
above, states may permissibly choose to retain these common lawbased factors.
To be sure, we acknowledge that Philip Morris did not mandate
296
jury instructions as opposed to other procedures, and indeed, some
have argued that it is equivocal on the validity of defendant Philip
297
Morris’s proposed instruction. Theoretically, a state could solve potential jury confusion caused by harm-to-others evidence by denying
admission of the evidence, or, for that matter, removing the punitive
298
damages decision from the jury’s domain, as some states have done.
299
Because the evidence remains relevant to reprehensibility, however,
courts are unlikely to exclude evidence that is permissible for some,
but not all, purposes. And few states will be inclined to remove the
decision on punitive damages from the jury or to engage in untradi300
tional procedural mechanisms.
The reality, then, is that most states will turn to jury instructions as
the principal means of enforcing the mandate of Philip Morris. Our
proposal is so simple it should not be controversial: juries should be
told of the constitutional limits by which their awards will be judged.

295
296
297
298

299
300

damages.” Id. (quoting Cooper Indus., Inc. v. Leatherman Tool Group, 532 U.S. 424,
438–40 (2001)).
See supra text accompanying note 128.
See supra text accompanying notes 86–94.
See supra text accompanying note 118; see also Allen, supra note 22, at 37–42 (arguing
Philip Morris requires “more than traditional approaches” such as jury instructions).
See supra notes 130, 136. Whether the jury should decide the question of punitive damages has been a subject of heated debate. See SUNSTEIN ET AL., supra note 124, at 242–58
(arguing decision-making on punitive damages should be removed from jury); Lisa Litwiller, Has the Supreme Court Sounded the Death Knell for Jury Assessed Punitive Damages? A
Critical Re-Examination of the American Jury, 36 U.S.F. L. REV. 411 (2002) (arguing that the
Supreme Court has sounded the “death knell” of juries’ assessment of punitive damages);
Ryan Fowler, Why Punitive Damages Should Be A Jury’s Decision in Kansas: A Historical Perspective, 52 KAN. L. REV. 631 (2004) (arguing jury should be retained as punitive damages decision-maker).
See supra text accompanying note 85.
Cf. Allen, supra note 22, at 41 (“[S]tates will need to be creative in carrying out the
Court’s mandate [in Philip Morris].”).

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CONCLUSION
Four years ago, when we first wrote about the need for punitive
damages instructional reform, we began the article with the example
of a troubling case in which a jury awarded a single individual $28 bil301
lion in punitive damages. That case provides a fitting conclusion to
the present article: the appeals court recently remanded the case for
a new trial on the amount of punitive damages. The basis for the re302
versal? An erroneous and prejudicial jury instruction.
State Farm was the first step in what likely will be a long walk in
creating constitutional “guideposts” for trial-level procedures. The
Philip Morris decision certainly paved the road by clearly showing that
substantive limits on punitive damages, traditionally employed postverdict, must be considered in adopting trial-level procedures. While
Philip Morris left states with flexibility to devise procedures to protect
these substantive rights, that task inevitably will require a reassessment of jury instructions concerning punitive damages. The substantive guideposts and limits are sufficiently defined and understandable
to provide to the jury. Absent some other constraint on the jury, due
process demands that the jury be advised of the factors that determine the constitutionality of their punitive damages award. Until
there is meaningful procedural reform, the only certainty in the punitive damages process will be continued appeals, reversals, and remands, many of which could be avoided by providing juries and
courts with the guidance they need to reach principled verdicts based
on proper considerations.

301

Franze & Scheuerman, supra note 7, at 423–24.

302

Bullock v. Philip Morris USA, Inc., 71 Cal. Rptr. 3d 775, 806–07 (Cal. App. 2008)
(“Proposed instruction V-1 expressed the rule of law later confirmed in Williams, that the
jury could not award punitive damages for the purpose of punishing Philip Morris for
harming nonparties to the litigation. . . . The $28 billion in punitive damages awarded by
the jury was equivalent to $1 million for each of the purported 28,000 deaths. In light of
this record, and absent any instruction providing adequate guidance concerning
evidence of harm caused to others, we conclude that the refusal of Philip Morris’s
proposed instruction V-1 was prejudicial [and reverse for a new trial concerning the
amount of punitive damages].”).