A Punitive Element may be Included After All in a Settlement or in a Verdict

I recently received an e-mail on “jury tips” in personal injury cases. In it the lawyer spoke of the punitive element of some jury decisions. Well, we do not have punitive damages in Massachusetts. (The one exception is under the Wrongful Death statute.) But just because we do not have it, does not mean that the conduct on the part of the plaintiff, the person suing, or the defendant, the person being sued, does not come into play.

Indeed it does. There are times when the conduct of the entity being sued, the corporation or a particular individual, can be outrageous. It can “shock the conscience,” an expression we hear a lot nowadays. The notion from this “jury tip” is that there becomes almost a punitive element in the damage award. Thus, in a way, we can say that there is a de facto punitive element. In other words, it is not necessarily in the law, but it gets factored into what a jury does. If the case is never tried, it is what I will argue at a mediation. The argument becomes what a jury could do because of the excessive nature of the defendant’s conduct. That would be an angry, motivated jury.

Now what kind of things come to mind? A number of things can occur in the case:

• Has there been lying by the defendant?
• Has the defendant been excessively cheap in its safety approach or its use of safety equipment?
• Has the defendant disregarded the basic elements of decency with respect to safety?
• What is the culture of the company? Is it one to save money or is it one to safeguard workers?
• Now compare that with the person whom I represent. I hope to show that he/she exhibits the following:
• An honest, hard-working individual.
• An individual who is not concerned with the bottom line.
• An individual who takes on some very dangerous work.
• An individual who works hard in this dangerous work but is compensated comparatively little.

The notion is that the case will resolve very satisfactorily after there has been a proper weighing of these considerations.

I certainly think that your lawyer can be very persuasive in arguing these issues. This persuasiveness needn’t be at a trial because there may not be a trial. Instead, the message is to be conveyed throughout the life of the case. The lawyer-advocate will be pleased to argue that he/she represents an honest and hard-working individual as opposed to a cost cutting, somewhat tight-fisted (in terms of money) entity. It is the tight-fisted entity who will cut corners instead of providing a safe workplace environment. This should prove to be a successful framing of the issue.

In the first paragraph of this blog, I mentioned that there is a mechanism for punitive damages in wrongful death cases. (See M.G.L. c. 229,s.2 of the Wrongful Death Statute.) Curiously, the only specification of money in the statute is that the punitive award “should be in an amount not less than $5,000.” In Massachusetts, we don’t have much documentation of legislative history so I can’t shed much light on how they came to that figure. But we do know that the purpose of punitive damages is not compensatory; it is to deter the defendant’s conduct. That has major implications for large companies. A very large amount of money is necessary for deterring a successful company. I don’t want to be understood to be advocating this rather draconian measure in the majority of cases because the conduct giving rise to that remedy of punitives really must be bad. However, in the appropriate case, it is an effective weapon.

Many of my blogs have dealt with the law of 93A in Massachusetts. Technically, that is not punitive damages but is instead a consumer protection statute. I have to confess that its promise of double or treble damages and attorney’s fees certainly offers a punitive-type recovery.