PUNITIVE DAMAGES: ADMISSIBLE EVIDENCE, PRACTICAL
CONSIDERATIONS, CONSTITUTIONAL / PROPORTIONAL CHALLENGES
By: John A. Houghton
Most Plaintiff’s practitioners who have handled cases involving an at-fault driver cited for DUI have a basic understanding of the enhanced damages that can be recovered at trial for this conduct. In many scenarios, the at-fault’s insurer is more than eager to tender their minimum coverage limits, and all the details of the defendant’s conduct never come to light. However, in cases with significant liability insurance coverage and a good likelihood of trial, the diligent Plaintiff’s practitioner should have a full understanding of the potential legal hurdles to overcome in obtaining full civil justice for their client.
Similarly, the Plaintiff’s lawyer should appreciate that not all DUI injury cases are created equal, and often the circumstances surrounding the at-fault driver’s conduct may diminish or prevent the return of a punitive damages verdict. With the recent explosion of opioid and pain medication abuse, juror attitudes towards DUI collisions involving prescription medications present an entirely different set of considerations to weigh when conducting voir dire. Likewise, expert toxicologists’ testimony can play a significant role in the outcome of these cases.
I. General Admissibility Issues
Clear & Convincing Evidence
The starting point for introducing evidence supporting a claim for punitive damages is provided by statute in Georgia.
Under O.C.G.A. § 51-12-5.1: “Punitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant's actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.”
Evidence that the defendant was under the influence of alcohol at the time he caused an automobile collision is admissible as tending to show “willful misconduct, wantonness, and that entire want of care which raises the presumption of conscious indifference to the consequences.” Moore v. Thompson, 255 Ga. 236, 237 (1985) (superseded by statute on other grounds involving bifurcation procedure for evidence of prior DUI’s); See also Cheevers v. Clark, 214 Ga. App. 866, 869 (1994).
Under O.C.G.A. § 51-12-5.1, the jury will decide the amount of compensatory damages and whether or not to award punitive damages in the first phase and the amount of punitive damages in the second phase. When a driver causes an accident while intoxicated, the issue of punitive damages for his conduct is always for the jury to decide. Craig v. Holsey, 264 Ga. App. 344, 590 S.E.2d 742 (2003)
Pattern or Practice Not a Required Precursor for Jury to Consider Punitives
Often times, the defense lawyer will assert that punitive damages are only recoverable if the Plaintiff can clearly and convincingly show a ‘pattern or practice’ of recidivist conduct. However, while evidence of recidivist conduct may be introduced for a jury to consider as an additional aggravating factor, it is not a required element to establish a valid punitive damages claim.
It is well-settled under Georgia law that a single instance of causing injury to another while driving under the influence of alcohol or drugs is a sufficiently aggravating circumstance to allow a jury to consider the award of punitive damages. “Driving under the influence of alcohol so as to cause personal injuries to another is an aggravating circumstance in the act which would authorize the jury to give punitive damages to deter the wrongdoer from repeating the act.” Moore v. Thompson, 255 Ga. at 237. See also Cheevers v. Clark, 214 Ga. App. 866, 869 (1994).
Defense counsel may cite Brooks v. Gray 262 Ga. App. 232, 233 (2003) or Robinson v. Ellis, 268 Ga. App. 52, 55 (2004) to support their ‘pattern or practice’ requirement argument. Upon review of Brooks v. Gray, the Court of Appeals determined “To justify punitive damages, we have required that the collision result ‘from a pattern or policy of dangerous driving, such as driving while intoxicated or speeding excessively.’” Id. at 233. [Emphasis added]. The Court recognizes the aggravating circumstance of a single instance of driving while intoxicated as an appropriate basis for punitive damages.
Robinson v. Ellis was a case in which the trial court did permit the jury to return a verdict of punitive damages against a Defendant who was driving under the influence. 268 Ga. App. 52, 55 (2004). The holding of this case is essentially that past instances of alcohol use while driving by the Defendant are inadmissible if a DUI had never been previously charged on those occasions. Id. at 53. Interestingly, this case acknowledges that punitive damages are justified if a Defendant driver causes a wreck while under the influence; the Robinson Court does not recognize that any “pattern or practice” is required as a precursor to a jury’s consideration of punitive damages.
Langlois v. Wolford, 246 Ga. App. 209 (2000) is the controlling precedent with regard to the applicability of punitive damages in cases involving driving under the influence. Langlois involved a Defendant driving under the influence of alcohol who caused a collision which resulted in the Plaintiff being injured. Id. at 209. The Langlois Court found: “driving under the influence of alcohol constituted such wanton conduct that it was both intentionally willful and evinced such entire want of care as to be wanton, because it placed others at great risk of injury or death.” Id. at 210-211. The Court concluded: “driving under the influence was an aggravated conduct supporting punitive damages.” Id. at 211. As such, there need not be any “pattern or policy” of a Defendant driving under the influence to permit a jury to consider the awarding of punitive damages; the evidence of Defendant’s intoxication at the time of this collision is sufficiently aggravated conduct to support a punitive verdict.
Other Notable Cases Addressing Evidentiary Issues
Smell of Alcohol Admissible
The introduction of testimony about the mere presence of alcohol on the breath of defendant as evidence of punitive conduct was not error. “The question of whether a motorist's consumption of alcohol impaired his driving capabilities and entered into the proximate cause of the collision is best left for the jury's resolution… Thus, a trial court has discretion to admit even minimal evidence of alcohol consumption.” Schwartz v. Brancheau, 306 Ga. App. 463 (2010)
Prior DUI Convictions Admissible in Determining Amount of Punitive Damages
Permissible to admit other evidence showing that Defendant did in fact commit the prior DUI offenses with which he was charged. “Trial court was correct in ruling that evidence relating to the prior DUIs, other than the pleas of nolo contendere, was admissible for determining the amount of punitive damages to be awarded.” Holt v. Grinnell, 212 Ga. App. 520 (1994)
Punitive Damages Can Only Be Awarded Against ‘Active Tortfeasor’ Under the Influence
In the context of a wreck involving an employee driving under the influence while in the scope of his employment with his employer, punitive damages can only be returned against the employee as the active-tortfeasor. "If it is found...that the defendant acted or failed to act while under the influence of alcohol ... [punitive] damages shall not be the liability of any defendant other than an active tort-feasor," meaning the defendant acting under the influence of alcohol. See American Material Services, Inc. v. Giddens, 296 Ga. App. 643; O.C.G.A. § 51-12-5.1(f); see also Capp v. Carlito's Mexican Bar & Grill, #1, 288 Ga. App. 779 (2007). Court did not address that punitives can be returned on a separate basis against an employer that has actual knowledge of a dangerous driving record when dispatching an employee. See Smith v. Tommy Roberts Trucking Co., 209 Ga. App. 826 (1993).
II. Practical Considerations
Mitigating Issues / Excuses / Reasons for Alcohol or Drug Use
Aside from issues of legal admissibility and burden of proof, the Plaintiff practitioner should closely examine all potential mitigating factors that may create vulnerability for their punitive claims at trial. An experienced defense attorney will do everything he or she can to introduce evidence that evokes sympathy for the DUI defendant. Events such as recent job losses, divorces or deaths in the family are often cited by the DUI defendant for the cause of their irresponsible behavior. While these life events certainly do not justify the unlawful conduct that caused the wreck, judges and jurors are only human beings. A diligent defense lawyer will have his client well-prepared to provide these reasons or excuses during cross-examination when explaining the conduct involved in causing the wreck.
The best practice is to get a full understanding of these claimed excuses for drinking or drug use during discovery. Certainly, the Plaintiff’s attorney should obtain as much testimony as possible from the DUI Defendant regarding the aggravating conduct that resulted in the collision. However, the Plaintiff’s lawyer also needs to be prepared to counter any defense efforts to introduce sympathy-evoking testimony at trial. To accomplish this, the Plaintiff’s attorney must get the full picture from the Defendant in deposition:
Even if the Court does not exclude or disallow this sort of ‘excuse’ testimony by motion in limine, the Plaintiff’s lawyer is at least well-equipped to handle some these issues in voir dire with the jury. Knowing ahead of time that the DUI Defendant may likely try to explain away his conduct in this manner allows the Plaintiff’s lawyer to introduce and minimize the impact of this testimony on the Plaintiff’s terms.
Introduction of Mitigating Evidence of Past Punishment Received
It is incumbent on Plaintiff’s counsel to get a full understanding of the criminal penalties imposed on the DUI Defendant. Georgia is one of the states that allows the introduction of criminal punishments in civil trials to mitigate punitive damages arising from the same act. See White v. Taylor, 157 Ga. App. 328 (1981) citing Cherry v. McCall, 23 Ga. 193 (1857)
Depending on the nature of the sentence or penalty, defense attorneys will generally use this to their advantage by injecting the jury with the notion that this Defendant ‘has paid his debt to society.’ The Plaintiff’s lawyer needs to be wary about how the jurors may perceive this penalty. In many jury venues, a thousand dollar fine may be viewed as a significant amount of money.
Similarly, the loss of a job or pension resulting from a DUI conviction can be very powerful in the eyes of jurors. Defense attorneys will use this to their advantage in closing argument. The Plaintiff’s lawyer will need to fully explore the impact of these mitigating criminal penalties. It is important to note that if a cause of action is within the ambit of O.C.G.A. § 51–12–5.1, evidence of the defendant's financial circumstances may be admissible. See Holland v. Caviness, 292 Ga. 332, 335 (2013).
These issues should be brought out during well-directed cross of the DUI defendant at trial, and presented on the Plaintiff’s terms. Plaintiff’s counsel needs to be mindful that he/she does not overlook or dismiss these fines or prior criminal penalties as insignificant.
Alcohol Impairment v. Drug Impairment
Given the increasingly pervasive opioid medication abuse problem in our state and country, it is important to understand the differences in juror attitudes between DUI alcohol cases and DUI drug cases. After discussing a verdict with the jurors after a 2015 road wreck trial in a rural northwest Georgia county, it became clear that many viewed the impairment caused by physician-prescribed medication in a much different light than alcohol.
The warning labels on many of these medications often do not outright prohibit the operation of a motor vehicle or heavy machinery. The underlying medical conditions or injuries these medications are intended to treat may elicit more sympathy than for a DUI alcohol defendant ‘just out looking for a good time.’ The fact that these medications are prescribed by licensed doctors for therapeutic use further creates a sense of mitigation or excuse for these DUI defendants.
Many toxicologists are hesitant to go out on a limb and provide unequivocal testimony establishing legal impairment at the time of the wreck in cases involving prescribed medications. In DUI drug cases involving only pharmaceutical impairment, often toxicology experts are retained by the defense to provide testimony on the inexact nature of determining intoxication. Part of this defense rests on the theory that the intended therapeutic effect of these drugs may not decrease a person’s ability to safely operate a motor vehicle. The expert will blame a manifold of variables including a person’s tolerance, weight, and other factors that they claim make it impossible to determine impairment:
The obvious intention of this testimony is to muddle the plaintiff’s burden of proof, and inject the bizarre concept that ‘some people might drive better on Xanax, oxycontin and trazadone.’
Like the handling of any expert, be prepared to rebut his or her testimony at trial with any scholarly publication they predicate their opinions on. In discovery deposition, make certain that all articles, studies, or other publications that the expert relies upon are disclosed. Virtually all scholarly material that an expert relies upon in formulating his opinion will also provide powerful rebuttal data. The Package Inserts for these medications as well as the Physicians’ Desk Reference are useful resources in establishing the intoxicating effects of these drugs even at the intended therapeutic level. And never discount the power of common sense.
Jurors’ opinions on pain medication use and abuse need to be exhaustively addressed during voir dire. It is astonishing how many jurors are close with friends or family members who have struggled with pain medication dependency or abuse. It is a sensitive topic, but understanding their views on prescription drugs and the role that the prescribing physician plays is absolutely vital to a Plaintiff’s punitive damages claim. The punitive nature of exemplary damages can make it difficult for a set of jurors to punish someone for taking a medication as prescribed by a doctor.
III. Recent Appellate Developments
In virtually every Answer filed in response to a Complaint alleging punitive damages, most defense attorneys assert some form of a constitutionality or excessive award ratio argument. The current cases that are in vogue for citation by defense counsel are: BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996), State Farm Mutual Auto Insurance Company v. Campbell, 538 U.S. 408 (2003), Philip Morris USA v. Williams, 127 S. Ct. 1057 (2007), Exxon Shipping Company v. Grant Baker, 128 S. Ct. 2605 (2008).
None of these cited cases are directly on-point with a basic DUI injury or death case fact pattern. It is also important to note that under Georgia law, cases involving alcohol or drug influenced conduct are not subject to the maximum statutory cap of $250,000.00. See O.C.G.A. § 51-12-5.1(b) Likewise, the amount of a punitive damages verdict is generally to be determined by the enlightened conscience of the impartial jury. Hospital Authority of Gwinnett County v. Jones, 259 Ga. 759, 763-764 (1989).
BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996) effectively introduced the concept of required proportionality between compensatory damages and punitive damages. This case involved a lawsuit against a car dealer alleging claims of a fraudulent failure to disclose the repainting of a particular vehicle. Id. The jury returned a verdict finding BMW liable for compensatory damages of $4,000, and assessing $4 million in punitive damages. Id. While the opinion seems to insist that it does not impose bright line ratio standards between these two distinct types of damages, it basically adheres to the notion that single digit multipliers should be followed.
The second (and perhaps most commonly cited) indicium of excessiveness-the ratio between the plaintiff's compensatory damages and the amount of the punitive damages, see e.g., TXO, 509 U. S., at 459-also weighs against Gore, because his $2 million award is 500 times the amount of his actual harm as determined by the jury, and there is no suggestion that he or any other BMW purchaser was threatened with any additional potential harm by BMW's nondisclosure policy. Although it is not possible to draw a mathematical bright line between the constitutionally acceptable and the constitutionally unacceptable that would fit every case, see, e.g., id., at 458, the ratio here is clearly outside the acceptable range. [Emphasis supplied] Id.
State Farm Mutual Auto Insurance Company v. Campbell, 538 U.S. 408 (2003) reversed the Utah Supreme Court’s reinstatement of a $145 million punitive damages verdict returned on a compensatory verdict of only $1 million in an insurance bad faith case. The U.S. Supreme Court’s opinion followed the Gore Court’s guideposts on what they deemed an excessive ratio: “Single-digit multipliers are more likely to comport with due process, while still achieving the state's goals of deterrence and retribution, than awards with ratios in range of 500 to 1.” Id. at 438.
Philip Morris USA v. Williams, 127 S. Ct. 1057 (2007) basically reversed the imposition of a punitive damages judgment when evidence was introduced of conduct harming or otherwise involving persons not before the trial court.
Exxon Shipping Company v. Grant Baker, 128 S. Ct. 2605, (2008) is a federal maritime jurisdiction case which reviewed “a jury award at the level of judge-made federal common law that precedes and should obviate any application of the constitutional standard.” Id. at 2625. The Court even acknowledged that this case did not have application to a normal state award due process review. Id. This case has appeal to defense attorneys due to the 1-1 ratio of punitives to compensatory damages standard it created. However, it likely does not serve as any controlling legal authority in any post-judgment appellate review of a state court civil action.
As a practical consideration, many jurors post-trial have indicated their lack of a clear understanding as to the difference between compensatory damages and punitive damages. In bifurcated proceedings, the first phase verdict form generally provides a ‘Yes or No’ option if: “the jury, has found by clear and convincing evidence, that the conduct of Defendant in this case shows an entire want of care, raising the presumption of a conscious indifference to the consequences of his actions in causing this collision.” This jury question is usually provided on the verdict form after the jurors have returned and calculated the compensatory damages award.
Often, the jurors do not realize that they will be required to continue through a punitive phase of testimony. Many times the aggravating conduct that has been introduced in the first phase to determine if punitives are warranted is calculated into their compensatory damages figure. While this generally inures to the benefit of the Plaintiff, it may result in a diminished punitive damages verdict. Jurors can be hesitant to tack on additional damages that they initially thought were reflected in the compensatory verdict.
The fundamental principle underlying all punitive damages cases is deterrence. While the criminal justice system plays a vital role in the prosecution of these perpetrators, the civil justice system plays an equally important role for the victims of yhis crime. By continuing to zealously pursue these claims for our clients, we will hopefully help put an end to this dangerous conduct which results in far too many injuries and deaths on an annual basis.
 Brooks v. Gray did not involve any alcohol or drug related factors