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Punitive by Mind Map: Punitive

1. Tort reform changes burden to clear & convincing evidence

2. Supreme Court Limitations (Const. Developments)

2.1. Substantive Due Process

2.1.1. Const. Right to know what ramifications might be.

2.1.2. Gore Guideposts

2.1.2.1. 1. Reprehensibility

2.1.2.1.1. Does it cause harm

2.1.2.1.2. Is there Causation

2.1.2.1.3. Repetitive or isolated incidents

2.1.2.1.4. Out-of-state conduct allowed if situation substantially similar

2.1.2.2. 2. Ratio

2.1.2.2.1. 9:1 when compensatory reasonable

2.1.2.2.2. Dbl Digit: Harm is slight, but conduct is horrible

2.1.2.2.3. 1:1 if compensatory is high

2.1.2.3. 3. Other Criminal or Civil Cases involved

2.2. Procedural Due Process (in Addition to Guideposts)

2.2.1. Exacting Jury instructions

2.2.2. De Novo review by the court

2.2.3. De Novo review by the Appellate Court

2.3. State Farm case

2.3.1. Gore guide posts on steroids

2.3.1.1. Adds the Out of state conduct as admissible for reprehensibility

2.3.1.2. Adds the concrete ratios (9:1, dbl digit: 1, 1:1)

3. Key Concepts

3.1. Designed to punish the wrongdoer

3.2. Awarded for ourtrageous misconduct

3.2.1. Extremely unpredictable for Defendants

3.2.2. Cannot be planned for

4. Common Law Considerations

4.1. Punishment and Deterrence

4.1.1. Goal is to punish and deter tortious conduct

4.1.2. Not typical in negligence cases unless gross negligence or gross misconduct

4.2. Outrageous Misconduct

4.2.1. Willful and Wanton Disregard of safety or Well being (Negligence cases)

4.3. Statistically small # of cases receive

4.4. Generally awarded after compensatory damages

4.4.1. Judge typically has compensatory case first, then punative

4.5. Considers wealth of the Defendant

4.6. Burden

4.6.1. Clear and Convincing Evidence

4.7. State Funds

4.7.1. In cases where an award of punative damages is inappropriate, % will go into a victims fund

4.7.1.1. Leaves conflict, attorney fee out of full award or only out of the % remaining?

4.8. Mass Tort claims

4.8.1. Can't really allow punative damages in starting verdicts, or no $ will remain for future claims

4.8.1.1. Lots of money limits compensatory damages remaining for the future.

4.8.2. Ex. asbestos litigation

4.9. Vicarious Liability

4.9.1. Where the employer remains liable for the actions of their employee

4.10. Litigation Period

4.10.1. Exon case, is 19 years of litigation by the deep pocket defendant okay, and is the 1:1 ratio appropriate