Uncapping Compensation in the Gore Punitive Damage Analysis

BMW of North America, Inc. v. Gore rests, in part, on the “understandable relationship” between a civil jury’s award of compensatory and punitive damages. Gore designates Due Process a protectant against excessive civil jury awards, in effect outmaneuvering the civil jury trial right. Gore identifies three guideposts to determine whether punitive damages are excessive: (1) the degree of reprehensibility of a defendant’s conduct; (2) the disparity between compensatory and punitive damages; and (3) the difference between punitive damages and civil penalties authorized or imposed in comparable cases. This Article focuses on the second of Gore’s three guideposts, which examines the ratio between compensatory and punitive damages. In many states, compensatory damages are automatically capped in certain categories of tort cases regardless of proven damages. These states impose compensatory damage caps as a remedy for excessive civil jury awards. But no preliminary finding of excessiveness triggers the application of any cap. Except in one state, neither trial judges nor civil juries have authority to determine the fairness of the cap’s application to the injured party. This Article argues that the second Gore guidepost is based on a false premise as it applies in states that have capped compensatory damages—that the plaintiff has been fully reimbursed for actual losses. Gore fails to designate which compensatory damage award constitutes the proper starting point for inquiry: the jury’s award or the legislature’s capped award. Gore’s progeny rejects the argument that civil jury awards were excessive, which is the major assumption justifying the existence of compensatory damage caps. Gore’s progeny also warns that even if civil jury awards had become excessive, compensatory damage caps constituted a misguided remedy. Because there is no standard tort injury, it is inappropriate and impossible to settle upon a suitable amount to apply in all cases. Despite these warnings, some state legislatures have continued to impose, and some state supreme courts have continued to uphold, compensatory damage caps. This Article contributes to existing scholarship on compensatory damage caps and the Gore punitive damage analysis by identifying the defect that the former produces in the latter. This Article maintains that capped compensation in state law tort actions also caps the Gore punitive damage analysis. This Article advocates uncapping Gore where a state’s procedures do not allow trial judges the opportunity to review a civil jury’s award for reasonableness, where the civil jury has not been informed of the cap’s existence, or where the civil jury has no opportunity to affirm an award that exceeds the cap. Without such protections, Gore fails to advance its dual obligation in civil litigation to protect defendants against unreasonably high awards and guard severely injured plaintiffs against arbitrarily low awards