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$253,400,000.00 Damage Award

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Durandal

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I used to work for Merck, and as such I find this all very upsetting.

If you guys didn't see this in the news yet, a Texas jury found Merck liable in a Vioxx lawsuit and ordered the company to pay Carol Ernst over $253 million dollars in damages. Carol is the widow of late Robert Ernst, who died of arrhythmia four years ago. Vioxx has been found to increase incidence of heart attacks. According to the AP news yesterday, the jury members apparently decided "not to dwell on technicalities" differentiating arrythmia from heart attacks. How can these people not dwell on technicalities?! It's COURT for chrissake! Unsurprisingly, this morning I could no longer find this reference among the news stories discussing the case-- all you see in the media is fire and brimstone, Merck is guilty of murder, yadda yadda. Talk about your concrete-bound illiterates flinging their accusations of greed.

The lawyer representing the plaintiff instructed the jury, "If you write down $10m, Merck laughs. It's a rounding error. It's got to be over $100m or they won't even pay attention."

Is this about reparations to a widow, or just sticking it to The Man? Bastards.

(Changed title to make the contents of the thread more obviou. - sNerd)

Edited by softwareNerd
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I saw this in the news this morning. (My wife works for a pharma company, though not Merck, so it concerns me as well.) From what I read, Texas law places limits on punitive damages, so this will get reduced, if not overturned, on appeal.

Any trial is an exercise in epistemology, the determination of what is true and what isn't. It comes as little surprise that these kinds of verdicts are rendered when the culture at large has such lousy epistemology, when rational certainty and adherence to fact are labeled "closed-minded." Trial lawyers know how to select and manipulate a jury to make their decisions on emotion rather than reason. I think that's largely what we see in these kinds of cases. The "stick it to the man" attitude is secondary to the emotionalist epistemology at work.

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<_< I'm laughing because when I saw this thread title, I thought it was going to be somebody wasting our space with one of those get-rich-quick schemes. Oops. Anyway, on to the substance.

Before I get worked up about these things, I always examine them thoroughly. The $253 million (or a quarter billion) makes a nice headline. But what is it really? Here's one news article for reference:

http://www.foxnews.com/story/0,2933,166255,00.html

Let's break down the damages. $229 million in punitives, $24 million in mental anguish and loss of companionship. (So I guess the .4 million is for lost wages. So tiny, though, it's almost not worth mentioning.) Does $24 million in compensatory damages really seem so outrageous? Why or why not?

The $229 million is a non-issue. They'll never pay it, and the victim won't get much, if any, of it. Why not? Because, according to the FN article, Texas caps punitives at twice the economic damages ($400k for lost wages), and up to $750k on top of non-economic damages. I'm a little confused by the wording of this, but at most it seems it would be 2 times $400k plus $750k, or $1.55 million.

As to who gets punitives, my roommate (who did extremely well in his class on remedies) said that most states take most of the punitives. I haven't verified this myself, and I don't know what Texas does.

Also, the jurors were probably not told about the damage cap. The court does that after. Why not? So you get the jury's real verdict and not involve them in something that's a matter of law, not fact. Things like this are often withheld from juries for this reason.

For example, in my Trial Advocacy class I tried a mock construction accident case between two of the companies working on the site. The jury was to determine fault. They were not to be told, however, that one of the companies was bankrupt and had no assets. Why not? Because they might assess fault differently than they would have otherwise. Same idea for damage caps.

If one wants good things to think about this case, they are there. For example, one see this as a sign of the virtue of damage caps (if one wants to make that argument).

As to the jurors not dwelling on technicalities, if that's true then I share Durandal's rage. Even if there are objective laws, people need to apply them objectively.

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It comes as little surprise that these kinds of verdicts are rendered when the culture at large has such lousy epistemology, when rational certainty and adherence to fact are labeled "closed-minded."  Trial lawyers know how to select and manipulate a jury to make their decisions on emotion rather than reason.  I think that's largely what we see in these kinds of cases.

Agreed. However, I don't blame the trial lawyers. A trial lawyer's job is to win the case. He's not responsible for the mental makeup of the jury. If they're brilliant, objective people, then they're brilliant, objective people. If they're bedwetting soccer moms, then they're bedwetting soccer moms. The lawyer's job is to know the jury and act accordingly.

Assuming the case is one brought under a proper theory of recovery--for example, a breach of contract claim, not a private discrimination claim--the trial lawyer should try to convince the jury using what he thinks will be the most persuasive method. If that means he has to paint a sob story, then so be it. That's the jurors' faults for being stupid and emotional.

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The lawyer representing the plaintiff instructed the jury, "If you write down $10m, Merck laughs. It's a rounding error. It's got to be over $100m or they won't even pay attention."

Is this about reparations to a widow, or just sticking it to The Man?  Bastards.

Durandal,

This is all about "Sticking it to the Man" !!! As incredible as it may seem, that fact is openly acknowledged. Out of the $253.4 million awarded, the "punitive damages" component is $229 million. (In other words, even though the jury believes that the plaintiff deserves $24.4 million for pain and suffering and for the wages her husband would have received had he been alive, they decided to add another $229 million to that figure just to teach Merck a lesson!)

I think one important issue is whether juries (or judges) that are handling civil cases should be allowed to decide "punitive damages". If anybody really believe that Merck is guilty of causing somebody to die then shouldn't someone at the very least be tried for manslaughter ? Shouldn't there be a criminal case against whoever in Merck "caused" the death of Robert Ernst ?

The absence of a criminal case makes it obvious that nobody seriously believes that Merck is really guilty of "negligance".

In general the standard of proof in a criminal case is higher (absence of reasonable doubt) than in civil cases (balance of probability). This is the main reason why I assert that punitive damages should not be awarded in civil cases. Nobody should be "punished" unless there is proof beyond reasonable doubt concerning his guilt.

The other reason is that (I think) juries are much more likely to think harder and be more careful in a criminal case that involves the possibility of someone being branded a criminal and going to jail. I don't think juries will(in general) think as hard or be as careful when deciding to impose financial penalties on individuals (or companies) that are either wealthy or are perceived to be wealthy.

Edited by shakthig
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How can these people not dwell on technicalities?!  It's COURT for chrissake!
I believe that the jurors are utterly incompetent to make a finding of fact in this case -- it is certain that not all 12 of them are, even if 1 of them is (and the worst case scenario would be that there was one technically competent but intellectually dishonest juror). This is a pretty basic problem in modern justice, that jurors are called upon to make unreasonable fact-findings, when they have no scientific ability to do so. I have no problem with a dozen honest but scientifically uninformed men deciding that so-and-so behaved irresponsibly and must take responsibility for their actions. But these guys are in absolutely no position to be making a scientific determination of causality, and they should not be put in that position.
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I believe that the jurors are utterly incompetent to make a finding of fact in this case -- it is certain that not all 12 of them are, even if 1 of them is (and the worst case scenario would be that there was one technically competent but intellectually dishonest juror). This is a pretty basic problem in modern justice, that jurors are called upon to make unreasonable fact-findings, when they have no scientific ability to do so. I have no problem with a dozen honest but scientifically uninformed men deciding that so-and-so behaved irresponsibly and must take responsibility for their actions. But these guys are in absolutely no position to be making a scientific determination of causality, and they should not be put in that position.

Good point on that David. You're correct that the jurors themselves aren't necessarily or entirely to blame in such a situation.

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I think one important issue is whether juries (or judges) that are handling civil cases should be allowed to decide "punitive damages". If anybody really believe that Merck is guilty of causing somebody to die then shouldn't someone at the very least be tried for manslaughter ? Shouldn't there be a criminal case against whoever in Merck "caused" the death of Robert Ernst ?

The absence of a criminal case makes it obvious that nobody seriously believes that Merck is really guilty of "negligance".

I don't think you quite get the concept of "negligence". If a person intentionally causes harm to another by his actions, i.e. deliberately and directly poisoning a person, there may be a basis for criminal prosecution. Negligence means failing to use reasonable care.
In general the standard of proof in a criminal case is higher (absence of reasonable doubt) than in civil cases (balance of probability). This is the main reason why I assert that punitive damages should not be awarded in civil cases. Nobody should be "punished" unless there is proof beyond reasonable doubt concerning his guilt.
First, although the usual statement regarding burden of proof is that to find guilt in a criminal case you must find guilt beyond reasonable doubt, this is empirically a lower standard than an alternative standard that the juror must be "firmly convinced". It turns out to be easier to convict a person under the "beyond a reasonable doubt" standard, even though you may think that "beyond a reasonable doubt" is the highest possible standard (the explanation is that jurors simply don't understand the standard, and misapply it). Second, the reasoning you apply would also dictate that compensatory damages should also not be awarded unless the same high standard of proof is maintained. The reason for demanding a high standard of proof is to avoid the injustice of wrongly finding against an innocent defendant. But that potential for injustice exists whether you are ordering the return of the $100,000 down payment or are ordering an additional punitive payment to discourage the evil-doer from doing evil again.

The problem with punes is basically they can be any arbitrary number (in some states, at present), and that there is not a sufficiently high requirement of evilness to award them. States seem to differ as to whether punitive damages can be awarded without showing malice -- from what I can see, the answer is that you can't in Ohio and you can in Texas. So I think the problem is not the factual standard of proof so much as what justifies punes in the first place.

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I hope none of these people ever require medication to control pain. This is just one of many avenues of attack sustained against all such medications. As with so many of the medical cases now clogging the courts, individuals and companies are sued on the basis of bad results, not mal-practice or negligence.

Consider the premise behind such litigation, and what would be required to protect oneself against being sued. Such claims demand omniscience not just on the part of doctors, but on the the entire science of medicine. They also require that every human being be a psysical carbon copy of every other human being so that any tested treatment can be absolutely safe in every instance of its use -- and that there are no acceptable risks involved. If something is dangerous for one person, it is not to be used.

We are all placed in danger everytime something like this happens.

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Durandal,

This is all about "Sticking it to the Man" !!! As incredible as it may seem, that fact is openly acknowledged. Out of the $253.4 million awarded, the "punitive damages" component is $229 million. (In other words, even though the jury believes that the plaintiff deserves $24.4 million for pain and suffering and for the wages her husband would have received had he been alive, they decided to add another $229 million to that figure just to teach Merck a lesson!)  to be wealthy.

Of course the $229m is to 'teach them a lesson'. That's the entire point of punaitive damages, and rightly so. If the company was at fault then it deserves to be hit, hard. The only issue here is whether they were actually responsible.

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That's the entire point of punaitive damages, and rightly so.

Why rightly so? Is punishment above and beyond compensation for injuries (which arguably include court costs and attorney's fees) something that should be meted out in civil judgments? Why isn't punishment the state's job? Why should "preponderance of the evidence" suffice in a proceeding in which the state is prosecuting de facto (since it usually receives the punitive damages)? If your position is that the plaintiff, rather than the state, should receive punitive damages, how do you justify awarding them damages going above and beyond (often, as in this case, WAY beyond) their injuries?

I have no position on this, so my questions should be taken as information gathering rather than argument.

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It just occurred to me how much funnier the thread title would have been if, instead of its current emoticon, Durandal had a pinky-finger-placed-against-lip-corner-a-la-Dr.-Evil emoticon at his disposal. Just do that and say it: two hundred fifty three MILLION dollars. Perhaps the judge or jury should have delivered the verdict in that voice.

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I don't think you quite get the concept of "negligence". If a person intentionally causes harm to another by his actions, i.e. deliberately and directly poisoning a person, there may be a basis for criminal prosecution. Negligence means failing to use reasonable care.

I do understand the meaning of the concept "negligence" and there is no confusion on my part. If you think that a person can never be criminally liable and subject to criminal prosecution for negligence, then you are mistaken.

A person can be prosecuted for a criminal offence if some serious harm occurs due to his negligence and it can be shown that he was careless, inattentive etc.

[The precise definition of criminal negligence would vary according to jurisdiction]

This link has an article about criminal negligence -

http://en.wikipedia.org/wiki/Criminal_negligence

The following quote is taken from that site -

"Criminal negligence, in the realm of criminal common law, is a legal term of art for a state of mind which is careless, inattentive, neglectful, willfully blind, or reckless; it is the mens rea part of a crime which, if occurring simultaneously with the actus reus, gives rise to criminal liability"

Now I'll return to my point concerning "punitive damages". Firstly it should be clear that the money that Merck was ordered to pay for economic damages and pain and suffering was not meant to be a punishment for Merck. It's meant to be restitution for the plaintiff. [One person being ordered to pay money to another person in a civil case doesn't necessarily mean that the concerned person did something wrong and is being punished for that. For example, if a person takes a loan of $5000 from a bank and refuse to pay it later and the bank then goes to court and the court orders him to return the money that he had borrowed plus interest then that order is not meant as a punishment. It is merely an enforcement of the contract between the lender and the borrower. Similarly if a person is unable to continue paying his mortgage and the bank obtains a court order taking possession of his home then that is also not meant to be a punishment. It's an enforcement of a contract.]

Why was Merck ordered to pay $229 million in punitive damages ? Was somebody at Merck careless ? was somebody reckless ? If so then why not bring a criminal case against whoever is guilty ? If not then for what is Merck being punished ?

Edited by shakthig
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Of course the $229m is to 'teach them a lesson'. That's the entire point of punaitive damages, and rightly so. If the company was at fault then it deserves to be hit, hard. The only issue here is whether they were actually responsible.

I didn't say that a company shouldn't be punished if they were at fault. In fact if anyone was really at fault then that person should be hit real hard.

Whoever that is guilty should be criminally prosecuted and sent to jail.

Just think about it. Merck was supposed to have done something really really evil and for that the company is punished with a fine of $229 million. Now if something so evil took place within Merck isn't it suspicious that nobody will spend a single day in jail for this terrible act ?

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First, although the usual statement regarding burden of proof is that to find guilt in a criminal case you must find guilt beyond reasonable doubt, this is empirically a lower standard than an alternative standard that the juror must be "firmly convinced". It turns out to be easier to convict a person under the "beyond a reasonable doubt" standard, even though you may think that "beyond a reasonable doubt" is the highest possible standard (the explanation is that jurors simply don't understand the standard, and misapply it). Second, the reasoning you apply would also dictate that compensatory damages should also not be awarded unless the same high standard of proof is maintained. The reason for demanding a high standard of proof is to avoid the injustice of wrongly finding against an innocent defendant. But that potential for injustice exists whether you are ordering the return of the $100,000 down payment or are ordering an additional punitive payment to discourage the evil-doer from doing evil again.

The problem with punes is basically they can be any arbitrary number (in some states, at present), and that there is not a sufficiently high requirement of evilness to award them. States seem to differ as to whether punitive damages can be awarded without showing malice -- from what I can see, the answer is that you can't in Ohio and you can in Texas. So I think the problem is not the factual standard of proof so much as what justifies punes in the first place.

The standard of proof required for punishments that involve a possibility of jail time is very high. [The fact that people are sometimes convicted even when there is a reasonable doubt concerning their guilt is a separate matter.] This high standard of proof exists to reduce the possibility of convicting an innocent person.

Why should the standard of proof be lowered when the punishment takes the form of a financial penalty ? In my view it is because sending a person to jail is seen to be a very serious matter (which it is) while imposing a financial penalty is considered less serious. To some extent this is true. No amount of money can compensate for the loss of freedom.

But I would contend that often punishments in the form of financial penalties are taken to be less serious than they actually are. Time is money and money is time.

As an example, consider a very extreme example. Imagine a Doctor who works very hard all his life going through medical college and imagine that this doctor works very hard for 20 years and through utmost thrift manages to save $1.5 million. Now imagine that a patient sues the doctor claiming that the negligence on the part of the doctor made his condition worse and asks for restitution for additional medical bills he had to incur (which would have been unnecessary if the doctor hadn't been negligent) and for the emotional pain he suffers. Now imagine that a jury decides "on preponderance of evidence" that the concerned doctor is in fact culpable and decides to award $50,000 for medical bills of the plaintiff, $150,000 for pain and suffering and another $1,300,000 as "punitive damages". The total amount that this doctor is asked to pay would amount to $1.5 million. Isn't this in some way similar to taking away 20 years of his life ? Isn't he entitled to a "beyond reasonable doubt" standard of proof at least for the "punitive damages" component ?

In the case of damages awarded for economic losses and pain and suffering there is at least a plausible argument in favour of lowering the standard of proof that is required. If as a result the doctor wasn't negligent and is wrongly made to pay damages to his patient (the plaintiff) then the doctor has to suffer an injustice. On the other hand if the standard of proof is very high and if the doctor really was negligent and won the case due to a lack of proof then the patient will suffer an equal injustice. He would be denied the restitution that was rightly his.

But what justifies a lower standard of proof for punitive damages ?

Edited by shakthig
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In the case of damages awarded for economic losses and pain and suffering there is at least a plausible argument in favour of lowering the standard of proof that is required.

What is this plausible argument? I ask because, as David suggested, your "time is money" argument supports a higher standard for everything.

Also, I think your closing question should be phrased "What justifies not requiring a higher standard of proof for punitive damages?". As it is, punitives get the same standard as other damages in civil cases. The phrasing I have suggested reflects that.

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:confused: America's court system. It's nothing but a big joke. We let 'the common man' decide what is right and what is wrong. What looks wonderful at first sight just means the democratization and therefore relativisation of justice. In the end it means right and wrong are in the eye of the beholder. Let's vote if 2+2=4!

Especially in such a case where it is about finding out if a certain chemical caused a certain disease this attempt is ridiculous. And the jury's 'not getting into the technicalties' is a good sign for that. It boiled down to: the company made money. The man died. The company is evil and the man is good. Even though the two are completely uncorrelated.

But America is well-known as the country where you can make millions by being too stupid to drink a cup of coffee. (...by sueing McDonald's)

And did I get that right that the state gets most of the money ??!!!

Holy crap! How could America survive for so long with such a system of justice?

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If you think that a person can never be criminally liable and subject to criminal prosecution for negligence, then you are mistaken.
No, I certainly don't think that. I misunderstood your point about the connection between criminal prosecution and punitive damages: I thought you were saying that the fact that there wasn't a criminal prosecution was some kind of evidence that the death was caused by innocent error. My point was simply that the lack of criminal prosecution isn't evidence of anything.
Firstly it should be clear that the money that Merck was ordered to pay for economic damages and pain and suffering was not meant to be a punishment for Merck. It's meant to be restitution for the plaintiff.
(Note BTW Merck has not been ordered to pay anything: that will be later). That's pretty much contained in the nature of the terms "punitive damages" vs. "compensatory damages" -- the non-punitive damages are not a punishment. I don't see how that relates to anything. You are wrong, in fact, in claiming that a person being ordered to pay damages does not mean that there was a finding of wrongdoing. So if a person borrows $5000 from a bank and refuses to pay it back, that is a wrong. Tort law is all about wrongs. Anyhow, you seem to be objecting to punitive damages no matter what. If so, perhaps it would be more efficient for you to directly take on the concept of punishment and argue that it is unjust, if that's what you believe.
Why was Merck ordered to pay $229 million in punitive damages ? Was somebody at Merck careless ? was somebody reckless ?
The reason, as I understand it, is that the company knew that Vioxx doubled your chances of heart attack, they knew that fact two years before they started to market the drug, and they willfully withheld that information from customers. Of course it will take some time to determine whether that really is the basis for the verdict, and depending on how reticent the jurors are, we may never know for sure what they were thinking. Though I don't think this is the kind of trial where jurors will have a reason to be close-mouthed. The other question to ask, of course, is whether the evidence supports that conclusion, and since I haven't seen the evidence, I have no opinion.
If so then why not bring a criminal case against whoever is guilty ?
That's an interesting question. One answer is that it may not be a crime to withhold material information from customers. In the UK, that wouldn't matter and you could be prosecuted for bad behavior, but the US has repudiated the idea of common law crimes, which is why we have explicit statutes against murder, unlike England. The other reason is that you have to be able to pin the crime on a specific person. Thus the evidence that Merck (speaking collectively) knowingly withheld material information from customers might be there, without there being sufficient evidence that Bill Williams or Tommy Thompson, specifically, ordered that information to be withheld. That's why the lack of criminal prosecution is non-probative.
Why should the standard of proof be lowered when the punishment takes the form of a financial penalty ? In my view it is because sending a person to jail is seen to be a very serious matter (which it is) while imposing a financial penalty is considered less serious. To some extent this is true. No amount of money can compensate for the loss of freedom.
I'm open to this line of argument, but you first have to stop focusing on punitive damages. All you are doing is arguing that a higher standard of proof should be required in all cases at law. Your argument doesn't address the difference between compensatory and punitive damages, and your argument applies equally as well to compensatory damages.

I suggested that attention should really be on what triggers punes, and you don't seem to be in favor of changing that standard, so let's just focus on the level of proof required to get any judgment, period. I reject the "reasonable doubt" standard as being too low, resulting in too many false convictions, so I will substitute the "firmly convinced" standard in this discussion, since it seems to require the highest level of proof, and that's what we're looking for. That is a possible legal reform: the question is what effect it would have on the rule of law, in particular in civil cases because that's where the change is being made. The result would simply be that contracts are less enforceable, because it would be much harder to prove breach or to prove damages. This isn't necessarily a bad thing, except insofar as it encourages widepread epistemological rot in the form of people saying "But I didn't know..." and letting that constitute proof of innocence.

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I explained in my previous post why there is a plausible argument in favor of having a lower standard of proof for economic damages and pain and suffering damages etc. (which are based on the principle of restitution) while having a higher standard of proof for punitive damages (where the intent is punishment). (It's the paragraph right above the question "But what justifies a lower standard of proof for punitive damages? ")

I'll try to make my point in a clearer manner. Firstly I'll restate my position. The standard of proof required for criminal cases ought to be the highest standard of proof.(If by any chance this is not the case then that would be appalling.) The standard of proof required for punitive damages should be that same "highest standard of proof". The standard of proof required for awarding damages based on the principle of restitution should be a lower intermediate standard of proof.

In my previous post I explained why the highest standard of proof that ought to be required in criminal cases should also be required when awarding punitive damages.("The Doctor example").

Now if the highest standard of proof ought to be required when awarding punitive damages then why should the standard that ought to be required for awarding economic damages and pain and suffering damages be lower ? What justifies requiring different standard of proof for awarding damages which are meant to be a punishment and for damages which are meant to be restitution?

I'll begin by explaining why the standard of proof that ought to be required for awarding restitution based damages should not be too high. It's basically because the possibility of injustice applies to both parties. If the allegation made by the plaintiff were to be false then awarding damages would be an injustice to the defendant.(I think the more accurate word would be "respondent"). On the other hand if the allegation made by the plaintiff is true then not awarding damages would be an injustice to the plaintiff.

Let’s start with an example where this becomes very obvious. Imagine that there are two people called Paul and Peter and that Paul is suing Peter claiming that Peter had borrowed $1000 dollars from him and seeking a court order instructing Peter to return the money. Assume that Peter claims that he never borrowed any money from Paul and that Paul is lying. Now the jury has to decide whether Paul or Peter is telling the truth. Since Paul is the plaintiff the burden of proof will be on him. In this case, either Paul is telling the truth or Peter is telling the truth and one of them is dishonest. Either Paul wins the case or Peter wins the case. Hence there are 4 possibilities.

1)Paul is telling the truth and Peter is dishonest and Paul wins the case - In this case justice prevails.

2)Paul is dishonest and Peter is telling the truth and Peter wins the case - Here also justice prevails.

3)Paul is telling the truth and Peter is dishonest and Peter wins the case - This results in an injustice to Paul. Paul would be denied the return of the money that he had lent to Peter.

4)Paul is dishonest and Peter is telling the truth and Paul wins the case - This would result in an injustice to Peter. He would have to pay Paul $1000 even though he never borrowed money from Paul.

If the standard of proof that is expected from Paul is too high then that will increase the likelihood that Paul will be subject to injustice. If the standard of proof that is required is too low then that will increase the likelihood that Peter will face an injustice. If the required standard of proof were intermediate then there will be a possibility that Paul might face an injustice or that Peter might face an injustice. But given the nature of the case, it would (unfortunately) be impossible to devise a standard which makes it very unlikely that nobody would face an injustice and an intermediate standard of proof would be the fairest option.

The basic principle here is that when a decision is made to award or refrain from awarding damages based on the principle of restitution the possibility of injustice applies to both parties. Being denied restitution to which a person is rightly entitled would be (almost) as much an injustice as being made to pay restitution when a person hasn't done anything wrong.

This principle will hold regardless of the nature of the restitution. It would apply to the case of a patient who claims to be the victim of medical negligence (in the example I considered in my previous post). In this case applying a standard of proof that is too high would not be appropriate because anyone who is a victim of medical negligence has a right to obtain restitution and if the standard of proof is too high there is a high possibility of such a person being denied justice.

Now why wouldn't this same argument apply to punitive damages? That's because in principle, punitive damages aren’t awarded for the sake of ensuring that the plaintiff finds justice. Punitive damages are awarded so as to punish a person who has done something wrong. Let’s consider the example I gave in my previous post in which a doctor is sued for medical negligence. In that case the patient was awarded $50,000 for medical costs and $150,000 for pain and suffering. Those damages ensure that the patient was adequately compensated. Being denied damages over and above what would be necessary for the purpose of restitution would not be an injustice to the patient. Thus being denied punitive damages would not be an injustice to the patient even if the doctor had actually been negligent as alleged by the patient. On the other hand if the allegation of negligence is false (or mistaken) and if the doctor is made to pay punitive damages due to the fact that the standard of proof is too low, then that would be an injustice to the doctor. Introducing the highest standard of proof for the purpose of deciding whether to award punitive damages would minimize the possibility of the doctor being subject to an injustice without introducing the possibility of the patient being subject to injustice.

The basic principle here is that decisions concerning damages meant for restitution involve the possibility of injustice to the "defendant" or plaintiff. On the other hand decisions concerning punitive damages do not involve the possibility of the plaintiff being subject to injustice while involving the possibility of the "defendant" being treated unjustly.

Edited by shakthig
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You are wrong, in fact, in claiming that a person being ordered to pay damages does not mean that there was a finding of wrongdoing. So if a person borrows $5000 from a bank and refuses to pay it back, that is a wrong. Tort law is all about wrongs. Anyhow, you seem to be objecting to punitive damages no matter what. If so, perhaps it would be more efficient for you to directly take on the concept of punishment and argue that it is unjust, if that's what you believe.

I should have phrased my sentence concerning one person borrowing money from someone else and then refusing to return it in a better way. It certainly is wrong to borrow money and refuse to return it. My point was that being ordered to return the money that was borrowed was not a punishment. It is restitution. If the intent is to punish then the person who had borrowed money should be ordered to pay an amount that exceeds the amount that he borrowed.(plus interest)

I agree with you that Tort law is all about "wrongs". And I agree that I was mistaken on this point. I had thought that in some cases being ordered to pay damages merely establishes a legal financial obligation without necessarily implying that the person ordered to pay damages had done something wrong. Also, I now realise that the second example I gave (where a bank seeks a court order to take possession of the home of a person who is no longer able to pay the mortgage) is not even a "tort law" case ! Thanks for forcing me to examine this issue further!

(But the arguments that I present concerning the standard of proof for awarding punitive damages still stand.)

I did not imply that I am against punishment or that I am against punitive damages. My argument only concerns the standard of proof that ought to prevail when making a decision concerning punitive damages.

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According to the AP news yesterday, the jury members apparently decided "not to dwell on technicalities" differentiating arrythmia from heart attacks.  How can these people not dwell on technicalities?!  It's COURT for chrissake! 

In reality, it doesn't matter one iota whether Vioxx killed this man or not. This case should have been laughed out of court before it was even heard.

No one held a gun to this man's head and forced him to take Vioxx. Taking any drug at all has risks. His physician informed him there were certain risks, he performed a cost/benefit analysis, and he chose to take the drug. Whatever happens after that is on him and no one else.

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His physician informed him there were certain risks, he performed a cost/benefit analysis, and he chose to take the drug.  Whatever happens after that is on him and no one else.

I can agree with this as a general standard if it is narrowed. I would say whatever happens after that within the scope of the risk that the person took. (I don't know whether that's true in this case.) I hope you're not suggesting that this would be a defense where you are advised of a risk of heart attack and you sprout a second head, assuming negligence on the company's part.

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Taking any drug at all has risks.  His physician informed him there were certain risks, he performed a cost/benefit analysis, and he chose to take the drug.  Whatever happens after that is on him and no one else.
You don't just limit this to drugs, do you? Buying a car has risks: sometimes the wheels fall off or they flip over at high speeds. Should a car manufacturer have to pay damage for a poorly-built car? The central question here is whether "liability" is a valid concept; or, should all non-criminal legal obligations be reduced to performance of conditions explicitly stated in a contract.
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The standard of proof required for punitive damages should be that same "highest standard of proof". The standard of proof required for awarding damages based on the principle of restitution should be a lower intermediate standard of proof.

{remainder snipped}

I understand your argument now, and I agree that this does show a plausible basis for two levels of proof. It's a particularly good argument because it focuses on the root problem, namely non-omniscience and the possibility of error. (And you're right about me being a slouch with the word defendant).
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