As most nursing home abuse attorneys know, reviewing courts will only allow an amount of a punitive damage award to stand that is “reasonably related” to the harm suffered by the plaintiff. This typically has been expressed in terms of ratio between the value of the harm and punitive damages. While cases have been all over the map in defining the maximum allowable ratio (ranging from 1:1 to 50:1 or even more (depending on a variety of factors), a fair benchmark under current law is that a single digit multiplier has at least a reasonable chance of surviving appellate scrutiny in elder abuse death cases, given the inherent severity of harm in these cases.
Assuming this is true, how is the practitioner put a number on the harm to plaintiff?
The standard thinking is that the amount of damages awarded by a jury should be used. While this is can be an appropriate starting point, we note three important items.
First, the law is clear that the amount of the unremitted damages awarded by the jury will control. In other words, to the extent that an award of pain and suffering damages gets reduced by operation of law to $250,000 under the Elder Abuse Act, the original amount the jury awarded before reduction will be the key number for punitive damages “reasonable relationship” purposes. For this reason, practitioners should argue for a large pain and suffering award even if they believe the award will be reduced by the Court in post-trial proceedings.
Second, practitioners should remember that wrongful death damages may not be used as part of the analysis. California law is clear that punitive damages cannot be awarded in connection with a wrongful death cause of action.
Third, at least one California case has held that the value to a decedent of years of lost life can be considered in determining the amount of harm suffered. While there is no ability to recover for this loss under California law, it nevertheless can and should be considered in determining the extent of “harm” to be compared to the punitive damages. Practitioners may consider presenting a number to the jury in the punitive damages that equates to the loss of a certain amount of years of life.For Attorneys