The drafting of jury instructions on punitive damages presents unique challenges for defense lawyers.  On the one hand, it is generally necessary to ask for an instruction that goes beyond existing law in order to preserve the argument that the law should be changed.  That is how the harm-to-nonparties issue was teed up in Philip Morris v. Williams.  And just importantly, because most pattern instructions on punitive damages are fairly perfunctory, it is often necessary to propose a more expansive alternative to ensure that the jury is adequately apprised of even existing law.

On the other hand, proposing an instruction that goes too far can result in reversal of a favorable verdict if the trial court goes along and gives it.  That is what happened in Cain v. Lee, a case recently decided by the Virginia Supreme Court.

Cain is the second drunk-driving case covered in this blog this month.  Although the facts are not apt to be relevant to our readers, the holding should be.

The three plaintiffs, Julia Cain and her daughters Raven Cain and Reannah Cain, sued Joe Lee for personal injuries after he rear-ended their vehicle while intoxicated.  After the trial court gave the jury an instruction stating that “[p]unitive damages are generally not favored and should be awarded only in cases involving egregious conduct,” the jury awarded the plaintiffs a total of $12,000 in compensatory damages and $1,500 in punitive damages.  The plaintiffs appealed, contending that it was error to give this instruction.

Acknowledging that the part of the instruction about punitive damages being disfavored “was taken directly from” one of its prior decisions, the Virginia Supreme Court nonetheless reversed.  It explained that “this case provides yet another illustration of the error addressed in our repeated admonishment about the danger of the indiscriminate use of language from appellate opinions in a jury instruction.”  The court cautioned that “the language used in our opinions may include ‘argumentative language’ about legal matters that is inappropriate for consideration by the jury” and stated that the language quoted in the opinion about punitive damages being disfavored is an example of the kind of argumentative language that should be avoided.

The Virginia Supreme Court also held that the trial court independently erred by instructing the jury that punitive damages should be awarded only in cases involving egregious conduct.  The court explained that, for purposes of the statutory claim brought by the plaintiffs, “the finder of fact may award punitive damages if the evidence demonstrates: (1) the defendant was intoxicated at the time of accident; (2) the defendant knew or should have known his ability to operate a motor vehicle was impaired; and (3) the defendant’s intoxication was a proximate cause of the injury to the plaintiff or death of the plaintiff’s decedent.”  As the court saw it, the instruction erroneously required the plaintiffs to prove that the defendant’s conduct was egregious—“an additional element not included in the statute.”

This decision should be disconcerting for defense counsel who have become accustomed to basing jury instructions on language taken straight out of prior decisions.  Of course, not every court is apt to take the same view as the Virginia Supreme Court on this practice, so the lesson here is that defense counsel need to thoroughly research not only the substantive law of the relevant jurisdiction, but also the jurisdiction’s case law on jury instructions.