Challenging Awards of Exemplary Damages: The Mosing Factors

Posted 4 years 102 days ago ago by hesterd@ksbrlaw.com

            Mosing v. Domas, 2002-0012 (La. 10/15/02), 830 So. 2d 967 set the standard for exemplary “punitive” damage awards in Louisiana.  Unlike compensatory damages, exemplary damages are meant to punish the tortfeasor, deter the tortfeasor from doing the act again, and deter others from following in the tortfeasor’s footsteps.  Exemplary damages are only recoverable when specifically permitted by statute, such as Louisiana Civil Code articles 2315.4 (drunk driving) and 2315.3 (child pornography).

            The ultimate goal of an exemplary damage award is to be reasonable and sufficient in amount to satisfy the three objectives identified above: punishment, specific deterrence, and general deterrence.  It should be tailored to the particular defendant(s) and the particular circumstances of the case.  Whether or not to award exemplary damages, and the amount thereof, is left to the vast discretion of the jury.  Citing Maraist and Galligan’s treatise, Louisiana Tort Law, Mosing listed a number of factors for the jury to consider:

    - Amount necessary to deter the defendant and others like him from engaging in such conduct in the future;
    - The wealth of the defendant;
    - The severity of the harm with which the plaintiff was threatened;
    - The compensatory damages awarded;
    - The reprehensibility of the defendant’s conduct;
    - The amount of any other punitive damages awarded against the defendant or with which the defendant is threatened; and
    - Any criminal punishment the defendant has suffered or may suffer as a result of the same conduct as that upon which the plaintiff's tort suit is based.


            There are two ways for a litigant to challenge an award of exemplary damages: argue that the jury abused its discretion, or argue that the award violates constitutional due process.  The distinction between these two standards is in the degree of deference given to the jury’s findings.

    I.     Abuse of Discretion

            A litigant may challenge a jury’s verdict by raising an excessiveness claim under state law, for which an appellate court reviews for abuse of discretion and gives deference to the jury’s findings.  There are four criteria the court must analyze to decide if the amount of an exemplary damage award was an abuse of the jury’s discretion:

            1.   Degree of reprehensibility of the defendant's conduct;

            2.   Disparity between the harm suffered by the plaintiff and the exemplary damages awarded;

            3.   Difference between the exemplary damages awarded and the civil or criminal penalties authorized or imposed in comparable cases; and

            4.   Wealth of the defendant.

Mosing, 830 So. 2d at 978; Leary v. State Farm Mut. Auto. Ins. Co., 2007-1184 (La. App. 3d Cir. 3/5/08), 978 So. 2d 1094, 1102; Thistlethwaite v. Gonzalez, 12-130 (La. App. 5th Cir. 12/18/12), 106 So. 3d 238, 263.

    II.   Due Process

            A constitutional due process argument, on the other hand, arises under federal law and mandates a de novo review by the appellate court, and no deference is given to the jury’s findings.  An award of exemplary damages violates due process when it is grossly excessive in comparison to the State’s legitimate interests in punishment and deterrence.  BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 568 (1996).  The factors to consider include:

            1.   Degree of reprehensibility of the defendant’s conduct;

            2.   Disparity between the harm or potential harm suffered by the plaintiff and the exemplary damages awarded;

            3.   Difference between this remedy and the civil penalties authorized or imposed in comparable cases; and

            4.   Wealth of the defendant.

Mosing, 830 So. 2d at 975; BMW, 517 U.S. at 575.

            As Mosing discusses, constitutional review of an exemplary damage award involves the same subjective factors as a state law excessiveness claim, but under a de novo approach.  However, in practice, the key element becomes the numerical ratio between the compensatory damage award and the exemplary damage award.  Mosing approved awards of exemplary damages up to nine times those of the compensatory damages awarded.  While the United States Supreme Court has limited awards in some non-personal injury cases to lower ratios, it has approved a 9 to 1 ratio consistent with Mosing in a non-personal injury case.  State Farm Mut. Auto. Ins. Co. v. Campbell, 98 P.3d 409 (2004), writ denied, 543 U.S. 874 (2004).  Even more recently, in the first personal injury case to receive United State Supreme Court review, an award approaching 100 to 1 was approved in a wrongful death case.  Philip Morris USA, Inc. v. Williams, 344 Or. 45, 176 P.3d 1255 (2008), cert dis. as improvidently granted, Philip Morris USA, Inc. v. Williams, 556 U.S. 178 (2009).

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