Punitive damages in general and "blockbuster" punitive damages in particular continue to exercise unusual influence in tort reform, especially given their relative and absolute scarcity. Empirical scarcity notwithstanding, punitive awards certainly warrant close and rigorous examination. Building on an earlier set of papers, Kip Viscusi (Vanderbilt) and Benjamin McMichael (Vanderbilt Business School) assess "blockbuster" awards on both empirical and normative fronts. Their paper, Taming Blockbuster Punitive Damages Awards, exploits data on the 137 punitive damages awards that were imposed between 1981 and 2013. Of note is a "heat map" (below) which illustrates the distributions of blockbuster awards across states, with darker states having had more such awards.
As the authors note, "unsurprisingly, populous states like Texas and California have had the most blockbuster awards. Interestingly, however, smaller states such as West Virginia, Alabama, and Oregon have had several awards within their borders."
An excerpted abstract follows.
"Blockbuster punitive damages awards, i.e., those awards exceeding $100 million, attract attention based on their sheer size. While there have been fewer such awards in the last decade, they remain an important presence in the legal landscape.... This Article provides the first empirical analysis of the effect of state punitive damages caps on blockbuster awards and offers the first comparison of the effect of these reforms with the effect of the Supreme Court’s current constitutional doctrine on punitive damages. Understanding the roles of these legal regimes in how the largest punitive damages awards are imposed provides unique insight into how different factors affect courts’ decisions to award punitive damages. Relying on this insight, as well as previously developed empirical evidence, we argue that it is time for a new constitutional doctrine on punitive damages. In particular, we argue that the Supreme Court should incorporate the lessons learned from the different effects of state punitive damages caps to lower the limit placed on punitive damages under the Due Process Clause. For cases involving financial loss, punitive awards more than three times the size of the accompanying compensatory award will generally violate due process. For cases involving severe injuries, such as wrongful deaths, the total value of punitive damages and compensatory damages should not exceed economic estimates of the value of a statistical life, which is an economic deterrence measure. This proposed structure would better achieve the Court’s goal of returning predictability to punitive damages awards, blockbuster and otherwise."