Punitives in Employment Law

Punitive damages have been likened to the nuclear arsenal of big-ticket employment litigation. Chopourian v. Catholic Healthcare West, (E.D. Cal. 2012), was a stunning recent win for a 45-year-old surgical physician’s assistant. Plaintiff claimed she was subjected to unwanted sexual advances, physical conduct and demeaning sexual comments. A number of retaliatory actions by the employer, both during and after her employment, were also alleged. The jury awarded $125 million in punitive damages based on $43 million in compensatory damages.

Whether or not the punitive award in Chopourian withstands appellate scrutiny, it is illustrative of the magnitude of potential exposure the threat of punitive damages poses. However, because a high percentage of employment law cases settle, the possibility of actually getting to a phase-two trial on punitive damages, or winning a big award is often perceived as remote. Your knowledge and ability to communicate effectively regarding the risk of punitive exposure is essential to any meaningful dialogue on the issue in settlement discussions or at mediation. At trial, plaintiff’s counsel should consider asking the prospective jurors in voir dire if they will follow the court’s instructions on the law and treat the corporate defendant as a “person,” consistent with CACI 104. Then, at the closing argument on the proper amount of punitive damages, if any, to be imposed, jurors will be reminded of their promise. Particularly with rich corporations, punishment of only 1 percent of net worth would compare favorably with the treatment an individual defendant might receive.