CACI No. 3943

Conduct of a Specific Agent or Employee—Trial Not Bifurcated

If you decide that [name of employee/agent]’s conduct caused [name of

plaintiff] harm, you must decide whether that conduct justifies an award

of punitive damages against [name of defendant] for [name of employee/

agent]’s conduct. The purposes of punitive damages are to punish a

wrongdoer for the conduct that harmed the plaintiff and to discourage

similar conduct in the future.

Y ou may award punitive damages against [name of defendant] for [name

of employee/agent]’s conduct only if [name of plaintiff] proves by clear and

convincing evidence that [name of employee/agent] engaged in that

conduct with malice, oppression, or fraud.

“Malice” means that [name of employee/agent] acted with intent to cause

injury or that [name of employee/agent]’s conduct was despicable and was

done with a willful and knowing disregard of the rights or safety of

another. A person acts with knowing disregard when the person is aware

of the probable dangerous consequences of the person’s conduct and

deliberately fails to avoid those consequences.

“Oppression” means that [name of employee/agent]’s conduct was

despicable and subjected [name of plaintiff] to cruel and unjust hardship

in knowing disregard of [his/her/ nonbinary pronoun] rights.

“Despicable conduct” is conduct that is so vile, base, or contemptible

that it would be looked down on and despised by reasonable people.

“Fraud” means that [name of employee/agent] intentionally

misrepresented or concealed a material fact and did so intending to

harm [name of plaintiff].

[Name of plaintiff] must also prove [one of] the following by clear and

convincing evidence:

1. [That [name of employee/agent] was an officer, a director, or a

managing agent of [name of defendant], who was acting on behalf

of [name of defendant]; [or]]

2. [That an officer, a director, or a managing agent of [name of

defendant] had advance knowledge of the unfitness of [name of

employee/agent] and employed [him/her/ nonbinary pronoun] with a

knowing disregard of the rights or safety of others; [or]]

3. [That an officer, a director, or a managing agent of [name of

defendant] authorized [name of employee/agent]’s conduct; [or]]

4. [That an officer, a director, or a managing agent of [name of

defendant] knew of [name of employee/agent]’s wrongful conduct

and adopted or approved the conduct after it occurred.]

An employee is a “managing agent” if the employee exercises substantial

independent authority and judgment in corporate decisionmaking such

that the employee’s decisions ultimately determine corporate policy.

There is no fixed formula for determining the amount of punitive

damages, and you are not required to award any punitive damages. If

you decide to award punitive damages, you should consider all of the

following factors in determining the amount:

(a) How reprehensible was [name of defendant]’s conduct? In deciding

how reprehensible [name of defendant]’s conduct was, you may

consider, among other factors:

1. Whether the conduct caused physical harm;

2. Whether [name of defendant] disregarded the health or safety

of others;

3. Whether [name of plaintiff] was financially weak or vulnerable

and [name of defendant] knew [name of plaintiff] was financially

weak or vulnerable and took advantage of [him/her/ nonbinary

pronoun/it];

4. Whether [name of defendant]’s conduct involved a pattern or

practice; and

5. Whether [name of defendant] acted with trickery or deceit.

(b) Is there a reasonable relationship between the amount of punitive

damages and [name of plaintiff]’s harm [or between the amount of

punitive damages and potential harm to [name of plaintiff] that

[name of defendant] knew was likely to occur because of [his/her/

nonbinary pronoun /its] conduct]?

(c) In view of [name of defendant]’s financial condition, what amount

is necessary to punish [him/her/ nonbinary pronoun /it] and

discourage future wrongful conduct? You may not increase the

punitive award above an amount that is otherwise appropriate

merely because [name of defendant] has substantial financial

resources. [Any award you impose may not exceed [name of

defendant]’s ability to pay.]

[Punitive damages may not be used to punish [name of defendant] for the

impact of [his/her/ nonbinary pronoun/its] alleged misconduct on persons

other than [name of plaintiff].]

New September 2003; Revised April 2004, October 2004, December 2005, June

DAMAGES CACI No. 3943

2006, April 2007, August 2007, October 2008, May 2020