CACI No. 3944

Conduct of a Specific Agent or Employee—Bifurcated Trial (First

Phase)

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. At this time, you must decide whether [name of plaintiff]

has proved by clear and convincing evidence that [name of

employee/agent] engaged in that conduct with malice, oppression, or

fraud. The amount of punitive damages, if any, will be decided later.

“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.

New September 2003; Revised April 2004, December 2005, May 2020