CACI No. 3945

If you decide that [name of defendant]’s conduct caused [name of plaintiff]

harm, you must decide whether that conduct justifies an award of

punitive damages. 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] only if

[name of plaintiff] proves that [name of defendant] engaged in that conduct

with malice, oppression, or fraud. To do this, [name of plaintiff] must

prove [one of] the following by clear and convincing evidence:

1. [That the conduct constituting malice, oppression, or fraud was

committed by one or more officers, directors, or managing agents

of [name of defendant], who acted on behalf of [name of defendant];

[or]]

2. [That the conduct constituting malice, oppression, or fraud was

authorized by one or more officers, directors, or managing agents

of [name of defendant]; [or]]

3. [That one or more officers, directors, or managing agents of

[name of defendant] knew of the conduct constituting malice,

oppression, or fraud and adopted or approved that conduct after

it occurred.]

“Malice” means that [name of defendant] acted with intent to cause

injury or that [name of defendant]’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 defendant]’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 defendant] intentionally misrepresented or

concealed a material fact and did so intending to harm [name of

plaintiff].

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 2004; Revised April 2004, June 2004, December 2005, June 2006,

April 2007, August 2007, October 2008, May 2020