OUJI-CIV No. 5.9

EXEMPLARY OR PUNITIVE DAMAGES --- SECOND STAGE

Ladies and Gentlemen of the jury, you ha ve found in favor of the plaintiff and

granted him/her actual damages, and you have also found by a separate verdict that the

defendant (acted with reckless disregard of the rights of others) (and/or) (acted

intentionally and with malice towards others).

You may now, in addition to actual dama ges, grant the plaintiff punitive damages

in such sum as you reasonably believe will punish defendant and be an example to others.

Punitive damages are not to be considered as compensation to [Plaintiff], but as

punishment to [Defendant], and as an example to others to deter them from like conduct.

The law does not require you to award punitiv e damages, and if you do so, you must use

sound reason in setting the amount. You shoul d be aware that the purpose of punitive

damages is to punish and not destroy a defendant.

[You may consider evidence of actual harm to others in determining the

seriousness of the hazard to the public and thus whether the conduct that harmed

the plaintiff was particularly reprehensibl e or bad. Conduct that risks harm to

many may be more reprehensible than conduc t that risks harm to only a few.

However, you may not use punitive damages to punish [Defendant] directly on

account of harms that [Defendant] may have caused to others.]

In determining the amount of punitive damages, you may consider the following

factors:

1. The seriousness of the hazard to the public arising from [Defendant]'s

misconduct;

2. The profitability of the misconduct to [Defendant];

3. How long the conduct lasted and whether it is likely to continue;

OUJI 3d (Rev. 2009) Chapter 5

4. Whether there were attempts to conceal the misconduct;

5. How aware [Defendant] was of the conduct and its consequences and

how aware [Defendant] was of the hazard and of its excessiveness;

6. The attitude and conduct of [Defendant] upon finding out about the

misconduct/hazard;

7. The financial condition of [Defendant];

8. (If the defendant is a corporation or other entity ) The number and

level of employees involved in causing or concealing the misconduct.

In no event should the punitive damages exceed the greater of: ( Select One)

[$100,000.00 or the amount of actual damages you have previously

awarded].

OR

[$500,000.00, or twice the amount of actual damages you have previously

awarded, or the increased financial benefit derived by the defendant as a

direct result of the conduct causing the injury to the plaintiff].