3d Cir. Model Jury Instr. (Civil) 4.8.3

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Last updated March 2026

defendant directly on account of harms it is alleged to have visited on nonparties.” Id. States145 1

must ensure “that juries are not asking the wrong question, i.e., seeking, not simply to determine 2

reprehensibility, but also to punish for harm caused strangers.” Id. “[W]here the risk of that 3

misunderstanding is a significant one – because, for instance, of the sort of evidence that was 4

introduced at trial or the kinds of argument the plaintiff made to the jury – a court, upon request, 5

must protect against that risk.” Id. at 1065. 6

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Accordingly, where evidence or counsel ’s argument to the jury indicates that the 8

defendant’s conduct harmed people other than the plaintiff, Philip Morris requires the court – upon 9

request – to ensure that the jury is not confused as to the use it can make of this information in 10

assessing punitive damages. The Philip Morris Court did not specify how the trial court should 11

prevent jury confusion on this issue. The penultimate paragraph in Instruction 4.8.3 attempts to 12

explain the distinction between permissible and impermissible uses of information relating to harm 13

to third parties. This paragraph is bracketed to indicate that it should be given only when 14

necessitated by the evidence or argument presented to the jury. 15

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The model does not state that reprehensibility is a prerequisite to the award of punitive 17

damages, because precedent in civil rights cases indicates that the jury can award punitive damages 18

if it finds the defendant maliciously or wantonly violated the plaintiff’s rights, without separately 19

finding that the defendant’s conduct was egregious. In Kolstad, the Supreme Court interpreted a 20

statutory requirement that the jury must find the defendant acted “with malice or with reckless 21

indifference to the federally protected rights of an aggrieved individual” in order to award punitive 22

damages under Title VII. See Kolstad, 527 U.S. at 534 (quoting 42 U.S.C. § 1981a(b)(1)). 23

Reasoning that “[t]he terms ‘malice’ and ‘reckless’ ultimately focus on the actor's state of mind,” 24

the Court rejected the view “that eligibility for punitive damages can only be described in terms of 25

an employer's ‘ egregious’ misconduct.” Kolstad, 527 U.S. at 534- 35. Since the Kolstad Court 26

drew on the Smith v. Wade standard in delineating the punitive damages standard under Title VII, 27

Kolstad’s reasoning seems equally applicable to the standard for punitive damages under Section 28

1983. The Third Circuit has applied Kolstad’ s definition of recklessness to a Section 1983 case, 29

albeit in a non-precedential opinion. See Whittaker v. Fayette County, 65 Fed. Appx. 387, 393 (3d 30

Cir. April 9, 2003) (non- precedential opinion); see also Schall v. Vazquez, 322 F. Supp. 2d 594, 31

602 (E.D. Pa. 2004) (in a Section 1983 case, applying Kolstad’ s holding “that a defendant's state 32

of mind and not the egregious conduct is determinative in awarding punitive damages”). 33

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145 Philip Morris concerned a state -law claim litigated in state court and thus the Court

focused on the limits imposed by the Fourteenth Amendment’s Due Process Clause on state

governments. Presumably, the Fifth Amendment’s Due Process Clause imposes a similar

constraint with respect to federal claims litigated in federal court.