The U.S. Supreme Court has repeatedly declined to articulate a bright line rule capping the amount a jury may award in punitive damages.[1] But it has cautioned that “few awards exceeding a single digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.[2] This ratio test has been the source of a great deal of confusion, including as to whether, in multi-defendant cases, it should be calculated on a per-judgment or per-defendant basis. In Bert Company v. Turk, the Pennsylvania Supreme lent its weight to the per-defendant approach.[3]

Turk arose out of a plot by an insurance broker, Matthew Turk, and First National Insurance Company (“First National”) to take over Turk’s employer, The Bert Company (hereinafter “Northwest”). Defendants planned to lure away Northwest’s clients and personnel and eventually force the sale of Northwest’s remaining portfolio to First National.[4] Northwest brought an action to recover for breach of contract, breach of fiduciary duty, and theft of trade secrets against its former employees, unfair competition against First National, and misappropriation of trade secrets, tortious interference with contract, and civil conspiracy against Turk and First National.[5]

The jury found Turk and First National—along with its parent company and another subsidiary (collectively “Defendants”)—liable for breach of contract, breach of fiduciary duty, and civil conspiracy.[6] First National and the other corporate defendants were found additionally liable for civil conspiracy and unfair competition.[7] By agreement of the parties, compensatory damages were awarded as a lump sum, limited to the highest amount awarded on any one cause of action.[8] Turk and First National and were found jointly and severally responsible for $164,943 in damages, and the corporate defendants collectively were found jointly and severally liable for $250,000.[9] While there was no allocation of compensatory damages among the defendants, individualized punitive damages were assessed in the amounts of $300,000 against Turk, $500,000 against First National, the same against the other subsidiary, and $1.5 million against their parent company.[10]

On appeal, first to the Superior Court and ultimately to Pennsylvania’s Supreme Court, the Defendants challenged the constitutionality of the punitive damages awards. Defendants argued that the ratio between the compensatory and punitive damages awards should be determined on a “per-judgment” basis, dividing the punitive damages assessed against all defendants by the compensatory damages assessed against all defendants.[11] The plaintiff argued for the “per-defendant” approach, i.e., dividing the punitive damages assessed against each individual defendant by the compensatory damages awarded against that defendant.[12]

In most cases, courts utilizing the per-defendant approach have already assessed compensatory damages individually, and compared those awards to individually assessed punitive damages.[13] But in Turk, compensatory damages could not be so cleanly divided. Defendants were found jointly and severally liable for one indivisible sum. Under these circumstances, Defendants argued, adopting the per-defendant approach would result in an apples-to-oranges comparison. Weighing individually assessed punitive damages against the total compensatory damages awarded would “perpetuate a fiction,” “[by] count[ing] the same compensatory damages award multiple times . . . despite the fact that it is logically impossible that each defendant will pay the full amount of a compensatory damages award in a joint and several liability scenario.”[14]

The Pennsylvania Supreme Court, reviewing de novo the relationship between the compensatory and punitive damages awards, disagreed and adopted the per-defendant ratio approach. The court emphasized that the per-defendant ratio assesses the individualized impact intended by the punitive damages awards, whereas the per-judgment approach “obliterates the jury’s assessment of each defendant’s reprehensibility” and “distorts the analysis by obscuring the due process rights of the individual defendants.”[15] The court rejected the defendants’ contention that applying the per-defendant approach against jointly and severally liable defendants perpetuates a fiction, writing that “this approach effectuate[s] the parties’ agreement to have the compensatory damages award reflect [state law’s] directive that [joint] tortfeasors are in fact individually liable to the victim of an intentional tort for the full amount of damages.” And “as a result, the verdict returned by the jury reflected an indivisible harm,” tampering with which was not within the court’s purview.[16]

After adopting the per-defendant ratio, the court proceeded to consider whether potential harm a plaintiff could have suffered due to the defendant’s misconduct may be properly considered in assessing the constitutionality of a punitive damages award.[17] The court held that the court below did not err by considering potential harm.[18] While potential harm should not be “mechanically add[ed]” to the actual compensatory damages for purposes of “recomput[ing] the ratio,” the magnitude of potential harm intended by defendants may, nevertheless, “shed light” on the proportionality of punitive to compensatory damages.[19]

Finally, the court considered whether, in cases where the compensatory damages award is “substantial,” a punitive-to-compensatory damages ratio exceeding 9:1 is presumptively unconstitutional.[20] In dicta, State Farm instructed that “[w]hen compensatory damages are substantial, [] a lesser ratio, perhaps only equal to compensatory damages, can reach the outermost limit of the due process guarantee.”[21]

After a brief acknowledgement of methods adopted by sister courts for measuring when compensatory damages become “substantial,[22] the Pennsylvania Supreme Court determined that no single consideration was controlling. A “multitude of factors [] might influence a determination of whether a compensatory damages award is or is not substantial.”[23] Among them, the court singled out again the magnitude of potential harm, specifically, as compared to the actual damages awarded.[24]

As to whether substantial awards exceeding the 9:1 ratio are presumptively unconstitutional, the court answered in the negative. Although the court in State Farm observed that “in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process,” in the court’s view, this meant at most that “such a ratio requires a closer examination of the justification for the punitive damages award.”[25] While a punitive damages award exceeding a single-digit ratio to a “significant degree” may trigger judicial suspicion, it does not license a presumption of unconstitutionality.[26]

Justice Dougherty, concurring, emphasized that a defendant’s wealth is a relevant variable when evaluating whether a punitive damages award is constitutionally excessive.[27]

Justices Mundy and Brobson concurred in the judgment.[28] Writing separately, they each expressed their willingness to hold open the possibility that other approaches to calculating the ratio, including the per-judgment approach, would also be constitutionally permissible under different facts.[29]  

Finally, in his lengthy concurrence, Justice Wecht took aim at the Supreme Court’s “bewildering substantive due process jurisprudence,”[30] out of which the current state of law on punitive damages stems, which he described as “riddled with caveats, qualifiers, and porous ‘guideposts’ . . . render[ing] that analysis nearly incapable of principled application to concrete cases.”[31]


[1] See Pacific Mutual Life Insurance v. Haslip, 499 U.S. 1, 18-19 (1991); BMW of North America, Inc. v. Gore, 517 U.S. 559, 574, 583 & 585 (1996); State Farm Mutual Automobile Ins. Co. v. Campbell, 538 U.S. 408, 419-20 (2003).

[2] State Farm, 538 U.S. at 425.

[3] Bert Co. v. Turk, 298 A.3d 44, 48 (Pa. 2023).

[4] Id. at 49-50.

[5] Id. at 50.

[6] Id. at 51.

[7] Id.

[8] Id. at 70 n.43.

[9] Id. at 51.

[10] Id.

[11] Id. at 52, 62. This approach has been adopted in several jurisdiction. See, e.g., Cooley v. Lincoln Electric Co., 776 F. Supp. 2d 511 (N.D. Ohio 2011); Bardis v. Oates, 119 Cal. App. 4th 1, 21 n.8 (2004); Advocat, Inc. v. Sauer, 111 S.W.3d 346 (Ark. 2003).

[12] This approach has also found favor. See, e.g., Planned Parenthood of Columbia/Willamette Inc., v. Am. Coal. of Life Activists, 422 F.3d 949 (9th Cir. 2005); Chicago Title Ins. Corp. v. Magnuson, 487 F.3d 985 (6th Cir. 2007); Lewellen v. Franklin, 441 S.W.3d 136 (Mo. 2014); Horizon Health Corp. v. Acadia Healthcare Co., Inc., 520 S.W.3d 848 (Tex. 2017); Atlantic Human Resource Advisors, LLC v. Espersen, 76 V.I. 583, 636 (V.I. 2022).

[13] But see Ingham v. Johnson & Johnson, 608 S.W.3d 663 (Mo. Ct. App. 2020).

[14] Turk, 298 A.3d at 64.

[15] Id. at 71.

[16] Id. at 72-73.

[17] Id. at 74-79

[18] Id. at 78.

[19] Id.

[20] Id. at 79-82.

[21] Id. at 80 (quoting State Farm, 538 U.S. at 425) (emphasis added).

[22] Some courts measure the substantiality of compensatory damages by comparing damages awarded to the amount demanded, when presented to the jury as a sum certain. See, e.g., Williams v. First Advantage LNS Screening Solutions Inc., 947 F.3d 735, 755 (11th Cir. 2020). Others chiefly consider the reprehensibility of the defendant’s conduct. See, e.g., Bullock v. Philip Morris USA, Inc., 198 Cal.App.4th 543 (2011); Flax v. DaimlerChrysler Corp., 272 S.W. 3d 521, 539 (Tenn. Ct. App. 2008).

[23] Turk, 298 A.3d at 81.

[24] Id.

[25] Id. at 82 (quoting State Farm, 538 U.S. at 425).

[26] Id.; accord Casciola v. F.S. Air Serv., Inc., 120 P.3d 1059, 1068 (Alaska 2005) (“This guidepost does not proscribe particular ratios as presumptively unconstitutional. Rather, it is a rule of thumb—a general prediction regarding what ratios will satisfy due process.”). But see Simon v. San Paolo U.S. Holding Co., 113 P.3d 63, 77 (Cal. 2005) (“We understand the court’s statement in State Farm that “few awards” significantly exceeding a single-digit ratio will satisfy due process to establish a type of presumption: ratios between the punitive damages award and the plaintiff’s actual or potential compensatory damages significantly greater than 9 or 10 to 1 are suspect and, absent special justification . . . cannot survive appellate scrutiny under the due process clause.”); Hall v. Wal-Mart Stores, Inc., 959 P.2d 109 (Utah 1998) (“Award of punitive damages which is well below $100,000 but which exceeds a 3 to 1 ratio of punitive to actual damages is presumptively excessive.”), with

[27] Id. at 83 (Dougherty, J., concurring). Justice Dougherty acknowledged that the “wealth of a defendant cannot justify an otherwise unconstitutional punitive damages award.” Id. (quoting State Farm, 538 U.S. at 427). But quoting Justice Breyer’s Gore concurrence, maintained that evidence of “great wealth is neither “unlawful [n]or inappropriate; it simply means that this factor cannot make up for the failure of other factors, such as ‘reprehensibility,’ to constrain significantly an award that purports to punish a defendant's conduct.” Id. (quoting Gore, 517 U.S. at 591 (Breyer, J., concurring)).

[28] Id. at 114-16 (Mundy, J., concurring), Id. at 116-18 (Brobson, J., concurring).

[29] Id. at 114-16 (Mundy, J., concurring), Id. at 116-18 (Brobson, J., concurring).

[30] Id. at 84 (Wecht, J., concurring).

[31] Id. at 85.

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