PJC Business

D AMAGES

PJC 115.38

Answer the following question regarding a defendant only if you unanimously answered “Yes” to Question ______ [ applicable predi cate question ] [ or Question ______ [ applicable predicate question ]] regarding that defendant. Otherwise, do not answer the following question regarding that defendant. Multiple plaintiffs. For multiple plaintiffs, consideration may be given to an additional question asking the jury to apportion the exemplary damages among them. Tex. Civ. Prac. & Rem. Code §71.010; Burk Royalty Co. v. Walls , 596 S.W.2d 932, 939 (Tex. App.—Fort Worth 1980), aff’d on other grounds , 616 S.W.2d 911 (Tex. 1981). Prejudgment interest not recoverable. Prejudgment interest on exemplary dam ages is not recoverable. Tex. Civ. Prac. & Rem. Code § 41.007. Bifurcation. For actions filed before September 1, 2003, no predicating instruc tion is necessary if the court has granted a timely motion to bifurcate trial of the amount of punitive damages. See Tex. Civ. Prac. & Rem. Code §41.009; Transporta tion Insurance Co. v. Moriel , 879 S.W.2d 10, 29–30 (Tex. 1994). For actions filed on or after September 1, 2003, the instruction on unanimity must be given in the bifur cated phase. If in the first phase of the trial the jury finds facts establishing a predicate for an award of exemplary damages, then a separate jury charge should be prepared for the second phase of the trial. See the comments above regarding predicate-finding and PJC 115.37. In such a second-phase jury charge, PJC 115.38 should be submitted with both PJC 100.3 and 100.4. Factors to consider in determining amount of award. The “factors to consider” listed in PJC 115.38 are from Tex. Civ. Prac. & Rem. Code § 41.011(a). Limits on conduct to be considered. When there is a significant risk that a jury may seek to punish a defendant for a constitutionally improper reason, the Due Pro cess Clause requires that an additional instruction be given to protect against that risk. Philip Morris USA v. Williams , 549 U.S. 346, 355–57. For example, the defendant’s lawful out-of-state conduct may be probative on some issues in a punitive damages case in certain circumstances. State Farm Mutual Auto mobile Insurance Co. v. Campbell , 538 U.S. 408, 422 (2003). When such evidence is admitted, “[a] jury must be instructed . . . that it may not use evidence of out-of-state conduct to punish a defendant for action that was lawful in the jurisdiction where it occurred.” Campbell , 538 U.S. at 422. In addition, evidence that the defendant’s conduct risked harm to persons who are not before the court may be probative in determining the reprehensibility of that con duct. But when such evidence is admitted, the jury should be instructed that it may not

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