Sheila White, Plaintiff-Appellee/cross-Appellant v. Burlington Northern & Santa Fe Railway Co., Defendant-Appellant/cross-Appellee

SUTTON, Circuit Judge,

concurring in part and dissenting in part.

I agree with the majority’s treatment of “adverse employment actions” under Title VII, and accordingly join Parts I — III of its opinion in full. I respectfully dissent, however, from the majority’s resolution of the punitive damages issues, and accordingly write separately to explain my disagreement with Parts IV-V of the Court’s opinion.

At the trial in this case, the district court instructed the jury that it may award punitive damages under Title VII only if the plaintiff proved that she was entitled to them by “clear and convincing” proof. In arguing that the district court erred in this respect and in contending that a punitive damages claim may be proved by a “preponderance” of the evidence under Title VII, the plaintiff relies on two United States Supreme Court decisions and one court of appeals decision. Whether considered together or singly, however, these cases do not support the plaintiffs position.

The first case, Desert Palace, Inc. v. Costa, 539 U.S. 90 , 123 S.Ct. 2148 , 156 L.Ed.2d 84 (2003), holds that “circumstantial” evidence, in addition to “direct” evidence, may be used to prove discrimination in a Title VII mixed-motive case. That holding, however, does not answer today’s question since circumstantial evidence may be used to prove facts in cases that require a preponderance of the evidence and cases that require proof beyond a reasonable doubt, including criminal cases. See id. at 2154 (“[W]e have never questioned the sufficiency of circumstantial evidence in support of a criminal conviction, even though proof beyond a reasonable doubt is required.”). In reaching its circumstantial-evidence conclusion, it is true, Desert Palace noted that Congress’s “failure” to specify that only “direct” evidence could be used to prove discrimination was “significant, for Congress has been unequivocal when imposing heightened proof requirements in other circumstances, including in other provisions of Title 42.” Id. But that mode of analysis bears on our inquiry only if punitive damages represent a form of conventional relief in the same way that circumstantial evidence represents a form of conventional proof. In my view, that is not the case and accordingly Desert Palace does not advance the point. If punitive damages are not a conventional remedy, Congress’s “failure” to speak to the question would suggest that the burden of proof traditionally applied to unconventional remedies in general or punitive damages in particular should be used.

Two months before the Court decided Desert Palace, it made clear that punitive damages are not a conventional remedy. In State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 , 123 S.Ct. 1513, 1519-20 , 155 L.Ed.2d 585 (2003), the Court explained that punitive damages and compensatory damages “serve different purposes,” that punitive damages “are aimed at deterrence and retribution” and “serve the same purposes as criminal penalties,” and that special constitutional rules of review apply to such awards. If there is a lesson to be drawn *818 from Desert Palace and State Farm, it would seem to be that a punitive damages claim represents an unconventional form of relief, which deserves a heightened rather than a run-of-the-mill standard of proof.

The two other cases upon which the plaintiff relies are no more helpful in establishing that a preponderance standard applies to punitive damages claims. Price Waterhouse v. Hopkins, 490 U.S. 228 , 109 S.Ct. 1775 , 104 L.Ed.2d 268 (1989) (plurality opinion), also concerned an issue of conventional relief (namely, the quantum of proof in Title VII mixed-motive cases), not an issue related to punitive damages. Id. at 253 , 109 S.Ct. 1775 (“Only rarely have we- required clear and convincing proof where the action defended against seeks only conventional relief.”). In saying that “[conventional rules of civil litigation generally apply in Title VII cases,” id., the plurality of course did not establish that these conventional rules apply to requests for unconventional relief, and if anything suggested just the opposite.

Karnes v. SCI Colorado Funeral Services, Inc., 162 F.3d 1077 (10th Cir.1998), is even less helpful. In that case,' the defendant argued that the higher burden of proof for punitive damages claims under Colorado law should apply to Title VII claims. The court disagreed, concluding that state law does not control the answer to the question, then summarily (and mistakenly) relied on Price Waterhouse to say that a preponderance standard applies. Id: at 1080-81.

It is one thing, I recognize, to say that the cited cases do not answer the question; it is another to determine the answer. In the plaintiffs defense, the statute does not give us a lot to work with in determining what Congress meant. As an initial matter, the statute itself fails to specify a burden of proof, stating only that a plaintiff may recover punitive damages if she “demonstrates” that the defendant intentionally engaged in discriminatory practices. 42 U.S.C. § 1981a(b)(l). In a later súbchapter, Congress defih'es “demonstrates” unhelpfully to mean “meets the burdens of production and persuasion,” id. § 2000e(m), a definition that chases the tail of the initial inquiry. Nor does the context in which the relevant words appear or the legislative history to the Civil Rights Act of 1991 offer any other insights into the appropriate burden of proof. Pub.L. No. 102-166, § 102 , 105 Stat. 1072 .

Under these circumstances, it is appropriate to consider other indicators of statutory meaning, analogous Supreme Court precedents and relevant state laws predating the legislation. See Steadman v. SEC, 450 U.S. 91, 95 , 101 S.Ct. 999 , 67 L.Ed.2d 69 (1981) (“Where Congress has not prescribed the degree of proof which must be adduced ... this Court has felt at liberty to prescribe the standard, for ‘[i]t is the kind of question which has traditionally been left to the judiciary to resolve.’ ”) (quoting Woodby v. INS, 385 U.S. 276, 284 , 87 S.Ct. 483 , 17 L.Ed.2d 362 (1966)); see also North Star Steel Co. v. Thomas, 515 U.S. 29, 34 , 115 S.Ct. 1927 , 132 L.Ed.2d 27 (1995) (“[I]t is not only appropriate but also realistic to presume that Congress was thoroughly familiar with [our] precedents ... and that it expect[s] its enact-mentfs] to be interpreted in conformity with them.”) (citations and quotations omitted); Nishikawa v. Dulles, 356 U.S. 129, 135 , 78 S.Ct. 612 , 2 L.Ed.2d 659 (1958) (requiring a clear and convincing standard of proof for voluntary expatriation in the absence of congressional guidance and in the light of analogous Supreme Court precedents); cf. Santosky v. Kramer, 455 U.S. 745, 769 , 102 S.Ct. 1388 , 71 L.Ed.2d 599 (1982) (“A'majority of the States have concluded that a ‘clear and convincing evidence’ standard of proof strikes a fair balance [in parental-rights termination cases]. We hold that such a standard adequately *819 conveys to the factfinder the level of subjective certainty about his factual conclusions necessary to satisfy due process.”); Addington v. Texas, 441 U.S. 418, 431-32 , 99 S.Ct. 1804 , 60 L.Ed.2d 323 (1979) (‘We note that 20 states, most by statute, employ the standard of ‘clear and convincing’ evidence; 3 states use ‘clear, cogent, and convincing’ evidence; and 2 states require ‘clear, unequivocal and convincing’ evidence.”) (footnotes and emphasis omitted).

By 1991, when Congress authorized punitive damages in Title VII claims, two Supreme Court cases had intimated that a clear and convincing standard ought to apply to punitive damages claims. In Pacific Mutual Life Insurance Co. v. Haslip, 499 U.S. 1 , 111 S.Ct. 1032 , 113 L.Ed.2d 1 (1991), decided before Congress amended Title VII, the Court noted that “[tjhere is much to be said in favor of a State’s requiring, as many do, a standard of ‘clear and convincing evidence’ or, even, ‘beyond a reasonable doubt’ ” for punitive damages. Id. at 23 n. 11, 111 S.Ct. 1032 (citations omitted). Two years earlier, Justice Brennan noted that exceptions exist to the preponderance of the evidence standard “when the government seeks to take unusual coercive action' — -action more dramatic than entering an award of money damages or other conventional relief.” Price Waterhouse, 490 U.S. at 253 , 109 S.Ct. 1775 (plurality opinion) (emphasis added).

In analogous settings before 1991, the Supreme Court also had adopted a clear and convincing evidence standard for civil cases involving unconventional relief — in the face of congressional silence about the appropriate burden of proof. In Woodby v. INS, 385 U.S. 276 , 87 S.Ct. 483 , 17 L.Ed.2d 362 (1966), the Supreme Court observed that “Congress ha[d] not addressed itself [in the Immigration and Nationality Act] to the question of what degree of proof is required in deportation proceedings,” then observed that this is “the kind of question which has traditionally been left to the judiciary to resolve.” Id. at 284 , 87 S.Ct. 483 . Reasoning that deportation proceedings fall somewhere between ordinary civil litigation and criminal litigation, the Court held that “clear, unequivocal, and convincing evidence” must support a deportation order — the same burden used in analogous cases involving civil fraud, expatriation, adultery, illegitimacy, lost wills and oral contracts. Id. at 285 & n. 18, 87 S.Ct. 483 . Compare Nishikawa, 356 U.S. at 135 , 78 S.Ct. 612 (holding that, in the face of congressional silence on the question, proof of an act of expatriation must be by clear and convincing evidence), with Vance v. Terrazas, 444 U.S. 252, 265 , 100 S.Ct. 540 , 62 L.Ed.2d 461 (1980) (upholding a preponderance of the evidence standard specified by Congress after Nishikawa).

Supreme Court decisions analogizing punitive damages to criminal penalties also suggest that a higher burden of proof ought to apply here. See State Farm, 123 S.Ct. at 1519-20 (“[P]unitive damages ... are aimed at deterrence and retribution,” and “serve the same purposes as criminal penalties.”); id. at 1521 (“It should be presumed that a plaintiff has been made whole for his injuries by compensatory damages, so punitive damages should only be awarded if the defendant’s culpability ... is so reprehensible as to warrant the imposition of further sanctions to achieve punishment or deterrence.”); City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 266 , 101 S.Ct. 2748 , 69 L.Ed.2d 616 (1981) (“Punitive damages by definition are not intended to compensate the injured party, but rather to punish the tortfeasor.”).

For like reasons, the factual predicate for a punitive damages award — that the defendant acted with “malice” or “reckless indifference,” see 42 U.S.C. § 1981a(b)(l) — has a stigmatizing effect *820 that deserves more evidentiary certainty than the preponderance standard provides. See State Farm, 123 S.Ct. at 1521 (“[P]uni-tive damages should only be awarded if the defendant’s culpability is [] reprehensible.”) (emphasis added); Addington, 441 U.S. at 424 , 99 S.Ct. 1804 (“One typical use of the [clear and convincing] standard is in civil cases involving allegations of fraud or some other quasi-criminal wrongdoing by the defendant ... [to] reduce the risk to the defendant of having his reputation tarnished erroneously.”); see also Haslip, 499 U.S. at 54 , 111 S.Ct. 1032 (O’Connor, J., dissenting) (“[P]unitive damages are quasi-criminal punishment. Unlike compensatory damages ... punitive damages are specifically designed to exact punishment in excess of actual harm to make clear that the defendant’s misconduct was especially reprehensible. Hence, there is a stigma attached to an award of punitive damages that does not accompany a purely compensatory award.”).

By 1991, the supreme courts or legislatures of 29 States had directly addressed the issue whether punitive damage claims required a heightened burden of proof. Of those States, 20 of them chose the clear and convincing standard for all punitive damages claims, one State (Colorado) applied the beyond a reasonable doubt standard to these claims and two States (Florida and Oklahoma) applied the clear and convincing standard when the punitive award was a specific multiple of the actual damages in the case. See App. A (identifying the burden of proof in each State with respect to punitive damages in 1991). See also Michael Rustad & Thomas Koenig, The Historical Continuity of Punitive Damages Awards: Reforming the Tort Reformers, 42 Am. U.L.Rev. 1269, 1278 n. 63 (1993) (identifying States with a clear and convincing standard in 1993).

When Congress addressed this issue in 1991, it also was doing so in the context of a modern trend in favor of the higher standard- — -a trend that was well underway before the 1991 amendments to Title VII. The American Bar Association recommended the higher standard in 1986. See Special Committee on Punitive Damages, Punitive Damages: A Constructive Examination, 1986 A.B.A. Sec. Litig. 33 (“Because one of the purposes of punitive damages is punishment ... [t]he committee concludes [ ] that the ‘clear and convincing’ burden of proof is appropriate for an award of punitive damages. This is the standard often used in fraud cases, to which there is some analogy.”). The American Law Institute did the same in 1991. See 2 American Law Institute, Reporters’ Study: Enterprise Responsibility for Personal Injury 264 (1991) (“An enterprise should be liable for punitive damages only when there is clear and convincing evidence of reckless disregard for the safety of others in the decisions made by management officials or other senior personnel.”). As of today, the supreme courts or legislatures from 34 States have addressed the burden of proof issue, with 31 now requiring a heightened burden of proof. See App. B (identifying the burden of proof for punitive damages in each State as of 2004).

The States within the Sixth Circuit, moreover, are nearly uniform in applying a clear and convincing standard. By 1991, Ohio and Kentucky had established the standard by statute, and Tennessee did so by court decision in 1992. See App. A. Although the Michigan courts have not directly addressed the issue, at least one state appeals court has approved, without discussion, a jury instruction requiring proof by a preponderance of the evidence for an award of exemplary damages. Green v. Evans, 156 MichApp. 145, 401 N.W.2d 250, 252 (1985). But see Kewin v. Mass. Mut. Life Ins. Co., 409 Mich. 401 , 295 N.W.2d 50, 55 (1980) (noting that ex *821 emplary damages serve only to compensate plaintiffs for “humiliation, sense of outrage, and indignity” — and may not serve as punishment to the defendant).

While there may not be a Rosetta Stone to guide us here, Supreme Court precedents concerning punitive damages and comparable forms of relief, as well as relevant state-law practices, suggest that a clear and convincing standard of proof ought to govern these claims. A claim for punitive damages, in a nutshell, is more akin to claims concerning fraud, deportation and expatriation, oral contracts and illegitimacy than it is to more conventional civil claims. Accordingly, the heightened burden of proof associated with these claims and traditionally associated with punitive damages claims in general ought to apply.

The additional citations identified by the majority in support of the plaintiffs position do not alter this analysis. Smith v. Wade, 461 U.S. 30 , 103 S.Ct. 1625 , 75 L.Ed.2d 632 (1983), deals with whether actual malice is required to obtain punitive damages under § 1983, not with the preponderance/elear and convincing debate raised here. Simpson v. Pittsburgh Corning Corp., 901 F.2d 277 (2d Cir.1990), involved a products liability claim under New York law, in which the defendant argued that the Due Process Clause of the United States Constitution requires a clear and convincing standard. In rejecting that argument, the court “acknowledg[ed] the force of the argument that since punitive damages are awarded primarily to punish a defendant for past conduct and to deter it and others from similar conduct in the future, a standard of proof appropriate for ‘quasi-criminal wrongdoing’ should be required.” Id. at 282 .

In re Exxon Valdez, 270 F.3d 1215 (9th Cir.2001), is an admiralty-law decision in which the Ninth Circuit concluded that the district court did not “abuse its discretion” in applying a preponderance standard to a punitive damages claim. Id. at 1232-33 . Again, the primary debate in the case was whether the Due Process Clause required a higher standard. Moreover, if like the Ninth Circuit we applied an abuse of discretion to this issue (which we do not), it no doubt would be a very different question whether the district court in this case abused its discretion in imposing the higher standard of proof. The Fourth Circuit’s decision in Notter v. North Hand Protection, 89 F.3d 829 , 1996 WL 342008 (4th Cir. June 21, 1996), besides being unpublished, rejects only one argument by the employer in that case — that the higher burden of proof for punitive damages claims under state law should control the Title VII inquiry. Id. at *10. And the Harvard Law Review piece supports the employer’s position in this case. In addition to approving “measures that guide and direct juries toward appropriate [] determinations,” it notes that “the widespread acceptance of the clear and convincing evidence standard demonstrates [the] states’ acknowledgment of the retributive function of punitive damages.” Jury Determination of Punitive Damages, 110 Harv. L.Rev. 1513, 1532-33, 1536 (1997).

Nor does the cap on punitive damages claims under Title VII advance plaintiffs argument. While a cap on punitive damages addresses one issue in this area (the outer limits of awards), it does not account for the other issues in this area — the appropriate quantum of proof required (1) before a jury may attach a “reprehensibility” label to another’s conduct, State Farm, 123 S.Ct. at 1521 , or (2) before a jury may award punitive damages that have a significant ratio to the underlying compensatory award. In ascertaining the constitutional limits of punitive damages, it is the ratio of the two awards, not the size of the punitive damages award, that the Supreme Court *822 considers in measuring the award’s compliance with Due Process' — which is why awards under $300,000 may still violate the Constitution and why they still deserve the prevailing burden of proof for punitive damages claims in this country, namely clear and convincing evidence. See id. at 1524 (ratios involving “[s]ingle-digit multipliers are more likely to comport with due process, while still achieving the State’s goals of deterrence and retribution, than awards with ratios in range of 500 to 1, or, in this case, of 145 to 1”) (citation omitted); see also Ross v. Kansas City Power & Light Co., 293 F.3d 1041, 1049 (8th Cir.2002) (reducing punitive damages award from $120,000 to $60,000 to correct constitutional deficiency); Tyson Foods, Inc. v. Stevens, 783 So.2d 804, 810 (Ala.2000) (“In this case, the punitive-damages award of $75,000 is 30 times the compensatory-damages award of $2,500. Considering the facts before us, we find the ratio of 30:1 to be unreasonable.”); Employees’ Benefit Ass’n v. Grissett, 732 So.2d 968, 979 (Ala.1998) (“The punitive award of $150,000 is 170 times the compensatory award of $880. That 170:1 ratio is unacceptable.”).

But that is not the most significant problem with invoking the damages cap in this instance. All agree that Congress did not give the courts particularly helpful guidance here, requiring us to answer what the burden of proof for a federal punitive damages claim should be in the face of congressional silence. An answer that says punitive damages claims receive a preponderance standard when the award is under $300,000 but receive a clear and convincing standard when the award is some higher amount to be named later does not seem very helpful. Neither do I understand how the damages cap could make a difference in the outcome of this case. If, in this instance, the Court had concluded that a clear and convincing standard generally applies to punitive damages claims in the face of congressional silence, the existence of a cap of this sort by itself could not alter the presumption. If instead the Court had concluded that a preponderance standard generally applies in this setting, the existence of a damages cap would make no difference at all. Either way, in other words, the outcome would be unaffected by the existence of the cap.

I have one other qualm with the majority’s decision on this point — which is reaching the burden of proof issue at all. I do not understand how White could prevail on remand in a punitive-damages-only trial, no matter what the burden of persuasion is. Because we required an en banc hearing to decide whether Wdiite suffered an adverse employment action and, notably, to determine whether this Circuit embraced the ultimate-employment-decision test, it would not seem possible for a jury to conclude that Burlington Northern acted with reckless disregard for Wdiite’s federally-protected rights in imposing the suspension. See 42 U.S.C. § 1981a(b)(l) (requiring proof that the employer “engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual”); Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 535, 119 S.Ct. 2118 , 144 L.Ed.2d 494 (1999) (“The terms ‘malice’ or ‘reckless indifference’ pertain to the employer’s knowledge that it may be acting in violation of federal law, not its awareness that it is engaging in discrimination.”) (emphasis added); id. at 537 , 119 S.Ct. 2118 (recognizing that imposing punitive damages would be inappropriate when “[t]he underlying theory of discrimination [is] novel or otherwise poorly recognized”).

A punitive damages claim with respect to the transfer count is even harder to imagine. Until now, no Sixth Circuit case (to my knowledge) has found a cognizable Title VII claim arising from a lateral transfer, let alone a transfer ivithin an *823 employee classification and without a loss in pay. See Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 885 (6th Cir.1996) (“[R]eassignments without salary or work hour changes do not ordinarily constitute adverse employment decisions in employment discrimination claims.”) (citing Yates v. Avco Corp., 819 F.2d 630, 638 (6th Cir.1987)). While the opinion concludes that this transfer count is cognizable under Title VII, its reasons for doing so could not support a finding that Burlington Northern acted with “malice” or “reckless indifference” to White’s rights.

For these reasons, I respectfully dissent from Parts IV and V of the Court’s opinion.

APPENDIX A

State Burdens of Proof for Punitive Damages in 1991

By 1991, the supreme courts or legislatures of the following States had adopted a higher burden of proof for awarding punitive damages:

Alabama Ala. Code § 6 -ll-20(a) (1991) (clear and convincing evidence).

Alaska Alaska Stat. § 09.17.020 (1991) (clear and convincing evidence).

Arizona Linthicum v. Nationwide Life Ins. Co., 723 P.2d 675, 680-81 (Ariz. 1986) (“[Wjhile a plaintiff may collect compensatory damages upon proof by a preponderance of the evidence of his injuries due to the tort of another, we conclude that recovery of punitive damages should be awardable only upon clear and convincing evidence of the defendant’s evil mind.”).

California Cal. Civ. Code § 3294 (a) (1991) (clear and convincing evidence).

Colorado Colo. Rev. Stat. § 13-25-127 (2) (1991) (beyond a reasonable doubt).

Florida Fla. Stat. Ann. § 768.73 (l)(b) (1991) (punitive damages exceeding three times actual damages must be proved by clear and convincing evidence).

Georgia Ga. Code Ann. § 51-12-5.1 (b) (1991) (clear and convincing evidence).

Hawaii Masaki v. Gen. Motors Corp., 780 P.2d 566, 575 (Haw. 1989) (“[F]or all punitive damage claims we adopt the clear and convincing standard of proof.”).

*824 Indiana Ind. Code § 34-4-34-2 (1991) (clear and convincing evidence).

Iowa Iowa Code § 668A.l(l)(a) (1991) (clear and convincing evidence).

Kansas Kan. Stat. Ann. § 60-3702 (c) (1991) (clear and convincing evidence).

Kentucky Ky. Rev. Stat. Ann. § 411.184 (2) (1991) (clear and convincing evidence).

Maine Tuttle v. Raymond, 494 A.2d 1353, 1363 (Me. 1985) (“[W]e hold that a plaintiff may recover exemplary damages based upon tortious conduct only if he can prove by clear and convincing evidence that the defendant acted with malice.”).

Minnesota Minn. Stat. §549.20 (l)(a) (1991) (clear and convincing evidence).

Montana Mont. Code Ann. § 27-1-221 (5) (1991) (clear and convincing evidence).

Nevada Nev. Rev. Stat. 42.005(1) (1991) (clear and convincing evidence).

North Dakota N.D. Cent. Code § 32-03.2-11 (1991) (clear and convincing evidence).

Ohio Ohio Rev. Code Ann. § 2315.21 (C)(3) (1991) (clear and convincing evidence).

Oklahoma Okla. Stat. tit. 23 § 9.1.A (1991) (punitive damages exceeding the amount of actual damages must be proved by clear and convincing evidence).

Oregon Or. Rev. Stat. § 41.315 (1) (1991) (clear and convincing evidence).

*825 South Carolina S.C. Code Ann. § 15-33-135 (1991) (clear and convincing evidence).

Utah Utah Code Ann. § 78 -I8-l(l)(a) (1991) (clear and convincing evidence).

Wisconsin Wangen v. Ford Motor Co., 294 N.W.2d 437, 458 (Wis. 1980) (“We hold that the [clear, satisfactory and convincing evidencej burden of proof shall apply to punitive damages claims hereafter.”).

By 1991, the supreme courts or legislatures of the following States had rejected a higher burden of proof for awarding punitive damages:

Connecticut Freeman v. Alamo Mgmt. Co., 607 A.2d 370, 375 (Conn. 1992) (“We disagree... with the... conclusion . . . that clear and convincing proof is an appropriate standard of proof whenever claims of tortious conduct [such as those involving punitive damages] have serious consequences or harsh or far-reaching effects on individuals or require the proof of willful, wrongful and unlawful acts.”).

Idaho Idaho Code § 6-1604 (1) (1991) (preponderance of the evidence).

Mississippi Gaylord's of Meridian, Inc. v. Sicard, 384 So. 2d 1042, 1045 (Miss. 1980) (“Although the damages are by way of penalizing the defendant against whom they are sought, the proof is by a preponderance of the evidence rather than beyond a reasonable doubt.”) overruled on other grounds by C & C Trucking Co. v. Smith, 612 So. 2d 1092, 1105-06 (Miss. 1992); Andrew Jackson Life Ins. Co. v. Williams, 566 So. 2d 1172, 1188 (Miss. 1990) (“[T]he law requires a finding of ‘bad faith- plus ’ — based upon a preponderance of the evidence — before punitive damages may be awarded.”).

*826 Missouri Menaugh v. Resler Optometry, Inc., 799 S.W.2d 71, 75 (Mo. 1990) (“The defendant argues that punitive damage submissions should require ‘clear and convincing’ evidence. This requirement is contrary to our normal requirements in the submission of civil cases. We are not disposed so to hold, or to follow cases from other jurisdictions so holding.”).

New Mexico United Nuclear Corp. v. Allendale Mut. Ins. Co., 709 P.2d 649, 654 (N.M. 1985) (“It is the general rule . . . that issues of fact in civil cases are to be determined according to the preponderance of the evidence .... W e are not convinced that the degree of proof should be changed [to require clear and convincing evidence] in punitive damage areas.”).

South Dakota Flockhart v. Wyant, 467 N.W.2d 473, 475 (S.D. 1991) (“[ S.D. Codified Laws § 21-1-4.1 ] does not establish a clear and convincing evidence standard but merely requires clear and convincing evidence to show a reasonable basis [to believe the defendants committed acts warranting punitive damages]. The clear and convincing language merely modifies the ‘reasonable basis’ language to make a prima facie showing that punitive damages may be in order.”).

By 1991, the supreme courts and legislatures of the following States had yet to address the question whether claims for punitive damages require a heightened burden of proof, though (as noted below) some lower courts had addressed the issue and some supreme courts had mentioned, without discussing, jury instructions requiring a preponderance of the evidence:

*827 Arkansas Nat'l Bank of Commerce v. McNeill Trucking Co., Inc., 828 S.W.2d 584, 591 (Ark. 1992) (Dudley, J„ concurring) (“I would hope that the possible changes discussed in this opinion [Le. the adoption of a clear and convincing standard for punitive damages] might be brought before this court in an adversarial manner .... It is a matter which we have never addressed.”).

Delaware Cloroben Chem. Corp. v. Comegys, 464 A.2d 887, 891-92 (Del. 1983) (“We now turn to Cloroben’s contention that the jury improperly awarded punitive damages in that they were not supported by a preponderance of the evidence .... Our review of the record indicates that there is sufficient evidence to support a finding . . . [and] we must reject the argument that there was insufficient evidence to support an award of punitive damages.”); Guthridge v. Pen-Mod, Inc., 239 A.2d 709, 715 (Del. Super. Ct. 1967) (instructing the jury that “[p]unitive damages may be awarded only if the jury finds by a preponderance of the evidence that the defendants’ actions were motivated by some form of malice.”).

Illinois Illinois Terminal R.R. Co. v. Thompson, 11 N.E. 328 , 333 (Ill. 1904) (approving a jury instruction that “left it to the discretion of the jury to impose whatever damages they might choose, even to the extent of allowing punitive damages” by a preponderance of the evidence).

*828 Louisiana Galjour v. Gen. Am. Tank Car Corp., 764 F. Supp. 1093,1100-01 (E.D. La. 1991) (“In fact, there are no Louisiana cases which specifically discuss the appropriate burden of proof for exemplary damages .... The defendants’ argument that a heightened burden of proof should apply to exemplary damages is not without merit, as shown by recent legislative enactments in other jurisdictions, but it is not the law in Louisiana. Until the Louisiana legislature takes action to raise the burden, the law is that the burden of proof for exemplary damages is by a preponderance of the evidence.”) (footnote omitted); see also Int’l Harvester Credit Corp. v. Seale, 518 So. 2d 1039, 1041 (La. 1988) (“Under Louisiana law, punitive or other ‘penalty’ damages are not allowable unless expressly authorized by statute.”).

Maryland Gorman v. Sabo, 122 A.2d 475, 479 (Md. 1956) (“There is no doubt that punitive damages may be recovered in [this] case .... The applicable law was correctly put to the jury by the trial court in his charge. He told them the Sabos must prove their case ‘by a fair preponderance of the evidence.’”) (citation omitted); Thorne v. Contee, 565 A.2d 102, 108 (Md. Ct. Spec. App. 1989) (“In order for the issue of punitive damages to go to the jury, Thome must have produced sufficient evidence of Contee’s wanton or reckless conduct to meet the preponderance of the evidence test.”), cert. denied, 569 A.2d 643 (Md. 1990); 569 A.2d 1242 (Md. 1990).

*829 Massachusetts Santos v. Chrysler Corp., No. 921039, 1996 WL 1186818 , at *3 (Mass. Super. Ct. Sept. 18, 1996) (“Chrysler contends that the court erred because it failed to instruct the jury that they must find by clear and convincing evidence that Chrysler was grossly negligent before they could award punitive damages. The contention is meritless. Under Massachusetts law the burden of proof in civil proceedings of this kind is satisfied ‘by a fair preponderance of the evidence.’”) (citation omitted), aff’d in part and remanded on other grounds, 715 N.E.2d47 (Mass. 1999).

Michigan Green v. Evans, 401 N.W.2d 250, 252 (Mich. Ct. App. 1985) (approving, without discussing the burden of proof, a jury instruction stating: “Such exemplary damages only are recoverable if the Plaintiff has proven by a preponderance of the evidence, malice, willfbl and wanton misconduct or negligence so great as to indicate reckless disregard of the rights of another.”). But see Kewin v. Mass. Mut. Life Ins. Co., 295 N.W.2d 50, 55 (Mich. 1980) (noting that exemplary damages only serve to compensate plaintiffs for “humiliation, sense of outrage, and indignity” — exemplary damages may not serve as punishment to the defendant).

Nebraska Distinctive Printing & Packaging Co. v. Cox, 443 N.W.2d 566, 574 (Neb. 1989) (“[Pjunitive, vindictive, or exemplary damages contravene Neb. Const, art. VII, § 5, and thus are not allowed in this jurisdiction.”).

New Hampshire New Hampshire has not addressed the burden of proof for punitive damages. See N.H. Rev. Stat. Ann. § 507:16 (2004) (“No punitive damages'shall be awarded in any action, unless otherwise provided by statute.”).

*830 New Jersey Fischer v. Johns-Manville Corp., 512 A.2d 466, 482 (N.J. 1986) (refusing to address the burden of proof in punitive damages cases because “the parties have not briefed or argued the issue, nor have the courts below addressed it”); see also Jackson v. Consol. Rail Corp., 538 A.2d 1310 , 1321 n.5 (N.J. Super. Ct. App. Div. 1988) (“Defendant also attacks the punitive damage verdict because the court in its. charge did not place the burden on plaintiff to prove same by ‘clear and convincing’ evidence. However, that is not the present standard applicable in New Jersey.”).

New York Greenbaum v. Handelsbanken, 979 F.Supp. 973, 982 (S.D.N.Y. 1997) (“[T]he Court determines that until . . . higher authorities elect[] to address the question, the preponderance of the evidence standard should apply to punitive damages deliberations.”).

North Carolina Caudle v. Benbow, 45 S.E.2d 361, 362 (N.C. 1947) (approving, without discussing, a jury instruction requiring the jury to “first find by the preponderance of the evidence the presence of actual malice”).

*831 Pennsylvania Martin v. Johns-Manville Corp., 494 A.2d 1088 , 1098 n.14 (Pa. 1985) (Hutchinson, J., delivering the judgment of the court and an opinion joined by only one of the five remaining justices) (recognizing that many jurisdictions have adopted a clear and convincing standard and concluding: “We believe the goal of limiting punitive damage-awards in the context of products liability litigation is best served by focusing on the nature of the defendant’s conduct instead of increasing the plaintiff^ burden of persuasion.”); Rizzo v. Michener, 584 A.2d 973, 979 (Pa. Super. Ct. 1990) (“The trial judge must determine in the first instance whether the plaintiff has presented sufficient evidence to support a punitive damage claim, which requires evidence on which the jury might reasonably conclude that outrageous conduct has been established by a preponderance of the evidence.”), appeal denied, 596 A.2d 159 (Pa. 1991).

Rhode Island Rhode Island has not addressed the burden of proof for recovering punitive damages.

Tennessee Tennessee first addressed the burden of proof for punitive damages in 1992 in Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 900-01 (Tenn. 1992), and held that the clear and convincing standard applies to all claims for punitive damages.

Texas Lawson-Avila Const., Inc. v. Stoutamire; 791 S.W.2d 584, 594 (Tex. Ct. App. 1990) (“We . . . continue to follow the Texas precedent established by the Courts of this State and hold that the burden of proof in cases involving... exemplary damages is by a preponderance of the evidence [and not clear and convincing evidence].”) (internal quotations omitted), writ of error denied (Dec. 12, 1990).

*832 Vermont Vermont has not addressed the burden of proof for recovering punitive damages.

Virginia Peacock Buick, Inc. v. Durkin, 277 S.E.2d 225 , 227 n.3 (Va. 1981) (approving, without discussing the burden of proof, a jury instruction stating: “[I]f you believe from a preponderance of the evidence that the defendant acted wantonly, oppressively, or with such recklessness as evinced a conscious disregard of the rights of others, or with such malice as implied a spirit of mischief, or criminal indifference to civil obligations, you may award the plaintiff such additional sum as punitive damages.”).

Washington Sintra, Inc. v. City of Seattle, 935 P.2d 555, 566 (Wash. 1997) (holding, without addressing the burden of proof, that the trial court properly instructed the jury that it could award punitive damages on the 42 U.S.C. § 1983 claim ‘only if you find [by a preponderance of the evidence] that the conduct of an individual defendant was malicious or taken in reckless disregard of plaintiffs’ rights?’) (alteration in original). But see Dailey v. North Coast Life Ins. Co., 919 P.2d 589, 590 (Wash. 1996) (“Since its earliest decisions, this court has consistently disapproved of punitive damages as contrary to public policy.”).

West Virginia Goodwin v. Thomas, 403 S.E.2d 13, 16 (W. Va. 1991) (reinstating an award of punitive damages, without discussing the burden of proof, based on the following jury instruction: “[I]f you find from a preponderance of all the evidence in this case, that the actions of the Defendants in evicting the Plaintiff were in total disregard of the Plaintiffs rights as a lessee in the leased premises and that such actions were willful and wanton then you may award the Plaintiff punitive damages.”).

Wyoming Campen v. Stone, 635 P.2d 1121, 1127 (Wyo. 1981) (approving, without discussing the burden of proof, a jury instruction stating: “Punitive damages can properly be awarded . . . only if, one of the following [acts] has been proven by a preponderance of the evidence.”) (internal quotations omitted).

*833 APPENDIX B

State Burdens of Proof for Punitive Damages in 2004

As of today, the supreme courts or legislatures from the following States have adopted the higher burden of proof for awarding punitive damages:

Alabama Ala. Code § 6-1 l-20(a) (2004) (clear and convincing evidence).

Alaska Alaska Stat. § 09.17.020 (b) (2004) (clear and convincing evidence).

Arizona Linthicum v. Nationwide Life Ins. Co., 723 P.2d 675, 680-82 (Ariz. 1986) (“[W]hile a plaintiff may collect compensatory damages upon proof by a preponderance of the evidence of his injuries due to the tort of another, we conclude that recovery of punitive damages should be awardable only upon clear and convincing evidence of the defendant’s evil mind.”); Saucedo ex rel. Sinaloa v. Salvation Army, 24 P.3d 1274, 1277 (Ariz. Ct. App. 2001) (“In Arizona, to recover punitive damages, a plaintiff must prove by clear and convincing evidence that a ‘defendant’s wrongful conduct was guided by evil motives or wilful or wanton disregard of the interests of others. ’”) (citation omitted), review denied (Oct. 3, 2001).

California Cal. Civ. Code § 3294 (a) (2004) (clear and convincing evidence).

Colorado Colo. Rev. Stat. § 13-25-127 (2) (2004) (beyond a reasonable doubt).

Florida Fla. Stat. Ann. § 768.725 (2004) (clear and convincing evidence).

*834 Georgia Ga. Code Ann. § 51-12-5.1 (b) (2004) (clear and convincing evidence).

Hawaii Schefke v. Reliable Collection Agency, Ltd., 32 P.3d 52, 71 (Haw. 2001) (“Clear and convincing evidence of‘some wilful misconduct or... entire want of care which would raise presumption of a conscious indifference to consequences’ supports an award of punitive damages.”) (internal quotations omitted).

Idaho Idaho Code §6-1604 (1) (2004) (clear and convincing evidence).

Indiana Ind. Code § 34-51-3-2 (2004) (clear and convincing evidence).

Iowa Iowa Code § 668A.l(l)-(2) (2004) (clear and convincing evidence).

Kansas Kan. Stat. Ann. § 60-3 702(c) (2004) (clear and convincing evidence).

Kentucky Ky. Rev. Stat. Ann. § 411.184 (2) (2004) (clear and convincing evidence).

Maine St. Francis De Sales Fed. Credit Union v. Sun Ins. Co. of N.Y., 818 A.2d 995, 1001 (Me. 2002) (‘“[I]n order to recover punitive damages, a plaintiff must prove by clear and convincing evidence that the defendant acted with malice.’”) (quoting Tuttle v. Raymond, 494 A.2d 1353, 1354 (Me. 1985)).

Maryland Owens-Illinois, Inc. v. Zenobia, 601 A.2d 633, 657 (Md. 1992) (“[I]n any tort case a plaintiff must establish by clear and convincing evidence the basis for an award of punitive damages.”); Carter v. Aramark Sports and Entm 't Servs., Inc., 835 A.2d 262,287 (Md. Ct. Spec. App. 2003) (“The ‘clear and convincing’ standard of proof applies to make out a claim for punitive damages.”).

*835 Minnesota Minn. Stat. § 549.20 (l)(a) (2004) (clear and convincing evidence).

Mississippi Miss. Code Ann. § ll-l-65(l)(a) (2004) (clear and convincing evidence).

Missouri Rodriguez v. Suzuki Motor Corp., 936 S.W.2d 104, 111 (Mo. 1996) (“For common law punitive damage claims, the evidence must meet the clear and convincing standard of proof.”); Hoskins v. Bus. Men's Assurance, 116 S.W.3d 557, 564 (Mo. Ct. App. 2003) (“Punitive damages are properly submitted in a negligence [or strict liability] case only if there is clear and convincing evidence that ‘at the time of the negligent act, the defendants] knew or had reason to know that there was a high degree of probability that the action would result in injury.’”) (citation omitted).

Montana Mont. Code Ann. § 27-1-221 (5) (2004) (clear and convincing evidence).

Nevada Nev. Rev. Stat. 42.005(1) (2004) (clear and convincing evidence).

New Jersey N.J. Stat. Ann. § 2A: 15-5.12(a) (2004) (clear and convincing evidence).

North Carolina N.C. Gen. Stat. § 1D-I5(b) (2004) (clear and convincing evidence).

North Dakota N.D. Cent. Code § 32-03.2-11 (1) (2004) (clear and convincing evidence).

Ohio Ohio Rev. Code Ann. § 2315.21 (C)(2) (2004) (clear and convincing evidence).

Oklahoma Okla. Stat. tit. 23, § 9.1 .B-.D (2004) (clear and convincing evidence).

*836 Oregon Or. Rev. Stat. § 18.537 (1) (2004) (clear and convincing evidence).

South Carolina S.C. Code Ann. § 15-33-135 (2004) (clear and convincing evidence).

Tennessee Hodges v. S.C. Toof & Co., 833 S.W.2d 896 , 90l (Tenn. 1992) (“[A] plaintiff must prove the defendant’s intentional, fraudulent, malicious, or reckless conduct by clear and convincing evidence.”); Barnett v. Lane, 44 S.W.3d 924, 928 (Tenn. Ct. App. 2000)-(“[A]n award [of punitive damages] is only appropriate when the necessary conduct has been shown ‘by clear and convincing evidence.’”).

Texas Tex. Civ. Prac. & Rem. Code Ann. § 41.003 (b) (2004) (clear and convincing evidence).

Utah Utah Code Ann. § 78-18-1 (l)(a) (2004) (clear and convincing evidence).

Wisconsin Wangen v. Ford Motor Co., 294 N.W.2d 437, 458 (Wis. 1980) (“We hold that the [clear, satisfactory and convincing evidence] burden of proof shall apply to punitive damages claims hereafter.”); City of West Allis v. Wis. Elec. Power Co., 635 N.W.2d 873, 881 (Wis. Ct. App. 2001) (“The evidence [supporting a punitive damages award] must also be ‘clear and convincing.’”), pet. for review denied, 643 N.W.2d 93 (Wis. 2002).

*837 As of today, the supreme courts or legislatures from the following States have rejected a higher burden of proof for awarding punitive damages:

Connecticut Freeman v. Alamo Mgmt. Co., 607 A.2d 370, 375 (Conn. 1992) (“We disagree . . . with the . . . conclusion . . . that clear and convincing proof is an appropriate standard of proof whenever claims of tortious conduct [such as those involving punitive damages] have serious consequences or harsh or far-reaching effects on individuals or require the proof of willful, wrongful and unlawful acts.”).

New United Nuclear Corp. v. Allendale Mut. Ins., 709 P.2d

Mexico 649, 654 (N.M. 1985) (“It is the general rule . . . that issues of fact in civil cases are to be determined according to the preponderance of the evidence .... We are not convinced that the degree of proof should be changed [to require clear and convincing evidence] in punitive damages areas.”).

South Flockhart v. Wyant, 461 N.W.2d 473, 475 (S.D. 1991)

Dakota (“[ S.D. Codified Laws § 21-1-4.1 ] does not establish a clear and convincing evidence standard but merely requires clear and convincing evidence to show a reasonable basis [to believe the defendants committed acts warranting punitive damages]. The clear and convincing language merely modifies the ‘reasonable basis’ language to make a prima facie showing that punitive damages may be in order.”).

*838 As of today, the supreme courts and legislatures from the following States have yet to address the question whether claims for punitive damages require a heightened burden of proof, though (as noted below) some lower courts have addressed the issue and some supreme courts had mentioned, without discussing, jury instructions requiring a preponderance of the evidence:

Arkansas Nat'l Bank of Commerce v. McNeill Trucking Co., Inc., 828 S.W.2d 584, 590 (Ark. 1992) (Dudley, J., concurring) (“I would hope that the possible changes discussed in this opinion [i.e. the adoption of a clear and convincing standard for punitive damages] might be brought before this court in an adversarial manner -It is a matter which we have never addressed.”).

Delaware Cloroben Chem. Corp . v. Comegys, 464 A.2d 887 , 891 — 92 (Del. 1983) (“We now turn to Cloroben’s contention that the jury improperly awarded punitive damages in that they were not supported by a preponderance of the evidence .... Our review of the record indicates that there is sufficient evidence to support a finding . . . [and] we must reject the argument that there was insufficient evidence to support an award of punitive damages.”); Guthridge v. Pen-Mod, Inc., 239 A.2d 709, 715 (Del. Super. Ct. 1967) (instructing the jury that “[p]unitive damages may be awarded only if the jury finds by a preponderance of the evidence that the defendants’ actions were motivated by some form of malice.”).

Illinois Illinois Terminal R.R. Co. v. Thompson, 71 N.E. 328, 333 (Ill. 1904) (approving a jury instruction that “left it to the discretion of the jury to impose whatever damages they might choose, even to the extent of allowing punitive damages” by a preponderance of the evidence).

*839 Louisiana Hill v. Sampson, 628 So. 2d 81, 84 (La. Ct. App. 1993) (“While this argument has theoretical appeal, we are not inclined by these judicial means to establish ‘clear and convincing evidence’ as the standard of proof for exemplary damages under [Louisiana’s DUI law]. In our view, had the legislature intended a higher standard of proof than that of a preponderance of the evidence, it would have clearly so indicated.”); Rivera v. United Gas Pipeline Co., 697 So. 2d 327, 335 (La. Ct. App. 1997) (holding that earlier interpretation of Louisiana’s hazardous substance handling statute “says nothing of creating a ‘clear and convincing’ burden of proof, and this Court is not prepared to create one .... Ergo, until the Louisiana legislature takes direct action, the burden of proof for exemplary damages is by a preponderance of the evidence.”), cert. denied, 704 So. 2d 1196 , 1197 (La. 1997).

Massachusetts Santos v. Chrysler Corp., No. 921039, 1996 WL 1186818 , at *3 (Mass. Super. Ct. Sept. 18, 1996) (“Chrysler contends that the court erred because it failed to instruct the jury that they must fin'd by clear and convincing evidence that Chrysler was grossly negligent before they could award punitive damages. The contention is meritless. Under Massachusetts law the burden of proof in civil proceedings of this kind is satisfied ‘by a fair preponderance of the evidence.’”), affirmed in part and remanded on other grounds, 715 N.E.2d 47 (Mass. 1999).

*840 Michigan Green v. Evans, 401 N.W.2d 250, 252 (Mich. Ct. App. 1985) (approving, without discussing the burden of proof, a jury instruction stating: “Such exemplary damages only are recoverable if the Plaintiff has proven by a preponderance of the evidence, malice, willful and wanton misconduct or negligence so great as to indicate reckless disregard of the rights of another”). But see Kewin v. Mass. Mut. Life Ins. Co., 295 N.W.2d 50, 55 (Mich. 1980) (noting that exemplary damages oiüy serve to compensate plaintiffs for “humiliation, sense of outrage, and indignity” — exemplary damages may not serve as punishment to the defendant).

Nebraska Distinctive Printing & Packaging Co. v. Cox, 443 N.W.2d 566, 574 (Neb. 1989) (“[P]unitive, vindictive, or exemplary damages contravene Neb. Const, art. VII, § 5, and thus are not allowed in this jurisdiction.”).

New Hampshire New Hampshire has not addressed the burden of proof for punitive damages. See N.H. Rev. Stat. Ann § 507:16 (2004) (“No punitive damages shall be awarded in any action, unless otherwise provided by statute.”).

*841 New York Greenbaum v. Svenska Handelsbanken, 979 F. Supp. 973, 978-82 (S.D.N.Y. 1997) (“[T]he Court determines that until. . . higher authorities elect[] to address the question, the preponderance of the evidence standard should apply to punitive damages deliberations.”). Compare Munoz v. Puretz, 753 N.Y.S.2d 463, 466 (N.Y. App. Div. 2003) (“In order to recover punitive damages, a plaintiff must show [certain conduct] by ‘clear, unequivocal and convincing evidence.’”) (citation omitted), with In re Seventh Judicial Dist. Asbestos Litig., 593 N.Y.S.2d 685, 686-87 (N.Y. App. Div. 1993) (“The trial court properly instructed the jury that the evidentiary standard for proving entitlement to punitive damages is preponderance of the evidence, not clear and convincing evidence.”).

Pennsylvania Martin v. Johns-Manville Corp., 494 A.2d 1088 , 1098 n.14 (Pa. 1985) (Hutchinson, J. delivering the judgment of the court and an opinion joined by only one of the five remaining justices) (recognizing that many jurisdictions have adopted a clear and convincing standard and concluding: “We believe the goal of limiting punitive damage awards in the context of products liability litigation is best served by focusing on tjie nature of the defendant’s conduct instead of increasing the plaintiffs burden of persuasion.”); Rizzo v. Michener, 584 A.2d 973, 979 (Pa. Super. Ct. 1990) (“The trial judge must determine in the first instance whether the plaintiff has presented sufficient evidence to support a punitive damage claim, which requires evidence on which the jury might reasonably conclude that outrageous conduct has been established by a preponderance ofthe evidence.”), appeal denied, 596 A.2d 159 (Pa. 1991).

Rhode Island Rhode Island has not addressed the burden of proof for recovering punitive damages.

*842 Vermont Vermont has not addressed the burden of proof for recovering punitive damages.

Virginia Peacock Buick, Inc. v. Durkin, 277 S.E.2d 225 , 227 n.3 (Va. 1981) (approving, without discussing the burden of proof, a jury instruction stating: “[I]f you believe from a preponderance of the evidence that the defendant acted wantonly, oppressively, or with such recklessness as evinced a conscious disregard of the rights of others, or with such malice as implied a spirit of mischief, or criminal indifference to civil obligations, you may award the plaintiff such additional sum as punitive damages.”); RF & P Corp. v. Little, 40 S.E.2d 908 , 914 (Va. 1994) (holdingthat a preponderance of the evidence standard applies to a knowing and willful •violation bf a statute resulting in a civil fíne, and the clear and convincing evidence standard applies only “to certain cases that are equitable in nature, such as suits involving fraud and misrepresentation, undue influence, [or] estoppel.”).

Washington Sintra, Inc. v. City of Seattle, 935 P.2d 555, 566 (Wash. 1997) (stating, without addressing the burden of proof, that the trial court properly instructed the jury that it could award punitive damages on a 42 U.S.C. § 1983 claim “only if you find [by a preponderance of the evidence] that the conduct of an individual defendant was malicious or taken in reckless disregard of plaintiffs’ rights.”) (quotation omitted and alteration in original). But see Dailey v. North Coast Life Ins. Co., 919 P.2d 589, 590 (Wash. 1996) (“Since its earliest decisions, this court has consistently disapproved of punitive damages as contrary to public policy.”).

West Virginia Goodwin v. Thomas, 403 S.E.2d 13, 16 (W. Va. 1991) (finding sufficient evidence to support an award of punitive damages, without discussing the burden of proof, based on the following jury instruction: “[I]f you find from a preponderance of all the evidence in this case, that the actions of the Defendants in evicting the Plaintiff were in total disregard of the Plaintiffs rights as a lessee in the leased premises and that such actions were willful and wanton.”).

Wyoming Campen v. Stone, 635 P.2d 1121, 1127 (Wyo. 1981) (approving, without discussing the burden of proof, a proposed jury instruction stating: “Punitive damages can properly be awarded ... only if, one of the following [acts] has been proven by a preponderance of the evidence.”).