Is Reprehensibility Based on Total Harm Risked?
The most important comment the Court made about Gore, in State Farm, was this one: The Court suggested that that, after Gore was decided, many subsequent interpreters of that decision had misunderstood it. And in particular, they had misunderstood what the Court had meant by saying in Gore that punitive damages should relate to the reprehensibility of the wrongdoer’s act. Many courts and many academic commentators had taken “reprehensibility” to include the wrongful character of the act, regardless of who it harmed. So suppose a case was based upon a fraud that was designed to harm hundreds and happened to harm the plaintiff. Under this definition of “reprehensibility,” the reprehensibility of that fraud should be measured against the potential harm to everyone the defendant tried to harm or exposed to injury through its reckless conduct. In other words, based on this definition of “reprehensibility,” a punitive damage award should be measured against the “total harm” risked by a defen
