Murray and Meerkins explain that while product liability and personal injury cases avoid duplicative damages by following a well-established process, avoiding duplicative damages is more challenging in commercial and intellectual property cases. In their article, the authors cover two very recent examples of duplicative damages, identify types of cases that are “especially susceptible to a confusing and possibly duplicative damages award,” and offer four tactics to clarify damage awards and avoid duplication.
First, the authors advise that “a defendant should always raise and preserve the issue of duplicative damages – both at the jury-instruction conference and post-trial – or risk waiver on appeal.” Second, a verdict form should ask the jury to “determine a total dollar amount for each category of damages associated with a claim for which it found liability.”
Third, attorneys can ask the jury, “What is the maximum amount to be awarded to the plaintiff under all of the causes of action for which you find liability?” Murray and Meerkins believe that “this question has the benefit of simplicity and of accurately assessing jury intent.” Finally, the authors suggest that if a duplicative damage issue is easily identified and fixable, an attorney “may have the right to ask the judge to exercise his or her inherent authority to obtain a nonduplicative verdict.”Murray and Meerkins conclude, “Given the proper amount of forethought, it is possible to design jury instructions and a verdict form that minimizes confusion over damages so that neither party receives an unexpected windfall post-trial. And, although preverdict caution is the best strategy, the U.S. Supreme Court may have provided one additional post-verdict tool in its recent Dietz opinion.”