§ 41.011.Evidence Relating to Amount of Exemplary Damages

The factors, and the evidentiary rule that makes bifurcation work.

In determining the amount, the trier of fact shall consider evidence relating to: the nature of the wrong; the character of the conduct involved; the degree of culpability of the wrongdoer; the situation and sensibilities of the parties concerned; the extent to which such conduct offends a public sense of justice and propriety; and the net worth of the defendant.

The first five are about the conduct. The sixth is about the defendant. Net worth is relevant because a sum that punishes an individual is trivial to a large company, and a penalty that does not register does not deter. It is also the factor that makes bifurcation necessary.

Subsection (b) states the rule plainly: evidence relevant only to the amount of exemplary damages is not admissible during the first phase of a bifurcated trial. A jury deciding liability and compensatory damages does not hear how wealthy the defendant is.

Note the qualifier — relevant only. Evidence bearing on liability as well as amount is not excluded merely because it also speaks to the punitive figure.

Net worth evidence has a second gate: it cannot be discovered at all without a court order under the discovery section, which requires a showing of substantial likelihood of success on the exemplary damages claim.