In Pennsylvania, juries may generally award punitive damages for conduct that is outrageous given a defendant's evil motive or reckless indifference to the rights of others.

On May 19, 2025, the Pennsylvania Superior Court vacated a $2.7 million punitive damages award in Bernavage v. Green Ridge Healthcare, et al., holding that the trial court should not have allowed an amendment to the plaintiff’s complaint asserting recklessness because it came as an “unfair surprise” when first alleged at trial. This decision comes in the wake of a broadening trend in Pennsylvania where juries are increasingly awarding substantial punitive damages in medical malpractice, products liability and personal injury cases. Given the Bernavage ruling, defendants in these cases should consider filing pre-trial motions to preclude any evidence of recklessness and object to all mentions of recklessness at trial so that plaintiffs cannot tack on costly punitive damages awards at the eleventh hour.

Background and Legal Standards

In Pennsylvania, juries may generally award punitive damages for conduct that is outrageous given a defendant's evil motive or reckless indifference to the rights of others. See Hutchison ex rel. Hutchison v. Luddy, 870 A.2d 766, 770–71 (Pa. 2005). In evaluating whether punitive damages are appropriate, Pennsylvania courts focus specifically on the defendant’s state of mind—the conduct must be intentional, reckless or malicious. Id. at 122. Mere negligence “is not enough to warrant punitive damages.” Id. at 125. However, juries may consider potential harm beyond the actual harm a plaintiff suffers when considering the amount of punitive damages. Bert Co. v. Turk, 298 A.3d 44, 55 (Pa. 2023).

The standard for punitive damages varies slightly between general personal injury cases and medical malpractice cases. In typical tort claims, the factfinder has broad discretion to award punitive damages for conduct that is willful, malicious or so careless as to demonstrate a wanton disregard for the plaintiff’s rights. Id. at 61. While the standard in medical malpractice cases is similar—requiring conduct that is willful, wanton or shows reckless indifference to the rights of others—punitive damages are capped at 200 percent of the compensatory damages awarded under the Medical Care Availability and Reduction of Error Act, unless the claim involves intentional misconduct. 40 P.S. § 1303.505(d); Fornataro v. Jorgensen, 34 Pa.D.&C.5th 265, at *2 (C.P. Lawrence Nov. 5, 2013).

Pennsylvania law generally allows amendments to complaints “at any time.” Pa.R.C.P. 1033(a). Courts should “liberally allow” amendments so that cases may be decided on their merits rather than dismissed on technicalities. Bernavage v. Green Ridge Healthcare Grp., LLC, 1576 M.D.A. 2023, at 3 (Pa. Super. May 19, 2025) (citing Hill v. Ofalt, 85 A.3d 540, 557 (Pa. Super. 2014)). However, “amendments may be disallowed where they result in surprise or prejudice to the opposing party, or where they violate a positive rule of law.” Id. (citing Discover Bank v. Stucka, 33 A.3d 82, 88 (Pa. Super. 2011)) (emphasis added). The late introduction of new theories of recovery often causes prejudice because defendants cannot prepare defenses, conduct discovery on new issues so late into litigation, or consult with experts about the new claims. See, e.g., West Penn Power Co. v. Bethlehem Steel Corp., 348 A.2d 144, 156 (Pa. Super. 1975) (denying amendment to complaint on last day of trial, after four years of discovery, because allowing new theory of recovery “at the very end of the case” would be prejudicial to defendant).

The Bernavage Case

The plaintiff in Bernavage alleged that the defendant nursing home’s negligent care caused her severe harm. Bernavage, 1576 M.D.A., at 1. Until trial, the plaintiff’s complaint asserted only a general negligence claim. Id. at 9. However, on the first day of trial, plaintiff’s counsel began eliciting testimony from key witnesses regarding the defendant’s conscious disregard of known risks. These examinations led to multiple admissions—from a caregiver, a supervisor and the plaintiff’s expert—characterizing the defendant’s conduct as “reckless.” Id. Despite no new facts emerging to support a recklessness theory, the trial court allowed the plaintiff to amend her complaint to add a recklessness claim over the defense’s objection. Id. The jury ultimately found that the defendant’s conduct demonstrated a reckless disregard for patient safety and entered judgment for $300,000 in compensatory damages and $2.7 million in punitive damages. Id. at 2.

On appeal, the Pennsylvania Superior Court affirmed the compensatory damages award but vacated the punitive damages award on the grounds of prejudice and unfair surprise. Id. at 9–10. The court emphasized that while amendments to pleadings should be “liberally allowed,” especially when recklessness and negligence are treated as variations of the same cause of action, permitting an amendment at “the last possible minute” without any newly discovered facts caused unfair surprise and prejudiced the defense. Id. at 3, 9.

The court further explained that the primary prejudice inquiry for amendments to complaints should focus on whether “new allegations are offered late rather than in the original pleading,” not on whether “the opponent may lose his case on the merits if the pleading is allowed.” Id. at 5. Thus, an amendment disclosing a defendant’s state of mind—if only identifiable through later discovery—is permissible, even if highly prejudicial. However, “where amendment is sought after the testimony has been concluded, prejudice will always result to the extent that the opposing party has not contemplated the subject matter of the proposed amendment in the preparation and trial of the case.” Id. at 6 (quoting Smith v. Athens Twp. Auth., 685 A.2d 651 (Pa. Cmwlth. 1996)). In other words, if the other party had no chance to respond to an amendment made at the last minute—in this case, during trial—prejudice will always result. Id.

Pennsylvania's Surge in Awards for Punitive Damages

The Superior Court’s holding in Bernavage contrasts with the recent trend in significant punitive damages awards in Pennsylvania, particularly in the Philadelphia Court of Common Pleas, where the recent Roundup cases against Monsanto have delivered staggering punitive damages. In January 2024, a Philadelphia jury delivered a massive $2.25 billion verdict in McKivison v. Monsanto, awarding $2 billion in punitive damages to a man who developed non-Hodgkin’s Lymphoma allegedly caused by exposure to Roundup.[1] Just months earlier, in October 2023, the jury in Caranci v. Monsanto returned a $175 million verdict—$150 million of which was punitive—after finding Monsanto failed to adequately warn users about cancer risks associated with Roundup. Even smaller cases, like Martel v. Monsanto Co. in December 2023, reflect the same trend, with a $3.5 million total award that included $3 million in punitive damages, a 6:1 punitive-to-compensatory ratio.

The pattern is not limited to the Roundup cases: In Amagasu v. Fred Beans Family Dealerships, also in October 2023, the jury issued an enormous $976.5 million verdict—including $800 million in punitive damages—after finding Mitsubishi Motors liable for an alleged 20-year-old defective seatbelt system that caused catastrophic injuries in a rollover accident. Additionally, in the medical malpractice context, a Luzerne County jury awarded a $11 million verdict, including $8 million in punitive damages, following a dentist’s failure to investigate and detect a patient’s tongue cancer. Heffelfinger v. Shen, No. CV-2020-008443 (C.P. Luzerne Feb. 23, 2024). To claim punitive damages, the plaintiff alleged that the defendant withheld her medical records to undermine the delayed diagnosis claims. Id. These cases highlight a growing motivation among jurors to punish companies and medical providers they believe act recklessly or dishonestly.

Impact on Defense Strategies

Considering the Bernavage decision and the recent trend of increasing punitive damage awards in Pennsylvania, defense attorneys should consider the following strategies to mitigate the risk of large punitive damage awards throughout litigation.

Early Assessment

Evaluate the potential for punitive damages and identify any reckless or dishonest conduct early in the case to inform litigation strategies.

Pleadings

Address claims for punitive damages in complaints by filing preliminary objections explicitly challenging their applicability based on the facts pled by plaintiffs.

Pre-Trial Motions

Consider filing summary judgment motions or motions in limine challenging any allegations of recklessness or preventing the introduction of late evidence of recklessness at trial.

Jury Instructions

Request clear jury instructions that delineate the standards for awarding punitive damages.

Objections at Trial

Object to any evidence of recklessness first introduced at trial as prejudicial and constituting “unfair surprise” to preserve challenges for appeal.

Post-Trial Motions

Be prepared to file motions challenging excessive punitive awards as unsupported by the evidence, pled too late or so excessive “as to the shock the conscience” through remittitur. Crespo v. Hughes, 167 A.3d 168, 190 (Pa. Super. 2017).

As Pennsylvania continues an upward trend in substantial punitive damage awards, defense counsel must proactively implement strategies to protect their clients’ interests. Understanding the legal standards and effectively managing litigation can significantly reduce the risk of unfavorable outcomes.

For More Information

If you have any questions about this Alert, please contact Sharon L. Caffrey, Robert M. Palumbos, J.J. Larkins, any of the attorneys in our Trial Practice Group or the attorney in the firm with whom you are regularly in contact.

Notes

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.