Tort reform has ushered in legislation imposing caps on damages in jurisdictions across the country. Unsurprisingly, these statutory caps on damages have faced numerous challenges, leading to a hodgepodge set of rules across jurisdictions. Statutes capping the amount of recoverable non-economic damages are customarily challenged on six grounds: (1) equal protection, (2) due process, (3) separation of powers, (4) access to courts, (5) right to trial by jury, and (6) privileges and immunities. The success of attempts to challenge damage caps has varied widely across jurisdictions, and the United States Supreme Court has yet to rule on the constitutionality of these provisions.
Similarly, there is wide discrepancy in the application of the collateral source rule across jurisdictions. Generally, the rule precludes a tortfeasor from offsetting his liability based upon payments made to an injured party by a collateral source. See Restatement (Second) of Torts § 920A (“Payments made to or benefits conferred on the injured party from other sources are not credited against the tortfeasor’s liability, although they cover all or a part of the harm for which the tortfeasor is liable.”). When the collateral source rule applies, evidence of collateral payments to or coverage of a plaintiff by any other source, including insurance, Medicare, Social Security, pension or retirement funds, and employee benefit accounts are generally not admissible. It should also be noted that in some jurisdictions such as Mississippi, a plaintiff can waiver the collateral source doctrine or at least open the door to cross-examination if the plaintiff testifies, “I couldn’t afford to keep going back to the doctor,” when in fact the plaintiff had health insurance that would have paid.
In every jurisdiction, case analysis and settlement evaluation necessitate a timely and clear understanding of these provisions. The following survey discusses each state’s damages cap provisions and the applicability of the collateral source rule.
In Alabama, punitive damages are capped at three times compensatory damages or $500,000, whichever is greater. Ala. Code § 6-11-21. Awards of punitive damages against small businesses (defined as having $2 million or less in net worth at the time of the occurrence) are capped at $50,000, or 10 percent of the business’ net worth, whichever is greater. Ala. Code § 6-11-21(b)–(c). In cases involving physical injury, state law limits punitive damages to no more than three times the compensatory damages of the party claiming punitive damages or $1.5 million, whichever is greater. Ala. Code § 6-11-21(d). These caps are removed altogether in actions for wrongful death or intentional infliction of physical injury. Ala. Code § 6-11-21(j). There is no corresponding cap on compensatory damages.
In product liability actions, when evidence of collateral source payments is admitted, the plaintiff is entitled to introduce evidence of the cost of obtaining those payments, which are considered recoverable as damages. Ala. Code § 6-5-522.
Alaska caps punitive damages at three times compensatory damages or $500,000, whichever is greater. Alaska Stat. § 09.17.020(f). If the conduct is “motivated by financial gain and the adverse consequences of the conduct were actually known by the defendant,” the cap is raised to four times compensatory damages, four times the aggregate amount of financial gain received by the defendant as a result of the misconduct, or $7 million, whichever is greater. Alaska Stat. § 09.17.020(g). Fifty percent of all punitive damage awards are deposited into the state’s general fund. Alaska Stat. § 09.17.020(j). Non-economic damages are capped at the greater of $400,000 or the injured party’s life expectancy in years multiplied by $8,000. Alaska Stat. § 09.17.010(b). This cap is raised to the greater of $1 million or $25,000 multiplied by the plaintiff’s life expectancy in the event of “severe permanent physical impairment or severe disfigurement.” Alaska Stat. § 09.17.010(c).
Alaska allows a post-verdict reduction in damages by the amounts received or to be received by the claimant as compensation for the same injury from collateral sources that do not have a right of subrogation by law or contract. Alaska Stat. § 09.17.070.
While there is no stated cap on punitive damages, and the Arizona Constitution prohibits passing a law that would limit the amount of damages in personal injury or wrongful death actions, Arizona case law has interpreted the Due Process Clause to prohibit grossly excessive or arbitrary awards. See Ariz. Const., art. II, § 31; Security Title Agency, Inc. v. Pope, 200 P.3d 977, 997–98 (Ariz. Ct. App. 2008). There is no cap on compensatory damages.
Arizona generally applies the collateral source rule to allow a plaintiff to recover damages even if they were not actually sustained. See Lopez v. Safeway Stores, Inc., 129 P.3d 487, 496 (Ariz. 2006).
The Arkansas Supreme Court declared unconstitutional a previously enacted statute capping punitive damages. See Bayer CropScience LP v. Schafer, 385 S.W.3d 822, 829–32 (Ark. 2011). There is no cap on compensatory damages.
The collateral source rule applies in Arkansas. In fact, a statute limiting the recovery of certain medical expenses was declared unconstitutional in contravention of separation of powers, though it was also challenged on collateral source grounds. Johnson v. Rockwell Automation, Inc., 308 S.W.3d 135 (Ark. 2009).
In California, caps on non-economic damages apply only to medical malpractice cases. Cal. Civ. Code § 3333.2(b). Otherwise, California has no cap on either punitive or compensatory damages.
The collateral source rule applies. See Howell v. Hamilton Meats & Provisions, Inc., 257 P.3d 1130 (Cal. 2011).
In Colorado, punitive damages cannot exceed the amount of compensatory damages awarded. Colo. Rev. Stat. § 13-21-102(1)(a). Though economic damages are not capped, non-economic damages in any civil action other than medical malpractice cannot exceed $613,760, which may be increased by the court upon clear and convincing evidence to a maximum of $1,227,530. Colo. Rev. Stat. § 13-21-102.5(3)(a). Colorado adjusts the caps every two years, with the next adjustment set for January 1, 2022. The current caps apply to claims for relief that accrue on and after January 1, 2020 and before January 1, 2022. Non-economic damages for medical malpractice claims are controlled separately and capped at $300,000. Colo. Rev. Stat. § 13-64-302(c).
Colorado reduces the verdict award by the amount paid by a collateral source; however, no reduction is allowed where the collateral payment arises from contractual obligations intended to benefit the injured party, such as private insurance or social security payments. Colo. Rev. Stat. § 13-21-111.6.
Connecticut does not cap compensatory damages, but in product liability actions, punitive damages cannot exceed two times the amount of compensatory damages awarded and can only be awarded “if the claimant proves that the harm suffered was the result of the product seller’s reckless disregard for the safety of product users, consumers or others who were injured by the product.” Conn. Gen. Stat. 52-240b.
Connecticut reduces the verdict award by the amount paid by a collateral source. Conn. Gen. Stat. § 52-225a(a)–(b).
There are no caps on either compensatory or punitive damages in Delaware.
In terms of collateral source, Delaware allows for the recovery of the reasonable value of medical expenses. See Mitchell v. Hunter, 883 A.2d 32 (Del. 2005); Onusko v. Kerr, 880 A.2d 1022 (Del. 2005).
DISTRICT OF COLUMBIA
The District of Columbia does not cap either compensatory or punitive damages, and the collateral source rule applies. See Hardi v. Mezzanotte, 818 A.2d 974, 984 (D.C. 2003).
There are no caps on compensatory or punitive damages in Florida.
In negligence cases, a court must reduce an award of economic damages by “all amounts that have been paid for the benefit of the claimant, or which are otherwise available to the claimant, from all collateral sources.” Fla. Stat. § 768.76(1). However, there is no reduction for collateral source payments for which there is a right of subrogation. Id. Any reduction is also offset by any amount paid by the claimant or a family member in order to secure the collateral payment. Id.
Compensatory and punitive damages are not capped in Georgia.
The collateral source rule applies to bar admission of any evidence as to payments of medical, hospital, disability income, or other expenses of a tortious injury paid for by a plaintiff, governmental entity, or third party and taking credit towards the defendant’s liability in damages for such payments. Candler Hosp. v. Dent, 491 S.E.2d 868 (1997).
Hawaii does not place a cap on punitive damages, but non-economic damages are capped at $375,000, with certain exceptions. Haw. Rev. Stat. Ann. § 663-8.7.
Hawaii law also provides for the recovery of the “reasonable value” of medical expenses. See Bynum v. Magno, 101 P.3d 1149, 1155–57 (2004). Discounted amounts paid by Medicare/Medicaid are inadmissible pursuant to the collateral source rule. See Id. at 1157.
Idaho caps non-economic damages at $250,000, but the cap is subject to increase or decrease in accordance with the average annual wage. Idaho Code Ann. § 6-1603(1). Punitive damages are capped up to three times compensatory damages or $250,000, whichever is greater. Idaho Code Ann. § 6-1604(3).
Idaho prevents double recovery due to collateral source payments. Although the plaintiff is allowed to present evidence of incurred medical expenses, the damages plaintiff is entitled to recover should be reduced by the amount actually paid by sources such as Medicare and Medicaid, and for which plaintiff is not obligated. Collateral sources shall not include: (1) “benefits paid under federal programs which by law must seek subrogation;” (2) “death benefits paid under life insurance contracts;” (3) “benefits paid by a service corporation organized under chapter 34, title 41, Idaho Code;” and (4) “benefits paid which are recoverable under subrogation rights created under Idaho law or by contract.” Idaho Code Ann. § 6-1606; see also Dyet v. McKinley, 81 P.3d 1236 (Idaho 2003).
Illinois does not cap compensatory or punitive damages. Punitive damages are banned in medical malpractice cases. However, a statutory limitation on non-economic damages in medical malpractice cases was held unconstitutional. Lebron v. Gottlieb Mem. Hosp., 930 N.E.2d 895, 913-915 (Ill. 2010).
The collateral source rule applies. See Wills v. Foster, 892 N.E.2d 1018 (Ill. 2008).
While there is no cap on compensatory damages in Indiana (except in the medical malpractice context), punitive damages are capped at the greater of three times the amount of compensatory damages awarded or $50,000. Ind. Code § 34-51-3-4.
Evidence of collateral source payments are admissible, with the exception of: (1) life insurance payments or death benefits; (2) insurance benefits which the plaintiff or members of the plaintiff’s family have paid for directly; and (3) payments made by the United States or any subdivision thereof. Ind. Code § 34-44-1-2(1). Proof of the amount of money that the plaintiff is required to repay, including worker’s compensation benefits, as a result of the collateral benefits received and proof of the cost to the plaintiff or to members of the plaintiff’s family of collateral benefits received by the plaintiff or the plaintiff’s family are also admissible. Ind. Code § 34-44-1-2(2)–(3).
Iowa does not cap compensatory or punitive damages.
Iowa courts recognize the collateral source rule. However, the traditional rule has been partially abrogated by Iowa’s comparative fault statute. See Iowa Code § 668.14.
Though there is no cap on compensatory damages in Kansas (except in medical malpractice actions), punitive damages are capped at the lesser of either the defendant’s annual gross income (or if inadequate, then 50 percent of the defendant’s net worth) or $5 million. Kan. Stat. Ann. § 60-3702(e).
Kansas follows the Restatement (Second) of Torts § 920A, which provides: “(1) A payment made by a tortfeasor or by a person acting for him to a person whom he has injured is credited against his tort liability, as are payments made by another who is, or believes he is, subject to the same tort liability;” and “(2) Payments made to or benefits conferred on the injured party from other sources are not credited against the tortfeasor’s liability, although they cover all or a part of the harm for which the tortfeasor is liable.”
Kentucky does not cap either compensatory or punitive damages.
Kentucky applies the collateral source rule without exception and allows for the recovery of all expenses, regardless of payment to the plaintiff by a collateral source. See O’Bryan v. Hedgespeth, 892 S.W.2d 571 (Ky. 1995).
Though Louisiana does not place a cap on compensatory damages, punitive damages are generally disfavored unless authorized by statute. As of now, punitive damages are permitted only in limited circumstances, such as intoxicated driving, criminal sexual activity with minors, and storage/disposal of toxic waste. See, e.g., La. Civ. Code Ann. Art. 2315.3. The Louisiana choice of law rules also provide that punitive damages may not be awarded except: “(1) [b]y the law of the state where the injurious conduct occurred and by either the law of the state where the resulting injury occurred or by the law of the place where the person whose conduct caused the injury was domiciled; or (2) [b]y the law of the state in which the injury occurred and by the law of the state where the person whose conduct caused the injury was domiciled.” La. Civ. Code Ann. Art. 3546.
The collateral source rule applies in Louisiana. See Bozeman v. State, 879 So. 2d 692 (La. 2004).
In wrongful death cases, Maine caps non-economic damages at $750,000 and punitive damages at $250,000. Me. Rev. Stat. Ann. Tit. 18-C, § 2-807.
The collateral source rule applies. See Werner v. Lane, 393 A.2d 1329 (Me. 1978).
In Maryland, there is no cap on economic or punitive damages, but non-economic damages must not exceed $845,000. Per statute, the cap on non-economic damages increases by $15,000 on October 1 of each year. Md. Code Ann., Cts. & Jud. Proc. § 11-108.
The collateral source rule applies. See Corapcioglu v. Roosevelt, 907 A.2d 885 (Md. App. 2006).
There is no cap on compensatory damages in Massachusetts (except in medical malpractice actions), and there is no entitlement to punitive damages except as provided by statute. For example, a defendant “shall be liable in . . . (3) punitive damages in an amount of not less than five thousand dollars in such cases as the decedent’s death was caused by the malicious, willful, wanton, or reckless conduct of the defendant or by the gross negligence of the defendant.” Mass. Gen. Laws ch. 229 § 2(3).
The collateral source rule applies in Massachusetts. See Law v. Griffith, 930 N.E.2d 126 (Mass. 2010).
Compensatory damages are not capped in Michigan, except in medical malpractice cases. Punitive damages may be permitted by statute. “Exemplary damages,” which are not considered punitive in nature, are available to compensate a plaintiff for mental anguish, humiliation, outrage, or increased injury to the plaintiff’s feelings that he or she suffers due to the defendant’s willful, malicious, or wanton conduct or reckless disregard for the plaintiff’s rights. See Peisner v. Detroit Free Press, 364 N.W.2d 600 (Mich. 1984). Non-economic damages are subject to caps in medical malpractice actions. Mich. Stat. § 600.1483. These caps vary from year-to-year to reflect the cumulative annual percentage change in the consumer price index. See, e.g., Jenkins v. Patel, 684 N.W.2d 346 (Mich. 2004).
The collateral source rule has been abrogated in part by statute, and the procedure for reducing a plaintiff’s personal injury award by the amounts paid by a third party is set forth within that statute. See Mich. Comp. Laws Ann. § 600.6303.
There is no cap on either compensatory or punitive damages in Minnesota.
Minnesota has abrogated the traditional collateral source rule by statute, which allows a reduction (upon motion) in a verdict by the amount of collateral sources paid on behalf of the plaintiff, except where a subrogation right has been asserted, but that reduction is subsequently offset by “amounts that have been paid, contributed, or forfeited by, or on behalf of, the plaintiff or members of the plaintiff’s immediate family for the two-year period immediately before the accrual of the action to secure the right to a collateral source benefit that the plaintiff is receiving as a result of losses.” Minn. Stat. § 548.251.
Mississippi currently has a $1 million cap on non-economic damages for all civil actions except medical malpractice actions, which caps non-economic damages at $500,000. Miss. Code Ann. § 11-1-60. While a Mississippi circuit court found the cap unconstitutional in 2012, the state Supreme Court has not considered its constitutionality. See Tanner v. Eagle Oil & Gas Co., 2012 WL 7748580 (Miss. Cir. 2012). Mississippi has a complicated statutory scheme for capping punitive damages, which centers on the defendant’s net worth. Miss. Code Ann. § 11-1-65(3)(a).
The collateral source rule is applicable and has no exceptions. See Busick v. St. John, 856 So. 2d 304 (Miss. 2003).
There is no cap on compensatory damages in Missouri (except in medical malpractice cases, Mo. Rev. Stat. § 538.210), and the previous cap on punitive damages (Mo. Rev. Stat. § 510.265) was held to be unconstitutional by the Missouri Supreme Court. Lewellen v. Franklin, 441 S.W.3d 136 (Mo. 2014).
The collateral source rule applies. See Porter v. Toys ‘R’ Us-Delaware, Inc., 152 S.W.3d 310 (Mo. Ct. App. 2004).
There is no cap on compensatory damages in Montana. Though Montana caps the amount of punitive damages at $10 million or 3 percent of defendant’s net worth, whichever is less, the constitutionality of this cap is uncertain. The cap was held unconstitutional by two Montana trial courts in 2014, but the Montana Supreme Court has not ruled on this issue. See Olson v. Hyundai Motor Co., No. DV 11-304, 2014 WL 5040001 (Mont. Dist. Sept. 19, 2014); Butte Local Dev. Corp. v. Masters Grp. Int’l, Inc., No. DV-11-372, 2014 WL 2895577 (Mont. Dist. Mar. 25, 2014) aff’d in part, rev’d in part on other grounds, 352 P.3d 1101 (Mont. 2015).
Courts in Montana must reduce the amount of a verdict that was more than $50,000 if the plaintiff will be fully compensated, not including courts costs and attorney fees. There is no right to subrogation except specifically granted by state or federal law. If an insurance policy reduces the award, several factors are considered in the reduction. Mont. Code Ann. § 27-1-308.
There is no general cap on compensatory damages (except in medical malpractice cases), but Nebraska has declared punitive damages to be unconstitutional. See Miller v. Kingsley, 230 N.W.2d 472 (Neb. 1975).
The collateral source rule applies generally, “[b]ut if the tort-feasor contributed in some way to the benefits provided to the injured person, then the tort-feasor might be entitled to mitigation of damages.” Strasburg v. Union Pacific R.R. Co., 839 N.W.2d 273, 275 (Neb. 2013).
In Nevada, non-economic damages are capped at $350,000 only in medical malpractice actions. See Nev. Rev. Stat. § 41A.035. Otherwise, there is no cap on compensatory damages. Punitive damages are capped at three times compensatory damages if the compensatory damage award was greater than or equal to $100,000 and at $300,000 if the compensatory damage award was less than $100,000. Nev. Rev. Stat. § 42.005. The statute lists the claims where the cap does not apply, which includes actions for defective products.
The collateral source rule applies (see Proctor v. Castelleti, 911 P.2d 853 (Nev. 1996)), but in medical malpractice actions, the defendant can present evidence of payments from a collateral source. See Nev. Rev. Stat. § 42.021.
There is currently no cap on compensatory damages in New Hampshire after the New Hampshire Supreme Court declared a previous statute capping non-economic damages at $875,000 to be unconstitutional. See Brannigan v. Usitalo, 587 A.2d 1232 (N.H. 1991). Punitive damages are unavailable per statute. N.H. Rev. Stat. § 507:16.
The collateral source rule applies. See Cyr v. J.I. Case Co., 652 A.2d 685 (N.H. 1994).
There is no cap on compensatory damages in New Jersey. Punitive damages are capped at five times compensatory damages or $350,000, whichever is greater. The cap does not apply in the context of bias crimes, discrimination, AIDS testing disclosure, sexual abuse, or drunk driving. N.J. Stat. Ann. § 2A:15-5.14.
The same statute also abrogates the collateral source rule. The Third Circuit Court of Appeals has held that the collateral source aspect of this statute is preempted by ERISA. Levine v. United Healthcare Corp., 402 F.3d 156 (3rd Cir. 2005).
There is no cap on either compensatory or punitive damages in New Mexico (except in medical malpractice cases).
The collateral source rule applies. Sunnyland Farms, Inc. v. Central N.M. Elec. Co-op., Inc., 301 P.3d 387 (N.M. 2013).
New York does not cap either compensatory or punitive damages.
Payments from a collateral source are admissible to reduce the award after the verdict (excluding voluntary charitable contributions). N.Y. C.P.L.R. § 4545.
There is no cap on compensatory damages in North Carolina (except in medical malpractice cases), but punitive damages are capped at three times compensatory damages or $250,000, whichever is greater. N.C. Gen. Stat. Ann. § 1D-25. The statute has withstood challenges that it violates the right to a jury trial, separation of powers, the open courts guarantee, the prohibition on special legislation, the takings clause, the prohibition on vagueness, and the due process and equal protection clauses. Rhyne v. K-Mart Corp., 562 S.E.2d 82 (N.C. Ct. App. 2002).
The collateral source rule applies. See Cates v. Wilson, 361 S.E.2d 734 (N.C. 1987).
In North Dakota, non-economic damages are only capped in medical malpractice actions (see N.D.C.C. § 32-42-02) and are generally not capped otherwise.
In terms of collateral source, a court may reduce the verdict based on the introduction of collateral source payments. N.D.C.C. § 32-03.2-06. However, the jury may not be told about the other source. N.D.C.C. § 32-03.2-10.
Ohio caps non-economic damages at $250,000 or three times the amount of economic damages, whichever is greater, with a maximum of $350,000 per plaintiff and $500,000 per occurrence, with a few limited exceptions for catastrophic injury. Oh. Rev. Code § 2315.18. Punitive damages are capped at two times compensatory damages. If the defendant is a small employer or an individual, the cap is two times compensatory damages or 10 percent of their net worth, whichever is less, with a maximum of $350,000. Oh. Rev. Code § 2315.21. The statute contemplates certain situations where the caps on punitive damages are not applicable, such as when the injury, death, or loss resulted from the defendant’s intentional conduct and the defendant has been convicted of a felony with the element of purposely/knowingly and that felony is the basis of the tort action.
In terms of collateral source, a defendant can introduce evidence of any amount of collateral source unless the source has a mandatory, self-effectuating federal right of subrogation, a contractual subrogation, or a statutory subrogation, or if the source pays a benefit in the form of a life insurance or disability payment. The defendant can also introduce evidence of a life insurance/disability payment when it was paid by the employer and the employer is the defendant. Oh. Rev. Code § 2315.20.
For bodily injury cases, there is no cap on economic damages. The statute capping non-economic damages was held unconstitutional in Beason v. Miller Serv., Inc. 441 P.3d 1107 (Okla. 2019).
The collateral source rule applies in Oklahoma. See Mariani v. State ex rel. Okla. State Univ., 348 P.3d 194 (2015).
Oregon does not have a cap on compensatory damages (except in medical malpractice cases). There is no cap on punitive damages, but punitive damage awards are divided among the plaintiff (30 percent); the attorney general for deposit into the Criminal Injuries Compensation Account (60 percent); and the attorney general for deposit into the State Court Facilities and Security Account (10 percent). Or. Rev. Stat. § 31.735(1). Punitive damages are not available against healthcare providers acting without malice. Or. Rev. Stat. § 31.740.
The collateral source rule has been abrogated by statute and courts are permitted to reduce the verdict award based on payments from collateral sources (submitted via affidavit prior to a judgment), though the collateral source evidence is not admissible. Or. Rev. Stat. § 31.580.
There is no cap on compensatory damages in Pennsylvania. While there is no general cap on punitive damages, multiple statutory provisions (roughly 35) create individualized caps in various contexts such as medical malpractice, abortion notification, bad faith, trade secrets, and agricultural protections, among others.
The collateral source rule applies in Pennsylvania to product liability actions, but medical malpractice legislation abrogates the rule to preclude a plaintiff from recovering damages for past medical expenses or past lost earnings that were covered by private or public benefit or gratuity, but this does not apply to life insurance, pension or profit-sharing, social security, benefits subject to repayment to Department of Public Welfare, or public benefits paid under a program under federal statute that provides for right of reimbursement, which supersedes state law. 40 Pa. Cons. Stat. § 1303.508.
Rhode Island has no cap on compensatory damages, and there is no general cap on punitive damages. Punitive damages are unavailable in wrongful death actions. See Simeone v. Charron, 762 A.2d 442, 449 (R.I. 2000).
The collateral source rule applies generally, but the rule has been abrogated in the medical malpractice context. See R.I. Gen. Laws § 9-19-34.1.
There is no general cap on compensatory damages, except in medical malpractice actions where there are certain limitations on non-economic damages. See S.C. Code Ann. § 15-32-220. Punitive damages are capped at three times the amount of compensatory damages to each claimant or $500,000, whichever is greater; however, if the court determines that the wrongful conduct was motivated by unreasonable financial gain and that the unreasonably dangerous nature of the conduct and high likelihood of injury was approved by agent/director/officer or that the defendant’s actions could subject them to a felony conviction, the cap is raised to four times compensatory damages or $2 million, whichever greater. If the court determines that the defendant had intent to harm, has pled guilty/been convicted of a felony in relation to the claim, or was under the influence of alcohol/drugs/prescription drugs/glue/aerosol/toxic vapor at the time of the alleged wrongful conduct, the cap is eliminated. S.C. Code Ann. § 15-32-530.
The collateral source rule applies in South Carolina. See Citizens & S. Nat’l Bank of S.C. v. Gregory, 463 S.E.2d 317 (S.C. 1995).
There is no general cap on compensatory or punitive damages in South Dakota. There are specific caps on compensatory damages in medical malpractice and in death or injury of a “voluntary rodeo contestant.” S.D. Codified Laws § 21-3-13.
The collateral source rule applies with a statutory exception in medical malpractice actions. See Papke v. Harbert, 738 N.W.2d 510 (S.D. 2007).
Tennessee caps non-economic damages at $750,000, which is raised to $1 million if the plaintiff suffers catastrophic injury. Tenn. Code Ann. § 29-39-102; McClay v. Airport Mgm’t Serv., Inc., 596 S.W.3d 686 (Tenn. 2020) (upholding constitutionality of statutory cap on non-economic damages against plaintiff’s arguments that the statute violated her right to a trial by jury, violated the separation of powers doctrine, and discriminated disproportionately against women); but see Lindenberg v. Jackson National Life Ins. Co., 912 F.3d 348 (6th Cir. 2018), cert. denied, 140 S.Ct. 6356 (2019) (holding the statutory cap on punitive damages is unconstitutional). The cap is eliminated entirely if the defendant had a specific intent to inflict serious physical injury; intentionally falsified, destroyed, or concealed records of evidence to avoid liability; was under the influence of alcohol, drugs, or any other intoxicant or stimulant; or whose actions result in a felony conviction. Id. In general, punitive damages are capped at the greater of two times the amount of compensatory damages or $500,000, and the cap is lifted if there is specific intent to inflict serious physical injury; the defendant intentionally falsified, destroyed, or concealed records of evidence to avoid liability; the defendant was under the influence of alcohol, drugs, or any other intoxicant or stimulant; or the defendant’s actions resulted in a felony conviction. Tenn. Code Ann. 29-39-104. Punitive damages are not available in a civil action involving a drug or device if the drug or device conformed to FDA standards or was an over-the-counter drug or device marketed pursuant to federal regulations; was generally recognized as safe and effective and as not being misbranded pursuant to the applicable federal regulations; and satisfied in relevant and material respects each of the conditions contained in the applicable regulations and each of the conditions contained in an applicable monograph. Tenn. Code Ann. § 29-39-104(d)(1). This exemption does not apply if the manufacturer withheld or misrepresented material information relevant to the harm the claimant allegedly suffered. Tenn. Code Ann. § 29-39-104(d) (2).
The collateral source rule generally applies but has been abrogated in the medical malpractice context. See Dedmon v. Steelman, 535 S.W.3d 431 (Tenn. 2017).
In Texas, there is no general cap on compensatory damages, but there are exceptions for medical malpractice actions. Punitive damages are capped at either two times the amount of compensatory damages plus the of non-economic damages found by a jury not to exceed $750,000, or $200,000, whichever is greater. Tex. Civ. Prac. & Remedies Code § 41.008. This cap does not apply in the context of commission of certain crimes. Id.
The collateral source rule applies, but the plaintiff cannot recover more than the actual expenses. Haygood v. De Escobedo, 356 S.W.3d 390 (Tex. 2011). Evidence of a collateral source may also be admissible for impeachment purposes. Guerra v. Wal-Mart Stores, Inc., 943 S.W.2d 56, 61 (Tex. App. 1997).
There is no general cap on compensatory damages, but there is a $450,000 cap on non-economic damages in medical malpractice actions (though not in wrongful death actions). Utah Code Ann. § 78B-3-410; Smith v. U.S., 356 P.3d 1249 (Utah 2015). When punitive damages are awarded, the first $50,000 goes to the injured party, and any amount awarded in excess of that amount is split evenly between the injured party and the state. Utah Code Ann. § 78B-2-201(3)(a).
The collateral source rule applies in Utah. Phillips v. Bennett, 439 P.2d 457, 458 (Utah 1968). However, evidence of collateral-source payments is admissible in medical malpractice actions, except where a right of subrogation exists. Utah Code Ann. § 78B-3-405 (2008).
Vermont does not have a cap on either compensatory or punitive damages.
The collateral source rule applies, with limitations. See Windsor School Dist. v. State, 956 A.2d 528 (Vt. 2008). A Vermont superior court recently clarified that when a plaintiff has sued the hospital that rendered her treatment for medical malpractice, the collateral source rule does not permit the plaintiff to collect more in medical special damages than the actual amount collected, rather than billed, by the hospital from third party sources (such as Medicare and private insurance). Put another way, the collateral source rule does not permit a plaintiff to recover the full amount originally billed by the defendant-hospital when the hospital accepted less than it originally billed the plaintiff’s insurance provider as payment-in-full for plaintiff’s treatment. See DeGraff Spear, et al. v. The University of Vermont Medical Center et al., Docket 239-3-18 Cncv (Toor, J) (May 12, 2020); see also Recovery of Medical Bills, Med. Def. and Health L. 2d (July 2020), available at https://www.iadclaw.org/assets/1/17/Medical_Defense_Health_Law_July_2020-2nd_Edition.pdf (explaining the implications of the DeGraff decision in detail).
There is no general cap on compensatory damages in Virginia, though a statutory scheme exists to cap such damages in medical malpractice actions. See Va. Code Ann. § 8.01-581.15. Punitive damages are capped at $350,000. Va. Code Ann. § 8.01-38.1.
“The collateral source rule is a long-standing principle in Virginia tort law and has been applied in tort cases for more than a century.” Acuar v. Letourneau, 531 S.E.2d 316, 320 (Va. 2000).
The Washington Supreme Court has deemed caps on non-economic damages unconstitutional. See Sofie v. Fibreboard Corp., 771 P.2d 711 (Wash. 1989). Punitive damages are expressly prohibited unless authorized by statute. Algaier v. Bank of America, N.A., 2015 WL 12867009, *3 (E.D. Wash. July 23, 2015). There is no statutory exception for claims under the Washington Products Liability Act. Bryant v. Wyeth, 879 F. Supp. 2d 1214, n. 5 (W.D. Wash. 2012) (“Washington’s prohibition on punitive damages applies to the WPLA claims.”).
The collateral source rule applies. Johnson v. Weyerhaeuser Co., 953 P.2d 800 (Wash. 1998).
There is no general cap on compensatory damages, but a cap exists in the medical malpractice context. See W. Va. Code § 55-7B-8. There is similarly no cap on punitive damages.
In West Virginia, trial courts deduct collateral source payments from the jury’s verdict per statute. W. Va. Code § 55-7B-9a (2015).
Wisconsin has no general cap on compensatory damages, but as with many other states, the legislature created a cap in the context of medical malpractice actions. Wis. Stat. Ann. § 893.55. Punitive damages are capped at two times compensatory damages or $200,000, whichever is greater. Wis. Stat. Ann. § 895.043. This cap does not apply in the DUI context.
The collateral source rule applies. See Letinger v. DBart, Inc., 736 N.W.2d 1 (Wis. 2007).
Wyoming does not have a cap on either compensatory or punitive damages.
The collateral source rule applies, but only in tort cases. Miller v. Campbell Co., 901 P.2d 1107 (Wy. 1995) (holding the collateral source rule is inapplicable in inverse condemnation cases).