TortsProf Blog

Damages in FL, TX

The highest courts in Florida and Texas recently issued rulings on damages issues.  In Florida, the supreme court construed that state’s wrongful death statute to allow recovery by the “surviving spouse,” even though the plaintiff’s marriage to the decedent took place after the injury:

Ripple v. CBS Corp., 385 So.3d 1021, 1023-1024 (Fla. 2024) (construing state wrongful death statute to enable “a spouse who married the decedent after the injury” to “recover damages as a ‘surviving spouse’ ” under statute).

Meanwhile, in Texas, the supreme court allowed the claim of a mother of a healthy child born as a result of a negligently performed sterilization procedure but denied recovery of damages for both the costs of raising a healthy child and any noneconomic damages claimed by the parents:

Noe v. Velasco, 690 S.W.3d 1, 12 (Tex. 2024) (“When . . . medical negligence proximately caused an unplanned pregnancy, that claim is not foreclosed merely because the ultimate result is the birth of a healthy child. But the recoverable damages are limited. The mother may recover the cost of the sterilization procedure and economic damages designed to compensate for injuries proximately caused by the negligence, such as medical expenses incurred during the pregnancy, delivery, and postnatal period . . . But Texas law does not permit recovery of the expenses of raising the healthy child, or any noneconomic damages, because the birth and life of a healthy child do not constitute an injury under Texas law.”).

Virginia's Punitive Damages Cap

Virginia has capped punitive damages at $350,000 since before I practiced there in the late 90s and early 2000s.  Recently, the Fourth Circuit had to apply that damages cap to a case arising out of the August 2017 "Unite the Right" rally in Charlottesville.  The court held that the cap applies to each plaintiff and not each claim and that it applies broadly to all cases:

Sines v. Hill, 106 F.4th 341, 344, 352-354 (4th Cir. 2024) (Virginia law) (holding that the limit applies to each plaintiff and not each claim, regardless of the number of defendants; rejecting, additionally, the plaintiffs’ argument that the limit applies only to “ ‘run-of-the-mill tort claims’ ” and not to hate crimes such as those arising from the August 2017 “Unite the Right” rally of “ ‘white nationalists, white supremacists, and neo-Nazis’ ” in Charlottesville, Virginia).  

Wells on Compensatory Damages and Dignitary Harm in the Restatement of Constitutional Torts

Mike Wells has posted to SSRN Compensatory Damages and Dignitary Harm in the Upcoming Restatement of Constitutional Torts.  The abstract provides:

A new Restatement of Constitutional Torts, just getting underway, and the Restatement (Third) Torts (Remedies) now in draft, provide an opportunity to revisit issues that have lain dormant for decades. In particular, federal courts typically require constitutional tort plaintiffs to prove physical or emotional harm in order to obtain damages. That doctrine deserves re-examination, if only because the Supreme Court’s principal compensatory damages case dates from 1978, and its most recent ruling on the topic came in 1986.

The new Tort Remedies Restatement offers an opportunity to consider modification of that approach. It includes a new section on the emerging importance of “dignitary” harm. That section provides the American Law Institute’s first systematic account of recovery for dignitary harm in common-law torts. This article argues that the same dignitary harm principle should apply to constitutional torts: When the plaintiff proves a violation of constitutional rights, recovery for dignitary harm should include the distinctive injury caused by the constitutional violation in addition to the physical injury, economic loss, emotional distress, and other harms inflicted by ordinary torts.

OR: Punies Verdict Reduced by Gore Guideposts

In Trebelhorn v. Prime Wimbledon, SPE, LLC, 372 Or. 27 (2024), the Oregon Supreme Court used the Gore guideposts to affirm the reduction of a punitive damages verdict in a premises liability case. 

• A plaintiff tenant sued the landlord of his apartment building after sustaining injuries to his meniscus (knee) when an elevated walkway collapsed under him and his "leg punched through a section of elevated walkway that had been weakened by dry rot." There were obvious and severe structural problems with the apartment building, the defendants knew about them, and failed to fix the problems in a timely fashion, leading to the tenant's injuries.
• The landlord admitted negligence and the trial focused on damages. The plaintiff won at trial and was awarded $45,000 in economic damages, $250,000 in noneconomic damages, and a s10,000,000 in punitive damages by the jury.
• After post-trial motions in which the defendants successfully argued that the punitive damages violated the Due Process Clause of the Fourtheenth Amendment, the court reduced punitive damages to $2,660,373, determining that the original punitive damages at a ratio of 33:1 was excessive. The court of appeals affirmed.

The supreme court also affirmed.

• Up until now, the supreme court has only applied these factors to cases involving purely economic harm. The court stated that "the evidence permitted the jury to draw reasonable inferences about defendants’ conduct that suggest a high degree of reprehensibility." The plaintiff also suffered physical harm, and thus there was no clear precedent to follow.
• Ultimately, however, the court held that, despite the reprehensibility of the defendants' negligence and the existence of physical harm, the "single-digit ratio" (9:1) limitation to punitive damages proffered in Campbell is still a good determination of punitive damages allowable without violating the defendants' constitutional rights to due process, even if a plaintiff suffers physical harm/damages.
• Predictably, the court refused to hold that a 9:1 ratio is a bright-line rule for such limitations and left the possibility for a higher ratio when a defendant's actions are "extraordinarily reprehensible."

Thanks to Andres Navarro.

Chamallas on Trauma Damages

Martha Chamallas has posted to SSRN Trauma Damages, a paper she delivered at Southwestern's Concluding the Restatement (Third) of Torts symposium last year.  The abstract provides:

The concept of trauma has increasingly been used to describe the experiences of marginalized groups and has a special relevance to systemic injuries and abuses of power that can form the basis of personal injury claims. Although trauma would seem to have everything to do with tort law, not much attention has been paid to trauma and its connection to torts, either with respect to substantive claims or remedies. This article looks at three contemporary contexts of trauma – rape trauma, racial trauma, and birth trauma – and explores their implications for tort recovery. It examines how trauma in each context compares to post-traumatic stress disorder (PTSD) and explains why many trauma victims are unable to qualify for a PTSD diagnosis, even though they experience many symptoms of PTSD. It explores the potential of victims of chronic racism to bring claims for intentional infliction of emotional distress and the possibility of classifying such persons as “eggshell plaintiffs” who are likely to suffer intensified injuries because they experienced trauma in the past. Connecting birth trauma to obstetric violence and mistreatment, it canvasses the sparse case law and the legal obstacles facing persons giving birth, particularly women of color, who are subjected to abuse, coercive tactics, and disrespect by medical personnel. The article calls for a dismantling of the artificial distinction between physical and emotional harm which stymies recovery for traumatic injury and for a recommitment to the eggshell plaintiff rule to respond to the realities of underserved communities marked by violence, injustice, poverty, and deprivation. If the widespread incidence of trauma were reflected in tort doctrine, it could change how we estimate losses and extend more generous tort recoveries beyond the usual class of affluent victims who suffer measurable economic loss.

Landmark Cases in the Law of Punitive Damages

James Goudkamp and Eleni Katsampouka have published Landmark Cases in the Law of Punitive Damages with Hart Publishing.  The blurb provides:

Punitive damages are private law's most controversial remedy. This book traces the development of the jurisdiction from the foundational decisions of Huckle v Money and Wilkes v Wood in England, to leading modern cases such as Harris v Digital Pulse Pty Ltd in Australia, Whiten v Pilot Insurance Co in Canada, Couch v AG (No 2) in New Zealand, PH Hydraulics and Engineering Pte Ltd v Airtrust (Hong Kong) Ltd in Singapore and Mathias v Accor Economy Lodging, Inc and State Farm Mutual Automobile Insurance Co v Campbell in the United States. Many of the decisions addressed are not only landmarks regarding punitive damages but are among the most important judgments delivered in private law more generally.

The essays, which are written by leading scholars from a wide range of jurisdictions, cast new light on the cases covered. They do so by examining their historical antecedents and the impact that they have had on the development of the law. The full spectrum of issues regarding punitive damages is addressed including the insurability of punishment, constitutional constraints on the remedy's availability and whether the award should be confined to particular causes of action. The collection will be of interest to all scholars and students of private law. It concentrates on common law cases although civilian perspectives, drawn from France and Germany, are also offered.

Order online at www.bloomsbury.com  – use the code GLR AQ7 to get 20% off!

TN: Economic Loss Doctrine Restricted to Products Liability

The Supreme Court of Tennessee recently restricted the economic loss doctrine to products liability cases.  Commercial Painting Co. v. Weitz Co. LLC, 676 S.W.3d 527, 540  (Tenn. 2023) (“[T]he economic loss doctrine should only apply in products liability cases. We decline to extend the doctrine to services contracts.”).

Lawyers Generally Leery of AI to Estimate Damages

Charles Toutant at Law.com has an interesting piece on AI services to estimate damages for plaintiffs' lawyers.  So far, the verdict is that they don't see the value in it.  Here is a sample:

“I wouldn’t do it. I don’t feel comfortable enough delegating my work to anyone other than the attorneys in my office,” said Nicholas Leonardis, a personal injury lawyer at Stathis & Leonardis in Edison, New Jersey. “We’re hired by the clients for our skill and expertise, and that’s what they pay for, and that’s what they’re entitled to. I don’t think the clients hire an AI company. The way I look at it, the clients hire me, the clients want my expertise and they’re going to get it.”

The article (behind a paywall) is here.

The Kingston Coal Ash Workers and the Tennessee Damages Cap

Anila Yoganathan of the Knoxville News Sentinel has been covering the lawsuits filed by workers who cleaned up a coal ash site in eastern Tennessee following a spill in 2008.  Yesterday she published a story about the potential effects of Tennessee's noneconomic damages cap, which generally caps pain and suffering at $750,000.  Her story is here.  

Earlier coverage is here, here, and here.

Engstrom, Hyman & Silver Amicus Brief on Damages

Nora Engstrom, David Hyman & Charles Silver have filed an amicus brief in a Texas case on damages:

The brief addresses two misguided proposals that Petitioners—tort defendants in the trial court below—are pushing in a case currently before the Supreme Court of Texas.  The first proposal is to require Texas courts to consider comparison cases when reviewing the reasonableness of awards of noneconomic damages.  The brief argues that that proposal is unsound conceptually and unworkable empirically, which is why other courts that have tried the approach have quickly abandoned it.  Second, Petitioners insist that noneconomic damages should be limited to a predetermined ratio of economic damages, as is currently the case for compensatory damages and punitive damages.  The brief argues that, in addition to violating the bedrock principle that prevailing tort plaintiffs are to be made whole, this second proposal, by tethering damages for pain and suffering to lost wages, would disproportionately harm certain (low-wage-earning) accident victims, including women, children, and the elderly.  In the brief’s words:  “If Petitioners have their way, Texas’s civil justice system will systematically (but irrationally) discount the pain endured by old persons, young persons, and stay-at-home moms.”  Finally, the brief takes issue with the contention by Petitioners and their supporting amici that noneconomic damage awards in Texas have “skyrocketed.”  For starters, the brief notes that, although the insurance industry amici have proprietary data on which their business models depend, they have offered no evidence to support their empirical claim.  That silence is telling.  Moreover, after compiling and analyzing the best data that is publicly available, the brief reports that it appears that noneconomic damages aren't increasing but are, rather, in sharp decline.  

The brief is here:  Download Law Professor Amici Curiae Brief in Support of Respondents (1)

Spectrum Stabbing Damages Reduced to $1.15 Billion

In late June, a Texas jury found Spectrum liable in the death of one of its customers.  The company employed an internet installer who robbed and stabbed an 83-year-old woman to death.  The jury found the murderer was 10% responsible and Spectrum was 90% responsible.  The jury awarded $375 million in compensatory damages; Spectrum's share was $337.5 million.  In late July, in a second phase of trial, the jury awarded the family $7 billion in punitive damages.  Earlier coverage is here.  

As anticipated, the $7 billion punitive damages award has been reduced by the trial judge.  The plaintiffs' attorneys actually requested the reduction to protect the verdict on appeal.  They requested a ratio of 2:1 and received it.  The total award is now $1.15 billion.  Spectrum states it will appeal.  Dave Simpson at Law360 has the story (behind a paywall; it is also available on Lexis).  

Ford Hit With $1.7 Billion Punitive Damages Verdict in Pickup Truck Rollover Case

A Georgia jury awarded $24 million in compensatory and $1.7 billion in punitive damages to the sons of a couple killed when their Ford pickup truck rolled over.  The roof of the truck collapsed after a tire blowout, killing the couple.  The jury heard evidence of a number of prior similar incidents, but many of those cases have been resolved with confidential settlements.  The jury also heard evidence of Ford's wealth.  Even the plaintiffs' lawyer admits the punitive damages award is likely to be reduced, as it is approximately 70 times the compensatory damages award.  Georgia has a split-recovery system, one of approximately eight, in which the state receives a portion of a punitive damages awards (in this case, 3/4).

Hannah Albarazi at Law 360 has the story, quoting Cathy Sharkey, Ben Zipursky, and me.

The History of Wilkinson v. Downton

The 1897 English case of Wilkinson v. Downton is famous for establishing the equivalent of intentional infliction of emotional distress long before that was a viable cause of action in the United States.  The case involved a pub patron playing an attempted practical joke by telling the pub owner's wife that her husband, who was away at the races, was "smashed up" in an accident involving a horse-drawn vehicle.  The wife experienced traumatic emotional damages.

On the Incorporated Council of Law Reporting for England and Wales (ICLR) Blog, Professor Rachael Mulheron QC (Hon) of Queen Mary University of London Department of Law provides the background history of the case, including what became of the pub.

Thanks to David McFadden for the tip.

Avraham & Yuracko's WaPo Op-ed on Race- and Sex-Based Damage Calculations

Ronen Avraham & Kimberly Yuracko published an important op-ed in The Washington Post late last week entitled "The use of race- and sex-based data to calculate damages is a stain on our legal system."  Steve Lubet has more at The Faculty Lounge.  In addition to the contribution of Judge Jack Weinstein, mentioned in the op-ed, Martha Chamallas and Jenny Wriggins have done significant work in this area.  

IA: Punies Not Available for Victims of Excessive Force by Law Enforcement Officers

Last Thursday, in a case about excessive force by law enforcement officers, the Iowa Supreme Court ruled that there is no vested right to punitive damages and the state legislature may bar them completely, as it did in the Iowa Tort Claims Act.  Alina Rizvi has details at Jurist.

CA: Med Mal Cap Vote in 2022

In 1975, California enacted MICRA, a law which, among other things, capped pain and suffering damages in medical malpractice cases at $250,000.  In 2013, there was an unsuccessful ballot initiative to raise the cap to $1.1 million.  Proponents of the "Fairness for Injured Patients Act" have collected enough signatures to again attempt to alter the cap, this time in 2022.  The initiative would do three things:  1. adjust the cap for inflation, and adjust it annually thereafter; 2. allow judges and juries to exceed the cap in certain cases of catastrophic injury or death; and 3. require the cap be revealed to jurors.  Insurance Journal has the story.

GA: Non-driver in DUI Accident Potentially Liable for Uncapped Punies

The Georgia Supreme Court unanimously ruled that a non-driver in a DUI accident can be an "active" tortfeasor, and, thus, potentially liable for uncapped punitive damages.  The allegations in the case involved a drunk man loaning his car to a man he knew to be drunk, devoid of a license, and having a habit of recklessness.  The driver then hit and injured someone.  Neither of the defendants was represented by counsel and a concurrence asked the legislature to consider whether the decision was the desired law of Georgia.  Property Casualty 360 has the story.

Culhane on COVID-19 Immunity for Businesses

John Culhane, writing at Slate, argues that COVID-19 immunity for businesses is unnecessary.

JOTWELL Torts: Goldberg on Descheemaeker on Compensating Emotional Harm

At JOTWELL, John Goldberg reviews Eric Descheemaker's Rationalising Recovery for Emotional Harm in Tort Law, 134 L.Q. Rev. 602 (2018).

Engstrom & Rabin on CA Barring the Use of Race, Gender, and Ethnicity in Calculating Tort Damages

Recently, I reported that California has banned the use of race, gender, and ethnicity in the calculation of tort damages.  Now Nora Engstrom and Bob Rabin have written this piece for Law.com.