Watching for potential changes to ‘non-economic’ damages (Capitol update)

There is an issue flying under the radar that may surface sometime during the Legislative session. This is the placing of a statutory cap on what are called “non-economic” damages in personal injury cases. Personal injury litigation occurs when someone is physically, mentally, or emotionally injured by another person. If the injured party can prove fault and resulting damage, he or she is entitled to recover damages from the party at fault. It’s why people and businesses usually buy liability insurance.

The injured party is entitled to recover the cost of his or her medical treatment, hospital bills, and loss of income, present and future. These are called economic damages. Non-economic damages are damages not measured in money loss but in loss in quality of life. They include damages for anything from horrible scars, to living with pain, inability to walk or run, and a myriad of other things. For example, if a person loses his sight, he may be compensated for having to live the rest of his life as a blind person.

Although non-economic damages are, by definition, not measured in money, a sum of money is the only practical way to compensate a person for the loss. The question becomes, “how much is the proper compensation?” How much is it worth to be blind or confined to a wheelchair for life? These questions are decided by citizen juries who listen to the evidence in each individual case and apply their own life experience and judgment. If a 23-year-old young woman becomes disfigured or scarred and confined to a wheelchair, it might call for a different amount of compensation than for the same injuries to an 85-year-old man.

Non-economic damages become controversial because insurance companies want certainty. Certainty lessens the companies’ risks. In 2011 during her first session as governor, Gov. Fallin along with various business interests pushed through the Legislature a bill capping non-economic damages at $350,000 regardless of the injuries or the damages a jury might award. It’s ironic that the most severely injured can only recover limited compensation while the less injured can fully recover.

Last year the Supreme Court held the damage cap unconstitutional in a case in which a jury awarded $5 million in non-economic damages to a man whose arm was amputated as the result of an 82,000-pound boom from a crane falling on him. Because of the damage cap, the trial court was forced to reduce the amount from $5 million to $350,000. The man’s wife was awarded $1 million, and her award was also reduced to $350,000. There is legislation introduced calling for a vote of the people to put the $350,000 damage cap in the state Constitution, thus bypassing the Supreme Court ruling. This is an issue worth following. In an instant, it could affect anyone.


Steve Lewis served as Speaker of the Oklahoma House of Representatives from 1989-1990. He currently practices law in Tulsa and represents clients at the Capitol.

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