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Damage Caps Discussed By Personal Injury Lawyer

Fairfax Injury Lawyer Brien Roche Addresses Damage Caps

Brien Roche

Several states across the country have laws that impose caps on the amount that can be recovered in injury cases. The caps have been imposed both as to compensatory awards and also punitive awards. 

Challenges to Damage Caps

The attempts to overturn these caps on damages come in several forms.  The legal theory may be based on separation of powers. That is the law making body has no right to curtail the court’s power in terms of setting damages.  It may also be based upon due process. That is the right under the constitution to be fully compensated cannot be infringed.  Further argument may be based  upon what is called equal protection of the law. That is parties being sued are being given preferred treatment which is unequal. In addition, there is the argument that the right to a jury trial is sacred and no one can infringe upon that right.

Flaws In The Challenges

Some flaws in the theory dealing with the sacred nature of a jury trial are that there is of course the common law remedy of remittitur/additur. That is a power that allows a trial judge to reduce or set aside a jury award that is too high or too low. In addition, there are limits on the right to a jury trial as exists within workers’ comp cases and also no-fault claims.  Both Georgia and Missouri have voided caps on damages on the grounds that they interfere with the juries’ protected purpose of setting the amount of damages. Call, or contact us for a free consult.

State Action

Some states have gone to the extent of amending their state constitutions so as to allow the law making body to limit non-economic damages in certain cases.  Non-economic damages are pain and suffering.  Economic damages are the medical bills, lost income and loss of services incurred or to be incurred.

Other states however have gone the other way. They have amended their state constitutions to prohibit any limit on damage awards.  These states are:  Arizona, Arkansas, Kentucky and Wyoming.  The battle in large part is a battle between insurers and the trial lawyers. The insurers are in large measure funding the so-called “tort reform” movement. The trial lawyers are funded at least in part by the American Association of Justice (AAJ). AAJ was formerly known as the American Trial Lawyers’ Association.

In Fairfax, Virginia, as is true throughout the state of Virginia, there are no caps on damages in personal injury awards in general.  The caps on damages that do exist in the state of Virginia apply to medical malpractice cases. That cap is over $2 million.  There is also a cap on punitive damage awards. That cap is $350,000. Maryland does have caps on damages. That may impact your case if Maryland substantive law is to be applied.

What Law Applies

Even though your case may be litigated in the state of Virginia that does not mean that Virginia law is going to apply across the board.  For instance, if your injury occurred in Maryland then Maryland law could apply. This may be so with your claim even though you try the case in the state of Virginia. 

Damage Caps At The Federal Level

The US Congress from time to time takes up the issue of damage caps. Most often this is in the context of medical malpractice. To date none of those proposals have become law.
Call, or contact us for a free consult. For more information on damage caps see the articles on this site and see the pages on Wikipedia and see the pages on this site.

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Damage Caps Discussed By Personal Injury Lawyer

Fairfax Injury Lawyer Brien Roche Addresses Damage Caps

Brien Roche

Several states across the country have laws that impose caps on the amount that can be recovered in injury cases. The caps have been imposed both as to compensatory awards and also punitive awards. 

Challenges to Damage Caps

The attempts to overturn these caps on damages come in several forms.  The legal theory may be based on separation of powers. That is the law making body has no right to curtail the court’s power in terms of setting damages.  It may also be based upon due process. That is the right under the constitution to be fully compensated cannot be infringed.  Further argument may be based  upon what is called equal protection of the law. That is parties being sued are being given preferred treatment which is unequal. In addition, there is the argument that the right to a jury trial is sacred and no one can infringe upon that right.

Flaws In The Challenges

Some flaws in the theory dealing with the sacred nature of a jury trial are that there is of course the common law remedy of remittitur/additur. That is a power that allows a trial judge to reduce or set aside a jury award that is too high or too low. In addition, there are limits on the right to a jury trial as exists within workers’ comp cases and also no-fault claims.  Both Georgia and Missouri have voided caps on damages on the grounds that they interfere with the juries’ protected purpose of setting the amount of damages. Call, or contact us for a free consult.

State Action

Some states have gone to the extent of amending their state constitutions so as to allow the law making body to limit non-economic damages in certain cases.  Non-economic damages are pain and suffering.  Economic damages are the medical bills, lost income and loss of services incurred or to be incurred.

Other states however have gone the other way. They have amended their state constitutions to prohibit any limit on damage awards.  These states are:  Arizona, Arkansas, Kentucky and Wyoming.  The battle in large part is a battle between insurers and the trial lawyers. The insurers are in large measure funding the so-called “tort reform” movement. The trial lawyers are funded at least in part by the American Association of Justice (AAJ). AAJ was formerly known as the American Trial Lawyers’ Association.

In Fairfax, Virginia, as is true throughout the state of Virginia, there are no caps on damages in personal injury awards in general.  The caps on damages that do exist in the state of Virginia apply to medical malpractice cases. That cap is over $2 million.  There is also a cap on punitive damage awards. That cap is $350,000. Maryland does have caps on damages. That may impact your case if Maryland substantive law is to be applied.

What Law Applies

Even though your case may be litigated in the state of Virginia that does not mean that Virginia law is going to apply across the board.  For instance, if your injury occurred in Maryland then Maryland law could apply. This may be so with your claim even though you try the case in the state of Virginia. 

Damage Caps At The Federal Level

The US Congress from time to time takes up the issue of damage caps. Most often this is in the context of medical malpractice. To date none of those proposals have become law.
Call, or contact us for a free consult. For more information on damage caps see the articles on this site and see the pages on Wikipedia and see the pages on this site.

Contact Us For A Free Consultation

Contact Us For A Free Consultation