Introduction
Since the days of Stephen F. Austin and pioneering empresarios, Texas has been a beacon of economic opportunity. The promise of fertile land and freedom enticed hundreds of families to follow Austin westward in the early nineteenth century. Today, the strength of the “Texas Miracle” continues to attract hundreds of thousands of residents and tens of thousands of businesses to the Lone Star State. Texas currently boasts the eighth-largest economy in the world2, but it also holds a more unsavory distinction: it is the nation’s leader in “nuclear verdicts” since 20093.
The recent explosion of nuclear verdicts—jury verdicts of $10 million or more in injury or death cases involving one or a few plaintiffs—threatens to undermine what is often called the Texas economic miracle by diminishing confidence in the fairness of our litigation system.
Over the past eight years, Texas juries have handed down dozens of multimillion-dollar verdicts in personal injury and wrongful death cases involving one or a few plaintiffs. The largest award—$7.375 billion—was handed down by a Dallas County court in 2022 in a single-plaintiff wrongful death case. The twenty-fifth largest award in Texas is a 2024 verdict of $71.95 million from a Dallas County court in a construction workplace injury case. Four verdicts have exceeded $500 million, and twenty have exceeded $100 million4.
In every case, noneconomic damages (damages for mental anguish and pain and suffering) constitute a meaningful percentage of the total award. They often exceed economic damages, sometimes by a large percentage. The largest noneconomic damage award—$480 million—was handed down in a single-plaintiff wrongful death case tried in Titus County in 20215. Eleven of the top twenty-five verdicts since 2016 featured noneconomic damage awards of over $100 million, and nineteen of the top twenty-five verdicts had noneconomic damage awards greater than $50 million5.
Because nonpecuniary injuries such as physical pain and mental anguish are not subject to exact quantification, courts throughout the nation have struggled to create meaningful standards for juries to use in determining an appropriate amount to award for them. Consequently, Texas is not the only state seeing large awards in injury and death cases, nor the only state in which noneconomic damages constitute a meaningful percentage of the awards6.
The result of this struggle in Texas is inconsistency—and unfairness—across time and geography. What was considered a massive award ten years ago is a modest award today. And an injury that would yield a seven-figure award today in the Texas panhandle might yield a nine-figure award in a courtroom in one of Texas’s largest cities.
When faced with these kinds of disparities in the past, the Texas Legislature has changed standards for awarding damages and, in some instances, imposed caps on the amounts that may be recovered. For example, in 1969, Texas moved away from giving state and local governments absolute immunity in injury and death lawsuits, passing a Tort Claims Act that included damage caps7. The Texas Legislature also placed caps on the recovery of exemplary (punitive) damages in 19878, adjusted those caps and changed other aspects of the procedure to recover exemplary damages in 19959, and increased the burden of proof and imposed a unanimous jury verdict requirement in 200310. Texas imposed limits on noneconomic damage awards in healthcare liability cases in 197711 (which were held to be unconstitutional in part12) and again in 2003 (which have been held to be constitutional13). But the Texas Legislature, so far, has not imposed broadly applicable limits on the recovery of noneconomic damages or provided meaningful standards for determining the appropriate amount to award for these nonpecuniary losses.
Other states, too, have imposed limits on noneconomic damages14. At least thirteen states cap noneconomic damages in personal injury and/or wrongful death cases, without regard to the subject matter15. These caps typically are around $250,000 to $1 million, with higher amounts usually available only when there are aggravating circumstances. A majority of states impose caps on noneconomic damages in one or another kind of case—with caps in healthcare liability cases being the most common. The two most recent examples of states imposing limits on recoveries of noneconomic damages come from Iowa and West Virginia, both of which recently capped these damages in lawsuits involving commercial vehicles.
In 2023, the Texas Supreme Court handed down a plurality decision in Gregory v. Chohan in which all members agreed that “unsubstantiated anchoring” to establish mental anguish damages is impermissible16. The plurality opinion also reaffirmed many of the Court’s previous standards for reviewing an award of mental anguish damages and created a new requirement that plaintiffs seeking to recover mental anguish damages must “demonstrate a rational connection, grounded in the evidence, between the injuries suffered and the dollar amount awarded” so as to “guard against arbitrary outcomes and to ensure that damages awards are genuinely compensatory”17. In a concurring opinion, two judges expressed serious reservations about the practical applicability of this new standard and suggested legislative action may be warranted18.
Whether to establish caps on noneconomic damages or impose specific standards for awarding these damages are in the sound discretion of policymakers. This paper is intended as a resource for those policymakers in their consideration about whether and how to deal with the economic consequences that will flow from the proliferation of extraordinarily high jury awards being seen in Texas courts.
Damages in Texas Injury and Death Cases
Defining Compensatory and Exemplary Damages
In Texas personal injury and wrongful death cases, money damages are awarded as either compensatory (to make the plaintiff whole) or exemplary (to punish the defendant).19 Compensatory damages are divided into two subcategories: economic and noneconomic damages, each of which compensate for specific kinds of losses.20
“Compensation is the chief purpose of damages awards in tort cases.”21 Compensatory damages always must be “[r]easonable and proper . . . [and] neither meager nor excessive, but must be sufficient to place the plaintiff in the position in which he would have been absent the defendant’s tortious act.”22 Both forms of compensatory damages—economic and noneconomic—are “meant to compensate victims, not to punish or deter tortfeasors.”23
Economic damages are a subcategory of compensatory damages. Economic damages are “compensatory damages intended to compensate a claimant for actual economic or pecuniary loss.”24 Examples include injury-related medical expenses, lost wages, and property damage. The recovery of economic damages is not intended to generate a windfall for plaintiffs or their attorneys; economic damages “[such as] medical expenses, are ‘intended to make the plaintiff “whole” for any losses resulting from the defendant’s interference with the plaintiff’s rights.’”25 These damages are quantifiable. No state caps the award of economic damages, but some states cap the total amount of compensatory damages (economic plus noneconomic) that may be awarded.26
The other subcategory of compensatory damages is noneconomic damages, which are “awarded for the purpose of compensating a claimant for . . . nonpecuniary losses of any kind other than exemplary damages.”27 Although some of the nonpecuniary losses enumerated in Texas law are subsets of others, Texas’s list of nonpecuniary losses currently includes physical pain and suffering, mental or emotional pain or anguish, loss of consortium, disfigurement, physical impairment, loss of companionship and society, inconvenience, loss of enjoyment of life, and injury to reputation.28 Noneconomic damages are not subject to exact quantification, but, like economic damages, are intended to make the plaintiff whole, not punish the defendant. As shown in the chart provided in Appendix A and discussed in more detail in Section III.C.1, many states cap awards of noneconomic damages, either in particular kinds of cases or in all injury and death cases.
Exemplary damages, sometimes called punitive damages, are meant to punish or penalize the defendant against whom a claimant seeks relief.29 Exemplary damages are neither economic nor noneconomic.30 Normally, a nominal award of compensatory damages—a small sum commemorating the fact the claimant prevailed—is not enough to sustain an award of punitive damages.31 As discussed in Section II.B.2, these defendant-focused damages have a high standard for recovery under Texas law and in other states. Awards of exemplary damages are capped in Texas32 and many other states.33
Comparing Compensatory and Exemplary Damages
Compensatory Damages
Because compensatory damages—both economic and noneconomic damages—are intended to make plaintiffs whole for injuries caused by the defendant’s wrongful conduct, these damages focus on the plaintiff’s injury, not the defendant’s conduct. A jury must determine, for example:
- How much money did the plaintiff fail to earn, or will the plaintiff fail to earn in the future, due to the injury she suffered?
- How much money did the plaintiff pay or does the plaintiff owe for injury-related medical treatment provided in the past and how much money will be required to pay for the plaintiff’s future treatment?
- How much physical pain and mental anguish did the plaintiff suffer as a result of the injury and how much pain and anguish will the plaintiff suffer in the future?
These plaintiff-focused damages are not related to the relative wrongfulness of the defendant’s conduct. Whether the defendant willfully exposed society to a risk of substantial harm34 or merely made a single mistake in a lifetime of cautious behavior does not change how much money the plaintiff paid to treat the injury he or she suffered, how much income the plaintiff lost by missing work, or how much pain and anguish the plaintiff feels. A broken arm costs however much it costs to repair, hurts however badly it hurts, and causes the plaintiff to miss however much work it causes the plaintiff to miss, without regard to the degree of wrongfulness of the defendant’s conduct.
Ordinary negligence is the failure to exercise ordinary care in order to minimize the risk of harm to another.35 To establish a negligence claim, a plaintiff must prove this failure to exercise ordinary care by a preponderance of the evidence.36 Preponderance of the evidence is defined as establishing in the minds of jurors that a fact is more likely true than not.37
Unanimity is not currently required under Texas law to succeed in an ordinary negligence case, with as few as ten of twelve jurors permitted to agree on a verdict finding negligence and the resulting damages (as few as five of six jurors in some cases).38 The compensatory damages flowing from an ordinary negligence claim are not capped in Texas, except noneconomic damages are capped in healthcare liability and government-defendant cases.39
Exemplary Damages
Texas allows a civil jury to consider the relative wrongfulness of a defendant’s conduct and to impose punishment for conduct that is sufficiently antisocial. That is the role of exemplary damages. Exemplary damages are defendant-focused and intended to “send a message” to that defendant and others who engage in egregiously dangerous conduct.40 However, given that the job of punishing citizens for their antisocial behaviors is a role historically reserved to the enforcement of criminal laws by state prosecutors, proving an entitlement to impose punishment on a defendant via a civil lawsuit is challenging for Texas plaintiffs, as it should be.
To recover exemplary damages, a plaintiff must prove either that the defendant’s actions were grossly negligent, fraudulent, or malicious,41 with the most common allegation being that the defendant’s actions were grossly negligent. “Gross negligence” is defined as an act or omission:
- which, when viewed objectively from the standpoint of the actor at the time of its occurrence, involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and
- of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others.42
The claimant must prove by clear and convincing evidence—a stricter standard than preponderance of the evidence—the elements of her exemplary damage claim.43 The plaintiff’s burden of proof cannot be shifted to the defendant or satisfied by evidence of ordinary negligence or bad faith.44 “Clear and convincing” means “the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.”45
Furthermore, exemplary damages may be awarded only if the jury was unanimous in regard to finding liability for and the amount of exemplary damages.46 In practice, the plaintiff must secure three unanimous findings by the jury to recover exemplary damages:
- that the defendant’s negligence caused the plaintiff’s injury;
- that the defendant’s actions were grossly negligent; and
- the amount of exemplary damages.47
Additionally, an exemplary damage award is capped in Texas. Exemplary damages assessed against a defendant may not exceed “an amount equal to the greater of:
- (1)(A) two times the amount of economic damages; plus
- (B) an amount equal to any noneconomic damages found by the jury, not to exceed $750,000; or
- (2) $200,000.”48
Despite their numerous differences, noneconomic and exemplary damages share one important similarity—they both are inherently subjective in nature, making rational quantification difficult.49
Common Law Standards Governing Noneconomic Damage Awards
Gregory v. Chohan
In June 2023, the Texas Supreme Court handed down a plurality decision in Gregory v. Chohan, holding in a wrongful death case that “unsubstantiated anchoring” to establish mental anguish damages is impermissible.50
Gregory arises from a multi-vehicle collision occurring in November 2013 on Interstate 40 near Amarillo, Texas.51 Sarah Gregory was driving eastbound on the interstate when she lost control of her 18-wheeler.52 The truck “jackknifed,” rendering it immovable.53 It was blocking the entire left lane and some of the right lane on the eastbound side of the highway.54 Gregory did nothing to warn other drivers of the obstruction. A multi-vehicle pileup ensued, resulting in the death of four people, including Bhupinder Deol.55
Deol’s wife and family brought a wrongful death action against Gregory and her employer, New Prime, Inc.56 There were several other plaintiffs and defendants, as well. During closing arguments, counsel for plaintiffs other than the Deols engaged in unsubstantiated anchoring—“a tactic whereby attorneys suggest damages amounts by reference to objects or values with no rational connection to the facts of the case”57—in an attempt to persuade jurors to award significant damages for mental anguish and loss of companionship.
The lawyer connected the “value” of the lives lost in the collision to a $71 million Boeing F-18 fighter jet and a $186 million painting by Mark Rothko.58 According to the plurality’s opinion:
- “Of course, the cost of a fighter jet, the auction price of a coveted painting, or any other expensive comparator are all equally flawed analogies. After learning that a particular aircraft or painting sells for many millions of dollars, jurors are no closer to gaining a sense of how to compensate the family for their injuries. The self-evident purpose of these anchors … is to get jurors to think about the appropriate damages award on a magnitude similar to the numbers offered, despite the lack of any rational connection between reasonable compensation and the anchors suggested.”59
After referencing expensive paintings and military aircraft, the attorney told the jury: “[F]or four years I’ve been trying to give this company and their lawyers my two cents worth… For four years I’ve been trying and they won’t listen to me.”60 He then asked the jury to give New Prime their “two cents worth,” urging the jurors to award the plaintiffs two cents for every one of the 650 million miles New Prime’s trucks traveled during the year of the collision.61
The plurality determined:
- “The unmistakable purpose of this argument is to suggest that New Prime can afford a large award and that it should be punished for denying Chohan and her family justice for Deol’s death. But punitive damages are not at issue here; only compensatory damages are, and the ‘two cents a mile’ argument has nothing to do with compensation.”62
At the conclusion of trial, the jury awarded all plaintiffs $38.8 million in damages, nearly identical to the $39 million yielded by the “two cents” argument.63 About $16.8 million of these damages were awarded to Deol’s family, with noneconomic damages (mental anguish and loss of companionship) accounting for just over $15 million of that amount.64
Although the justices were fractured on some aspects of the case, they all agreed that unsubstantiated anchoring is improper65 because, according to the plurality opinion, they “have nothing to do with the emotional injuries suffered by the plaintiff and cannot rationally connect the extent of the injuries to the amount awarded.”66 The Court reversed the judgment and remanded the case for a new trial.67
In addition to prohibiting unsubstantiated anchoring, the justices reaffirmed prior holdings about awarding and reviewing mental anguish awards:
- Assigning a dollar value to non-financial, emotional injuries such as mental anguish or loss of companionship will never be a matter of mathematical precision.68 Nonetheless, “[j]uries cannot simply pick a number and put it in the blank.”69
- There must be evidence that the amount found is fair and reasonable compensation for the plaintiff’s injury.70
- Mental anguish damages are neither punitive nor exemplary. They are compensatory.71
- There must be evidence of both the existence of compensable mental anguish and evidence to justify the amount awarded.72
- The plaintiff must provide evidence of the nature, duration, and severity of mental anguish, thus establishing a substantial disruption in the plaintiff’s daily routine.73
- The evidence must show a high degree of mental pain and distress that is more than mere worry, anxiety, vexation, embarrassment or anger.74
- Appellate courts have a duty to ensure that the damages awarded for a noneconomic injury are the result of a rational effort, grounded in the evidence, to compensate the plaintiff for the injury.75
- Appellate courts do not fully discharge their duty merely by concluding that a verdict is not so excessive or unreasonable as to shock the judicial conscience.76 “What shocks the conscience or manifests passion or prejudice in the jury are tests too elastic for practical use in the great majority of cases.”77 Thus, courts reviewing the size of noneconomic damages awards must do more than consult their consciences.78
The plurality also added a requirement meant to provide guidance about satisfying the need to present evidence to justify the amount awarded for mental anguish: “To guard against arbitrary outcomes and to ensure that damages awards are genuinely compensatory, the plaintiff in a wrongful death case should be required to demonstrate a rational connection, grounded in the evidence, between the injuries suffered and the dollar amount awarded.”79
In the wake of Gregory, it is unclear what level of justification or evidence is needed to meet the rational basis requirement. However, the Court provides some illustrative examples, including evidence of:
- The likely financial consequences resulting from the plaintiff’s severe emotional distress;
- That a certain sum of money would enable the plaintiff to better deal with their grief and restore their mental health; and
- Evidence that a requested amount could provide access to the kinds of things that may help the plaintiff who is suffering mentally.80
In his concurring opinion, Justice Devine points out that these amounts should be recovered, if at all, as economic damages, not noneconomic damages.81
POST-GREGORY
Although the Gregory decision arises from a wrongful death case, Texas appellate courts generally have applied its core holdings broadly to all kinds of injury cases, including those in which the plaintiff has recovered damages for physical pain and suffering.
For example, in a dog-attack case, Garza v. Rodgers, the First Court of Appeals cited the Gregory standard in deciding whether the evidence supported a recovery for physical pain. Other appellate cases have grouped physical pain and mental anguish together under the Gregory umbrella. In car-crash case Wilson v. Murphy, the Second Court of Appeals said reviewing courts “must consider and weigh all of the evidence to determine whether it is sufficient to support” both physical pain and mental anguish awards. The Wilson court found the evidence supported a mental anguish award but did not support a physical pain award. Another Second Court of Appeals injury case, Stone v. Christiansen, applied Gregory to physical pain, physical impairment, and mental anguish.
In a wrongful death case, Team Industrial Services v. Most, the First Court of Appeals asserted that “courts have a duty to ensure that the [noneconomic] damages awarded ‘are the result of a rational effort, grounded in the evidence to compensate the plaintiff for the injury.’” The First Court of Appeals specifically included both “physical pain and suffering” and “mental or emotional pain or anguish” in its definition of noneconomic damages.
The Second Court of Appeals even applied Gregory to an employment discrimination case. The court declared that a mental anguish award stemming from the defendant’s alleged sex discrimination requires “evidence both of the ‘existence of compensable mental anguish’ and ‘evidence to justify the amount awarded.’”
One appellate court, however, has sought to limit Gregory. In Kelly Custom Homes v. Hooper, the Fourteenth Court of Appeals deemed Gregory “a plurality opinion lacking precedential value.” But even the Kelly court acknowledged Gregory’s “several applicable principles,” including that the amount of mental anguish damages “cannot be based on mere passion, prejudice, or improper motives or measurements.”
Texas Practice for Determining and Awarding Noneconomic Damages
In a typical injury case in Texas, the trial judge gives the jury a “charge” that includes definitions for preponderance of the evidence, negligence, ordinary care, and proximate cause. Texas statutes define “compensatory damages,” “economic damages,” and “noneconomic damages,” but these definitions typically are not included in the jury charge. Texas statutes do not define “pain and suffering,” “mental anguish,” or other kinds of noneconomic injuries. Therefore, jurors typically are given no guidance in the charge about these kinds of injuries.
A jury charge in a typical injury or death case tried in a Texas court will begin by asking jurors to determine whose negligence proximately caused the plaintiff’s injury. Anyone whom the evidence shows could have contributed to causing the injury—including all defendants, the plaintiff, and those designated as responsible third parties—is listed on the jury charge, thus allowing the jury to identify each responsible person.
After determining responsibility for the injury-causing event, the jury is asked to apportion fault among the responsible persons by allocating a percentage to each such responsible person. This is followed by questions asking jurors to determine the amount of economic and noneconomic damages suffered by the plaintiff, whether each defendant found to have caused the event was grossly negligent (if this submission is warranted by the evidence), and the amount of punitive damages to be assessed against grossly negligent defendants. Although Texas law makes clear that compensatory damages are not to be used to punish, jury charges in Texas may or may not instruct jurors of that prohibition.
Pattern jury charges published by the State Bar of Texas are not mandatory but are typically used in Texas injury and death cases. Currently, the pattern jury charges suggest that both economic and noneconomic damages be awarded by category, with economic and noneconomic damages intermingled in the suggested charge, as follows:
- Past physical pain and mental anguish (noneconomic).
- Future physical pain and mental anguish (noneconomic).
- Past loss of earning capacity (economic).
- Future loss of earning capacity (economic).
- Past disfigurement (noneconomic).
- Future disfigurement (noneconomic).
- Past physical impairment (noneconomic).
- Future physical impairment (noneconomic).
- Past medical expenses (economic).
- Future medical expenses (economic).
In practice, this list is not particularly reflective of how a compensatory damage question is submitted to juries in Texas, except that they are granulated. For example:
- In Johnson v. Union Pacific, an intoxicated person sat on a railroad track and was hit by a train, but survived. Noneconomic damages were broken into eight categories: past physical pain, future physical pain, past mental anguish, future mental anguish, past physical impairment, future physical impairment, past disfigurement, and future disfigurement. Thus, contrary to the Pattern Jury Charge, the amount to award for mental anguish and physical pain were separated into distinct questions for the jury to answer. The total awarded by the jury for noneconomic damages was $47.5 million.
- In Ramsey v. Allred, a wrongful death and survival action arising from a vehicular collision, the only noneconomic damages question asked in regard to the deceased person lumped physical pain and mental anguish together, as suggested in the Pattern Jury Charge; and the jury awarded $80 million. In regard to the person’s four survivors, each damage question asked the jury to fill in four blanks—past loss of companionship, future loss of companionship, past mental anguish, and future mental anguish. The jury entered “$25 million” in each of the 16 blanks. The total amount awarded for noneconomic damages was $480 million.
- In Blake v. Werner Enterprises, a case in which the plaintiffs’ vehicle crossed the median, entered incoming lanes, and collided with an 18-wheeler, physical pain and mental anguish were lumped together as suggested in the Pattern Jury Charge, but disfigurement and physical impairment were submitted separately. As to one plaintiff (Jennifer Blake), the jury awarded the same amount of money—$2,301,000—for each of the following: past physical pain and mental anguish, past physical impairment, and future physical impairment. It awarded exactly twice that amount for future physical pain and mental anguish. For the other plaintiff (Nathan Blake), the jury awarded the same amount of money—$1 million—for each of the following: past physical pain and mental anguish, future physical pain and mental anguish, past physical impairment, and future physical impairment. It awarded half that amount—$500,000—for past disfigurement and another $500,000 for future disfigurement.
These charges and the findings made by the juries demonstrate two things:
- First, the fact that the jury’s awards in Ramsey and Blake are identical for many categories of damages (e.g., $25 million awarded sixteen times in Ramsey) suggests the juries’ decisions were not tied to specific items of evidence, as required by Gregory and prior Texas appellate court decisions.
- Second, double or triple recoveries of noneconomic damages are inevitable given the way these issues are submitted to Texas juries. In Ramsey, for example, the jury awarded each survivor $25 million for past mental anguish and another $25 million for past loss of companionship. But loss of companionship is an emotional longing for the person who died, which is a component of mental anguish. Indeed, in Gregory, the Texas Supreme Court referred to these collectively as “emotional injuries.”
When a jury is asked to award damages for a category that is subsumed within another category of damages, a double recovery for the same condition is both inevitable and goes beyond reasonable compensation—which is the purpose for these damages.
In Johnson, the jury was asked to award damages for physical pain, physical impairment, and disfigurement. Disfigurement may be accompanied by physical pain and/or it may cause ongoing emotional anguish respectively. As such, disfigurement is beneath the umbrella categories of physical pain and mental anguish. Similarly, physical impairment may be accompanied by physical pain (thus compensated in that category of noneconomic damages), may cause emotional anguish (thus compensated in that category of noneconomic damages), and could affect a person’s earnings (thus compensated in that category of noneconomic damages). But allowing awards for disfigurement and physical impairment in addition to awards for pain and suffering, mental anguish, and loss of income allows a multiple recovery rather than a recovery that is truly compensatory.
Reasonably, a jury should not be asked to award damages for both the umbrella category of injury (mental anguish or physical pain) and for multiple subcategories of injuries beneath these umbrellas (such as loss of consortium, loss of companionship and society, inconvenience, loss of enjoyment of life, disfigurement, and physical impairment) because it results in exaggerated recoveries—yet it is common in Texas courts.
Caps and Calculation of Damages
Constitutional Considerations in Damage Caps
Noneconomic Damages
The high courts of several states have considered whether noneconomic damage caps violate their state constitutions. Fourteen states have found the caps to be unconstitutional—Alabama, Florida, Georgia, Illinois, Kansas, Kentucky, New Hampshire, Oklahoma, Oregon, South Dakota, Texas, Utah, Washington, and Wisconsin.110 These decisions typically find a due process or equal protection violation, or that the cap offends the states’ open courts provisions. Sixteen states have declared noneconomic damage caps to be constitutionally valid under their states’ constitutions—Alaska, Colorado, Idaho, Indiana, Louisiana, Maryland, Michigan, Mississippi, Missouri, Nebraska, Nevada, New Mexico, North Dakota, Ohio, Tennessee, and Virginia.111
The Texas Supreme Court’s 1988 decision in Lucas v. United States illustrates many high courts’ antipathy toward noneconomic damage caps.112 According to the Texas Supreme Court:
- “In the context of persons catastrophically injured by medical negligence, we believe it is unreasonable and arbitrary to limit their recovery in a speculative experiment to determine whether liability insurance rates will decrease. Texas Constitution article I, section 13, Texas’s open courts provision, guarantees meaningful access to the courts whether or not liability rates are high. [W]e hold it is unreasonable and arbitrary for the legislature to conclude that arbitrary damages caps, applicable to all claimants no matter how seriously injured, will help assure a rational relationship between actual damages and amounts awarded.”113
A year later, the Texas Supreme Court narrowed Lucas, holding in Rose v. Doctors Hospital that the Texas Legislature could constitutionally limit noneconomic damage recoveries in wrongful death actions.114 The citizens of Texas then abrogated the holding in Lucas by amending the state’s constitution in 2003 to specifically allow noneconomic damage caps if the bill imposing the caps passes both houses by a three-fifths vote.115
The United States Supreme Court has not considered whether noneconomic damages can be so excessive as to offend the United States Constitution, but, as discussed in the next section, it has with regard to exemplary (punitive) damages.
Exemplary (Punitive) Damages
In Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc., the United States Supreme Court considered whether punitive damages awarded on a state law claim could violate the Excessive Fines Clause of the Eighth Amendment to the United States Constitution.117 The Court held that the clause applies only to government actions, not punitive damage awards in civil cases between private parties.118 As to whether a punitive damage award could violate the Due Process Clause of the Fourteenth Amendment, the Court explained that the issue was not presented, but “a jury award may not be upheld if it was the product of bias or passion, or if it was reached in proceedings lacking the basic elements of fundamental fairness.”119
Later the same year, in Pacific Mutual Life Insurance Co. v. Haslip, the Supreme Court considered whether a punitive damage award could be excessive to the point of violating the Due Process Clause of the Fourteenth Amendment.120 According to the Court:
- “One must concede that unlimited jury discretion—or unlimited judicial discretion for that matter—in the fixing of punitive damages may invite extreme results that jar one’s constitutional sensibilities.”121
The Court said that it could not draw a mathematical bright line between the constitutionally acceptable and the constitutionally unacceptable, but “general concerns of reasonableness and adequate guidance from the court when the case is tried to a jury properly enter into the constitutional calculus.”122
Ultimately, the Court determined:
- “The instructions given to jurors enlightened the jury as to the punitive damages’ nature and purpose, identified the damages as punishment for civil wrongdoing of the kind involved, and explained that their imposition was not compulsory.
- These instructions, we believe, reasonably accommodated [the defendant’s] interest in rational decision-making and [the state’s] interest in meaningful individualized assessment of appropriate deterrence and retribution. As long as the discretion is exercised within reasonable constraints, due process is satisfied.”123
Additionally, the state court process for appellate review was sufficient to ensure that punitive damage awards would be reasonable in their amount and rational in light of their purpose to punish what has occurred and to deter its repetition. The Court, in allowing the punitive damage award to stand, concluded:
- “The application of these standards imposes a sufficiently definite and meaningful constraint on the discretion of factfinders in awarding punitive damages. Postverdict review ensures that punitive damages awards are not grossly out of proportion to the severity of the offense and have some understandable relationship to compensatory damages.”124
In BMW of North America v. Gore, the Supreme Court made clear that an award of punitive damages will violate the Due Process Clause if it is “grossly excessive” in relation to the State’s legitimate interests.125 It struck down a punitive damage award of $2 million in a case where the plaintiff suffered only economic harm (the devaluation of a car due to it having been repainted) of $4,000.
Finally, in State Farm Mutual Automobile Insurance Co. v. Campbell, the Supreme Court held that a single-digit multiplier of compensatory damages (i.e., no more than a nine-to-one ratio) may be the outer limit for punitive damage awards under the Due Process Clause.126 Considering judgments in similar cases, the judgment in Campbell was a “clear outlier,” according to the Court.
Thus, regarding punitive damages—which, like noneconomic damages, are not quantifiable and historically left to the discretion of the finders of facts—the Supreme Court has determined that there are constitutional limitations:
- They cannot be the product of bias or passion or the result of proceedings lacking in the basic elements of fundamental fairness.
- Unlimited jury discretion in the fixing of punitive damages may invite extreme results that offend constitutional sensibilities.
- General concerns of reasonableness and adequate guidance from the court when the case is tried to a jury properly enter into the constitutional calculus.
- Instructions to the jury must impose a sufficiently definite and meaningful constraint on its discretion in awarding punitive damages.
- Post-verdict review by the courts must be meaningful and ensure that punitive damage awards are not grossly out of proportion to the severity of the offense.
- An award of punitive damages violates the Constitution if arbitrary or grossly excessive in relation to the State’s legitimate interests.
- Judgments in similar cases may be considered to determine if the award in the case at issue is a “clear outlier.”
- A reasonable relationship between these nonpecuniary damages and compensatory damages is required.
Damage Caps in Texas
Texas limits damage awards in healthcare liability cases and for nonprofit hospitals and government entities. Texas also limits exemplary damage awards.
Healthcare Liability
To increase access to medical care in Texas, the Legislature implemented healthcare liability reforms in 2003, which included limits on noneconomic damages. In a healthcare liability case pursued under Texas law, the limits of liability for noneconomic damages assessed against physicians, other healthcare providers, and healthcare institutions are:
- $250,000 for each claimant from physicians and other healthcare providers, without regard to whether a single or multiple physicians and other healthcare providers are subject to the court’s judgment;
- $250,000 for each claimant from each healthcare institution, subject to a total cap of $500,000 from all healthcare institutions subject to the court’s judgment.
Thus, the absolute cap on noneconomic damages in healthcare liability cases pursued under Texas law is $750,000 for each claimant. These caps are not indexed for inflation. The same 2003 law provides that for healthcare-related wrongful death or survival actions, the limit of liability for all damages, including exemplary damages, is $500,000 per claimant regardless of the number of defendants. This amount is adjusted for inflation according to the consumer price index and is over $2 million as of 2024.
Nonprofit hospitals in Texas enjoy even more liability protection. To enjoy protection, the nonprofit hospital must be certified by the Texas Health and Human Services Commission as one that provided charity care in an amount equal to at least eight percent of the hospital’s net patient revenue during its most recent fiscal year and at least forty percent of the charity care provided in the county in which the hospital is located. A certified nonprofit hospital’s liability for noneconomic damages is limited to $100,000 for each person and $300,000 for each single occurrence for bodily injury or death, and $100,000 for each single occurrence for injury to or destruction of property.
Texas Tort Claims Act
The Texas Tort Claims Act provides for a partial waiver of immunity for civil wrongs committed by governmental entities and their employees, permitting Texans to file lawsuits only under specific circumstances outlined in the Act. A governmental unit is liable for property damage, personal injury, and death caused by the negligence of an employee acting within the scope of employment if the damage arises from the operation of a motor-driven vehicle or motor-driven equipment. It is liable for personal injury and death, but not property damage, caused by the negligence of an employee and arising from the condition or use of tangible personal or real property.
Damages for which the state government or a municipality engaged in governmental functions may be liable are capped at $250,000 per person and $500,000 per occurrence for bodily injury or death, and $100,000 per occurrence for damaged property. Liability for another unit of local government is capped at $100,000 per person and $300,000 per occurrence for bodily injury or death, and $100,000 per occurrence for damaged property. Exemplary damages may not be awarded against a governmental entity under the Act, as is the case in the vast majority of states. These caps are not indexed to account for inflation.
Punitive Damages
While there are exceptions for certain kinds of criminal conduct resulting in injury or death,139 exemplary damages in Texas may not exceed the greater of:
- two times the amount of economic damages, plus an amount equal to any noneconomic damages found by the jury, not to exceed $750,000; or
- $200,000.
Exemplary damages may only be awarded if damages other than nominal damages are awarded.141 As stated above, the jury must be unanimous in finding liability for and the amount of exemplary damages and the right to recovery exemplary damages must be established by clear and convincing evidence.142 These damages are not indexed to account for inflation.
Damage Caps in Other States
Each state awards damages differently. Some states cap only certain damages in certain cases, others cap only punitive damages, some states cap total damages rather than a specific type of damages, while others limit the total damages awardable in certain cases. A number of states have no limits of any kind on damages. The following is a short overview of how states other than Texas employ damage award caps. A compendium of damage caps in other states is provided in Appendix A.
NONECONOMIC DAMAGES
States Capping Damages in Injury and/or Death Cases without Regard to Subject
At least thirteen states cap noneconomic damages in personal injury and/or wrongful death cases, without regard to the subject matter: Alaska, California, Colorado, Hawaii, Idaho, Iowa, Maine, Maryland, Mississippi, New Hampshire, Ohio, Oregon, and Tennessee.143 Six of these states—Alaska, Colorado, Idaho, Maryland, Mississippi, and Tennessee—impose noneconomic damage caps in both personal injury and wrongful death. In California, Maine, New Hampshire, and Oregon, the limitation is applicable only in wrongful death cases. Iowa and Ohio have caps that only apply in personal injury cases, and Hawaii’s cap is applicable only to damages awarded for pain and suffering.
These caps typically are around $250,000 to $1 million, with higher amounts typically available only when there are aggravating circumstances. The lowest noneconomic damage cap for wrongful death is in New Hampshire, at $150,000 for the decedent’s spouse and $50,000 for the decedent’s children and parents.144 The lowest cap for personal injury is Idaho’s, at $250,000 (but adjusted for inflation to be around $458,000 in 2023). The highest cap for wrongful death cases is in Colorado, at $2.125 million (plus a biannual increase for inflation beginning in 2028).145 Colorado also has the highest cap for personal injury cases, at $1.5 million.
While most of these noneconomic caps are a stated dollar amount often adjusted for inflation,146 Ohio calculates damages using a formula: the award is limited to the greater of $250,000 or three times compensatory damages, with a maximum recovery of $350,000 per plaintiff and $500,000 per occurrence.147 This type of formula is often used in states that cap punitive damages.148
Often, aggravating circumstances can either increase or negate the cap. In Tennessee, the noneconomic damage cap is $750,000 per plaintiff for all claims, even extending to family members; but the limit is $1 million in the case of death or catastrophic injury or loss, and the cap is inapplicable for specific intent, intentional actions, actions involving the use of alcohol or drugs, or in the commission of a felony.149 In Idaho, the cap does not apply for personal injury, death, or medical malpractice in cases of willful or reckless misconduct or actions arising from conduct proven beyond a reasonable doubt would constitute a felony under state or federal law.150 In Ohio, there is no cap for wrongful death or in the case of permanent and substantial physical deformity, loss of use of a limb, loss of a bodily organ system, or permanent physical injury that prevents performance of independent care or life-sustaining activities.151 In Colorado, there is no cap in death cases if the wrongful act causing death constitutes a felonious killing.152
As these short descriptions show, Tennessee, Idaho, and Colorado remove their noneconomic damage caps based on the relative wrongfulness of the defendant’s conduct, a concept that is inherently flawed. Noneconomic damages are intended only to compensate the plaintiff for her injuries, not punish the defendant for antisocial conduct. Thus, Tennessee, Idaho, and Colorado are effectively allowing the defendant to be punished via the imposition of noneconomic damages.
Alaska is unique in that it caps damages for personal injury and death at the greater of $400,000 or $8,000 multiplied by the injured person’s life expectancy; or, when damages are awarded for severe permanent physical impairment or disfigurement, the award cannot exceed the greater of $1 million or the person’s life expectancy multiplied by $25,000.153
California limits damages in wrongful death cases to the loss the decedent sustained prior to death, including any punitive damages the decedent would have been entitled to. California’s cap for wrongful death cases does not include damages for pain, suffering, or disfigurement.154
State | Case Type | Cap |
---|---|---|
Alaska155 | Noneconomic damages – personal injury and wrongful death | Greater of $400,000 or $8,000 multiplied by the injured person’s life expectancy in years. Greater of $1 million or $25,000 multiplied by life expectancy for severe physical impairment or disfigurement. |
California156 | Noneconomic damages – wrongful death | Damages are limited to what the decedent sustained before death, including any punitive damages that the decedent would have been entitled to recover had the decedent lived, and do not include damages for pain, suffering, or disfigurement. |
Colorado157 | Noneconomic damages – personal injury and wrongful death | $1.5 million for personal injury, and $2.125 million for wrongful death. Adjusted for inflation according to the consumer price index every two years starting January 1, 2028. |
Hawaii158 | Noneconomic damages – pain and suffering only | $375,000 for pain and suffering only. |
Idaho159 | Noneconomic damages – personal injury and wrongful death | $250,000 ($490,000 as of 2024, adjusted for inflation). Cap does not apply in cases of willful or reckless misconduct or actions arising from conduct proven beyond a reasonable doubt would constitute a felony under state or federal law. |
Iowa160 | Noneconomic damages – personal injury | Damages that may be recovered by a claimant for the reasonable and necessary cost or value of medical care rendered shall not exceed the sum of the amounts actually paid or incurred. |
Maine161 | Noneconomic damages – wrongful death | $1 million for loss of comfort, society, and companionship; emotional distress; and conscious suffering of decedent. |
Maryland162 | Noneconomic damages – personal injury and wrongful death | $935,000. In a wrongful death action with two or more claimants, damages may not exceed 150% of the cap, regardless of the number of those who share in the award. |
Mississippi163 | Noneconomic damages – personal injury and wrongful death | $1 million. |
New Hampshire164 | Noneconomic damages – wrongful death | $150,000 for spouses and $50,000 for children and parents. |
Ohio165 | Noneconomic damages – personal injury | Greater of $250,000 or three times economic damages, with a maximum recovery of $350,000 per plaintiff and $500,000 per occurrence. No cap in case of permanent and substantial physical deformity, loss of use of a limb, loss of a bodily organ system, or permanent physical injury that prevents performance of independent care or life-sustaining activities. |
Oregon166 | Noneconomic damages – wrongful death | $500,000. |
Tennessee167 | Noneconomic damages – personal injury and wrongful death | $750,000 per plaintiff for all claims; cap extends to plaintiff’s family members. Cap is $1 million in the case of death or catastrophic injury or loss. Cap inapplicable for specific intent, intentional actions, actions involving the use of alcohol or drugs, or in the commission of a felony. |
States Capping Damages in Specific Types of Cases
As discussed above, Texas limits noneconomic damage awards only in healthcare liability and government-defendant cases. Many states similarly limit noneconomic damages in specific kinds of cases.
Healthcare Liability
At least thirty-one states limit noneconomic damages in medical liability cases—Alaska, California, Colorado, Connecticut, Florida, Hawaii, Idaho, Indiana, Iowa, Louisiana, Maryland, Massachusetts, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, New Jersey, New Mexico, North Carolina, North Dakota, Ohio, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wisconsin.168
The lowest healthcare case noneconomic damage cap is in Montana, at $250,000 for injury or death related to medical malpractice; the award is not adjusted for inflation. New Jersey also has a limit of $250,000, which is a total cap on economic and noneconomic damages.
The highest caps are in Michigan, at $569,000, or $1.016 million if the injury involves severe impairment, and in Texas, which allows a maximum recovery of $750,000 for noneconomic damages. The average cap in medical liability cases is around $500,000. The limits are generally higher, averaging around $1 million or greater, in cases of death or catastrophic injury, for example, as is done in Florida, Iowa, Michigan, Ohio, Tennessee, Texas, and West Virginia.
While most healthcare liability limits are a stated dollar amount, Ohio—as discussed above—limits awards to the greater of $250,000 or three times compensatory damages, with a maximum recovery of $350,000 per plaintiff and $500,000 per occurrence.169
Government Entities
At least ten states have a partial waiver of governmental immunity under a state-specific tort claims act—Florida, Maine, Mississippi, Montana, Nebraska, Nevada, New Mexico, Oklahoma, Rhode Island, and Texas.170 Generally, these caps apply to all compensatory damages (noneconomic plus economic), and punitive damages are almost never available in these actions. Separate limitations sometimes exist for property damage, personal injury, and death. Caps may also be set on a per-person or per-occurrence basis.
The lowest cap is in Oklahoma, with damages for loss of property limited to $25,000. The highest cap is in Nebraska, with a total damage cap of $1 million per person and $5 million for all claims arising out of a single occurrence. The average cap is around $400,000.
Commercial Motor Vehicle Collisions
Iowa and West Virginia recently adopted damage limitations specific to actions involving a commercial motor vehicle (CMV) collision. Effective May 12, 2023, Iowa has a limit applicable to noneconomic damages in CMV collision cases, except those involving the operation of a CMV serving as a common carrier of passengers, such as a school bus, passenger vehicle, or ride share.171 For these actions, damages are capped at $5 million against the owner or operator of the CMV for all claims and theories of liability.172 The limitation is adjusted for inflation beginning January 1, 2028, and every even-numbered year thereafter.173
However, the cap does not apply if the court finds by a preponderance of the evidence that the negligent act leading to the injury or death involved:
(a) operating the CMV with a blood alcohol concentration of .04 or more or was under the influence of a drug;
(b) refusing to submit to chemical testing;
(c) a felony involving the use of a motor vehicle;
(d) illegally using the CMV involving the manufacturing, distributing, or dispensing of a controlled substance;
(e) knowingly operating the CMV without a proper driver’s license or learner’s permit, or was otherwise disqualified from operating the CMV;
(f) operating the CMV in connection with human trafficking;
(g) engaging in reckless driving or using an electronic communication device while driving;
(h) speeding in excess of fifteen miles per hour or more over the speed limit; or
(i) violating any law restricting the use of a telephone, computer, or tablet.174
Effective July 1, 2024, West Virginia also has a special cap applicable only to CMV collisions resulting in injury or death.175 Like Iowa, the new law limits noneconomic damages to $5 million per occurrence.176 The cap is adjusted annually, beginning January 1, 2026, pursuant to the consumer price index.177 The cap is unavailable to an employer defendant that does not carry CMV insurance of at least $3 million.178
The cap also does not apply in these actions when a CMV operator or driver is found to have:
(a) a blood alcohol concentration of .04 or more, or operated the CMV under the influence of any controlled substance, other drug, or inhalant substance at the time of the incident;
(b) refused to submit to drug and alcohol testing following the incident;
(c) operated the CMV in excess of the hours of operation established under state or federal regulations;
(d) operated a commercial motor vehicle in willful or wanton disregard for the safety of persons or property at the time of the incident;
(e) unlawfully operated the commercial motor vehicle loaded in excess of the maximum gross vehicle weight rating established under state or federal regulations at the time of the incident; or
(f) operated a CMV while engaging in one or more of the acts that constitute distracted driving, as defined, at the time of the incident.179
Again, the cap-busting exceptions found in Iowa’s and West Virginia’s new laws are related to the relative wrongfulness of the defendant’s conduct, which should only affect the availability and amount of exemplary damages, not the amount of noneconomic damages. These are inappropriate exceptions for a cap on compensatory damages, because all compensatory damages (economic and noneconomic) should be unaffected by the defendant’s conduct.
The Wisconsin Legislature passed a similar bill in 2024 that was vetoed by the governor.180 That legislation would have limited noneconomic damages in CMV accident cases to $1 million for injury or death arising from an act or omission of an employee acting within the scope of employment.181 The governor vetoed the bill because he believed the dollar amount was arbitrarily set. The governor explained that a “fundamental principle of our legal system is that everyone is entitled to remedies in the law for all injuries, and when it comes to remedy, the law should redress a party’s injury, not repress an injured party.”182
Further, the governor stated the law likely would have violated article I, section 9 of the Wisconsin Constitution, which entitles claimants “to remedies in the law for all injuries,” as well as equal protection and due process rights under the United States Constitution and state constitution.183 Lastly, the governor vetoed the bill because the legislation would have been inconsistent with current law. For example, “unlike current statutory caps, the bill does not define ‘noneconomic damages,’ does not address or contemplate multiple parties or occurrences, and does not cross reference wrongful death actions. Courts would almost certainly face challenges implementing the bill’s provisions as this incongruity welcomes continuous litigation.”184
State | Case Type | Cap |
---|---|---|
Alabama185 | Punitive damages | Greater of three times actual damages or $500,000. In cases of physical injury, greater of three times compensatory damages or $1.5 million. Against small business, $50,000 or 10% of net worth. Caps not applicable in wrongful death or intentional physical injury. |
Alaska186 | Punitive damages | Greater of three times compensatory damages or $500,000. If proven motivation of financial gain, greater of four times compensatory, four times financial gain, or $7 million. In unlawful employment practice, $200,000-$500,000 depending on size of company. |
Colorado187 | Punitive damages | Cannot exceed amount of actual damages; in the event of a defendant’s willful or wanton aggravation of the injurious behavior during pendency of the claim, then an amount not to exceed three times actual damages. |
Connecticut188 | Punitive damages – products liability | Statutory cap on punitive damages in products liability cases only. Limited to two times compensatory damages. |
Delaware189 | Punitive damages – trade secrets | Recovery limited for willful and malicious appropriation of trade secrets to two times amount of award. |
Florida190 | Punitive damages | Greater of three times compensatory or $500,000. But in case of motive of financial gain and conduct known to be unreasonably dangerous, cap is the greater of four times compensatory or $2 million. No cap in case of specific intent causing actual harm. Punitive damage caps not applicable to child, elder, or developmentally disabled abuse. Punitive damage caps not applicable to defendant who was under the influence of alcohol or drugs. |
Georgia191 | Punitive damages | Allowed up to $250,000 in tort only when willful misconduct, malice, fraud, wantonness, oppression, or conscious indifference; no cap for intentional harm or harm involving drugs or alcohol; no cap for products liability. |
Idaho192 | Punitive damages | Greater of three times compensatory or $250,000. |
Indiana193 | Punitive damages | Greater of three times compensatory or $50,000. |
Kansas194 | Punitive damages | Lesser of the defendant’s annual gross income or $5 million; if that valuation is deemed too low by the court, limitation may be 1.5 times amount of profit defendant gained; or the limit shall be the lower of 50% of the defendant’s net worth or $5 million. |
Maine195 | Punitive damages – wrongful death | Punitive damages capped at $500,000 only in wrongful death cases. |
Mississippi196 | Punitive damages | Calculated based on net worth of defendant; no limit in case of defendant under influence of drugs or alcohol or in the commission of a felony. Caps as high as $20 million. Court reviews award before entering judgment, including the defendant’s severity of conduct and net worth. |
Missouri197 | Punitive damages | Greater of five times damages or $500,000. No cap if injury occurred in the commission of a felony. |
Montana198 | Punitive damages | Lesser of $10 million or 3% of defendant’s net worth. |
Nebraska199 | Punitive damages | No punitive damages may be awarded. Punitive damages are unconstitutional. |
Nevada200 | Punitive damages | Shall not exceed three times compensatory damages, or $300,000 if compensatory damages are less than $100,000. |
New Hampshire201 | Punitive damages | No punitive damages shall be awarded in any action, unless otherwise provided by statute. |
New Jersey202 | Punitive damages | Limited to the greater of five times compensatory damages or $350,000, with specific exceptions. |
North Carolina203 | Punitive damages | Greater of three times compensatory damages or $250,000. |
North Dakota204 | Punitive damages | Greater of two times compensatory damages or $250,000. |
South Carolina205 | Punitive damages | Greater of three times compensatory damages or $500,000. If motivated by financial gain and conduct unreasonably dangerous, greater of four times compensatory or $2 million. |
South Dakota206 | Punitive damages | No cap; however, punitive damages may only be awarded in certain statutorily defined cases. |
Tennessee207 | Punitive damages | Greater of two times compensatory damages or $500,000, with some exceptions. |
Texas208 | Punitive damages | Greater of two times economic damages plus non-economic damages (not to exceed $750,000), or $200,000. |
Utah209 | Punitive damages | Greater of three times compensatory damages or $50,000, with some exceptions. |
Virginia210 | Punitive damages | Capped at $350,000. |
West Virginia211 | Punitive damages | Greater of four times compensatory damages or $500,000. |
Wisconsin212 | Punitive damages | Greater of two times compensatory damages or $200,000. |
Wyoming213 | Punitive damages | No cap, but must be reasonable and proportionate to compensatory damages awarded. |
No Damage Cap
Several states do not cap damages, almost always because of a constitutional ban.216 For example, in Arizona, Arkansas, Kentucky, New York, Oklahoma, Pennsylvania, and Wyoming, the state’s constitution specifically prohibits a cap on certain damages.217 And in at least Alabama, Arkansas, Georgia, Illinois, Kansas, Kentucky, Oklahoma, Tennessee, Utah, and Washington, a damage cap has been found unconstitutional by the highest court of that state.218
Sometimes, the legislature and judiciary go back and forth several times to fight for or against damage caps, such as in Florida medical malpractice actions resulting in personal injury or death. The Florida Supreme Court found the statutory cap on wrongful death noneconomic damages in medical malpractice actions to have violated the right to equal protection under Florida’s constitution.219 Later, the court held a prior version of the statute for personal injury noneconomic damages unconstitutional for violating the equal protection clause.220 In 2020, the legislature re-passed a statutory cap on damages.221 However, a Florida circuit court ruled in 2024 that the cap on personal injury noneconomic damages for Medicaid recipients is unconstitutional.222 The constitutionality of that statute has yet to be determined.
Adjusting Damage Caps
To account for changes in the value of money over time due to inflation, many states increase their damage caps on a schedule. Several states—Alabama, Colorado, Iowa, Maine, Michigan, New Mexico, North Carolina, South Carolina, Texas,223 and West Virginia—adjust using the U.S. Bureau of Labor Statistics’ consumer price index (CPI), which measures a consumer’s day-to-day living expenses, or “the average change over time in the prices paid by consumers in a representative basket of goods and services.”224
California, Iowa, Maryland, Missouri, Nevada, and Virginia adjust their caps by a percentage or dollar amount.
Some states adjust the cap every year (California, Idaho, Iowa, Maryland, Michigan, Missouri, Nevada, New Mexico, South Carolina, Virginia, and West Virginia), while other states adjust every two or three years (Alabama, Colorado, Iowa, North Carolina, and Wisconsin).
Generally, the adjustment is only done to caps on noneconomic damages, not on punitive damage caps.
State | Case/Damage Type | Adjustment Schedule | Measure/Amount |
---|---|---|---|
Alabama225 | Punitive damages | Every three years starting on 01/01/03 | Consumer price index |
California226 | Medical malpractice | Every year starting on 01/01/23 for ten years not to exceed $750,000 (as applied to $350,000 cap) | $40,000 |
California226 | Medical malpractice | Every year starting on 01/01/23 for ten years not to exceed $1,000,000 (as applied to $500,000 cap) | $50,000 |
California226 | Medical malpractice | Every year starting on 01/01/34 (as applied to the $750,000 and $1,000,000 caps above) | 2% |
Colorado227 | Personal injury or death | Every two years starting on 01/01/28 | Consumer price index |
Colorado227 | Medical malpractice – injury or death | Increased incrementally over five years, and thereafter every two years | Consumer price index |
Idaho228 | Personal injury or death | Every year starting on 07/01/04 | Average annual state wage |
Iowa229 | CMV injury or death | Every even year starting on 01/01/28 | Consumer price index |
Iowa229 | Medical malpractice | Every year starting on 01/01/28 | 2.1% |
Maine230 | Wrongful death | Adjusted based on year of death | Consumer price index |
Maryland231 | Personal injury, wrongful death, medical malpractice | Every year | $15,000 |
Michigan232 | Medical malpractice | Every year | Consumer price index |
Missouri233 | Medical malpractice | Every year | 1.7% |
Nevada234 | Medical malpractice | Every year starting on 01/01/24 until cap reaches $750,000 in 2028; then every year starting on 01/01/29 | $80,000 annually; then 2.1% annually |
New Mexico235 | Medical malpractice | Every year starting on 01/01/23 | Consumer price index |
North Carolina236 | Medical malpractice | Every three years starting on 01/01/14 | Consumer price index |
South Carolina237 | Medical malpractice, punitive damages | Every year | Consumer price index |
Texas238 | Wrongful death in medical malpractice | Adjusted at the time of final judgment | Consumer price index |
Virginia239 | Medical malpractice | Every year until cap reaches $3,000,000 in 2031 | $50,000 |
West Virginia240 | CMV injury or death | Every year starting on 01/01/26, but not to exceed 150% of the cap amount | Consumer price index |
West Virginia240 | Medical malpractice | Every year starting 01/01/04, but $250,000 cap not to exceed $375,000 and $500,000 not to exceed $750,000 | Consumer price index |
Wisconsin241 | Noneconomic damages | Every odd year on 1/1 | Board of governors submits a report to the legislature with recommended changes to cap |
Miscellaneous Items
Twelve states (Colorado, Idaho, Maryland, Michigan, Mississippi, Montana, New Mexico, North Carolina, North Dakota, Ohio, Oregon, and Tennessee) have statutes providing that their damage caps may not be made known to a jury.242 Some states only have this prohibition as to punitive damage caps.243 And, at least in Alabama, informing a jury of the punitive damage cap is grounds for a mistrial.244
The reason for the prohibition against informing a jury of a cap is to avoid the jury using the cap as a starting point when awarding verdicts. Instead, the jury can focus on awarding an amount it thinks will fairly compensate the claimant.
Several states require the splitting of punitive damage awards between the plaintiff and other entities:
- For punitive damage awards in Montana, the entire amount is divided equally between the plaintiff and the state.245
- For punitive damage awards in Utah, the first $50,000 goes to the injured party, and the excess amount is split equally between the state and the injured party.246
- For punitive damage awards in Oregon, the award is divided among the plaintiff (30%), deposited into the Criminal Injuries Compensation Account (60%), and deposited into the State Court Facilities and Security Account (10%).247
Relationship of Extraordinary Verdicts to Damage Caps
Since the beginning of 2016, approximately 100 Texas injury or death cases involving one or a few plaintiffs have resulted in a verdict exceeding $10 million. The twenty-five largest of these verdicts are listed in Appendix B. The largest—$7.375 billion—was handed down by a Dallas County court in 2022 in a single-plaintiff wrongful death case.248 The twenty-fifth largest is a 2024 verdict of $71.95 million from a Dallas County court in a construction workplace injury case.249 Four verdicts have exceeded $500 million,250 and twenty have exceeded $100 million.251
In every case, noneconomic damages constitute a meaningful percentage of the total award. The largest noneconomic damage award, $480 million, resulted from a 2021 single-plaintiff wrongful death case in a Titus County court.252 Eleven of the top twenty-five verdicts since 2016 featured noneconomic damage awards of over $100 million, and nineteen of the top twenty-five verdicts had noneconomic damage awards greater than $50 million.253
In a number of these cases, the plaintiff sought only noneconomic damages.254 This was doubtless done because the use of unsubstantiated anchoring yielded awards that were significant in magnitude yet exempt from Texas’s exemplary damage cap. As discussed in Section II.B, a noneconomic damage claim can be established by a preponderance of the evidence with the agreement of only ten jurors, while exemplary damage claims must be established through clear and convincing evidence with juror unanimity.
Thus, if a lawyer can convince a jury to essentially punish a defendant by awarding noneconomic damages at the rate of two cents for every mile driven by a national freight-carrier’s trucks, as was done in Gregory v. Chohan,255 or based on the price of constructing an apartment building, as was done in Flores v. Bigge Crane & Rigging Co.,256 the lawyer has secured a large judgment that resembles punitive damages but is not reduced by a statutory mandate and more easily sustained on appeal.
The proliferation of extraordinarily high noneconomic damage awards is occurring in other states as well as Texas, and the connection between noneconomic damage and extraordinary verdicts is well known.257 This connection has compelled two states to impose caps on noneconomic damages recently. Iowa capped noneconomic damages in commercial vehicle collision cases in 2023 and West Virginia did the same in 2024. The Wisconsin Legislature passed a similar cap in 2024 that was vetoed by the state’s governor. And in Maryland, a bill filed in 2024 to almost double the state’s generally applicable noneconomic damage cap failed to pass the Legislature after encountering stiff resistance.258
Calls for Legislative Action
Justice Devine’s concurring opinion in Gregory v. Chohan asserts that the plurality’s new “rational connection” requirement appears at odds with prior Texas Supreme Court decisions giving jurors substantial discretion in determining the amount to award for noneconomic damages. Justice Devine also criticized the plurality for “advocat[ing] a new evidentiary standard that is not only foreign to our jurisprudence but also incapable of being satisfied.”259
In his concurring opinion, he suggests this is a matter best addressed by the legislative branch of government:
“[A]s the electorate’s chief policymaker, the Legislature is much better equipped to balance any tension between the Constitutional command of just compensation and the plurality’s concerns about the potential for arbitrariness” than is the Court, according to Justice Devine.260 “[I]f there is a compelling need for change, as the plurality suggests, policy choices like those implicated here are well within the Legislature’s wheelhouse.”261
Historically, there has been legislative interest concerning noneconomic damages. In the face of a liability insurance crisis in the 1980s, the Texas Legislature created a joint Senate/House Select Committee in 1985 to search for solutions. The Committee reported to the Legislature in early 1987, and its report included this statement:
Noneconomic damages are, by definition, subjective and nonverifiable. In many cases, they exceed economic damages by a significant amount. Because they are subjective and inherently impossible to predict on a case-by-case basis, they represent a serious impediment to underwriting predictability. A limit on noneconomic damages would make them predictable to the extent that they could not exceed a particular amount. The joint committee believes that a limit of $250,000 allows for the recovery of a substantial amount of money in the event of significant noneconomic injury while still providing for a reasonable degree of civil justice predictability.262
The committee recommended a $250,000 cap on noneconomic damages.263
As discussed in Section III.B.1, Texas capped noneconomic damages in healthcare liability cases in 2003. That cap, coupled with other reforms, worked. Liability insurance premiums for medical doctors decreased immediately. Doctors began flowing back into Texas—increasing access to care for all Texans.264
George Christian, writing for the Texas Civil Justice League, asked in January 2022 whether it is time for Texas to revisit the standards for awarding mental anguish damages.265 He concludes with this: “While we are not necessarily advocating a legislative response at this time, we do believe that the rising incidence of nuclear verdicts and challenges to the existing cap warrant a policy response.”
Conclusion
As stated at the outset, Texas is seeing a proliferation of extraordinarily high jury verdicts in injury and death cases having one or a few plaintiffs. These nuclear verdicts are inconsistent and unfair, as defendants in Texas courts are treated unequally for reasons wholly unrelated to the merits of their cases. Nuclear verdicts also may impede economic growth in Texas and deter businesses from relocating, headquartering, and incorporating in Texas.
The intent of this paper is to provide a resource for legislators as they decide whether the civil justice system in Texas needs legislative action to ensure that it is stable, predictable, and fair.


























































































