Pending Illinois Legislation to Curtail Inflated Non-Economic Damages Jury Awards: The Full and Fair Non-Economic Damages Act
February, 2006
Introduction
The Illinois Legislature is currently considering passage of an act designed to rein in increasingly inflated non-economic damages awards. The Full and Fair Non-Economic Damages Act1, based on national model legislation by the same name, was prompted by concerns that such inflated awards are due to improper consideration of a defendant’s wrongdoing. The problem stems from the fact that non-economic damages are highly subjective in nature. Juries are not given concrete standards by which to assess damages for intangible injuries like “pain and suffering.” As a result, juries often focus on a defendant’s “guilt” and other evidence irrelevant to the purpose of compensatory damages.
Analysis
The goal of the proposed legislation is to ensure that non-economic damages awards are truly compensatory in nature, not punitive. To that end, the Act implements several safeguards — at trial, post-trial and on appeal — against inflated awards. First, the Act requires the trial court to instruct the jury that it cannot consider “guilt” evidence in awarding non-economic damages, including: evidence of defendant’s wrongdoing, misconduct or guilt; evidence of defendant’s wealth or financial resources; and any other evidence offered for the purpose of punishing defendant.
Second, the Act provides that in cases involving punitive damages, the proceedings should be bifurcated upon the request of any defendant. In the first stage, the jury determines liability and the amount of compensatory damages. Evidence relevant only to punitive damages issues is inadmissible during this stage. In the second stage, the same jury determines whether defendant’s conduct warrants punitive damages. This procedure ensures that the “guilt” evidence does not infect — and thereby inflate — the compensatory damages award.
Third, the Act requires the court to perform a “rigorous analysis” when non-economic damages are challenged as excessive post-trial. The court must review the record to determine whether the evidence or arguments inflamed the jury’s passions or prejudices, or caused the jury to improperly consider “guilt” evidence. The court must also determine whether the verdict is excessive in comparison to verdicts in cases involving comparable injuries to similarly situated plaintiffs. If it is, then the court must consider whether “extraordinary circumstances” in the record justify the larger verdict in light of the nature and extent of the injury and plaintiff’s age. If the court upholds the verdict, it must set forth its reasons for doing so in writing. This kind of analysis is a marked departure from the extremely deferential review normally accorded excessiveness challenges: the nebulous “shocks the judicial conscious” standard.
Finally, the Act likewise requires the appellate court to independently review the record when non-economic damages are challenged as excessive. The court would have to apply a de novo standard of review, meaning that it would owe no deference to the jury’s and trial court’s determinations.
Practice Pointers:
The proposed Full and Fair Non-Economic Damages Act will go a long way toward curtailing increasingly inflated non-economic damages awards. Trial counsel can take advantage of the safeguards embodied within the legislation even before it is enacted.
• In cases involving punitive damages, request bifurcation so that liability and punitive damages are tried back-to-back before the same jury, taking care to ensure that the “guilt” evidence is thoroughly segregated from the compensatory damages phase.
• Ask the court to specifically instruct the jury that it cannot consider such evidence in assessing damages for “pain and suffering” and the like. Tender the following model jury instruction:
The purpose of non-economic damages is to compensate plaintiff for his or her loss, not to punish defendant or to deter future misconduct. In determining such damages, you must not consider evidence of the alleged wrongdoing, misconduct or guilt; evidence of defendant’s wealth or financial resources; or any other evidence offered for the purpose of punishing defendant.
• Tender an itemized verdict form to preserve an excessiveness challenge to the non-economic damages awards.
• On post-trial motions, urge the court to independently review the record for indications that the jury improperly considered “guilt” evidence or arguments in awarding non-economic damages. Provide the court with lower verdicts from similar cases as further evidence of excessiveness. •
(Footnotes)
1 SB 1460, co-sponsored by Senators Peter J. Roskam (R) and Richard J. Winkel, Jr. (R).
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