1. Limits to Recovery
1.1. Tort Reform
1.1.1. Collateral Source Rule
1.1.1.1. If in effect, a tortfeasor is not entitled to a credit or set off from $ received from collateral sources during the pending/duration of litigation
1.1.1.1.1. Collateral sources include insurance companies
1.1.1.2. Is not double recovery, as insurance companies often require injured parties to pay back benefits (Subrogation)
1.1.1.3. Over 1/2 of states modified to allow evidence of insurance $ and some even require jury to reduce award b/c of the collateral source rule
1.1.2. Damages Caps
1.1.2.1. Biggest change to pain and Suffering, where plaintiff recovery is maxed out.
1.1.3. Duty to Mitigate (Doctrine of Avoidable Consequences)
1.1.3.1. Plaintiff holds burden to estbalish reasonable person's actions
1.1.3.2. Doctrine
1.1.3.2.1. 1. Client Suffers permanent injury; 2. Defendant can bring a witness to testify injury is repairable.
1.1.3.2.2. Defendant needs to tread lightly. Their negligence cause the injury, and now has the guts to tell plaintiff what to do to fix the defendant's error.
1.2. Remittitur
1.2.1. When the Defendant asks to reduce damages on specific grounds ("shocks the Judicial conscience")
1.2.2. To make tangible max recovery rule is used
1.2.2.1. Judge reviews each damage and says how high could the damage have been?
1.2.2.1.1. If award amount not exceeded, Motion Denied
1.2.2.1.2. If award amount exceeded motion granted, award lowered
1.2.2.2. Plaintiff then has two choices
1.2.2.2.1. 1. to accept the new award #
1.2.2.2.2. 2. Retry the case
2. Minor Injury (Fear of future harms)
2.1. Fears more injury due to increase risk
2.1.1. Increased risk is recoverable w/ expert testimony that injury would occur more than likely
2.2. Fear Recoverable if reasonable
2.2.1. Subsequent claims are allowed, but value decreases
2.2.1.1. Pending Plaintiff did not sign release for potential claims
3. Types
3.1. General
3.1.1. Examples
3.1.1.1. Emotional Distress
3.1.1.2. Pain & Suffering
3.1.1.3. Noneconomic Losses
3.1.1.4. Complaints of Fear, increased risk of harm, medical monitoring may be brought if disease could occur
3.1.1.5. Loss of consortium
3.1.1.5.1. Most jurisdictions will allow spous to recover for loss of conjugal relations, companionship, etc.
3.1.1.5.2. Most allow for the death of a child to have loss of society, etc.
3.1.2. Damages which are speculative in nature, and cannot be evidenced with paperwork
3.2. Special
3.2.1. Tangible with Paperwork and Facts to support
3.2.2. Examples
3.2.2.1. Medical Expenses
3.2.2.2. Lost Earning Capacity
3.2.2.3. Lost Wages