AN ACT relative to awards of noneconomic damages.

SPONSORS: Rep. Bowers, Sull 3; Rep. W. Smith, Rock 18; Rep. Umberger, Carr 1

COMMITTEE: Judiciary


This bill provides procedures for awarding noneconomic damages.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.




In the Year of Our Lord Two Thousand Twelve

AN ACT relative to awards of noneconomic damages.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 Findings.

I. The purpose of this act is to ensure that individuals receive full and fair compensatory damages, including damages for pain and suffering.

II. Pain and suffering awards are intended to provide an injured person with compensation for the pain and suffering resulting from the injury at issue in a particular lawsuit.

III. Punitive damages are intended to punish a defendant for wrongful conduct. Punitive damages are prohibited in this state.

IV. Pain and suffering awards are distinct from punitive damages. Pain and suffering awards are intended to compensate a person for his or her loss. They are not intended to punish a defendant for wrongful conduct.

V. For that reason, the evidence that juries may consider in awarding pain and suffering damages is different from the evidence courts may consider for punitive damages. For example, the amount of a plaintiff’s pain and suffering is not relevant to a decision on wrongdoing, and the degree of the defendant’s wrongdoing is not relevant to the amount of pain and suffering.

VI. The size of noneconomic damage awards, which includes pain and suffering, has increased dramatically in recent years. While pain and suffering awards are inherently subjective, it is believed that this inflation of noneconomic damages is partially due to the improper consideration of evidence of wrongdoing in assessing pain and suffering damages.

VII. Inflated damage awards create an improper resolution of civil justice claims. The increased and improper costs of litigation and resulting rise in insurance premiums is passed on to the general public through higher prices for products and services.

VIII. Therefore, courts should provide juries with clear instructions about the purpose of pain and suffering damages. Courts should instruct juries that evidence of misconduct is not to be considered in deciding compensation for noneconomic damages.

IX. As an additional protection, trial and appellate courts should rigorously review pain and suffering awards to ensure that they properly serve compensatory purposes and are not excessive.

2 Damages Recoverable for Noneconomic Loss. RSA 508:4-d is repealed and reenacted to read as follows:

508:4-d Damages Recoverable for Noneconomic Loss.

I. In this section:

(a) “Noneconomic damages” mean damages that are recoverable in tort actions and include damages awarded to compensate a claimant for 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 all other nonpecuniary losses.

(b) “Pain and suffering” means the actual physical pain and suffering that is the proximate result of a physical injury sustained by a person.

II. In determining noneconomic damages, the fact finder may not consider:

(a) Evidence of a defendant’s alleged wrongdoing, misconduct, or guilt.

(b) Evidence of the defendant’s wealth or financial resources.

(c) Any other evidence that is offered for the purpose of punishing the defendant, rather than for a compensatory purpose.

III. Upon post-judgment motion, the trial court shall analyze the evidence supporting any noneconomic damages award challenged as excessive. Such analysis shall consider the following nonexclusive factors:

(a) Whether the evidence presented or the arguments of counsel resulted in one or more of the following events in the determination of a noneconomic damage award:

(1) Inflamed the passion or prejudice of the trier of fact;

(2) Improper consideration of the wealth of the defendant; or

(3) Improper consideration of the misconduct of the defendant so as to punish the defendant in circumvention of any punitive damage prohibition.

(b) Whether the verdict is in excess of verdicts involving comparable injuries to similarly situated plaintiffs; and

(c) Whether there were any extraordinary circumstances in the record to account for an award in excess of what was granted by courts to similarly situated plaintiffs, with consideration to the injury type, severity of injury, and the plaintiff’s age.

IV. Any trial court upholding a noneconomic damages award challenged as excessive shall set forth in writing its reasons for upholding the award.

V. A reviewing court shall use a de novo standard of review when considering an appeal of a noneconomic damages award on the grounds of excessiveness.

3 Effective Date. This act shall take effect January 1, 2013.