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General Assembly does damage to damage awards.

The Arkansas General Assembly recently reversed 60 years of Arkansas tort law with the passage of the Civil Justice Reform Act of 2003. As part and parcel of the changes accustomed by Act 649, the General Assembly seriously limited or entirely eliminated several classes of damages previously recoverable by Arkansas tort plaintiffs.

Compensatory damages are not capped, however, the General Assembly will no longer permit plaintiffs to recover the costs of future medical treatment or rehabilitation occasioned by the defendants actions: only medical expenses incurred at the time of trial are now recoverable. Plaintiffs will be left to bear the costs of future surgeries or medical care alone.

Punitive damages (damages intended to punish based upon intentional wrongful conduct), however, suffer the biggest hit under the Act, and recovery of this type of damages is capped. Regardless of the financial means of the defendant, punitive damages for any action are limited to a maximum of either $1 million, or three times the compensatory damage award, whichever is less. If the compensatory award falls below $84,000, then the maximum punitive award is boosted to $250,000.

The punitive damage caps are removed where the plaintiff can somehow show that the defendant intentionally acted to injure him or her; but there will be few cases where a plaintiff is in a sufficient position to accomplish such a Herculean task. The burden the plaintiff must meet to prove-up any punitive damages has been increased to a clear and convincing evidence standard the second highest known to law. In fact, this standard is often equated with the beyond a reasonable doubt standard used for criminal convictions, because of the immense difficulty in finding proof of this sort. To prove someone else s intent by clear and convincing evidence takes, practically speaking, nothing less than a confession.

The new law of tort damages is a dramatic swing in favor of defendants.

by Charles Darwin "Skip" Davidson, Davidson Law Firm, Ltd.

DAVIDSON LAW FIRM Cantrell at State Little Rock, Arkansas 72203 374-9977 www.
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Author:Davidson, Charles Darwin
Publication:Arkansas Business
Geographic Code:1USA
Date:Oct 13, 2003
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