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Three different laws will go into effect November 1 and many of them will be of interest to insurance companies, defendants who face the possibility of large verdicts, and manufacturers who may be involved in products liability actions.

Cap on non-economic damages. Oklahoma has capped non-economic damages at $350,000.00. This law will apply to tort claims where a party claims such intangibles as “pain and suffering” or “emotional distress.” This cap can be lifted where the Judge and jury find clear and convincing evidence that a Defendant’s negligent actions were

i. In reckless disregard of rights of others
ii. grossly negligent
iii. fraudulent
iv. intentional or with malice

The cap is only lifted in negligence cases, not products liability suits, and it does not apply in wrongful death actions. These types of intentional acts in a negligence case will generally result in a claim that is not covered by insurance, because insurance covers accidental events, not intentional injuries.

The jury will determine damages above the “cap” in a separate part of the trial, after damages have already been determined. The jury will answer special interrogatories.

Oklahoma is eliminating the doctrine of joint and several liability. Each defendant pays his own portion of damages, and is not liable for the whole. This applies to actions that accrue on or after November 1,2011, so it won’t affect pending suits.

Juries will be instructed that the judgment isn’t taxable. Under federal law, though, punitive damage awards are taxable. So, if the judgment includes punitive damages, should the instruction be given? That remains to be seen.