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Tort Reform and Jury Instructions Charles W University of Tulsa College of Law TU Law Digital Commons Articles, Chapters in Books and Other Contributions to Scholarly Works 2015 Tort Reform and Jury Instructions Charles W. Adams University of Tulsa College of Law Follow this and additional works at: http://digitalcommons.law.utulsa.edu/fac_pub Part of the Civil Procedure Commons, and the Torts Commons This article originally appeared at volume 86, page 821 of the Oklahoma Bar Journal. Recommended Citation 86 Okla. B.J. 821 (2015). This Article is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Articles, Chapters in Books and Other Contributions to Scholarly Works by an authorized administrator of TU Law Digital Commons. For more information, please contact [email protected]. SCHOLARLY ARTICLE Tort Reform and Jury Instructions By Charles W. Adams his article discusses two recent statutes and the efforts of the Oklahoma Committee on Uniform Jury Instructions (Civil TOUJI Committee) to recommend uniform jury instructions based on these statutes to the Oklahoma Supreme Court. The first statute is Okla. Stat. Title 12, §577.4, which deals with an instruc- tion to juries that awards for damages for personal injuries and wrongful death that are nontaxable. The second statute is Okla. Stat. Title 23, §61.2, which imposes a $350,000 cap on noneconom- ic losses for personal injuries. The Civil OUJI Committee determined that of damages awards or either alternative for the both statutes raised possible constitutional $350,000 cap on noneconomic losses that the issues, and so, decided to flag these issues in its Civil OUJI Committee had proposed. Without recommendations to the Oklahoma Supreme having the benefit of actual cases before it, the Court. The committee comments to the pro- Supreme Court declined to resolve the possible posed jury instruction on nontaxability of dam- constitutional issues raised by the two statutes. ages awards pointed out that there were This article provides a brief discussion of the instances when damages for personal injury possible constitutional issues that are raised by awards were taxable and that there may be a the two statutes, and it includes the text of the constitutional question whether Okla. Stat. proposed recommendations that the Civil OUJI Title 12, §577.4 violated the doctrine of separa- Committee presented to the Oklahoma Su- tion of powers. The Civil OUJI Committee pre- preme Court. sented two alternatives for the proposed jury NONTAXABILITY OF AWARDS FOR instruction on the $350,000 cap on noneconom- PERSONAL INJURIES AND ic losses for personal injuries. The first alterna- WRONGFUL DEATH tive followed the language of Okla. Stat. Title 23, §61.2 and did not inform the jury of the The only case in which the Oklahoma $350,000 cap on noneconomic losses, but it Supreme Court has addressed the issue of noted a constitutional question in the commit- whether a jury instruction on the taxability of tee comments to the jury instruction. The sec- an award of damages should be given is Mis- ond alternative informed the jury of the souri-K.T.R.R. v. Miller.1 The case was brought $350,000 cap on noneconomic losses, contrary under the Federal Employers Liability Act to a provision in Okla. Stat. Title 23, §61.2, and (FELA), and on appeal, the defendant argued it explained the reason for doing so in the com- that the trial court erred by admitting evidence mittee comments to the jury instruction and of the plaintiff’s gross income without giving verdict form. instructions on the income tax on future earn- ings. The Oklahoma Supreme Court held that The Oklahoma Supreme Court did not adopt the income tax consequences of the injury and the proposed jury instruction on nontaxability the award should not be considered by the Vol. 86 — No. 11 — 4/18/2015 The Oklahoma Bar Journal 821 jury.2 The original edition of the Oklahoma Uniform Jury Instructions (OUJI) provided at The statute is also Instruction No. 4.17, which was titled “Effect of Income Tax on Award of Damages: ‘No Instruc- problematic, because it directs that tion Should Be Given’.” The comment to In- juries must be informed that struction No. 4.17 stated: “In Missouri-K.T.R.R v. Miller, 486 P.2d 630, 636 (Okla. 1971), the damages awards for personal Oklahoma Supreme Court ruled that the income tax consequences of injury and award injuries are not taxable, thereby are not a proper consideration for the jury.” inviting them to consider income Instruction No. 4.17 was not changed until 2014. taxes, but then it states that juries The Oklahoma Legislature adopted Okla. must not increase or decrease Stat. Title 12, §577.4 in 2011. It provides: their awards on account of any con- The Oklahoma Uniform Jury Instructions (OUJI) applicable in a civil case shall sideration for income taxes. include an instruction notifying the jury that no part of an award for damages for personal injury or wrongful death is sub- ject to federal or state income tax. Any fore, section 577.4 may violate the separation of amount that the jury determines to be powers doctrine in the Okla. Const., Art. 4, §1. proper compensation for personal injury or The Civil OUJI Committee submitted the fol- wrongful death should not be increased or lowing proposed revisions to Instruction 4.174 decreased by any consideration for income to the Oklahoma Supreme Court in 2012: taxes. In order to be admitted at trial, any exhibit relating to damage awards shall Instruction No. 4.17 reflect accurate tax ramifications. Effect Of Income Tax On Award Of Damages This statute is unusual because it is directed NO INSTRUCTION SHOULD BE GIVEN to the content of the OUJI, rather than the law that governs in the state courts. In addition, it [Name of Plaintiff] will not be required involves the effect of federal income tax law, to pay any federal or state income taxes on rather than state law. Although in most cases, any amount that you award for damages damages for personal injuries are not subject to for (personal injury)/(wrongful death). federal income tax, there are circumstances [This rule does not apply to [the portion of] where they may be taxable. For example, if a the claim of [Name of Plaintiff] for [speci- taxpayer had deducted medical expenses in a fy those claims that are subject to federal previous tax year, a recovery for medical or state income taxes]]. You should not 3 expenses would be taxable. In addition, unlike add to or subtract from the amount, if any, compensatory damages for personal injuries, you determine to be proper compensation punitive damages are taxable, but the jury for (personal injury)/(wrongful death) would not be aware of this distinction unless it because of income taxes. was instructed on it. Moreover, the statute refers only to the taxability of a damages Notes on Use award to a plaintiff, but it does not address whether a damages award would be deduct- This Instruction should be given only in ible by a defendant. The statute is also prob- cases where the damages sought for per- lematic, because it directs that juries must be sonal injury or wrongful death are nontax- informed that damages awards for personal able. The second sentence that is shown in injuries are not taxable, thereby inviting them brackets should be given if there are claims to consider income taxes, but then it states that or portions of a claim that are taxable so juries must not increase or decrease their that the jury instruction will not be inac- awards on account of any consideration for curate or confusing to the jury. The trial income taxes. Finally, instructing juries on the court should decide what damages are or applicable law in a case is a judicial function, are not subject to income tax based on the rather than a legislative function, and there- circumstances of the particular case. 822 The Oklahoma Bar Journal Vol. 86 — No. 11 — 4/18/2015 Comments Instruction No. 4.17 This Instruction is included on account of Effect Of Income Tax On Award of Damages 12 O.S. 2011 §577.4. See also 26 U.S.C. NO INSTRUCTION SHOULD BE GIVEN §104(a)(2) (damages for personal physical injuries, other than punitive damages, are Comments not taxable). The exclusion for damages for Title 12 O.S. 2011 §577.4 (Laws 2011, c. 16, personal physical injuries covers not only §1, eff. Nov. 1, 2011), reads as follows: medical bills but also amounts awarded for pain and suffering, loss of enjoyment, and Tax Consequences of Award for Damag- lost earnings. See C.I.R. v. Schleier, 515 U.S. es in Personal Injury and Wrongful Death 323, 329 (1995) (dictum); Martin J. McMa- Actions hon, Jr. & Lawrence A. Zelenak, Fed. Inc. Tax’n of Indiv. ¶7.03 (2011) (“When the The Oklahoma Uniform Jury Instructions exclusion [for damages for personal physi- (OUJI) applicable in a civil case shall cal injuries] applies, it covers all elements include an instruction notifying the jury of actual damages — nonpecuniary dam- that no part of an award for damages for ages (pain and suffering, loss of enjoyment, personal injury or wrongful death is sub- and the like, medical expenses, and lost ject to federal or state income tax. Any wages).”). Amounts received for personal amount that the jury determines to be injuries are taxable, however, to the extent proper compensation for personal injury or that they are attributable to deductions wrongful death should not be increased or allowed for medical and other similar decreased by any consideration for income expenses.
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