§ 45.10 Calculation of damages: non-economic damages.

(a)

In general.

Non-economic damages are one component of a potential damages award. The claimant has the burden of proof on the amount of non-economic damages by a preponderance of evidence. DoD may request an interview of or statement from the claimant or other person with primary knowledge of the claimant. DoD may also require medical statements documenting the claimant's condition and, in cases of disfigurement, photographs documenting the claimant's condition.

(b)

Elements of non-economic damages.

Non-economic damages include pain and suffering; physical discomfort; mental and emotional trauma or distress; loss of enjoyment of life; physical disfigurement; and the inability to perform daily activities that one performed prior to injury, such as recreational activities. Such damages are compensable as part of non-economic damages.

(c)

Cap on non-economic damages.

In any claim under this part, total non-economic damages may not exceed a cap amount published by DoD via a

Federal Register

notice. DoD will periodically publish updates to this cap amount via

Federal Register

notices, consistent with changes in prevailing amounts in the majority of the States with non-economic damages caps.

(d)

Information DoD will consider in calculating non-economic damages.

In addition to the information submitted by the claimant, DoD may consider all relevant information in DoD records or otherwise available to DoD, including assessments from appropriate documentary sources and experts available to DoD.

[86 FR 32208, June 17, 2021, as amended at 87 FR 52462, Aug. 26, 2022; 89 FR 40382, May 10, 2024]