Calculation of damages: non-economic damages.

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§ 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.

(b) Elements of non-economic damages. Elements of non-economic damage are limited to the following:

(1) Past and future conscious pain and suffering by the claimant. This element is physical discomfort as well as mental and emotional trauma or distress. Loss of enjoyment of life is compensable. The inability to perform daily activities that one performed prior to injury, such as recreational activities, is included in this element. DoD may request an interview of or statement from the member or other person with primary knowledge of the claimant.

(2) Physical disfigurement. This element is impairment resulting from an injury to a member that causes diminishment of beauty or symmetry of appearance rendering the member unsightly, misshapen, imperfect, or deformed. DoD may require a medical statement and photographs, documenting the claimant's condition.

(c) Cap on non-economic damages. In any claim under this part, total non-economic damages may not exceed a cap amount. The current cap amount is $500,000. Updates to cap amounts in subsequent years will be published periodically, 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.

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