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Apr 29, 2014

Punitive Damages Part 1: Don't Get Caught Flat-Footed

ABSTRACT: A Kansas plaintiff may amend their pleadings to assert punitive damages up until the day of the pretrial conference.

A Kansas plaintiff cannot claim punitive damages in a petition or any other pleading involving a tort claim, unless expressly permitted by an order of the court. K.S.A. 60-3703. In order to state a claim for punitive damages, a plaintiff must file a motion to amend a pleading to claim punitive damages “on or before the date of the final pretrial conference.” Id; K.S.A. 60-209.

The Kansas Legislature enacted this procedure for pleading punitive damages in 1988 as part of a general tort reform movement in an attempt to “eliminate the possibility that a “plaintiff could inappropriately use the threat of punitive damages as a lever to settle a claim.”[1] In 1997, the legislature added the term “final,” to distinguish between the final pretrial conference and other pretrial conferences under K.S.A. 60-216.

The result is now a procedure where a Kansas defendant in a tort action may not know that the plaintiff is requesting punitive damages until long after discovery has closed and, at the latest, 14 days before trial at the final pretrial conference. Kan. S.Ct. Rule 140. This raises two important issues for a defendant to consider early in the case. 

First, the defendant should make sure the Scheduling Order, which typically contains a date for the pretrial conference, states there will be a “final pretrial conference.” This language will assist in creating a specific date after which plaintiff cannot assert a punitive damages claim. Second, the defendant must remember early on in the case to conduct discovery relevant to the potential claim for punitive damages. Not only will the discovery be useful in opposing a motion to amend a pleading to assert a claim for punitive damages, but it will be necessary to the defense of the matter if the motion to amend is granted.

In Part 2, tips to the defendant for opposing a motion to amend a pleading to assert a claim for punitive damages.

[1] Fusaro v. First Family Mortgage Corp., 17 Kan. App. 2d 730, 732, 843 P.2d 737 (1992), aff'd at 257 Kan. 794, 897 P.2d 123 (1995).