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5.2 Measures of Types of Damages

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5.2 MEASURES OF TYPES OF DAMAGES

In determining the measure of damages, you should consider:

[The nature and extent of the injuries;]

[The [disability] [disfigurement] [loss of enjoyment of life] experienced [and which with reasonable probability will be experienced in the future];]

[The [mental,] [physical,] [emotional] pain and suffering experienced [and which with reasonable probability will be experienced in the future];]

[The reasonable value of necessary medical care, treatment, and services received to the present time;]

[The reasonable value of necessary medical care, treatment, and services which with reasonable probability will be required in the future;]

[The reasonable value of [wages] [earnings] [earning capacity] [salaries] [employment] [business opportunities] [employment opportunities] lost to the present time;]

[The reasonable value of [wages] [earnings] [earning capacity] [salaries] [employment] [business opportunities] [employment opportunities] which with reasonable probability will be lost in the future;]

[The reasonable value of necessary [household help] [services other than medical] [and] [expenses] [_______] required to the present time;]

[The reasonable value of necessary [household help] [services other than medical] [and] [expenses] [_______] which with reasonable probability will be required in the future;]

[The reasonable value of necessary repairs to any property which was damaged;]

[The difference between the fair market value of any damaged property immediately before the occurrence and its fair market value immediately thereafter;] [and]

[The reasonable value of necessary repairs to any property which was damaged plus the difference between the fair market value of the property immediately before the occurrence and its fair market value after it is repaired.]

[The lesser of the following:

1. the reasonable cost of necessary repairs to any property which was damaged plus the difference between the fair market value of the property immediately before the occurrence and its fair market value after it is repaired; or

2. the difference between the fair market value of the property immediately before the occurrence and the fair market value of the unrepaired property immediately after the occurrence.]

[Such sum as will reasonably compensate for any loss of use of any damaged property during the time reasonably required for its [repair] [replacement].]

Comment

Insert only the appropriate bracketed items into Instruction 5.1 (DamagesProof). Additional paragraphs may have to be drafted to fit other types of damages. Particular claims may have special rules on damages. See, e.g., Instruction 7.11 (Maintenance and Cure), 11.7A (Age Discrimination—Damages—Back and Front Pay—Mitigation), and 11.7B (Age Discrimination—Damages—Willful Discrimination—Liquidated Damages).

Punitive and compensatory damages are subject to caps in Title VII cases. See 42 U.S.C. 1981a(b)(3). Regarding the amount of damages available under Title VII, see Gotthardt v. Nat’l R.R. Passenger Corp., 191 F.3d 1148 (9th Cir.1999). The cap does not apply to front pay and back pay. See Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 848 (2001). See also Caudle v. Bristow Optical Co., 224 F.3d 1014, 1020 (9th Cir.2000) (includes the definition of front pay and back pay); Introductory Comment to Chapter 10.

In Title VII and ADA cases, the court, not the jury, determines the amount of back pay. Lutz v. Glendale Union High School, 403 F.3d 1061, 1069 (9th Cir.2005); see also Albemarle Paper Co. v. Moody, 422 U.S. 405, 415-16 (1975).