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 that with reasonable probability will be experienced in the future];] 

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

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

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

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

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

            [The reasonable value of necessary repairs to any property that 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 that 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 that 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 from this instruction into Instruction 5.1 (Damages—Proof). Additional paragraphs may have to be drafted to fit other types of damages. Particular claims may have special rules on damages.  See, e.g., Instructions 7.11 (Maintenance and Cure—Elements and Burden of Proof), 11.13 (Age Discrimination—Damages—Back Pay—Mitigation), and 11.14 (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) (defining 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).  Under the Family Medical Leave Act, the court, not the jury, determines the amount of front pay.  Traxler v. Multnomah Cnty., 596 F.3d 1007, 1011-14 (9th Cir. 2010).