It is the duty of the Court to instruct you about the measure of damages.  By instructing you on damages, the Court does not mean to suggest for which party your verdict should be rendered.

            If you find for the plaintiff [on the plaintiff’s [specify type of claim] claim], you must determine the plaintiff’s damages.  The plaintiff has the burden of proving damages by a preponderance of the evidence.  Damages means the amount of money that will reasonably and fairly compensate the plaintiff for any injury you find was caused by the defendant.  You should consider the following: 

            [Insert types of damages.  See Instruction 5.2 (Measures of Types of Damages)] 

            It is for you to determine what damages, if any, have been proved. 

            Your award must be based upon evidence and not upon speculation, guesswork or conjecture. 

Comment 

            If liability is not disputed, this instruction should be modified accordingly.

             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 as a discretionary, equitable remedy. Lutz v. Glendale Union High School, 403 F.3d 1061, 1069 (9th Cir. 2005) (citing 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, 1012 (9th Cir. 2010) (“[T]he court’s power under the FMLA to award front pay, as an alternative to reinstatement, is derived solely from the statutory provision permitting the court toaward ‘such equitable relief as may be appropriate.’”) (quoting 29 U.S.C. § 2617(a)(1)(B)). However, in an Age Discrimination in Employment Act (“ADEA”) case,  an ADEA plaintiff  has a right to a jury trial on the issue of back pay, as well as any mitigation issues. See Lorillard v. Pons, 434 U.S. 575, 582-83 (1978) (characterizing this remedy as “legal”); Tamosaitis v. URS Inc., 781 F.3d 468, 485 (9th Cir. 2015) (discussing Lorillard).

Revised March 2025

            The plaintiff has a duty to use reasonable efforts to mitigate damages.  To mitigate means to avoid or reduce damages. 

            The defendant has the burden of proving by a preponderance of the evidence:

             First, that the plaintiff failed to use reasonable efforts to mitigate damages; and

             Second, the amount by which damages would have been mitigated. 

Comment 

            As to mitigation of damages in an action under the Age Discrimination in Employment Act, see Instruction 11.13 (Age Discrimination—Damages—Back Pay—Mitigation).

Revised March 2025

            [Any award for future economic damages must be for the present cash value of those damages.] 

            [Noneconomic damages [such as [pain and suffering] [disability] [disfigurement] [and] [specify other noneconomic damages]] are not reduced to present cash value.] 

            Present cash value means the sum of money needed now, which, when invested at a reasonable rate of return, will pay future damages at the times and in the amounts that you find the damages [will be incurred] [or] [would have been received]. 

            The rate of return to be applied in determining present cash value should be the interest that can reasonably be expected from safe investments that can be made by a person of ordinary prudence, who has ordinary financial experience and skill.  [You should also consider decreases in the value of money that may be caused by future inflation.] 

Comment 

            There must be evidence to support this instruction.  See Monessen Sw. Ry. Co. v. Morgan, 486 U.S. 330, 339-42 (1988); see also Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 508-09 (9th Cir. 2000).

            If you find for the plaintiff, you may, but are not required to, award punitive damages. The purposes of punitive damages are to punish a defendant and to deter similar acts in the future.  Punitive damages may not be awarded to compensate a plaintiff. 

            The plaintiff has the burden of proving by [a preponderance of the evidence] [clear and convincing evidence] that punitive damages should be awarded and, if so, the amount of any such damages. 

            You may award punitive damages only if you find that the defendant’s conduct that harmed the plaintiff was malicious, oppressive or in reckless disregard of the plaintiff’s rights.  Conduct is malicious if it is accompanied by ill will, or spite, or if it is for the purpose of injuring the plaintiff.  Conduct is in reckless disregard of the plaintiff’s rights if, under the circumstances, it reflects complete indifference to the plaintiff’s safety or rights, or if the defendant acts in the face of a perceived risk that its actions will violate the plaintiff’s rights under federal law.  An act or omission is oppressive if the defendant injures or damages or otherwise violates the rights of the plaintiff with unnecessary harshness or severity, such as by misusing or abusing authority or power or by taking advantage of some weakness or disability or misfortune of the plaintiff.

            If you find that punitive damages are appropriate, you must use reason in setting the amount.  Punitive damages, if any, should be in an amount sufficient to fulfill their purposes but should not reflect bias, prejudice, or sympathy toward any party.  In considering the amount of any punitive damages, consider the degree of reprehensibility of the defendant’s conduct [, including whether the conduct that harmed the plaintiff was particularly reprehensible because it also caused actual harm or posed a substantial risk of harm to people who are not parties to this case.  You may not, however, set the amount of any punitive damages in order to punish the defendant for harm to anyone other than the plaintiff in this case].  

            [In addition, you may consider the relationship of any award of punitive damages to any actual harm inflicted on the plaintiff.] 

            [Punitive damages may not be awarded against [specify defendant.]  [You may impose punitive damages against one or more of the defendants and not others and may award different amounts against different defendants.]  [Punitive damages may be awarded even if you award plaintiff only nominal, and not compensatory, damages.]

Comment 

            Punitive damages are not available in every case.  For example, punitive damages are not available against municipalities, counties or other governmental entities unless expressly authorized by statute.  City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 259-71 (1981); see also Daniel v. Nat’l Park Serv., 891 F.3d 762, 771 (9th Cir. 2018) (“There is a ‘presumption against the imposition of punitive damages on governmental entities.’”) (quoting Vt. Agency of Nat.Res.v.U.S.exrel.Stevens,529U.S.765,785(2000)).  Punitive damages may, however, be available against governmental employees acting in their individual capacities.  See Monell v. New York City Dept. of Soc. Services, 436 U.S. 658 (1978); City of Newport, 453 U.S. at 254.  In diversity cases, look to state law for an appropriate instruction.

            Whether and under what criterion punitive damages are available depends upon the substantive standards applicable to the underlying claim for relief, and, therefore, the third paragraph of this instruction should be modified accordingly. 

            As to Title VII claims, an employer may be liable for punitive damages when the employer “discriminate[s] in the face of a perceived risk that its actions will violate federal law.”  Passantino v. Johnson & Johnson Consumer Products, Inc., 212 F.3d 493, 515 (9th Cir. 2000) (citing Kolstad v. American Dental Ass’n., 527 U.S. 526, 536 (1999).  See also Caudle v. Bristol Optical Co., 224 F.3d 1014, 1026-27 (9th Cir. 2000).  Punitive and compensatory damages are subject to caps in Title VII cases.  See 42 U.S.C. § 1981a(b)(3); Arizona v. ASARCO LLC, 773 F.3d 1050 (9th Cir. 2014) (en banc) (analyzing constitutionality of punitive damages under § 1981(b) when only nominal damages are awarded). 

            As to § 1983 claims, “[i]t is well-established that a ‘jury may award punitive damages . . . either when a defendant’s conduct was driven by evil motive or intent, or when it involved a reckless or callous indifference to the constitutional rights of others.’”  Morgan v. Woessner, 997 F.2d 1244, 1255 (9th Cir. 1993).  In Dang v. Cross, the Ninth Circuit held this “statement of the law of punitive damages is incomplete, however.  The standard for punitive damages under § 1983 mirrors the standard for punitive damages under common law tort cases.  . . .   [M]alicious, wanton, or oppressive acts or omissions are within the boundaries of traditional tort standards for assessing punitive damages and foster ‘deterrence and punishment over and above that provided by compensatory awards.’  . . .  Such acts are therefore all proper predicates for punitive damages under § 1983.”  422 F.3d 800, 807 (9th Cir. 2005) (citing Smith v. Wade, 416 U.S. 30, 49 (1983)).  The Dang court held it was reversible error to decline to instruct that “oppressive acts” were an alternative basis for punitive damages in a § 1983 case. 

            Similarly, punitive damages claim arising under state law are subject to state law standards for recovery which should be reflected in a modified jury instruction.  See, e.g., Coughlin v. Tailhook Ass’n, 112 F.3d 1052, 1056 (9th Cir. 1997). 

            Further, punitive damages are not an available remedy on an unseaworthiness or Jones Act claims. Dutra Grp. v. Batteron, 588 U.S. 358 (2019) rev’g Batteron v. Dutra Grp., 880 F.3d 1089 (9th Cir. 2018) (no punitive damages on unseaworthiness claims); Evich v. Morris, 819 F.2d 256, 258 (9th Cir. 1987), abrogated by Dutra Grp. v. Batterton, 588 U.S. 358 (2019) (citing Kopczynskiv. The Jacqueline, 753 F.2d 555, 560-61 (9th Cir. 1984)) (no punitive damages on Jones Act claims).

            Whether punitive damages need to be proved by a preponderance of the evidence or clear and convincing evidence also depends on the standards applicable to the underlying claim for relief.  For example, several states in the Ninth Circuit require proof by clear and convincing evidence before punitive damages are awarded on a state law claim. See, e.g., White v. Ford Motor Co., 312 F.3d 998, 1011 (9th Cir. 2002) (applying Nevada’s clear and convincing standard).  On the other hand, a preponderance of the evidence standard has been upheld for punitive damages in certain federal claims.  See, e.g., In re Exxon Valdez, 270 F.3d 1215, 1232 (9th Cir. 2001) (holding that preponderance standard applied to punitive damages claim in maritime case, citing Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 23 n.11 (1991)). 

            If punitive damages are available and evidence of the defendant’s financial condition is offered in support of such damages, a limiting instruction may be appropriate.  See Instruction 1.11 (Evidence for Limited Purpose) and numbered paragraph (3) in Instruction 1.10 (What Is Not Evidence). 

            Regarding degree of reprehensibility and punitive damages generally, see Philip Morris USA v. Williams, 549 U.S. 346, 353-54 (2007), BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996), Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1 (1991); see also Morgan v. Woessner, 997 F.2d 1244, 1256 (9th Cir. 1993) (“Haslip said that instructions should be fashioned to describe the proper purposes of punitive damages so that the jury understands that punitive damages are not to compensate the plaintiff, but to punish the defendant and to deter the defendant and others from such conduct in the future.”).  See also White v. Ford Motor Co., 500 F.3d 963, 972 (9th Cir. 2007)(holding that trial court’s failure to give a “harm to nonparties” instruction violated due process and was reversible error after Williams).  Bracketed language in the fourth paragraph of the instruction addresses this requirement when evidence concerning harm to nonparties is admitted on the issue of degree of reprehensibility. 

            Regarding whether to instruct the jury concerning the relationship of any award of punitive damages to compensatory damages, the Ninth Circuit noted in White v. Ford Motor Co. that this inquiry “is markedly different from the jury’s determination of a specific amount of punitive damages; its purpose is to aid in ascertaining the constitutional ceiling.  Unlike the initial damage calculation, determining the constitutional ceiling on a punitive damage award is a question of law, properly reserved for the court.”  500 F.3d at 974 (emphasis in original).  The court also observed that, although “states are certainly free to incorporate the reasonable relationship concept into jury instructions, . . . it is also constitutionally permissible for a district court to delay the reasonable relationship inquiry until the judge’s post-verdict review.”  Id.  Because Nevada chose the latter course, it was not error in White for the district court to decline a “relationship inquiry” instruction.  Id. 

            Regarding the constitutional due process issues involved in the “relationship inquiry,” see State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425 (2003), referring to Gore and Haslip and stating that “[s]ingle-digit multipliers are more likely to comport with due process, while still achieving the State’s goals of deterrence and retribution, than awards with ratios in range of 500 to 1, or, in this case, of 145 to 1.”  In State Farm, the Court went on to say that “because there are no rigid benchmarks that a punitive damages award may not surpass, ratios greater than those we have previously upheld may comport with due process where ‘a particularly egregious act has resulted in only a small amount of economic damages.’” Id. (quoting Gore, 517 U.S. at 582.)  For an application of the State Farm ratio principles in the context of a 42 U.S.C. § 1981 case, see Bains LLC v. Arco Prods. Co., 405 F.3d 764, 774-77 (9th Cir. 2005).  But see Exxon Shipping Co. v. Baker,554 U.S. 471, 513 (2008) (applying federal maritime common law to conclude punitive damages could not exceed 1:1 ratio in maritime cases). 

Revised March 2025

            The law that applies to this case authorizes an award of nominal damages.  If you find for the plaintiff but you find that the plaintiff has failed to prove damages as defined in these instructions, you must award nominal damages.  Nominal damages may not exceed one dollar. 

Comment 

            Nominal damages are not available in every case.  The court must determine whether nominal damages are permitted.  See, e.g., Chew v. Gates, 27 F.3d 1432, 1437 (9th Cir. 1994) (Section 1983 action); Parton v. GTE North, Inc., 971 F.2d 150, 154 (8th Cir. 1992) (Title VII action). 

            When a plaintiff has indisputably suffered an actual injury, an award of compensatory damages is mandatory.  Hazle v. Crofoot,727 F.3d 983, 991-92 (9th Cir. 2013).  However, nominal damages “must be awarded in cases in which the plaintiff is not entitled to compensatory damages, such as cases in which no actual injury is incurred or can be proven.”  Id. at n.6. 

            Regarding cases brought under 42 U.S.C. § 1983, see Carey v. Piphus, 435 U.S. 247, 266-67 (1978) (involving violation of procedural due process); Hazle, 727 F.3d at 991 n.6 (involving violation of substantive constitutional rights); Floyd v. Laws, 929 F.2d 1390, 1401 n.9 (9th Cir. 1991) (providing suggested language).