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9 PJI 4.1 | Third Circuit (US)
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9 PJI 4.1 | ADA | COMPENSATORY DAMAGES — GENERAL INSTRUCTION

I am now going to instruct you on damages. Just because I am instructing you on how to award damages does not mean that I have any opinion on whether or not [defendant] should be held liable.

If you find by a preponderance of the evidence that [defendant] violated [plaintiff’s] rights under the ADA by [describe conduct], then you must consider the issue of compensatory damages. You must award [plaintiff] an amount that will fairly compensate [him/her] for any injury [he/she] actually sustained as a result of [defendant’s] conduct. The damages that you award must be fair compensation, no more and no less. The award of compensatory damages is meant to put [plaintiff] in the position [he/she] would have occupied if the discrimination had not occurred. [Plaintiff] has the burden of proving damages by a preponderance of the evidence.

[Plaintiff] must show that the injury would not have occurred without [defendant’s] act [or omission]. Plaintiff must also show that [defendant’s] act [or omission] played a substantial part in bringing about the injury, and that the injury was either a direct result or a reasonably probable consequence of [defendant’s] act [or omission]. This test — a substantial part in bringing about the injury — is to be distinguished from the test you must employ in determining whether [defendant’s] actions [or omissions] were motivated by discrimination. In other words, even assuming that [defendant’s] actions [or omissions] were motivated by discrimination, [plaintiff] is not entitled to damages for an injury unless [defendant’s] discriminatory actions actually played a substantial part in bringing about that injury.

[There can be more than one cause of an injury. To find that [defendant’s] act [or omission] caused [plaintiff]’s injury, you need not find that [defendant’s] act [or omission] was the nearest cause, either in time or space. However, if [plaintiff’s] injury was caused by a later, independent event that intervened between [defendant’s] act [or omission] and [plaintiff]’s injury, [defendant] is not liable unless the injury was reasonably foreseeable by [defendant].]

In determining the amount of any damages that you decide to award, you should be guided by common sense. You must use sound judgment in fixing an award of damages, drawing reasonable inferences from the facts in evidence. You may not award damages based on sympathy, speculation, or guesswork.

You may award damages for any pain, suffering, inconvenience, mental anguish, or loss of enjoyment of life that [plaintiff] experienced as a consequence of [defendant's] [allegedly unlawful act or omission]. No evidence of the monetary value of such intangible things as pain and suffering has been, or need be, introduced into evidence. There is no exact standard for fixing the compensation to be awarded for these elements of damage. Any award you make should be fair in light of the evidence presented at the trial.

I instruct you that in awarding compensatory damages, you are not to award damages for the amount of wages that [plaintiff] would have earned, either in the past or in the future, if [he/she] had continued in employment with [defendant]. These elements of recovery of wages that [plaintiff] would have received from [defendant] are called “back pay” and “front pay”. [Under the applicable law, the determination of “back pay” and “front pay” is for the court.] [“Back pay” and “front pay” are to be awarded separately under instructions that I will soon give you, and any amounts for “back pay” and “front pay” are to be entered separately on the verdict form.]

You may award damages for monetary losses that [plaintiff] may suffer in the future as a result of [defendant’s] [allegedly unlawful act or omission]. [For example, you may award damages for loss of earnings resulting from any harm to [plaintiff’s] reputation that was suffered as a result of [defendant’s] [allegedly unlawful act or omission]. Where a victim of discrimination has been terminated by an employer, and has sued that employer for discrimination, [he/she] may find it more difficult to be employed in the future, or may have to take a job that pays less than if the act of discrimination had not occurred. That element of damages is distinct from the amount of wages [plaintiff] would have earned in the future from [defendant] if [he/she] had retained the job.]

As I instructed you previously, [plaintiff] has the burden of proving damages by a preponderance of the evidence. But the law does not require that [plaintiff] prove the amount of [his/her] losses with mathematical precision; it requires only as much definiteness and accuracy as circumstances permit.

[You are instructed that [plaintiff] has a duty under the law to "mitigate" [his/her] damages -- that means that [plaintiff] must take advantage of any reasonable opportunity that may have existed under the circumstances to reduce or minimize the loss or damage caused by [defendant]. It is [defendant's] burden to prove that [plaintiff] has failed to mitigate. So if [defendant] persuades you by a preponderance of the evidence that [plaintiff] failed to take advantage of an opportunity that was reasonably available to [him/her], then you must reduce the amount of [plaintiff’s] damages by the amount that could have been reasonably obtained if [he/she] had taken advantage of such an opportunity.]

[In assessing damages, you must not consider attorney fees or the costs of litigating this case. Attorney fees and costs, if relevant at all, are for the court and not the jury to determine. Therefore, attorney fees and costs should play no part in your calculation of any damages.]

COMMENT ADA remedies are the same as provided in Title VII. The enforcement provision of the ADA, 42 U.S.C. § 12117, specifically provides for the same recovery in ADA actions as in Title VII actions: “The powers, remedies and procedures set forth in... [42 U.S.C. § 2000e-5, the Title VII remedies provision] shall be the powers, remedies and procedures this title provides to... any person alleging discrimination on the basis of disability in violation of any provision of this Act... concerning employment.” Accordingly, this instruction on compensatory damages is substantively identical to that provided for Title VII actions. See Instruction 5.4.1.

For a discussion of the standards applicable to an award of emotional distress damages under the ADA, see Gagliardo v. Connaught Laboratories, Inc., 311 F.3d 565, 573 (3d Cir. 2002) (“To recover emotional damages a plaintiff must show a reasonable probability rather than a mere possibility that damages due to emotional distress were in fact incurred as a result of an unlawful act.").

Back pay and front pay are equitable remedies that are to be distinguished from the compensatory damages to be determined by the jury under Title VII and therefore under the ADA. See the Comments to Instructions 5.4.3-5.4.4. Compensatory damages may include lost future earnings over and above the front pay award. For example, the plaintiff may recover the diminution in expected earnings in all future jobs due to reputational or other injuries, independently of any front pay award. See the Comment to Instruction 5.4.1 for a more complete discussion.

The pattern instruction contains bracketed material that would instruct the jury not to award back pay or front pay. The jury may, however, enter an award of back pay and front pay as advisory, or by consent of the parties. In those circumstances, the court should refer to instructions 9.4.3 for back pay and 9.4.4 for front pay. In many cases it is commonplace for back pay issues to be submitted to the jury. The court may think it prudent to consult with counsel on whether the issues of back pay or front pay should be submitted to the jury (on either an advisory or stipulated basis) or are to be left to the court’s determination without reference to the jury.

In Gunby v. Pennsylvania Elec. Co., 840 F.2d 1108, 1121-22 (3d Cir. 1988), the Court held that under 42 U.S.C. § 1981 and Title VII, a plaintiff cannot recover pain and suffering damages without first presenting evidence of actual injury. The court stated that “[t]he justifications that support presumed damages in defamation cases do not apply in § 1981 and Title VII cases. Damages do not follow of course in § 1981 and Title VII cases and are easier to prove when they do.” Because ADA damages awards are subject to the same strictures applicable to Title VII, the limitations set forth in Gunby apply to recovery of pain and suffering damages under the ADA as well.

Damages in ADA Retaliation Cases

At least one court in the Third Circuit has held that a plaintiff’s recovery for retaliation under the ADA is limited to equitable relief. See Sabbrese v. Lowe’s Home Centers, Inc., 320 F. Supp. 2d 311, 331 (W.D. Pa. 2004). The Sabbrese court relied on the Seventh Circuit’s analysis in Kramer v. Banc of America Securities LLC, 355 F.3d 961 (7th Cir. 2004). The Seventh Circuit parsed the 1991 Civil Rights Act and found that while it provided for damages in ADA discrimination and accommodation cases, it made no similar provision for ADA retaliation cases. The Third Circuit has not decided whether damages are available in ADA retaliation cases. See the discussion in the Comment to Instruction 9.1.7.

Attorney Fees and Costs

There appears to be no uniform practice regarding the use of an instruction that warns the jury against speculation on attorney fees and costs. In Collins v. Alco Parking Corp., 448 F.3d 652 (3d Cir. 2006), the district court gave the following instruction: “You are instructed that if plaintiff wins on his claim, he may be entitled to an award of attorney fees and costs over and above what you award as damages. It is my duty to decide whether to award attorney fees and costs, and if so, how much. Therefore, attorney fees and costs should play no part in your calculation of any damages.” Id. at 656-57. The Court of Appeals held that the plaintiff had not properly objected to the instruction, and, reviewing for plain error, found none: “We need not and do not decide now whether a district court commits error by informing a jury about the availability of attorney fees in an ADEA case. Assuming arguendo that an error occurred, such error is not plain, for two reasons.” Id. at 657. First, “it is not ‘obvious’ or ‘plain’ that an instruction directing the jury not to consider attorney fees” is irrelevant or prejudicial; “it is at least arguable that a jury tasked with computing damages might, absent information that the Court has discretion to award attorney fees at a later stage, seek to compensate a sympathetic plaintiff for the expense of litigation.” Id. Second, it is implausible “that the jury, in order to eliminate the chance that Collins might be awarded attorney fees, took the disproportionate step of returning a verdict against him even though it believed he was the victim of age discrimination, notwithstanding the District Court's clear instructions to the contrary.” Id.; see also id. at 658 (distinguishing Fisher v. City of Memphis, 234 F.3d 312, 319 (6th Cir. 2000), and Brooks v. Cook, 938 F.2d 1048, 1051 (9th Cir. 1991)).

(Last Updated July 2019)

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Please get the justice you deserve.

Sincerely,



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