8.4.5 ADEA Damages Nominal Damages — Model If you return a verdict for [plaintiff], but [plaintiff] has failed to prove actual injury and therefore is not entitled to damages, then you must award nominal damages of $ 1.00. A person whose federal rights were violated is entitled to a recognition of that violation, even if [he] suffered no compensable injury. Nominal damages (of $1.00) are designed to acknowledge the deprivation of a federal right, even where no compensable injury occurred. However, if you find compensable injury, you must award damages for lost wages or benefits (as I instructed you), rather than nominal damages. Comment There is no Third Circuit case law on the availability of nominal damages in an ADEA case. But it appears that an award of nominal damages in an ADEA action might be justified in an extraordinary case, and so a pattern instruction is provided. The Eighth Circuit Committee Comment on a nominal damage instruction in an ADEA case opines that damages “[n]ominal normally are not appropriate in ADEA and explains as follows: cases” Recoverable damages in ADEA cases normally are limited to lost wages and benefits and in most ADEA cases, it will be undisputed that the plaintiff has some actual damages. Although case law does not clearly authorize this remedy in age discrimination cases, a nominal damage instruction may be considered in appropriate cases, and Model Instruction 5.02B, supra, should be used. Most cases that allow nominal damages just assume they are permissible without much discussion of the issue. See e.g., Drez v. E.R. 674 F. Supp. 1432, 1438 (D. Kan. 1987) (ADEA); Squibb & Sons, Inc., Graefenhain v. 670 F. Supp. 1415, 1416 (E.D. Wis. 1987) (ADEA). Pabst Brewing Co.,
8.4.5 ADEA Damages — Nominal Damages Model If you return a verdict for [plaintiff], but [plaintiff] has failed to prove actual injury and therefore is not entitled to damages, then you must award nominal damages of $ 1.00. A person whose federal rights were violated is entitled to a recognition of that violation, even if [he] suffered no compensable injury. Nominal damages (of $1.00) are designed to acknowledge the deprivation of a federal right, even where no compensable injury occurred. However, if you find compensable injury, you must award damages for lost wages or benefits (as I instructed you), rather than nominal damages. Comment There is no Third Circuit case law on the availability of nominal damages in an ADEA case. But it appears that an award of nominal damages in an ADEA action might be justified in an extraordinary case, and so a pattern instruction is provided. The Eighth Circuit Committee Comment on a nominal damage instruction in an ADEA case opines that “[n]ominal damages normally are not appropriate in ADEA cases” and explains as follows: Recoverable damages in ADEA cases normally are limited to lost wages and benefits and in most ADEA cases, it will be undisputed that the plaintiff has some actual damages. Although case law does not clearly authorize this remedy in age discrimination cases, a nominal damage instruction may be considered in appropriate cases, and Model Instruction 5.02B, supra, should be used. Most cases that allow nominal damages just assume they are permissible without much discussion of the issue. See e.g., Drez v. E.R. Squibb & Sons, Inc., 674 F. Supp. 1432, 1438 (D. Kan. 1987) (ADEA); Graefenhain v. Pabst Brewing Co., 670 F. Supp. 1415, 1416 (E.D. Wis. 1987) (ADEA).
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