Evidentiary — continued from Page 48
days trying to arrive at a figure that will justly compensate plaintiff for those dam- ages. As a matter of efficiency, instructing the jury that if they find for plaintiff they may award up to, but no more than, $250,000 makes perfect sense. However, defense counsel invariably
will file a motion in limine at trial to exclude reference to the cap. Defendant’s concern is practical. If a jury knows that the non-economic damages are capped, it may be more generous in awarding economic damages. Yet there is no case authority – one way or the other – that directly addresses the propriety of telling a jury it cannot award the plaintiff, or multiple plaintiffs in a wrongful death action, more than $250,000, regardless of the nature or extent of the injury. Defense counsel likely will cite the
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case of Marshall v. Brown (1983) 141 Cal.App.3d 408 392, in support of its motion in limine to keep the cap from the jury. In Marshall, defense counsel argued that the jury should be instructed that their damage award would be trebled under Labor Code sections 1050 and 1054, so as “to avoid an exaggerated finding of compensatory damages.” (Id., at p. 418.) The Court of Appeal dis- agreed, noting that “it was [not] the province of the jury to consider the statu- tory enhancement of actual damages.” (Ibid.) The court looked for guidance to how the federal courts handled this issue with respect to the Clayton Antitrust Act, which also has a treble damage provision and held: [I]t is not for the jury to determine
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50 — The Advocate Magazine FEBRUARY 2012
the amount of a judgment. Its function is to compute the amount of damages. Congress’s authorization in 14 U.S.C.A. § 15 to triple the award of damages is a matter of law to be applied by the district court without interference from the jury. The fact that the awarded amount will be tripled has no relevance in determin- ing the amount a plaintiff was injured by the antitrust violation.
(Id., citations omitted.) Marshall has never been cited in a
published opinion on this point of law in
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