Damages Final

The "LODESTAR" Method

Step 1: Calculate Base Amount: (attorney's base hourly rate x total number of hours) Step 2: Court's evaluate that base amount with reference to a number of very specific factors.

Loss Theory/Modern Approach

Whether the amount of debt is readily ascertainable is irrelevant; the important question is "whether the plaintiff has been deprived of the use of the money withheld and should be compensated for the loss

Future Inflation Adjustments

many courts take a variety of approaches when determining what method to use. Additionally, while many courts adjust for present value, some do not recognize the need for inflation adjustments and unrealistically assumed inflation-free economy. The US Supreme Court in Jones & Laughlin Steel Corp. v. Pfeifer determined that future inflation just as important as present value. The Court considered three different approaches

Certainty

most jurisdictions require that the plaintiff prove the amount of damages to a reasonable degree of certainty: some legally relevant proof from which a just and reasonable estimate of the damages amount can be made

Non-Pecuniary Losses

not easily determined before trial, such as pain & suffering, emotional distress. Examples: a. Pain/suffering - general b. Specific type of emotional distress - most likely special.

Special Damages

not presumed, must be always pleaded and proven. Under the Restatement, are compensatory damages for a harm other than one for which general damages are given. They are damages that actually flow from a tortious act and they must be proved in order to be recovered.

Non-Economic Damages

(e.g., "benefit of the bargain"; "diminution in value"; "fair market value")

Non-Ascertainable Damages

(e.g., medical bills; lost wages; property damage; versus "pain and suffering") CANNOT be determined WITHOUT the exercise of discretion by the trier of fact (jury). i. Jury has TOTAL Discretion

Lodestar Factors (Johnson v. Georgia Highway Express, Inc)

*(1) the time and labor required (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal services properly *(4) the preclusion of other employment by the attorney; (5) The customary fee; (6) whether the fee is fixed or contingent; (7) time limitation imposed by the client of the circumstances; *(8) the amount involved and the results obtained *(9) the experience, reputation, and the ability of the attorney * = Most important factors

Mitigation of Damages: Doctrine of Avoidable Consequences

- a person who sustains an injury as the result of the actionable conduct of another is ordinarily denied recovery for those items of 'special' damages that could have been avoided if the plaintiff had taken reasonable action to do so after sustaining the initial harm.

'Specials'

- important to distinguish this concept from special damages. They are not the same. Used in insurance issues and describes pecuniary out-of-pocket damages. Any expenses incurred by the party that can be reduced to a dollar amount in advance of a trial proceeding. Thus, would not include pain and suffering. Focus is not on the particular type (general or special) but rather on the existence of some pecuniary basis for computing an amount.

Buyer's Specific Performance under UCC § 2-716(1)

1. (Usually this means the buyer gets the goods that were the basis of the contract.) To qualify for this special remedy, the following conditions must be satisfied: a. The subject goods must be unique, so that neither the remedy of cover nor damages alone would adequately compensate the Buyer for the loss (remedy of cover is otherwise unavailable), OR b. Damages for breach (under UCC § 2-713) must be otherwise inadequate.

"Special Remedies" under UCC § 2-502(1)

1. - the buyer may seek Reclamation of specific goods from an insolvent seller. Unique remedy is only available if all specific requirements met: a. Buyer has paid "all or part of the price"; b. Goods have been identified to the contract; (Identified to contract - means that goods have been distinguished from general inventory in some way, boxed and labeled). c. Seller becomes insolvent within 10 days after receipt of first installment; AND d. Buyer remains ready and willing to tender the full purchase price upon receipt of the goods.

"Cover" under UCC § 2-712

1. - the difference between the actual (increased) cost of purchasing substitute goods and the contract price, together with incidental expenses and consequential losses, and less any expenses saved by not having to perform the contract. If Buyer buys replacement goods at lower price, there are no damages b/c saved money. There are specific qualifications to the recovery of 'cover' damages: a. Buyer must act in 'good faith' in seeking cover; b. "Cover" must be obtained without an unreasonable delay; and c. The Buyer's failure to effect 'cover' does not bar any other remedies that may be available to the Buyer.

Proving Pain and Suffering

1. Arguments: a. Per Diem (Tell the jury that "Plaintiff must receive ALL damages: past, present, future...must all be considered and calculated") b. Golden Rule Charts: (jurors asked to "place themselves in the position of the plaintiff" c. "Day in the life" videos for jury

Mitigation by Plaintiff Requires only "Reasonable Action"

1. Example of subjective standard used - the fact that reasonable measures other than the one taken would have avoided damages is not, in and of itself, proof of the fact that the one taken, though unsuccessful, was unreasonable. 2. Requires reasonable efforts made in good faith, doesn't have to be impracticable or financially disproportionate to the benefit sought, measured according to circumstances as they appear to P at the time of the accident or time for mitigation. 3. Standard is not as high as required in other areas of the law. 4. Defendant cannot complain that the plaintiff chose one of two reasonable possibilities, which turned out to be unsuccessful at mitigating damages. 5. No requirement that the mitigation must be successful.

PAST Earnings/ Future Earnings in General

1. In assessing loss of earnings, a plaintiff generally experiences DIFFERENT STAGES of LOSS. 2. Stage I: immediately following injury ---> likely TOTAL loss 3. Stage II: recovering, able to return to work at reduced activity level ---> possible pay reduction 4. Stage III: PERMANENT DISABILITY ASSESSMENT/ analysis of MAXIMUM RECOVERY ---> perm. Disability? Lost future wages.

Limitations on Pain & Suffering Damages

1. Most jurisdictions have imposed Statutory Ceiling Caps a. Note: They are NOT ordinarily applicable to general verdicts; but ONLY special verdicts. 2. Judicial Review a. "Shocking of the conscience" standard (was amount awarded so excessive that it "shocked the conscience?"). i. Subject to REMITTITURS

When does Pre-Judgment Interest Accrue?

1. New rule - at moment the cause of action accrues, the injured party was entitled to be left whole again and the amount later adjudicated as damages is immediately 'due' by language of statute. Court states that all damages (liquidated or unliquidated, pecuniary or non-pecuniary should carry interest from time the cause of action accrues).

Buyer's Consequential Losses under UCC § 2-715(2)

1. all reasonable post-breach losses AND ALSO specifically includes PERSONAL INJURY DAMAGES (this allows the UCC to be a force in products liability damages). Subject to following traditional common law limitations: a. The loss must result from the Buyer's "general or particular requirements and needs," (a "cause in fact" requirement); b. The seller must have had "reason to know" of such requirements (at the time of contracting)[Hadley v. Baxendale foreseeability requirement similar to proximate cause.]; c. The Buyer must make reasonable efforts to prevent such losses "by cover or otherwise." (similar to the obligation to mitigate damages).

Future Inflation Adjustments: "Total Offset" Method

1. assumes that the interest rate by which plaintiff's projected future earnings is reduced to present value will be exactly offset by the overall rate of future wage increases due not only to the effects of future inflation, but also a variety of other factors that may affect future wage growth. Under this method, the plaintiff's damage award is not reduced to present value.

Calculating Present Value

1. determining what the actual judgment amount is needed to fairly compensate the plaintiff in the present for the value of this entire future loss may be satisfied by the payment of a significantly smaller sum that will eventually grow into desired total judgment. a. The amount is called the present value, and can be calculated using a formula: (i) Pv = Fv x [1/(1 + i)n]; where (a) Pv = the present value of a future sum; (b) Fv = the future lump sum amount; (c) i = the future rate of interest (also known as the discount rate) (d) n = number of years. 2. What damage awards must be reduced - a. Losses that must be reduced to present value (i) All future pecuniary losses: future medicals, future lost earnings/earning capacity loss, future property expense b. PV does not apply to: (i) Future non-pecuniary losses: pain/suffering; disability; consortium; emotional distress; punitive damages (ii) All past loses (iii) All lump sum damage awards if at least some of the award is for punitive damages.

Buyer's Incidental Expenses under UCC § 2-715(1)

1. include all reasonable post-breach expenses incurred by the Buyer in attempting to mitigate damages, perfect remedies, or perform other duties imposed by the UCC, such as: a. Expenses incurred in inspecting non-conforming goods; b. Sales commissions and other "commercially reasonable charges" in effecting cover; c. Transportation and storage expenses in caring for rightfully rejected non-conforming goods; AND d. Other reasonable expenses incident to the seller's delay or breach.

Future Earnings or Earnings Capacity

1. often characterized as impairment of earning capacity. Unlike past earnings, plaintiff's earning capacity is regarded by most courts in a personal injury case as an element of general damages, with respect to an alleged permanently disabling injury. Focus will be on plaintiff's work life expectancy. a. Plaintiff may recover for this even if unemployed at time of accident. b. Based on what the plaintiff reasonably could have earned had the injury not occurred. c. Lost future earning capacity - The difference between the future earning capacity before accident and the future earning capacity after accident. d. May depend on variety of individual factors: (i) Type of work involved (ii) Plaintiff's age (iii) Condition of health (iv) Education, background and previous employment history. (v) Probabilities of future advancements or declines in earning capacity.

Future Earnings Capacity: Special Categories of Plaintiffs

1. several unique problems arise with respect to the following categories of plaintiffs: a. Infants / Youths - in these cases, prove what you can. Could use an IQ test, look at family history. As the child grows older could look to school grades, or sports or other accomplishment. b. Homemakers - could use several methods to try to estimate earning capacity: (i) Opportunity cost method - Same as above, must look to education, training, etc. Reasonable estimation of what other employment the homemaker could be doing if not working at home. (ii) Replacement cost approach - the cost of replacing all of the services that the spouse did. Price is determined at market value. Focus on lost earning capacity, so although homemaker, eventually was going to go outside of home to earn money. Defensive tactics - get what you pay for, if person was bad cook, didn't do good job of cleaning, maintenance, etc. then the value of service should be less. (iii) Subjective method - 'the best mom or dad in the world' approach. More difficult, but similar to placing value on intangible damages such as pain/suffering. c. Professionals - may be more difficult to determine what the actual lost earning capacity. Think lawyers, CEOs, etc. (i) May be especially difficult for profession that have certification requirement before one may practice that profession. Ex: Bar exam, medical exams, etc. In these cases it may be unlikely that a 3L law student would be able to recover damages for lost future earning capacity as an attorney. d. Retired people - focus on work life expectancy. These days, more retired people are back in the workforce, so could still be an issue.

Present Value of a Future Income Stream

1. the above present value calculations are somewhat unrealistic b/c it assumes that the person will invest the entire amount and not spend any of it over the length of time required. If the plaintiff were to remove any of the money, the final award would be less than the anticipated future loss. a. This method is still based on the present value of the plaintiff's entire future loss, but it specifically allows the plaintiff to make periodic withdrawals from the accruing fund on a regular basis throughout the future period of the anticipated loss. This way, the last withdrawal would exactly deplete the remaining fund. b. Method represents a more realistic way of compensating the plaintiff b/c it is awarded in the manner in which the money would have been received without injury. c. The amount awarded under the present value of a future income stream method will be significantly higher than the simple present value award, but less than the award if no present value calculation had been made.

Buyer's Damages for Total Breach under UCC § 2-713

1. the difference between the market price at the time when the buyer first learned of the seller's breach and the original contract price, together with incidental expenses and consequential losses, and less any expenses saved by not having to perform the contract. a. Market price - determined "as of the place of tender or, in cases of rejection after arrival or revocation of acceptance, as of the place of arrival." b. If market price is lower, then there are no damages.

Disability: Total Physical Disability

1. the impairment of a physical bodily function. Represents a separate and distinct element of the plaintiff's damages, which may be recovered in addition to compensation for impairment of earning capacity and pain and suffering. Besides physical injuries, could also include loss of some sensory, mental or other bodily function.

Future Inflation Adjustments: "Real Rate" Method

1. this method assumed an inflation-free economy and that the plaintiff's wages would increase due to various factors other than inflation. Once the rate of future growth for each individual plaintiff's wages has been determined, this gross figure is then adjusted to its present value using the 'real rate' of interest, which has not been affected by inflation. Effect is to entirely eliminate future inflation from calculation, but recognizing that other factors have an inflationary effect upon future earnings. a. Example: must first increase plaintiff's anticipated future earnings loss by a percent that represents the net amount wages are anticipated to grow due to social factors other than inflation. Next b. This amount must be reduced to its present value by discounting with only the 'real rate' of return on safe investments. c. Could also net out two 'real rate' adjustments, make only one adjustment, which would be to increase the original award by the netted out percent. d. Method can also be utilized even if anticipated rate of future earnings is less than overall rate of projected future price inflation: (i) Real rate of projected growth in P's personal future earnings is less than that which would be expected to keep pace w/ increases in general cost of living due to effects of future price inflation. (ii) The plaintiff's real rate of estimated personal future wage growth could actually be slower than the future wage increases for most other workers (b/c of industry-specific factors that are unique to P's situation.

Future Inflation Adjustments: "Inflation Reduction" Method

1. under this method the plaintiff's projected gross future earnings are first increased by the estimated rate of future inflation. This inflation-adjusted earnings figure is then reduced to its present value using the actual market rate of interest, which also reflects the current level of inflation throughout the entire economy. a. This way the effects of future inflation are incorporated into both sides of future earnings-present value calculation, to yield a result that considers the actual projected rate of future inflation as it effects future earnings increases as well as future market discount rates.

Disfigurement

A. - to be separately compensable as an element of plaintiff's damage award, disfigurement requires severe scarring, or physical deformity, or some other noticeable physical abnormality, such as an amputation or burns. Minor or temporary scars will not be compensable. 1. Different from normal pain and suffering resulting from ordinary physical injury. 2. If disfigurement results from the very nature of the injury itself, then damages may be recoverable without being specially pleaded. Otherwise, they are considered special damages. 3. To be separately recoverable, usually must be permanent. 4. Potential areas of overlap - if asking for disfigurement damages, could have future medical expenses (surgeries to deal w/ disfigurement). Future earning capacity & disfigurement - ex: if the injured person was a model. 5. Concept of mitigation - having the defendant pay for the plaintiff to have surgeries before trial, or buy clothes, or in any way mitigate the disfigurement. Will not be an admission of guilt or liability and if it is mentioned in any way before jury, will be a mistrial. Does the plaintiff have a duty to take up the offer of corrective surgery? Goes back to duty to mitigate damages, but if the surgery is major, the plaintiff has no duty to undergo surgery.

Prevailing Party - Hensley v. Eckerhart

A. Court addressed the issue of how to determine the prevailing party in order to award attorney's fees. 1. One formulation - success on a significant issue in litigation, which achieves some of the benefit the parties sought in bringing suit, entitles award of atty's fees regarding that issue. 2. Reasonable fees in relation to prevailing party that did not succeed on all claims. Most important factor in adjusting the fee is the 'results obtained'. Two questions: a. Did plaintiff fail to prevail on claims that were unrelated to the claims on which he succeeded? b. Did the plaintiff achieve a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award? 3. If great or total success, the amount of hours expended times the hourly rate may be sufficient or even need to be adjusted upwards to fully compensate. If limited or partial success, such calculations may be excessive if some hours were expended on unsuccessful claims. 4. Ex: if the plaintiff sought relief against the defendant on two distinct theories of liability and succeeded on one but not the other, the hours spent on the unsuccessful claim should not be considered when calculating the lodestar amount.

Goal of Compensatory Damages

A. Goal of comp damages may depend on the cause of action: 1. Tort - Trying to make the plaintiff whole 2. Contract - three competing goals: a. Expectancy interest - whatever each party expects to gain from the transaction. Most common measure is profit. (Seller); Buyer's interest is the goods. (i) Could consider the profit that would have been earned from a transaction as a general damage. (ii) Additional losses, such costs associated with finding new buyer or handling fee would be considered special damages. Although they are foreseeable and a direct result of breach, they will not necessarily occur as the result of every breach and are not considered general damages. b. Reliance interest - c. Restitution - breaching party has done wrong, a leveling of the playing field.

Adjustments to Personal Injury Damage Awards: Present Value Reductions

A. Present Value Reductions - any award of personal injury damages that includes components that represent a projection of the value of plaintiff's losses over some future period of time may actually overcompensate the plaintiff unless some downward adjustment is made in order to account for the potential for future growth inherent in any lump sum damage award. 1. Award should be adjusted based upon a reduction of the projected amount of plaintiff's loss to its present value. This amount if invested will grow into the desired future amount over the entire period of P's anticipated future loss. 2. Earning power of money over time - the concept of interest: a. Simple interest - assume that the entire amount of award is invested at this rate, still will be larger than anticipated original award. b. Compound interest - uses a more complex mathematical formula to calculate interest.

Damages for the Sale of Goods under the UCC

A. Remedies in a commercial sales transaction are governed by Article 2 of UCC. Basic remedial policy seeks to protect the aggrieved party's expectation interest.

Buyer's remedies for seller's NON-CONFORMING TENDER (defective performance) -

A. under UCC, the Buyer has a reasonable period of time after receipt of goods under a contract, within which to inspect them to determine their conformity to the terms of the contract. 1. Non-conforming tender could be: a. Defective quality b. Insufficient quantity c. Late tender d. Improper documentation 2. IF the Seller's non-conforming tender constitutes a material breach, then the Buyer may seek: a. Traditional remedies for Seller's NON-PERFORMANCE listed in A(1)(a-c) above. 3. OTHERWISE, the Buyer may seek additional non-performance remedies, which include: a. Rejection of non-conforming tender under UCC § 2-601; OR b. Revocation of acceptance under UCC § 2-608; PLUS c. Damages for breach of warranty under UCC § 2-714(2); PLUS d. Incidental expenses under UCC § 2-715(1) AND e. Consequential losses under UCC § 2-715(2).

Future Income Taxes

A. Section 104(a)(2) provides which components of personal injury damage awards may be included in a plaintiff's gross income. 1. Components not taxable as income: a. Any amount received on account of personal physical injuries or physical sickness. b. All of plaintiff's pecuniary and out-of-pocket losses sustained. c. Regardless of whether they represent past or even future losses. 2. Components included in taxable income - a. Any emotional distress damages, including emotional pain/suffering, loss of enjoyment, and loss of companionship. b. Punitive damages - included as gross income. (i) Alabama - § 104 expressly exempt 'wrongful death' damages in states where such awards have been judicially construed as 'punitive' in nature. c. If taxable, must be reported as income in the same year as the recovery, regardless of whether the award represents some future damage component or not. 3. Some question whether the jury should be informed that some components of personal injury damage awards are non-taxable. a. If not informed, concern that juries will improperly increase the amount for nonexistent effects of an erroneously perceived future tax liability. b. US Supreme Court has concluded that it is reversible error for such cautionary jury instruction to be refused. c. State courts not bound by ruling and most still decline to require a cautionary instruction.

Valuation of Personal Injury Cases: "Point Allocation" Method

A. compares plaintiff's case with the 'perfect' case based on certain 'key' factors which pertain to the determination of liability in personal injury cases. The perfect case is one in the same jurisdiction with similar facts that has the highest damage award and highest liability. Probably considered the best case. 1. Compare plaintiff's case against individual factors: a. Liability - worth up to 50 points b. Plaintiff's injury - worth up to 10 pts. c. P's age - 10 pts. d. P type - 10 pts. e. D type - 10pts. f. Out-of-pocket pecuniary expenses - 10 pts. 2. Most common method is some variation of Sindell Method - 50 points are allocated to determine degree of liability, with remaining fifty points allotted equally among each of five other variables (the ones listed above). a. The total number for your cases would be compared against the perfect case with a point total of 100. b. Degree of liability - for cases of near perfect liability, 50 points should be allotted. For cases with little or no potential for successfully establishing liability, few points would be allotted. If no party is favored, 25 points would be allotted. c. Plaintiff's injury - for extremely severe injuries, 6-10 points given, for slight injures 1-2 points given, moderate injuries 3-5 points awarded. d. P's age - for very young plaintiffs 10 points are awarded, while people over 66 only received 1 point. e. P & D type - for very sympathetic Ps a high number of points would be allotted and the same for very unsympathetic Ds. Reverse for opposite. f. Out-of-pocket - for expenses over $90,000 10 points for allotted. 3. Advantage - This method requires analysis of six specific factors that have been found to be determinative of the outcome of cases. 4. Disadvantages - never able to improve on the perfect case. Your case might be better than the perfect case.

Valuation of Personal Injury Cases: "Percentage Disability" Method

A. focuses on the percentage of disability the plaintiff has suffered. Represents the non-pecuniary loss. Method awards certain amount of money for each percentage point of disability. Take that amount and multiple by the percentage of disability. To that number add out-of-pocket pecuniary expenses. Must determine two factors: 1) the plaintiff's percent disability (remember to distinguish between disability to specific body part or to entire body 2) how much should each percentage point of disability be worth. 1. Sources for the dollar figure given to percentage point of liability - a. workers comp tables b. past cases in your jurisdiction. Take averages from the damage awards given in similar cases. Ex: if jury awarded $35,000 in general damages for 25% disability, each percentage point of liability was worth $1400. (35,000 divided by 25). In your case of 10% disability, could be worth $14,000. 2. Advantages - more accurate, jurisdiction specific, good for when there are specific types of injuries that are separately compensated. 3. Disadvantages - not very useful in cases involving multiple or complex injuries or where plaintiff has sustained little permanent disability.

Valuation of Personal Injury Cases: "x times specials" formula

A. in this formula 'specials' means all out of pocket pecuniary damages. 1. With pecuniary losses represented by the specials, the non-pecuniary losses are represented by the number (x), used to estimate subjective evaluation as to strength of case or estimate of liability. 2. Hypo: special equal $10,000 x specific number = total damage award. What does the total damage award represent? - All out of pocket losses (pecuniary) + non-pecuniary losses (p/s, disability, emotional distress). a. The question is how to determine the specific number used to multiple with the specials. With a high likelihood of liability, the number may be higher and with low probability might use a lower number. b. The number should represent an estimate of liability. On average, 2 or 3 is what will be offered in settlement. 3. Advantages to this method - very simple and easy to calculate 4. Disadvantages - arbitrary, inadequate compensation if out-of-pocket expenses low but still involves serious injury. Because of increased emphasis on non-pecuniary aspects of cases this method may be used less frequently.

Buyer's Remedies Against Seller

A. typically the seller will breach in one of two ways: either failing to make delivery of goods whatsoever (non-performance) or by tendering goods that do not materially conform to the parties' contract. (non-conforming) 1. Buyer's remedies for Seller's NON-PERFORMANCE (total breach) - Where seller commits a total breach of the parties' contract by repudiating the contract prior to the date set for performance or by failing to deliver the goods by the date set for performance, a. The Buyer may: (i) Cancel the contract; AND seek (ii) Restitution of "so much of the purchase price as has been paid" UCC § 2-711 (to restore Buyer to pre-contract position by returning any monies paid) b. In addition to (a)(i) & (ii) above, the Buyer may also pursue any ONE of the following additional specific remedies: (i) Cover under UCC § 2-712(1); OR (ii) Damages for total breach under UCC § 2-713; OR (iii) Buyer's special remedies under UCC § 2-502(1); OR (iv) Obtain specific performance of the contract under UCC § 2-716(1). c. One of the above remedies PLUS: (i) Incidental Expenses under UCC § 2-715(1) AND (ii) Consequential Losses under UCC § 2-715(2).

Unascertainable Damages

An amount that cannot be calculated or computed in advance of trial b/c its determination necessarily requires the exercise of some opinion or discretion that can only be supplied by the trier of fact. 1. Examples - lost future profits, physical and emotional pain and suffering, future medical expenses

Determining "General Damages"

Ask: Does every allegation of (whatever COA it may be) cause an automatic injury? If YES......... If the answer is NO, then not this type of damages ALWAYS

Attorney's Fees: "Early American Rule"

Attorney's fees awarded according to specific statutory fee schedule

Freund v. Washington Square Press

Author submitted manuscript to publisher under agreement that it was to be published. Publisher breached agreement and issue was what was a proper measure of damages. Plaintiff sued for specific performance and court rejected this remedy. a. Plaintiff also sought several additional damages: (i) Delay of academic promotion - Court rejected b/c facts indicated that professor had been promoted despite book not being published. (ii) Loss of royalties would have earned - Court denied as too speculative and (iii) Cost of publication if plaintiff had printed it himself - Trial court viewed this as appropriate measure of damages and awarded $10,000. b. On appeal, court finds that compensatory damages are meant as substitution for the performance of the contract. The injured party is not to recover more from the breach in damages than he would have received if the contract had been performed. Court finds that awarding cost of production would put plaintiff in better position than he would have been had book been published. Bears no relation to plaintiff's expectation interest, profit. c. Plaintiff received restitution, receipt of the manuscript in the possession of the publisher. d. Plaintiff suffered no reliance damages. e. Royalties - the true expectation interest could not be proven with required certainty. Plaintiff didn't expect the books themselves, just part of the profit, thus an award of the cost of production was a windfall to plaintiff. f. Damages are not measured by what the defaulting party saved by the breach, but by the natural and probable consequences of the breach to the plaintiff. g. Since no ascertainable damage amount, nominal damages proper award. Court reduced award to 6 cents.

Ascertainable Damages

Capable of OBJECTIVE determination WITHOUT the exercise of DISCRETION (on the part of the trier of fact)(typically will be pecuniary)

Lakota Girl Scout Council v. Harvey

Case involved breach of contract to assist in a fund-raising drive. Plaintiffs were asking for lost profits - what would they have made if defendants had not breached. 1. Court outlines three requirements in order to receive lost profits: a. Proof that some loss occurred b. That such loss flowed directly from the agreement breached and was foreseeable c. Proof of a rational basis from which the amount can be inferred or approximated 2. Court finds that plaintiffs satisfied these elements with the requisite degree of certainty. 3. Jury awarded $35,000

Court Costs

Costs that are NECESSARY for the litigation to proceed. (Administrative Fees and official costs DIRECTLY associated with the litigation)

Litigation Expenses

Costs that are NOT NECESSARY for the litigation to proceed. i.e., costs and expenses associated with litigation uniquely and separately incurred by each individual litigant (usually out-of-pocket)

Attorney's Fees: English Rule

Court awards attorney's fees to "prevailing party" by exercise of court's discretion.

Attorney's Fees: "Modern American Rule"

EACH party responsible for attorney's fees

Examples of General Damages

Examples Include: *Breach of Contract, the mere allegation of a breach of contract PRESUMES damage from the loss of whatever was not fulfilled by the terms of a contract) *Pain and Suffering (specifically in a Personal Injury case)

Seeking alternate employment - Indiana State Symphony Society v. Ziedonis A.

In the wrongful discharge context a plaintiff is under a duty to make reasonable efforts to find alternate employment (comparable job) as part of mitigation of damages. If alternate employment is found, usually plaintiff is entitled to receive the difference between amount earned in second job and what would have been earned in old job. See breach of employment contracts, infra. 1. P would have received $6,335 under the original terms of the contract. Goes to another city and earns $3,430. 2. D says that the additional money was earned in mitigation of original damages. 3. P says should not offset b/c these are gross earnings as replacement and P wants to deduct expenses from the gross amount. Expenses that were incurred that he would not have had to pay had there been no breach of original contract. 4. P still doesn't win on this argument, even though D has burden of proving mitigation. Court says info on expenses is uniquely within the control and possession of P and P should have burden of proving them.

Conventional Interest

Is fixed by the parties to a contract and is either expressed within the terms of the parties' agreement itself or is implied by law. 1. Any party who proves the breach of a contract to which conventional interest accrues is entitled to recover the accrued interest charges as a matter of right and as part of underlying contract. 2. Considered a general contractual damage - necessarily must arise in the event of any breach of parties' contract and is usually fixed in contract or by statute where contract is silent. 3. Doesn't need to be specially pleaded as 'special' damage.

Computing the Interest Rate: District of Columbia v. Pierce Associates

In this case the amount of damages are not in dispute and the major issue is the rate of interest that is to be charged for the pre-judgment interest. Problem is that there are two statutes that distinguish between liquidated and unliquidated claims. 1. P argues that rate should be market rate (15.99%), the rate of return had the money been in P's possession. D argues that the rate is set by statute at 6%. 2. § 15-109 - authorizes only post-judgment interest for breach of contract actions where amount in controversy is unliquidated. Pre-judgment interest usually unavailable involving unliquidated claims. 3. § 15-108 - mandates prejudgment interest for liquidated debts from the date the debt is due until the date it is paid. 4. Court finds that discretion allotted to trial court only extends to the 6% limit and no higher. 5. Under common law, prejudgment interest was viewed as a penalty to be imposed to punish the wrongdoer rather than compensation for the losses of creditor. This theory has given way to the 'loss' or unjust enrichment theory, which it views as another element of damages. Thus, focus is whether the P has been deprived of the use of the money and should be compensated for the loss. 6. When did debt become due?? Contract stated only upon final completion of the project and acceptance by the D.

Pre-Judgment Interest

Interest that is calculated from the time of accrual of the claimant's original cause of action until the date of judgment. Usually considered unliquidated. 1. Many jurisdictions have statutes that expressly permit the recovery of this damage. Usually specify rate, the time from which it is measured and is considered a general damage. 2. If no statute, pre-judgment interest must be specially pleaded. 3. Limitations - not allowed on any damage claim that is not ascertainable b/c always need a principal amount on which to calculate interest. Rationale - fact where a claim cannot be ascertained prior to the trial, the defendant should not be penalized by the additional payment of pre-judgment interest, since damages could not have been determined without a trial even if D had desired to settle pre-trial. a. Limited to awards based on actual damage amounts and not punitive damages.

Medical Care as Reasonable Action

Issue - is there a requirement that P must undergo 'major' surgical procedures as part of mitigating damages. a. A plaintiff is never under duty to undergo major surgical procedures, or when possibility of success is very low or chance of unsatisfactory results. 2. A plaintiff does have a duty to undergo minor surgery if it will mitigate damage or injury. Here court finds the required knee surgery to be minor and will offset plaintiff's damages accordingly. 3. Dispute may arise when trying to define major/minor surgery. Factors to consider: a. Likelihood of success b. Risk factors 4. Court uses a reasonable prudent person standard - would a RPP undergo this type of surgery.

Economic Damages

OBJECTIVELY measurable according to the standard economic formulas

Contingency Fee

P pays a fixed percentage of any recovery )less litigation expenses); and nothing if no recovery

Washington v. American Community Stores

Plaintiff was a recent college grad who at the time of the accident was working as a parole officer. But plaintiff was an outstanding wrestler who had an above average chance of going to the Olympics. Also had a good chance of becoming a coach. Plaintiff is requesting future earnings. 1. Is the request for damages to future earning capacity a general or special damages? a. Court finds that under state law, the impairment of future earning capacity is an item of general damage. This item of damage is distinct from of loss of wages, salary or loss of past wages - these are all special damages. 2. What type of evidence could be brought in to prove his lost earning capacity? a. Previous work experience and work ethic (assuming it is good ) b. Age, life expectancy, previous wrestling experience (proof of previous awards) c. Wrestling coach earnings. Experts: re salary of wrestling coaches

Penalty Theory

Pre-Judgment Interest MUST be ascertainable before it would be fair to punish the D for failing to pay it

Interest

a charge that is paid for the use or detention of money, or something of monetary value.

Roundhouse v. Owens-Illinois, Inc (Example of Money Paid by Government as a Collateral Source)

a fish farmer in a fish trade received diseased fish and sued the other operator. The state of Michigan ordered the plaintiff to destroy all fish received, but plaintiff applied to the state for compensation based on takings clause. State received money from federal govt and forwarded some of the money to the plaintiffs. Court finds that the rule applied and defendant could not have damages reduced: a. Source of funds was independent from the wrongdoer, and b. The state was not a party to the action

"Loss of Enjoyment" Damages

a. Can be a SUBSTITUTE for emotional Pain & Suffering VERY SPECIAL (provable) losses from hobbies, etc. that are UNIQUE to EACH individual P

Work Life Expectancy

a. D can argue should be measured to the point of likely RETIREMENT (not death) b. P should be prepared to provide evidence of earnings from end of work life to end of life. c. Most Courts use WORK LIFE EXPECTANCY. i. (Depends on Occupation) d. MOST ACCURATE FORMULA: WLE + LE = Total Lost Earnings (Determine (anything else occupational earnings) that can be PROVEN earned after retirement)

Consortium Damages

a. Emphasize Companionship, not Consortium i. Brought by the SPOUSE of the person who had a tort committed against them. ii. TORTFEASOR------------------------> VICTIM (impaired spouse)-----------------> a. DEPRIVED SPOUSE i. Derivative claim (majority) ii. Direct claim (minority) iii. Defense Argument: Mandatory JOINDER of claims iv. MODERN RULE: Includes both economic and non-economic losses. Re: Both spouses v. SPECIFIC COMPONENTS include: a. Love, companionship, society, affection (present in every claim of consortium) i. Mutual comfort and support ii. Emotional grief of deprived spouse iii. Changes in personality iv. BEST ARE: Long stable marriages b. Sexual relationships (may or may not be present in every case) i. INCLUDES: Actual impairment AND/OR diminished motivation (psychological) c. Economic services (at early common law) (may or may not be present) i. NOT allowed in majority of jurisdictions (at least not without proof of some actual economic value of services performed) ii. Possible examples? 1. Deprived spouse's services in attending to physical needs of impaired spouse 2. Visiting impaired spouse in hospital 3. Replacement for chores done by impaired spouse

Life Expectancy

a. Necessary to determine LOST FUTURE WAGES in cases of PERMANENT DISABILITY i. Note: Permanent disability NOT NECESSARY for FUTURE Lost Earnings, just a disability that lasts past trial ii. Even if P MAY fully recover, the TEST IS: What Plaintiff COULD HAVE earned, NOT what Plaintiff ACTUALLY EARNED. b. Courts can take "judicial notice" of codified mortality tables.

Limitations to Doctrine of Avoidable Consequences

a. Rule only applies to the recovery of special damages. b. Majority of jurisdictions do not apply rule when damages are caused by intentional or reckless torts of defendant, unless plaintiff's conduct in failing to avoid such consequences was also intentional or heedless. c. Limited when both parties have equal opportunity to reduce plaintiff's damages by the same act or expenditure. In this situation, plaintiff may not be required to even mitigate special damages, where defendant could have done so but didn't. d. If plaintiff received economic benefit, some jurisdictions allow that benefit to be offset against the amount of damages plaintiff will receive. Defendant never entitled to completely offset damages. (i) But benefit received must be to same interest: A, a surgeon, having been directed to examine but not to operate upon B's ear, performs an operation that is painful but that averts future pain and suffering. The diminution in future pain is a factor to be considered in determining the amount of damages for the pain caused by the operation, but A is not entitled to a complete offset and is still liable for the battery. (ii) No offset if benefit is to a separate and distinct interest from the one harmed: A tortiously imprisons B for two weeks. In an action brought by B for false imprisonment in which damages are claimed for pain, humiliation and physical harm, A is not entitled to mitigate damages by showing that at the end of the imprisonment B obtained large sums from newspapers for writing an account of the imprisonment.

Special Considerations affecting Present Value

a. Some jurisdictions have rejected all adjustment methodologies b/c of the potential uncertainties with respect to many of the factors involved. Courts reason that any gains from accrued interest on award will be offset by effects of future inflation. b. Most controversial aspect: Determining the proper rate of interest, or discount. Some jurisdictions allow the court, while others allow the jury to determine based on evidence. Others use the statutory rate of 'legal interest.' c. Another potentially controversial area could be the choice of tables used to determine award. Difference between a present value table & annuity table may result in different principal sums. Also: (i) Annuity tables usually include administrative costs which may not be involved in calculations based upon simple present value. (ii) The tables may differ with respect to accrual of simple or compound interest, mortality rate or work life expectancy. (iii) Mathematical 'rounding' errors can cause significant differences between tables.

Distinction between total and partial impairment of the plaintiff's body function. Courts sometimes use different methods to compare different types of injuries - Total Occupational Disability

a. an injury that prevents the plaintiff from engaging in any type of gainful employment whatsoever that could be classified as a total impairment of plaintiff's capacity for future employment. Damage award is calculated by relating the physical injury to a corresponding reduction in the ability to engage in employment. Damages are based upon plaintiff's percentage of occupational disability. (i) Must be careful b/c this element is inappropriate when plaintiff has already been awarded separate damages for the impairment of earning capacity. (ii) The amount of damages could depend on the type of employment. Ex: a highly educated professional artist who loses a hand may not be able to earn a living selling art, but might not be occupationally disable if he is able to perform other types of employment, like teaching. But, a low skilled, untrained laborer who is injured and can no longer perform physical labor may be classified as totally occupationally disabled although the injury may only be labeled partial.

Partial Physical Disability

a. may be recoverable as an element of damages regardless of whether the injury is classified as permanent or only temporary. (i) If classified as permanent, then damages are based on plaintiff's life expectancy, using standard mortality tables. But when determining life expectancy, courts may use other factors beside just the tables, including overall health condition, lifestyle or occupation.

1. Distinction between total and partial impairment of the plaintiff's body function. Courts sometimes use different methods to compare different types of injuries - Total or partial impairment to the 'body as a whole'

a. seen in workers comp schemes and statutes compare differing degrees of various physical impairments. (i) Partial physical disability - an injury that is less than 100% disabling to the body as a whole (ii) Example: loss of toe might represent only a 5% disability to the plaintiff's body as a whole, whereas the loss of an entire leg might reflect a loss of 50% to the body as a whole. (iii) Both of above injuries could be classified as total and permanent. However, under these schemes neither injury would likely be classified as total, but rather would be considered partial physical disabilities. In each case, the plaintiff would still be able to function physically, although at different extents, which would be represented in damage award.

Shortened Life Expectancy

a. when a physical disability can become so severe that it actually reduces the injured plaintiff's normally anticipated life expectancy. However, the majority of American jurisdictions DO NOT allow this as a separately recoverable element of damages. (i) Several reasons are given: (a) Any damages that might be calculated with reference to plaintiff's future life expectancy typically utilize the pre-injury expectancy value rather than shortened expectancy. (b) Too speculative (c) Duplicate other elements of damages: probably will recover for loss future earning capacity for the normal life expectancy and for other types of recovery based on full life expectancy or pain and suffering. (d) No loss can be calculated on basis of any measurable components. (ii) Although not separately recoverable could include within pain and suffering award. Seek damages not for actual shortened life expectancy, but for the emotional anxiety or worrying about the shortened life span.

Interest in a Contractual Context: Aries v. Palmer Johnson A.

action for breach of contract. Plaintiff was experienced real estate developer who contracted with defendant for the manufacture and purchase of a sailing yacht. P contracted w/ D for a specific delivery date prior to the America's Cup and D was aware of special requirements and assured P of correct delivery. Boat delivered 5 months late. P appeals failure to award pre-judgment interest. B/c delivered late, P incurred additional expenses. 1. Arizona allows pre-judgment interest as a matter of right on an ascertainable claim. 2. Court found that several of the compensatory damages where ascertainable and that pre-judgment interest was due to be paid.

Punitive Damages

also known as exemplary damages. They are monetary sums that are awarded to a plaintiff in addition to compensatory and other types of damages. Awarded for the sole purpose of punishing and/or deterring specific instances of particularly aggravated misconduct. Are permitted in virtually every American jurisdiction

Ascertainable Damages

an amount of damages capable of being made certain by calculation without reliance upon opinion or discretion. Although the actual amount of damages may be undetermined or even subject to disagreement between the parties, the method by which they may be calculated is still ascertainable

Judgment Interest

applicable to every type of litigated case. Interest that accrues on the amount of a final judgment or decree. Usually calculated on basis of simple interest.

Past Damages

are Ascertainable

Nominal Damages

damages awarded 'in name only' merely to satisfy a technical requirement of damages when an actual dollar amount has not been proven or is otherwise appropriate. Usually a trivial sum and are awarded to vindicate some legal right in favor of the prevailing litigant and are not meant to compensate. More properly classified as general damage.

Compensatory Damages

damages that compensate the plaintiff for injury, loss. Loss must be actionable. Goal of these may depend on the cause of action

Cohen v. J.C. Penny

example of standard slip and fall case. Court issued special verdict based on but listed the damages erroneously: Medical - $352.25, Wages - $656, General - $0. Problem - if there are no general damages (necessary) how can there be special damages? Trial court mistakenly thought that lost wages were a part of general damages. Why is this important? Cannot have special without general. Must always allege general damages, but don't always need to allege special. Court could have fixed special verdict by awarding at least one dollar in general damages. Special verdict - one that itemizes each individual component of P's damages, regardless of whether it is classified as special or general. Also cannot get punitive damages without underlying predicate of either compensatory or nominal damages. In this case, the Ds objected to the verdict, but Ps did not object and waived objections. Court affirmed faulty verdict only b/c the P did waive the objection.

Pain & Suffering Damages

i. Non-pecuniary (can't be readily ascertained) ii. NOT REDUCED to Present Value (P.V.) or adjusted for future inflation iii. REQUIREMENTS: 1. Consciousness Required iv. PAST (General) Damages a. Plaintiff is the best fit to testify v. FUTURE (Special Damages) a. Require Expert Testimony vi. TWO SEPARATE COMPONENTS: 1. PHYSIOLOGICAL PAIN 2. MENTAL/EMOTIONAL SUFFERING

FUTURE Medicals

i. Proof Required: Medical experts (witnesses) REQUIRED, etc. ii. Adjustments Required: REQUIRED for present value and FUTURE inflation. (Only for future PECUNIARY [money] losses) 1. Must be REASONABLY CERTAIN to OCCUR in the future 2. "Special" Damages a. Have to prove fact AND amount of damage 3. Requires DIFFERENT TYPES OF WITNESSES a. Medical: i. Certainty of future medicals ii. Doctor or medical professional b. ECONOMIC: i. COSTS of future medicals ii. Economic expert to show what costs will be, etc.

PAST Medicals

i. Proof Required: Ordinary lay witnesses, medical bills ii. Adjustments Required: NONE 1. Bills must be REASONABLY related to treatment (Compare "certainty" rules) 2. Use actual physical BILLS, etc. Typical Medical Expenses: 1. Doctor's Bills 2. Hospital Bills 3. X-Rays 4. Lab (and other testing) fees 5. Medications (Rx and over-the-counter) a. Note: Even over-the-counter expenses are useful to corroborate plaintiff's claims of pain or other monetary damages. "Pain and Suffering"

DeMendoza v. Huffman

issue was whether a state statute that allocates 60% of any punitive damage award to state's victim compensation account violates specific provisions of the state constitution. Court answered certified questions: a. Remedies clause - 'every man shall have a remedy by due course of law for injury done him in his person, property or reputation.' Dispute is whether a punitive damage award is a remedy that the state cannot interfere without providing an adequate substitute. Court determines that compensatory damages for injuries is the remedy protected and punitive damages with purpose of punishment or deterrence were not what was meant by the clause. Court reviews historical record of punitive damage awards: (i) Old English - could only recover compensatory damages for tangible injuries and punitive damages were awarded to compensate for intangible injuries resulting from egregious conduct. (ii) American courts merely expanded compensatory damages to cover intangible injuries and awarded punitive damages for punishment and deterrence. (iii) Early commentators disputed the purpose behind the award: (a) Greenleaf - objected and stated that stripped of any compensatory justification imposing punitive damage was an improper intrusion of public interest in private dispute. Awarding allowed society to vindicate its interest (punishment) in essentially a private action. Damages should given as compensation and the award should equal the exact amount of the injury suffered, whether to his person or estate. Concerned that punishment justification might expose defendant to double punishment, if still subject to criminal prosecution. (1) Suggests that cases cited in approval of 'punitive damages,' the court mischaracterized vindictive or exemplary damages. They refer to damages for mental anguish, personal indignity, insult or other injury, which court had mistakenly labeled punitive damages but really were compensatory damages for intangible injuries. (b) Sedgwick - thought the award okay b/c it did allow society's interest to be vindicated along with the private individuals. (c) Both agreed that awarding them was not necessary to vindicate the interest of the injured party and were not considered compensatory in nature but were meant to punish or deter the defendant for the benefit of society. Receipt of them was not considered an entitlement or right.

Pecuniary Losses

items that can be easily proven, such as medical expenses, lost wages, property damages: a. Medical expenses - special b. Property damage - general c. Lost wages - most likely special, depending on pleading could be general.

Causation

requirement that the plaintiff must establish an appropriate causal relationship between the defendant's conduct and the alleged harm before damages will be awarded. 1. Two components: a. Cause in fact - known as 'but-for' causation; requires an unbroken sequence between the defendant's actionable conduct and the plaintiff's subsequent injury. b. Proximate cause - (legal cause) requires the establishment of a legally acceptably degree of proximity between the two events.

General Damages

those which the law presume flows from any tortious act; they may be recovered without pleading the amount. Under Restatement, so common that they are normally to be anticipated to occur from the existence of the act and they need not be alleged in order to be proved. Classified as compensatory damages.

Future Damages

uncertain technically, but "reasonably certainty" allows for calculation of these damages

Collateral Source Rule

when benefits are received by an injured party from some source that is entirely separate and distinct from the party legally responsible for the particular injury, traditionally such amounts were not allowed to reduce the responsible party's liability for the payment of damages. Examples of collateral payments (most of the benefits the plaintiff has paid into a fund or P has directly contracted for the benefit: a. Medical & hospitalization insurance benefits b. Retirement benefits c. Worker's compensation benefits (unless defendant is employer) d. Social security e. Unemployment benefits f. Union benefits

When does a "taking" occur?

◆ (depends on the state) ● At filing suit ● Issue of summons ● Actual occupation by the state ● Etc.

➔ BASIC FORMULA FOR CALCULATING DAMAGES in Eminent Domain Cases:

◆ The fair market value of the property actually taken as determined at the time of taking

"Highest And Best Available Use"

◆ WE MUST ReDefine the term in the context of damages: ● The Value of the "HIGHEST AND BEST AVAILABLE USE" (and does NOT depend upon existing current uses) ○ Expert testimony usually required (real estate appraisers) ◆ But: ● The owner of the property can ALWAYS testify as an expert.....but still subject to cross-examination, so owner can be exposed as not knowing what the property is ACTUALLY worth, but rather what the owner is HOPING it's worth. ● LIMITATIONS: ○ Property must be adapted to any future uses (but deductions must be made re: cost of adapting property) ○ Use must be FEASIBLE (i.e. REASONABLE, considering nature of surrounding area and uses,etc.) ○ Includes ALL reasonable FUTURE uses: Special/Unique uses/ value (expert testimony usually REQUIRED) ◆ Strategic value, Scenic usage, Special adaptations

"Fair Market Value"

◆ What would a willing party pay in the marketplace? What is the best price a willing seller would get in the current market and what is a competitive price that a willing buyer would pay? (Assuming neither party would be under any compulsion to enter into the transaction) ● But we don't have a willing buyer or seller when calculating eminent domain damages

"Divided" Fee Rule:

○ Remember "fee Simple" (bundle of sticks). Legal and ownership interests in property may be divided. ○ If you want to sell the property, must "bundle ALL of the sticks" for absolute ownership in property to be able to sell in FEE SIMPLE. ○ RULE: Government MUST CALCULATE THE PROPERTY's VALUE at its full worth with all ownership interests.

◆ CONSEQUENTIAL DAMAGES OF CONDEMNATION:

● (usually NOT recoverable unless expressly authorized by statute..see page 455) ● Examples Include: ○ Loss of business "good will" ○ Lost profits caused by interruption of business (consider the "new business" rule and certainty issues) ○ Moving expenses to relocate ○ Increased costs to acquire substitute property ○ Depreciation of fixtures moved ● Other Incidental Expenses: ○ Recording fees ○ Transfer fees ○ Mortgage pre-payment penalties ○ Attorney's fees ◆ Landowner's duty to mitigate? ◆ ADMISSIBLE EVIDENCE: ● Recent fair market sales (i.e. Comparable sales) ● Unaccepted offers ● Rental value of the condemned property ● Income-producing value of the condemned property ● Assessed tax value ○ BUT NOT!: Recent condemnation jury verdicts ○ Recent condemnation settlements

◆ Examples of severance damages:

● 1) Reduced crop production (calculation: yield per acreage) ● 2) Loss of scenic view ● 3) Inconvenience unique to landowner

"Severance" (severed) Property

● Property that remains after the needed property was condemned. But by taking the condemned property, the owner's severed property is ALSO affected. Plaintiff can recover separate damages for his SEPARATE Property (condemnation vs. severance damages). ○ (Example: your house on your "severed" property is now 100 ft away from a loud government highway)

"RESULTING DAMAGES".

● What if there's a separate owner whose property is affected by the condemned owner's entire property? ○ THE OWNER OF THE ADJACENT PROPERTY has a cause of action against the state in the form of "RESULTING DAMAGES". ◆ They may ask to join in the condemned owner's lawsuit or bring their own suit. ○ (Difference in severance and resulting damages? SAME DAMAGES, DIFFERENT PARTIES AFFECTED) ● ^NOTE: THESE DAMAGES ONLY BEGIN TO accrue AFTER the date of the COMPLETION of the project.● Note: Severance and Resulting damages ONLY being at COMPLETION of project

Damages for Condemnation (Eminent Domain)

➔ Two Basic Issues involved: ◆ 1) Can the state "take" my property? ● YES ◆ 2) But they have to pay just compensation for it (per the Constitution) ● Note: In most states....a JURY TRIAL. Good for the Plaintiff! (Plaintiff is favored by jury rather than defendant as in most Damages cases i.e. "greedy plaintiff" not as much a factor) ➔ ISSUE: How do we calculate that monetary amount? ◆ This is the purpose of bringing this up re: "Damages"