2.34 MITIGATION OF ECONOMIC DAMAGES - FRONT PAY
Model Jury charge NJ
[Plaintiff] also seeks to recover earnings that will be lost in the future.
He/she has a right to be compensated for any earnings which you find will
probably be lost and proximately caused by the injuries brought about by
defendant's alleged wrongdoing.1 This type of damages is called “front pay.”
“Front pay” projects and measures the ongoing economic harm,
continuing after the final day of trial, which may be experienced by a plaintiff
who has been wrongfully discharged in violation of anti-discrimination laws.2
A plaintiff has the burden to prove all of his/her damages claims by a
preponderance of the evidence and that burden extends to front pay. Here,
[Plaintiff] must prove, by a preponderance of the evidence, (1) what s/he would
have earned had s/he not suffered the wrong allegedly committed by
[Defendant], (2) how long s/he would have continued to receive those earnings,
and (3) a reasonable likelihood that s/he will not be able to earn that amount in
the future, such as through alternative employment.3
As to the first element, what [Plaintiff] would have earned had s/he not
suffered the wrong allegedly committed by [Defendant], [Plaintiff] has the
1 Coll v. Sherry, 29 N.J. 166, 175 (1959)
2 Donelson v. DuPont Chambers Works, 206 N.J. 243, 251 n. 9 (2011); Quinlan v. Curtiss-
Wright Corp., 425 N.J.Super. 335, 350 (App. Div. 2012).
3 Quinlan v. Curtiss-Wright Corp., 425 N.J. Super. 335, 364 (App. Div. 2012).
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burden to prove, by a preponderance of the evidence, his/her gross income and
the probable loss of future earnings.4 In deciding what [Plaintiff's] future losses
are, the law does not require of you mathematical exactness. The law requires
that you must use sound judgment based on reasonable probability.5 Any award
of front pay, therefore, cannot be based upon speculation.6
As to the second element, how long s/he would have continued to receive
those earnings, you cannot automatically presume that [Plaintiff] would have
worked for [Defendant] for the remainder of his/her life if the alleged
discrimination [or other improper conduct] had not occurred, unless there are
facts or circumstances to warrant such a presumption. On the other hand, it is
equally illogical to presume that [Plaintiff], absent alleged discrimination [or
other improper conduct], would not have continued to work for [Defendant] for
some period of time after the date of trial, unless there are facts or circumstances
to warrant such a presumption.7
As to the third element, a reasonable likelihood that s/he will not be able
to earn that amount in the future, [Plaintiff] has the burden of proving that the
4 Caldwell v. Haynes, 136 N.J. 422, 436 (1994).
5 By analogy to future income loss in a wrongful death case, see Tenore v. NuCar Carriers,
Inc., 67 N.J. 466, 494 -495 (1975). See also Friedman v. C. S. Car Service, 108 N.J. 72, 78-
6 Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 375 (2011); Lane v. Oil
Delivery, Inc., 216 N.J. Super. 413, 420 (App.Div.1987); see also Model Jury Charge (Civil)
1.12(O), “Damages” (1998) (“Damages may not be based on conjecture or speculation”).
7 Quinlan v. Curtiss-Wright Corp., 425 N.J .Super. 335, 352 (App. Div. 2012).
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damages s/he claims were caused by [Defendant's] alleged unlawful
discrimination [or other wrongful conduct] are either permanent or will last for a
reasonably determinable time. You must take into consideration whether the
position with [Defendant] would have ended for an unrelated reason or
[Plaintiff] would have left the company on his/her own accord in the absence of
discrimination [or other wrongful conduct] or [Plaintiff] could earn more in the
future, through more diligent effort, than the earnings that s/he projects.8
As part of discharging its burden to prove [Plaintiff’s] failure to mitigate
his/her damages leading up to the time of trial, [Defendant] must present
credible evidence which leads you to believe that it is more likely than not that
[Plaintiff] failed to mitigate or minimize his/her damages. [Defendant] may
establish this by proving that it is more likely than not that (1) [Plaintiff] failed
to make reasonable efforts to secure comparable employment, and (2) other
employment opportunities were available that were comparable to the position
[Plaintiff] (lost/was denied).9 If you determine that [Defendant] has proven that
[Plaintiff] failed to undertake reasonable measures to mitigate her alleged back
pay damages and that there were comparable employment opportunities
available to [Plaintiff], then you should reduce the front pay damages by the
amount that you find that [Plaintiff] would have earned if plaintiff had used
8 Quinlan v. Curtiss-Wright Corp., 425 N.J. Super. 335 (App. Div. 2012)
9 Goodman v. London Metals Exchange, Inc., 86 N.J. 19, 41 (1981); Wade v. Kessler Inst.,
343 N.J. Super. 338, 355 (App. Div. 2001); see also Model Civil Jury Charge (Civil) 2.33,
“Mitigation of Economic Damages – Back Pay” (2013).
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reasonable measures to obtain the available replacement employment. 10
Because the future is uncertain and unknown, neither party must prove
that [Plaintiff] will or will not definitively mitigate his/her lost wages in the
future. 11 [Defendant] does not have the burden to prove the unknown, where the
unknown largely turns upon [Plaintiff's] own post-trial decisions and matters
substantially within his/her own volition and control.12 You must, therefore, use
your sound judgment to assess all of the evidence to determine the likelihood of
such mitigation throughout the future period of time during which [Plaintiff]
seeks to recover lost income.
If you decide from the evidence that it is reasonably probable that
[Plaintiff] will lose income in the future, because [either] he/she has not been
able to return to work, [or] he/she has not been able to keep the same job, [or]
he/she will be able to work for a shorter period of time only, then you should
include an amount to compensate for those lost earnings. In deciding how much
your verdict should be to cover future lost earnings, think about those facts
discussed regarding past earning losses, including the nature, extent and duration
of injury. Consider [Plaintiff's] age today, the level of [Plaintiff]’s former job
with [Defendant], the level of compensation that [Plaintiff] earned from
[Defendant], [Plaintiff]’s general state of health before his/her employment with
10 Quinlan v. Curtiss-Wright Corp., 425 N.J. Super. 335, 369 (App. Div. 2012).
11 Quinlan v. Curtiss-Wright Corp., 425 N.J. Super. 335, 369 (App. Div. 2012).
12 Quinlan v. Curtiss-Wright Corp., 425 N.J. Super. 335, 362 (App. Div. 2012).
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[Defendant] ended, how long you reasonably expect the loss of income to
continue, and how much [Plaintiff] can earn in any available job that he/she
physically will be able to work. Obviously, the older the plaintiff is, the higher
level the plaintiff’s job was, and the more the plaintiff earned, the longer it is
likely to take the plaintiff to find comparable replacement employment.
However, the time period covering [Plaintiff's] future lost earnings cannot go
beyond that point when it was expected that he/she would stop working because
of retirement, had he/she not been injured.13
If you decide from the evidence that [Plaintiff]’s employment with
[Defendant] would have ended at some point in the future for reasons other than
[Defendant]’s unlawful conduct, you should limit any award for future
economic losses to the date on which you find that [Plaintiff] would have
stopped working for [Defendant]. Similarly, if you find that by using reasonably
diligent measures, [Plaintiff] should have been able to find another job or that
[Plaintiff] should have been able to find a job earlier than s/he did or that
[Plaintiff] should have been able to find a higher-paying job than the one s/he
found, you should reduce any award for future economic losses by the amount
13 The collateral source rule (see cases under Model Civil Charge 8.11A applies to loss of
earnings as well as to medical and hospital expenses. Plaintiff may recover damages for loss
of earnings although having been paid wages or their equivalent by employer pursuant to sick
or annual leave benefits or retirement on half salary under a pension contract. Rusk v. Jeffries,
110 N.J.L. 307, 311 (E. & A. 1933). P.L. 1987, c. 326 eliminates the collateral source rule as
to causes of action arising on or after December 18, 1987. Deduction of benefits, less
premiums, is done by the court, not the jury. See also N.J.S.A. 59:9-2(3) for similar effect of
New Jersey Tort Claims Act.
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that you find that plaintiff would have earned if she had used reasonably diligent
measures to find comparable replacement employment.
Consider the probabilities of increases in earnings resulting from raises
for productivity or promotion and [Plaintiff's] life expectancy and work life
expectancy. Any figures you have heard on life expectancy and work life
expectancy are only statistical averages. They are not fixed rules; they are
general estimates. Use them with caution. Use your sound judgment in taking
them into account.14
A proper assessment of front pay requires sensitivity to the competing
interests of [Plaintiff], on the one hand, in being made whole and [Defendant],
on the other hand, in being spared the duty to subsidize a prospective windfall.15
However, if you are addressing damages, that means that you have found that
[Defendant] violated the law. In that regard, any uncertainties regarding the
amount of damages should be resolved against [Defendant] as the wrongdoing
14 This concept should be charged if there is appropriate evidence received on the subject.
See Charge 8.11G regarding life expectancy.
15 Quinlan v. Curtiss-Wright Corp., 425 N.J. Super. 335, 353 (App. Div. 2012).
16 V.A.L. Floors, Inc. v. Westminster Communities, Inc., 355 N.J. Super. 416, 427 (App. Div.