CACI 3905A is the California Civil Jury Instruction that tells jurors how to award noneconomic damages in a personal injury case. When a trial reaches the damages phase, the judge reads this instruction to spell out which types of non-financial harm the jury may compensate and how to decide on a dollar amount. The short version: the jury picks the number, guided by the evidence and common sense, with no formula to lean on.
What the Instruction Tells Jurors
The heart of CACI 3905A is a sentence that often surprises people new to civil litigation: “No fixed standard exists for deciding the amount of these noneconomic damages. You must use your judgment to decide a reasonable amount based on the evidence and your common sense.”1Justia. CACI No. 3905A Physical Pain, Mental Suffering, and Emotional Distress (Noneconomic Damage) There is no multiplier, no chart, and no benchmark from prior cases. The jury gets the trial record and their collective judgment, and that is it.
When future harm is in play, the instruction adds one technical rule. Jurors calculate future noneconomic damages in current dollars as of the date of judgment, and they do not reduce the figure to present cash value the way they would for future lost wages or medical bills. Discounting pain and suffering would treat it like an investment, which it is not.
Categories of Harm the Jury Can Compensate
The instruction lists specific types of harm. The judge selects the categories that match what the plaintiff has pleaded and proven, so not every trial includes every item. The recognized categories are physical pain, mental suffering, emotional distress, loss of enjoyment of life, disfigurement, physical impairment, inconvenience, grief, anxiety, and humiliation. The judge can add other categories of noneconomic harm when the evidence supports them.1Justia. CACI No. 3905A Physical Pain, Mental Suffering, and Emotional Distress (Noneconomic Damage) Each category can cover past harm, future harm, or both.
How the Jury Arrives at a Dollar Amount
The lack of a formula is the single most important thing to understand about this area of California law. Jurors do not get a calculator or a per-diem suggestion from the bench. They weigh the testimony, the medical records, and the overall picture of how the injury changed the plaintiff’s life, then settle on a number they consider reasonable.
In practice, both sides try to anchor the jury’s thinking. Plaintiff’s counsel may propose a daily dollar value for pain and multiply it across the plaintiff’s remaining life expectancy. Defense counsel will argue the figure is inflated. The jury is free to reject both numbers. What the instruction forbids is speculation and raw sympathy. A juror who picks a large number simply because they feel bad for the plaintiff is not following CACI 3905A. The award must track the evidence.
Proving Future Pain and Suffering
Recovering for future noneconomic harm requires more than a plaintiff’s belief that pain will continue. The future harm must be “reasonably certain” to occur. That standard does not demand absolute proof, but it rules out speculation and even bare probability. Courts describe it as a degree of likelihood strong enough that guesswork plays no role in the conclusion.1Justia. CACI No. 3905A Physical Pain, Mental Suffering, and Emotional Distress (Noneconomic Damage)
Expert testimony usually carries the weight here. A treating physician who testifies that a spinal injury will cause chronic pain for the rest of the plaintiff’s life provides the foundation the standard requires. A plaintiff’s own prediction of future pain, with no medical support, generally does not.
Evidence That Supports a Noneconomic Award
Because these damages are subjective, the quality of the supporting evidence drives the result. Medical records document the injury’s nature, the treatment course, and the prognosis. Records from mental health providers matter especially for emotional distress or anxiety claims, since they show the plaintiff sought professional help.
Personal documentation fills gaps that clinical charts leave open. A daily journal recording pain levels, sleep disruption, missed activities, and emotional lows gives the jury a window into the plaintiff’s actual experience. Family members and close friends can describe changes they observed firsthand, like a once-active parent who no longer picks up their child, or a social person who has pulled away from friendships.
Photographs of scarring over time, or video of the plaintiff’s daily routine with physical limitations, often communicate suffering more effectively than words. The goal across every category is the same: give the jury concrete, believable details that turn an abstract claim into something they can see and quantify.
Limits That Can Shrink or Erase the Award
California does not cap noneconomic damages in most personal injury cases. A jury can award whatever it finds reasonable. But several rules can reduce, allocate, or wipe out that award.
Comparative Fault
California uses pure comparative negligence. Your share of fault reduces your recovery dollar-for-dollar and never eliminates it. A $500,000 noneconomic award drops to $400,000 if the jury finds you 20 percent at fault, and to $100,000 if you were 80 percent at fault. The reduction applies to noneconomic damages the same way it applies to economic damages.
Multiple Defendants and Proposition 51
When more than one defendant is responsible, Civil Code section 1431.2 makes each defendant’s liability for noneconomic damages several only. Each pays only the share that matches their percentage of fault.2California Legislative Information. California Code CIV 1431.2 – Several Liability for Non-economic Damages On a $300,000 noneconomic award with Defendant A at 60 percent fault and Defendant B at 40 percent, A pays $180,000 and B pays $120,000. If B has no assets, the plaintiff absorbs the shortfall. For economic damages, by contrast, California keeps joint and several liability, so any at-fault defendant can be made to cover the full economic award.
MICRA Cap on Medical Malpractice
The Medical Injury Compensation Reform Act, codified in Civil Code section 3333.2, caps noneconomic damages in healthcare negligence cases. The caps started at $350,000 for non-death cases and $500,000 for wrongful death cases on January 1, 2023, and they increase annually.3California Legislative Information. California Code CIV 3333.2 – Professional Negligence For 2026, the cap is $470,000 for non-death cases and $650,000 for wrongful death cases. The schedule continues until the caps reach $750,000 and $1,000,000 in 2033. The cap applies per plaintiff to each group of affiliated healthcare providers or institutions, so unaffiliated providers at separate facilities can each face a separate cap.
Comparative fault and the MICRA cap stack. The cap sets the ceiling first, and comparative fault then reduces whatever amount the plaintiff would otherwise collect from that ceiling.
Proposition 213 Bar
Civil Code section 3333.4, enacted by Proposition 213 in 1996, bars certain people from recovering any noneconomic damages in motor vehicle cases. The bar applies if you were driving under the influence and were convicted of the offense, if you owned the vehicle and it lacked the insurance California requires, or if you were operating the vehicle and cannot show you met the state’s financial responsibility requirements. One exception: an uninsured owner can still recover noneconomic damages if the other driver was convicted of DUI.4California Legislative Information. California Code CIV 3333.4 – Damages for Wrongs
Judicial Review for Excessive Awards
Even without a statutory cap, a jury’s award is not untouchable. Under Code of Civil Procedure section 657, a trial court can grant a new trial if the damages are “excessive.” Judges do not substitute their own preferences; they intervene only when the award is so far out of line with the evidence that it reflects passion, prejudice, or some other improper influence. In practice the court often offers the plaintiff a choice between accepting a reduced amount (a remittitur) and retrying damages. Appellate courts can also review the award, but they give substantial deference to the trial judge’s read of the record.
How the IRS Treats a Noneconomic Damage Award
Tax treatment turns on whether the underlying claim involves a physical injury. Damages received on account of personal physical injuries or physical sickness are excluded from gross income, and the exclusion covers both the economic and noneconomic components of the recovery.5Office of the Law Revision Counsel. 26 USC 104 – Compensation for Injuries or Sickness A noneconomic award for pain and suffering tied to a car crash that broke your leg is not taxed as federal income.
The rule flips when the claim is for emotional distress unconnected to a physical injury. Damages for emotional distress alone, such as those in an employment discrimination case, are taxable. The statute is explicit that emotional distress is not treated as a physical injury or physical sickness.5Office of the Law Revision Counsel. 26 USC 104 – Compensation for Injuries or Sickness You can still exclude the portion of such an award that reimburses medical expenses paid to treat the distress, as long as you did not previously deduct those expenses. Punitive damages are always taxable, even when awarded alongside tax-free compensatory damages.6Internal Revenue Service. Settlement Income