CACI 3905 is the California civil jury instruction that tells the judge to insert the specific categories of noneconomic damages a plaintiff is claiming. On its own it is a short framework, not a detailed guide. The substance sits in its companion instructions, above all CACI 3905A, which lists the categories of harm the jury may consider and explains how to value them without any fixed formula.1Justia. CACI 3905 – Items of Noneconomic Damage
How CACI 3905 Fits With 3905A
Think of 3905 as a container. Its text directs the judge to insert whichever specific noneconomic damage instructions apply to the plaintiff’s claims. If the plaintiff claims physical pain and mental suffering, the judge inserts CACI 3905A. If the case involves a death, CACI 3921 supplies a different set of categories aimed at the survivors’ losses rather than the decedent’s suffering.2Justia. CACI 3921 – Wrongful Death (Death of an Adult) – Damages Lawyers and clients often say “CACI 3905” as shorthand for the entire family of noneconomic instructions, and that shorthand is fine so long as you know that the language actually read to a personal injury jury is almost always 3905A.3Justia. CACI 3905A – Physical Pain, Mental Suffering, and Emotional Distress (Noneconomic Damage)
What Kinds of Harm the Jury Can Consider
CACI 3905A permits the jury to weigh a broad range of harm: physical pain, mental suffering, loss of enjoyment of life, disfigurement, physical impairment, inconvenience, grief, anxiety, humiliation, and emotional distress.3Justia. CACI 3905A – Physical Pain, Mental Suffering, and Emotional Distress (Noneconomic Damage) The instruction also leaves room for the judge to add other categories, so the list is not closed.
California courts have not tried to draw sharp lines between these categories. “Pain and suffering” has long been used as a broad label covering fright, nervousness, worry, shock, embarrassment, and similar experiences. A plaintiff does not need to prove each item on the list as a separate claim. The point of naming them is to prompt jurors to consider the full range of ways an injury diminishes a life, not to stop at the most visible physical hurt.
A few of the categories are worth flagging because juries can miss them. Loss of enjoyment of life compensates a plaintiff who can no longer take part in hobbies, sports, or social activities they used to enjoy. Disfigurement covers visible changes like scarring. Physical impairment covers functional losses such as reduced mobility or chronic difficulty with daily tasks. These can persist long after acute pain fades, which is why the instruction pulls them out.
How the Jury Sets the Dollar Amount
The instruction is blunt about method: “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.”3Justia. CACI 3905A – Physical Pain, Mental Suffering, and Emotional Distress (Noneconomic Damage) There is no chart, no multiplier, no required calculation. California appellate courts have acknowledged that valuing human suffering is “inherently subjective and not easily amenable to concrete measurement.”
In practice that means two juries hearing similar facts can arrive at very different numbers and both awards can stand. Jurors draw on the medical records, the plaintiff’s testimony about daily limits, witness accounts of how life has changed, and their own experience. The only constraint is that the amount be reasonable in light of what was proven.
Expert testimony matters, especially for psychological harm. A treating psychologist or psychiatrist can describe the severity and expected duration of anxiety or depression in a way lay witnesses cannot. Expert testimony is not strictly required for emotional distress damages, but without it jurors may discount suffering they cannot see.
Past and Future Suffering Are Awarded Separately
The jury splits its noneconomic award into two periods. Past damages run from the date of injury through trial. Future damages start at the trial and go forward. Past harm is generally easier to prove because the plaintiff can describe what has already occurred and back it up with medical records.
Future noneconomic loss carries a heavier burden. The plaintiff must prove that the future suffering is “reasonably certain” to occur.3Justia. CACI 3905A – Physical Pain, Mental Suffering, and Emotional Distress (Noneconomic Damage) Courts have generally read that phrase to mean more probable than not. It is not a high bar, but it does bar recovery based on speculation. A plaintiff who has recovered by trial, with no medical opinion supporting ongoing problems, will not collect future noneconomic damages.
Medical experts usually decide future-damages cases. A physician can testify about the expected course of a chronic pain condition, the likelihood of further surgery, or whether an emotional condition is likely to persist. Life expectancy evidence, sometimes through mortality tables, gives the jury a time horizon. The longer the expected period of suffering, the larger the future award tends to be.
One point often confused: future noneconomic damages are set in current dollars at the time of judgment. They are not reduced to present cash value. That reduction applies only to economic damages such as future lost wages.
Comparative Fault and Several Liability
California uses pure comparative fault. If the plaintiff bears part of the blame, the jury assigns each party a percentage and reduces the noneconomic award by the plaintiff’s share. A plaintiff found 30 percent at fault who is awarded $500,000 collects $350,000.
California Civil Code section 1431.2 adds a second layer. Each defendant’s liability for noneconomic damages is several only, not joint.4Supreme Court of California. California Supreme Court Opinion – Civil Code Section 1431.2 Each defendant pays the share of noneconomic damages that matches its percentage of fault. If one defendant is 70 percent at fault and another 30 percent, that is what each pays. The plaintiff cannot force the less-culpable defendant to cover the other’s share. Economic damages can still carry joint and several liability, but noneconomic damages do not.
Caps in Medical Malpractice Cases
Most California personal injury cases have no statutory cap on noneconomic damages. Medical malpractice is the exception.
Under the Medical Injury Compensation Reform Act as amended by AB 35, noneconomic damages in professional negligence cases against health care providers are capped. The base limits for claims arising on or after January 1, 2023 were $350,000 per defendant category in non-death cases and $500,000 per defendant category in wrongful death cases.5California Legislative Information. California Civil Code 3333.2 Those amounts step up each year by $40,000 for non-death claims and $50,000 for wrongful death claims. For 2026 the effective caps are approximately $470,000 per defendant category in non-death cases and $650,000 per defendant category in wrongful death cases.
AB 35 also created three separate defendant categories: health care providers, health care institutions, and unaffiliated providers or institutions. Each category has its own cap, so a case involving defendants across all three categories could allow up to three times the per-category amount in total noneconomic damages. The cap that applies is generally the one in effect when the claim is resolved.
What Lawyers Can and Cannot Argue in Closing
Because there is no formula, closing argument carries real weight. California allows two common strategies and forbids a third.
The per diem argument breaks suffering into small time units. A plaintiff’s attorney might suggest a dollar figure per day of chronic pain and multiply that across remaining life expectancy. The California Supreme Court approved the approach in Beagle v. Vasold, holding that a per diem suggestion is argument drawn from evidence, not new evidence, and that restricting it was error.6Supreme Court of California Resources. Beagle v Vasold – 65 Cal.2d 166 The jury is free to reject the math and pick its own number.
A lump-sum suggestion is simpler. The attorney names a total figure and explains why it fits the evidence. Both approaches are advocacy tools and jurors are bound by neither.
What attorneys cannot do is make a “Golden Rule” argument that asks jurors to place themselves in the plaintiff’s shoes. Questions like “how much would you want if this happened to you?” are prohibited because they appeal to self-interest rather than evidence.6Supreme Court of California Resources. Beagle v Vasold – 65 Cal.2d 166 A Golden Rule violation can produce a mistrial or reversal on appeal, and trial judges usually shut these arguments down at once.
Duty to Mitigate
A plaintiff cannot let noneconomic damages pile up when reasonable steps would reduce them. Under CACI 3930 the defendant can argue that the plaintiff is not entitled to damages for harm that could have been avoided through reasonable effort or spending.7Justia. CACI 3930 – Mitigation of Damages (Personal Injury) If a physician recommends physical therapy that would meaningfully reduce ongoing pain and the plaintiff simply refuses, the defendant may argue that portion of continued suffering should come out of the award.
The standard is reasonableness. The jury weighs the plaintiff’s circumstances, including finances and whether the recommended treatment carried undue risk. A plaintiff who cannot afford care or who reasonably declines a risky surgery has not failed to mitigate. Money the plaintiff did spend on reasonable mitigation is recoverable even if the effort did not succeed.