                     United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT

                                ___________

                                No. 96-3700
                                No. 96-3835
                                ___________

Vicki Westcott, Administratrix                     *
of the Estate of Arden Westcott,                   *
                           *
    Appellant - Cross Appellee,                    *
                           *    Appeals from the United
States
    v.                     * District Court for the
                           * District of Nebraska.

Joseph C. Crinklaw; City of   *
Omaha, A Municipal Corporation,                                           *
                            *
      Appellees - Cross Appellants.                                       *
                      ___________

                                               Submitted:      June 12,1997

                                                          Filed:       January
9, 1998
                                ___________

Before LOKEN,         REAVLEY,1      and    JOHN    R.    GIBSON,     Circuit
    Judges.

                                ___________

JOHN R. GIBSON, Circuit Judge.


      1
        The Honorable Thomas M. Reavley, United States Senior Circuit Judge for
the Fifth Circuit, sitting by designation.
    We now consider Vicki Westcott's third appeal in her
civil rights action against the City of Omaha and Joseph
Crinklaw.   Crinklaw, an Omaha police officer, shot and
killed Vicki Westcott's husband, Arden Westcott, during an
attempted burglary. We reversed the first jury verdict
for Crinklaw because of errors in admitting evidence. The
jury in the second trial returned a verdict for Westcott,
but only awarded one dollar in damages.      Westcott now
appeals, arguing that a new trial on damages is warranted
because the district court failed to properly instruct the
jury on damages and because the one dollar damage award is
inadequate as a matter of law.      She also appeals the
district court's failure to award her attorneys' fees and
the dismissal of the City of Omaha as a defendant. We
conclude that the district court committed plain error in
instructing the jury on nominal damages, and the dollar
award is inadequate as a matter of law. Accordingly, we
reverse the judgment and remand for a new trial.

    The facts of this case are set forth in our previous
opinions.2 Because of the limited issues in this appeal,
it is unnecessary that we repeat them here.

                                        I.

    Westcott contends that she is entitled to a new trial
on damages because of the district court's jury
instructions. First, she argues that the district court
failed to instruct the jury to consider loss of consortium
damages suffered by herself and her two children. Second,
she argues that the district court erred in not
instructing the jury on hedonic damages.

      2
       See Westcott v. City of Omaha, 901 F.2d 1486 (8th Cir. 1990); Westcott v.
Crinklaw, 68 F.3d 1073 (8th Cir. 1995).
                                        -2-
    Westcott's argument about the ability of    survivors to
recover for their own loss of consortium in a   section 1983
action is beside the point.        See Frey     v. City of
Herculaneum, 44 F.3d 667, 670-71 (8th            Cir. 1995)
(discussing father's ability to




                            -3-
recover under section 1983 for death of his son); cf.
Berry v. City of Muskogee, 900 F.2d 1489, 1506-07 (10th
Cir. 1990) (survivors not entitled to loss of consortium
damages because section 1983 creates a federal remedy only
for the party injured). Westcott's characterization of
her suit as a wrongful death action is not supported by
the record. Although Westcott's amended complaint seeks
damages on behalf of Arden Westcott's estate and on "her
own behalf," the record makes clear that Westcott sued as
the personal representative of Arden Westcott's estate to
recover damages for the deprivation of Arden Westcott's
constitutional rights. Westcott did not bring a pendant
state law claim for wrongful death,3 or separate claims for
the deprivation of her or her children's constitutional
rights. In addition, the loss of consortium damages set
forth in the pretrial order include only those suffered by
Arden Westcott, and the court emphasized during trial that
"this is not a wrongful death action."        This was not
pleaded or tried as a wrongful death action, and the court
did not err in refusing to instruct on loss of consortium
damages.

    Likewise, there is no error               in the court's failure to
specifically instruct the jury                on recovering for hedonic
damages (damages arising solely               from Arden Westcott's loss
off the enjoyment of his life).                See Black's Law Dictionary, 391
(6th ed. 1990).

    Relying on Nebraska law, the district court refused to
instruct the jury that Arden
Westcott's estate could be awarded hedonic damages. The


      3
      The city contends that such a suit would have been barred by Nebraska's
two-year statute of limitations. See Neb. Rev. Stat. § 30-810 (Reissue 1995).
                                        -4-
district court concluded that Nebraska does not allow a
separate instruction on hedonic damages, relying on
Nebraska law which says that hedonic damages are not a
distinct category of damages but are merely a component of
pain and suffering and of disability.     See Anderson v.
Nebraska Dep't of Social Services, 538 N.W.2d 732, 739-41
(Neb. 1995).

    Westcott argues that the court erred in relying on
Anderson because that case




                            -5-
was not a wrongful death action. Westcott further argues
that even if Anderson applied, the court should not have
relied on it because the case is inconsistent with the
deterrent policies of section 1983.       See Hankins v.
Finnel, 964 F.2d 853, 861 (8th Cir. 1992) (in section 1983
cases, state law will be applied only to the extent it is
not inconsistent with federal law).        Westcott cites
several cases which allow recovery for loss of life
damages despite a state law prohibiting such damages.
See, e.g., Bell v. City of Milwaukee, 746 F.2d 1205, 1238-
39 (7th Cir. 1984) (refusing to apply Wisconsin statute
that precluded damages to an estate for loss of life and
punitive damages); Graham v. Sauk Prairie Police Comm'n,
915 F.2d 1085, 1104-06 (7th Cir. 1990) (upholding an award
of damages for loss of life).

    In Anderson, the Nebraska Supreme Court considered
whether the loss of the enjoyment of life is a separate
and distinct category of damages. 538 N.W.2d at 739-41.
The court concluded that although the loss of enjoyment of
life may be considered as it relates to pain and suffering
and disability, it is improper to treat it as a separate
category of nonpecuniary damages. Id. at 741. The court
reasoned that a separate award for loss of life damages
would not make a damage award more accurate, and would
likely result in a duplication of damages. Id.

    The distinction Westcott creates between a case
involving an injury and a death is superficial. Like a
personal injury action, Westcott's estate sought to
recover damages for the loss of enjoyment of life.
Indeed, the district court did not prohibit Westcott's
estate from recovering damages for loss of life, the court
only refused a separate jury instruction providing for
such damages. See Bell, 746 F.2d at 1235-36, 1240. The

                            -6-
court instructed the jury to compensate the estate the
amount of money "that will fairly and justly compensate
the plaintiff . . . for      any loss sustained by Arden
Westcott. . . ."      (Emphasis added).   In calculating
damages, the court instructed the jury to consider as
elements of damages: physical pain and suffering; medical
and funeral expenses; lost earnings; and loss of
consortium. Included in Westcott's request to the jury
for damages was the suggestion that the jury should award
Westcott $200,000,




                           -7-
quantifying the loss "for a man to live another 50 years."
We therefore conclude that the court did not err in
refusing to specifically instruct the jury on loss of life
damages.
                            II.

     Westcott next argues that the district court committed
reversible error in giving the one dollar nominal damage
instruction.4 Along similar lines, Westcott contends that
the one dollar damage award is inadequate as a matter of
law.

    In general, there are three situations in which a jury
may reasonably conclude that compensatory damages are
inappropriate despite a finding that excessive force was
used. First, when there is evidence that both justifiable
and unjustifiable force might have been used and the
injury may have resulted from the use of justifiable
force. See, e.g., Gibeau v. Nellis, 18 F.3d 107, 110 (2d
Cir. 1994).     Second, when the plaintiff's evidence
concerning injury is not credible. See, e.g., Butler v.
Dowd, 979 F.2d 661, 669 (8th Cir. 1992) (en banc). Third,
when the plaintiff's injuries have no monetary value or
are insufficient to justify with reasonable certainty.
See, e.g., Briggs v. Marshall, 93 F.3d 355, 360 (7th Cir.
1996).   If, however, it is clear from the undisputed
evidence that a plaintiff's injuries were caused by a
defendant's excessive use of force, then the jury's
failure to award some compensatory damages should be set
aside and a new trial ordered. See Haywood v. Koehler, 78
F.3d 101, 104 (2d Cir. 1996).

      4
        The court instructed: "If you find for the plaintiff, but find that the loss
resulting from Arden Westcott's death has no monetary value, then you must return
a verdict for the plaintiff in the nominal amount of One Dollar ($1.00)."
                                          -8-
    The   Eleventh   Circuit   considered  circumstances
analogous to those here in Saunders v. Chatham County
Board of Commissioners, 728 F.2d 1367 (11th Cir. 1984).
The jury returned a verdict for a prisoner for injuries
the prisoner sustained when he was beaten by another
prisoner, but assessed no damages. Id. at 1368. The




                           -9-
district court instructed the jury that it was not a valid
verdict since it was undisputed that the prisoner was
injured.   Id.   The jury then awarded $10,000, and the
county appealed arguing that the court should have given
a nominal damage instruction. Id. The Eleventh Circuit
disagreed, concluding that the court correctly instructed
the jury. Id. at 1369.

    Other courts have also held that an instruction on
nominal damages is only appropriate to vindicate
constitutional rights whose deprivation has not caused an
actual, provable injury. See Stachniak v. Hayes, 989 F.2d
914, 923 (7th Cir. 1993) (citation and quotation omitted).
Accord Briggs, 93 F.3d at 359-60 (nominal damage
instruction inappropriate when there is no dispute as to
whether plaintiff suffered a provable injury); Wheatley v.
Beetar, 637 F.2d 863, 865-66 (2d Cir. 1980) (trial court
erred in instructing the jury on nominal damages when
there was proof of actual injury).

    It is undisputed that Westcott received fatal
injuries, and the parties stipulated to funeral expenses
of $3,262.64. There was no issue of injury, and the court
therefore erred in instructing the jury on nominal
damages.   See Briggs, 93 F.2d at 359-60; Saunders, 728
F.2d at 1369; Wheatley, 637 F.2d at 865-66.

    Nevertheless, Westcott failed to properly object to
the instruction. Westcott contends that she objected to
the nominal damage instruction "albeit in a roundabout
way." During the instruction conference, the court asked
for any objections to the nominal damage instruction and
the following exchange occurred:

    [Attorney]:   I want to put a couple more zeroes after

                            -10-
that.

    The Court: Yeah.
    [Attorney]: I'll go for two zeroes.

    The Court:   Well, what, 1.000 or what?




                           -11-
    [Attorney]:   That's okay.

    The Court: Okay.
    [Attorney]: No objection.

     Rule 51 of the Federal Rules of Civil Procedure
provides that error cannot be based upon the giving of an
instruction to which the complaining party has not
properly objected. The rule requires specific objections
before the jury retires so that the district court may
correct errors and avoid the need for a new trial.
"Objections must 'bring into focus the precise nature of
the alleged error.'"    Jones Truck Lines, Inc. v. Full
Service Leasing Corp., 83 F.3d 253, 256-57 (8th Cir. 1996)
(quoting Palmer v. Hoffman, 318 U.S. 109, 119 (1943)).
Even   tendering   an  alternative   instruction   without
objecting to some specific error in the trial court's
charge or explaining why the proffered instruction more
accurately states the law does not preserve the error for
appeal. See id.

    Westcott's "roundabout" objection did not preserve the
error for review on appeal, and our review is thus limited
to whether there was plain error. Rush v. Smith, 56 F.3d
918, 922 (8th Cir. 1995) (en banc). Under this standard,
reversal is warranted "only if the error prejudices the
substantial rights of a party and would result in a
miscarriage of justice if left uncorrected."     Id.   The
error must seriously affect the fairness, integrity or
public reputation of judicial proceedings to constitute
plain error. See Caviness v. Nucor-Yamato Steel Co., 105
F.3d 1216, 1220 (8th Cir. 1997) (jury instruction
constituted plain error).

    The court erred in instructing the jury on nominal

                           -12-
damages.    The evidence conclusively established that
Westcott suffered fatal injuries and sustained actual
damage of, at least, the amount of stipulated funeral
expenses.    The law is clear that a nominal damage
instruction is not appropriate when there is proof of
actual injury. The error, therefore, is plain. We will
not correct a plain error, however, unless it




                         -13-
prejudiced Westcott, either specifically or presumptively.
Caviness, 105 F.3d at 1220.
    Westcott's argument that the one dollar damage award
is inadequate as a matter of law is subject to a similar
inquiry because she failed to raise the adequacy of the
jury verdict in her motion for a new trial.         Absent
exceptional circumstances, the adequacy of a jury verdict
must first be presented to the trial court in a motion for
a new trial in order to preserve the issue for review.
Sanders v. Brewer, 972 F.2d    920, 923 (8th Cir. 1992).
Exceptional circumstances exist when there is a "plain
injustice," or a "monstrous" or "shocking" result. Id.
(quoting Taken Alive v. Litzau, 551 F.2d 196, 198-99 (8th
Cir. 1977)).    Westcott characterizes an award of one
dollar for the taking of a life as a plain injustice.

    We have affirmed nominal damage awards even when there
has been evidence of serious injury.      For example, in
Butler, we rejected four inmates' claims that the jury's
award of nominal damages was inadequate as a matter of
law. 979 F.2d at 669. In that case, the inmates brought
a section 1983 suit against prison officials after they
were homosexually raped while in prison. Id. at 663. The
jury returned a verdict for the inmates, but awarded them
only one dollar in nominal damages. Id. at 669. We held
that the jury's award of nominal damages was not
inadequate as a matter of law.      Id.   Citing Carey v.
Piphus, 435 U.S. 247, 263 (1978), we reasoned that the
jury could have awarded nominal damages because it
concluded that the inmates' actions, not the actions of
the prison officials, were the cause in fact of most of
the inmates' injuries, and because the inmates failed to
produce at trial objective medical evidence supporting
their injuries.    Id.   In Sanders, we held the nominal
damage award "troubling," but not a "plain injustice."

                           -14-
972 F.2d at 923. In that case, an inmate was beaten by
other prisoners and suffered a broken jaw. Id. at 922.
We have upheld other verdicts where the jury has found
liability but awarded zero or nominal damages. See, e.g.,
Warren v. Fanning, 950 F.2d 1370, 1374 (8th Cir. 1991);
Williams v. Mensey, 785 F.2d 631, 639 (8th Cir. 1986).




                           -15-
    In Haley v. Wyrick, 740 F.2d 12 (8th Cir. 1984), we
also held that a one dollar damage award was not a
monstrous or shocking result. Id. at 14. In that case,
an inmate was stabbed thirty-two times five days after
prison officials released him from protective custody into
the general prison population.     Id. at 13.     The jury
returned a verdict for the inmate, awarding one dollar in
damages.   Id.   Although we believed that the award of
nominal damages was inadequate, we concluded that in the
absence of a motion for a new trial, the award did not
require reversal.    Id. at 14.    We were influenced by
evidence in the record that the inmate willingly
encountered a known risk when he entered the general
population. Id.

    The City contends that the nominal damage instruction
was not prejudicial and the award is not a "monstrous" or
"shocking" result. The City contends that the evidence
supports a jury finding that Westcott's injury had no
monetary value.    The City explains that if the police
would have arrested Westcott for the attempted burglary,
his earning power and personal relations would have
suffered dramatically. The City contends that "[t]he jury
may well have believed Westcott's choice to engage in
criminal acts would not only end his rosy economic future
but end any companionship and society described by his
wife." Although the City stipulated as to the amount of
funeral expenses, the City argues that the jury reasonably
decided not to compensate Westcott for these expenses,
"[g]iven the inevitability of death and funeral expenses
for all persons."

    It is beyond question that if Westcott would have been
arrested, his personal and financial situation would
suffer.   It is hard to imagine, however, that his arrest

                           -16-
would have reduced his lifetime earning capacity to
nothing.   Indeed, there was evidence that Westcott, a
twenty-five year old first-time offender, would probably
have received probation and would not have lost his job.
The evidence also showed that the sentence for attempted
burglary is from zero to twenty years.

    The jury finding of excessive force and the evidence
of injury cannot be




                          -17-
reconciled with the damage award. This is not a case in
which the jury could have denied compensatory damages
because there was evidence of both justifiable and
excessive force, see Haywood, 78 F.3d at 105, or
uncertainty as to the fact or extent of Westcott's injury.
See Butler, 979 F.2d at 669; see also Cowans v. Wyrick,
862 F.2d 697, 700 (8th Cir. 1989).     Further, given the
uncontested evidence of fatal injury and stipulation of
some actual damages, the nominal damage instruction
directly conflicts with other instructions given by the
court. Instruction Number 17 stated that the jury must
find for plaintiff if: "Crinklaw shot and killed Arden
Westcott;" if "Crinklaw’s use of force in shooting Arden
Westcott was, under the circumstances, excessive because
the particular force was not reasonably necessary for the
purpose of protecting Officer Crinklaw from serious
physical injury," and if "Arden Westcott suffered damages
as a direct result of Officer Crinklaw’s action."      The
court also instructed the jury that if any of these
elements had not been proven by the preponderance of the
evidence, then its verdict must be for defendant.      The
verdict finding for Westcott establishes that the jury
made positive findings on those elements outlined in
instruction number 17.    We are unable to reconcile the
nominal damage award with these jury findings.

    For those reasons, we have no doubt that Westcott was
prejudiced by the court's instruction on nominal damages.
The award of one dollar in light of the jury finding that
excessive force was used and evidence of injury amounts to
a plain injustice or a shocking or monstrous result.

                          III.

    In light of our disposition above, we need not address

                           -18-
Westcott's argument concerning the district court's
refusal to award attorneys' fees and dismissal of the
City.




                         -19-
      We reverse and remand the case for a new trial.5

      A true copy.

            Attest:

                   CLERK,      U.    S.    COURT      OF    APPEALS,       EIGHTH
CIRCUIT.




      5
        Although Westcott requests a new trial on the issue of damages alone, we
are persuaded there should be a new trial on liability and damages because the
issues are so factually intertwined. See Caviness, 105 F.3d at 1221.
                                        -20-
