Forensic Economics, UM-St. Louis

Court Decisions of Special Interest to Forensic Economists

This is a list of legal decisions that are likely to be of special interest to forensic economists or attorneys who are knowledgeable about forensic economics. It has been compiled by a forensic economist and will not indicate the precedential value of the cases being cited. The list is a work-in-progress, with decisions currently reflecting the research interests of Thomas R. Ireland, who is the webmaster for this page. Other forensic economists have been invited to submit cases they have encountered as important in their practices, as well. Case descriptions should be checked for accuracy before being used. Although efforts will continue to rectify that fact, important cases may not be included in this list. Decisions are listed alphabetically for each jurisdiction rather than chronologically, which means that some decisions that are listed are of historical interest, but are no longer good law. These same descriptions decisions are posted at a website maintained at Denison University. That website has several alternative organizational frameworks, but is not divided into as many subsections as this website. To get to that website, click on Denison Forensics.

Decision are listed by venue, beginning with the United States Supreme Court, then the United States Tax Court, followed by decisions within each of the Federal Circuits, and then decisions within the 50 states and territories. Federal district court decisions are listed within the circuits in which those district courts reside. Thus, federal district court decisions interpreting federal law include district court decisions from Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island, and so forth for the other circuits.

While the general structure is to list decisions by jurisdiction, federal decisions that intepret a given state's law will be listed under the state whose law is being interpreted. In some instances, as in Smith v. Ingersoll-Rand, a decision is relevant to both federal and New Mexico law. That case is listed under Federal Courts of Appeal, with a note to see this decision listed under New Mexico. The number of subcategories is limited and may be expanded in the future. Cases are listed alphabetically within each subcategory. Currently, subcategories are:

                        Basis Income and Fringe Benefits for Projecting Earnings Loss
                        Life and Worklife Expectancies
                        Wage Growth Rates and Discount Rates
                      Standards for Recovery in Wrongful Death
                        Household Services
                       Life Care Plans
                        Lost Chance of Recovery or Survival
                        Collateral Source
                        Treatment of Taxes
                        Annuities, Periodic Payments and Reversionary Trusts
                      Legal Procedure
                        FELA/Maritime
                        Hedonic Damages and Emotional Services
                        Wrongful Birth, Wrongful Pregnancy, Wrongful Life
                        Admission of Expert Testimony
                        Wrongful Termination
                        Miscellaneous

United States Supreme Court

Basis Income and Fringe Benefits for Projecting Earnings Loss

Flemming v. Nestor, 363 U.S. 603 (1960). Social Security benefits depend on the will of Congress and should not be included in projections of damages based on lost earnings.

Hisquierdo v. Hisquierdo, 439 U.S. 572; 99 S.Ct. 802; 59 L. Ed. 2d (1979). In a divorce action, Mrs. Hisquierdo sought an award for her spousal annuity under the Railroad Retirement Board Act. The California Supreme Court had ruled that she was entitled to such an award. The U. S. Supreme Court reversed and ruled that a spousal annuity could not be anticipated under the Railroad Retirement Act of 1974 (45 USCS 231 et seq.) and that the federal constitution took precedence over the community property standards in California. This decision has been cited in FELA litigation as indicating that a claim for losses based on a spousal annuity, resulting from an injury, are precluded from consideration.

Richardson v. Belcher, 404 U.S. 78 (1971). No right in Social Security benefits exist and projections of lost Social Security benefits should not be made in federal cases.

Weinberger v. Wiesenfeld, 420 U.S. 636 (1975). Social Security benefits are non contractual because "each worker's benefits are not dependent on the degree to which he was called upon to support the system by taxation.

Disability

Toyota Motor Manufacturing v. Williams, 122 S.Ct. 681 (2002). This ruling of the United States Supreme Court makes it clear that the Gamboa disability tables cannot be used in ADA cases because “It is insufficient for individuals attempting to prove disability statistics under this test to merely submit evidence of a medical diagnosis of impairment.” Disability must be analyzed in a “case by case manner” “in terms of their own experience,” in terms of “the effect of that impairment on the life of the individual” (quotes from the slip opinion). Submitted by Gary Skoog.

Life Care

Arkansas Dep’t of Heath & Human Servs. v. Ahlborn, 2006 U.S. LEXIS 3455 (U.S. 2006). “When a Medicaid recipient in Arkansas obtains a tort settlement following payment of medical costs on her behalf by Medicaid, Arkansas law automatically imposes a lien on the settlement in an amount equal to Medicaid's costs. When that amount exceeds the portion of the settlement that represents medical costs, satisfaction of the State's lien requires payment out of proceeds meant to compensate the recipient for damages distinct from medical costs--like pain and suffering, lost wages, and loss of future earnings. The Court of Appeals for the Eighth Circuit held that this statutory lien contravened federal law and was therefore unenforceable.” Other courts had held differently. In a unanimous vote, the U.S. Supreme Court upheld the decision of the 8th Circuit. Suggested by David Jones.

Life and Worklife Expectancies

Vicksburg and Meridian Railroad Company v. Putnam, 118 U.S. 545; 7 S. Ct. 1 (1886). “In an action for a personal injury, the plaintiff is entitled to recover compensation, so far as it is susceptible of an estimate in money, for the loss and damage caused to him by the defendant’s negligence, including not only expenses incurred for medical attendance, and a reasonable sum for his pain and suffering, but also a fair recompense for the loss of what he would otherwise have earned in his trade or profession, and has been deprived of the capacity of earning, by the wrongful act of the defendant. . . In order to assist the jury in making such an estimate, standard life and annuity tables, showing at any age the probable duration of life, and the present value of a life annuity, are competent evidence.”

Treatment of Taxes

Commissioner of Internal Revenue v. Banks, 2005 U.S. LEXIS 1370; 73 U.S.L.W. 4117; 2005 WL 123825 (U.S. 2005). The United States Supreme Court held that prior to the American Jobs Creation Act of 2004, the portion of an award for lost earnings in a termination case must be treated as income for the purposes of taxation, thus reversing decisions of the 9th and 6th Circuits and supporting decisions of a number of other circuits. Under federal tax law before the American Jobs Creation Act of 2004, it was possible for applications of the Alternative Minimum Tax (AMT) to result in an award winner being worse off after an award than if a case had never been filed. After that Act, award winners can deduct attorneys fees before any application of taxes, including the AMT, occurs, eliminating the possibility of an award winner being made worse off after an award. However, the AJCA was not made retroactive and does not apply to previous awards.

FELA/Maritime Cases

Chesapeake & Ohio R. Co. v. Kelly, 241 U.S. 485, 36 S.Ct. 630, 60 L.Ed. 1117 (1916). This decision establishes the principles that future damages should be reduced to present value, saying: “the putting out of money at interest is at this day so common a matter that ordinarily it cannot be excluded from consideration in determining the present equivalent of future payments, since a reasonable man, even from selfish motives, would probably gain some money by way of interest on the money recovered.” The decision gives as examples savings banks for moderate sums at interest, possible sale of annuities, and, “for larger sums, state and municipal bonds and other securities of almost equal standing.” The court goes on to say that the kinds of investments used should not require unusual skill on the part of injured persons and that the rate of interest to be adopted should take into account “the best and safest investments, and those which require the least care (which) yield only a moderate return.” This is the source of the “best and safest” language in the Pfeifer decision, which quotes this decision.

Eichel v. New York Central Railroad Co., 375 U.S. 253 (1963). Fact of disability payments cannot be introduced, even to demonstrate the extent and duration of the disability suffered by a plaintiff. Benefits received are not a function of payments by employer and thus cannot be considered in mitigation of lost earnings. "The Railroad Retirement Act is substantially a Social Security Act for employees of common carriers . . . The benefits received under such a system of social legislation are not directly attributable to the contributions of the employer, so they cannot be considered in mitigation of the damages caused by the employer."

Jones & Laughlin Steel Corp. v. Pfeifer, 103 S. Ct 2541, or 462 U.S. 523 (1983). This is the single most important case in the field of forensic economics. Justice Steven delivered the opinion of the United States Supreme Court, which sets out a framework for how damages in a personal injury case should be presented by an economic expert. The court is very careful not to specify a particular set of methods, as urged on it by various amici briefs that were filed, saying: “Because our review of the foregoing cases leads us to draw three conclusions. First, by its very nature the calculation of an award for lost earnings must be a rough approximation. Because a lost stream can never be predicted wtih complete confidence, any lump sum represents only a ‘rough and ready’ effort to put the plaintiff in the position he would have been in if not injured. Second, sustained price inflation can make the award substantially less precise. Inflation’s current magnitude and unpredictability create a substantial risk that the damages award will prove to have little relation to the lost wages it purports to replace. Third, the question of lost earnings can arise in many different contexts. In some sectors of the economy, it is far easier to assemble evidence of an individual’s most likely career path than others.” Thus, instead of providing specific methods, the court provides a list of the issues that must be addressed in the report and the general framework for the methodologies that can be used to address those issues. The coverage in this case is quite detailed and multiple readings are recommended for forensic economists.

Michigan Central Railroad Company v. Vreeland, 227 U.S. 59 (1913). This U.S. Supreme Court decision is a very early decision under the Federal Employers Liability Act (FELA), holding that a broad interpretation of household services is in order in FELA actions when calculating damages. The court indicates that: “It is not beyond the bounds of supposition that by the death of the intestate his widow may have been deprived of customary service from him [above and beyond support and maintenance], capable of being measured by some pecuniary standard, and that in some degree that service might include as elements ‘care and advice.’” The extended discussion of the meaning of the word “pecuniary” as “measurable by some standard” is thoughtful and extensive.

Miles v. Apex Marine Corp., 498 U.S. 19 (1990). This decision provides a history evaluating differences between calculating damages between general maritime law and the Death on the High Seas Act (DOHSA) under both wrongful death and survival actions. It specifically precludes loss of society damages under DOHSA.

Monessen Southwestern Railway Co. v. Morgan, 486 U.S. 330, 108 S.Ct. 1837 (1988). Reaffirms Pfeifer decision and implicitly rejects the Culver II decision of the Fifth Circuit Court of Appeals. The Court holds that Pennsylvania total offset standards cannot be imposed by judicial discretion. (Pfeifer had overturned the Pennsylvania Supreme Court in rejecting the use of Pennsylvania roles in a Jones Act case in 1982.) This decision holds that pre-judgment interest is not allowable in an FELA action. The modification of this description was suggested by Ronald Martinez.

Norfolk & Western Railway Co. v. Liepelt, 444 U.S. 490; 100 S. Ct. 755; 62 L. Ed. 2d 689 (1990). In a 7 to 2 decision, the Supreme Court held that taxes should be subtracted from projections of lost earnings on a wrongful death action unless the amounts were de minimus and that trial court judges should permit a jury instruction that an award of damages is not taxable under federal income tax law. The court said: “The amount of money that a wage earner is able to contribute to the support of his family is unquestionably affected by the amount of the tax he must pay to the Federal Government. It is his after-tax income, rather than his gross income before taxes, that provides the only realistic measure of his ability to support his family. It follows inexorably that the wage earner’s income tax is a relevant factor in calculating the monetary loss suffered by his dependents when he dies. . . Admittedly there are many variables that may affect the amount of a wage earner’s future income-tax liability. The law may change, his family may increase or decrease in size, his spouse’s earnings may affect his tax bracket, and extra income and unforeseen deductions may become available. But future employment itself, future health, future personal expenditures, future interest rates, and future inflation are also matters of estimate and prediction. Any one of these issues might provide the basis for protracted expert testimony and debate. But the practical wisdom of the trial bar and the trial bench has developed effective methods of presenting the essential elements of an expert calculation in a form that is understandable by juries that are increasingly familiar with the complexities of modern life. We therefore reject the notion that the introduction of evidence describing a decedent’s estimated after-tax earnings is to speculative or too complex for a jury.”

Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573 (1974). The U.S. Supreme Court “embraced a broad range of mutual benefits each family member receives from the others’ continued existence, including love, affection, care, attention, companionship, comfort and protection,” as recoverable under the Jones Act. There had been an earlier recovery by the injured seaman in a personal injury action. He had subsequently died and his widow brought a wrongful death action. The court held that lost financial support that would have come from lost wages that had already been awarded could not be claimed again in the wrongful death action, but that the widow’s loss of services and society with her husband could be recovered. This decision explicitly affirmed that the right to recover lost earnings was based “on his prospective earnings for the balance of his life expectancy at the time of his injury undiminished by any shortening of that expectancy as a result of the injury (italics in original)” In evaluating damages for loss of society, the Court said, “insisting on mathematical precision would be illusory and the judge or juror must be allowed a fair latitude to make reasonable approximations guided by judgment and practical experience.” The court also indicated that recovery was permitted: “for the monetary value of services the decedent provided and would have provided but for his (the decedent’s) wrongful death. Such services include, for example, the nurture, training, education, and guidance that a child would have received had not the parent been wrongfully killed. Services the decedent performed at home or for his spouse are also compensable.” This decision also contains a discussion of the meaning of “pecuniary damages,” but arrives at no definite interpretation of that term.

St. Louis Southwestern R. Co v. Dickerson, 470 U.S. 409 (1985). Reaffirmed requirement in Chesapeake & Ohio R. Co. v. Kelley (1916) that damages must be awarded in terms of present value.

Tipton v. Socony Mobil Oil Co., Inc., 375 U.S. 34; 84 S. Ct. 1 (1963). This U.S. Supreme Court decision is a companion decision to Eichel v. New York Central Railroad Co, 375 U.S. 253; 84 S.Ct. 316 (1963), which held that railroad retirement benefits were a collateral source that could not be introduce to show malingering on the part of a worker who had not found employment after his injury. In Tipton, the trial court had admitted evidence of the plaintiff’s benefits under the Longshoremen’s Compensation Act to indicate that the plaintiff thought his status was not as a seaman or member of a crew within the meaning of the Jones Act. The 5th Circuit had ruled that this was in error, but harmless error. The U.S. Supreme Court ruled that it reversible error to have mentioned the collateral source benefits and remanded the case to the district court.

Admissibility of Expert Testimony

Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579; 113 S.Ct. 2786; 125 L.Ed.469 (1993)(Daubert I). This decision states that the Frye Test from Fry v. United States, 293 F. 1013 (D.C. Cir. 1923) had been superceded by Rule 702 of the Federal Rules of Evidence (FRE) that were adopted by Congress in 1975. It directed that trial court judges should act as “gatekeepers” to insure that evidence presented in court was scientifically reliable, subject to four general tests: (1) Whether the theory or technique underlying the testimony can be or has been tested; (2) whether the theory or technique has been subject to peer review; (3) the known or potential rate of error should be determined, as should the existence and maintenance of standards controlling the technique’s operation; (4) whether the theory or technique has been generally accepted by the relevant scientific community.

General Electric Co. v. Joiner, 522 U.S. 136; 118 S.Ct 512 (1997). Deals with admissibility of expert testimony.Deals with admissibility of expert testimony. Joiner is the second in the triumvirate of decisions of the United States Supreme Court elaborating the meaning of the Daubert decision. The 11th Circuit had reversed the decision of a trial court judge not to allow testimony of a medical expert, suggesting that the standards for excluding testimony were more stringent than the tests for admitting testimony. The Supreme Court made it clear that trial court judges have considerable discretion and reversed the 11th Circuit decision. Justice Bryer’s concurring opinion strongly encourages trial court judges to make use of Federal Rule 106, which allows court appointed experts.

Kumho Tire Co., Ltd v. Carmichael, 509 U.S. 579; 119 S.Ct. 1167 (1999). This decision made it clear that while none of the original four Daubert tests may apply in a given instance, the general test of scientific reliability applies to all types of expert testimony.

Weisgram v. Marley, 528 U.S. 440; 120 S.Ct. 1011; 145 L.Ed. 2d 958 (2000). Held that if expert testimony that was the basis for a claim was held inadmissible, the cause of action could be dismissed without a right of appeal.

Winans v. The New York and Erie Railroad Company, 62 U.S. 88, 16 L. Ed. 68, 1858 U.S. LEXIS 626 (1858). “Experience has shown that opposite opinions of persons professing to be experts may be obtained to any amount; and it often occurs that not only many days, but even weeks, are consumed in cross-examinations, to test the skill or knowledge of such witnesses and the correctness of their opinions, wasting the time and wearying the patience of both court and jury, and perplexing, instead of elucidating, the questions involved in the issue.”

Hedonic Damages and Emotional Services

Molzof v. United States, 502 U.S. 301; 112 S. Ct. 711 (1992). The United States Supreme Court held that the prohibition of “punitive damages”under the Federal Tort Claims Act (FTCA) did not have the meaning attached that term by the 7th Circuit Court of Appeals. The 7th Circuit had held that an award for lost enjoyment of life in a wrongful death action and for future medical expenses for medical services that were being provide free by a veteran’s hospital were punitive to the United States under the terms of the FTCA. The Supreme Court held that “punitive” should be understood in its ordinary meaning of “intending to punish” had should not be interpreted as other than “compensatory” if such damages could be compensated under Wisconsin state law. The case was remanded to the trial court to determine whether such damages would be compensated under Wisconsin law.

Legal Procedure

Bigelow v. RKO Radio Pictures, 327 U.S. 251, 265 (1946). The United States Supreme Court said: “Even where the defendant by his own wrong has prevented a more precise computation, the jury may not render a verdict based on speculation or guesswork. But the jury may make a just and reasonable estimate of the damage based on relevant data, and render its verdict accordingly. In such circumstances juries are allowed to act on probable and inferential as [upon] direct and positive proof. Any other rule would allow the wrongdoer to profit by his wrong doing at the expense of the victim. It would be an inducement to make wrong doing so effective and so complete in every case as to preclude any recovery, by rendering the measure of damages uncertain. Failure to apply it would mean that the more grievous the wrong done, the less likelihood there would be of recovery.”

Erie R. Co. v. Tompkins, 58 S.Ct. 817, or 304 U.S. 64 (1938). Held that except as otherwise specified, damages in federal courts would be awarded on the basis of state law in the state in which a trial was being held.

Beech Aircraft Corp. v. Rainey, 488 U.S. 153; 109 S.Ct. 439 (1988). The dissent by Chief Justice Renquiest, joined by Justice O’Connor, discusses the “curative admissibility” doctrine as follows: “[O]ne doctrine which allows even a valid and timely objection to be defeated is variously known as ‘waiver,’ ‘estoppel,’ ‘opening the door,’ ‘fighting fire with fire,’ and ‘curative admissibility.’ The doctrine’s soundness depends on the specific situation in which it is used and calls for an exercise of judicial discretion.”

Hickman v. Taylor, 329 U.S. 495 (1947). This decision held that an attorney’s work product was protected.

Winans v. The New York and Erie Railroad Company, 62 U.S. 88; 16 L.Ed. 68 (1858). This early U. S. Supreme Court decision defined the role of expert witnesses, saying: “Experts may be examined to explain terms of art, and the state of art, at any given time. They may explain to the court and jury the machines, models, or drawings, exhibited. They may point out the difference or identity of the mechanical devices involved in their construction. The maxim of ‘cuique in sua arte credendum’ permits them to be examined to questions of art or science peculiar to their trade or profession; but professors or mechanics cannot be received to prove to the court or jury what is the proper or legal construction of any instrument of writing. A judge may obtain information from them, if he desire it, on matters which he does not clearly comprehend, but cannot be compelled to receive their opinions as matter of evidence. Experience has shown that opposite opinions of persons professing to be experts may be obtained to any amount; and it often occurs that not only many days, but even weeks, are consumed in cross-examinations, to test the skill or knowledge of such witnesses and the correctness of their opinions, wasting time and wearying the patience of both court and jury, and perplexing, instead of elucidating, the questions involved in the issue.”

Punitive Damages

Philip Morris USA v. Williams, 2007 U.S. LEXIS 1332 (U.S. 2007). The U.S. Supreme Court held that a punitive damages award that is based in part on a jury’s desire to punish a defendant for harming nonparties amounts to a taking of property without due process. The Court emphasized that states my allow juries to award punitive damages to prevent a repetition of unlawful conduct, but held that states must set proper standards that prevent juries from depriving a defendant of “fair notice” of the penalties they may face. The Court also indicated that when awards are sufficiently large, one state may impose policy choices on neighboring states. This was a remand to the Supreme Court of Oregon in which the U.S. Supreme Court did not consider whether the size of the punitive damage award allowed by the Oregon Supreme Court was “grossly excessive.”

State Farm v. Campbell, 2003 U.S. Lexis 2713 (2003). The U.S. Supreme Court held that punitive damages must bear some relationship to compensatory damages in a tort action. “Single-digit multipliers are more likely to comport with due process, while still achieving the State’s goals of deterrence and retribution, than awards with ratios in range of 500 to 1 . . . or in this case of 145 to 1. The decision contains a good discussion of the differences between compensatory and punitive damages.

Workers Compensation

Metropolitan Stevedore Company v. Rambo, 521 U.S. 121; 117 S.Ct. 1953; 138 L. Ed. 327 (1997). In 1983 John Rambo had been awarded $80.16 per week for his permanent partial disability resulting from an injury in 1980 in an action under the Longshore and Harbor Workers’ Compensation Act (LHWCA). Subsequently, Rambo was trained as a heavy truck operator, with the result that his earnings increased to approximately three times as much as before his injury. His employer moved to modify the disability award. The administrative law judge (ALJ) terminated the disability award. The Benefits Review Board (BRB) upheld the termination. The 9th Circuit reversed the order, holding that an award could be modified only when there was a change in the claimant’s physical condition. The Supreme Court reversed the 9th Circuit decision, holding that a disability award could be modified where there was a change in the employee’s wage-earning capacity, even without a change in his physical condition, and remanded the 9th Circuit. The 9th Circuit again reversed the BRB and remanded for entry of a nominal award that reflected the worker’s disability. In this decision, the Supreme Court reversed the 9th Circuit decision for a second time, saying: “Disability is a measure of earning capacity lost as the result of a work-related injury. By distinguishing between the diminished capacity and the injury itself, and by defining capacity in relation both to the injured worker’s old job and to other employment, the statute makes it clear that disability is the product of injury and opportunities in the job market. Capacity, and thus disability, is not necessarily reflected in actual wages earned after an injury,. . . ., and when it is not, the fact-finder under the act must make a determination of disability that is ‘reasonable’ and ‘in the interest of justice,” and one that takes account of the disability’s future effects, § 8(h).” Justice Souter then provides extended comparison of the periodic payment method used in this case and the lump sum award method used in tort actions, pointing out that the need for finality is significantly reduced because awards made under “virtually all . . . workers’ compensation schemes” liberally permit modification, while tort awards require a single lump sum payment. Justice Souter wrote: “As the tripling of Rambo’s own earnings shows, a claimant’s future ability to earn wages will vary as greatly as opportunity varies, and any estimate of wage-earning potential turns in part on the probabilities over time that suitable jobs within certain ranges of pay will be open. In these calculations, there is room for error. . . That juries in tort cases must routinely engage in such difficult predictions (compounded further by discounting for present value) is the price paid by the common-law approach for the finality of a one-time lump-sum judgment.” Suggested by Kurt Krueger.

United States Tax Court

Dunkin v. Comm’r, 2005 U.S. Tax Ct. LEXIS 10 (U.S. Tax Ct. 2005). In a divorce, Mrs. Dunkin was awarded $2072 per month as her share of his defined benefit pension as of August 19, 1997. This slightly less than half of John Dunkin’s defined benefit pension based on California’s community property law. John Dunkin did not retire on August 19, 1997 and the California courts ordered John Dunkin to begin making payments of $2072 per month to his wife in lieu of the benefits she would have received if he had retired. He deducted the costs of her pension from his income for purposes of income taxation. The IRS argued that he should pay income taxes on all of his income. The tax court ruled in John Dunkin’s favor that he could deduct amounts paid to his ex-wife from his income for purposes of taxation. This is a clearly reasoned decision that is worth reading.

Vincent v. Commissioner of Internal Revenue, T.C. Memo 2005-95 (U.S. Tax Court 2005). This decision involved a case in which the parties to an employment discrimination law suit had settled. As a part of the settlement agreement, the settlement was described as for ulcers created by the employment dispute. The IRS had sent a tax deliquency notice and Vincent appealed. The court held that: “While the underlying litigation was adversarial, once Whittier agreed to a settlement amount and negotiated the inclusion of indemnification and release of liability clauses, the negotiation as to the characterization of the settlement proceeds ceased to be adversarial. Petitioner wanted a large portion of the recovery connected to a tortlike peronsl injury so that she could avoid taxes under section 104(a)(2).” Tax Court held that Vincent was liable for taxes on the entire amount of the settlement.

United States Court of Claims

Bedell v. Secretary of the Department of Heath and Human Services, 1992 U.S. Ct. Cl. Ct. Lexis 458 (U.S. Court of Claims 1992). This is a Vaccine Act Case in which Judge George Hastings, Jr., provides his assessment of life care plans produced by the petitioner (the plaintiff in Vaccine Act Cases) by Drs. Robert Voogt and for the respondent (the defendant United States in Vaccine Act cases) by Jacqueline Peterson. Judge Hastings said of the petitioner’s experts: “I note that after listening to their testimony, I cannot conclude the Dr. Voogt and Dr. Walicke were particularly candid witnesses. To the contrary, while both are highly qualified in their professional fields, I conclude that they are also likely inclined to slant their testimony in a fashion designed to maximize the potential award to their clients.” Judge Hastings found the opinions of Ms. Peterson more “persuasive.”

Brown v. Secretary of the Department of Health and Human Services, 2005 U.S. Claims LEXIS 291. This is a decision under the Vaccine Act. Both sides presented economic experts, Dr. Richard J. Lurito for the petitioner and Dr. Patrick F. Kennedy for Respondent. The decision reviews net discount rates that have been adopted by the Office of Special Masters in past cases and in the Pfeifer decision (1983). Special Master Richard Abel preferred Dr. Kennedy’s net discount rate, saying: “In the end, Dr. Lurito’s reliance on present day interest rates of various instruments does not seem like a reasonable formula for making future projections. In fact, on several occasions, Dr. Lurito altered his calculations to account for fluctuations in his proposed portfolio. . .That is not to say that Dr. Lurito’s approach is entirely without merit. Were this case dealing with a shorter time period, Dr. Lurito’s methodology might be acceptable. As it stands, however, the Court is attempting to discern a net discount rate that will accommodate roughly the next 25 years. While Dr. Lurito’s calculations present one picture of what a safe return might look like today, they are too mercurial to be relied upon in making a future projection.”

Paul v. Department of Health and Human Services, 2007 U.S. Claims LEXIS 408 (U.S. Ct. Claims 2007). This was a Vaccine Act decision in which payment of experts, annuity contracts and attorney contingency fees in Vaccine Act cases was discussed at length.

1st Circuit

Court of Appeals

FELA/Maritime Cases

McGrath v. Consolidated Rail Corporation, 136 F.3d 838 (1st Cir. 1998). The First Circuit held that the trial court had made no reversible error in allowing admission of testimony about a worker’s occupational disability benefits for the purpose of showing that the worker had no financial incentive to resume working, but not as an offset to lost earnings. The First Circuit interpreted the U.S. Supreme Court decision in Eichel v. New York Cent. R.R. Co, 375 U.S. 253 (1963) as narrowly upholding the trial court’s discretionary ruling and not a bright line decision barring the admission of collateral source information that bears on the issue of malingering. The First Circuit held that there should be a balancing between the possibility of misuse by the jury of such information and the probative value of such information.

Admissibility of Expert Testimony

Coastal Fuels of Puerto Rico, Inc. v. Caribbean Petroleum Corp., 175 F.3d 18 (1st Cir. 1999). Ruled specifically that Daubert and Kumho applied to economic analysis, stating: "the district court's gatekeeping function extendes to all expert evidence, including economic analysis, not merely to evidence involving scientific conclusions.

Quinones-Pancheo v. American Airlines, Inc., 979 F.2d (1st Cir. 1992) Economic expert Mario Puchi based his projections on the assumption that the injured plaintiff had intended to reenlist in the military and remain there until eligible to retire on a military pension. The economic expert also assumed that the plaitiff had a total and permanent disability, which was not borne out by the facts of the case. The economic expert was not permitted to testify.

Stevens v. Bangor and Aroostook, R.R., 97 F.3d 594 (1st Cir. 1996). The plaintiff's vocational expert was permitted to testify.

Wrongful Termination

Lussier v. United States Postmaster General, 50 F.3d 1103 (1st Cir. 1995). The Court held that it is within the trial court’s discretion to tailor a front pay award to take account of collateral benefits in a discrimination case. </