This page
contains descriptions of legal decisions that were developed or revised
by Thomas Ireland during 2010
January 10, 2010
McNamara v. Kmart Corporation,
2010 U.S. Dist. LEXIS 865 (D. Virg. Isl.). This opinion upheld a trial
court decision not to admit the testimony of economic expert Robert
Johnson and to severely limit the testimony of vocational
rehabilitation expert Susan McKenzie. The Court rejected the testimony
of physiatrist Dr. Gary Jett, upon whose testimony much of the
testimony of McKenzie and all of the testimony of Johnson rested. The
Court said: Johnson’s conclusions were premised on his understanding of
McNamara’s future medical and non-medical expenses provided to him by
McKenzie. Because future medical needs and costs were beyond McKenzie’s
expertise and her calculation of medical expenses were derived from Dr.
Jett’s unreliable chart, the basis for Johnson’s opinions were faulty.
There was simply nothing for him to reduce to present value. His
testimony would have been a mere reiteration of Dr. Jett’s suspect
numbers.” The Court’s description of Dr. Jett’s methods and opinions
was very negative.
January 12, 2010
Dolores v. Southern Farm Bureau
Casualty Insurance, 44,883 (La.App. 2 Cir. 01/06/10); 2010 La.
App. LEXIS 4 (La.App. 2010). This decision upheld the JNOV
decision of the trial court judge to increase the jury’s award of
damages for a brain injury to a child to $600,000. The testimonies of
Bob Gisclair and Barney Hegwood, vocational experts for the plaintiff
and defense, respectively, are described, but no economists were
mentioned. Testimony of the vocational/rehabilitation experts related
to the percentage of “lost access” to the job market that was caused by
the injury, not a projection of the lost earnings that would result
from the lost access to the job market. Gisclair argued for between 50%
and 60%. Hegwood argued for 20%. There was no mention of how these
percentages were translated into a specific amount for lost
earnings. There were also life care plan elements for
transportation and counseling. The round number of $250,000 in damages
for “future economic loss and training and medical expenses” suggests
that no specific method was used to convert a percentage of “lost
access to the job market” into a specific present value of lost earning
capacity. The plaintiff had retained an economist who is mentioned as
having reduced Gisclair’s life are plan to a present value of $814,416,
but there was no mention of the economist reducing the child’s lost
earnings to present value.
January 19, 2010
Pinkston v. Accretive Health,
2010 U.S. Dist LEXIS 3163 (E.D. Mich. 2010) This was an order granting
summary judgment to the defendant. As a part of that order the court
said: “Defendant has filed a motion in limine to exclude the expert
report and testimony of Plaintiff's expert, Dr. Frank P. Stafford, from
trial. Generally, Defendant contends that Dr. Stafford's testimony and
report do not meet the reliability requirements of Federal Rule of
Evidence 702 and Daubert, and that the report fails to conform to the
requirements of Federal Rule of Civil Procedure 26(a)(2)(B). Defendants
contends that Dr. Stafford is an economist who is not qualified to
provide an expert opinion as a vocational expert, that his report is
based on inaccurate data and makes assumptions that have no basis in
fact, and that he has not provided the reasons or basis for his
opinions. Plaintiff responds that Dr. Stafford's methodology is an
accepted methodology among economists and that Defendant's failure to
submit expert testimony challenging the methodology is fatal to
Defendant's motion. Based on the fact that Defendant is entitled to
summary judgment on Plaintiff's claims, this motion will be denied as
moot.”
Aurite v. Morris, 2010 U.S.
Dist. LEXIS 3328 (D.N.J. 2010). This is a decision under New Jersey’s
The Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. §
39:6A-8, providing partial summary judgement to with respect to a claim
for noneconomic damages and partial summary judgment with respect to
permanent economic loss. The plaintiff’s economic expert was Dr. Robert
Wolf, who assumed a permanent injury for purposes of his calculations.
The court held that the plaintiff had not sufficiently demonstrated a
demonstrated a personal injury. The court held that while Dr. Wolf’s
report was intended to deal with a permanent injury, it also provided
evidence that might support a claim for temporary loss of earning
capacity.
January 26, 2010
Graham v. Offshore Specialty
Fabricators, 2009 0117 (L.A.App. 1 Cir. 01/08/ 10); 2010 La.
App. LEXIS 13 (La. App. 2010). This decision involved economic damage
calculations by Drs. Randolph Rice and Hugh Long for the plaintiff and
Dr. Kenneth Boudreaux for the defendant. The decision describes the
assumptions underlying each expert’s calculations for lost earnings
resulting in present values of $227,473 for Rice, $129,744 for Long and
$8,943.51 for Boudreaux. Rice projected lost future annual earnings on
the basis of $29,200 while Boudreaux argued that the plaintiff could
still earn minimum wage and that there was no future loss. Long’s
calculations were not described in the same detail. The Court pointed
out that the plaintiff had admitted that he had not filed federal tax
returns in at least ten years because he was not making enough to have
to file and the plaintiff’s Social Security earnings record showed that
for 22 of the 30 years shown he had reported income of less than $1,000
per year. However, the Court said: “While this court might believe that
Boudreaux’s estimate was more reasonable, based on Graham’s work
attitude and inconsistent employment history, Rice’s decision to base
the estimate of lost wages on Graham’s actual wages that he was earning
with Offshore at the time of the accident and for the preceding three
months was not unreasonable. Therefore, we conclude that the jury’s
acceptance of that estimate and its award of $44,700 for past wage loss
was not manifestly erroneous. Similarly, we must defer to the jury’s
decision concerning the award for lost future earning capacity. Before
his accident, Graham had the capacity to earn the wages that he was
making with Offshore as a deckhand. The evidence establishes that after
his accident, he no longer had that capacity. His injury deprived him
of a capacity he would have been entitled to enjoy even though he might
never have profited from it monetarily. Therefore, the jury’s award of
$125,000 for loss of future earning capacity was well within its
discretion and must be upheld.”
February 8, 2010
Ulerio v. New York City Transit
Authority, 2010 NY Slip Op 727; 2010 N.Y. App. Div. LEXIS 720
(N.Y. App. 2010). This decision upheld a trial court’s award of
damages, saying: “The testimony of plaintiff’s doctors and economist
was sufficient to support the damages awarded . . . particularly since
defendant offered no expert testimony to counter that of the economist
(italics added for emphasis). . .The award for future rehabilitative
services was proper even though plaintiff had discontinued physical
therapy, in view of her explanation that she had stopped because she
could no longer afford it.”
Reed v. Boy Scouts of America, Inc.,
2010 DNH 18 (D.N.H. 2010). This decision held that New Hampshire would
allow injured plaintiffs to recover amounts billed for medical services
rather than amounts accepted in payment for amounts billed or that were
provided gratuitously by friends and relatives. It also held that Reed
was unable to recover for lost future wages because New Hampshire law
requires that “‘an award for future damages must be reduced to present
value and, given the complexity of the modern economic environment, . .
. the reduction must be based upon specific economic evidence and not
merely upon personal knowledge that the jury may or may not possess.’
Hutton v. Essex Group, Inc., 885 F. Supp. 331, 334 (D.N.H. 1994).
Furthermore, ‘the plaintiff bears the burden of coming forward with
evidence of the proper rate of discounting,’ either through the
testimony of an economic expert or other ‘economic data’ supported by
‘a proper foundation. Id. At 334-35.”
Werner Enterprises v. Brophy,
2009 WY 132 (Wyoming 2009). This appeals decision provides extensive
discussion of whether the plaintiff’s life care planning expert, Jack
Dahlberg, was qualified to assume that Brophy’s injuries were permanent
for purposes of projecting Brophy’s life care needs. The court held
that even though no medical expert was presented regarding the issue of
the permanency of Brophy’s injury, Brophy had presented sufficient
evidence for a jury to infer that Brophy’s injuries were
permanent.
February 14, 2010
Doll v. Jesse Brown, 75 F.3d
1200; 5 Am. Disabilities Cas. (BNA) 369 (7th Cir. 1996). This is
a Richard Posner decision characterizing the use of probabilities
in a suit for discrimination against the Veterans Administration.
Posner was concerned about the either-or conclusion reached by the
trial court regarding Doll’s chances for promotion if discrimination
had not occurred and invites comparison withe the lost chance of
survival approach in medical malpractice cases. “It is an extension of
the routine practice in tort cases involving disabling injuries of
discounting lost future earnings by the probability that the plaintiff
would have been alive and working in each of the years for which
damages are sought. It recognizes the inescapably probabilistic
character of many injuries. It is essential in order to avoid
undercompensation and thus (in the absence of punitive damages)
underdeterrence, though to avoid the opposite evils of overcompensation
and overdeterrence it must be applied across the board, that is, to
high-probability as well as to low-probability cases. If the patient in
our example was entitled to 25 percent of his full damages because he
had only a 25 percent chance of survival, he should be entitled to 75
percent of his damages if he had a 75 percent chance of survival--not
100 percent of his damages on the theory that by establishing a 75
percent chance he proved injury by a preponderance of the evidence. He
proves injury in both cases, but in both cases the injury is merely
probabilistic and must be discounted accordingly.” The trial court
opinion was reversed with respect to back pay and remanded for further
consideration, but affirmed in other respects. Posner instructed the
trial court judge as follows: “On remand the district judge should
continue to apply the clear and convincing rule, but we do not forbid
him to apply it to probabilities as distinct from certainties of loss,
as explained in this opinion. So if, for example, the government is
able to prove by clear and convincing evidence that Doll had no more
than a 20 percent chance of being appointed foreman in lieu of Stein
(had the Veterans Administration complied with the Rehabilitation Act),
it will be open to the district judge to consider whether to award Doll
20% of the back pay the judge awarded him in the first round of this
litigation.”
February 20, 2010
Fanning v. Sitton Motor Lines,
2010 U.S. Dist. LEXIS ( D. Kan. 2010). This decision granted
plaintiff’s argument that the existence in the household of a
grandchild who was not adopted until after the decedent’s death should
be taken into account in calculating the decedent’s self consumption
even though the child did not qualify as an “heir” under Kansas law.
Plaintiffs argued that exclusion of testimony regarding N.F. would
create an "inaccurate self-consumption rate" for the decedent and lead
to a gross underestimation of the pecuniary losses to the decedent's
survivors. The court said: “The plaintiffs' economic expert calculated
the decedent's self-consumption rate based upon the number of
individuals in the household, including N.F. Thus, while the plaintiffs
state that they do not seek to make an official claim for damages on
behalf of N.F., they argue that they should be permitted to reference
N.F. in calculating their own damages, because her presence in the
household affected the decedent's self-consumption rate, and because
Ms. Fanning must now provide support for N.F. that would previously had
been provided by the decedent.” The court went on to say: “[T]he
plaintiffs argue that testimony regarding N.F. is necessary to properly
calculate damages related to health insurance costs. The decedent
provided health insurance for those within the household and such
expenses must now otherwise be taken care of. Therefore, the plaintiffs
intend to include N.F. in their calculation of Ms. Fanning's own
damages insofar as Ms. Fanning must now provide for her insurance
expenses that previously would have been taken care of by the decedent.
In sum, while the plaintiffs concede that they do not seek to assert
damages claims on behalf of N.F. as an ‘heir,’ they assert that her
presence in the household is relevant and affects the amount of damages
suffered by Ms. Fanning.”
February 26, 2010
United States v. Theodore Cienfuegos,
462 F.3d 1160 (9th Cir. App. 2006). This decision held that the
district court abused its discretion by awarding only $11,629.87 in
restitution to the estate of a decedent killed by the defendant under
the Mandatory Victims Restitution Act of 1996 (MVRA). The decision held
that lost income should be considered in a manner similar to civil
wrongful death, but that restitution cannot depend on amounts received
by a victim’s estate “from insurance or any other source.” The
9th Circuit pointed out that “Any amount paid to a victim under an
order of restitution shall be reduced by any amount later recovered as
damages for the same loss by the victim in – (A) any Federal civil
proceeding; and (B) any State civil proceeding, to the extent provided
by the law of the State.” The 9th Circuit, however, went on to specify
that: “Speculative losses are incompatible with the MVRA’s statutory
theme because ‘[o]ne cannot bear the burden of proving the amount of a
loss by a preponderance of the evidence when it is no more than
possible that the loss will occur at all.’ United States v. Follet, 259
F.3d 996, 1002 (9th Cir. 2001). Suggested by Paul Bjorklund.
March 9, 2010
Lewis v. Seacor Marine , Inc,
2002 WL 34359733 (E.D.La.). This order granted a defense motion
in limine to limit the testimony of rehabilitation expert Cornelius
Gorman and economic expert Douglas Womack with respect to the
possibility that the plaintiff would have risen to the rank of captain
“in the maritime world” at some uncertain point in the future.
The court said, referring to Womack’s projection: “The plaintiff’s
economic analysis extrapolating his future lost earnings for the
greater part of his worklife expectancy is both unreliable and not
grounded in the facts of the plaintiff’s work history, which presents
dabbling in very different industries, as well as absence of work from
time to time. The analysis is also devoid of any consideration of the
fact that the plaintiff had only worked as deckhand for approximately
one month before the accident. The opinion’s assumption – except for
the first eight years plaintiff would in fact earn the salary of
a seafaring captain for the remainder of his worklife – is devoid of
any basis in fact, and thus unreliable, misleading and irrelevant.
Although the case law makes it clear that absolute certainty is
impossible, considerations of reliability require that any economic
analysis be ensconced with some semblance of reality. . . The
slender reed on which Womack’s projection rests warrants no credence
from the gatekeeper.” Suggested by Stephen Horner.
March 19, 2010
Spotlite Skating Rink, Inc., v. Barnes,
988 So. 2d 364 (Miss. 2008). The defense challenged a jury’s award of
$600,000 in the death of a 10 year old female child on the ground
(among other grounds) that Dr. George Carter, the economic expert for
the plaintiff, based his calculations on the rebuttable presumption
that the child would have had average earnings for an average child
nationally. The child had come from a poor area and the defense argued
that her losses should be based on persons from that area, not national
figures. The rebuttable presumption was set forth in the Mississippi
decision in Greyhound Lines, Inc., v. Sutton, 765 So. 2d 1269,1277
(Miss. 2000). Between the Sutton decision and the Barnes cases, the
Mississippi Supreme Court had adopted Daubert v. Merrill Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993) as Mississippi’s standards
for admission of expert testimony. The Barnes Court held that Daubert
had not affected the applicability of standards set forth in the Sutton
decision. The Court also repeated that using a local standard led to
the “unfair and prejudicial” result that deaths of children from
affluent areas would get larger awards than children from poor areas.
The Court also pointed out that the defense had vigorously cross
examined Carter on these issues and that jury had rejected the defense
position in reaching its decision. The trial court’s decision was
affirmed. Suggested by Gerald D. Martin.
March 21, 2010
Kranz v. Tiger, 2010 N. J.
Super. Unpub. LEXIS 498 (N.J. Super. 2010). In this case, Dr.
Arthur Tiger, a medical doctor, was sued because of his failure to
appear at a medical negligence trial in which the plaintiff Kranz had
sued for damages with Tiger as his medical expert. Because the case
depended heavily on testimony of Tiger, Kranz settled his negligence
case for a lower amount than he had expected to win if Tiger had
testified. Kranz then sued his attorneys and Tiger. Kranz’s attorneys
had settled out of the case. The case went to trial and jury found that
Tiger had not been negligent based on the reasons for his
non-appearance at the trial. Kranz’s attorneys had failed to call Tiger
to tell him to come to court on the trial date, but Kranz argued that
Tiger had been notified previously to appear and should have called to
confirm that he was still needed. Tiger, as had been his previous
practice, was in his office waiting for a telephone call that did not
come and had concluded that the case had settled when he did not
receive a call on the date of his scheduled appearance. The Superior
Court of New Jersey upheld the trial court decision that Tiger was not
negligent. Suggested by Frank Tinari.
March 28, 2010
Eaton v. Hancock County, 2010
U.S. Dist. LEXIS 28817 (D. Maine 2010). This is an order of John A.
Woodcock, Jr., chief federal district judge of the District of Maine
upholding a granted motion in limine of a U.S. magistrate judge. The
magistrate judge had granted a motion in limine to bar testimony of
vocational expert Peter Mazzaro and economist Dr. Robert Strong that
was based on the assumption that the plaintiff Ronald Eaton would have
become a licensed master plumber with corresponding earnings. At the
time of his injury, Eaton was an unlicensed plumber’s helper with
limited work history. The magistrate judge had allowed testimony based
on the plaintiff’s actual work history, but barred testimony based on
the plaintiff becoming a licensed plumber in the future. There was
testimony that Eaton had completed a twelve-month trainee program as a
plumber and was supposed to start as an apprentice. Judge Woodcock
said: “Even conceding Mr. Eaton’s facts, to conclude that Mr. Eaton
would have become a licensed plumber still requires speculation about
his successful completion of a multi-step process, involving thousands
of hours of fieldwork under ongoing supervision and a passing grade on
a master plumber’s written examination. . . The brief answer to these
objections is that even though Mr. Eaton had taken the very first step
along this difficult course, had demonstrated an interest and aptitude
in plumbing, and might at some point achieved his aspiration, to assume
at trial that he would have done so would be to speculate.
April 4, 2010
Wolfe v. United States, 2010
U.S. Dist. LEXIS 31813 (S.D. Miss. 2010). The Court held that: “Under
Mississippi law, in order to establish a legal ‘causal’ connection the
plaintiff must show that the claimed proper treatment (in a medical
malpractice case) . . . would have provided him with a greater than
fifty percent chance of a better result than was in fact obtained
(parentheses added, bolding in original).” In this case, a “better
result” would have been survival of the decedent if the decedent had
been admitted to the medical facility two days earlier in spite of the
decedent’s refusal to be admitted to the facility.
April 19, 2010
Vokovich v. 1345 Fee LLC, 2010
N.Y. Slip Op 2986; 2010 N.Y. App. Div. LEXIS 2933 (N.Y. App. Div.
2010). As regards basis earnings, the appellate court said in
affirming the trial court: “As to the award for future lost earnings,
plaintiff's economist projected this claim by presuming plaintiff would
work as a steamfitter 50 weeks a year for another 12 years, under the
collective bargaining agreement negotiated by Local 638 of the
Steamfitters Union, while ignoring the fact that plaintiff had actually
been working, both before and after the accident, through Local 355 of
the Services Workers Union, at wages substantially less than those
available through Local 638. This economic analysis utilized the higher
wages and benefits available from Local 638, applying a growth rate of
3.5% per year through plaintiff's anticipated retirement at age 65, and
assumed that he would work 35 hours per week (1,750 hours each year),
notwithstanding testimony from the vice president of Local 638 that a
steamfitter is lucky to work even 1,700 hours per year. This estimate,
predicated on various assumptions that lacked any evidentiary support,
was unduly inflated, and thus justified the court's reduction of the
jury's award.”
Taylor v. Progressive Security Ins. Co.,
09-701 (La.App. 3 Cir. 04/07/10); 2101 La. App. LEXIS 506 (La. App.
2010). The Court said: “The evidence in the record demonstrates that
Ms. Taylor has incurred almost $ 65,000.00 in medical expenses in a
four-year period, without yet having an expensive neck surgery
recommended by her physician. Ms. Taylor's future expenses (including a
possibility of two costly surgeries and a multitude of additional
treatments) were established with some degree of certainty. Thus, the
jury did not err in awarding Ms. Taylor $180,000.00 for future medical
expenses, and we will not disturb that award (italics added for
emphasis).”
Cox v. Shelter Insurance Company,
09-0958 (La.App. 3 Cir. 04/07/10); 2010 La. App. LEXIS 509 (La. App.
2010). The trial court judge had granted a motion in limine to bar the
testimony of vocational expert Glenn Hebert in its entirety and to
preclude economist Dr. Douglas Womack from testifying on any wage
issue, basing its decision on a Daubert standard. The Louisiana Court
of Appeals held that it was in error to do so, saying: “The trial court
did not base its decision on the defendants' Daubert argument. Instead,
it concluded that neither witness could testify concerning loss of
earning capacity because, at the time of trial, Mrs. Brown had not
enrolled in nursing school and was not then a nutritionist. That being
the case, the trial court concluded, any testimony concerning lost
wages in either of these two fields would be based on conjecture. The
general rule is that ‘the factual basis for an expert's opinion goes to
the credibility of the testimony, not its admissibility, and it is up
to the opposing party to examine the factual basis of the opinion in
cross-examination.’. . . Appellate review of a question of law is
simply a decision as to whether the trial court's decision is legally
correct or incorrect. . . The fact that Mrs. Brown had not enrolled in
nursing school does not, as a matter of law, preclude the Browns from
presenting expert testimony on whether Mrs. Brown suffered a loss of
earning capacity because she is now unable to become a nurse. The
factual basis of the experts' opinions is a credibility issue that
should have been resolved by the jury. . .Accordingly, we find that the
trial court erred in granting the defendants' motion in limine to
exclude the testimony of Mr. Hebert and Dr. Womack.”
Falik v. Hornage, 2010 Md.
LEXIS 110 (Md. App. 2010). This decision involved appeals
relating to two trial court decisions relating to extensive information
sought by the plaintiff about the defense medical expert’s financial
records. Plaintiff attorneys in Falik v. Hornage wanted copies of all
of Dr. Falik’s 1099's for the past 5 years, a list of all cases in
which he had provided expert testimony to include the name and contact
information for both the party and the party’s attorney who had
retained him, federal and state income tax returns, both personal and
business, for the past five years, a copy of Dr. Falik’s calendar
reflecting appointments for defense related medical examinations, and
occasions on which Dr. Falik had testified live in any court for any
defendant. After the Circuit court granted plaintiff’s motion in part,
Dr. Falik appealed that decision, but ultimately withdrew from that
case, rendering the appeal moot. Similar demands were made in Falik v.
Holthus. The circuit court in Holthus granted plaintiff motions,
but limited the time frame to two years and issued a confidentiality
order. That decision was also appealed. Falik v. Hornage was then
consolidated with Falik v. Hornage for purposes of the current
decision. The Maryland Court of Appeals provided extensive discussion
of prior cases involving personal financial records of expert witnesses
in Maryland and Pennsylvania, with the court citing Wrobleski v. de
Lara, 353 Md. 509, saying: “[W]e conclude that the trial court in
Holthus followed thoughtfully our guidance in Wrobleski to allow only a
controlled inquiry into whether a witness offered as an expert earns a
significant portion or amount of income from applying his or her
expertise in a forensic nature and is thus in the nature of a
‘professional witness.” The Court of Appeals went on to comment that
even though the case of Falik v. Hornage had been rendered moot by the
withdrawal of Dr. Falik, the Court of Appeals felt that the trial court
in Hornage had not tightly controlled the amount of information that
Dr. Falik was required to provide in the manner indicated in Wrobleski.
April 23, 2010
Pollard v. E. I. Du Pont De Nemours
& Company, 532 U.S. 843; 121 S. Ct. 1946 (2001). This
decision of the United States Supreme Court held that front pay is not
a compensatory damage in a wrongful termination case, but an equitable
remedy that serves in lieu of reinstatement in the job from which an
individual was wrongfully terminated. This was relevant to the size of
an plaintiff’s award in that compensatory damages were subject to a
statutory cap on compensatory damages. The Court defined front pay as
follows: “[F]ront pay is simply money awarded for lost compensation
during the period between judgment and reinstatement or in lieu of
reinstatement. For instance, when an appropriate position for the
plaintiff is not immediately available without displacing an incumbent
employee, courts have ordered reinstatement upon the opening of such a
position and have ordered front pay until reinstatement occurs.”
Sedie v. United States, 2010
U.S. Dist. LEXIS 39123. (N.D.Ca. 2010). In this opinion, Magistrate
Judge Elizabeth D. Laport provided extensive discussion of how she
weighed evidence in a personal injury case in which both plaintiff and
defendant had retained vocational experts and economic experts. She
strongly favored the opinions of vocational expert Andrew O’Brien and
was fairly critical of things that Thomas Yankowski did not do. She
also favored the analysis of economist Margo Ogus over Phillip
Allman, but the basis appeared to primarily be that Allman had relied
on the opinions of Yankowski, which in turn were largely based on one
medical doctor whose testimony did not impress Judge Laporte. However,
the judge also felt that O’Brien and Ogus had not omitted steps that
she felt had been omitted by Yankowski and Allman.
April 27, 2010
Smith v. Sandals Resorts International,
2010 U.S. Dist. LEXIS 39028 (E.D. Pa 2010). Judge Timothy R. Rice
agreed to change $1 million of a $6.5 million settlement from an award
under Pennsylvania’s wrongful death act to Pennsylvania’s survival
action. This was in response to an appeal by the father of a single
male living alone whom the judge said had very little to do with
raising the decedent. Judge Rice held that the father had no
entitlement to any funds from the wrongful death portion of the
settlement, but felt that the settlement had not accounted for 250 days
of pain and suffering preceding the death of the decedent. The amount
of the settlement was not changed, but the changed allocation of the
award within the settlement amount resulted in the father receiving
$245,628.23. A letter from economic expert Andrew Verzilli is mentioned
in footnote 6, but there was no discussion of Verzilli’s
opinions.
May 1, 2010
Smith v. Louisiana Farm Bureau
Casualty Insurance Company, 45,013 (La.App. 2 Cir. 04/23/10);
2010 La. App. LEXIS 563 (La. App. 2010). This decision reduced the
trial court amount, but held the Louisiana Farm Bureau Insurance
Company liable for a $122,000 award to the plaintiff in a Louisiana
wrongful death circumstance. Dr. W. Patton Culbertson was the economic
expert for the plaintiff and Dr. Melvin Harju was the economic expert
for the defendant. The court described the calculations of each expert
and adjusted the amount of lost support based on Dr. Culbertson’s
figure after correction for Dr. Culbertson’s misunderstanding of the
amount of monthly payments on a monthly car note. The decision also
described the interaction of the Louisiana survival action and wrongful
death action. After reviewing whether the decedent had survived for
even an instant after his fatal accident, the Court approved an award
of $250,000 for damages in the survival action in addition to the
$122,000 in damages under the wrongful death action, saying: “If there
is even a scintilla of evidence showing any pain and suffering by a
victim prior to his death, damages are warranted in a survival
action.”
Hoyt v. Career Systems Development
Corporation, 2010 U.S. Dist Lexis 43584 (S.D. CA 2010).
This judicial memorandum considered nine motions in limine, the seventh
of which was to bar the testimony of Gene Konrad, a CPA. The court
said: “Plaintiff argues that her economic expert, Gene Konrad, a
certified public accountant familiar with personnel and payroll
matters, should be able to offer an expert opinion as to whether
Plaintiff was an employee or an independent contractor. . . [A]s noted
by the Court in the order on summary judgment, the ‘most important
consideration’ in determining whether an individual is an employee or
an independent agent is the control test, which considers ‘whether the
person to whom the services is rendered has the right to control the
manner and means of accomplishing the result desired.’ . . . The Court
grants Defendant’s motion to exclude Plaintiff’s expert from opining as
to whether Plaintiff was an independent contractor or an employee
because the testimony would constitute a legal conclusion and invade
the jury’s fact-finding role and the Court’s role in instructing the
jury on the applicable law. Additionally, the Court finds that the most
important factor, the degree of control Defendant exercised over
Plaintiff, falls within the common knowledge and experience of the jury
and that expert testimony on the subject is excluded.”
May 12, 2010
White v. Cooper Tools, Inc.,
2010 U.S. Dist. LEXIS 45730 (D.S.D. 2010). In this case, Dr. George
Langelett was the economic expert for the plaintiff and Linda K. Graham
was the life care planning expert for the plaintiff. The defense had
offered no damages experts, contesting the case primarily on liability.
After the testimony of a liability expert for the plaintiff, the
defense petitioned for a continuance that included obtaining economic
expert Dr. Kenneth Boudreaux and rehabilitation expert Mr. Larry
Stokes, whose reports were filed five days after the new deadline.
Plaintiff submitted a motion in limine to bar defense experts based on
timeliness. The Court held that the delay was “harmless error” and did
not impose sanctions on the defense or exclude the testimony of defense
experts.
May 19, 2010
Ellis v. Ethicon, Inc., 2009
U.S. Dist LEXIS 106620 (D.N.J. 2009). This was an opinion rejecting the
cross appeals of defendant and plaintiff under the Americans with
Disabilities Act (ADA) and reinstating the employment of Theresa Ellis.
In dealing with the issue of back pay damages, the Court said:
“Plaintiff offered the expert testimony of Dr. Gamboa, a vocational
expert on damages, to support her claim of back pay. Dr. Gamboa
testified that Ellis’ total economic loss (past and future), which
included a reduction for taxes, both federal and state taxes, is
$1,769,000. See Gamboa, 22. The starting point for Dr. Gamboa’s
conclusion is determining Ellis’ present value salary. Dr. Gamboa used
$82,540 – which is inaccurate – as Ellis’ salary when she left Ethicon
and, without an explanation, testified that Ellis’ present value salary
in 2007 was $98,097. . . Dr. Gamboa then multiplied that figure by
Ellis’ worklife expectancy of 19 years and subtracted from that number
$200,000, which represents Ellis’ earnings from Aventis, and any
federal and state taxes. Dr. Gamboa concluded that Ellis’ total
economic loss is approximately $1.7 million. However, in light of the
findings made in this Opinion, the Court holds that, in many respects,
Dr. Gamboa’s simplistic calculations are neither helpful nor reliable.”
The Court then went on to make its own calculation of back pay,
arriving at a figure of $42,400. The decision also goes on to allow
calculations of gross-ups to adjust the back pay award for tax
consequences of being paid in a lump sum, requiring the plaintiff to
provide additional financial analysis to determine the appropriate
amount for the gross-up.
Kempf Contracting and Design, Inc.,
v. Cynthia Holland-Tucker, 892 N.E.2d 672 (Indiana App. 2008).
The Indiana Court of Appeals held that it was an abuse of discretion
for the trial court judge to have allowed the economic testimony of
vocational expert John Tierney. The Court described Tierney’s testimony
as follows: “As part of his opinion, Tierney determined that Tucker
suffered a permanent physical disability. He based that opinion on a
definition of physical disability used by the American Community Survey
(“ACS”), which is conducted by the United States Census Bureau. The ACS
defines physical disability as “conditions that substantially limit one
or more basic physical activities such as walking, climbing stairs,
reaching, lifting, or carrying.”. . Tierney then used databases
compiled by the government to determine the earning capacity of people
with a physical disability who have attained a bachelor’s degree, as
Tucker had, and to determine the work life expectancy of people in the
same category. He did not look at data regarding people with a physical
disability in Tucker’s specific profession of engineering, as that
information was not a available in the databases he utilized. . . The
databases Tierney utilized in reaching his opinion were not
specifically geared to Tucker’s specific disability, but only to
persons with a general disability as defined by the ACS. .
. Tucker failed to present any evidence to establish the
scientific reliability of Tierney’s methodology in determining Tucker’s
reduction in earning capacity and work life expectancy. . . Tucker
presented no evidence . . . that this process had been tested or
subjected to peer review, or whether there was a known or potential
error rate. Further, no testimony was given that standards
existed to control how the process was utilized by people in the
vocational economic field. At the motion to exclude hearing, Tierney
testified that the database and methodology he used to determine
Tucker’s future earning capacity were well known in the field of
vocational disability and rehabilitation and that private parties have
written to the effect that disability has an effect on earnings and
employment. . . However, Tierney did not name any peer-reviewed
publication or provide any citation to authority that supported his
bald assertion that his methodology to determine Tucker’s lost future
earnings was generally accepted in the field of vocational economics.
Additionally, even though Tierney may have testified previously
regarding this methodology, such fact does not establish that his
methodology was scientifically reliable. As a result, we conclude that.
. . the trial court abused its discretion when it allowed Tierney to
testify.
May 31, 2010
Sallitt v. Stankus, 2010 U.S.
Dist. LEXIS 51957 (M.D. PA 2010). This is a memorandum rejecting an
appeal by the defendants in a wrongful discharge case in which a
sheriff punished a deputy for supporting his opponent in a past
election. The economist for the plaintiff was Andrew Verzilli. One of
the points of appeal by the defendant was that plaintiff suffered no
economic damages and should not have been awarded back pay and front
pay because he was suspended with pay during a nine month period before
the final discharge. The judge pointed out that the jury had not
awarded back or front pay, but past and future economic damages based
on the impact of the suspension and ultimate discharge on the deputy’s
opportunities to obtain other remunerative employment. The defendant
also argued that plaintiff’s economic expert Andrew Verzilli was not
aware of pertinent facts relating to the other employment opportunities
that were lost. The judge said about this argument: The economist was
not charged with the task of determining what factors precluded
plaintiff from obtaining these jobs. The jury’s task was to determine
whether the defendant actually caused these losses. Therefore, whether
the economist had pertinent facts regarding the employment at these
other places or why plaintiff was precluded from those jobs is
immaterial. The defendant also argued that since Verzilli had projected
the losses as between $687,000 and $1,657,035, the jury’s award of
$125,000 for these losses involved gross speculation. In a footnote,
the judge said: “Notably, defense counsel did not request that the
court charge the jury that they must at least award the minimum amount
suggested by the plaintiff’s expert witness.
Delane v. City of Newark, 343
N.J. Super. 225; 778 A.2d 511 (N.J. Super. 2001). This was an
allocation order relating to a lien on workers’ compensation benefits
received by Heidi Delane after the death of her husband. Regarding loss
of companionship the Court said: “[D]amages for loss of companionship
and society are really economic dependency damages. See Green v.
Bittner, 85 N.J.1; 424 A.2d 210 (1980).The measure of these sorts of
damages is the monetary value of those services which the dead
companion used to provide and for which the dependent must now pay.”
Suggested by Frank Tinari.
June 24, 2010
Rath v. Hamilton Standard Division of
United Technologies Corp., 292 N.W. 2d (Minn. 1980). This
decision involved the distribution of a wrongful death award. The court
held that the decedent’s daughter should have been able to recover more
than her loss of monthly child support payments. In the context of that
decision, the Minnesota Supreme Court said that it had “held
consistently that nondependent relatives may recover, e.g., the parents
of a child beyond majority who has married . . .; or a wife who has
since remarried. The Court also quoted an article in Bench and Bar by
Judge Hatfield to the effect that: “Unless there is a showing that a
child will suffer a pecuniary loss by the death of his parent after he
reaches the age of 21, it is my suggestion and practice to determine
the number of support years that the surviving spouse and each of the
next of kin have lost by reason of the death and divide the funds for
distribution proportionately. The article by Judge Hatfield then gave a
mathematical example in which the wife would be supported for her 20
year life expectancy, one child for one year to age 21, another child
for 11 years to age 21, and a third child for 16 years to 21 for a
total of 48 support years. The apportionment would then be 20/48ths,
1/48ths, 11/48ths and 16/48ths. This decision may provide a basis for
arguing that age 21 is the normal expected period for a normal health
child to be able to recover loss of financial support. Suggested by
Dave Jones.
August 8, 2010.
Painter v. Ju Lin, 2010 U.S.
Dist. LEXIS 77936 (E.D. Tenn. 2010). This decision sets out the
standards for recovery in a wrongful death action in Tennessee. It
stresses that: “[T]he assessment of damages is not governed by fixed
rules of mathematical precession, but the matter is left to the sound
discretion of the jury.” The Court went on to say: “Damages under the
Tennessee wrongful death statute can be delineated into two distinct
classifications. . . The first classification permits recovery for
injuries sustained by the deceased from the time of injury to the time
of death. Damages under the first classification include medical
expenses, physical and mental pain and suffering, funeral expenses,
lost wages, and loss of earning capacity. . . The second classification
permits recovery of incidental damages suffered by the decedent’s next
of kin. . . Incidental damages have been judicially defined to include
‘the expectancy of life, the age, condition of health and strength,
capacity for labor and earning money through skill, any art, trade,
profession or business, and personal habits as to sobriety and
industry. . . Pecuniary value also takes into account the decedent’s
probable living expenses had the decedent lived. . . Thus, in an action
by a wife for damages for the wrongful death of her husband, the
measure of recovery is the pecuniary value of the life of the husband
to the wife, and not what wages the husband might have been able to
earn, nor merely what it would have taken to hire another to do the
work he did, as such basis of recovery would overlook the value of the
husband’s personal interest in the affairs of the home and the economy
incident to his services. . . The party seeking damages has the burden
of proving them. However, in tort cases the proof need not establish
the amount of damages with mathematical precision . . . as long as the
proof is as certain as the nature of the case permits, and it enables
the jury to make a fair and reasonable assessment of the damages. . .
Thus, while damages should not be awarded when the existence of damages
is uncertain, they may be awarded if the existence is certain, but the
extent of damages is not.”
Welch v. Leavey, 397 F.2d 189
(5th Cir. 1968). Welch was injured on November 24, 1961 and was
determined by the Commissioner under the Longshoreman Act to have
suffered a permanent partial-disability to his back. Welch had
subsequently been promoted and had an increase in salary from $10,790
in 1959 to $14,927 in 1964. The Longshoreman Act 33 U.S.C. §
908(c)(21) required compensation equal to 66 2/3 percentum of the
difference between his average weekly wages and his wage-earning
capacity thereafter in the same employment or otherwise. Because the
Deputy Commissioner had determined that Welch’s wage-earning capacity
had increased rather than fallen, no permanent award was made. Welch
appealed. In denying Welch’s appeal, the 5th Circuit cited section 908
(h) of the Longshoreman Act as follows: “The wage-earning capacity of
an injured employee * * * shall be determined by his actual earnings if
such actual earnings fairly and reasonably represent his wage-earning
capacity; provided, however, that if the employee has no actual
earnings or his actual earnings do not fairly and reasonably represent
his wage-earning capacity, the deputy commissioner may, in the interest
of justice, fix such wage earning capacity as shall be reasonable,
having due regard to the nature of the injury, the degree of physical
impairment, his usual employment, and other factors or circumstances in
the case which may affect his capacity to earn wages in his disabled
condition including the effect of disability as it may naturally extend
into the future.”
August 9, 2010
Hopper v. M/V UBC Singapore,
2010 U.S. Dist. LEXIS 70716 (S.D. Tex. 2010). This memorandum granted
defense motions to exclude the testimony of three plaintiff experts,
including Dr. Kenneth McCoin, an economist. The Court said: “In the
Fifth Circuit, lost future wages in maritime cases are calculated using
a four-step process: (1) estimate the expected remaining work-life of
the plaintiff; (2) calculate the lost income stream; (3) compute the
total amount of damages; and (4) discount that total amount to its
present value. Culver v. Slater Boat Co., 722 F.2d 114, 117 (5th Cir.
1983)(en banc). . . ‘Calculation of the lost income stream begins with
the gross earnings of the injured party at the time of the injury.’
From the gross earnings combined with other income incidental to the
injured party’s work, ‘the fact finder should subtract amounts the wage
earner would be required to pay, such as income tax and work
expenses.’. . Where the injury results in the wage earner’s death, ‘the
maximum loss of benefits to the survivors cannot be determined without
also subtracting the living expenses that the worker would have
incurred had he continued to live and work. . . The record establishes
that McCoin, while acknowledging the Culver procedure, failed to comply
with it in any meaningful way. McCoin began his analysis with
$93,000.00 as Hopper’s gross earnings at the time of his death in April
2009. His only source for this figure was the representation of
Plaintiff’s counsel. . . McCoin had the relevant payroll information,
including 1099 forms, pay stubs and unfiled tax returns, but he elected
not to consider this information. Had he reviewed the actual payroll
records, he could have determined that Hopper’s annualized gross
revenue for 2009 was $69,000. Alternatively, he could have determined
that Hopper’s historical annual gross revenue was $73,067. Instead,
McCoin chose to accept the figure provided by Plaintiff’s counsel. This
is clearly not ‘the same level of intellectual rigor that characterizes
the practice of an expert in the relevant field.’ McCoin failed to
deduct all the taxes that Hopper would be required to pay. Although
McCoin issued a timely revision to his report, deducting $299,039.00 in
Social Security taxes he initially failed to deduct, the original
failure to deduct all applicable taxes reflects the lack of
‘intellectual rigor’ in McCoin’s analysis in this case. . . In
calculating the living expenses that Hopper would have incurred had he
continued to live and work, also referred to as the personal
consumption deduction, McCoin relied on a Department of Labor report
entitled, ‘Consumer Expenditures for 2007.” There is no evidence that
this report is routinely used or generally accepted by economic experts
for calculating a personal consumption deduction. Indeed, the report is
a survey of household expenses for a year, not an analysis of the
amount any individual would be expected to consume over an extended
period of years.’”
September 2, 2010
Kuithe v. Gulf Caribe Maritime, Inc.,
2010 U.S. Dist LEXIS 89661 (S.D. Alabama 2010). The defendant
challenged the trial court decision on the ground that the report of
the plaintiff economic exert’s reduction of the plaintiff's lost future
earnings to present value did not employ the below-market discount
method required by Culver v. Slater Boat Co., 722 F.2d 114
(former 5th Cir. 1983) (en banc) ("Culver II"). The court said: “It is
clear that the report of the plaintiff's expert does not employ the
below-market discount rate method required by Culver II. Instead, it
uses a nominal interest rate of 4.5%. However, the expert in his
deposition testimony made clear that he utilized an inflation rate of
3.5% in calculating the plaintiff's lost future income and that, had he
used the below-market discount method, he would have used the same
inflation rate and a below-market discount rate of 1%. He also
testified that, had he used the below-market discount rate method, his
figures for the present value of lost income would have been exactly
the same (because the 3.5% would have been deducted from both the
future income stream and the discount rate). The plaintiff thus
presented expert evidence of a below-market discount rate and of lost
income using that method. The defendant's motion for judgment on
partial findings is due to be denied in this respect.”
November 21, 2010
Blackwell v. Wyeth, 408 Md.
575; 971 A.2d 235 (Maryland 2009). This decision affirmed the decision
of trial court Judge Berger preclude expert testimony claiming that the
drug thimerosal in a vaccine might have been the cause of autism in
Jamarr Blackwell. In this decision Maryland’s highest court (Court of
Appeals) also reaffirmed that Frye-Reed standards applicable in
Maryland and not Daubert standards for the admission of expert
testimony under Maryland Rule 5-702, which is Maryland’s equivalent of
Rule 702 in the Federal Rules of Civil Procedure. The “Frye” part of
the Frye-Reed standard is based on the federal decision in Frye v.
United States, 293 F. 1013 (D.C. Cir. 1923). Maryland adopted the Frye
standard of “general acceptance within the relevant profession” in Reed
v. State, 283 Md.375; 391 A.2d 364 (1978). The trial court judge had
held a ten-day evidentiary hearing before excluding the testimony of
plaintiff’s experts. The Court of Appeals went to great length to
describe the testimony in Blackwell and to explain Maryland’s reliance
on the “general acceptance” criterion in Frye. However, the Court cited
a number of Daubert-based decisions in reporting its analysis,
particularly the U.S. Supreme Court decision in Joiner v. General
Electric Company, 522 U.S. 136 (1997). In Joiner, the U.S.
Supreme Court spoke about avoidance of an “analytic gap” between the
evidence presented and the inferences to be drawn as necessitating
speculation on the part of a jury. Joiner was also cited as having
“admonished against reliance solely on an expert’s word that his
conclusion is appropriate to the underlying data and methods.” The
Blackwell Court went on to cite a number of cases in other states in
which there was focus on the issue of the “analytic gap” between the
evidence to be presented and conclusions to be inferred. Based on those
cases, the Blackwell court looked in detail at the basis for the
proposed testimony of plaintiff experts and found that none of the
methods used by those experts to establish a causal link between
thimerosal and autism was generally accepted in the medical professions
relevant to admission of the testimony. The trial court judge
determined that none of five plaintiff experts was expert in the
relevant field, which Judge Berger had determined to be epidemiology.
In upholding Judge Berger’s conclusion, the Blackwell Court said: “When
a novel theory of science is presented . . . its reliability and
validity are dependent not only on the application of generally
acceptable methodology and analysis, but also upon the knowledge,
skill, experience, training or education of the scientist who purports
to utilize them, because the expert must embody expertise in the
relevant scientific field to be able to give an opinion regarding the
results of the process of scientific discovery.” The Blackwell Court
held that since none of the five plaintiff experts had expertise
relevant to maintaining generally accepted standards in analyses
relating to autism and its causes, the trial court judge had not abused
his discretion in precluding the testimony of those experts. The Court
added that: “[W]e agree with the well-reasoned and cogent opinion of
Judge Berger.”
Estate of Shearer v. T & W. Tool
and Die Corporation, 2010 WL 2870266; 2010 U.S. Dist. LEXIS
73197 (E.D.KY 2010). The Court held that the hedonic damages testimony
and loss of relationship testimony of economic expert Dr. Stan V. Smith
was not admissible under Federal Rule 702 and Daubert Standards. The
reason given for non-admissibility, however, was that there is no right
to recover for loss of enjoyment of life or loss of relationship in a
Kentucky wrongful death action. Thus, Smith’s testimony was precluded
as irrelevant to the issues to be resolved in litigation. There was no
assessment of the scientific merits of hedonic damages testimony.
November 24, 2010
Janda v. Michael Renzi Trust,
2010 NY Slip Op 8534; 2010 N.Y. App. Div. (N.Y. App. 2010). This
decision involved an appeal from the defense regarding, among other
issues, the base income of the plaintiff. The Appeals Court said: “[A]s
the defendants correctly contend, the plaintiff's economist erroneously
projected the plaintiff's lost earnings based on an annualization of
his earnings for the year 2005. The record establishes that the
plaintiff earned $ 25 per hour for the first half of 2005 and only $ 15
per hour subsequently, until the date of the accident. Since no
evidence was adduced that the plaintiff would again have earned $25 per
hour, the economist's earnings projection was incorrect to the
extent it was based on that assumption. Accordingly, the awards for
past and future lost earnings are excessive to the extent indicated.”
December 23, 2010
Helpin v. Trustees of the University
of Pennsylvania, 2010 Pa. LEXIS 2911 (Pa 2010). The Pennsylvania
Supreme Court renewed its commitment to its decision in Kaczkowski v.
Bolubasz, 421 A.2d 1027 (Pa. 1980), holding that calculation of lost
future earnings in Pennsylvania other than medical malpractice cases
must be based on a 0% real discount rate, meaning that “viewed long
term, inflation rate and interest rate will completely offset each
other.” Justice Saylor’s dissent called for normal discounting, as in
other states.
December 31, 2010
Schnebly v. Baker, 217 N.W.2d
708 (Iowa 1974). The Iowa Supreme Court upheld a trial court decision
that the cost of life care for a child would increase at the same rate
as the discount rate. The decision appeared to assume that the rate of
inflation and the rate of the cost of care for the child were the same
growth rate. This was a case cited in Paducah Area Public Library v.
Terry, 655 S.W.2d 19 (1983) as having allowed a total offset assumption
by the trial court. However, the essence of the decision was that
inflation could be considered, but that future values should be reduced
to present value. The trial court had offset future inflation with the
discount rate and the Schnebly court held that was permissible based on
the evidence in the Schnebly case.