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.