This page
contains descriptions of legal decisions that were developed or revised
by Thomas Ireland during 2011
January 1, 2011
Kaczkowski vs. Bolubasz, 421
A.2d 1027 (Pennsylvania 1980). The Pennsylvania Supreme Court held that
damages should be based on a “total offset” between rate of inflation
and discount rate in all Pennsylvania cases, but allowed Pennsylvania
trial courts to have testimony about productivity gains an individual
worker might have achieved over his or her lifetime. In its analysis,
the Court rejected theories that ignored the impact of future
inflation, but ultimately chose between “the evidentiary approach”
taken by the Court in Feldman v. Allegheny Airlines, 382 F. Supp 1271
(D. Conn. 1974), aff’d 524 F.2d 384 (1st Cir. 1975) and a modified
version of the “total offset” approach taken by the Alaska Supreme
Court in Beaulieu v. Elliot, 434 P.2d 665 (1967). Beaulieu did not
separately consider productivity increases, which Kaczkowski allowed.
The Kaczkowski court said: “Upon proper foundation, the court shall
consider the victim’s lost future productivity. Moreover, we find as a
matter of law that future inflation will be presumed equal to future
interest rates with these factors offsetting. Thus, the courts of this
Commonwealth are instructed to abandon the practice of discounting lost
future earnings. By this method, we are able to reflect the impact of
inflation on these cases without specifically submitting this question
to the jury.” Justice Flaherty dissented, saying: [S]uch an approach is
a simple one, but it does not achieve justice, and, has only been
adopted in one jurisdiction, i.e. Alaska. We should simply permit
expert testimony on the issues of inflation and productivity.” On March
2, 2002, the Pennsylvania legislature enacted The MCARE Act (PA
2002-13) requiring that ordinary discounting procedures should be
applied in medical malpractice cases to projections of lost earnings,
but other types of cases in Pennsylvania still require use of total
offset discounting.
January 17, 2011
Mitchell v. Buchheit, 559
S.W.2d 528 (Missouri 1977). In this decision, the Missouri
Supreme Court reversed previous case law that prevented parents from
suing for damages during the majority of adult children, as had been
the case under earlier versions of the Missouri Wrongful Death Act. The
Court said: “Parents, seeking to recover for the death of a minor
child, should not be prohibited from trying to establish a reasonable
probability of pecuniary benefit from the continued life of said child
beyond the age of minority.”
February 17, 2011
Matlock v. Greyhound Lines, Inc.
2010
U.S. Dist. LEXIS 92359 (D. Nev. 2010). The defendant argued
that hedonic damages are a component of pain and suffering and are not
a separate and distinct compensatory award, and that expert testimony
is required to support a claim for hedonic damages. The Court said:
“The Court does not agree. Hedonic damages are ‘monetary remedies
awarded to compensate injured persons for their noneconomic loss of
life's pleasures or the loss of enjoyment of life.’ Banks ex rel. Banks
v. Sunrise Hosp., 120 Nev. 822, 102 P.3d 52, 61--64 (2004). In Banks
the Nevada Supreme Court found that expert testimony is not
required, but may be utilized to assist a jury in making its
determination of hedonic damages. Additionally, the Banks court found
that awards for hedonic damages are typically not permitted separate
and apart from pain and suffering damages. As in Banks however, the
award here was not prejudicial ‘because the jury could have easily
added the value of the hedonic loss to the pain and suffering award.’”
March 8, 2011
Couch v. Astec Industries, Inc.,
2002
NMCA 84 (New Mexico Court of Appeals 2002). This decision
reconfirms that a trial court judge can admit testimony by an economic
expert about hedonic damages in a personal injury case in New
Mexico. Brian McDonald had testified at the trial court level
that the value of a statistical life lies between $500,000 and $11
million, with $3 million as the average. McDonald testified that this
figure represented “the value of an entire life from cradle to grave
and included earnings as well as intangible enjoyment.” McDonald
declined to specify a percentage of a whole life that the plaintiff
lost because of his injuries. The defense appealed on the basis that
failure to specify a percentage rendered his testimony unhelpful to a
jury. The Court of Appeals responded: “We disagree. McDonald’s
testimony regarding a statistical life gave the jury a range of
monetary values that likely proved helpful in evaluating Plaintiff’s
claim. He also provided concrete guidance to the jury in determining a
percentage of the monetary value that might reasonably compensate
plaintiff. . .[I]f McDonald had complied and offered a specific value
for Plaintiff’s hedonic damages claim, he would have intruded
improperly into the fact finder’s domain.” The court cited Smith v.
Ingersoll-Rand Co, 214 F.3d 1235 (10th Cir. 2000) as indicating that
the role of an economic expert regarding hedonic damages in New Mexico
was one of explaining the general concept of hedonic damages and the
nature of the statistical studies in the value of life literature.
March 16, 2011
Adkins v. Hontz, 2011 Mo. App.
LEXIS 316 (Mo. App. 2011). This decision affirmed the trial court in a
cross appeal of a wrongful death verdict in a case involving the death
Malorie Adkins, a 13 year old girl. Among other issues upheld on
appeal, the trial court had refused to admit the testimony of Ina K.
Zimmerman, an expert witness in caregiving for the elderly, on the sum
of economic damages resulting from services the decedent child could
have provided to the plaintiff parents of the decedent child. The Court
of Appeals pointed out that Zimmerman was not an economist and that the
plaintiff had also provided the testimony of economist John O. Ward
“who extensively testified to the loss of earnings available to her
survivors had Malorie had some college education, if she had earned a
college degree, and if she had a master’s degree.” The Court added:
“Dr. Ward also testified as to the value of the loss of services,
attention, filial care, and protection suffered by the plaintiffs
because of Malorie’s death. Dr. Ward’s testimony extensively addressed
the subject matter of Zimmerman’s excluded testimony.” The jury awarded
$100,000 for past non-economic damages; $375,000 for future
non-economic damages; $17,771.16 for past economic loss; $0 for future
economic loss. In a combined survival action, the jury also awarded
$50,000 to the estate of Malorie Adkins for conscious pain and
suffering in the process of dying.
March 17, 2011
Sigur v. Emerson Process Management,
492
F. Supp. 2d 565 (M.D. La. 2007). Testimony of Philip A. Garrett,
CPA, regarding loss of sales as the alleged result of actions of the
defendant was excluded. The Court said: “[W]hile it is permissible for
an expert to be retained solely for the purpose of opining on the issue
of lost sales or damages, such an opinion is only relevant if it is
based upon correct causal assumptions. In other words, Garrett's
opinion concerning the quantity of Sigur's lost sales from January 1,
2005 to December 31, 2005 lacks the "relevance" to this lawsuit,
required by Fed. R. Evid. 702, if it is not based upon a correct
assumption that such losses in sales were caused by the alleged conduct
of the defendants, and the Court therefore deferred issuance of a final
ruling on defendants' motion to exclude to allow Sigur the opportunity
to submit some competent evidence demonstrating that the causal
ssumptions underlying Garrett's opinions are valid and that other
factors which may have impacted Sigur's sales during the relevant time
period, such as market conditions and the sales history of the
customers at issue, were considered in determining causation. In
conclusion, the Court noted that, if Sigur is able to submit competent,
summary judgment-type evidence indicating that there is, at the least,
a genuine factual dispute concerning the underlying causal assumptions
upon which Garrett relied in forming his opinions, Garrett's opinions
as to damages will have relevance to this matter, and the Court
can then proceed to determine whether Garrett's methodology in
calculating Sigur's damages satisfies the requirements of Daubert.” The
court then held that evidence did not support the causal assumptions
used by Garrett.
March 24, 2011
Gurule v. Ford Motor Company,
2011 N. M. Unpubl. LEXIS 51 (N.M. App. 2011). The New Mexico Court of
Appeals held that it was not in error for the trial court judge to have
admitted the hedonic damages testimony of William Patterson. The Court
said: “While we recognize that most courts have found quantifying the
value of a human life, including the loss of enjoyment component, to be
based on an unreliable methodology post-Daubert, we do not believe that
the district court erred in finding Patterson's testimony reliable. . .
Contrary to Defendant's characterization of Patterson's testimony,
Patterson's testimony was mostly definitional in nature as to the types
of considerations that can be taken into account when an economic value
is placed on the enjoyment of a human life. He testified that
economists have used several differing methods in valuing a human life,
including the enjoyment component, and that application of these
methods has led to a wide disparity in the dollar amounts that
economists have provided as benchmarks. He then provided a very broad
range of values for an individual Gurule's age, based on present value
calculations of an annual range determined by a meta-study that
averaged 67 individual studies to exemplify the wide divergence between
economists in determining the value of the enjoyment of life. We cannot
say that the district court abused its discretion in finding that this
testimony had a reliable basis. . . Patterson testified only as to the
theories and techniques economists use in determining the value of a
human life, and his calculations were not based on his personal
perceptions on the value of enjoyment of life, but instead were based
on values derived from a benchmark meta-study. As to Patterson's
qualifications, he has a bachelor's degree in economics, has taught a
variety of economic topics, has authored materials on a variety of
legal-economic topics, including the valuing of life, has been an
expert in court over 120 times, including testimony regarding hedonic
damages, and has been retained by Defendant in other cases.
Additionally, Defendant cross-examined Patterson both on his
qualifications and on his testimony. A general economic background in
conjunction with experience as an expert are sufficient qualifications
for expert testimony on the economic theories underlying the values
provided by benchmarks studies on loss of enjoyment of life and
calculating the present value of a range of benchmarks. . . Based on
the nature of Patterson's testimony and his background, we cannot say
that the district court abused its discretion in finding that Patterson
was qualified as an expert.”
April 23, 2011
Swartz v. Gale Webb Transportation
Company, 215 S.W.3d 127 (Missouri 2007). Megan Swartz was
injured in an automobile accident. The decision deals with medical
consequences of her injury that could not satisfy the “more likely than
not” requirement. The trial court decision to allow testimony about her
increased risk of those medical consequences was upheld. The Missouri
Supreme Court held that: “[W]hen an expert testifies to a reasonable
degree of certainty that the defendant’s conduct placed the plaintiff
at increased risk of suffering future consequences, Missouri courts
have long held that such testimony is admissible to aid the jury in
assessing the extent and value of the plaintiff’s present injuries,
even if those future consequences are not reasonably certain to occur.”
The court rejected an approach used in Illinois and Connecticut that
argued that: “A plaintiff can obtain compensation for a future injury
that is not reasonably certain to occur, but the compensation would
reflect the low probability of occurrence,” negatively citing Dillon v.
Evanston Hosp., 199 Ill. 2d 4839 (Ill. 2002). Instead, the Missouri
Supreme Court said: “[E]vidence of Ms. Swartz’s increased risk of
future harm was admissible for purpose of establishing the extent and
nature of her injuries. . . That Ms. Swartz’s present injury brings
with it this increased risk of future injury ‘is information the jury
should have in the difficult task of trying to give plaintiff’s
condition a dollar value,’” citing Vitt v. Ryder Truck Rentals, Inc.
340 So. 2d 962, 965 (Fla. App. 1977).
Deck v. Teasley, 322 S.W.3d
536 (Missouri 2010). This decision addressed the meaning of subsection
490.715.5 of the Missouri code that was newly enacted in 2005. That
section “codifies the common law collateral source rule and modifies it
in certain respects.” That subsection provides that evidence of the
dollar amount necessary to satisfy the financial obligation to health
care providers is admissible at trial and creates the rebuttable
assumption that such amount represents the value of the medical
treatment rendered. The court then said: “The effect of that
presumption is governed by the general law of presumptions. A
presumption places the burden of producing substantial evidence to
rebut the presumed fact on the party against whom the presumption
operates. . . When substantial evidence is produced rebutting the
presumed fact, the case is decided on the basis of the evidence as if
no presumption existed. . . In other words, when a presumption is
rebutted, it disappears from the case and the fact finder received the
issue free of any presumption.” The Court later added: “The
legislature’s use of a ‘rebuttable presumption’ is consistent with its
recognition that the item of damage for which recovery is sought is the
value of the services rendered, not a reimbursement of amounts paid by
a collateral source. Therefore, the legislature permitted a party to
introduce evidence that a figure other than the amount actually paid
represented the value of the services rendered in the particular case.”
In the Deck matter, the jury was only permitted to hear evidence that
the value of Ms. Deck’s medical treatment was $9,094.28, the amount Ms.
Deck, Medicare and supplemental insurance actually paid for the
treatment after adjustment and held that the jury should also have been
permitted to hear evidence that the value of her medical
treatment was $27, 991.30, the amount originally billed by medical
service providers as evidence of the value of the medical services she
required.
Martinez v. Milburn Enterprises, Inc.,
290
Kan. 572; 233 P.3d 204 (Kansas 2010). On July 23, 2005, plaintiff
Karen Martinez slipped and fell while shopping at defendant’s business
in Lyons, Kansas. She underwent back surgery at Wesley Medical Hospital
and was ultimately billed $70,496.15. The hospital accepted $5,310 in
satisfaction of the bill; $4,689 from plaintiff’s private health
insurance company, Coventry health Systems (Coventry), and $621 from
plaintiff as her deductible and co-pay. Pursuant to its contract with
Coventry, the hospital wrote off the balance of $65,186.15. The issue
on appeal was whether she could recover as medical costs the amount
originally billed or the amount accepted by the medical provider in
payment, regardless of the source of the payment. In a long decision,
the Court reviewed three approaches it found in other states: (1)
Reasonable value of services; (2) Actual amount paid; and (3) Benefit
of the Bargain. Reasonable value of services would often, but not
always mean using amounts originally billed as the reasonable value of
the services that could be recovered by plaintiffs. Actual amount paid
is the amount paid by third party providers. Benefit of the bargain
“allows plaintiffs to recover the full value of their medical expenses,
including the write-off amount, when the plaintiff has paid some
consideration for the benefit of the write-off.” The Court rejected the
benefit of the bargain approach proposed by the plaintiff, accepting a
“reasonable value” approach that expressly rejects an automatic
assumption that amounts charged are the “reasonable value” of the
amounts to be recovered, stating that: “Evidence demonstrating that the
charged amount is not reasonable typically has been admitted through
cross-examination of plaintiff’s witnesses, by direct examination of
defendant’s witnesses, or both.” The Court went on to say: “[W]e note
that according to KADC’s brief, studies performed earlier in this
decade reveal that the average charge-to-cost ratio (i.e. ‘mark up’)
for approximately 4,000 hospitals across the country was 244.37%.
Wesley Medical Center, the hospital where our plaintiff underwent her
surgery and treatment, had a charge-to-cost ration of almost 400%
according to the study.” The Court held that evidence of discounts was
admissible, but that the fact that the discounted values were paid by
collateral sources was not.
May 7, 2011
Oliveros v. Romm, 2011 Wash.
App. LEXIS 1069 (Wash. App. 2011). From the decision: “Dr. Clarence H.
Barnes testified that the Oliveroses’ past and future damages post-2002
accident totaled $836,818. The defense did not put on an expert to
controvert Dr. Barnes’s testimony.” After the verdict, one of the
jurors contacted the attorney for the plaintiff’s to claim juror
misconduct by the jury foreman and an appeal was filed based on that
claim. One of the claims of misconduct was that the jury awarded
$61,000 for past and future noneconomic damages, but zero sums for
economic damages even given that the economist’s figures and medical
bills were uncontroverted. The Court of Appeals held, however, that
there was no juror misconduct and affirmed the verdict.
Smith v. Jenkins, 2011 U.S.
Dist. LEXIS 47742 (D. MA 2011). In a case involving a claim of fraud,
defendant’s appealed partly based on an argument “that Smith's damages
were based solely on the expert testimony of Dr. Stanley Smith, a
forensic economist (who is not related to the plaintiff), which
defendants argue should not have been admitted. It is true that Dr.
Smith's testimony was hardly a model of exactitude, and in retrospect,
it perhaps should have been excluded, but it is equally true that from
every appearance, the jury did not base its damages award on those
portions of Dr. Smith's relatively brief testimony that veered from the
mundane into the purely speculative. (The court instructed the jury to
disregard Dr. Smith's attempt to import a wholly conjectural potential
tax liability into his "willingness to pay" econometric model and
refused to admit his written report in evidence). It appears rather
that the jury based its far less ambitious awards against those
defendants it found liable on a common-sense assessment of the impact
that the ruin of Smith's credit had (and will have) on his emotional
health and future earning prospects.” One of the defendants “made a
more amplified argument that the damages testimony of Dr. Smith was
unreliable and should have been excluded on Daubert grounds. As the
court is of the view that Dr. Smith's testimony (to the extent the jury
was permitted to consider it) had no pernicious influence on the
damages award, it will reject this argument.”
May 8, 2011
Urban Court Reporting v. Arnold Davis,
158
A.D.2d 401; 551 N.Y.S.2d 235 (New York App. Div. 1990). The
Appeals Court said: “[C]ontrary authority notwithstanding . . ., we
think that an attorney who, on his client’s behalf, obtains goods or
services in connection with litigation should be held personally
responsible unless the attorney expressly disclaims such
responsibility.”
May 12, 2011
Gregory v. Carey, 246
Kan. 504 (1990). The trial court had rejected testimony by an
annuitist. The Kansas Supreme Court indicated that the rejection was
within the discretion of the trial court judge, with discussion in the
decision suggesting that the Kansas Supreme Court agreed with the trial
court judge. The decision also held that the plaintiff, who was in a
semi-comatose state, was entitled to recover for loss of enjoyment of
life as a part of pain and suffering. There is also discussion of
legislative changes in the collateral source rule in medical
malpractice cases in Kansas. Revised listing.
Anderson/Couvillon v. Neb. Dept. of
Soc. Services (Anderson II), 253 Neb. 813; 572 N.W.2d 362 (Neb.
1998). This was a retrial mandated by Anderson/Couvillon v. Neb.
Dept. of Social Services (Anderson I), 248 Neb. 651; 538 N.W.2d 732
(1995). Anderson I had held that Stan Smith was not permitted to
present hedonic damages testimony. In Anderson II, the plaintiff had
replaced Stan Smith with Robert Johnson as her economic expert. Johnson
did not attempt to present hedonic damages testimony. Johnson was
prevented by the trial court from testifying about earnings loss
calculations based on the assumption that the plaintiff (a sexually
abused child) would have graduated from college. The trial court held
that without evidence that Anderson was considering college, Johnson’s
testimony about loss of earnings with a college would be too
speculative. The jury made an award of $400,00 for pain and suffering,
which included loss of enjoyment of life. The decision of the trial
court was affirmed.
Sheck v. Dalcorso, 2005 N.J.
Super. Unpub. LEXIS 178 (N.J. App. 2005). The trial court rejected the
hedonic damages testimony of Stan V. Smith, but allowed Smith to
testify about the dollar value of the plaintiff’s loss of household
services. Among issues considered in the appeal, the plaintiff appealed
the decision not to permit Smith to testify about hedonic damages. The
court considered prior decisions and law review articles for and
against allowing an economic expert to testify about hedonic damages at
some length and concluded that the trial court judge “was (not) in an
informed position to rule on the issue.” The appeals court directed the
trial court judge to reconsider the issue at length before deciding
whether or not to permit Stan Smith to testify about hedonic damages.
It also authorized either side to seek interlocutory relief prior to
trial if that side was not satisfied with the judge’s decision on that
issue.
May 13, 2011
Glover v. Hester, 2011 U.S.
Dist. LEXIS 39093 (W.D. LA 2011). This is a memorandum in response to
defendant’s Daubert motion to exclude the economic damages expert
Anthony A Juneau, Jr., a Certified Public Accountant on the ground that
Juneau is not an economist. The court denied the motion to exclude
Juneau, indicating that the reliability of Juneau’s testimony does not
depend on Juneau’s academic background, that Juneau’s testimony is
sufficiently tied to the facts of the case to be admissible, and that
the court considered determining present values to be more than a lay
matter such that “these damage calculations are beyond the general ken
of the average juror.”
May 14, 2011
Eskelson ex rel. Eskelson v. Davis
Hosp. and Medical Center, 2010 UT 59; 242 P.3d 762 (UT 2010).
Rule 702of the Utah Rules of Evidence, as amended in 2007,
provides:
(a) Subject to the limitations in
subsection (b) if scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may testify
thereto in the form of an opinion or otherwise. (b) Scientific,
technical, or other specialized knowledge may serve as the basis for
expert testimony if the scientific, technical, or other principles or
methods underlying the testimony meet a threshold showing that they (I)
are reliable, (ii) are based upon sufficient facts or data, and (iii)
have been reliably applied to the facts of the case. (c) The threshold
showing required by subparagraph (b) is satisfied if the principles or
methods on which such knowledge is based, including the sufficiency of
facts or data and the manner of their application to the facts of the
case, are generally accepted by the relevant expert community.
Commenting on the new version of the rule, the Ekelson court said:
Rule 702(a) requires the court to
consider whether expert testimony is necessary to assist the trier of
fact and whether the proposed expert has the necessary “knowledge,
skill, experience, training or education” to provide such assistance to
the trier of fact. After determining whether the expert is so
qualified, the court then turns to the reliability of the “scientific,
technical, or other specialized knowledge” that serves as the basis for
hte expert’s testimony. Utah R. Evid. 702(b).
May 15, 2011
Arble v. State Farm Mutual Ins. Co.,
2011
U.S. Dist. LEXIS 8202 (D. NM 2011). This decision is a Memorandum
and Order Denying Defendant’s Motion to Strike Plaintiff’s Expert
Witness Rob Painter. The defendant had disclosed its expert Michael
Hearrold on the last day possible for a defense expert to be disclosed.
The plaintiff then filed a motion in limine to exclude Hearrold based
entirely on Painter’s Affidavit regarding Hearrold’s opinions,
indicating that Painter only testify at the Daubert hearing regarding
Hearrold, but not at trial. The defense challenged plaintiff’s use of
Painter as untimely. The Court held that Painter did not need to have
been disclosed under Rule 26(a)(2)(A) and that Painter was not required
to submit an expert report under Rule 26(a)(2)(B) given that Painter’s
role was to be limited to the Daubert hearing.
Chambers v. Village of Moreauville,
10-01368
(La. App. 3 Cir. 04/06/11); 2011 La. App. LEXIS 415 (La. App.
2011). This was an appeal of a trial court award for $54,148 in future
lost wages, $10,000 in future medical expense, $200,000 for general
damages/pain and suffering, and $25,000 for hedonic damages. The court
upheld the awards for general damages/pain and suffering and hedonic
damages, held that the $10,000 for future medical expense be placed in
a reversionary trust, and reversed the award for future lost wages. The
court explained that the award for future lost wages was based on the
testimony of Dr. G. Randolph Rice. Rice had projected a loss of $54,148
if Chambers lost her current job at the correctional center on the date
of trial and was able to procure employment at $9.00 per hour. The
Court said: “[T]he record is devoid of evidence that Chambers more
probably than not would lose her job with the center [Pg. 13] due to
her injuries. Indeed, she received a merit promotion and pay raise
after the accident. She missed relatively little work considering the
complexity and severity of her injury. An award of loss of future
earning in this instance is simply too speculative and is manifestly
erroneous.”
May 17, 2011
Robinson v. Bates, 112 Ohio
St. 3d 17; 2006 Ohio 6362; 857 N. E.2d 1195 (OH 2006). The Ohio Supreme
Court held that the collateral source rule does not apply to bar
evidence of the amount accepted by a medical care provider from an
insurer as full payment for medical or hospital treatment. Both the
amount billed by the provider and the amount paid by the insurer are
admissible to prove the reasonable value of medical treatment. It is a
matter for the jury to decide the reasonable value of medical services
that can be recovered by an injured plaintiff. This decision was in
part based on R.C. 2315.20 that was passed in 2005 by the Ohio
legislature allowing a defendant in a tort action allowing a defendant
to introduce “evidence of any amount payable as a benefit to the
plaintiff as a result of the damages that result from an injury.” This
decision reviewed decisions in other states on the question of what is
admissible. The court found that ten states had concluded that a
plaintiff is entitled to recover the full amount of reasonable medical
expenses charged, including amounts written off from the bills pursuant
to contractual rate reductions, citing cases in South Dakota, Delaware,
District of Columbia, Georgia, Hawaii, Illinois, Mississippi, Missouri,
South Carolina, Virginia, Wisconsin, and Louisiana. The court listed
Pennsylvania, California, Idaho, and Florida as concluding that
plaintiffs may only recover amounts actually paid. The court also
indicated that the Ohio General Assembly found that “[t]wenty-one
states [other than Ohio] have modified or abolished the collateral
source rule.”
Stanley v. Walker, 906 N.E.2d
852 (IN 2009). At the trial court level, the defendant tried to
introduce evidence of the discounted amounts actually paid. The
plaintiff objected, arguing that Indiana’s collateral source rule bars
evidence of insurance benefits. The trial court agreed with the
plaintiff. The Indiana Court of Appeals affirmed the trial court
decision. The Indiana Supreme Court reversed the trial court decision
and held that: “To the extent that discounted amounts may be introduced
without referencing insurance, they may be used to determine the
reasonable value of medical services.” The decision held that the
Indiana legislature had “abrogated” and replaced the collateral source
rule with a collateral source statute in I.C. § 34-44-1-2. The
court explained that evidence of the amounts originally billed are
admissible but that the defendant could provide contradictory evidence,
including expert testimony, as long as the fact that amounts paid were
paid by an insurer was not mentioned. The court pointed out that this
is what the defense in the Stanley case had attempted to do. Stanley
had conceded that the collateral source statute prevented Stanley from
mentioning that third parties had paid the plaintiff’s bills, but
wanted to submit evidence to the jury that would show the amount
accepted in satisfaction of medical charges in this case. “Because
Stanley sought to do so without referencing insurance,” the Indiana
Supreme Court held that the defendant should have been permitted to do
so.
May 18, 2011
Celebrity Cruises Inc. v. ESSEF Corp,
434
F. Supp. 2d 169 (S.D.N.Y. 2006). One aspect of this decision
related to the application of a Daubert standard to the affidavit of an
“attack expert” for purposes of a Daubert hearing. The court pointed
out that both parties were operating under the incorrect assumption
that the admissibility of testimony from the “attack expert” should be
itself subject to a determination of admissibility under a Daubert
standard. The court explained that under Rule 104(a) of the
Federal Rules of Evidence, the court is not bound by the rules of
evidence except those with respect to privilege. The court said: “Thus,
I need not determine whether Mr. Browning’s evidence would be
independently admissible under Daubert. I need only determine whether
it is sufficiently reliable to be persuasive in my evaluation of the
expert report that it criticizes.”
May 19, 2011
Nassau Anesthesia Associates v. Chin,
2011
N. Y. Slip Op 21178 (N.Y. Misc. 2011). The court said:
[W]here a medical provider seeks a
monetary judgment against an uninsured individual, the Court cannot
ignore the realities of today's healthcare marketplace. At the Court's
request, plaintiff provided the Court with information comparing the
amounts charged to uninsured persons (such as defendant) and the
amounts plaintiff would have accepted from major private insurers or
the federal government under Medicare and Medicaid. The differences in
payments are striking. According to plaintiff's billing supervisor,
"[a] person without insurance, such as the Defendant, . . . would pay
$8,675.00" for plaintiff's anesthesia services. In contrast, if
defendant had been covered by Blue Cross Blue Shield, United
Healthcare, or Vytra, plaintiff would have been paid between $5,208.01
(Blue Cross Blue Shield) and $6,970.00 (United Healthcare). Medicare,
in turn, would have paid plaintiff only $1,605.29. And if defendant
were covered by Medicard, plaintiff would have received just $797.50.
Each of the foregoing amounts represents a fee calculation that
reflects, in one way or another, the supposed "value" of
plaintiff's services. Although plaintiff requests an award based
upon its "uninsured patient" rates, it makes no claim that any of the
lesser rates mentioned are "unreasonable" or that a lesser award would
deny it "fair and reasonable" compensation. Consequently, at
least in cases, such as this one, where plaintiff submits nothing
more than a conclusory assertion from its billing supervisor that
plaintiff's fees are "customary and standard," the Court concludes that
plaintiff's "customary and standard" fees are not conclusive and
binding. To the contrary, as recognized in Temple Univ. Hosp. v.
Healthcare Mgmt Alternatives, 2003 PA Super 332, 832 A.2d 501 (Pa.
Super. Ct. 2003), the amounts "actually received" by medical providers
from insurers are a far better indicator of the reasonable value of a
provider's services than the "full published charged" unilaterally set
by the provider.
The court awarded $4,252.11, plus interest, costs and applicable
disbursements. That amount was calculated as the average amount that
would have been accepted by third-party payers such as private insurers
and federal health-care programs, as listed above.
May 21, 2011
Christus Health v. Dorriety,
2011 Tex. App. LEXIS 3755 (TX App. 2011). Dr Richard Bean was the
economic expert for the plaintiff and had calculated present values for
life care, lost earnings and lost household services for the plaintiff.
During his trial appearance, Dr. Bean was confronted with the fact that
he had prepared all of his calculation under the assumption that the
plaintiff’s birth date was 1962 when it was in fact 1952. This was
introduced as part of a challenge to the jury’s verdict, which the
court denied, saying that “Pecuniary loss in a wrongful-death case is
not subject to a precise mathematical calculation, and the jury is
given significant discretion in determining this element of damages.”
The court described Bean’s calculations before and after the mistake
was discovered as follows:
Dr. Bean's original calculation for
care for Timothy alone was $1,174,000. In addition, however, he
testified that pecuniary losses would include lost income of $435,700,
and loss of household services of $422,043. Thus, using these
calculations, the jury could have begun its deliberation with evidence
of pecuniary losses totaling $2,031,743. After Dr. Bean's mistake was
discovered, he revised some of his calculations accordingly: (1) the
estimate for care for Timothy changed from $1,174,000 to $230,000; (2)
the lost wages number was reduced from $435,000 to $80,000; and (3) the
calculations for household services remained the same at $422,043. The
revised figures totaled $732,043.
May 24, 2011
Jones & Laughlin Steel Corp. v.
Pfeifer, 103 S. Ct 2541, or 462 U.S. 523 (1983). This is the
single most important case in the field of forensic economics. Justice
Stevens delivered the opinion of the United States Supreme Court, which
sets out a framework for how damages in a personal injury case should
be presented by an economic expert. The court is very careful not
to specify a particular set of methods, as urged on it by various amici
briefs that were filed, saying:
Because our review of the foregoing
cases leads us to draw three conclusions. First, by its very nature the
calculation of an award for lost earnings must be a rough
approximation. Because a lost stream can never be predicted wtih
complete confidence, any lump sum represents only a ‘rough and ready’
effort to put the plaintiff in the position he would have been in if
not injured. Second, sustained price inflation can make the award
substantially less precise. Inflation’s current magnitude and
unpredictability create a substantial risk that the damages award will
prove to have little relation to the lost wages it purports to replace.
Third, the question of lost earnings can arise in many different
contexts. In some sectors of the economy, it is far easier to assemble
evidence of an individual’s most likely career path than others.
Instead of providing specific methods, the court provides a list of the
issues that must be addressed in the report and the general framework
for the methodologies that can be used to address those issues. The
Pfeifer court indicated that if a court accepted a “below market”
discount rate approach, a trial court is not likely to be reversed if
it adopts a below market rate between 1% and 3% and “explains its
choice.” The court also affirmed its earlier decision in Liepeldt that
lost earnings must be projected in after-tax terms. Revised listing.
May 30, 2011
Valentine v. CSX, 2011 U.S.
Dist. LEXIS 56407 (S.D. IN 2011). This order by Judge Jane
Magnus-Stinson addresses 16 motions in limine from the plaintiff, 8
motions in limine from the defense, and a defense motion to separate
witnesses. The disposition of the first three of plaintiff’s motions
are of interest to forensic economists. Plaintiff’s economic expert was
Gregory Green, Ph.d. The defense did not offer its own economic
expert. The plaintiff wanted to preclude the defense expert from being
asked questions relating to the Skoog-Ciecka railroad work-life
expectancy tables on the ground that the tables are based on earning
expectations rather than earning capacity. The court pointed out that
Green himself had established the authority of the Skoog-Ciecka tables
to establish Valentine’s earning capacity and held that the propriety
of each table considered is a question of weight, not admissibility and
allowed Green to be questioned about the Skoog-Ciecka tables. The court
also refused to bar testimony about a document prepared by vocational
expert Terry Cordray on behalf of railroads when retained by railroads.
There is also indication that the court was concerned about whether or
not Dr. Green’s testimony accounted for Tier I and Tier II taxes.
June 1, 2011
Ursini v. Sussman, 143 Misc.
2d 727; 541 N.Y.S.2d 916 (NY Misc. 1989). This decision goes through
the steps required to implement a jury verdict under New York’s CPLR
5031. The decision does not specifically mention section 50-A, but this
decision would fall under that section which is for medical malpractice
cases. That section of CPLR 5031 has since been changed, but section
50-B for non medical malpractice cases is still the same as it was at
the time of this decision. Much of the decision relates to determining
the present value of periodic payments required under New York law for
the specific purpose of determining the attorney’s fee. This order from
Judge Gammerman explains how he determined the amount of the attorney’s
fee. In order to make that determination, Judge Gammerman had to select
a discount rate. He did so in the following manner:
Over the past several years, at least
nine economists have testified for both plaintiff and defendant)
in cases involving claims for future losses. In discussing the
appropriate discount rate to be used in reducing future losses to
present value, the testimony of all nine fell within the range of 6% to
8%. The court, thus, is adopting a discount rate of 7.5%. The use
of such a discount rate (at the upper end of the 6% to 8% range) is, in
my view, in keeping with the intent of the Legislature. A higher
discount rate reduces the attorney's fee thus providing greater payment
to the client and further serves to reduce the defendant's premium (or
cost) for the annuity policy required by the judgment.
June 2, 2011
McCann v. United States Lines, Inc.,
803
F.2d 771 (2nd Cir. 1986). Judge Kaufman described how damages in a
personal injury matter should be calculated:
If the award were disbursed at the
precise moment of injury, and if the economy were free of inflation,
this calculation would represent a fair award of damages. However,
neither of these assumptions holds true. Therefore, certain adjustments
must be made. Consider inflation first. Just as the defendant would be
unfairly penalized if required to pay the full $100,000 today, rather
than the discounted sum of $73,601, so would the plaintiff be
undercompensated if the court failed to account for the effects of
inflation on his award. Therefore, courts will either subtract the
estimated rate of inflation from the prevailing market rate of interest
before discounting the judgment to present value or account for the
effects of inflation in projecting the plaintiff's wages. Doca v.
Marina Mercante Nicaraguense, S.A., 634 F.2d 30, 34-38 (2d Cir. 1980),
cert. denied, 451 U.S. 971, 101 S. Ct. 2049, 68 L. Ed. 2d 351 (1981).
Assuming an inflation rate of 4% and a prevailing interest rate of 6%,
the discount rate would be reduced to 2%, and the damage award would
now come to $89,826.
June 9, 2011
Risko v. Thompson Muller Auto. Group,
2011
N. J. LEXIS 630 (N.J. 2011). This was a wrongful death case. The
New Jersey Supreme Court said:
As related to economic damages,
plaintiff called economic expert, Dr. Robert P. Wolf, who opined that
decedent would have lived for sixteen more years, during which she
would have supplied emotional support for plaintiff, and that for 10.68
of those years, decedent would have been able to provide household
services and physical support to her spouse. Dr. Wolf calculated that,
based on these projections, plaintiff suffered economic loss in the
amount of $143,988 in household services, $328,012 in "advice, counsel,
support and companionship," and $562,307 in "passive security"
constituting "sleep time [and] on-call services" that a spouse
provides. Dr. Wolf concluded that the sum of these figures, $1,034,307,
represented the discounted value of plaintiff's economic loss.
Defendant vigorously disputed the quantification and legitimacy of the
"sleep time" calculations by plaintiff's expert.
In a footnote, the Court also added that: “Dr. Wolf defined ‘sleep time
[and] on-call services’ as the time decedent ‘was there and available
to [plaintiff] for any specific needs that may have arisen.’ For
reasons not specifically related to Dr. Wolf’s testimony, the court
held that a new trial on damages only must be held.
Leitinger v. Dbart, Inc., 2007
WI 84; 302 Wis. 2d 110; 736 N.W.2d 1 (WI 2007). Following an injury to
Joseph Leitinger, the health care provider billed $154,818.51 for the
medical sevices provided to Leitinger. Leitinger’s health insurance
company paid $111,394.73 to satisfy those bills. At issue was
$43,424.78 that was originally billed, but not paid by Leitinger’s
health insurance company. After providing coverage or previous
Wisconsin cases regarding the issue of determining the “reasonable
value” of medical services and the nature of the collateral source rule
in Wisconsin, the majority held that “the collateral source rule
prohibits parties in a personal injury action from introducing evidence
of the amount actually paid by a collateral source for medical
treatment rendered to prove the reasonable value of medical treatment.”
Two members of the court dissented from this decision and would have
allowed such evidence to be presented to a jury that must determine the
“reasonable value” of the medical services needed by an injury victim.
June 10, 2011
Temple University Hospital v.
Healthcare Management Alternatives, 2003 PA Super 332; 832 A.2d
501 (PA Super 2003). At issue in this case was the amount that
Healthcare Management Services (HMS) had to pay Temple University
Hospital for services rendered. The trial court had held that HMS had
to pay the amount billed by Temple University Hospital. The Superior
Court reversed the trial court decision and held that the amount to be
paid should be the “reasonable value” of the services provided, based
on the average charge for the services at issue contained in contracts
with government agencies and insurance companies. The court pointed out
that published rates of the hospital were based “upon the manner in
which it calculated its published rates, which were designed to offset
the shortfall caused by its federal mandate to treat indigent patients.
Healthcare’s economist, Dr. Allen Dobson, testified that the Temple
University Health System received eighty percent or less of its full
published charges. The court noted that:
Dr. Dobson also testified that based on
the Hospital’s data, the full published charges in 1994 were
approximately 172% of its actual costs. In addition, Dr. Dobson
testified that private payers typically paid 121% of the cost of
hospital services in 1994, 119% in 1995, and 112% in 1996.
Nassau Anesthesia Associates v. Chin,
2011
NY Slip Op. 21178; 2011 N.Y. Misc. LEXIS 2267 (District Court,
Nassau County). This decision related to the amount that had to be paid
by an uninsured patient of a bill for anesthesia at $8,675. The court
pointed out that the average payer of medical bills does not pay the
amount originally billed so that the amount originally billed cannot be
assumed to be the “reasonable value” of the services rendered. After
considering amounts paid by different types of third party payers, the
court averaged amounts that would have been paid by third party payers,
and held that Chin must pay $4,252.11.
July 5, 2011
DuPlantier v. Bisso Marine Co.,
2011
U.S. Dist. LEXIS (E.D.La 2011). The defense issued a subpoena
duces tecum on May 12, 2011, requiring that plaintiff economic expert
John Theriot produce his reports in other cases for the previous five
years. The plaintiff and Theriot filed a motion to quash the subpoena
on June 29, 2011 even though motions to quash subpoenas with protective
orders were required to be filed within two weeks of the receipt of the
subpoena. The judge held that the plaintiff and Theriot had waived
their right to file a motion to quash by not filling that motion within
the two week deadline and denied the motion. The judge, however,
persuaded the defense attorney to reduce the period over which reports
must be provided to two years. The judge ordered that “John Theriot
shall produce all of his expert reports for the last two (2) years in
which he has used a person’s wage history instead of a single year’s
earnings to calculate wage loss, redacting from those reports each
claimant’s personal information, within two weeks within the signing of
this Order” (bolding as in original).
July 12, 2011
Nelson v. Rehabilitation Enterprises
of North Eastern Wyoming, 1997 U.S. App. LEXIS 22339; 1997 Colo
J. C.A.R 1696 (10th Cir. 1997). This is an unpublished decision. Under
42 U.S.C. § 1981a(b)(3)(B) a $100,000 cap existed on compensatory
damages for sexual harassment and retaliatory discharge. A jury awarded
$90,000 for sexual harassment and $100,000 for retaliatory discharge.
The trial court judge held that $39,000 of the $100,000 portion of the
retaliatory discharge award was for back pay. The 10th Circuit held
that the judge had failed to provide clear jury instructions and a
clear jury verdict form, but that there was no indication that the jury
intended $39,000 to be for back pay and that the entire jury award was
for compensatory damages subject to the cap in the federal statute,
thus reducing the award form $139,000 to $100,000. The 10th Circuit
avoided establishing a precedent with this decision, but made it clear
that the problem in this case would have been avoided with clear
judicial instructions and a better from for the jury to report damages
that asked the jury to make separate findings with respect to each jury
element.
August 25, 2011
Michels v. United States, 815
F. Supp. 1244 (S.D. Iowa 1993). Dr. Michael Sandberg, a professor
of finance at Coe University relied on the Gamboa tables to project
reductions in the worklife expectancy of Vincent Michels at age 19 of
either 50.3 percent as a high school graduate or 32.3 percent as a
college graduate. The Court identified the publication containing the
“Gamboa report” as “the United States Department of Labor’s 1987
Worklife Expectancy of Disabled versus Non-Disabled Person’s by Sex,
Race and Level of Educational Attainment.” (This was the correct title
for the first version of the Gamboa tables that was published by
Vocational Economics, not the United States Labor Department.) The
Court provided several criticisms of the “Gamboa report,” saying that:
[T]he Gamboa report lumped together
without differentiation persons suffering from both mental and physical
disabilities. Michels suffers from no mental abnormalities, only
physical impairments to his lower left extremity. Finally, while the
subjects of the report were required to have at least a five percent
whole body impairment or be eligible for social security benefits, the
study does not evaluate the work life expectancy of individuals
according to whole body disability ratings. Thus, it is not clear
whether a person, such as Michels, who suffers from a twenty-five
percent whole body impairment will have a reduced work life expectancy
equal to the mean reduced work life expectancy of subjects in the
Gamboa report. Therefore, the court will disregard Sandberg's
reductions for work life expectancy. Indeed, Michels' own vocational
rehabilitation expert, Mr. Marquardt, testified that based upon his
current condition he did not believe Michels suffered a reduced work
life expectancy. Equally as important, there was simply no medical
evidence that Michels' present or expected future medical condition
would reduce his work life expectancy. Thus, Dr. Sandberg had no basis
in fact for projecting the results of the Gamboa report to Michels'
present or future physical condition and his own work life expectancy.
August 26, 2011
Young v. Pleasant Valley School
District, 2011 U. S. Dist. LEXIS 93151 (M.D. PA 2011). The
plaintiff filed a motion to compel the defendant’s expert Dr. Edward
Dragon to answer questions about his income providing expert testimony.
Dragon is a management consultant who testified that the school
district had reacted appropriately to questions about course content of
a teacher that had allegedly created a sexually hostile environment.
The intent of the question was potentially to show the bias of the
witness. Judge Yvette Kane held that requiring Dragon to answer the
question would have been “needlessly intrusive especially in light of
the information’s marginal relevance. Judge Kane indicated that the
defense had not shown why less intrusive information was insufficient.
August 27
Cummings v. BIC USA, 2100 U.S.
Dist. LEXIS 95566 (W.D. KY 2011). Judge Joseph H. McKinney, Jr., denied
a defense motion in limine to exclude the testimony of Plaintiff’s life
care planning expert Cameron Parker, Plaintiff’s vocational expert
Sharon Brown Hope and Plaintiff’s economic expert Dr. Lawrence Lynch.
Judge McKinney explained why he found the testimony of each expert
admissible in useful detail.
September 1
Russo v. Lorenzo, 2011 Fla.
App. LEXIS 12477. The narrow issue on appeal was whether the lost
retirement benefits of a decedent husband must be offset by the widow’s
survivor benefit. The trial court had ruled that the widow’s benefit
was a collateral source and not allowed the defense to question the
plaintiff’s economic expert about the wife’s continuing benefits from
her late husband’s retirement plan. The Appeals Court held that the
loss of the husband’s retirement benefit must be offset by the value of
the benefit being received by the wife. The husband had not reached
retirement age and was not vested in the retirement plan at the time of
his death, but his wife started to immediately receive retirement
benefits. A footnote to the decision near the end of the decision said
that: “During a proffer to the court, the economist put the value of
the benefit, reduced to present value dollars at $1,222,636.” Earlier
in the decision, the Appeals Court had said that the plaintiff’s
economist had testified that the plaintiffs’ “had suffered between $1.5
and $1.8 million in lost support,” but that the jury awarded
$11,537,700 in damages, $10 million of which was for pain and suffering
of the decedent. It was not clear whether the economist referenced in
the footnote was the plaintiff’s economist or another economist for the
defense, but the decision to remand and require an offset appears to
reduce damages for lost support from $1,537,700 by $1,222,636 to a
figure of $315,064. This would also suggest that the value of the
wife’s benefits after the death of her husband significantly exceeded
the value of the decedent husband’s retirement benefits, starting from
a future retirement date.
September 2
Howell v. Hamilton Meats &
Provisions, Inc., 2011 Cal. LEXIS 8119 (Cal. 2011). The court
said about the reasonable value of past medical expenses for which a
plaintiff has sought recovery:
When a tortiously injured person
receives medical care for his or her injuries, the provider of that
care often accepts less than that stated in the provider’s bill as full
payment, pursuant to a preexisting contract with the injured person’s
health insurer, an amount less than state in the provider’s bill. In
that circumstance, may the injured person recover from the tortfeasor,
as economic damages for past medical expenses, the undiscounted sum
stated in the provider’s bill but never paid by or on behalf of the
injured person? We hold that no such recovery is allowed for the simple
reason that the injured plaintiff did not suffer any economic loss in
that amount. . .
The collateral source rule, which
precludes deduction of compensation the plaintiff has received from
sources independent of the tortfeasor from damages the plaintiff “would
otherwise collect from the tortfeasor”. . . ensures that plaintiff here
may recover in damages the amounts that were paid for her medical care.
The rule, however, has no bearing on amounts that were included in a
provider’s bill but for which the plaintiff never incurred any
liability because the provider, by prior agreement, accepted a lesser
amount as full payment.
At the trial court level, an original award of $189,978.63 was reduced
to $130,286.90 based on the logic in Hanif v. Housing Authority, 200
Cal. App.3d 635 (1988). The California Court of Appeals reversed the
decision of the trial court. With this decision, the California Supreme
Court affirmed the standard in the Hanif decision and reversed the
decision of the California Court of Appeals.
September 3
Rivera v. Passaic County, 2011
U.S. Dist. LEXIS 8069 (D. N.J. 2011). This decision related to whether
the estate of Jesse M. Rivera could claim hedonic damages (loss of
enjoyment of life) for a period of time prior to his death from hanging
himself while in the general prison population. The defense argued that
since Rivera attempted suicide, Rivera was obviously not enjoying his
life. The District Court held that argument to be unavailable. The
Court also relied upon the New Jersey decision in Eyoma v. Falco, 247
N.J.Super. 435 (1991) to hold that Rivera’s estate could claim hedonic
damages during the period after hanging but before death when Rivera
was comotose, but still alive, but ended when Rivera died. The final
question related to when the period of hedonic damages loss began. The
plaintiff wanted the period of hedonic damages to begin when Rivera was
removed from suicide watch and placed in the general prison population
on October 9, 2008. The District Court ruled with the defense that
hedonic damages only began when Rivera hanged himself on the morning of
October 13, 2008 and died seven hours later. Thus, the period of time
during when the estate of Rivera was entitled to recover hedonic
damages was seven hours. There was no mention of an economic expert in
the decision.
Barclay v. Cameron Charter Boats, Inc.,
2011
U.S. Dist LEXIS 87524; 2011 WL 346830 (W.D. La. 2011). This decision
was a ruling
on three motions, the first of which was a motion to exclude the
testimony of Dr. Douglas Womack, an economist. Womack had projected a
value for the future earning capacity of Jackie Ray Barclay on the
basis of an assumption that Mr. Barclay would be able to return to work
after his injury, but only at the federal minimum wage. The Court said:
This argument is not supported by any
facts or evidence and thus
amounts to pure speculation. While this assumption may represent a
possibility; possibility alone cannot serve as the basis for an
expert’s opinion. . . Because there is no evidence to support Dr.
Womack’s minimum wage opinion, any expert testimony that includes these
unsupported calculations of future eanings is inadmissible. This is not
to say that it could not be supported by lay evidence if Mr. Barclay
offered any; it merely reflects Mr. Barclay’s inability to meet his
burden of establishing the reliability of Dr. Womack’s testimony.
The court also held that a vocational expert opinion was not
specifically required to establish the value of post-injury earnings.
September 4
Cowley v. Sunset Yacht Charters, Inc.,
2011
U.S. Dist. LEXIS 80222 (S.D. Fla 2011). Judge James I. Cohn held
that: “[A] vocational expert or economist is not an absolute
prerequisite to prove a loss of earning capacity. . . Plaintiff’s
evidence regarding future income will be based not only on his own
testimony, but on his treating physicians’ testimony. . . The testimony
will establish that, but for the injury, the Plaintiff could have
continued to work in a ship captain capacity, i.e. the physician will
opine that Plaintiff cannot return to gainful work in any capacity
whatsoever.”
September 10
Darnell v. Hoelscher, Inc.,
2011 U.S. Dist LEXIS 101165 (S.D. IL). Among other motions, the defense
filed a motion to exclude the testimony of Dr. Lane Hudgins on the
ground that her testimony would be based on unreliable facts or data,
in that her testimony was based on the deposition of the decedent’s son
rather than financial records or tax documents of the decedent’s
business. Judge Gilbert said:
An expert may base her opinion on facts
or data "of a type reasonably relied upon by experts in the particular
field in forming opinions or inferences upon the subject" and "need not
be admissible in evidence in order for the opinion or inference to be
admitted." F.R.E. 702. Estimates of economic loss to a business by a
knowledgeable employee of the business are the kind of data that can be
"reasonably relied on by experts in the particular field in forming
opinions or inferences upon on the subject." F.R.E. 703. The accuracy
of the underlying data goes to the weight of the opinion evidence, not
its admissibility, and can be challenged on cross examination of Robert
Darnell and Dr. Hudgins. Therefore, the Court will not exclude Dr.
Hudgins' testimony.
Riley v. Ford Motor Company,
2011 U.S. Dist. LEXIS 81889 (S.D. MS 2011). Judge Starrett denied the
defendant’s motion to exclude the testimony of James Koerber. This
decision was reached under the Mississippi Wrongful Death Act. As a
result of an automobile accident, A. R., a minor, was killed. The
calculation of special interest to forensic economists was the
calculation of losses to the parents and surviving minor sibling, C.R.
Koeber calculated the loss to survivors of A.R. by projecting lost
earnings net of a personal consumption reduction of 49.18%. Ford
challenged this percentage and argued that the appropriate consumption
factor should have been between 72.6% and 97.7%, as projected by
defense expert Carl Brooking. Koerber’s calculations used the Patton
Nelson personal consumption tables, assumed a two person future
household for A.R. Koerber relied upon family income in the
Patton-Nelson tables and also assumed that A.R. would be married and
used a figure for average earnings of a two person family. Judge
Starrett acknowledged the weakness of using average earnings for a two
person family to determine a reduction for personal consumption, but
said: “Despite this obvious weakness in Koerber’s testimony, the Court
believes that excluding his testimony would be an extreme measure.”
Pointing out that both Kuerber and Brooking had used the Patton-Nelson
tables, Judge Starrett added that: “[T]he court does not believe that
Koerber’s use of the data for the average two-person household, as
opposed to the data for two-person households in specific income
brackets, renders his testimony completely unreliable. Furthermore,
Defendants will have ample opportunity to cross-examine Koerber on
these very issues.” Suggested by Gerald Lee.
September 23
Hutchins v. St. Paul, Minneapolis
& Manitoba Railway, 44 Minn. 5; 46 N.W. 79 (MN 1890). This
decision involved the claim for wrongful death damages in the death of
39 year old adult son who was living alone by the mother of the
decedent. This decision states: “[D]amages are to be assessed under the
[wrongful death] statutes is that of pecuniary loss, and not of
solatium. No compensation can be given for wounded feelings, or loss of
the comfort and companionship of a relative, nor for the pain and
suffering of the deceased.” There was no record of the deceased son
having provided any financial support to his mother. In reversing
a trial court award to the mother, the Court said:
The pecuniary benefit which the mother
might reasonably have expected to derive from the continuance of the
life of her son must have been almost exclusively confined to
contributions of money or property for her support. . . The future must
be judged by the past. Here was a healthy, able-bodied man, who had
attained the age of 39 years. He had no one but himself to support,
aside from the paltry sums occasionally given to his mother, and yet he
had accumulated nothing, and died almost absolutely penniless. He
certainly was not in the line of promotion in his calling. True, it is
possible that he might have become more thrifty in future, but this was
not at all probable, in view of his age and past history. He might have
met with some extraordinary streak of good luck, such as discovering a
valuable mine, or drawing a large prize in a lottery, but these
contingencies are altogether too speculative to form any legitimate
basis for an estimate of damages.
Conlon v. Trans National Trucking LLC,
2011
U.S. Dist. LEXIS (E.D. PA 2011). Defendants appealed a
wrongful death award of $2,223,289 and a Survival Act award of
$1,270,280 as excessive. The Court pointed out that defendants had not
explained why the total award of $3,493,559 was excessive and not
provided their own estimate of damages to counter the testimony of
plaintiff expert David L. Hopkins about the future lost earnings and
fringe benefits of the decedent. The jury award fell within the range
testified to by Mr. Hopkins. Therefore the Court concluded that there
was no basis to conclude that the jury’s award was unsupported or
excessive.
The Atchison, Topeka & Santa Fe
Railroad Company v. Cross, 58 Kan. 424; 49 P. 599 (KS 1897).
This decision involved parental right to recover for possible losses
under the Kansas Wrongful Death Act after adulthood of a 13 year old
decedent. Defendants had asked for a jury instruction limiting
the amount of recovery of the plaintiffs to the minority of the
decedent. The Court held that was erroneous, saying: “While the
plaintiffs would have no right to take the boy's earnings without his
consent after he should reach his majority, it might well be that the
ties of natural affection would be sufficiently strong to cause him to
do them even more service after his majority than before. A recovery by
parents for the death of a son after his majority is not at all
uncommon.”
October 17
Bulala v. Boyd, 239 Va. 218
(VA. 1990). Loss of earnings of an infant are not recoverable if there
is a of lack of foundation. The Court said:
In a personal injury action, a
plaintiff is not precluded from recovering damages for lost future
earnings or for diminution of earning capacity by reason of his
infancy. . .But we have never held that statistical averages alone can
form a sufficient evidentiary foundation for such damages. In order to
carry his burden of proof, an infant plaintiff, like any other
plantiff, must 'furnish evidence of sufficient facts or circumstances'
to enable the jury to make 'intelligent and probable estimate' of such
damages. Such evidence must relate to facts and circumstances personal
to the plaintiff as an individual, not merely to his membership in a
statistical class.
According to the Court, the economist for the plaintiff had
“ascertained the median income for women in metropolitan areas in
Virginia. He multiplied that income by the number of years in a normal
work life expectancy, based on national averages, and discounted the
product by factors based upon mortality, age, race, and sex. The court
held that method to be “too remote and speculative” to be admissible.
This decision also precludes recovery for hedonic damages as a separate
element of damages.
October 27, 2011
Hogans v. United States, 2005
U.S. Dist. LEXIS 32359; 2005 WL 3338065 (W.D.Tex. 2005). This case
involved Dr. Don Huddle as an economic expert for the plaintiff and Dr.
Stan Smith as an economic expert for the defendant. The Court held that
Dr. Huddle’s method: “followed the ‘below market’ rate method required
by the Fifth Circuit as stated in Culver v. Slater Boat Co., 722 F.2d
114 (5th Cir. 1983). His discount rates of 1.2 percent for future
medical cost and 1.0% for future lost earnings fall squarely within the
example of proper below-market discount rates set forth in Culver.” The
Court said of Dr. Smith: “The methodology employed by defendant’s
economic expert, Dr. Smith, violates Culver because Dr. Smith relied
primarily on a market methodology specifically disapproved by the Fifth
Circuit Court of Appeal’s below market requirements. Dr. Smith’s high
discount rate of 7.42% fails the Culver test because Dr. Smith’s
methodology employs a 2/3 (65%) reliance on the stock market’s average
over the highest performing period in the market’s history, and Culver
maintains a below method that distinguishes a seriously injured
plaintiff’s need to sustain his or her future economic needs after
suffering a serious injury from speculating investors willing and able
to accept some risk for a potentially higher return on their
investments.”
November 13, 2011
Johnny v. Bornowski, 2011 U.S.
Dist. LEXIS 130495 (W.D. MO 2011). Defendants had filed a motion in
limine based on Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579
(1993), to exclude the testimony of Paul Deutsch, a psychologist and
rehabilitation expert and the testimony of John Ward to the extent that
Ward’s testimony depended on the opinions of Deutsch. Deutsch was
described as projecting specific medical treatment needed by the
plaintiff, for which costs were projected in the form of a life care
plan, and also opined as to Plaintiff’s work restrictions, diminished
work life and the probability that Plaintiff will return to full time
work or part time work. The court said:
[T]he Court finds Dr. Paul Deutsch’s
testimony inadmissible as it relates to future medical treatments, work
restrictions, diminished work life, and probability plaintiff will
return to work full time or part time. Deutch’s expert testimony is
only admissible as it relates to psychological treatment. This includes
psychological evaluations, individual counseling options, and career
guidance counseling. To the extent that Dr. John Ward’s economic
forecast relies on Dr. Paul Deutsch’s testimony as to future medical
treatments, diminished work life, and probability Plaintiff will return
to work full time or part time, Dr. Ward’s testimony is also
inadmissible.
November 15, 2011
Dollman v. Mast Industries, Inc.,
2011
U.S. Dist. LEXIS 99802 (S.D.N.Y. 2011). The court granted a
motion in limine to preclude Randall K. Filer from testifying about (1)
the reasonableness of Dollman’s job search, and (2) the impact of
Dollman’s immigration status on her potential damages and the potential
of Dollman qualifying for certain immigration benefits. The court said
about Filer:
Filer has an extensive background in
labor economics and is undoubtedly qualified to offer testimony on
Dollman’s general economic damages. He has no specific experience,
however, relating to the fashion industry or the fashion industry job
market. (See Filer Dep. 26-28.) In preparing his report, he consulted
with only one member of the fashion industry–his niece, who provided
background information on fashion industry job search strategies.
(Filer Dep. 55-56.) And there is simply nothing in Filer’s experience,
training or education that endows him with specialized knowledge of job
search techniques, in the fashion industry or otherwise. Given this
lack of expertise, Filer’s testimony about the reasonableness of
Dollman’s job search will not assist the jury, which is fully capable
of making this determination on its own.
November 19, 2011
US Airways v. McCutchen, 2011 U.S. App. LEXIS 22883 (3rd Cir 2011). The
Court said:
After Appellant James McCutchen
suffered a serious automobile accident, a benefit plan administered by
US Airways paid $66,866 for his medical expenses. McCutchen then
recovered $110,000 from third parties, with the assistance of counsel.
Then US Airways, which had not sought to enforce its subrogation
rights, demanded reimbursement of the entire $66,866 it had paid
without allowance for McCutchen's legal costs, which had reduced his
net recovery to less than the amount it demanded. US Airways filed this
suit against McCutchen for "appropriate equitable relief" pursuant to
§ 502(a)(3) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), 29 U.S.C. § 1132(a)(3)(B). The issue
before us is whether McCutchen may assert certain equitable
limitations, such as unjust enrichment, on US Airways' equitable claim.
We conclude that he may. We therefore vacate the District Court's order
requiring McCutchen to pay US Airways the entire $66,866 and remand the
case for that Court to fashion "appropriate equitable relief."
December 1, 2011
Knitowski v. Gundy, 2011 N. J.
Super. Unpub. LEXIS 2797 (N.J. Super. 2011). In an unpublished
decision, the New Jersey Superior Court upheld the trial court’s
admission of testimony from Dr. Anthony Gamboa as a “vocational
economist.” Gamboa testified based on his study of data from the
American Community Survey (ACS) that workers with a cognitive
disability earn an average of 6.1% less and work an average of 7.1
fewer years than their “non-disabled counterparts.” Trial court Judge
Buchsbaum had concluded that “Dr. Gamboa’s testimony concerning
plaintiff’s reduced worklife expectancy was based upon an accepted
methodology and reliable data” and that “any possible shortcomings in
Dr. Gamboa’s opinion went to the weight of his opinion, not to its
admissibility.” The Superior Court said: “Our courts adopt a liberal
approach when assessing an expert witness’s qualifications” and
concluded that “Judge Buchsbaum did not abuse his discretion when he
concluded that Dr. Gamboa was qualified by experience, education and
training to offer expert testimony in the field of vocational economic
analysis.”
December 2, 2011
Tardif v. People for the Ethical
Treatment of Animals, 2011 U.S. Dist. LEXIS 138100 (M.D. FL,
2001). After performing a Daubert analysis on the proposed economic
damages testimony of Dr. Bernard Pettingill, Judge John Steele excluded
the testimony of Dr. Pettingill. Judge Steele determined that Dr.
Pettingill was qualified as the first requirement of a Daubert
analysis. Judge Steele also determined that Dr. Pettingill’s analysis
was reliable. However, Judge Steele did not think that Dr. Pettingill’s
testimony would be helpful to a jury, which was what Judge Steele
described as the third requirement of proposed expert testimony. Judge
Steele explained:
The Court finds Dr. Pettingill’s
calculations regarding Yerk’s lost wages to be unreliable because he
does not provide “good grounds” to support his conclusions. Daubert,
509 U.S. at 590. An expert’s “knowledge” within the meaning of the
Federal Rules of Evidence connotes more that subjective belief or
unsupported speculation.
First, the two year Associate Degree of $27,000 per year is
unverifiable based upon the information provided in Dr. Pettingill’s
report. According to plaintiff, the$27,000 figure was obtained from the
U.S. Department of Labor, Bureau of Labor Statistics, Monthly Labor
Review, January Editions (Doc. #144-2, p.7 ¶4.1) and the citation
is stated as “ibid,
www.census.gov/hhes/www/cpstables/03210/perinc/new_04.htm1” (Id, p.5,
¶1.4). The Court has reviewed both sources and is unable to
locate the $27,000 figure. (Footnote 1 said: The content of this
website is no longer available and plaintiff has not provided this data
as an exhibit.)
Second, there is nothing in the report that supports Dr. Pettingill’s
conclusion that Yerk is unlikely to work in the criminal justice field
in the future because of the “residual impact” of this lawsuit and that
his four year degree in criminal justice will be “practically
worthless.2” The report includes no information regarding the relevant
employment market, and merely stating that Yerk has unsuccessfully
applied to various police departments in the local area is
insufficient. The Court finds Dr. Pettingill’s application of the
average wage of a two-year Associate Degree graduate questionable on
its face. This testimony regarding the portion of Dr. Pettingill’s
report addressing lost wages will be disallowed. (Footnote 2 said: For
example, some branches of the federal government will accept
applications from individuals who have a four-year degree in any field,
including criminal justice.
http://www.opm.gov/qualifications/standards/IORs/gs1100/1102QAs.htm.)
December 13, 2011
Marzullo v. J.D. Pavement Maint.,
2011
Ohio 6261 (Ohio App. 8th, 2011). The Ohio Court of Appeals held
that the trial court abused its discretion in allowing Dr. John Burke,
an economic expert, to testify regarding future loss of earnings and
in-kind services because his expert report and opinion was not based on
competent and credible medical testimony, but rather on assumption. The
Court explained that it found that the trial court’s decision allowing
Dr. Burke’s testimony was unreasonable “because it left the jury to
make an expert conclusion whether [the plaintiff’s] condition impaired
her ability to work,” since “neither of [the plaintiff’s] medical
experts or her psychological expert testified with any reasonable
degree of economic certainty that [the plaintiff’s] injury prevented
her from obtaining her pre-injury wage or from performing daily
activities.”
December 17, 2011
Anastasion v. Credit Service of
Logan, Inc., 2011 U.S. Dist. LEXIS 116271 (D. UT 2011). Judge
Stewart denied a motion to exclude testimony of Stan V. Smith regarding
loss of credit expectancy and claims based on “time spent trying to
resolve problems with the credit reporting agency” based on
insufficient facts and speculation, but allowed the defendant to raise
further objections at trial. Judge Stewart excluded Stan Smith’s
testimony based on hedonic damages arising from credit problems based
on the fact that there has been no physical injury or loss of life.
Hamza v. Saks Fifth Avenue, Inc.,
2011
U.S. Dist. LEXIS 13932 (S.D.N.Y. 2011). This decision provides
extensive discussion of what is determined by a jury and what is
determined by a judge in a case involving alleged violations of Title
VII of the Civil Rights Act resulting in a termination of employment.
Judge Stamp rejected plaintiff’s motion to exclude economic testimony
about front and back pay of Michael Soudry under a Daubert standard.
The defendant argued that Soudry’s testimony would have been about
facts readily available without need for expert analysis. The judge
said:
While it is true, as the defendant
points out, that most, if not all of the statistical bases for Mr.
Soudry's calculations can be found online and are readily available to
anyone who seeks them out, this Court is of the opinion that without
technical and specialized knowledge and skill, one would not be able to
appreciate or calculate the importance and effect that each of the
bases has on Ms. Hamza's total economic loss. Mr. Soudry has employed
his specialized knowledge as a forensic economist to organize and
utilize each piece of this earnings "puzzle" into a final calculation
at which fact-finders would not be able arrive themselves if each piece
of information were presented to them individually. To put it
differently, simply because the necessary ingredients of Mr. Soudry's
final opinion were readily attainable does not mean that it did not
require specialized knowledge in order to place them together into a
meaningful economic loss calculation.
Judge Stamp, however, ruled that Soudry could not testify before the
jury because decisions about amounts to be awarded front pay and back
pay are made by the judge and not a jury. The decision reads as
if Soudry might be allowed to testify before the court after the jury
verdict if the jury found the defendant liable for discrimination,
saying: “Should the jury find liability on the part of the defendant at
trial, any testimony or exhibits regarding front and back pay damages
shall be submitted to this court following the verdict.”
December 21, 2011
Philichi v. United States,
2011 U.S. Dist. LEXIS 145757 (W.D. WA 2011). Judge Leighton said:
The economic losses arising from
Michael's permanent injury are difficult to estimate. He has lost past
earnings but also loss of future capacity (the difference between
the current earning capacity and his earning capacity prior to his
permanent injuries), increased educational expenses and past and future
medical assistive expenses. The testimony from both economists is
unpersuasive. Mr. Moss' analysis assumes that Michael would have
continued on the path he was on before he was injured, i.e., that he
would have continued on to obtain full-time employment in the
construction trades. Dr. Nickerson testified that the disability and
deformity of Michael's dominant hand makes no difference in his loss of
future earning potential. The Court rejects Dr. Nickerson's conclusion.
The Court also rejects the assumption of Mr. Moss but does not render
the damage item as speculative. It is difficult to determine with
precision, but the Court is certain that Michael will suffer the loss
of future earning potential in some significant amount.
Judge Leighton went on to describe in some detail how he arrived at
total economic damages resulting from medical malpractice of
$900,982.29.