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,” (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.

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.