To the extent Plaintiff seeks to introduce evidence of reduction of value of life, or "hedonic” damages, such evidence is not relevant where Plaintiffs termination is not properly before the Court. Plaintiffs expert testimony is speculative and unreliable and will not be helpful to the jury. The jury would be able to make its own decision on damages if it finds intentional infliction of emotional distress. Accordingly, Defendants' Motion in Limine No. 2 is granted.

Regarding the calculation of future lost wages, I accept for the most part the approach of the defendant's well-qualified economist, Dr. Louis J. Maccini, professor of economics at Johns Hopkins University, to the extent he differs from the plaintiff's expert economist, Dr. Andrew Verzilli. Dr. Maccini recognized that federal, state, and local income tax should be deducted; he also reduced the gross earnings of a Chief Engineer by an appropriate percentage of business expenses, which Dr. Verzilli did not; he projected a retirement age of approximately 63 rather than 65, based on average work life expectancies, which seems particularly reasonable as to the Chief Engineer's job in light of its physically demanding nature; and he appropriately reduced the amount to present value. Recognizing that future damages must be reasonably estimated rather than precisely calculated, I accept Dr. Maccini's calculation of a total wage loss, including benefits, of $1,077,000.

Defendant also did not produce any expert proof refuting plaintiff's damages claim. In this regard, plaintiff produced an economic expert, Dr. Robert P. Wolf, who concluded that plaintiff had suffered economic damages of $ 1,034,307 as a result of Camille's death, including $ 143,988 for loss of household services, $ 328,012 for loss of advice, counsel, support, and companionship, and $ 562,307 for lost sleep-time, on-call services. At the close of evidence and following the court's instruction, the jury returned a verdict finding defendant solely negligent and awarding plaintiff $ 1,210,319 in compensatory damages and $ 539,681 for pain and suffering, for a total amount of $ 1.75 million.

The Court finds that Daubert is satisfied and Dr. Boudreaux may testify at trial. Plaintiff argues without citing any support that Dr. Boudreaux, as an economist, is unqualified to offer an opinion on pre-accident earning capacity. Plaintiff also criticizes Dr. Boudreaux's use of income averaging as unsupported and unreliable methodology; however, as noted by Transocean, Dr. Boudreaux has supported this methodology with at least two peer-reviewed articles. Finally, Plaintiff opposes Dr. Boudreaux based upon his reliance on the Camus Study. While the Court recognizes the split in jurisprudence involving this study, it finds that  the objection to the use of this study goes to the weight of the evidence as opposed to admissibility. Notably, any concerns and/or challenges Plaintiff has regarding Dr. Boudreaux's testimony may be raised during cross-examination. 

I construe this rule as applying to any testimony which attempts to quantify (or place a monetary value on) a particular decedent’s hedonic damages, as well as any opinion testimony which places before the jury a dollar figure or numeric formula as a so-called “benchmark figure,” “guideline,” or “range of values” to be used in calculating such damages.

Given the multiple factual, arithmetical, and theoretical errors in Morse's calculations, the Court finds that Morse's calculations are ultimately not reliable enough to put before the factfinder. When asked repeatedly about his factual and theoretical assumptions, Morse explained that "I'm just trying to help the trier of fact or a jury who might say, Well, I've listened to all of the testimony and they would have grown at 5 or 10 or 15 or 20. Those are reasonable growth rates to consider, and I've done the math." Morse Depo. at 203. But it is hard to see how "d[oing] the math" could be of any help to the factfinder when the math is so untethered from the reality of NIAC's finances. To take just one example, Morse's own report shows that the 2008 and 2009 surpluses were lower in part because of NIAC's increased expenses, yet his model attributes the change entirely to defendant's actions. Allowing that math to go before the factfinder would not assist in determining what damages were actually caused by defendant, and it would "convey [footnote omitted] a delusive impression of exactness in an area where a jury's common sense is less available than usual to protect it."

English’s economic expert, Dr. Glenda Glover testified that Crystal’s loss of income was $1,163,060, using a national-average figure of $38,651 for Crystal’s annual income in the base year, 2007. Crystal had an earnings history of more than five years and had never earned that amount. Crystal’s hourly wage was $6.70. According to her tax returns, her income in 2005 and 2006 was (sic) $10,585 and $13,099, respectively. Dr. Glover’s report states, “Though she was earning $6.70 at the time of her death, in applying the earning capacity approach, income of $38,651 is based on the National Income Average.” . . .

Dr. Glover stated on cross-examination, “What I’m assuming is that – I’m going to apply the national average to her life. I’m not going to apply at $6.70 because that’s not her value. I’m not going to get into the black-woman-no-value theory, and we’re not going to go there. I refuse to go there with you today.”

. . .other deviations from the proper method of determining lost future income: (1) assuming that Coleman would h ave worked until age sixty-five, as opposed to using nationally accepted tables for work-life expectancy; (2) adding fringe benefits that Coleman never received; and (3) using “ballpark” figures. . . Personal consumption must be taken into account. . . Fringe benefits must not be added unless they have actually been received. . . .Work-life expectancy cannot be assumed, but must be based on an objective standard.

Dr. Lessne's report and his deposition testimony indicate that his report is based on the life expectancy of a healthy 62 year old woman. However, the medical evidence, as well as Dr. Lessne's report, indicates that Plaintiff is not a healthy 62 year old woman; she is a 62 year old woman with stage three colon cancer, that was diagnosed in March 2011. Thus, Dr. Lessne's report and its conclusions lack "fit" with the facts of this case. As a result of this lack of fit, when questioned at his deposition, Dr. Lessne testified that his "numbers would change" if his life expectancy projection was wrong.

Dr. Lessne's life care plan includes various doctors' appointments, various therapies, and an attendant/driver for 16 hours per day for the rest of Plaintiff's life expectancy. However, nothing in the report indicates where or how Dr. Lessne developed these numbers. At his deposition, Dr. Lessne admitted that he did not speak with Plaintiff's doctors or Plaintiff. He also admitted that all of the projected medical care and frequency estimates are simply his opinion. Thus, there is no evidence to support many of Dr. Lessne's estimates for future medical care needs and their costs in Plaintiff's life care plan. Under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), the Court must assess the reasoning or methodology underlying the expert's testimony.

Here, Dr. Lessne has not provided any reasoning or methodology to support his future medical care needs projections for Plaintiff. It appears that his estimates are nothing more than his own ipse dixit.. . . Consequently, Dr. Lessne may not testify regarding Plaintiff's future medical care needs.

It is not proper for Dr. Maloney to give an expert opinion on the amount of punitive damages the jury should award. The amount, if any, is for the jury to decide based on the facts of this case and the applicable punitive damages law. Such testimony would invade the province of the jury.

Plaintiff’s exert Dr. Hill attempts to distinguish companionship from consortium by asserting that “people are able to hire paid ‘companions’ such as nurses and health aides. He uses wage rates for those professions to value the loss of Mr. Millo’s services in that regard. However, the practical examples of companionship Dr. Hill describes in his report are activities such as bowling, sharing an evening meal, attending movies, and other social activities that do not resemble the duties of a paid nurse or health aide. Non-economic damages are, as the Alaska Supreme Court stated in Schreiner, a means of recovering “for an injury not otherwise compensable.” The implications of Dr. Hill’s argument–that a surviving spouse could pay a companion to provide the type of companionship the married couple formerly enjoyed–are not convincing. This court finds that the loss of companionship and advice that a surviving spouse experiences, while indisputably a loss, is not an economic loss under Alaska law (footnotes omitted).

While non-market services such as the performance of household chores and subsistence hunting and fishing can, under Alaska law, qualify as economic damages, the provision of companionship and advice from a loved one falls within the category of non-economic damages, and is therefore subject to the statutory cap on such damages. Accordingly, summary judgement is granted to Dr. Delius on this issue.

A claim for relief for loss of consortium provides a means of recovery for an injury not otherwise compensable.  It should be recognized as "compensating the injured party's spouse for interference with the continuance of a healthy and happy marital life." The interest to be protected is personal to the wife, for she suffers a loss of her own when the care, comfort, companionship, and solace of her spouse is denied her.  The basis for recovery is no longer the loss of services, but rather the injury to the conjugal relation.

Dr. Rice’s testimony regarding Plaintiff’s future lost earnings is only permissible if alternative evidence shows that Plaintiff’s personal characteristics – including his health, occupation, and other facts – are likely to give him a longer work life expectancy that the rate provided by the Department’s statistical tables. Here , Plaintiff has expressed an intention to “present evidence at trial that he would have continued working past the average work life expectancy.” Because the nature of this evidence Plaintiff plans to present is not entirely clear at present, the Court deems it most appropriate to defer its ruling on this aspect of Defendant’s motion at the present time. However, Dr. Rice will not be permitted to testify regarding his future lost wage calculations based merely on his assumptions of Plaintiff’s work life expectancy. Nor will self-serving testimony regarding the fact that Plaintiff “intended” to work until age 70 suffice.

In this case, the plaintiffs intend to introduce Smith's testimony to establish -- through economic principles -- the value of Doe's future loss of enjoyment of life. There is no binding Seventh Circuit precedent suggesting that such economic testimony is sufficiently reliable to be admissible . . .The court therefore follows the well-reasoned opinion of Mercado v. Ahmed, 756 F. Supp. 1097 (N.D. Ill. 1991). . . Because Smith's testimony would not assist the trier of fact in reaching its decision, his testimony is irrelevant -- and must be excluded.

[M]any of the affidavits do not address the use of ‘value of life’ figures to calculate the value of loss of society damages, many are duplicates and some are from Stan Smith himself. These affidavits do not negate the economists’ responses in a 2009 survey in the Journal of Forensic Economics which asked economists if they would be willing to calculate hedonic damages in an injury case. Of the economists who responded, 83.6% responded because such damages ‘are far too speculative to quantify’ and ‘[t]his should be left up to the trier of fact.’

The Supreme Court of Kentucky has held that damages for pain and suffering are not proper for a person who remained unconscious from the time of injury until the time of death. Vitale v. Henchey, 24 S.W.3d 651, 659 (Ky. 2000). "Damages for pain and suffering may be awarded, however, if the injured person was partly conscious, had intervals of consciousness, or was conscious for a short time before death." Id. (internal quotation marks omitted). The question, then, is whether there is a genuine issue of material fact regarding the consciousness of Mrs. Spaulding during the period between the accident and her death.

In Kentucky, even a brief  period of consciousness may suffice to warrant the recovery of damages for pain and suffering.

[W]ith respect to Dr. Smith's testimony regarding reduction in the value of Plaintiff's life, or hedonic damages, the Court will grant Defendant's Motion. Plaintiff argues in her Reply that this evidence should be admissible, arguing that Dr. Smith is extremely qualified, that his testimony is based on reliable economic and scientific methods, and that it has received extensive peer review and acceptance.  Plaintiff further states that hedonic damages are "used by every federal regulatory agency." However convincing these arguments may be, they do not change the fact that hedonic damages are used to approximate the loss of the value of life, and therefore are used in cases involving death or injury. As Plaintiff herself states, when "every federal regulatory agency" uses hedonic damages, it is "in analyzing the potential impact to life or limb."  Furthermore, the three Tenth Circuit cases that have mentioned hedonic damages all involve either physical injury or loss of life.  As Plaintiff has not suffered the loss of life or limb, testimony regarding hedonic damages will not assist the trier of fact. Therefore,  the Court will grant Defendant's Motion with respect to this testimony. (Footnotes omitted.)

(1) Whether the [expert is] proposing to testify about matters growing naturally and directly out of research [he has] conducted independent of the litigation, or whether [he has] developed [his] opinion expressly for purposes of testifying;
(2) Whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion;
(3) Whether the expert has adequately accounted for obvious alternative explanations;
(4) Whether the expert is being as careful as he would be in his regular professional work outside his paid litigation consulting;
(5) Whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give.

Dr. Poindexter's opinions are reliable. Indeed, these opinions are the types of opinions that forensic economists commonly give. In reaching his conclusions, Dr. Poindexter employed the tools and training that a forensic economist uses, and his factual conclusions logically arise from the information he reviewed. His opinions are very conservative, as his projections are based on Decedent making a maximum $10 an hour, no matter the job. Indeed, Dr. Poindexter's calculations do not account for Decedent receiving any promotions, seniority advances, or any other escalations throughout his life. Opposing counsel vigorously cross-examined Dr. Poindexter about his conclusions, and Dr. Poindexter clearly explained why he reached conclusions contrary to those explanations posed by Defendants' counsel. (Footnotes omitted.)

This matter comes before the Court upon Defendants' Motion in Limine to Exclude the Testimony of Dr. Allen Parkman Regarding Loss of Value of Life or Hedonic Damages [docket no. 27]. In responding to Defendants' motion, Plaintiff relies in part on Smith v. Ingersoll-Rand Co., 1997 U.S. Dist. LEXIS 23443, which is attached to his response. In Smith, Judge Vazquez found that the economic studies which purportedly would allow valuation of hedonic damages by an expert would fall into the category of social science and would not require a Daubert analysis of the proposed testimony since the proper analysis would be under Fed. R. Evid. 702. Judge Vazquez went on to find that the use of the economist's testimony for purposes of placing a value on hedonic damages would not be reliable and that it would be unhelpful and confusing to the jury; therefore, Judge Vazquez did not allow the economist to place a value on the hedonic damages suffered by the Smiths. However, Judge Vazquez did allow the expert in her case to give testimony explaining hedonic damages. I agree with the approach and logic taken by Judge Vazquez in the Smith case. While I will not allow the expert in this cause, Dr. Allen Parkman, an economist, to testify regarding the value of the hedonic damages suffered by Plaintiff's deceased, I will allow him to explain the nature of hedonic damages. Also, Dr. Parkman may give his opinion as to the economic loss to the estate caused by the death of Jay Gradia.

While judges have no greater ability than jurors to determine any correct amount of punitive damages (as there is no such thing as a correct amount), judges do have far greater familiarity with the experience of the legal system, which includes not only the large awards that have been the subject of well publicized appeals, but also small awards that are not appealed and therefore cannot easily be found in public sources. Judges have a better awareness than juries whether a particular award is consistent with the norms that prevail in that system. And while judges do not necessarily have any greater expertise than jurors as economists, and cannot necessarily better assess the point at which damages become excessive and cause harm to the economy, it would be catastrophically expensive and impractical to have the parties in every tort trial call economists as expert witnesses to educate the jury on the consequences of damages to the overall economy. Responsibility to appraise these matters of necessity falls on the courts even if they lack expertise in economics and feel ill equipped to make such evaluations.

Here, the ratio of the $300,000 punitive damages award to Jones's $60,000 compensatory award is 5 to 1. The ratio, without regard to the amounts, tells us little of value in this case to help answer the question whether the punitive award was excessive. Had the facts of the harm to Payne been such that the jury appraised his compensable loss at only $10,000 based on the same conduct by Jones, and the jury had imposed a punitive award on Jones of $100,000, we would not consider the punitive award excessive, even though the ratio of 10-to-1 would have been twice as high as the 5-to-1 ratio that actually resulted. On the other hand, if exactly the same conduct by Jones had caused Payne $300,000 of compensable harm by reason of a concealed susceptibility of which Jones was not aware, and the jury had imposed the same $300,000 in punitive damages, the punitive damages would appear to us to be very high (because of the relevant low degree of reprehensibility of Jones's conduct) although representing only a 1-to-1 ratio. The 5-to-1 ratio of punitive to compensatory damages, by itself, tells nothing about whether the punitive award was excessive, but given the substantial amount of the compensatory award, the punitive award five times greater appears high.

No crystal ball is available to juries to overcome the inevitable speculation concerning future tax status of an individual or future tax law itself.  Trial strategies and tactics in wrongful death actions should not be allowed to deteriorate into battles between a new wave of experts consisting of accountants and economists in the interest of mathematical purity and of rigid logic over less precise common sense.  Countless numbers of unknown and unpredictable variables for tax purposes alone include, as mere examples, future marital and family status, changes in rates, exemption and deduction provisions of overlapping tax codes.  All sides to this issue would no doubt agree at least that this could produce much guesswork.  So, a majority of jurisdictions have wisely stayed with a rule precluding evidence of after-tax income on the earnings damage issue to avoid "turning every negligence case into a trial [at least] of the future federal income tax structure" involving "a parade of tax experts" (citations omitted). . . .

There should be no illusion but that introduction of evidence of after-tax income is intended to lessen the over-all amount of awards by decreasing the components, formulas and foci of the jury.  While we fully recognize the lack of mathematical certainty of jury damage awards, we are also realists appreciating the futility of expecting these kinds of unknowable projections to change very much except perhaps to add bedeviling confusion.

Defendants argue that plaintiffs' expert Dr. Thomas Carroll, an economist, uses a speculative foundation when arriving at an opinion that, as temporarily disabled, decedent could have earned $920,000 and contributed $322,240 to his father during the remainder of his life. Defendants point out that decedent was chronically homeless with possible mental illness, and occasionally lived with his father. Defendants further point out that Dr. Carroll had no record of decedent's earnings or previous support for his father upon which he based his opinion. Therefore, defendants urge the court to exclude Dr. Carroll's opinion. . .
   
In this case, there is little doubt regarding the qualifications of Dr. Carroll, and his report, though relying on assumptions on future earning capacity, exhibits a thorough methodology and analysis, which would be helpful to the trier of fact in considering potential damages. Of course, defendants will have the opportunity to challenge Dr. Carroll's conclusions at trial.

The first dispute concerns the number of years Tiara could be expected to work. The plaintiff's expert assumed, based on certain sources, that Tiara would work until the normal retirement age of 67. The defendant's expert assumed, based on other sources, that Tiara would work for approximately 21 and a half years. The defense expert's assumption was based upon a study of "initially inactive women with less than a high school education."Tiara did have some work experience, so it is not immediately obvious that she matches the "initially inactive" description. But grouping Tiara with the findings of that study is also not quite apt because the evidence indicated that Tiara was completing her GED, and therefore should be treated as a high school graduate, not a high school dropout. All in all, the plaintiff's expert's assumption is more compelling on this point.
   
Another disputed assumption is Tiara's expected tax rate. The plaintiff's expert testified that with three children and relatively modest earnings, Tiara's taxes would be negligible. The defendant's expert assumed a greater rate, especially if Tiara went on to obtain a two-year degree. The Court agrees that the former approach more closely matches our situation.

The contested assumption of most significance is how much education Tiara ultimately would have completed. Lifetime wages for graduates of community colleges are, on average, higher than lifetime wages for GED recipients. As a result, each expert made two calculations, one for Tiara completing community college and one for her without that credential. Within that latter category, the experts appear  to have made a further distinction: the plaintiff's expert assumed Tiara's wages as a GED holder, while the defense expert assumed Tiara's wages in a minimum wage-only job. (Citations and footnotes removed.)

It bears repeating that no one, not even the capable experts who testified in this suit, can predict accurately what Aubrey Anna would have  earned had she survived. She was only 30 weeks old. The Court -- which has been given only two options, high school completion or two-year degree holder -- must make a reasonable guess informed by prior caselaw, national averages, and long-term trends. It concludes that Aubrey Anna would more likely than not move at least one rung up the ladder of economic opportunity. As a result, her grandmother will be awarded $773,280 for lost earnings.

Future damages or front pay is compensation for "the post-judgment effects of past discrimination." Shore v. Federal Express Corp., 777 F.2d 1155, 1158 (6th Cir. 1985). "While the determination of the precise amount of an award of front pay is a jury question, the initial determination of the propriety of an award of front pay is a matter for the court." Arban v. West Publishing Corp., 345 F.3d 390, 406 (6th Cir. 2003). The district court's determination of whether an award of front pay is appropriate must ordinarily precede its submission of the case to the jury. Roush v. KFC Nat'l Management Co., 10 F.3d 392, 398-99 (6th Cir. 1993).  Awards of front pay must be guided by consideration of certain factors, including: an employee's duty to mitigate; the availability of employment opportunities; the period within which one by reasonable efforts may be re-employed; the employee's work and life expectancy; the discount tables to determine the present value of future damages; and other factors that are pertinent on prospective of damage awards. Id. at 399. In Arban, the trial court determined not to submit the issue of front pay to the jury after proofs were presented at trial and finding that there was insufficient evidence for the issue to be brought to the jury. Arban, 345 F.3d at 406. Speculative testimony on front pay cannot support submitting the issue to the jury. Id. at 407. An economic expert's testimony on the issue of future damages or front pay based on the Social Security Wage Index was found to be speculative. Id. In this case, the front pay issue need not be determined by the Court until proofs have been presented at trial.

A claim for relief for loss of consortium provides a means for an injury not otherwise compensable. It should be recognized as “compensating the injured party’s spouse for interference with the continuance of a healthy and happy marital life.” The interest to be protected is personal to the wife, for she suffers a loss of her own when the care, comfort, companionship, and solace of her spouse is denied her. The basis for recovery is no longer the loss of services, but rather the injury to the conjugal relation.

The wrongful death statute, AS 09.55.580, states in pertinent part:
   
   
The survival of claims statute, AS 09.55.570, states in pertinent part:
   

Defendant contends that since plaintiff did not incur any actual expenditures on household services between the accident and the date of verdict, having relied on the gratuitous assistance of relatives and friends, the jury improperly awarded plaintiff $ 43,096 in that respect.  We agree.

A damages award reflecting the value of such services did not serve a compensatory function and was improperly made (see, Coyne v Campbell, 11 NY2d 372). The jury should also have been instructed that future damages for loss of household services should be awarded only for those services which are  reasonably certain to be incurred and necessitated by plaintiff's injuries.  Contrary to plaintiff's contention, such an instruction does not require him to be dependent on the charity of others.  Such a charge to the jury merely ensures that any compensatory damages awarded to plaintiff are truly compensatory.

A pecuniary loss or damage must be one which can be measured by some standard.  It is a term employed judicially, "not only to express the character of the loss of the beneficial plaintiff which is the foundation of the recovery, but also to discriminate between a material loss which is susceptible of pecuniary valuation, and that inestimable loss of the society and companionship of the deceased relative upon which, in the nature of things, it is not possible to set a pecuniary valuation." Patterson, Railway Accident Law, § 401. . . .

Neither "care" nor "advice," as used by the court below, can be regarded as synonymous with "support" and "maintenance," for the court said it was a deprivation to be measured over and above support and maintenance.  It is not beyond the bounds of supposition that by the death of the intestate his widow may have been deprived of some actual customary service from him, capable of measurement by some pecuniary standard, and that in some degree that service might include as elements "care and advice." But there was neither allegation nor evidence of such loss of service, care, or advice; and yet, by the instruction given, the jury were left to conjecture and speculation.

The difficulty upon this point arises from the employment of the word pecuniary in the statute; but it was not used in a sense so limited as to confine it to the immediate loss of money or property; for if that were so, there is scarcely a case where any amount of damages could be recovered. It looks to prospective advantages of a pecuniary nature, which have been cut off by the premature death of the person from whom they would have proceeded; and the word pecuniary was used in distinction to those injuries to the affections and sentiments which arise from the death of relatives, and which, though most painful and grievous to be borne, cannot be measured or recompensed by money. It excludes, also, those losses which result from the deprivation of the society and companionship of relatives, which are equally incapable of being defined by any recognized measure of value.

The final issue raised by the parties is whether the plaintiff may recover the value of free medical services rendered by the Shriners’ Hospital for Crippled Children in performing surgery on Mark Peterson’s leg. Contrary to plaintiff’s argument, we believe that the holding in Jones & Adams Co. v.  George (1907), 227 Ill. 64, 669, is still good law and is controlling. In the George case, the court held that a personal injury plaintiff could not recover for the value of nursing services rendered by the plaintiff’s family. The reasoning of the decision is sound and, we believe, fully applicable here. An individual is not entitled to recover for the value of services that he has obtained without expense, obligation, or liability. (Accord, see Coyne v. Campbell (1962), 11 N.Y.2d 372, 183 N. E.2d 891, 230 N.Y.S. 2d 1.) . . .

We refuse to join those courts which, without consideration of the facts of each case, blindly adhere to ‘the collateral source rule, permitting the plaintiff to exceed compensatory limits in the interest of insuring an impact upon the defendant.’. . it is not the purpose of compensatory tort damages to punish defendants or to bestow a windfall upon plaintiffs. The view that a windfall, if any is to be enjoyed, should go to the plaintiff . . .borders too closely on approval of unwarrented punitive damages, and is not a view espoused in our cases. The argument has also been made that one who renders services gratuitously intends to bestow a gift, and that allowing a defendant to mitigate damages in this situation effectively shifts the benefit to the defendant. We do not believe, however, that presumed intentions should play so important a role in our analysis. We are concerned more with discerning the actual effect upon the parties, and we believe that justice is better served in this way.

A future lost earnings award compensates plaintiff for impairment of plaintiff's earning capacity. Impairment of earning capacity is calculated by deducting the amount plaintiff is capable of earning after his injury from the amount he was capable of earning prior to his injury, and awarding plaintiff the difference. Expert testimony is not necessary to establish loss of future earning ability. The plaintiff "may testify that his injuries diminished his capacity to work, and the appearance of [the] plaintiff on the witness stand and his testimony as to the nature of his injuries and their duration is sufficient to take the question of impaired earning capacity to the jury." "Evidence that plaintiff's injury [is] permanent and that it prevented him from continuing employment [is] generally sufficient to permit a jury to arrive at a calculation of lost future wages"("once plaintiff introduces evidence of permanent injury, the jury should be instructed as to loss of future earnings"). (Citations deleted.)

A tort plaintiff can recover future economic damages for any loss of earning capacity caused by her injury. A plaintiff claiming lost earning capacity must offer sufficient proof of (1) "'future impairment'" and (2) "'the extent of prospective damages flowing from the impairment.'" The measure of damages in the second step is "'the difference between the amount which the plaintiff was capable of earning before his injury and that which he is capable of earning thereafter.'" The measure of damages in the second step is "'the difference between the amount which the plaintiff was capable of earning before his injury and that which he is capable of earning thereafter.'"
   
The damages are awarded for loss of earning power, not simply loss of earnings. The proper focus is thus what the injured plaintiff could have earned over the course of her working life without the injury versus what she will now earn, not what she earned or will earn in any given year. See id. (plaintiff must show that "the amount of wages [he] will be capable of earning over his working life after his injury is less than the amount of wages he was capable of earning over his working life before his injury"). Accordingly, the fact that a plaintiff earns a higher annual salary after an injury than she did prior to the injury does not bar her from recovering for loss of earning capacity. In such situations, the plaintiff can still recover if she can show that she would have earned even more over the course of her working life if she had not been injured.
   
Similarly “the jury may consider the earnings of the plaintiff  at the time of the injury, but the jury is not bound to accept such earnings as conclusive of his future earning power." A plaintiff who is unemployed or  otherwise earning below her potential at the time of injury, for example, can recover damages for lost earning capacity, as can an injured child, student, or homemaker.
   
Departures from actual pre-injury earnings must be justified and cannot be unduly speculative. Like all expert testimony, an expert witness's calculations of future earning capacity are inadmissible under Federal Rule of Evidence 702 if based on "unsupported speculation." Testimony regarding what an injured plaintiff could have earned should take into account factors such as the plaintiff's age, employment record, training, education, ability to work, and opportunities for advancement. Further, an expert may reasonably depart from historical earning patterns in light of changed circumstances that occurred prior to the injury but were not yet reflected in the plaintiff's actual salary.
   
When calculating earning-capacity factors such as projected salary and years in the workforce, experts often consult actuarial tables, Bureau of Labor Statistics figures, or other averages along with the plaintiff's historical earnings.

No crystal ball is available to juries to overcome the inevitable speculation concerning future tax status of an individual or future tax law itself. Trial strategies and tactics in wrongful death actions should not be allowed to deteriorate into battles between a new wave of experts consisting of accountants and economists in the interests of mathematical purity or of rigid logic over less precise common sense. Countless numbers of unknown and unpredictable variables for tax purposes alone include, as mere examples, future marital and family status, changes in rates, exemption and deduction provisions of overlapping tax codes. All sides to this issue would no doubt agree at least that this could produce much guesswork. So a majority of jurisdictions have wisely stayed with a rule precluding evidence of after-tax income on the earnings damage issue to avoid “turning every negligence case into a trial [at least] of the future federal income tax structure” involving a “parade of tax experts.”