This page contains descriptions of legal decisions that were developed or revised by Thomas Ireland during 2012

February 11, 2012

Larson v. Wisconsin Central LTD, 2012 U.S. Dist. LEXIS 12463 (E.D. WI 2012). This is an order in response to a defendant’s motion in limine allowing economic expert Stan Smith to testify about the value of the plaintiff’s lost earnings and household services, but precluding Smith from testifying about Larson’s claim for lost retirement benefits. The defense argued that Smith should not have been permitted to testify about lost earnings to the end of the plaintiff’s life expectancy, but judge held that since Smith provided year-to-year data his testimony was permissible. The judge stated (incorrectly) that the Skoog-Ciecka railroad work-life expectancy tables were not peer-reviewed and supposedly had other problems such that Smith’s refusal to include calculations based on those tables does not violate Daubert or raise issues with his methodology. The judge held that Smith’s use of different methods when working for plaintiffs and defendants is an issue that should be raised on cross examination and not in a Daubert motion. With respect to household services, the judge held that Smith’s use of a 75% reduction in the plaintiff’s ability to provide household services was not represented as Smith’s opinion, but based on the plaintiff’s estimate and therefore admissible. With respect to retirement benefits, the plaintiff had voluntarily retired in order not to have to pay Railroad Retirement Board taxes on his earnings and to maintain his full disability benefits and therefore was not entitled to claim lost retirement benefits. 

CSX Transportation, Inc. v. Pitts, 2012 Md. App. LEXIS 9 (Md. App. 2012). This appeals court decision addressed five issues raised by CSX. One issue was: “Whether the circuit court erred in preventing appellant from cross-examining appellee’s economist as to statistics concerning a railroad employee’s average age of retirement?” The circuit court judge had not allowed “Dr. Hamilton,” the plaintiff’s economic expert, to be questioned about the average age of retirement of railroad workers because evidence of benefits from a collateral source such as sick benefits or pension benefits is not admissible to diminish a plaintiff’s damages. The defendant was permitted to ask what the loss would have been if the plaintiff had retired at age 60, but not to ask whether “the overwhelming majority of people that retire in the railroad industry were, in fact, 60 years old.” The appeals court held that the trial court judge’s determination that the question did not relate to the plaintiff individually and therefore was not an abuse of the trial court judge’s discretion. This included preventing the defense from questioning Hamilton about the AAR work life tables. Hamilton’s answer to the question about losses if the plaintiff retired at age 60 was that the plaintiff would have zero losses.  

February 23, 2012

Dossat v. Hoffman-La Roche, Inc., 2012 U.S. Dist. LEXIS 21002 (D. NV 2012).  This is was a judicial ruling on 11 motions in limine in an employment discrimination suit, one of which was a defense motion to exclude hedonic damages testimony. The court said:

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.

March 18, 2012

Carney v. United States, 598 F. Supp. 2d 439 (D. Md. 2005). In evaluating the reports of economists for the plaintiff and defense in a personal injury action, Judge Catherine C. Blake said:
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.

Risko v. Thompson Muller Automotive Group, 2010 N.J. Super Unpub. LEXIS 1446 (N.J. App. 2010). This was an appeal of the trial court judge’s decision in a wrongful death action to grant a new trial to the defendant that was granted by the Appellate Decision of the Superior Court of New Jersey. In describing damages, the court said:

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.

Dearman v. Transocean Offshore Deepwater Drilling, Inc., 2012 U.S. Dist. Lexis 16852 (E.D. LA 2012). Among other issues being addressed in this memorandum, the plaintiff moved to exclude the testimony of Dr. Kenneth Boudreaux under the Daubert Standard. Judge Eldon F. Fallon rejected the motion saying:

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. 

March 26, 2012

BNSF Railway Co. v. LaFarge Southwest, Inc., Civ. No 06-1076, 2009 WL 4279849 (D.N.M. 2009). Judge M. Christina Armijo granted in part a motion in limine to exclude the reports and testimony of Brian McDonald and Allen Parkman for the plaintiff and W. Kip Viscusi for the defendant. She held that the majority rule in federal courts “is that any attempt to quantify the value of a human life is inadmissible and does not meet the relevance and reliability factors set forth in Daubert and progeny.” She said:

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.

Viscusi’s role in the case was to rebut testimony provided by McDonald and Parkman and Judge Armijo rules that there was no need for the jury to hear rebuttal testimony, given her ruling. 

Chavez v. Marten Transport, LTD, 2012 U.S. Dist. LEXIS 39586 (D.N.M. 2012). Judge Martha Vázquez held that Brian McDonald “will be permitted to testify at trial as to the concept and meaning of hedonic damages, and the areas of experience that should be considered in determining those damages for Chavez, but will not be permitted to testify at trial as to the value of a statistical life, or the range of the value of a statistical life in the United States, or otherwise present the jury with a quantitative measurement of hedonic damages.”

April 1, 2012

Parsi v Daioleslam, 2012 U.S. Dist. LEXIS 44300 (D.D.C. 2012). Judge John D. Bates granted a defense motion to exclude the testimony of economic expert Joel Morse, saying:

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."

April 12, 2012

Rebelwood Apartments v. English, 48 So. 3d 483 (MS 2010).  The Mississippi Supreme Court reversed a trial court of $3,000,000 verdict against Rebelwood Apartments in the wrongful death of Crystal English. Among other grounds, the Court pointed out that:

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.”

The Supreme Court held that Glover’s interjection of race was irrelevant, prejudicial and inflammatory. The Court also pointed out that Glover’s opinion was based on a conceptual misunderstanding that a court is determining the value of a person when making an award. The goal is to provide a sum of money that will, in fact, replace the money that the decedent would have earned. The court also criticized Glover for

. . .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.

In arriving at its opinion, the court distinguished its opinion from the opinion it reached in Greyhound Lines, Inc. V. Sutton, 765 So. 2d 1269 (Miss. 2000) in which the Court had upheld a trial court judges decision to use national averages in projecting the lost earnings of three minor children under the age of eight based on national averages for high school graduates. The key difference was that Crystal English had a five year earnings record that had been ignored by Dr. Glover. The Court also emphasized standards used in Culver v. Slater Boat Co., 722 F.2d 114 (5th Cir. 1983) in setting out the proper basis for calculating damages in a wrongful death action.

 April 17, 2012

Rinker v. Carnival Corporation, 2012 U.S. Dist LEXIS (S.D. FL 2012). Judge Patricia Seitz excluded the life care plan testimony of Robert Lessne because:

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.
April 30, 2012

Johnny v. Bornowski, 2012 U.S. Dist. LEXIS. (W.D. MO 2012). This is a ruling in response to the Plaintiff’s Motion for Reconsideration of an earlier ruling limiting the testimony of Dr. Paul Deutsch. Upon reconsideration, Judge Gaitan held that Dr. Deutch, who is a life care planning expert and psychologist, could provisionally “include discussion of chronic pain management program and Plaintiff’s diminished work life or probability Plaintiff will be able to return to work.” Judge Gaitan required, however, that “Plaintiff must submit segments of Deutsch’s deposition testimony, literature relied upon, and any additional items Plaintiff intends to use during trial on this subject for prior approval by the Court” by May 25, 2012. However the court repeated its earlier restriction that Deutsch may not testify regarding future medical treatments or work restrictions. Judge Gaitan also said: “To the extent that Dr. John Ward’s economic forecast relies on Dr. Paul Deutsch’s testimony as to future medical treatments and work restrictions, Dr.  Ward’s testimony is also inadmissible.”

May 3, 2012

Baldonado v. Wyeth, 2012 U.S. Dist. LEXIS 59512 (N.D. IL 2012). The Court granted in part a motion to exclude the punitive damages testimony of the plaintiff’s economist, Dr. Michael Maloney and scheduled a Daubert hearing to determine the admissibility of Dr. Maloney’s “net worth” opinions regarding the value of the Wyeth Corporation. The court held that:

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.

The Court also determined that “net worth” is relevant to punitive damages under Illinois law, which governed this case. Wyeth challenged Dr. Maloney’s opinions regarding net worth on the basis that Dr. Maloney’s opinions refer to market capitalization, not net worth. The Court indicated that “it is unclear from Dr. Maloney’s report and deposition testimony how he has calculated net worth beyond market capitalization.” The Court indicated that it will hold a Daubert hearing on that narrow issue.

May 11, 2012

Millo v. Delius, 2012 U.S. Dist. LEXIS 65211 (D.AK 2012). This was an order granting partial summary judgment to the defendant based on Alaska law in a wrongful death action. The decedent was survived by three adult daughters and his wife. The adult daughters were not being financially supported. Judge Sharon Gleason held that the adult daughters did not qualify as dependents for statutory purposes under the Alaska Wrongful Death Act. Plaintiff claims for punitive damages, pain and suffering of the decedent were also denied. The surviving wife also made a claim for “companion and advice-type services” as a type of economic loss as compared with non-economic loss, as valued in a report of economist Dr. Pershing Hill.” Non-economic loss was capped at $400,000 and the intent of the distinction was avoid having “companion and advice-type services” included with the $400,000 cap.  Judge Gleason said:

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.

Schreiner v. Fruit, 519 P.2d 462 (Alaska 1974). This decision held that a wife has an independent right to sue of loss of consortium due to negligently inflicted injury to her husband. This decision has been cited to indicate that care, comfort and companionship cannot be valued as economic losses because they do not constitute replaceable services. The Court said:

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.

May 14, 2012

Naquin v. Elevating Boats, LLC, 2012 U.S. Dist. LEXIS 66104 (E.D. LA 2012). This legal memorandum partially granted a motion in limine to limit the testimony of Dr. G. Randolph Rice, an economist, on two issues and the testimony of Dana W. Davis, a social worker, with respect to whether the plaintiff suffered from PTSD as a result of his injury. Davis was permitted to describe as a lay witness her observations during the course of treatment of any symptoms plaintiff exhibited, but not to testify about PTSD or causation of the symptoms.  Rice was not permitted to testify about the value of lost meals that were supposedly provided to the plaintiff since there was no evidence that such meals were provided. Rice had projected lost earnings to age 70 based on the plaintiff’s statement that he intended to work to age 70. Judge Barbier said:

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.

Lambert v. Teco Barge Line, 2007 U.S.  Dist. LEXIS 62278 (E.D. LA 2007). This legal memorandum was in response to motions to reconsider a previous motion in limine and to limit the testimony of plaintiff’s economic expert Harold Asher and to exclude the testimony of defense economic expert Dr. Kenneth Boudreaux. The court granted the plaintiff’s motion to reconsider on the basis that the standard for loss is earning capacity, not expected earnings so that a jury could consider whether higher future earnings might have been available because of enhanced earnings of tug boat captains, post Katrina. It denied plaintiff’s motion to exclude the testimony of Dr.  Boudreaux. It also limited the testimony of Mr. Asher using Bureau of Labor Statistics figures for work life expectancy. There is indication in the opinion that Mr. Asher had submitted two supplemental reports, the second of which was based on the worklife used by Dr. Boudreaux.

June 6, 2012

Flowers v.  Lea Power Partners, 2012 U.S. Dist. LEXIS 67359 (D.N.M. 2012). Judge James Parker held that Dr. Brian McDonald could testify about the definition of hedonic damages and the components of life that may be considered in calculating hedonic damages, but may not testify about an dollar range of values attributable to a statistical life. The plaintiff had also argued that the Court should strike an affidavit by Dr. Thomas Ireland in the case of Esquibel v. John Q. Hammons, LLC, that the defendant at attached to the defendant’s motion in limine. The judge held that because the affidavit was relevant to hedonic damages, the affidavit would be considered in ruling on defendant’s motion. Judge Parker then quoted Ireland’s affidavit extensively in his decision.

July 25, 2012

Fischer v. Mittal Steel USA, Inc., 2012 U.S. Dist. LEXIS 102798 (N.D. Ind 2012). From the decision: Defendant seeks to exclude evidence or argument regarding hedonic damages, which it describes as damages premised on the lack of personal enjoyment occasioned by injury. While Indiana Supreme Court has stated that a jury should not be instructed to consider the effect of the plaintiff's injury on "the quality and enjoyment of his life," it also observed that the phrase includes some losses that a jury should consider as part of the damage calculation. Canfield v. Sandock, 563 N.E.2d 1279, 1282 (Ind. 1990). The Court explained that a plaintiff who loves music or golf, or who can no longer lift a grandchild, should be compensated if Defendant's negligence robbed him of such pleasures. The Court approved an instruction that the jury could consider the effect of an injury on a plaintiff's "ability to function as a whole person." Id. Accordingly, to the extent that Defendant seeks to exclude evidence to show that, as the result of his accident, Christopher Molnar is no longer able to participate in activities that he previously enjoyed, the motion is DENIED.  However, Plaintiff should refrain from using the phrase "loss of enjoyment of life." To that extent, the motion is GRANTED with respect to Item 8.

August 4, 2012

Doe v. TAG, Inc., 1993 U.S. Dist LEXIS 16356 (N.D. Ill. 1993). In one of the first decisions regarding hedonic damages after the Daubert decision the Court said:

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.

August 29, 2012

Bailey v. Nyloncraft, Inc., 2012 U.S. Dist. LEXIS 122120 (E.D. MI 2012).  Judge George Caram Steeh granted defendant’s Daubert motion in limine to exclude the “loss of society” testimony of Stan V. Smith, pointing out that “plaintiffs do not cite a single published opinion in which Smith’s loss of society/companionship testimony has been admitted over a Daubert challenge.” The decision reviews claims made by the plaintiffs in favor of hedonic damages testimony, including 19 affidavits from economists “that purportedly reflect a general consensus in the relevant community that evaluation of loss of society damages can be ascertained with a reasonable degree of scientific certainty.” The judge added that:

[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.’

Judge Steeh concluded that: “Smith’s testimony concerning loss of society damages is inadmissible because it is irrelevant and unreliable.”

September 15, 2012

Hinkle v. Ford Motor Company, 2012 U.S. Dist. LEXIS 127302 (E.D. KY). The Court said, in part quoting another decision, that: “‘Under Kentucky law, recovery may be made for injuries suffered during the period of time between injury and death,’ provided the injured person was conscious for part or all of the time.” This case involved the estates of three decedents, all of whom were killed in an automobile crash. The estate of Hinkle claimed loss of hedonic damages for the short period between injury and death. There was an issue of fact whether Hinkle had any period of consciousness before expiring and the estate’s claim was allowed to proceed on that basis. No economic expert was involved.

Spaulding v. Tate, 2012 U.S. Dist. LEXIS 125669 (E.D. KY). This case involved the death of Judy Carol Spaulding in an automobile accident. The court said:

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.

The Court held that there was a material issue of fact about whether Ms. Spaulding had an instant of consciousness during which pain and suffering, including hedonic damages, could have occurred. No economist was involved. 

September 20, 2012

Anastacion v. Credit Service of Logan, Inc., 2011 U.S. Dist. LEXIS 116271 (D. UT 2011).  The Court granted a motion in limine to exclude the hedonic damages testimony of Stan V. Smith in a credit loss case involving no physical injury. The Court said:

[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.)

September 27, 2012

Ortiz v. Wiwi, 2012 U.S. Dist. LEXIS 137880 (M.D. GA 2012).  Judge C. Ashely Royal denied a motion in limine to exclude the economic expert testimony of J.C. Poindexter, Ph.D. The analysis went through the wording of Rule 702 of the Federal Rules of Civil Procedure and five standards set forth in the Advisory Committee Notes for Rule 702, suggesting that the courts consider:
(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.

Regarding Dr. Poindexter, Judge Royal said:

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.)

October 10, 2012

Gradia v. Tanner, 2002 U.S. Dist. LEXIS 28446 (D. N.M. 2002). U.S. Magistrate Judge William Deaton granted a motion to limit the hedonic damages testimony of Dr. Allen Parkman, as follows:

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.

October 25, 2012

Payne v. Jones, 2012 U.S. App. LEXIS 20665 (2nd Cir. 2012). In this decision, the 2nd Circuit vacated the trial court award of $300,000 in punitive damages and remanded the case to the trial court for a determination of punitive damages unless the plaintiff accepted a reduced award of $100,000 in punitive damages. The decision included a comparison of the ability of judges versus economists in determining the proper value for punitive damages:

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.

The 2nd Circuit also discussed the award in the context of single digit ratios recommended in State Farm v. Campbell, 538 U.S. 408 (2003).

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.

Johnson v. Recca, 492 Mich. 169 (MI 2012). This decision reversed the Michigan Court of Appeals determination that “replacement services” (household services) damages are allowed under Michigan’s No-Fault Automobile Insurance statute, MCL 500.3135(3)(c). The trial court had granted summary judgement. The case involved an injury to Penny Jo Johnson, who was not working and was not insured at the time of her injury. The Michigan Supreme Court held that MCL 500.3135(3)(c) does not provide for services to replace the services (such as household services) that a plaintiff or decedent had previously been able to provide.

October 29, 2012

Johnson v. Manhattan & Bronx Surface Transit Operating Authority, 71 N.Y. 2d 198; 519 N.E.2d 326 (N. Y. 1988).  The Court of Appeals of New York held that taxes should not be considered in determining wrongful death damages based on complexity of the issues. The Court said: 

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.

November 3, 2012

Tucker v. Las Vegas Metropolitan Police Department, 2012 U. S. Dist. LEXIS 156097 (D. NV 2012). This decision denied a defense motion in limine to exclude the testimony of economic expert Dr. Thomas Carroll on the basis that the only requirement for testimony to be allowed is that the economic expert was qualified. Judge Lloyd D. George said: 

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.

Clemons v. United States, 2012 U.S. Dist. LEXIS 155196 (S.D. MS 2012). This was the decision of a federal judge awarding damages in an FTCA case involving the wrongful death of Tiara Clemons and her unborn child, named as Aubrey Clemons, citizens of the Choctaw Nation. Dr. G. Richard Thompson was the plaintiff’s economic expert. James A. Koerber was the defense economic expert. Judge Carlton W. Reeves explained his award of damages for each decedent. In making his award of $874,373 for economic losses resulting from the death of Tiara Clemons, Judge Reeves compared the positions of the economic experts, as follows:

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.)

Judge Reeves castigated both experts for failing to provide calculations based on the achievement of Aubrey Clemons of a bachelor degree and said:

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.
November 9, 2012

King v. William Beaumont Hospital, 2012 U.S. Dist. LEXIS 160455 (S.D. MI 2012). Judge Dinese Page Hood described front and back pay in the following way:

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.

November 11, 2012

Schreiner v. Fruit, 519 P.2d 462 (AK 1974). From its own standpoint, the principle ruling in this case was that wives have the same right to sue for loss of consortium due to negligently inflicted injuries to their husbands that husbands had in Alaska with respect to wives. The court said about the right to sue for loss of consortium that:

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.

Put into the context of forensic economics, “care, comfort, companionship, and solace” one spouse derives from another is not a “service” like household services that can be replaced in the commercial market, but something uniquely irreplaceable that is intangible because of its uniqueness.

November 12, 2012

North Slope Borough v. Brower, 215 P. 3d 308 (AK 2009). This was an appeal by the defendant of the trial court decision to award damages to the mother of an adult male son under Alaska’s survival of claims statute, AS 09.55.570, and wrongful death statute, AS 09.55.580. The appeal primarily argued that the mother should not have been allowed to recover damages under both statutes. The Alaska Supreme Court affirmed the trial court decision “because Kulawik v. ERA Jet Alaska [820 P.2d 627 (Alaska 1991)] controls most of these issues,” affirming the trial court’s reasoning that “when at least one statutory beneficiary is found to exist, the beneficiary must be able to recover all pecuniary damages to an estate.” This included recovery of the son’s expected lifetime earnings over the son’s (not the mother’s) life expectancy. Hugh Richards was identified as the plaintiff’s economic expert, but the decision did not discuss his methods of calculation. The jury verdict in this case segregated plaintiff’s damages into “economic” and “non-economic” losses. The description for non-economic loss included “loss of consortium, affection, and companionship.” The Court described damages allowed under the wrongful death and survival actions in Alaska, as follows:

The wrongful death statute, AS 09.55.580, states in pertinent part:
(a) [W]hen the death of a person is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter . . . . [T]he damages   therein shall be the damages the court or jury may consider fair and just. The amount recovered, if any, shall be exclusively for the benefit of the decedent's spouse and children . . . or other dependents. When the decedent is survived by no spouse or children or other dependents, the amount recovered shall be administered as other personal property of the decedent but shall be limited to pecuniary loss. . . .
(b) The damages recoverable under this section shall be limited to those which are the natural and proximate consequence of the negligent or wrongful act or omission of another.
(c) In fixing the amount of damages to be awarded under this section, the court or jury shall consider all the facts and circumstances and from them fix the award at a sum which will fairly compensate for the injury resulting from the death. In determining the amount of the award, the court or jury shall consider but is not limited to the following:
    (1) deprivation of the expectation of pecuniary benefits to the beneficiary or beneficiaries, without regard to age thereof, that would have resulted from the continued life of the deceased and         without regard to probable accumulations or what the deceased may have saved during the lifetime of the deceased;
    (2) loss of contributions for support;
    (3) loss of assistance or services irrespective of age or relationship of decedent to the beneficiary or beneficiaries;
    (4) loss of consortium . . . .
The survival of claims statute, AS 09.55.570, states in pertinent part:
All causes of action by one person against another . . . survive to the personal representatives of the former and against the personal representatives of the latter . . . . The personal representatives may maintain an action thereon against the party against whom the cause of action accrued, or, after the party's death, against the personal representatives of the party.

Schultz v. Harrison Radiator Division General Motors Corp., 90 N.Y.2d 311 (1997). Damages for household services are to be awarded only for actual past expenditures and future services. An award had been made for past lost household services by the trial court. That award had been affirmed by an intermediate court of appeals, but was reversed by New York’s highest court in a decision that otherwise affirmed the trial court verdict and the appeals court decision, but remanded the decision to the trial court to implement its decision with respect past lost household services. 

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.
Michigan Central Railroad Company v. Vreeland, 227 U.S. 59 (1913). This U.S. Supreme Court decision is a very early decision under the Federal Employers Liability Act (FELA), holding that a broad interpretation of household services is in order in FELA actions when calculating damages. The Vreeland Court held that:

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.

Tilley v. The Hudson River Railroad Company, 24 N.Y. 471 (NY 1862). This pre-FELA decision addressed the meaning of “pecuniary,” as in “pecuniary damages,” under the then New York wrongful death act as follows:

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.

November 15, 2012

Peterson v. Lou Bachrodt Chevrolet, 76 Ill. 2d 353; 392 N.E.2d 1 (Ill. 1979). At issue in this case was whether a plaintiff could recover for the value of free medical services provided by the Shriners’ Hospital for Crippled Children. The Court said:

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.

November 28, 2012

LaFever v. Kemlite, 185 Ill. 2d 380; 706 N.E.2d 441 (IL 1998). The Illinois Supreme Court said:

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.)

December 14, 2012

Treadaway v. Societe Anonyme Louis-Dreyfus, 894 F.2d 161. (5th Cir. 1990).  In this case, the plaintiff economic expert had projected lost future earnings of $167,877.02, but the jury had awarded $170,000 for lost future earnings. The plaintiff’s vocational expert had also testified that the plaintiff had the capacity for earnings in a minimum wage job, which the plaintiff economic expert had testified would reduce future lost earnings to $134,955.61. The 5th Circuit invoked its “maximum recovery rule” to give the plaintiff an option of a new trial or accepting a remittatur of $36,207.17.  The “maximum recovery rule” is apparently loosely defined as “reducing a jury’s award to the maximum loss a jury could reasonably have found.” In this case, that meant that the plaintiff’s economic expert and vocational expert together effectively determined a maximum reasonable award of $134,955.61. 

Illinois Central Railroad v. Young, 2012 Miss. App. LEXIS 792 (Miss. App. 2012).  The trial court decision in this case was reversed and remanded for future trial in part because the trial court judge had allowed testimony about lost SSI benefits of a 24 year old schizophrenic single mother of two young children to be based on the life expectancy of the decedent without regard to the period of time during which the children would have been expected to be supported. The decision held that support that was provided based on SSI benefits received by the mother could be treated as pecuniary losses of the children, but that the loss should be have been based on the period of time during which such support for the children would have been likely. The decision also evaluated the testimony of economic expert Dr. David Channel under a Daubert standard and found Dr. Channel’s testimony admissible.

December 17, 2012

District of Columbia v. United States, 67 Fed. Cl. 292 (U.S. Court of Claims, 2005). Citing Sandstrom v. Principi, 358 3d 1376 (Fed. Cir. 2004) and U.S. Shoe v. United States, 296 F.3d 1378 (2002) in holding that cost of living increases cannot be added to awards for past damages in suits against the United States, absent a specific waiver of sovereign immunity from liability for interest. This decision focuses on the narrow question of whether past damages must be awarded in past lost nominal dollars versus being awarded in past lost real dollars and holds that only past lost nominal dollars can be awarded. Suggested by Paul Bjorklund.

December 18, 2012

Andler v. Clear Channel Broadcasting, 670 F.3d 717 (6th Cir. 2012). In this decision, the 6th Circuit provided an outline for how an economist should calculate loss of earning capacity.  The court said (citations and footnotes removed throughout):

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.

Pooshs v. Phillip Morris USA, 2012 U.S.Dist. LEXIS172727 (N.D. CA 2012). The decision is the order of Judge Phyllis J. Hamilton with respect to the admissibility of testimony by four of the plaintiff’s experts, one of whom was economic expert Robert Johnson. Judge Hamilton found that Johnson was sufficiently qualified to render an opinion regarding economic damages, but pointed out weaknesses that she said could be addressed in cross examination. However, she ruled for defendants in limiting the testimony of Johnson with respect to punitive damages to testimony about the net worth of the defendant’s financial position. She also specified the standards for awarding punitive damages under California law as “the degree of reprehensibility of the defendant’s conduct; the amount of compensatory damages awarded; and the defendant’s financial condition or wealth.”

Johnson v. Manhattan & Bronx Surface Transit Operating Authority, 71 N.Y.2d 198; 519 N.E.2d 326; 524 N.Y.S.23d 415 (N.Y. 1988).  This decision held that the measure of damages in a wrongful death action must be based on gross income, not after-tax income. The Court said:

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.”

December 19, 2012

Castelluccio v. IBM, 2012 U.S. Dist. LEXIS 158801 (D. CT 2012). This decision was an order of Judge Dominic J. Squatrito allowing, but limiting the testimony economic experts for each side in the litigation. The defense designated Charles L. Sodikoff, Ph.d., as its expert “in the are of mitigation of damages, and specifically job search activity end employability. Sodikoff was permitted to testify about the nature of the plaintiff’s job search, but not to express an opinion about whether the plaintiff’s job search met the requirement for mitigation of damages.  The plaintiff designated Dr. Gary Crakes as its expert on economic loss. Dr. Crakes was permitted testify about economic loss resulting from the plaintiff’s termination at IBM, but not about past or future loss attributable to the exercise of stock options. 

Martinez v. Glassman, 2012 Nev.Unpub. LEXIS 1480. (NV 12). This decision was an unpublished order that cannot be regarded as a precedent that upheld the decision of a trial court regarding the testimony of Dr. James G. Tappan, an OB/GYN. Dr. Tappan was found not to be an expert with respect to causation of injuries to a newborn child and also not an expert with respect to life care plans for the child. The court said that “Dr. Tappan’s sole experience with life care plans stems from his review of those plans as an expert witness in the context of litigation. Thus, Dr. Tappan has no experience, training, or formal schooling that would qualify him as an expert on life care plans.”   

Updated as of January 13, 2013