Legal Decisions Developed in 2015

January 19, 2015

Hoyal v. Pioneer Sand Company, Inc. 188 P.3d 716 (CO 2008). In this decision, the Colorado Supreme Court, en banc, held in a 7 to 3 decision that “evidence of a decedent’s future income tax liability should not be considered when calculating net pecuniary loss to a plaintiff in a wrongful death action.”

January 22, 2015

Ferguson v. Valero Energy Corp., 2009 U.S. Dist. LEXIS 34888 (E.D. Pa. 2009). This is an opinion by Judge Mary A. McLaughlin interpreting Delaware’s Wrongful Death Act and Survivor’s Act as they apply to categories of damages. There is no discussion of an economic expert in the decision. The case involved the death of a single adult man who was living with, but not financially supporting his father. The father sued for damages under the Delaware Wrongful Death Act, but died before the father’s case was tried. The decedent’s two brothers then sued for damages under Delaware’s Survival Act. The court held that even though the decedent had not been supporting his father, there was sufficient evidence that the decedent had provided household services to assist his father. The estate was allowed to seek recovery for the value of  household services the decedent son had provided for his deceased father. The judge also said: “Delaware courts have consistently held that the Wrongful Death Act allows the recovery of that portion of the decedent’s lost earnings that would have been saved, over and above the decedent’s spending on his maintenance, and passed on to his estate.”  However, this provision applied only between the moment of injury and the moment of death, which was too brief in this case to have allowed earnings loss damages to occur. The plaintiffs had sought “any and all hedonic damages allowed for the loss of the decedent’s life and enjoyment of future life as permitted by Delaware law or as evidence of the pain and suffering and mental anguish” of the decedent. Judge McLaughlin’s discussion of hedonic damages under the Survivor’s Act relied heavily on the decision in Sterner v. Wesley College Inc., 747 F. Supp. 263 (D. Del. 1990). Under Delaware law, any claim for hedonic damages has to be as a part of pain and suffering and not as an independent category of damages “at least under circumstances like those in Sterner and here, where only a brief interval occurred between decedent’s injury and death. . . .The Court therefore predicts that if Delaware law were to allow for the recovery of hedonic damages for life’s pleasures and loss of enjoyment of life, then the Survivor’s Act would allow recovery of such damages only to the extent they were suffered for the period of time between the injury at issue and the decedent’s death.  Revised listing.

Featherly v. Continental Ins., 73 Wis.2d 273, 243 N.W.2d 806 (1976).  This decision in related to the earning capacity losses of Clyde Featherly as the result of an automobile accident. His losses were presented to the jury in terms of the lost profits of his business, which was determined to be inadequate by the Wisconsin Supreme Court, saying:

While there may be an award for the loss of earning capacity measurable by  loss of salary, if such salary is truly a measure of earning capacity, a more difficult problem is presented where one is self-employed and derives his income from the profits of a business.  Where there is a personal injury, tort law in Wisconsin does not compensate for loss of profits per se.  Loss of profits is appropriate only if there is a clear causal relationship to the value of the earning capacity. Loss of profits is not in itself, under the circumstances here, admissible as a separate element of damages or per se as proof of the value of earning capacity.

March 7, 2015

Figurski v. Trinity Health-Michigan, 2015 Mich. App. LEXIS 42 (MI 2015). This decision reversed the trial court decision on the ground that the trial court should have permitted plaintiff’s causation experts to testify, but agreed with the trial court’s decision to allow testimony of Dr. Anthony M. Gamboa regarding plaintiff’s future wage loss. Gamboa’s five-step method was described in the decision in some detail and included his opinion that the plaintiff child had no post-injury earning capacity. Dr. Gamboa projected 36.6 years of work-life expectancy with a pre-injury high school degree and 37.7 years with an Associate’s Degree. Gamboa’s “total offset” method was based on a 5.2% wage growth rate for 1951-2011, with an earning capacity loss in the range between $2.2 million and $2.9 million, depending on educational achievement. The decision also describes Gamboa’s growth rates of 3.2% from ages six to 12 and 5.2% thereafter for home health care workers in plaintiff’s life care plan. The court said of Gamboa:

Gamboa was qualified as a vocational rehabilitation expert. He held a number of degrees, including a Master’s in Vocational Counseling and Ph.D. in an area that included vocational counseling and education. Gamboa also received an MBA and testified that he liked to focus on statistics. Gamboa had been with Vocational Economics in one capacity or another since 1977. His work there necessarily included offering expert opinions on the cost of future care and compensation loss. He was a prolific writer in the area of earning capacity loss and work-life expectancy.

March 10, 2015

Newill v. Campbell Transportation Company, 2015 U.S. Dist. 4338 (W.D. PA 2015). This memorandum from Judge Terrence F. McVerry denied a plaintiff motion to exclude the testimony of economic expert Dr. Gary Skoog on the work-life expectancy of a deck hand on a commercial vessel. Skoog’s testimony was based on spreadsheets regarding retirement ages of deck hand provided by the defendant, while the plaintiff argued that Skoog should have used the Skoog-Ciecka-Krueger work-life expectancy tables that Skoog had co-authored. Skoog had explained why those tables were not reliable when applied to deck hands, but had not offered specific work-life expectancies for deck hands. The court pointed out that the data relied upon by Skoog had been provided to the plaintiff prior to Skoog’s deposition and that the plaintiff had been able to vigorously question Skoog about his opinions during Skoog’s deposition. The court held that an expert’s opinion cannot be excluded based on an expert’s assumption that “a person’s work-life will be of a certain length.” However, the court held that Skoog should be precluded from testifying that payments for maintenance may be credited against an award for past lost wages. 

Russell v. Allianz Life Insurance, 2015 U.S. Dist. LEXIS 1946 (N.D. MS 2015).  The Court excluded the opinions of economic expert Robert Vance with respect to the lost profits of Dugan Calvin Russell allegedly due to a termination of a contract with Allianz Life Insurance Company. There were important issues with how profits were calculated and with the manner in which Vance calculated the work-life expectancy of Russell, who was 70 years of age at the time of the alleged contract violation. Vance had testified in deposition that he had relied upon work-life expectancy tables produced by Skoog and Ciecka in other cases, but in this case had taken into account subjective factors specific to Russell – “current situation, health, hopes, abilities and the nature of the work itself” – when generating his opinion regarding Russell’s work-life expectancy, which Vance rated at ten years. Vance also claimed to have relied upon work-life expectancy studies of self-employed workers showing that work-lives were “typically five to ten years longer than the work-life expectancy tables,” but did not provide citation to those alleged other studies. The court said:

Vance’s failure to utilize the Skoog-Ciecka study as an objective standard for estimating Russell’s work-life expectancy does not, by itself, make his findings unreliable. Rather, the problem with Vance’s report is that he also failed to use any objective standard, including the self-employment work-life expectancy studies he claimed to have used in other cases. In light of Vance’s reliance on Russell’s self-serving testimony, and in the absence of any indication as to how Vance might otherwise have arrived at his work-life expectancy opinion, the Court is left with no basis from which it can conclude that Vance’s ten-year estimate of Russell’s work-life expectancy – nearly three times that suggested by the Skoog-Ciecka study – is based on reliable methodology. Accordingly, the Court concludes that Vance’s opinions based on this assumption are unreliable under Rule 702.

March 28, 2015

Krohmer v. Dahl, 145 Mont. 491; 402 P.2d 979 (MT 1965).  In this wrongful death action, the Supreme Court of Montana agree with the trial court’s admission of testimony by Dr. George Heliker of the University of Montana economics department, saying:
 
This court agrees that the testimony and exhibits of Heliker were speculative in nature, but no more so than any other evidence that has for its purpose the proof of future action or events.  The issue before the trial judge, as seen by this tribunal, was whether the testimony of Heliker should be allowed, in order to give the jury some basis upon which to reach a conclusion in regard to the possible future earnings of the decedent, or whether to leave the jury unguided and hope that by their common knowledge and sense of justice they might arrive at a more accurate estimation of damages.  It appears to us that in this particular case the element of conjecture is reduced significantly by the admission of expert testimony as to the possible future earnings of the decedent. It also appears that this expert testimony is not only the best evidence, but the only evidence available in this case to prove future earnings.

Turrieta v. Wyche, 54 N.M. 5 (N.M. 1949). In this personal injury action, the New Mexico Supreme Court said about the testimony admitted in court from a person in the profession for which the plaintiff was training, that:

No general rule can be formulated that would properly control the admission of evidence to prove a man's future earning capacity.  It must be arrived at largely from probabilities; and any evidence that would fairly indicate his present earning capacity, and the probability of its increas`e or decrease in the future ought to be admitted.  This would include evidence of age, intelligence, habits,  health, occupation, life expectancy, ability, the probable increase in skill, rates of wages paid generally to those following his vocation, particularly so, where as in this case, the injured person has fitted himself for, but has not entered into, the work or business of his chosen vocation. (Citations omitted.)

It may be that such testimony is speculative, as asserted by defendant; but no more so than any that has for its purpose the proof of future action or events.  It is all problematical at best.  It is not questioned that mortality tables are admissible,  but possibly not one time in fifty would the life expectancy of any individual come within a year of the actual length of his life.  It is, to say the least, problematical whether he would continue to live, continue in health, continue to work, continue to work with much the same effort and ability he has shown in the past, continue to have the desire and the opportunity to work.  Also, that the amount of wages paid him and those following his occupation generally in the past,  will continue to be paid; that the wage scale will not be materially affected by depression, strikes, inflation, or war; that interest rates will remain much as they are.  However "speculative" such testimony may be, it is the best that can be produced to establish earning capacity over a period of years.  A jury of twelve average citizens ordinarily can be depended on to assess damages fairly, after they have heard and considered such evidence.

May 12, 2015

Gressett v. Central Arizona Water Conservation District, 2015 LEXIS 42806 (D. AZ 2015). The jury concluded that the defendant had violated the Family and Medical Leave Act (FMLA) and awarded damages. This decision provides the judge’s orders with respect to amounts awarded for liquidated and compensatory damages. Among other issues considered was whether the plaintiff was entitled to a tax neutral (“grossed up” award). The court explicitly rejected a tax neutral award saying about the plaintiff’s economic expert, Paul Bjorklund’s projections:

Bjorklund produced four tables. The Court believes the estimates based on mitigation at Plaintiff's then-current pay as a paralegal are most appropriate to use in this case because the mitigation assumption is based on actual earnings by Plaintiff, and personalized historical data is preferable to descriptive statistics concerning an entire profession. The Court also deems Bjorklund's tables incorporating income tax effects to be needlessly complicated and the Court is aware of no authority requiring it to adjust awards so that the effects upon the recipients are tax-neutral vis-à-vis the position the recipient would have been in had she not been wronged.

May 14, 2015

Meek v. Montana Eighth Judicial Dist. Court, 2015 MT 130 (MT 2015).  The plaintiff appealed a District Court pre-trial ruling that held that amounts originally billed for the medical expenses of Judy Meek before her death could not be presented to the jury. The court by a 6 to 1 margin held that the District Court was in error in excluding testimony about the amounts originally billed, and said:

[I]f at trial Meek introduces evidence of Judy Meek's medical bills the defendants may contest the reasonableness of those bills as a measure of damages. If so, evidence of the amount that Medicare pays to other health care providers for the same or similar service could be relevant to that issue, as long as there is no evidence or argument that Judy Meek was covered by Medicare or other insurance, or that Medicare or an insurer paid any part of her medical expenses. Those matters may be considered only by the District Court and only after a verdict, as provided in § 27-1-308(3), MCA.

May 22, 2015

Ashford v. Wal-Mart Stores, 2013 U.S. Dist. LEXIS 5845 (S.D. MS 2013). This is an opinion granting in part and denying in part defendant’s motion in limine to exclude the testimony of Dr. George Carter on earnings loss, fringe benefit loss and household services loss. The court granted a motion in limine to exclude testimony based on the assumption that the plaintiff was totally disabled by a slip and fall injury, but denied excluding any of Carter’s calculations altogether. Judge Halil Suleyman Ozerden drew a distinction between Davis v. ROCOR International, 226 F. Supp. 2d 839 (2002), in which the testimony of an economist was excluded based on the economist drawing his own conclusions about the percentage lost of household services and the current case in which the 75% loss being assumed was a percentage testified to by the plaintiffs. Judge Ozerden cited a 2011 Journal of Legal Economics paper in support of Carter’s use of Dollar Value of a Day for his household services calculation.

May 23, 2015

Passmore v. Barrett, 2015 U.S. Dist. LEXIS 66225, (N.D. IN 2015).  This is the denial of a Motion to Bar Opinion Testimony from Stan Smith. Smith initially offered opinions in this wrongful death action about the decedent’s “loss of value of life; and loss of society or relationship,” which defendants argued were not permitted under Ind. Code § 34-23-1-1. The plaintiff agreed to withdraw those categories, but defendants continued to challenge Smith’s testimony on “loss of wages and employee benefits and loss of household/family housekeeping and house management services.” The Court agreed with Plaintiffs that those damages are allowed under Ind. Code § 34-23-1-1 and denied the defense motion to exclude Smith’s testimony on those damages. The Court indicated that defense could file a motion requesting an extension to retain a damages expert to counter the testimony of Smith. 

May 27, 2015

Gradia v. Tanner, 2002 U.S. Dist. LEXIS 28446 (D. N.M. 2002). Judge William Deaton limited the testimony of Dr. Allen Parkman on hedonic damages, 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.

June 1, 2015

Castrillon v. St. Vincent Hospital and Health Care Ctr., 2015 U.S. Dist. LEXIS 69530 (S.D. IN 2015).  This memorandum from Judge William T. Lawrence excluded the testimony of Stan V. Smith on both the Plaintiff’s hedonic damages and wage loss. With respect to hedonic damages, Judge Lawrence said:

Even assuming Dr. Smith arrives at his "value of life" number in a scientifically reliable way, reducing it by, say, 25 percent would arrive at the value of a life that has been cut short by 25 percent, not at a life that is of the same duration but 25 percent less enjoyable. In order to be useful to the jury, Dr. Smith would have had to start with the value of the enjoyment of the Plaintiff's life but-for the events at issue in this case and then reduce that figure by the percentage of enjoyment she has lost; instead, he started with what he purports to the overall value of her life. Dr. Smith offers no explanation why he believes the value of a person's life is the same as the value of the enjoyment of a person's life, and, as the First Circuit held [Citing Smith v. Jenkins, 732 F.3d 51, 66 (1st Cir. 2013)], "[t]hat Dr. Smith may equate [the two] is not enough to bridge that gap." Accordingly, Dr. Smith's testimony regarding hedonic damages lacks a factual basis and therefore fails to satisfy Rule 702 and will not be admitted. [Footnotes removed from quotation.]

On wage loss, Smith had made speculative assumptions with respect to both the Plaintiff’s pre-injury earnings and post-injury earnings that Judge Lawrence rejected, particularly given that the Plaintiff was earning more at present than projected by Smith.

June 10, 2015

Simms v. United States, 2015 U.S. Dist. LEXIS 69456 (S.D. WV 2015).  This decision provides a detailed explanation for how the collateral source rule applies to Medicaid in terms of offsets allowed to the United States for its contributions to care for child who was wrongfully born on February 25, 2008.  It also provides extended discussion of the life care expectancy reports of physicians on both sides of the case and by non-physician life expectancy experts on both sides of the case. Dr. Robert Shavelle was the defense’s non-physician life expectancy expert and Dr. Michael Freeman was the plaintiff’s non-physician life expectancy expert. Both Shavelle and Freeman were referred to respectfully as “epidemiologists.” Based on all of this evidence the Court made its own decision that the life expectancy of the injured child, now seven years of age, was to age 21.

June 12, 2015

Sam v. Smith, 2015 U.S. Dist. LEXIS 74476 (S.D. MS 2015). This is a memorandum granting defendant’s motion in limine to exclude the testimony of plaintiff economic expert Dr. Robert W. McLeod.  Judge William Barbour, Jr., went through the earnings record of the plaintiff’s decedent year by year, which included very little income in the last two years before the decedent’s death, and said:

Although there is no evidence that Smith had worked in the behavioral health field for over three years, and there is no evidence that she was seeking employment in that field, McLeod has proffered expert opinions regarding Smith’s loss of past and future income based on her “Projected Employment” as a Director of Behavior Health Programs. McLeod further opines that Smith would have held a position in her “Projected Employment” from the date on which she died (i.e., January 8, 2011) through August 31, 2019, and that she would have had starting a starting salary of $167,501.

June 13, 2015

Liberatore v. Monogahela Railway Company, 2015 Phila. Ct. Comm. PL. LEXIS 123 (Common Pleas Court of Philadelphia County, 2015). Judge George W. Overton quashed three appeals made by the Consolidated Rail Corporation and Norfolk Southern Railroad to the judge’s order that the jury verdict be paid in full at $87,500 rather than after subtraction for two liens and alleged RRB taxes of $10,521.75, which reduced the award to $52,172.65. Thus, the defendants were ordered to pay $87,500 to the plaintiffs. The judge had held previously that Heckman v. BNSF, 286 Neb. 453 (Neb. 2013) and Phillips v. Chicago Cent. & Pac. R. Co., 853 N.W.2d (Iowa 2014) were “unpersuasive,” “as other courts have,” citing Mickey v. BNSF, 437 S.W.3d 207 (Mo. 2014).  Heckman and Phillips had held that a reduction for Tier I and Tier II taxes for the employee contribution were appropriate. Mickey had held that reduction for payroll taxes was not appropriate.

June 19, 2015

Strayton v. Delaware Health Corporation, 2015 Del. LEXIS 288 (DE 2015).  Diane Strayton suffered serious burn injures while a resident at Harbor Healthcare, a skilled nursing center.  She brought a medical negligence suit for damages, including cost of medical care to treat her burns. Without Medicare coverage, she would have been billed $3,683,797.11. Medicare paid Strayton’s health care providers $262,550.17 “in full satisfaction of Strayton’s hospital stay and other care.” The trial court limited Strayton’s recovery for this portion of her claims to the $262,550.17 that was actually paid. She appealed and the Delaware Supreme Court ruled as follows:

We conclude that the collateral source rule does not apply to amounts required to be written off by Medicare. Where a healthcare provider has treated a plaintiff covered by Medicare, the amount paid for medical services is the amount recoverable by the plaintiff as medical expense damages.

June 22, 2015

State ex rel Children, Youth & Families Dep’t, 2015 N.M. App. LEXIS 67 (N.M. App. 2015). This decision is an appeal from sanctions by the Children, Youth and Families Department (CYFD) imposed as a result of “contumacious” refusal to comply orders of the district court. CYFD had made housing arrangements for two children that the district court had specifically forbidden. In determining the amount of sanctions to be imposed, the district court had allowed Stan Smith to present hedonic damages testimony. The Court of Appeals noted that Alberico/Daubert standards did not apply in New Mexico courts to “expert testimony by an economist that is based solely upon experience and training.”  Thus, the Court of Appeals held that the distict court did not err in not applying the Alberico/Daubert standard for scientific reliability of the economist’s testimony. The Court of Appeals, however, added that: [T]he basis of Smith’s opinions provided rich fodder for cross examination.”  

Tallentire v. Offshore Logistics, 800 F.2d 1390 (5th Cir. 1986). One of the issues an appeal from a U.S. District court in Louisiana was whether or not the defendant’s economist should have deducted social security taxes in computing lost future earnings. The 5th Circuit said: “[O]ur cases establish that social security taxes should be deducted in computing future earnings.”

Pickle v. International Oilfield Divers, 791 F.2d 1237 (5th Cir. 1986). The 5th Circuit noted that: “IOD correctly argues that the district court erred in not deducting social security taxes from its estimate of Pickle’s future income.

Gaston v. G & D Marine Servs., 631 So. 2d 547 (LA App. 1994). Dr. Melville Z. Wolfson had calculated gross earnings before “income taxes and Social Security taxes” to be $54,361 and after income taxes and Social Security taxes at $46,570. The trial court awarded the plaintiff $54,361 and the Court of Appeal reduced the award to $46,570.

Cappiello v. Exxon Corp., 695 So. 2d 1097 (LA App. 1997). The Court of Appeal amended the trial court award in a maritime personal injury action to subtract for FICA taxes at 7.65%. The plaintiff economic expert, Dr. Randolph Rice, had not subtracted FICA taxes, but the court had awarded exactly the amount Dr. Rice had recommended, The Court of Appeal reduced that amount by $38,000 based on those taxes.

August 1, 2015

Olson v. Olson Estate, 2008 SD 39; 751 N.W.2d 706 (SD 2008). The South Dakota Supreme Court deferred from deciding whether loss of prospective inheritance is recoverable in a wrongful death action in South Dakota. The decedent on whose behalf this action was brought was Edda Olson, the sister of the decedent, both of whom were killed in the same automobile accident. Thus this was the estate of a decedent sister suing the estate of her decedent brother for losses resulting from her death. The Court said:

In this case, we need not decide whether recovery of a prospective inheritance will be recognized in South Dakota The question need not be decided because, even if recognized,  Elda could not have proved that she had such a claim. She had no claim to a prospective inheritance because Glenn's will contained a common disaster clause expressly providing that Elda was entitled to no inheritance unless she survived Glenn by thirty days, a fact that did not occur. Therefore, under Glenn's will, Elda was considered to have predeceased Glenn, and Elda was entitled to no inheritance. Thus, Elda's Estate could prove no loss of prospective inheritance as a matter of law.

G.M.M. v. Kimpson, 2015 U.S. Dist. LEXIS 99715 (E.D.N.Y. 2015). This decision involved vocational expert Kenneth Reagles and economic expert Dr. Frank Tinari on the plaintiff side and economic expert Dr. Bernard F. Lentz on the defense side. The plaintiff child was Hispanic, which was not taken into account in a material way be Reagles and Tinari on the plaintiff side, but had been taken into account by the defense expert Lentz. Judge Weinstein held that it was a matter of federal law under what he called “the McMillan Rule” that ethnicity cannot be taken into account in projecting the lost future earnings of an injured child.  This was based on the decision in McMillan v. City of New York, 253 F.R.D. 247 (E.D.N.Y. 2008), which involved a black plaintiff. Judge Weinstein discussed reasons why race or ethnicity should not be taken into account at great length in this decision.

August 18, 2015

Collier v. Simms, 366 S.W.2d 499, 500 (Mo. App. 1963). The issue before the court was whether a wife, who was not employed outside the home, could recover damages in Missouri for impairment of her physical ability to perform her domestic services.  On this matter the court said:

We take it to be axiomatic that to impair the ability to work of any human being (husband, wife, bachelor or spinster) is to injure a personal right, quite apart from any monetary loss, which might  result from such impairment. Any physical inability of a housewife to perform domestic duties must necessarily mean a physical inability to work and labor.  Put another way, if a housewife may not be permitted to recover damages for physical inability to perform her domestic duties, then it follows, as night follows day, that a housewife may not recover for physical inability to work and labor.  This simply cannot be, and is not, the law.  If it were the law, then every woman, upon becoming a housewife, would thereby deprive herself of the right to recover for any impairment of her inability to work and labor and perform her domestic duties.

August 23, 2015

Wolfe v. Kansas City, 334 Mo. 796; 68 S.W.2d 821 (Mo.1934). This decision described the meaning of “earning capacity” in Missouri as follows:

“It seems plain that wrongful interference with any capacity or function of a human being should be compensated for, aside from any existing need for the exercise of such capacity or function. The vicissitudes of life may call upon any person to put forth every effort to serve himself or those who are dependent upon him. In many if not all cases of series personal injury the public may have an interest, and its welfare may require that the injured person be compensated for the wrong done to him, thus in a measure lessening the demand which may be made upon the public. Impaired ability to work is in itself an injury and deprivation, distinct from any loss of earnings it entails and the sufferer is entitled to compensation for it. It may be treated as part of the mental suffering resulting from the injury and as due to the consciousness of impaired power to care for one’s self. In the nature of the case the sum which will compensate for such damage is not ascertainable by mathematical computation; it must be fixed by the jury with respect to the evidence and the probabilities, and should be sufficient to compensate therefor. (Italics ours.).” The quotation marks are correctly included because the Missouri Supreme Court was quoting the court of appeals decision that it was affirming.

September 4, 2015

Stayton v. Delaware Health Corporation, 117 A.3d 521 (Delaware, 2015). The Delaware Supreme Court held in this decision that a plaintiff can only recover the amount actually paid by Medicare in full satisfaction of past medical expenses caused by an injury. It held that the Delaware collateral source rule does not apply in this circumstance. The amount that the hospital and other health care providers would have charged was $3,683,797.11, but Centers for Medicare and Medicaid Services (CMS) actually paid was $262,550.17. The decision discussed at some length different approaches taken by other states to this same question.

On balance, we believe  the better course is to treat the amount paid by Medicare as dispositive of the reasonable value of healthcare provider services. Delaware has followed the Restatement (Second) of Torts in its application of the collateral source rule. The fact that treating the amount paid as dispositive is consistent with § 911 of the Restatement gives us confidence that the approach we adopt today is not only administrable but fully consistent with the common law tort principles underlying Delaware's collateral source rule.


October 26, 2015

Nomat v. Motta, 215 IL App (1st) 14102-U; 2015 Ill. App. Unpub. LEXIS 2024. This decision of the Illinois Court of Appeals reversed the trial court decision on various grounds. Two grounds were of interest to forensic economists. First, the Court of Appeals rejected the lost earning capacity testimony of Dr. Charles Linke on the ground that Linke had based his projection of lost earnings on pay rates in a job that had been offered to the plaintiff, but the plaintiff had rejected prior to his injury.