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.

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.

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.

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.

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.

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.

[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.

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.

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.]

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.

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.

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.

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.

“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.

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.