Decisions Developed in 2017

January 16, 2017

Lackey v. Robert Bosch Tool Corporation, 2017 U.S. Dist. LEXIS 4956 (E.D. KY 2017).  District Court Judge Amul Thapar excluded the testimony of Lawrence Lynch based upon Lynch’s use of the Gamboa-Gibson tables, saying:

The Gamboa-Gibson tables are apparently highly controversial. See, e.g., Thomas R. Ireland, Why the Gamboa-Gibson Disability Work-Life Expectancy Tables Are Without Merit, 15 J. Legal Econ. 105 (Apr. 2009). And even setting aside broader methodological concerns, it is not hard to see why Bosch Tool criticizes their application to this case: Lynch grouped Lackey with a wide range of "disabled" persons, with little to no regard for the type or permanency of the injury, work history, or the ability and intention to return to work. Then, Lynch compounded the problem by not considering Lackey's own ability to return to work as a carpenter or to pursue a different field after he completes his college degree. Instead, Lynch ended up with a work-life projection that might, by his own concession, have worked equally well for Lackey and someone with a broken arm that will heal. . . . So it would seem there is good reason to doubt the reliability of the tables and Lynch's calculations. [Footnote 9 and reference removed.]

Knebel Autobody Center, Inc. v. Country Mutual Insurance Company, Inc., 2017 Ill. App. Unpub. LEXIS 14 (Ill. App. 4th 2017). The Court affirmed the trial court decision to exclude the testimony of Dr. Stan V. Smith. The Court held that Smith had made very simplistic assumptions for the purpose of estimating damages that the jury could have made by itself without Smith’s allegedly expert testimony so that Smith’s testimony would not be helpful to the jury. The court said:
Simple arithmetic does not require any special skill or experience jurors do not possess. Further, as Country notes in its brief, Smith did not consider numerous variables which could have driven business from Country down, including weather and large repairs. We also note other possible variables, including a decrease in the number of claims overall, demographic shifts, new body shops opening in the area, or Country deciding to total, rather than repair, more vehicles. Instead of examining possible variables to explain the decrease in business from Country, Smith simply relied on plaintiffs' assumptions that no reasons existed for the percentage of their business from Country to decline other than Country's alleged bad acts. As a result, we do not find the trial court abused its discretion in barring plaintiffs' expert.
February 5, 2017

Waters v. City of Chicago, 526 F. Supp. 2d 899 (N.D.IL 2007).  Judge Milton Shadur discussed advantages of taking an expert’s deposition and relying on the expert’s report under the Federal Rules of Civil Procedure, suggesting that the City of Chicago may have self-inflicted a wound by taking the deposition of Dr.Gary Skoog, the economic expert for the plaintiff. Judge Shadur also ruled that all of the time spent by Skoog on travel and on trial preparation was billable to the defendant. Only one hour spent meeting with the plaintiff attorney before the deposition was billable to the defendant. Judge Shadur reasoned that time spent preparing for his deposition would have to be duplicated before trial so that deposition preparation was not part of trial preparation for Dr. Skoog.

February 6, 2017

Rhee v. Witco Chem. Corp., 126 F.R.D. 45 (N.D. IL 1989). Judge Charles Norgle rejected a defense motion to have the plaintiff pay for time spent preparing for the plaintiff’s testifying expert. Judge Norgle held that:

[T]ime spent “preparing” for a deposition entails not only the expert’s review of his conclusions and their basis, but also consultation between responding party’s counsel and the expert to prepare the expert to best support the responding party’s case and to anticipate questions from seeking party’s counsel.  Any expert’s deposition is in part a dress rehearsal for his testimony at trial and thus his preparation is part of trial preparation. One party need not pay for the other’s trial preparation. The court finds that a deposing party need not compensate the opposing party’s expert for time spent “preparing” for deposition, absent more compelling circumstances than exist here.

March 4, 2017

Osman v. Lin & a.., 169 N.H. 329; 147 A.3d 864 (N.H. 2016).  The New Hampshire Supreme Court affirmed the trial court’s exclusion of testimony by neuropsychologist Peter Isquith, Ph.D., that lead exposure was more than likely than not to have been a substantial factor in causing deficits to the plaintiffs. The trial court held that Isquith had not based his determination on reliable principles and methods. The Supreme Court held that the trial court could have concluded that plaintiffs failed to establish that other neuropsychologists used the same method for interpreting test results that the expert used here, and that there was uncertainty surrounding the cutoff scores that the expert used to determine whether plaintiffs suffered from a neurological deficit. The plaintiffs were Somali Bantu refugees.

March 5, 2017

Huckaba v. CSX Transportation, Inc., 2014 U.S. Dist. LEXIS 192918 (S.D. IL). Defense moved in this FELA action to exclude the testimony of economic expert Dr. Karen Tabak on three grounds. First, the defense argued that the Huckaba had in fact retired at age 60 and not at age 63 or 66 as projected by Tabak. This was rejected on the ground that Huckaba might not have retired if he had not been injured. Second, the defense argued that Tabak had failed to subtract railroad retirement taxes from the earnings of Huckaba. Judge Michael J. Reagan indicated that CSX was correct in pointing out that those taxes should have been deducted and that Tabak was erroneous for not deducting those taxes, but that this was a proper subject of cross examination and did not render Tabak’s testimony “wholly irrelevant or unreliable.”  Third, the defense argued that Tabak should be excluded based upon her assumption that Huckaba was permanently, totally unemployable because that opinion was unsupported by medical or vocational rehabilitation testimony and lies outside Tabak’s expertise. The judge indicated that Tabak did not appear to intend to offer testimony to that effect that Huckaba was unemployable and did not exclude her testimony on that basis either.

Worden v. Injured Patients and Families Compensation Fund, 2010 WI App 145; 330 Wis. 2d 97; 791 N.W.2d 404 (WI App. 2010). This case involved economic experts J. Finley Lee for the plaintiff and David Saxowski for the defense. The trial court had reversed the jury’s verdict with respect to various damages elements. The appeals court supported the trial court with respect to the “lost years” theory that personal consumption should be subtracted from lost earnings during years when the plaintiff would no longer be alive during the earnings period. The appeals court said: 

[T]he court explained the jury might have accepted Stockwell’s personal consumption theory – that Wordon’s personal maintenance costs that would have been incurred in the years beyond her reduced life expectancy should be subtracted from her earnings potential. That wrongful-death-action theory, however, is inappropriate in a personal injury case and the court should not have permitted it. See Overly v. Ingalls Shipbuilding, 74 Cal. App. 4th 164, 173-75, 87 Cal. Rptr. 626 (1999).

The court of appeals went on to suggest that allowing a “lost years” reduction would give the defendant and undeserved financial benefit “from the very harm she caused.”

Martinez v. Milburn Enterprises, Inc., 290 Kan. 572; 233 P.3d 205 (KS 2010). In a split decision, the Kansas Supreme Court held that with respect to past medical expenses, a district court may allow into testimony both the amount originally billed for past medical expense and the amount paid in full satisfaction of those bills, subject to the source for those payments not being disclosed to the jury.

March 6, 2017

Young v. Brand Scaffold Services, LLC., 2009 U.S. Dist. LEXIS 120210 (E.D. TX 2009). The court held that the testimony of Dr. Dwight D. Steward, the plaintiff’s economist, that Young’s projected annual income of $36,046 was “not sufficiently tied to the facts or supported by other evidence in the record.” Thus, “the court finds that Dr. Steward’s testimony is not based on sufficiently reliable facts, data or methodology to constitute admissible expert testimony in this case.” The defense had found Social Security records showing that Young had paid payroll taxes on $8,839.20 in 2002, no earnings in 2003, $2,137.00 in 2004, $5,863.96 in 2005, no earnings in 2006 and 2007. The defense had also found that no tax returns for Young were found for 2002 through 2007 except for 2005, when Young filed a return showing $2,643 in income. The court also quoted Steward as testifying that “as of the date of this report, I have not received payroll stubs, tax returns, or W-2 statements for Mr.Young,” but had based his calculations on being informed that Young “was earning approximately $17.50 per hour and would have worked at least 40 hours per week.”

March 8, 2017

G.M.M. v. United States, 2015 U.S. Dist. LEXIS 99715 (E.D. N.J. 2015). This decision involved the judge having invoked “the McMillan Rule” (from McMillan v. City of New York, 253 F.R.D. 247) that racially based statistics cannot be used in calculating losses of earnings to a child. The defense economic expert, Dr. Bernard Lenz, had projected the earnings loss of an Hispanic child, G.M.M., that were lower than if Dr. Lenz had used race-neutral earnings figures. Lenz was instructed by Judge Jack B. Weinstein to recalculate his loss estimates as follows:

I have ruled that it is unconstitutional to base damages on the characteristics of a person injured as a[] Hispanic or a member of any other ethnic group. So all of your answers should be based upon individual characteristics and not the general characteristics of a group, ethnic group. Is that clear to you[?]

Lenz then provided figures that were not based upon G.M.M.’s Hispanic background. The plaintiff economic expert in this case was Dr. Frank Tinari, who had not relied upon figures based upon G.M.M.’s Hispanic background. Judge Weinstein described the background of G.M.M.’s parents as follows:

The father has a baccalaureate degree, the mother has a Master of Fine Arts; both held responsible income-generating jobs; the family was stable; and the parents were caring. Based upon his specific family background, had the child not been injured, there was a high probability of superior educational attainment and corresponding high earnings. Treated by experts as a "Hispanic," his potential, based on the education and income of "average 'Hispanics' in the United States," was relatively low.

Judge Weinstein included extended discussion of racial and ethic aspects work-life expectancy tables as part of his decision.

McMillan v. City of New York, 253 F.R.D. 247 (E.D.N.Y. 2008).  This decision held that race-based statistics regarding life expectancy could not be relied upon in calculating the damages of a plaintiff child.

Newell v. Campbell Transportation Company, 2015 U.S. Dist. LEXIS 4338 (W.D. PA 2015). This decision denied the plaintiff’s motion in limine to exclude part of the testimony and report of Dr. Gary Skoog. Skoog had testified that deckhands typically cease working as deckhands in their 40's or early 50's based upon information about all active deckhands provided to Skoog by the defendant. The court said:

In this case, Defendant was required to disclose its expert reports on or before July 31, 2014, and it fully complied with the Court's order, disclosing, inter alia, that it would be offering the testimony of Dr. Skoog. Dr. Skoog's report, filed that same day, expressly indicated that he relied on the "databases" provided by Defendant in assessing his worklife expectancy. Moreover, prior to Dr. Skoog's deposition, Defendant disclosed all of the raw information it provided to Dr. Skoog to Plaintiff, and Dr. Skoog was questioned at length about the data. This is the precise sequence envisioned by the Federal Rules.
Egan v. Butler, 290 Va. 62; 772 S.E.2d 765 (VA 2015).  The Virginia Supreme Court reversed the trial court’s decision in this matter based in part on the trial court’s refusal to allow the defense to introduce the past work history of the plaintiff. The Supreme Court indicated that its previous decisions indicate that any claim for lost earnings must consider the earnings history of a worker.

March 10, 2017

Wilgus v. Law, 1996 Del. Super. LEXIS 564 (DE Super 1996). This was a motion for summary judgement under the Maryland wrongful death act. The court held that adult children could not recover for non-pecuniary damages under the Maryland wrongful death act, but that such a claim could be made by adult children for loss of inheritance under both Maryland and Delaware wrongful death acts provided that there was sufficient evidence to support such damages without excess speculation. This decision also discusses decisions in other states allowing claims to be made for loss of inheritance.

Jacobs v. United States, 2013 U.S. Dist LEXIS 91776 (D. AZ 2013). This was treated as an FTCA claim by federal circuit judge A. Wallace Tashima. Jacobs had been injured while trying to escape arrest for speeding by a United States Border Control Agent. Judge Tashima described the process for determining awardable damages as:

The Ninth Circuit has established three "basic steps" for calculating pecuniary damages under the FTCA: "(1) compute the value of the plaintiff's loss according to state law; (2) deduct federal and state taxes from the portion for lost earnings; and (3) discount the total award to present value." Shaw v. United States, 741 F.2d 1202, 1205 (9th Cir. 1984). "Arizona allows unlimited recovery for actual damages, expenses for past and prospective medical care, past and prospective pain and suffering, lost earnings, and diminished earning capacity." Wendelken v. Superior Court, 137 Ariz. 455, 671 P.2d 896 (Ariz. 1983).
Jacobs’s past medical expenses of $493,978.80 had resulted in the payment of $125,459.13 by by the Arizona Health Care Cost Containment system (AHCCCS), with $368,419.67 of the $493,978.80 being “written off.” Based upon Arizona law, Judge Tashima awarded the amount written-off to Jacobs. Judge Tashima also held that the United States was entitled to an offset for its contributions to the amount paid by AHCCCS, which was 65.75% of AHCCCS payments for Jacob’s past medical expense. This left $42,944.67 of the $125,459.13 paid by AHCCCS to be awarded to Jacobs. This resulted in Jacobs being awarded $411,364.34 ($368,419.67 plus $42,944.67) of the $493,978.80 originally billed for Jacobs past medical expense, none of which was paid for by Jacobs himself.
Jacobs was also awarded $133,070 for lost future earnings, which was offset by $7,733 for SSI payments made to Jacobs during his recovery from his injuries. The net award for lost earnings was $125,337. Emphasis in the decision was placed on the fact that SSI payments come from general revenues of the United States based upon case law indicating that payments by the United States from general revenue funds are not payments from a collateral source, suggesting that an award through SSA would not be treated as a collateral source and not be an offset. Jacobs was awarded $71,983 as the future value of medical care still needed and $100,000 for pain and suffering, but no offsets were involved with either of those elements of loss. The total amount of Jacobs’ loss after offsets was $708,684.34. That amount was then reduced by 65% based on Jacobs comparative fault, entitling Jacobs to a total award of $248,039.52.

April 6, 2017

Dunmiles v. Jubilee Towing, LLC, 2017 U.S. Dist. LEXIS 50269 (E.D. LA). This memorandum excluded testimony of plaintiff’s economic expert, G. Randolph Rice pursuant to Rule 702 and Daubert. The exclusion was based upon Rice’s unfounded assumption that Dunmiles could only earn the minimum wage rate after his injury. Judge Lance M. Africk said:

In this Court's experience, when calculating future lost wages, economists typically rely on other experts-such as vocational rehabilitation experts-to advise them as to the income a plaintiff can probably earn due to his injuries. Economists then use that information in conjunction with actuarial data to estimate the wage loss the plaintiff will probably sustain over the course of his lifetime. Rice's expert report does not mention the basis for his assumption that plaintiff can only earn a minimum wage.

Judge Africk indicated that the Court was willing to reconsider the question of admitting Rice’s testimony if the plaintiff could introduce admissible evidence that the plaintiff is limited to earning a minimum wage as the result of the accident.

April 9, 2017

Cone v. Hankook Tire Company, Ltd, 2017 U.S. Dist. LEXIS 10064: CCH Prod. Liab. Rep. P19,987 (W.D. TN 2017).  Judge J. Daniel Breen anticipated that the Tennessee Supreme Court would old that amounts actually paid by third party providers for past medical expenses are the best measure of the “reasonable value” of those expenses. This memorandum also considered the question of whether an economic expert could separately calculate loss of household s services if provision was made for provision of household services in a life care plan. Economic expert Dr. George Carter had argued that household services in a life care plan are at a “subsistent state,” and do not capture the full value of household services the plaintiff would have provided for himself if he had not been injured. Judge Breen held that it would be duplicative to have household services provided as part of a life care plan and also have a separate calculation as well. 

April 20, 2017

Askew v. United States, 786 F.3d 1091 (E.D.MO 2015). The 8th Circuit reversed the decision of the trial court not to require the establishment of a reversionary trust for future medical damages of the plaintiff and remanded the decision for further proceedings. This was a ruling under Mo. Rev. Stat. § 538.215.1, which is Missouri’s periodic payment statute. A reversionary trust is a trust set up to make payments as long as an injured person remains alive, with any remaining funds “reverting” to the defendant if the injured person dies before the amount awarded has been spent on life care. This was in an FTCA case involving medical malpractice. The decision rejects a number of plaintiff arguments against reversionary trusts.

May 1, 2017

Cuevas v.Contra Costa County, 2017 Cal. App. LEXIS 390 (CA App. 2017). This medical malpractice case involving a birth injury involving two life care planning experts, Jan Roughan for the plaintiff and Linda Olzack for the defense. The Olzack life care plan involved three alternative cost scenarios, including one in which the plaintiff would continue to be covered by Medi-Cal, one in which the plaintiff would be covered by private medical insurance under the Affordable Care Act (ACA), and one in which the plaintiff would pay for life care expenses out of pocket. The out-of-pocket alternative was based on actual price paid by uninsured person rather than amounts originally billed. Olzack was only permitted to present her third out-of-pocket costs for her life care plan at trial. Roughan’s life care plan did not account for any discounts associated with Medi-Cal even though the plaintiff was currently covered under that program, nor discounts that would be potentially available under the ACA. Roughan’s life care plan was based on a national database that reflects average charges billed for each type of service and her testimony was not restricted at trial. The court of appeals held that California’s MICRA legislation permitting partical abrogation of the collateral source rule applied both to past medical expenses and future medical expenses. The court of appeals said that Olzack should have been permitted to testify about the ACA possibility, pointing out that recent efforts to abolish the ACA have not been successful. The court said:

Defendant’s expert Dawson’s declaration supports the proposition that plaintiff will be able to acquire comprehensive health care insurance going forward. In other words, it provides a defense expert assessment of the availability of insurance benefits compatible with defense health care expert Olzack’s analysis of sources to finance plaintiff’s future need satisfaction. Dawson opined that the ACA is reasonably certain to continue well into the future and that plaintiff will be able to acquire comprehensive health insurance notwithstanding his disability. Dawson reviewed Roughan’s and Olzack’s life care plans and compared them both to plaintiff’s current Medi-Cal coverage and to insurance available on the Covered California health care exchange. Dawson identified specific California insurance plans that would be available to meet many of his needs. He also explained that plaintiff could use funds held in his special needs trust to purchase private health insurance, in which case private insurance would pay first, and Medi-Cal would have a right of reimbursement from the corpus of the trust only on his death.

Defendant presented evidence sufficient to support the continued viability of the ACA, as well as its application to plaintiff’s circumstances. Accordingly, we conclude the trial court’s decision to exclude evidence of future insurance benefits that might be available under the ACA on the basis that the ACA is unlikely to continue was an abuse of discretion.

In footnote 14, the court of appeals also denied plaintiff’s motion to take judicial notice of President Donald Trump’s executive order dated January 20, 2017, in which he announced his policy to seek the prompt repeal of the ACA.

Dixon v. United States, 2017 U.S. Dist. LEXIS 64846 (S.D.FL 2017). This FTCA case involving a birth injury involved Ira Morris as the life care planning expert for the plaintiff and Susan Riddick-Grisham for the defense. Federal District Judge Robert N. Scola, Jr., strongly favored the testimony of Morris. Fred Raffa was the only economic expert who was named, but was apparently retained by the defense because he only valued the life care plan of Riddick-Grisham. Regarding the life care planning experts, Judge Scola said:

[T]he Court finds the life care plan of the Plaintiffs to be more reliable than the life care plan of the Defendants. Here are just two examples of the lack of reliability of the Defendant's plan: the plan calls for an additional 9 days of hospitalization during the next 12 years of Earl Jr.'s life, yet Earl Jr. has already been hospitalized for over 75 days in the first three years of his life. The Court finds the testimony of Ira Morris, an expert in rehabilitation counseling and life care planning who prepared a Life Care Plan for Earl Jr., to be more reliable than the Defendant's expert. Morris detailed Earl Jr.'s needs for the rest of his life, including medical and therapeutic treatment, medications, equipment, supplies, attendant care, transportation and special residential needs.

The total award was $33,813,495.91. Judge Scola authorized periodic payments for portions of the award. 

May 6, 2017

Escamilla v.Shiel Sexton Company, Inc., 2017 Ind. LEXIS 341 (IN 2017). This decision of the Indiana Supreme Court reversed both the trial court and the Indiana Court of Appeals on the issue of whether an unauthorized immigrant plaintiff’s immigration status is admissible. The trial court had allowed evidence that Escamilla, who was injured while working for the defendant, was not in the United States legally and excluded Ronald Missun and Sarah Ford from testifying at the trial based on the fact that their damage calculations were based upon a presumption that Escamilla would have been able to remain in the United States. The decision provided an extensive review of decisions in other states regarding whether immigration status is admissible and held that:

[T]he admissibility of immigration status under Rule 403 for decreased earning capacity claims turns on the chances of deportation. If a plaintiff is more likely than not to be deported, the relevance is necessarily so high that it will not be substantially outweighed by the evidence's risks. But if the chances of deportation fall below that level, immigration status should be excluded to avoid the dangers of confusing the issues and unfair prejudice.

Regarding the exclusion of Missun and Ford, the Court held that:

Because Ford and Missun's testimony would "help the trier of fact" determine Escamilla's decreased earning capacity--a responsibility requiring expert testimony--it was an abuse of discretion to exclude it. In their report, Ford and Missun outline their calculations and methodology, reaching the conclusion that Escamilla's decreased earning capacity was $578,194 on the low end, and $947,421 on the high end. Once explained to the jury, these figures and their underlying methodology would be a great help in determining Escamilla's damages.

The Court went on to explain that in a re-trial, defense would have the opportunity to challenge the methods used by Ford and Missun as long as the defense did not “stray into inadmissible evidence.”

Payne v. Eighth Judicial District Court, 2002 MT 313; 313 Mont. 118 (MT 2002). This decision described the difference between right to recover damages under the Montana Wrongful Death Act and the Montana Survival Act. Under the Wrongful Death Act, plaintiff survivors

may recover for loss of consortium; loss of comfort and society; and the reasonable contributions of money that the decedent would reasonably have provided for the support, education, training and care of heirs during the life expectancies of the decedent and survivors.

Under the Montana Survival Act,

the decedent’s estate may recover for lost earnings from the time of injury to death; the present value of the decedent’s reasonable earnings during his or her life expectancy; medical and funeral expenses; pain and suffering; and other special damages.

The Court went on to add that Montana does not subtract for “economic consumption” when calculating the value of lost earnings under the survival action. 

May 10, 2017

Alexander v. United States, 2016 U.S. Dist. LEXIS 58272 (W.D. WA 2016). This memorandum was issued in response to a plaintiff request that the United States be precluded from offering evidence of future collateral source benefits of the plaintiff. The plaintiff was eligible for TRICARE benefits that would be provided by the United States. The Court held granted the request of the plaintiff because TRICARE explicitly requires cost-sharing by the plaintiffs and would not vest unless plaintiff’s father remained in military services until 2023. The Court also granted plaintiff’s request that evidence regarding plaintiff’s eligibility for benefits under the Affordable Care Act be excluded.

May 11, 2017

Lee v. United States, 765 F.3d 521 (5th Cir. 2014). The trial court had ruled that a reversionary trust was not permissible under the Texas periodic payments act. The 5th Circuit vacated that judgement and held that reversionary trusts are permissible under the Texas periodic payments act in Federal Tort Claims Actions (FTCA). The decision provides extensive review of prior circuit court level decisions involving reversionary trusts in FTCA actions in other states with different periodic payments acts.

Late v. United States, 2015 U.S. Dist. LEXIS 25119 (M.D. PA 2015). The Court held that the United States would be permitted to provide funding for a child’s future medical expenses as the result of an Federal Tort Claims Action (FTCA) “by means of an annuity contract, trust, or other qualified funding plan.” The Court later elaborated that:

An annuity coupled with a reversionary trust, as proposed by the United States, is one possible mechanism to effectuate the periodic payments, but it is not the exclusive mechanism. A hearing will be held following any award of future medical care to provide a basis for the court to determine the appropriate type of funding plan and method of administration.

The decision also provided a review of previous decisions of federal courts of appeals regarding this issue in other states with periodic payments acts.

June 21, 2017

Jane Doe v. United States, 737 F. Supp. 155 (D. RI 1990).  This case involved a medical injury to a 12 year old boy that reduced his life expectancy to two years. In this case, Judge Ernest C. Torres held that the boy’s future lost earning capacity should be calculated net of personal maintenance expenditures because of the unique characteristics of the case. Judge Torres indicated his agreement that he was not making a general ruling that personal consumption should be subtracted from lost earnings during future years when the plaintiff would not be expected to be alive, saying:

[My decision] does not mean that this Court advocates deviating from the general rule applicable to personal injury cases whenever there is evidence that a plaintiff's life expectancy may have been decreased. This case presents an unusually compelling argument for deviation because of the overwhelming evidence that the plaintiff will not survive to incur living expenses during his work life expectancy. . . . Accordingly, this Court holds only that in the unique circumstances presented by this case, any award for lost earning capacity must be reduced by the living expenses the plaintiff would have incurred in the pursuit of his livelihood.

June 23, 2017

Incollingo v. Ewing, 444 Pa. 299; 282 A.2d 206 (PA 1971). This case was filed on behalf of female child who was still living at the time the case was filed, but who subsequently died before the trial verdict. The plaintiff argued that the child was entitled to recover for her entire lost earnings stream without reduction of personal maintenance expenses. The defendant argued that personal maintenance expenses should be subtracted. The Pennsylvania Supreme Court held that personal maintenance expenses should be subtracted, saying:

When a negligently injured party is fully disabled, his injury prevents him from supporting himself, from directing his earnings to the benefit of his family or other dependents, and from accumulating an estate.  Quite properly, the injured plaintiff should receive as damages his total estimated future earnings undiminished But if such a plaintiff dies, his action, whether commenced or continued by his personal representative, is for the benefit of the estate.  We cannot be blind to the reality that neither the deceased person nor his estate is burdened with the personal maintenance costs of the decedent. It thus becomes clear that  the proper measure of damages designed to be compensatory must include a deduction based upon decedent's cost of personal maintenance.  On the other hand, the estate should not be deprived of those earnings which are in excess of decedent's personal expenses, which funds could be distributed through decedents' estate in much the same manner that the decedent himself might have apportioned them.  If we were seeking to compensate for the loss of life itself, it may be true that the best approximation of the value of that life could be cast in terms of an individual's personal maintenance costs.  It has never been the law in Pennsylvania, however, nor do we here choose to hold that the loss of life itself is compensable.

July 2, 2017

Dorry v. Garden, M.D., 2017 Conn. Super LEXIS 1780 (Conn. Super. 2017). The Court granted a defense motion in limine to exclude the household services calculations of Dr. Gary Crakes in a wrongful death action for the following reason:

The statute provides for "just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses. "'Just damages' include (1) the value of the decedent's lost earning capacity less deductions for [his] necessary living expenses and taking into consideration that a present cash payment will be made, (2) compensation for the destruction of [his] capacity to carry on and enjoy life's activities in a way [he] would have done had [he] lived, and (3) compensation for conscious pain and suffering."
Katsetos v. Nolan, 170 Conn. 637, 657, 368 A.2d 172 (1976). Thus, the only economic damages that can be recovered in a wrongful death action are medical costs, funeral costs and the loss of earning capacity less deductions for necessary living expenses. The value of the decedent's household services is not compensable under § 52-555 as economic damages and it is not proper to offer expert testimony on that issue.

Tate v. United States, 2017 U.S. Dist. LEXIS 92055 (D. AK 2017). This decision provides extended evaluation of the opinions of a number of experts, including Michael Freeman and Robert Shavelle on a decedent’s pre-death life expectancy, Edgar Livingstone and Carl Gann as life care planning experts, and Hugh Richards and William Brandt as economic experts. Judge Sedwick preferred the testimonies of Shavelle, Gann, and Brandt.

July 4, 2017

Galack v. PTS of America, 2015 U.S. Dist. LEXIS 135083 (N.D. GA 2015). This memorandum denied defendant’s motion to exclude the testimony of economic expert Dr. Bruce Seaman in a wrongful death action governed by Georgia law. Dr. Seaman projected the decedent’s past lost earnings to be $4,458 and the present value of future lost earnings to be $271,830, past lost household services to be $8,902 and the present value of future lost earnings to be $186,966. He also projected the plaintiff’s lost “total discretionary additional lost waking hours” at $839,775 based upon the minimum wage of $7.25 per hour for the remainder of the plaintiff’s life. The court did not preclude this calculation of the value of “lost waking hours,” saying:

In Georgia, when determining the full value of a decedent's life, "the jury is not bound to find that lifetime earnings reduced to present value is the full value of the life of the decedent, but such is an aid only to the jury in making such determination." Miller v. Jenkins, 201 Ga. App. 825, 826, 412 S.E.2d 555, 556 (1991) (internal quotation marks and citation omitted). "The intangible factors which supplement the economic value to comprise the full value of the decedent's life elude precise definition." Id. (internal quotation marks and citation omitted).

In one case, the Georgia Court of Appeals noted that the jury had evidence to support "an award for loss of intangible aspects of the decedents' lives," including testimony "concerning the character and family circumstances of the decedents," "the decedents' relationships with their respective children," and "the decedents' religious activities." Consol. Freightways Corp. of Del., 201 Ga. App. at 234, 410 S.E.2d at 753. One court observed: "Georgia is unique in its measure of damages for a wrongful death claim. Unlike other states, including Alabama which also has a unique but different approach, the measure of damages is the value of the decedent's life to him. Therefore, the measure of damages is the same as for a person who survives a tortious injury but is totally permanently disabled." Hale v. Cub Cadet, LLC, No. 3:10-CV-697-MEF, 2010 U.S. Dist. LEXIS 118573, 2010 WL 4628135, at *3 (M.D. Ala. Nov. 8, 2010) (footnote omitted).

Thus, Plaintiffs may recover for the intangible aspects of Mr. Galack's life. Dr. Seaman's testimony clearly indicates that his calculation was simply intended to provide an example to the jury. To the extent that Defendants take issue with that calculation or the value that Dr. Seaman used, those matters simply present issues for cross-examination and do not warrant excluding this testimony. 

West v. Bell Helicopter Testron, Inc., 2013 DNH 118; F.Supp. 2d 479 (D. NH 2013). The Court held that there is no recovery for “hedonic” damages, defined in this case as the loss of value of life itself cause by a shortened life expectancy, citing Ham v. Maine-New Hampshire Bridge Authority, 92 N. Y. 268, 274-76, 30 A.2d 1 (1943).

Herrera v. City of Roswell, 2013 U.S. Dist. LEXIS 196366 (D. NM 2013). This order granted a defense motion to exclude testimony of Dr. Allen Parkman concerning hedonic damages in a wrongful death action, saying: “Plaintiff expert economist shall not be permitted to provide any opinions regarding any dollar values or range of values attributable to a statistical life or the life of the decedent.”

Tom v. Sherman Bros. Heavy Trucking, 2013 U.S. Dist. LEXIS 192701 (D. NM 2013). This memorandum granted a defense motion to bar testimony about the dollar value of the life of the decedent in a wrongful death action. Plaintiff’s attorney was permitted to argue for a specific dollar value in closing comments. The Court, interpreting New Mexico law, said:

New Mexico permits the recovery of hedonic damages in a wrongful death case. Smith v. Ingersoll-Rand Co., 214 F.3d 1235, 1246 (10th Cir. 2000) (quoting Sena v. New Mexico State Police, 1995- NMCA 003, 119 N.M. 471, 892 P.2d 604, 611 (1995)); N.M. Uniform Civil Jury Instruction 13-1830 (allowing plaintiff in wrongful death action to recover damages for the "value of the deceased's life apart from [his] [her] earning capacity"). Hedonic damages attempts to compensate a decedent for the portion of the value of life that is not captured by measures of economic productivity. Smith, 214 F.3d at 1245. Monetizing that portion of life, however, is highly controversial. Id. Federal courts, for example, have unanimously held quantifications of hedonic damages through expert testimony inadmissible. Id. New Mexico law is clear, however, that proof of non-pecuniary damages resulting from the loss of enjoyment of life is permitted. Sena, 119 N.M. at 478. Of course, this Court must apply the substantive law of New Mexico while adhering to the Federal Rules of Evidence. Sims v. Great American Life Ins. Co., 469 F.3d 870, 877 (10th Cir. 2006).

Just as an expert witness is precluded from quantifying hedonic damages, so too lay persons should be precluded from giving a dollar figure for the value of the deceased's life. Such testimony is far more prejudicial than probative and invades the province of the jury. To this extent, Defendant's motion will be granted to exclude the quantification by any witness of the value of Mr. Tom's life.

Fancher v. Barrientos, 2015 U.S. Dist. LEXIS 179990 (D. NM 2015). This memorandum granted a defense motion in limine to limit the testimony of William Patterson to explaining the concept of hedonic damages without providing any dollar values. Federal District Judge James A. Parker said:

Hedonic damages are recoverable in § 1983 wrongful death cases. See Romero v. Byers, 1994-NMSC-031, 117 N.M. 422, 428, 872 P.2d 840, 846 (1994). Similarly, the Tenth Circuit has allowed an expert witness to provide "an explanation adequate to insure the jury did not ignore a component of damages allowable under state law" by offering "his interpretation of the meaning of hedonic damages" and identifying "four broad areas of human experience which he would consider in determining those damages." See Smith v. Ingersoll-Rand Co., 214 F.3d 1235, 1246 (10th Cir. 2000). Based on this authority, Mr. Patterson will be permitted to offer generalized testimony about the concept of hedonic damages, and the Motion will be denied in part as to that aspect of Mr. Patterson's proffered testimony.

The majority rule in federal courts, however, is that expert testimony which places a dollar figure before the jury in an attempt to quantify the value of a human life in monetary terms is inadmissible and does not meet the relevance and reliability factors set forth in Daubert and its progeny. See Smith, 214 F.3d at 1244-45; Raigosa v. Roadtex Transp. Corp., No. 04 CV 305 RLP/WDS, Doc. 60, at 4-5, 2005 U.S. Dist. LEXIS 50001 (D.N.M. Feb. 10, 2005) (unpublished). Thus, the Court will not allow Mr. Patterson to testify as to the monetary value of Mr. Dominguez's hedonic damages, and will not permit Mr. Patterson to express any opinion testimony regarding a numeric formula such as "benchmark figure," "guideline," or "range of values" to be used in calculating such damages. BNSF Ry. Co. v. LaFarge Southwest, Inc., No. 06 CV 1076 MCA/LFG, 2009 U.S. Dist. LEXIS 132152, 2009 WL 4279849, *2 (D.N.M. Feb. 9, 2009) (unpublished). See also Myers v. Williams Manufacturing, Inc., No. 02 CV 157 WPJ/ACT, MEMORANDUM OPINION AND ORDER ON MOTIONS IN LIMINE (Doc. No. 151) at 7, 2003 U.S. Dist. LEXIS 29102 (Nov. 14, 2003) (precluding an economics expert from testifying about hedonic damages using a $10,000 benchmark). The underlying methodology used to arrive at the quantitative measurements of the value of human life "does not meet the relevance and reliability requirements of Daubert and its progeny and will not assist the jury, regardless of whether the figure, formula, or 'range of values' in question is assigned to a specific decedent, a hypothetical individual, a statistical person, or a generic benchmark or guideline." BNSF Ry Co., 2009 U.S. Dist. LEXIS 132152, 2009 WL 4279849, *2. Accordingly, the Motion will be granted in part and all testimony from Mr. Patterson that ascribes an amount to hedonic damages, or the value of the enjoyment of life, will be excluded as unreliable and unhelpful to the jury.

July 5, 2017

Rivera v. Volvo Cars of North America, 2015 U.S. Dist. LEXIS 179757 (D. NM 2015). This was a memorandum granting defense motions to exclude the hedonic damages and wage loss testimony of economic expert Robert Johnson in a case of personal injury to a minor child. Regarding Johnson’s hedonic damages testimony, the court said:

Johnson sets forth a five-step method for calculating hedonic damages. (Doc. 245-4) at 4-5. Johnson takes into account the value of an average life ($8,900,000 in 1997 dollars) and "the Human Capital component" to calculate that the value of a human life ranges from $3,5000,000 to $12,900,00 in 2013 dollars. Id. at 4. Johnson's computation method then requires a trier of fact to "determine the percentage (how much in percent) of the loss of the enjoyment of life that the plaintiff has suffered due to their [sic] injuries" and to pick a number between $3,5000,000 and $12,900,00, which "represents the 100% loss of the enjoyment of life." Id. at 5. Finally, to determine the amount of hedonic damages, the trier of fact multiplies the percentage of the loss of enjoyment of life by the chosen number representing the 100% loss of enjoyment of life. Id.

Although an economics expert can give "generalized testimony about the concept of hedonic damages," the majority rule in federal court is that placing a dollar amount on hedonic damages, including the use of benchmarks and range of values, does not meet the reliability and relevance factors required to admit expert testimony. See e.g., BNSF Ry. Co. v. Lafarge Southwest, Inc., 2009 U.S. Dist. LEXIS 132152, 2009 U.S. Dist. LEXIS 132152 (D.N.M.). This district court has, likewise, has rejected expert testimony on the value of a statistical life as not reliable or relevant. See Chavez v. Marten Transport., Ltd., 2012 U.S. Dist. LEXIS 39586, 2012 WL 988008 *2 (D.N.M.) (citing Cruz v. Bridgestone/Firestone North Am. Tire, LLC, 2008 U.S. Dist. LEXIS 107379, 2008 WL 5598439 *4 (D.N.M. 2008)). Because Johnson's five-step method incorporates a monetary range for the value of a human life based, in part, on the value of an average or statistical life, the Court will exclude Johnson's five-step method for calculating hedonic damages as unreliable.

Regarding Johnson’s proposed wage loss testimony, the Court held that Johnson had made insufficient effort to determine facts specific to the child plaintiff and that his wage loss calculations were therefore also excluded. 

July 14, 2017

United States v. Berkley Heartlab, Inc., 2017 U.S. Dist. LEXIS 107481 (D. SC). This memorandum of Judge Richard Gergel excluded the testimony of Curtis Udell, who had been proffered by the defendants to testify that process and handling fees (P&H Fees) charged by the defendants represented the Fair Market Value (FMV) of defendant medical provider services. Judge Gergel’s memorandum reviewed a number of legal decisions holding that charges originally made by physicians were significantly larger than dollar amounts physicians expected to be paid for services rendered. Udell was proffered to counter testimony of Kathy McNamara that the FMV of the physician services was considerable lower than amounts originally charged. This was in the context of charge by the United States against healthcare providers for significantly inflating loss claims under the federal Anti-Kickback Act and False Claims Act. Judge Gergel provided extended discussion of the irrelevance of original charges of physicians.

July 16, 2017

Artunduaga v. University of Chicago Medical Center, 2017 U.S. Dist. LEXIS 56350 (N.D. IL 2017). This memorandum of Judge Amy J. St. Eve held granted the plaintiff’s request to pay for both Dr. Malcolm Cohen preparation and time spent in deposition. Judge St. Eve said:

UCMC requests $2,340.00 for the 5.2 hours defense expert Dr. Malcom Cohen prepared for his deposition pursuant to Rule 26(b)(4). Courts in this district have concluded that costs associated with the time spent preparing for a deposition are recoverable. See Waters v. City of Chicago, 526 F.Supp.2d 899, 900-01 (N.D. Ill. 2007); Profile Prods., LLC v. Soil Mgmt. Techs., Inc., 155 F.Supp.2d 880, 886 (N.D. Ill. 2001). In this district, courts look to the preparation time in relation to the deposition time to determine whether the preparation time was reasonable. See Chicago United Indus., Ltd. v. City of Chicago, No. 05 C 5011, 2011 U.S. Dist. LEXIS 106523, 2011 WL 4383007, at * 2 (N.D. Ill. Sept. 20, 2011) (collecting cases). "These courts have concluded that a ratio of 3 to 1 preparation to deposition time is reasonable in complex cases[.]" LG Elecs. U.S.A., Inc. v. Whirlpool Corp., No. 08 C 0242, 2011 U.S. Dist. LEXIS 121361, 2011 WL 5008425, at *5 (N.D. Ill. Oct. 20, 2011).

Dr. Cohen spent 5.2 hours for a 3.33 hour deposition, which falls well within the 3 to 1 ratio. Further, the time Dr. Cohen spent in preparation of his deposition was reasonable based on the complexity of the damages calculations and his detailed rebuttal to Plaintiff's damages expert Dr. Mark Killingsworth. The basic proposition under Rule 26(b)(4) "is relatively straightforward -- a party that takes advantage of the opportunity afforded by Rule 26(b) [] to prepare a more forceful cross--examination should pay the expert's charges for submitting to this examination." 8 Wright, Miller, and Marcus, Federal Practice & Procedure § 2034. The Court therefore awards the full amount of $2,340.00 for Dr. Cohen's deposition preparation.

July 17, 2017

Chicago United Industries v. City of Chicago, 2011 U.S. Dist. LEXIS 106532 (N.D. IL 2011). One of the issues addressed in this memorandum was which side pays for preparation for a discovery deposition of the other side. Judge Robert M. Dow, Jr., said:

Defendants seek reimbursement of $24,625.00 in expert witness fees pursuant to Federal Rule of Civil Procedure 26(b)(4)(C). That rule requires an opposing party to "pay the expert a reasonable fee for time spent in responding to discovery." Defendants claim a right to payment for the hours associated with Hosfield's preparation for his deposition as well as for the actual deposition time. As Judge Shadur has observed, "[t]here are mixed  [*4] judicial rulings" on the recoverability of an expert's preparation time. Waters v. City of Chicago, 526 F. Supp. 2d 899, 900 (N.D. Ill. 2007); see also 8A Charles Alan Wright, Arthur R. Miller, Mary Kay Kane & Richard L. Marcus, Federal Prac. & Proc. § 2034 (3d ed. 2011). However, the "majority view in cases decided around the country is that preparation time * * * is compensable" under Rule 26(b)(4)(C). Waters, 526 F. Supp. 2d at 900; see also Collins v. Village of Woodridge, 197 F.R.D. 354, 357 (N.D. Ill. 1999) ("the better reading of Rule 26(b)(4)(C)(i) is that the expert's reasonable fees for preparation time are recoverable by the party who tendered the expert"). This Court cannot improve on the analysis by Judges Shadur and Kennelly in the cases cited above and agrees with its colleagues' construction of Rule 26.

Collins v. Village of Woodridge, 197 F.R.D. 354, 1999 U.S. Dist. LEXIS 16523 (N.D. IL 1999). In this memorandum, Judge Matthew F. Kennelly ruled as follows with respect to the amount the defendant had to pay for the preparation of two plaintiff witnesses for their discovery depositions:

It remains for the Court to determine what is "reasonable" in this case. We can certainly imagine cases in which the "reasonable" compensation for deposition preparation time would be zero or a nominal amount. This, however, is not such a case. The amount of material that the experts had reviewed in arriving at their opinions was unusually extensive, and it was entirely reasonable to expect that they would have to re-review significant portions of it in order to be able to answer questions intelligently at their depositions. Moreover, defendants knew in advance that plaintiff planned to seek recovery of the experts' preparation time but made no effort to limit the scope of the depositions, which might have limited the amount of "reasonable" preparation time. On the other hand, defendants requested the depositions promptly after receiving the experts' reports and did not inordinately delay scheduling the depositions. Thus the experts did not need to completely duplicate their earlier work in order to answer questions about their opinions. It is not our intention to allow the experts to seek compensation for reinventing the wheel. Rather, what we believe appropriate is to permit the expert to be compensated by the opposing party for the time reasonably necessary to refresh the expert's memory regarding the material reviewed and the opinions reached.

Weighing these competing considerations, we do not think that a three-to-one ratio of preparation to deposition time is appropriate in terms of the costs that reasonably ought to be shifted to defendants under Rule 26(b)(4)(C). Having reviewed the experts' reports and their listings of the materials that they were required to review, we think that in the particular circumstances of this case, a ratio of one and one-half times the length of the deposition is reasonable. We will therefore order defendants to reimburse plaintiffs for twelve hours of preparation time for Mr. Walton ($ 1,500 at $ 125 per hour) and ten and one-half hours of preparation time for Dr. Jacobs ($ 3,675 at $ 350 per hour). These amounts are in addition to the compensation that defendants must pay for the time spent at the depositions themselves: $ 1,000 for Mr. Walton (8 hours at $ 125 per hour) and $ 2,450 for Dr. Jacobs (7 hours at $ 350 per hour). Plaintiffs have not yet presented a request for payment to Ms. Brubaker, but the Court will follow the same rule of thumb if and when a request is made, subject to review for any unusual or differing circumstances.

July 28, 2017
Smith v. Auto-Owners Insurance Company, 2017 U.S. Dist. LEXIS 115937 (D. N.M. 2017). Dr. Stan V. Smith was permitted to testify about the concept of hedonic damages, but not to provide an dollar values related to that concept. Judge Stephan M. Vidmar said:

New Mexico allows an injured party to recover hedonic damages. UJI 13-1807A NMRA. The concept of hedonic damages is premised on "the rather noncontroversial assumption that the value of an individual's life exceeds the sum of that individual's economic productivity." Smith, 214 F.3d at 1244 (10th Cir. 2000). The Tenth Circuit and numerous cases from this District have excluded expert testimony on hedonic damages from an economist who attempts to testify to a specific dollar figure, benchmark figures, or a range of values to be used in calculating such damages, but have allowed testimony about the concept of hedonic damages and the broad areas of human experience the factfinder should consider in determining those damages. Id. at 1245-46; Kretek v. Bd. of Comm'rs of Luna Cty., No. 11-cv-0676 KG/GBW, 2014 U.S. Dist. LEXIS 188299, at *4 (D.N.M. Feb. 26, 2014) (unpublished); Flowers v. Lea Power Partners, LLC, No. 09-cv-0569 JAP/SMV, 2012 WL 1795081, at *4 (D.N.M. Apr. 2, 2012) (unpublished); BNSFRy. Co. v. LaFarge Sw., Inc., No. 06-cv-1076 MCA/LFG, 2009 WL 4279849, at *1 (D.N.M. Feb. 9, 2009) (unpublished). I will follow this well-established law and will allow Dr. Smith to testify about the concept of hedonic damages and the general method for calculating them within the parameters set out in the cases. However, he will not be allowed to testify as to any certain dollar amount quantifying the alleged hedonic losses. See Smith, 214 F.3d at 1245-46.

Kretek v. Board of Commissioners of Luna County, 2014 U.S. Dist. LEXIS 188299 (D. N.M. 2014). In response to a defense motion in limine to exclude the hedonic damages testimony of William Patterson, Judge Gonzales said:

With respect to any testimony on hedonic damages, the majority rule in federal court is that placing a dollar amount, including the use of so-called benchmarks, on hedonic damages does not meet the relevance and reliability factors required to admit expert testimony. BNSF Ry. Co. v. Lafarge Southwest, Inc., 2009 U.S. Dist. LEXIS 132152, 2009 WL 4279849 *2 (D.N.M.). In fact, this District Court has excluded Mr. Patterson's hedonic damages calculations in the past. See Martinez v. Caterpillar, Inc., 2007 U.S. Dist. LEXIS 97414, 2007 WL 5377515 (D.N.M.). Hence, the Court will exclude any testimony based on benchmarks.

An economics expert, however, can give "generalized testimony about the concept of hedonic damages." BNSF Ry. Co., 2009 U.S. Dist. LEXIS 132152, 2009 WL 4279849 at *1. Moreover, Mr. Patterson can reliably testify how to generally calculate hedonic damages. That testimony would consist of telling the jury that they must (1) determine an annualized value for Mr. Aparicio's loss of pleasure of life, (2) multiply that annualized value by the number of years Mr. Aparicio is expected to live, and (3) discount that result to present value by using an appropriate factor. Mr. Patterson's knowledge of what hedonic damages are and how to generally calculate hedonic damages will help the jury determine hedonic damages.

Plaintiff also requests that if Mr. Patterson cannot use benchmarks in explaining hedonic damages, he should be allowed to testify as to the value of a statistical life. The district has, likewise, rejected such testimony as not relevant or reliable. See Chavez v. Marten Transp., Ltd., 2012 U.S. Dist. LEXIS 39586, 2012 WL 988008 *2 (D.N.M.) (citing Cruz v. Bridgestone/Firestone N. Am. Tire, LLC, 2008 U.S. Dist. LEXIS 107379, 2008 WL 5598439 *4 (D.N.M. 2008)). The Court will, therefore, not permit Mr. Patterson to testify about the value of a statistical life.

August 5, 2017

Loos v. BNSF, 865 F.3d 1106 (8th Cir. 2017). This decision involved an appeal and cross appeal of two district court decisions, one granting summary judgment against Loos regarding a retaliation claim under the Federal Railroad Safety Act (FRSA) an the other in favor of Loos involving an attempt by the BNSF to withhold railroad retirement taxes (Tier I, Tier II and Medicare payroll taxes) from Loos’s personal injury claim, which had been successful at the trial court level. The second ruling is relevant to forensic economists in that the 8th Circuit held that payroll taxes should not be withheld. This was as significant win by the railroad plaintiff bar against the railroad defense bar. Railroads, and particularly the BNSF, have been trying to maintain for several years that even though federal and state income taxes are not withheld from personal injury awards, the Railroad Retirement Tax Act (RTTA) required payroll taxes to be withheld from personal injury awards. On this issue, Loos was supported by an amicus brief from the American Association for Justice and the BNSF was supported by an amicus brief from the U.S. Department of Justice. The 8th Circuit held that:

Under the RRTA's plain text, damages for lost wages are not remuneration "for services rendered." Damages for lost wages are, by definition, remuneration for a period of time during which the employee did not actually render any services. Instead, the damages compensate the employee for wages the employee should have earned had he been able to render services. Unlike FICA, the plain language of the RRTA refers to services that an employee actually renders, not to services that the employee would have rendered but could not. See 26 U.S.C. § 3231(e)(1); see also id. § 3231(d) (defining "service"). Thus, damages for lost wages do not fit within the plain meaning of the RRTA.
August 10, 2017

Simms v. United States, 839 F.3d 364 (4th Cir. 2016). Simms had sued for wrongful birth damages resulting from medical negligence under the Federal Tort Claims Act (FTCA). The district court awarded Simms a total of $12,222,743 in damages, including: (1) $2,722,447 for past billed medical expenses, (2) $8,683,196 for future medical for a twenty-one-year life expectancy, (3) $175,526 for lost income, and (4) $641,544 in noneconomic damages. The 4th Circuit upheld the award of past billed medical expenses rather than amounts paid in satisfaction of those bills, based upon West Virginia law. The government had also requested that the award for future medical care take the form of a reversionary trust, which the district court refused. The government also argued that the district court should have held a collateral source hearing required under West Virginia's Medical Professional Liability Act that modified the collateral source act in medical malpractice cases. In remanding on that issue, the 4th Circuit indicated that the trial court could reassess its decision not to order a reversionary trust.

Crocker v. Sky View Christian Academy, 2009 U.S. Dist. LEXIS 1116 (D. NV 2009). Defense had a filed a motion in limine based upon plaintiff’s failure to file computed values for emotional distress and punitive damages. The Court said:

Plaintiffs maintain that they are not required to make the disclosures called for by Rule 26(a)(1)(A)(iii). They first argue, "No initial disclosure of a damages 'computation' is possible or required where such damages consisted almost entirely of compensation for emotional anguish." (Pls.'s Opp'n (# 19) at 3.) As Plaintiffs note, "the elements of pain and suffering are wholly subjective . . . [and] because of their very nature, a determination of their monetary compensation falls peculiarly within the province of the jury." Indeed, because emotional suffering is personal and difficult to quantify, damages for emotional anguish likely will be established predominantly through the plaintiffs' testimony concerning the emotional suffering they experienced, not through they type of documentary evidence or expert opinion relied upon to make a Rule 26(a)(1)(A)(iii) disclosure of a computation of damages. . . Accordingly, the court finds that Plaintiffs did not err in failing to provide a computation of their alleged emotional damages.

Similarly, Plaintiffs argue that a computation of damages pursuant to Rule 26(a)(1) is not possible or required where, as here, the plaintiff seeks punitive damages. Indeed, punitive damages can be based upon a variety of factors that are difficult to quantify, including the reprehensibility of the defendant's conduct. Under Nevada law, if the district court determines that the conduct at issue is subject to punitive  damages, "the allowance or denial of exemplary punitive damages rests entirely in the discretion of the trier of fact." Evans v. Dean Witter Reynolds, Inc., 116 Nev. 598, 5 P.3d 1043, 1052 (Nev. 2000) (citations omitted). Because a computation of punitive damages is not feasible at the time initial disclosures are required, the court finds that Plaintiffs did not err in failing to provide a computation of their alleged punitive damages.
August 15, 2017

Otero County Hospital Association, Inc., Quorum Health Resources, LLC, 2017 Bankr. LEXIS 2245 (United States Bankruptcy Court for the District of New Mexico, 2017). The defense moved to exclude the hedonic damages testimony of Dr. Brian McDonald in this bankruptcy case. Judge Robert H. Jacobvitz held that:

Consistent with Ingersoll-Rand, and the parties' agreement, the Court will allow Dr. McDonald to give expert testimony regarding the concept of hedonic damages, how they differ from other types of damages, and the kinds of human experiences that the Court should consider when fixing damages for the loss of enjoyment of life. The Court will exclude any testimony regarding the amount or computation of hedonic damages. Permitted conceptual testimony regarding hedonic damages may include the following:
        a) Testimony that an award for loss of enjoyment of life damages is premised on the assumption that the value of an individual's life exceeds the sum of that person's economic productivity, and that loss of enjoyment of life damages considers the effect of the injury on the plaintiff's non-work activities such as leisure, hobbies, recreational activities, the ability to pursue a chosen occupation, community activities, and internal well-being;
        b) Testimony about how hedonic damages can take into account decisions that involve tradeoffs between the risk of a shorter life expectancy or the prospect of a long life, on the one hand, and occupational choices or decisions on how to spend money, on the other; and how the tradeoffs relate conceptually to any hedonic damages suffered by the plaintiffs;
        c) Testimony about broad areas of human experience which should be considered by the trier of fact in determining hedonic damages for a particular plaintiff, such as how the plaintiff spent leisure time and participated in recreational activities, hobbies, and community activities; and
        d) Testimony regarding how hedonic damages differ from damages to compensate for pain and suffering.
    Dr. McDonald is precluded from giving any testimony regarding economic research on the value of a statistical life, the value of a statistical life, or any other testimony that places a dollar figure on hedonic damages, whether in the abstract or with respect to a particular plaintiff, or that describes a numeric range or formula, benchmark figure, or guidelines for calculating hedonic damages.

Union Pacific Railroad v. United States, 2017 U.S. App. LEXIS 14078; 2017-2 U.S. Tax. Cas. (CCH) P50,293. (8th Cir. 2017). At issue was whether the value of stock provided as remuneration to employees or “ratification payments” made to union employees were subject to railroad retirement taxes under the Railroad Retirement Tax Act (RTTA). The 8th Circuit reversed a lower court ruling holding that such taxes were required. The 8th Circuit held that such payments were not “money” payments for service rendered by employees within the meaning of the RTTA.
Rochkind v. Stevenson, 2017 Md. LEXIS 463 (MD 2017). The trial court decision was reversed and remanded by the Court of Appeals (Maryland’s Supreme Court) based upon the trial court’s  admission of the testimony of Dr. Cecelia Hall-Carrington that lead paint had caused the plaintiff’s Attention Deficit Hyperactivity Disorder (ADHD). The Court of Appeals held that Hall-Carrington’s testimony failed to meet the standards of Maryland’s Rule 5-702(3), requiring “a sufficient factual basis” to support an expert’s testimony. This represented the second time that a trial court decision in this case has been reversed.

August 17, 2017

Hillman v. City of Chicago, 2017 U.S. Dist LEXIS 130376 (N.D. IL 2017). This memorandum by Judge Ruben Castillo was devoted to awarding costs to the defendant after a complete defense victory in a retaliatory discharge case. The defendant requested $25,060.97 in costs from the plaintiff. Judge Castillo awarded $23,594.72 in costs to the defendant. The decision provided detailed explanations of amounts awarded for:

    I.      Deposition Transcript-Related Costs
            A.       Deposition Exhibit Costs
            B.    Deposition Transcript Delivery Costs
            C.    CD-ROM Fees   
            D.    Signature Handling
            E.    Teleconference Fees
    II.      Court Hearing and Trial Transcript Costs
            A.    Pretrial Conference Transcripts
            B.    Court Hearing Transcripts
            C.    Trial Transcripts
    III.    Process Serving Fees
    IV.    Witness Fees
    V.    Photocopying Costs
    VI.    Clerk’s Fees

The discussion of $855.59 in witness fees focused on witness travel expenses. The plaintiff objected to $662.99 of that amount, which was for airfare, ground transportation, hotel accommodations and meals for Paul White, an economist on the ground that plaintiff had not insisted upon having White’s deposition taken in Chicago, but had done so on the basis of the defendant’s election to have White come to Chicago for his deposition and because White did not ultimately testify in the trial. These arguments were rejected by Judge Castillo.   

August 18, 2017

Wilson v. State of Maryland, 370 Md. 191; 803 A.2d 1034 (MD 2002). This decision reversed and remanded a murder conviction of Garrett Wilson, two of whose children had died from what had originally been diagnosed as Sudden Infant Death Syndrome (SIDS). As a part of the prosecution’s case, Dr. Charles Kokes, a medical expert, testified that the likelihood of two children of the same father dying of SIDS was in the range of 1 in 100,000,000. This calculation was based upon use of the product rule that when two events are unrelated, the probability of both events occurring is equal to the product of the probabilities of each event occurring separately. Kokes testified the probability of the first child dying of SIDS was 1 in 1,000 and that the probability of the second child dying of SIDS with also the condition of cerebral swelling was 1 in 100,000. On this basis Kokes multiplied the probability of 1 in 1,000 by 1 in 100,000 and arrived at his opinion that the odds of both children dying of SIDS was 1 in 100,000,000. Another medical expert for the prosecution, Dr. Linda Norton assumed that the odds of each child dying of SIDS was 1 in 2000. By the product rule, she found the probability of both events occurring to be 1 in 4,000,000.  The Court cited literature arguing that there is a genetic component to SIDS death in holding that use of the product rule in expert testimony was prejudicial and warranted reversal of Wilson’s conviction and remand for a new trial.

August 23, 2017

Edwards v. McElliotts Trucking, LLC, 2017 U.S. Dist LEXIS 133803 (S.D. WV 2017).  This was an order of Judge Robert C. Chambers denying the defendant’s motion in limine petition to  exclude the life care plan testimony of Lisa Westfall. Defendant’s motion focused heavily on the claim that the medical opinions of the two doctors upon which Westfall relied in preparing her life care plan were not to “a reasonable degree of medical certainty. Judge Champers indicated that he regarded that phraseology to be meaningless and provided the following statement of what he felt was required for admission of expert testimony under the Daubert standard:

The danger of expert testimony is that it will be accorded a weight by the factfinder it is not due because the authority of the expert conceals the analytical leaps or unfounded assumptions on which his or her conclusion is based. It is the duty of the trial court to examine the expert's assumptions and the strength of the connections between them and the conclusion to which the expert will testify. Once the trial court has made the appropriate inquiry and is satisfied that the expert's opinion does not flow arbitrarily from a whim but from the disinterested operation of reason, the factfinder can trust that the expert arrived at the conclusion soundly. With the assurance that the trial process will not be corrupted by a capricious expert, the factfinder can decide for itself the weight to accord relevant expert testimony.

Stewart v. Snohomish County Public Utility District No. 1, 2017 U.S. Dist. LEXIS 134245 (W.D. WA 2017). The defendant “PUD” asserted that economic expert Dr. Paul Torelli had incorrectly calculated the adverse tax consequences of the award on Stewart and presented a declaration of economic expert William Partin in support of that claim. The plaintiff then presented a declaration from Torelli in reply to Partin’s declaration, in which Torelli explained why Partin’s claims were not well-founded. Judge John C. Coughenour determined that Torelli was correct, “particularly in light of his explanation as to the reconciliation between his method and an economics paper by Barry Ben-Zion, the primary authority cited by Partin.”

Knebel Autobody Center v. Country Mutual Insurance Company, 2017 IL App (4th) 160379-U; 2017 Ill. Unpub. LEXIS 14 (Ill. App. 2017).  This decision affirmed a trial court decision to exclude the testimony of economic exert Dr. Stan V. Smith on the following basis:

Country points out the expert witness is really only doing basic math for the jury. Based on the above quote from plaintiffs' brief, this is correct. If told the amount of gross revenue a company received from a particular client for a particular year and the company's gross revenue for the same year, any layman could determine what percentage of the gross revenue would be attributable to the particular client. The same layman could do the same thing with other years and then compare the percentage attributable to the particular client from year to year. Country argues, "[b]asic math is common knowledge and does not require expert testimony." We agree.

"Expert testimony is proper when the subject matter of the inquiry is such that only a person with skill or experience in that area is capable of forming a judgment." People v. Leahy, 168 Ill. App. 3d 643, 649, 522 N.E.2d 892, 896, 119 Ill. Dec. 230 (1988). Simple arithmetic does not require any special skill or experience jurors do not possess. Further, as Country notes in its brief, Smith did not consider numerous variables which could have driven business from Country down, including weather and large repairs. We also note other possible variables, including a decrease in the number of claims overall, demographic shifts, new body shops opening in the area, or Country deciding to total, rather than repair, more vehicles. Instead of examining possible variables to explain the decrease in business from Country, Smith simply relied on plaintiffs' assumptions that no reasons existed for the percentage of their business from Country to decline other than Country's alleged bad acts. As a result, we do not find the trial court abused its discretion in barring plaintiffs' expert.

September 6, 2017

Queen v. Sniper Treestands, 2017 U.S. Dist. LEXIS 143087 (S.D.IL 2017). This memorandum granted a defense motion in limine to exclude the testimony of life care planning expert, Santo Stephen BiFulco, M.D., and economic expert Karen Grossman Tabak, Ph.D. The exclusion of Tabak was based on the exclusion of BiFulco’s life care plan and not on any separate fault of Tabak. Bifulco’s testimony was excluded based upon his failure to consult with Queen’s treating physicians. Judge David R. Herndon said:

Dr. BiFulco indicates that his life care plan was based on a review of Queen's medical records and a September 10, 2015, examination of Queen, which lasted less than two hours (Doc. 121-1, pgs. 36-37). Defendant contends that BiFulco's opinions are not grounded in a proper basis because Dr. BiFulco relied on his own assessment of Queen to develop his life care plan and opinions as to Queen's condition and future needs, rather than the assessments prepared by Queen's treating physicians. In addition, defendant also argues that Dr. BiFulco's report exceeded the scope of his expertise and fails to establish the reliability of his opinions.

Judge Herndon also provided extended discussion of the inadequacies of BiFulco’s report.

October 3, 2017

Veasley v. United States of America, 201 F. Supp. 3d 1190 (S.D. Ca. 2016). In this pregnancy-related medical malpractice case, two economists testified about losses to be sustained by a young child over the next 60-plus years. The court agreed with many of the opinions stated by defense economist Laura Dolan, who used wage growth rates based on U.S. Census earnings data for women by education; a 5.85% discount rate (based on a combination of historical, current, and forecasted rates for 5-year Treasury bonds); a 2.5% - 2.75% net discount rate for wages; and 0% - 3.5% for medical cost net discount rates (based on various components of the medical CPI). The plaintiff’s economist, Robert Johnson, had opined that the appropriate rates should be 4.1% for wage growth (from average weekly earnings in private, nonagricultural industries, 1950 – 2014); 4.5% for discounting (from averaging 90-day Treasuries from 1950 to 2014); and +.9% as a medical net discount rate (from the overall medical CPI). The court agreed with Johnson, however, concerning future earning capacity, finding that the plaintiff could have earned a bachelor’s degree with 21.6% fringe benefits and worked to age 65. The defense economist had used a definition close to the jury instruction for lost earnings (“the amount of money that an individual is reasonably certain to earn”), rather than for lost earning capacity. The decision contains some of the bases for the experts’ opinions, and also reflects the judge’s reasoning regarding the reasonable value of extraordinary, gratuitous care offered by the parents to their young daughter. Submitted and written by Jennifer Polhemus. 

Rodriguez v. Kline, 186 Cal.App.3d 1145; 231 Cal.Rptr. 157 (1986) held that, for a plaintiff determined to be in the U.S. illegally and subject to deportation, lost earnings must be calculated on the basis of expected earnings in the plaintiff’s country of origin. However, Evidence Code Section 351.2, effective January 1, 2017, states that “In a civil action for personal injury or wrongful death, evidence of a person's immigration status shall not be admitted into evidence, nor shall discovery into a person's immigration status be permitted.” Therefore, Rodriguez v. Kline appears to be irrelevant for calculation of lost earnings. Revised listing submitted by Jennifer Polhemus.

Goodyear Tire & Rubber Company v. Rogers, 2017 Tex. App. LEXIS 8382 (TX App. 2017).  This decision involved a mesothelioma death for which the Goodyear Tire & Rubber Company was held liable. One issue in the appeal was whether a portion of the award for loss of advice and counsel of the decedent was a “pecuniary damage” or part of intangible damages subject to the cap on non-pecuniary damages. The court held that the loss of advice and counsel was a non-pecuniary damage subject to the cap on non-pecuniary damages. The court said:

[T]he ultimate question here is, "What sum of money is the evidence legally or factually sufficient to show that these particular appellees actually lost in fact due to no longer receiving Carl's care, maintenance, support, advice, counsel and reasonable monetary contributions (gifts)?" For example, assuming Carl had been an accountant who did their tax returns for free, how much would they have to pay to replace that free service? Or, as was shown here, how much will the wife have to pay for household services that Carl previously provided for free? Those are examples of actual economic or pecuniary losses that would be includable under the cap's economic damages prong if there was evidence supporting them. On the other hand, although Carl's practical advice to his family had some unquantified, inherent value to them, losing such advice in the future would not be an actual economic or pecuniary loss to appellees if there is no evidence of an associated monetary impact on them to replace that advice and counsel. These examples illustrate the difference between (i) the undifferentiated, non-monetized "pecuniary losses" the jury found in response to question three and (ii) the types of actual economic and pecuniary losses that the legislature made includable when determining the economic damages prong in § 41.008(b)(1)(A). The latter are included in that prong, whereas, the former are not.

This decision was suggested by Gene Trevino.

October 4, 2017

Russo v. The Brattleboro Retreat, 2017 U.S. Dist. LEXIS 162859 (D. VT 2017). This decision involved a wrongful death claim resulting from the suicide of Laura DiPillo, the child of Drs. Margaret Russo and Steven DiPillo. At issue was the calculation by economic expert, Dr. Gary Crakes, who calculated the loss of earnings and household services of Dr. Russo resulting from her daughter’s death to have a present value “greater than $2 million.” Judge Geoffrey W. Crawford held that there was no right to recover pecuniary losses resulting from a parent’s reactions to a child’s death under the Vermont Wrongful Death Act and excluded Dr. Crake’s testimony. Judge Crawford also discussed at length special provisions in Vermont’s wrongful death act regarding parental loss in cases of child death, including litigation in the states of Washington and Oklahoma that had similar provisions in their wrongful death acts.

October 10, 2017

Brower v. Sprouts Farmers Market, LLC, 2017 U.S. Dist LEXIS 13199 (D. N.M. 2017). The defendant asked the court to require the plaintiff to provide a calculation of non-economic damages, “such as pain and suffering, mental anguish, emotional distress, loss of recreational activity, and loss of enjoyment of life.” Emphasizing the “vagueness”of exact amounts of loss in such areas, the Court held that “it does not make sense to require plaintiff ‘as a lay person, to provide an exact dollar figure for her non-economic damages.’”

October 28, 2017

Krupnikovic v. Sterling Transportation Services, 2017 U.S. Dist. LEXIS 148235 (D. NE 2017). This case involved a fatal tractor-trailer accident and denies a motion in limine to exclude the testimony of economic expert Stan V. Smith regarding Smith’s projections for lost household services. The Court said:

The defendants do not challenge Dr. Smith's credentials and the court finds he appears to be qualified to testify with respect to the economic value of the decedent's services. The record shows he has education and experience in economics and the determination of damages. Based on his qualifications and experience, his testimony is likely reliable enough to assist the trier of fact. The expert's methodology appears to be scientifically valid and can properly be applied to the facts of this case. The defendants' criticism of Dr. Smith's formulas and methods is properly the subject of cross-examination.

This decision also provided a clear description of the relationship between the Nebraska Wrongful Death Act and the Nebraska Survival Act.

November 4, 2017

Denny v. Kent County Road Commission, 317 Mich. App. 727 (MI App. 2016). This decision makes it clear that the standard for damages in a wrongful death action in Michigan is loss to the estate of a decedent, but that survivors can bring their own separate actions for loss of financial support. The Court of Appeals said:

Defendant attempts to characterize plaintiff's claim as one for lost financial support and argues that because a claim for lost financial support can be brought under the wrongful-death statute by beneficiaries of the estate, this claim is not one for damages suffered by the decedent. . . . However, a claim for lost financial support under the wrongful-death statute is not the same as a claim for lost earnings. Specifically, lost earnings are damages that decedent could have sought on his own behalf had he lived, whereas damages for lost financial support would be sought by one who depended on the decedent for financial support. . . Because the damages are distinct, the fact that the wrongful-death statute allows for recovery of lost financial support does not change the character of plaintiff's claim for damages for the decedent's lost earnings.

The decision does not indicate whether how double counting would be avoided if an action included both loss of the decedent’s earnings and a survivor’s loss of financial support that would be funded from the decedent’s lost earnings.

November 8, 2017

Clemens v. Centurylink, 874 F.3d 1113; 130 Fair Empl. Prac. Cas. (BNA) 908; 101 Empl. Prac. Dec. (CCH) P45,916 (9th Cir: 2017).  This decision of the 9th Circuit vacated a 2014 district court decision denying a tax adjustment to neutralize the impact of taxes on the amount of an award for lost back pay. The 9th Circuit indicated that it was joining the 3rd, 7th and 10th Circuits in allowing district courts to make such adjustments. The court noted that the D.C. Circuit had a contrary ruling and cited a paper by Thomas R. Ireland, Tax Consequences of Lump Sum Awards in Wrongful Termination Cases, 17 J. Legal Econ. 51, 53-54 (2010) (explaining the circuits' approaches to equitable tax adjustments). The Court of Appeals said:

We join the thoughtful analysis of the Third, Seventh, and Tenth Circuits, and reject the matchbook musings of the D.C. Circuit. In so doing, we also agree with those courts that the decision to award a gross up--and the appropriate amount of any such gross up--is left to the sound discretion of the district court. As the Third Circuit put it, "we do not suggest that a prevailing plaintiff in discrimination cases is presumptively entitled to an additional award to offset tax consequences . . . . The nature and amount of relief needed to make an aggrieved party whole necessarily varies from case to case," Eshelman, 554 F.3d at 443, and the "circumstances peculiar to the case" drive that decision[.]
November 15, 2017

Kelmendi v. Detroit Board of Education, 2017 U.S. Dist. LEXIS 63652 (E.D. MI 2017). In granting a defense motion to exclude testimony about front pay, the Court said:

As for the final factor, Kelmendi provided no evidence such as "discount tables to determine the present value of future damages." Kelmendi "need not have paraded a team of economists in front of the [Court] to meet his burden of proof," Burton, 577 F. App'x at 567, and the Court acknowledges that the jury was instructed on how to discount a future damages award to present value (see R. 96, PID 1827-28). But most troubling is that, at the very least, "[a] plaintiff who seeks an award of front pay must provide the district court with the essential data necessary to calculate a reasonably certain front pay award." Arban, 345 F.3d at 407 (citations omitted). Kelmendi has not done that. True, he discussed his bi-weekly salary as an instructional specialist. But "[s]imply proving one's salary is not enough." Burton, 577 F. App'x at 567. And Kelmendi arguably fell short of even doing that. He threw out only a rounded estimate of his past salary, "probably 1,800 every two weeks . . . It's about 1,800." (R. 106, PID 2636), and offered no data on what his future salary would have been had he stayed at DPS or worked elsewhere.

On balance, these factors--and Kelmendi's lack of evidence offered to support his front pay award--weigh against finding that a front pay award would be appropriate here. Accordingly, the Court will grant Defendants' motion in limine to the extent it seeks to eliminate Kelmendi's front pay (i.e., the Court should not have sent that issue to the jury). The Court will thus vacate that aspect of the jury's verdict.