Decisions Developed in 2018

January 21, 2018

Dedmon v. Steelman, 2017 Tenn. LEXIS 720 (TN 2017). This decision held that the definition of “reasonable charges” for hospital services under the Tennessee Hospital Lien Act does not apply in personal injury cases. Therefore, plaintiffs are free to submit evidence of the injured party’s full undiscounted medical bills as proof of reasonable medical expenses. Defendants were precluded from submitting evidence of discounted rates accepted by medical providers as a result of insurance, but were free to submit any other competent evidence to rebut plaintiff’s proof on the reasonableness of the medical expenses as long as the proof does not contravene Tennessee’s collateral source rule. Suggested by Christina Tapia. 


February 1, 2018

Otero County Hospital Association, Inc., Quorum Health Resources, LLC, 2018 Bankr. LEXIS 244 (United States Bankruptcy Court for the District of New Mexico, 2017). The Court defined a life care plan as follows:

A life care plan is a dynamic document, based on extensive data analysis and research. A life care plan provides information regarding a patient's current and future needs and associated costs relating to a person's injury. To create a life care plan, a life care planner takes a comprehensive review of the patient's medical records and interviews the patient. A physical exam of the patient is also performed. Based on this review, the life care planner creates a life care plan that assesses the patient's current and long-term needs, including physician follow up exams, diagnostic tests, pain intervention needs, medications, medical devices, home assistance needs, and any anticipated home modifications.

February 12, 2018

Lee v. Overbey, 2009 U.S. Dist. LEXIS 138766 (W.D. AR 2009).  Federal Judge Robert T. Dawson had allowed Dr. Stan V. Smith to testify about loss-of-life damages and Dr. Gary Skoog had been proffered by defense as a rebuttal witness. The Plaintiff moved to exclude Skoog’s testimony. Judge Dawson interpreted Dr. Skoog’s report and deposition testimony to have argued that “it is improper to utilize loss-of-life damages as compensation in litigation.” Judge Dawson granted Plaintiff’s motion to preclude Skoog from expressing his opinions regarding whether loss-of-life damages should be recoverable under Arkansas law, but allowed Skoog to testify in opposition to the methodology used by Smith to arrive at loss-of-life damages. Note: This memorandum was apparently published the first time on LEXIS in February of 2018.  

Fielder v. J. V. Coleman Trucking, Inc., 2018 U.S. Dist. LEXIS 13812 (N.D. WV 2018). This order is the response of Federal Judge Frederick P. Stamp, Jr., to a number of motions in limine posed by both the Plaintiff and the Defendant. A Defense motion challenged the calculations of Dr. Clifford B. Hawley for Jason Fielder’s “lost household services.” The order noted that “the loss of ability to perform household services constitutes the loss of a customary activity and is not subject to calculation as a matter of law.” It criticized Hawley’s calculations as “unreliable as they are based entirely upon generalized data not specific to the plaintiff.” This challenge to Hawley’s testimony was rendered moot because the Plaintiff had agreed not to elicit any opinions from Hawley regarding the economic value of Fielder’s loss of household services. The order indicated that the Plaintiff would, however, elicit testimony from Mr. Fiedler, his wife and other potential witnesses regarding Mr. Fiedler’s loss of household services and “will ask the jury to award an appropriate amount for those losses.”

Rascon v. Brookins, 2018 U.S. Dist. LEXIS 20088 (D. AZ 2018). This order of Federal Judge John J. Tuchi allowed the testimony of Dr. Stan V. Smith’s calculations on loss of future earnings were admissible, but his opinons with respect to loss of life or loss of value of life in this wrongful death action were not admissible. Judge Tuchi discussed the Ninth Circuit decision of Dorn v. Burlington N. Santa Fe R.R. Co., 397 F.3d 1183, 1195 (2005) and said:

The Court agrees with the Ninth Circuit's evaluation that Dr. Smith's quantification of hedonic damages does not accurately project the value people place on the enjoyment of life, but rather an altered figure that could reflect many different government policy judgements. Further, even if the figure only reflected what the public spends out of its own pockets on safety devices, this spending "is probably influenced as much by advertising and marketing decisions made by profit-seeking manufacturers . . .as it is by any consideration by consumers of how much life is worth." Smith v. Jenkins, 732 F.3d 51, 66-67 (1st Cir. 2013) (quoting Mercado, 974 F.2d at 871). The Court finds that Dr. Smith's calculations are too speculative and unconnected to how an individual values their life and is therefore not sufficiently tied to the facts of the case and is unhelpful to the jury in determining the "loss of value of life". Under Rule 702, Dr. Smith's "loss of value of life" testimony is inadmissible. See, e.g., Daubert, 509 U.S. at 591 ("scientific validity for one purpose is not necessarily scientific validity for other, unrelated purposes"); Ayers v. Robinson, 887 F. Supp. 1049, 1064 (N.D. Ill. 1995) (ruling, after an extensive analysis of the methodology involved, that Dr. Smith's testimony failed to survive Daubert analysis and was unhelpful to the jury).

Morga v. FEDEX Ground Package System, 2018 N.M App. LEXIS 8 (N.M. App. 2018). This decision rejected an appeal of the trial court decision to award more than $165 million to the plaintiffs for two deaths in an automobile accident. Most of that value was in the form of compensatory damages for loss of enjoyment of life and loss of consortium. The Court of Appeals said:

Defendants made a strategic decision to entrust the jury with the decision of how to determine the value of a life from the evidence presented, even going so far as to exclude Plaintiffs' economist from providing testimony regarding "specific damages for the value of a statistical life[,]" including "any numbers offering a benchmark value as to human life." Defendants' counsel specifically told the jury, " I am not going to submit to you a number, because I agree the value of life--I don't want to insult anybody about the value of life in this case. But you have to rely on you[r] own conscious[] when you're looking at [the] value of life." We agree that the damage awards in this case were very large. However, when an experienced district court judge, who is familiar with juries in his community, properly reviews the record and evaluates a motion for new trial and a motion for remittitur; the fact that Plaintiffs' awards are large does not transform Plaintiffs' undisputed evidence into something illogical or insufficient. Furthermore, although Defendants were afforded an opportunity to present evidence or testimony at trial to guide the jury in their determination of the value of life and other non-economic damages, Defendants specifically chose not to do so.

February 13, 2018

Henckle v. Cumberland Farms, Inc., 2017 U.S. Dist. LEXIS 217367 (S.D. FL 2017).  This decision excluded the testimony of economic expert Roderick Moe based upon his inability to demonstrate that a method of using a period of 24 past years to measuring growth rates for components of a life care plan prepared by Dr. Lichtblau that would extend 24 years into the future. (The term “mirror image approach” was not used in this decision, but has been used by forensic economists to describe this method.) Judge Donald M. Middlebrooks said:

There is no evidence that Moe's methodology for calculating medical expense growth rates has a reliable basis in economics, or is generally accepted by economists who study the medical industry. First, Moe admitted that he is unaware of any standard, treatise, expert analysis, or other authority that supports his methodology. (Moe Dep., 83:20-84:4; 88:3-9). Second, he testified that he is not aware of any studies that have tested his methodology, nor has he tested his methodology. (Moe Dep., 88:12-19; 88:22-89:2).

February 19, 2018

Mercado v. Ahmed, 756 F. Supp. 1097 (N.D. IL 1991). This order of Judge James B. Zagel excluded testimony of Stan V. Smith regarding an injured child’s loss of enjoyment of life (hedonic damages). In reaching his decision to exclude the testimony of Smith, Judge Zagel discussed said:

This kind of evidence is well described in T. Miller, Willingness to Pay Comes of Age: Will the System Survive, 83 Nw. U.L. Rev. 876 (1989). In brief, Miller notes that economists are researching the "ways to measure the value that individuals place upon reducing the risk of dying" by examining the markets.  Id. at 878-79. They examine "what people actually pay -- in dollars, time discomfort, and inconvenience -- for small reductions in health and safety risks." Id. at 879. Of particular significance, economists have estimated the values people place on risk reduction based on the following factors: 1) the extra wages employers pay to induce people to take risky jobs; 2) the demand and price for products -- such as safer cars, smoke detectors, houses in polluted areas, and life insurance -- that enhance health and safety; 3) the tradeoffs people make among time, money, comfort, and safety -- in studies involving pedestrian tunnel use, safety belt use, speed choice, and drivers' travel time; and 4) surveys that ask people about their willingness to invest money to enhance their health or safety. Id. at 880-81.

However, there is no basic agreement among economists as to what elements  ought to go into the life valuation. There is no unanimity on which studies ought to be considered. There is a lack of reliability. In fact, Smith was prepared to testify based on seventy or eighty studies; Miller relies on twenty-nine; in Sherrod v. Berry, 629 F. Supp. 159, 163 (N.D. Ill. 1985), Smith testified on the basis of fifteen studies. Smith acknowledged that more studies could be done on the willingness-to-pay issue. In particular Smith noted that further studies will focus on a set of consumers to uncover when these consumers make or do not make choices for safety, and these results may help establish validity. The fact that the bottom lines of most studies (between less than $100,000 to more than $2,000,000) arguably do not wind up very far apart (by some definitions of "very far") may be coincidence and not the result of the application of a scientific method.

Survey of attitudes and views of others as a basis for concluding something is true is not  necessarily wrong. Some science as it comes into court is the result of consensus by practitioners of some area of expertise that a certain law of nature is correct. What is wrong here is not that the evidence is founded on consensus or agreement, it is that the consensus is that of persons who are no more expert than are the jurors on the value of the lost pleasure of life. Even if reliable and valid, the evidence may fail to "assist the trier of fact to understand the evidence or determine a fact in issue" in a way more meaningful than would occur if the jury asked a group of wise courtroom bystanders for their opinions.

February 22, 2018

Griego v. Douglas, 2018 U.S. Dist. LEXIS 26933 (D. N.M. 2018). Magistrate Judge Karen B. Molzen held that:

Plaintiff fails to provide a persuasive argument as to why this Court should depart from precedent and admit expert testimony quantifying hedonic damages. The Court expressly finds that any probative value of such quantifying testimony is substantially outweighed by a danger of unfair prejudice and misleading the jury, which collectively will be in the best position to make such an assessment. See Fed. R. Evid. 403. On the other hand, the risk of undue prejudice does not outweigh the probative value to the jury of qualitative expert testimony regarding the concept of hedonic damages and pointing out the areas to be considered in evaluating such damages. Thus, testimony by Dr. McDonald on hedonic damages will be limited to those areas only.

Judge Molzen also ruled that:           

While neither party addressed this specific topic in their filings, the probative value of testimony explaining how governmental agencies use the valuation of life in the context of public policy seems substantially outweighed by the danger of confusing the issues. The trier of fact needs not know how governmental agencies use such a valuation in order to grasp its concept and apply it to the case at hand.

March 3, 2018

In the Matter of Parker Drilling Offshore USA, 2018 U.S. Dist. LEXIS 32741 (W.D. LA 2018). This was a ruling in a personal injury case under the Jones Act, 49 U.S.C. § 30104, and general maritime law of the United States, 28 U.S.C. § 1333. The economic expert for the plaintiff was Dr. Charles O. Bettinger, III. The economic expert for the defendant was Dr. Kenneth J. Boudreaux. The damages portion of the decision related to issues of work-life expectancy and the use of a worker’s earnings history versus amount being earned at the time of injury by the worker. On both issues, federal judge Dee D. Drell held that Boudreaux was correct under 5th Circuit standards. Regarding work-life expectancy, Boudreaux had relied upon work-life expectancy tables produced by Ciecka, Donley and Goldman, Journal of Legal Economics, Vols. 9, No. 3 (Winter 1999-2000) and 10, No. 3 (Winter 2000-2001), while Bettinger had assumed that the plaintiff (Wilbert Mays) would have retired at “a normal male retirement age of 65.” Regarding work-life expectancy, Judge Drell said:

The court adopts Dr. Boudreaux's work life average and not a "normal male retirement age." Dr. Bettinger's assumption clearly does not take into account Mays' overall physical condition nor does it consider interim labor separations which are evidenced by Mays' own work history. These considerations are consistently noted as reasons why the Fifth Circuit in Culver II and the courts applying the Culver II framework adopt a work life average rather than a retirement age as the proper standard. 

The court adopted the Boudreaux earnings history approach rather than the Bettinger current-amount-being-earned approach, saying:

The record evidence shows Mays' work history was inconsistent and that he did not remain in employment within the oil and gas industry for any significant period of time. Thus, we determine a figure commensurate solely with his income in 2013 to be significantly inflated. We also find that Dr. Boudreaux's use of an average of Mays' earnings over an eight year period is fair and equitable as it even takes into consideration years where his pay was much higher. Additionally, by taking an average of eight years, versus the usual five, less weight is afforded to year five (2009) when Mays did not earn any income.

In a footnote, a number of decisions were cited indicating that use of averages based upon a worker’s earnings history was to be preferred.

Starling v. Banner Health, 2018 U.S. Dist LEXIS 28747 (D. AZ 2018). This order of Federal Judge Neil V. Wake granted a defense motion to exclude the hedonic damages testimony of Dr. Stan V. Smith in this wrongful termination case, citing particularly Dorn v. Burlington N. Santa Fe R.R. Co., 397 F.3d 1183, 1195 (9th Cir. 2005) (dictum), but also Stokes v. John Deere Seeding Grp., No. 4:12-cv-04054-SLD-JAG, 2014 WL 675820, at *5 (C.D. Ill. Feb. 21, 2014) (quoting Ayers, 887 F. Supp. at 1060). Smith had assumed a 25 percent reduction in the plaintiff’s enjoyment of life about which Judge Wake said:

Moreover, the arbitrariness of the "conservative" 25 percent reduction is troubling. As before, Smith "provides no explanation or method for calculating the conservative factor based on data or theories originating from economic research, leaving the Court with no option but to conclude that the conservative value is derived through unmethodical, subjective 'eyeballing.'" . . . Smith admits that he is conservative when approaching "matters that don't have a high degree of specificity." (Doc. 216-1, Ex. A at 153:2-4.) Although experts need not be certain, Smith does not point to anything justifying the manner in which he exercises this conservative discretion.

Judge Wake also responded to Smith’s claim that approximately 224 state and federal courts had admitted Smith’s hedonic damages testimony, as follow:

Starling points out that Banner did not offer a rebuttal expert opinion on Smith's methodology. The law does not require it to offer such a witness. Starling also posits, based on Smith's declaration, that Smith's "hedonic damages testimony has been allowed by approximately 224 state and federal courts around the country." (Doc. 230 at 12.) Yet Starling does not demonstrate that any of those courts discussed or considered the cases discussed above and in Banner's briefing. He does not describe Smith's role in those 224 cases or the testimony that Smith gave.

Banner Health also challenged Smith’s testimony about the lost earnings of the plaintiff. Smith’s testimony about front pay was excluded on the basis that front pay is an equitable remedy only to be determined after a jury’s verdict, but that Smith could testify about back pay. 

Case v. Town of Cicero, 2013 U.S. Dist. LEXIS 148565 (N.D. IL 2013). This decision severe  ly limited the hedonic damages testimony of Dr. Stan V. Smith to explaining what hedonic damages mean and the general factors that are ordinarily considered as part of such damages. However, “No dollar amount of damages may be cited, nor may Smith propose any methodology by which the jury should calculate Nicholas’ hedonic damages.”

March 9, 2017

Smith v. Auto-Owner’s Insurance Company, 2018 U.S. Dist. LEXIS 6970 (D. N.M 2018). This was an order of Federal Judge Stephan D. Vidmar that responded to a number of different motions in limine, one of which was a request to exclude “any expert testimony or evidence attempting to quantify hedonic damages.” Judge Vidmar indicated that the plaintiff made no substantive argument in opposition to this or eight other proposed exclusions and granted all nine exclusions asked for by the defendant. The real focus of this order was on testimony by medical providers, which was discussed in greater detail. There was no indication in the decision that the plaintiff had retained an economic expert to testify about hedonic damages.

Burns v. Pohto, 2016 U.S. Dist. LEXIS 193142 (D. CO 2016). This decision involved the wrongful death of a minor subject to Colorado law. U.S. Magistrate Judge Nina Y. Wang described recoverable damages as follows:

The net economic loss, if any, incurred in a wrongful death of a child is the reasonable value of any services that J.B. would have provided and earning he might have made as a minor, together with any support he might reasonably have been expected to provide Plaintiffs after he became an adult, less the expenses Plaintiffs might reasonably have incurred in maintaining J.B. and providing him an education. CJI-Civ. 10:4 (2016). In addition, funeral expenses are also recoverable as economic damages.

March 16, 2018

Ward v. Consolidated Rail Corporation, 2003 Mich. App. LEXIS 1865 (MI App. 2003). This decision involved the question of whether Tier I and Tier II payroll taxes are taxes or contribution made by railroad workers that are analogous to private pension payments in other industries. This court said:

Defendant relies on Norfolk & Western Railway Co v Liepelt, 444 U.S. 490, 493-495; 100 S. Ct. 755; 62 L. Ed. 2d 689 (1980), in which the Supreme Court ruled that in cases brought under the FELA, the jury can be instructed regarding the effect of income taxes on the plaintiff's estimated future earnings. Evidently, defendant analogizes the taxes at issue in Norfolk with the pension contributions in the instant case. Defendant also cites Rachel v Consolidated Rail Corp, 891 F. Supp. 428, 431 (ND Ohio, 1995), in which the court ruled that an economist must deduct pension contributions from his calculations of a plaintiff's projected future earnings. However, in Maylie v Nat Railroad Passenger Corp, 791 F. Supp. 477, 488 (ED Pa, 1992), the court found that "because defendant did not consent to inclusion of the value of the [plaintiff's] pension as an item of damages, it was not error to refuse to reduce plaintiff's lost wages by the amounts he would have had to pay in railroad retirement taxes." The court stated that "it would be inappropriate to deduct from plaintiff's lost salary taxes that, in effect, represented plaintiff's contribution toward a pension without including, as an item of damages, the value of that pension." Id. Here, there is no evidence that defendant consented to the inclusion of lost pension benefits as an item of damages. Therefore, under Maylie, no error occurred in the instant case. Moreover, the [*31]  Maylie court noted that the Liepelt case was inapplicable to the issue of railroad pension contributions. Id. at 487. See also Norfolk & Western Railway Co v Chittum, 251 Va 408, 416; 468 S.E.2d 877 (1996).

March 24, 2018

Castro v. Melchor, 2018 Haw. LEXIS 60 (HI 2018). This decision held that it was in error for the trial court to have awarded hedonic (loss of enjoyment of life) damages to the estate of an unborn fetus, but affirmed all other aspects of the trial court decision. The trial court had awarded $250,000 for the hedonic damages of an unborn fetus carried by Leah Castro, an inmate at a state correctional facility. The decision discussed the interaction of the state’s survival act and wrongful death act at some length in arriving at this decision. An economist was not mentioned in the decision.

March 25, 2018

Wisconsin Central LTD. v. United States, 856 F.3d 490 (7th Cir. 2017). The 7th Circuit held that the value of stock options paid to workers was subject to Railroad Retirement payroll taxes, thus treating stock options as equivalent to money payments for that purpose.

Union Pacific v. United States, 865 F. 3d 1045 (8th Cir. 2017). This decision reversed a District Court decision holding that Union Pacific was not owed a refund for railroad retirement taxes paid by the Union Pacific from 1991 to 2007 based on stock options paid to employees and ratification payments paid to union-member employees for ratifying contracts between the union and employer railroads. The 8th Circuit held that the language of the Railroad Retirement Tax Act (RTTA) was limited to money paid for time worked in railroad employment. Since stock was not “money” and ratification payments were not paid for work provided, neither should have been subject to railroad retirement taxes. 

March 26, 2018

Toor v. Homegoods,Inc., 2018 U.S. Dist. LEXIS 24901 (D. NJ). The testimony of Dr. Anthony M. Gamboa was excluded in response to a defense motion in limine. The defense economic expert was Chad Staller,  District Judge Anne E. Thompson said:

The Court first turns to fit: whether Dr. Gamboa's report and proffered testimony is a reasonable measure of post-injury work life expectancy, as tailored to Mr. Toor. The disability questions in the ACS are generalized, ambiguous, yes or no questions. Question 17 asks, "Because of a physical, mental, or emotional condition, does this person have serious difficulty concentrating, remembering, or making decisions?" (ACS at 9, Ex. E, ECF No. 20-5.) Subparts of question 17 and question 18 then ask whether this "physical, mental, or emotional condition" limits the individual's everyday activity. (Id.) These questions do not parse between types of impairments or causes of disability, and there is no objective measure for individuals answering the survey to determine what qualifies as a condition or limitation. (See Defs.' Mot. at 16.)

The employment questions are similarly imprecise. Question 33 asks whether someone was temporarily absent from a job, with the option "Yes, on vacation, temporary illness, maternity leave, other family/personal reasons, bad weather, etc.," or "No." (ACS at 10.) Other questions ask how long the person has worked in recent time periods. (Id.) As Defendants note, responses to these questions do not "go to the issue of future employment," and "the answer does not give any information about the reason for why someone is not working." (Defs.' Mot. at 11.) Moreover, longitudinal data would better assist the jury in determining. Mr. Toor's future work life expectancy. (See id. at 15 ("Dr. Gamboa makes predictions about how long Mr. Toor will work based upon . . . one year's worth of data . . . . Logically, the ACS data cannot predict future work life data, as the ACS does not follow individuals who respond to a given year's survey across additional years.").)

Dr. Gamboa's proposed testimony based on the ACS is not a reasonable measure of damages for Mr. Toor and his injury. Mr. Toor continues to work as a software engineer, has lost no time at his job, and has received a promotion. Generalized community data is insufficiently tailored to these facts as presented, and therefore, will not assist the jury in the determination of a damages award. Having found this report is not an appropriate fit for this case due to its irrelevance and lack of value to the jury, the Court need not address whether Dr. Gamboa is qualified or whether Dr. Gamboa's ACS methodology is reliable. (See Defs.' Mot. at 19-22; see also Vocational Economic Assessment for Ali Toor at 14, 16 (report discussing how it meets the evidentiary Daubert and Khumo requirements).) On balance, Dr. Gamboa's testimony should not be admissible at the trial of this case.

March 29, 2018

Associated Terminals of St. Bernard, LLC v. Potential Shipping HK CO. LTD, 2018 U.S. Dist. LEXIS 51219 (E.D. LA 2018). This judge-tried ddecision provides a particularly interesting discussion of what is required for a court to award lost household services in a maritime case governed by the Longshore and Harbor Worker's Compensation Act ("LHWCA"). The court focused on the types of evidence that needed to be provided, but was not provided in this case by an injured plaintiff third party intervenor Jamaal Ford. The court indicated that the record must contain evidence of the household services that the injured person provided before his injury, the household services the injured person is now unable to perform, and the cost of those household services. Judge Africk indicated that the only evidence provided in this case was that Ford testified that he was unable to cut his lawn and was paying someone $40 to do so, but did not indicate how often the lawn was being cut.  Life care planning expert Dr. Todd D. Cohen valued Ford’s lost household services as “about $1,200, $1,300 per year,” which Judge Africk found insufficient to support an award for lost household services. Judge Africk awarded $120 per month to cover lawn cutting, but indicated that this award did not cover “weed eating, car maintenance, heavy home cleaning, cleaning gutters, picking up branches,” for which there was no evidence provided.  

April 1, 2018

Teenier v. Charter Communications, Inc., 2017 U.S. Dist. LEXIS 115441 (E.D. MI 2017). The defense moved to exclude the testimony of Dr. Frank Stafford on the basis of four methods that the Court found inadequately explained to be admissible: (a) Stafford had projected that the plaintiff would have worked to age 67 without any explanation for why he chose that age; (b) Stafford had projected a future inflation rate of three percent, again without any explanation for that assumed percentage; (c) Stafford had projected loss of job-related fringe benefits, which the Court indicated did “not appear to rise to the intellectual rigor expected from a forensic economist;” and (d) Stafford had reported plaintiff’s earnings in a manner inconsistent with plaintiff’s W-2's without offering any explanation for the conflicting numbers. With respect to work-life expectancy, the Court pointed out that Stafford had referenced an article indicating a retirement age of just over 64.5 years, but did not identify the study. The Court indicated that Stafford would have to submit an amended report that corrected these deficiencies in order to be allowed to testify, with the limitation that all information provided in Stafford’s revised report must have been available at the time Stafford’s report was issued to avoid any surprises.

April 4, 2018

Williams v. Central Contracting & Marine, Inc., 2018 U.S. Dist. LEXIS 56752 (S.D. IL 2018). This was a decision of Federal District Judge Staci M. Yandle. Judge Yandle found the testimony of Dr. Rebecca Summary, plaintiff’s economic expert, to be credible with respect to plaintiff’s past lost wages and fringe benefits, but noted that Dr. Summary had not identified what minimum measure of future post-injury earnings Dr. Summary had assumed. Judge Yandle rejected Dr. Summary’s calculations of past loss of household services at $9,783 and future loss of household services at $196,901 based upon the fact that she had not identified Williams can actually perform. Judge Yandle noted that Williams had testified about the wide range of functions he can perform around the house. Judge Yandle also noted that Dr. Summary had relied upon “an unidentified ‘economics firm in Kansas City’ that takes the ‘American Time Use Survey’ and for different categories of people (single male, married male, etc.) provides ‘what the value of their household services would be[.]’”

April 10, 2018

Plantation General Hospital v. Belzi, 2018 Fla. App. LEXIS 4650 (FL App 2018). An unnamed economist was not permitted to testify about dollar values for lost companionship and lost advice and counsel in a Florida medical malpractice wrongful death action. The Court of Appeals indicated that: “The [Florida] Wrongful Death Act allows recovery for loss of support and services, but places loss of companionship and guidance within the same category as pain and suffering, which are non-economic damages.” The Court of Appeals went on to say:

The loss of consortium of a spouse cannot be equated, as the economics expert sought to do in this case, with a paid companion of a nursing home or assisted living patient. To do so denigrates the marital relationship. "Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred." Laird v. State, 342 So. 2d 962 (Fla. 1977) (quoting Griswold v. Connecticut, 381 U.S. 479, 486, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965)). To suggest that such a relationship can be replaced by a paid companion, thus creating an economic loss, is contrary to all legal precedent; indeed, it goes against social and moral understanding of the unique and special nature of the marital relationship. The same may be said of the loss of companionship and guidance of a parent for a child. While we recognize that the legislative cap of $250,000 for both loss of companionship and pain and suffering may appear woefully inadequate in circumstances of the death of a spouse or parent, the supreme court has held the statute constitutional. . . . Any change in that amount must come from the Legislature.

April 24, 2018

Noel v. Inland Dredging Company, LLC, 2018 U.S. Dist. LEXIS 67768 (E.D. LA 2018). This memorandum granted a defense motion to exclude testimony based upon the Gamboa Gibson Worklife Tables by both vocational expert Glen Hebert and economic expert G. Randolph Rice. Federal Judge Sarah S. Vance said:

Hebert's report quotes the Gamboa Gibson treatise for the proposition that "[d]isability significantly reduces both earnings and worklife expectancy," but Hebert does not explain how plaintiff's particular disability is likely to affect his individual work-life expectancy. Individuals can be classified as disabled for many different reasons, with widely varying possibilities of returning to work. Even assuming that the Gamboa Gibson tables accurately reflect the average work-life expectancy of disabled versus non-disabled populations, plaintiff fails to show that these tables can reliably predict the future work-life expectancy of a specific person. See Lackey v. Robert Bosch Tool Corp., No. 16-29, 2017 WL 129891, at *10 (E.D. Ky. 2017) (excluding expert testimony based on the Gamboa Gibson tables because the expert "grouped [plaintiff] 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"). Accordingly, the Court finds that Hebert's opinion as to plaintiff's reduced work-life expectancy is unreliable, and thus inadmissible.

Judge Vance indicated that Rice could also not testify based on the Gamboa Gibson Worklife Tables, but that:
 
In the alternative, Dr. Rice calculates plaintiff's future earnings if he continues to work for another 20.87 years. This reflects the future work-life expectancy of an individual of plaintiff's gender, age, and education, according to a Bureau of Labor Statistics study.34 The parties have not suggested that the Bureau of Labor Statistics data is unreliable. Dr. Rice may rely on the Bureau of Labor Statistics work-life expectancy data in his testimony as to plaintiff's future economic loss.

April 28, 2018

Hartness v. Union Pacific Railroad Company, 2008 U.S. Dist. LEXIS 106319 (E.D. AR 2008). In this memorandum, Judge Garrett Eisele tentatively excluded the testimony of Bob White, a vocational expert, that the plaintiff would have retired at age 62. Judge Eisele said:

It appears, based on the record, that Dr. Schoedinger has provided no opinions regarding Plaintiff's current physical limitations, no disability rating, and has offered no medical testimony to support the conclusion that Plaintiff must retire at age 62. Mr. White indicates in his Affidavit that "Mr. Hartness was advised in 2006 by his treating doctor, George Schoedinger, M.D., not to attempt to return to his railroad occupation." [Footnote removed] As Union Pacific points out, however, this portion of Dr. Schoedinger's deposition testimony simply states that Plaintiff "may be forced to discontinue railroad work." But, this "may be" opinion is arguably undercut by Dr. Schoedinger's subsequent decision to to return Plaintiff to work without limitation. There is nothing in the record before the Court to indicate that Dr. Schoedinger believes that Plaintiff's medical condition will render him unable to perform his current job duties beyond the age of 62.

In the absence of some medically supportable basis for his prediction that Plaintiff will not be able to perform any work beyond the age of 62, the Court can not allow Mr. White to testify that in his opinion Plaintiff's best case scenario is retirement at age 62. Plaintiff has failed to establish that Mr. White, a vocational rehabilitation expert, is qualified to make this prediction.

Judge Eisele indicated that he was willing to hold a pre-trial hearing to consider whether White’s testimony would ultimately be allowed. 


May 2, 2018

Martin v. United States, 448 F. Supp. 855 (E.D. AR 1977).  This FTCA case involved the wrongful deaths of a number of individuals in an airplane crash. Several different economic experts were involved, including Dr. Raleigh Ralls, a well-known economic expert at the time. The decision was governed by Arkansas law. In the decision, loss of financial support was determined on the basis of after-tax income of the decedents. 

May 3, 2018

Castro v. Melchor, 2018 Haw. LEXIS 54 (HI 2018). This decision upheld the trial court and Hawaii Court of Appeals decision to allow the estate of a viable unborn fetus to recover $250,000 for the fetus’s loss of enjoyment of life and that an award in that amount was not in error even though no evidence was presented to justify that amount. An economist was not mentioned in the decision. Earlier decisions of the Hawaii Supreme Court that loss of enjoyment of life of decedents may be recovered, but economic testimony regarding dollar amounts is not admissible.

May 5, 2018

Dorman v. Anne Arundel Medical Center, 2018 U.S. Dist. LEXIS 75560 (D. MD 2018). This case involved losses resulting from a birth injury that would permanently affect the child’s mobilitity. The plaintiff proffered testimony from both Dr. Tanya Rutherford Owen, a vocational expert and Dr. Patricia Pacey, an economic expert. Federal District Judge Marvin J. Garbis denied a defense motion to exclude the testimony of Dr. Owen, but limited the testimony of economist Dr. Patricia Pacey to providing a projection of the value of lifetime earnings of healthy male college graduates and precluded her testimony regarding reductions in those earnings based upon assumed disabilities of the plaintiff. Judge Garbis explained his reasoning as follows:

It appears clear any possible economic evaluation methodology would reasonably find that a mobility disability, such as the one that B.M. has, will cause some future income loss. The question is how that future income loss can be reliably measured. The Court is troubled by the specificity of Dr. Pacey's opinion that B.M. would suffer a "16.9%" loss of income over his lifetime because Dr. Pacey's methodology does not appear to be based on any equally specific analysis. Dr. Pacey used Census Bureau data (and other sets of similar data) to compare the lifetime income of (1) a healthy, able-bodied male with a college degree with (2) a "moderately disabled" male with a college degree. Because disabilities come in all types, this broad comparison of "healthy" to "moderately disabled" is unreliable and speculative. As an example, Dr. Pacey does not account for differences between mobility disabilities and cognitive disabilities, or between mobility disabilities and other physical disabilities such as eye or hearing disabilities. The nature of those disabilities would naturally change the nature of any occupation that those individuals choose. Dr. Pacey also does not adjust the data for any other factors (beyond assuming that B.M. will get a bachelor's degree), including, for example, the degree of disability, the age of disability onset, or the nature of the relevant occupation.

Owen’s proffered testimony was based on a Vocational Worksheet that explained four factors she used to arrive at her opinion that the plaintiff child would “sustain some loss of earning capacity,” but no details were provided in the decision. Judge Garbis’ cited two previous decisions that are discussed in this paper: Kempf Contracting and Design, Inc. v. Holland Tucker (2008) and Phillips v. Industrial Machine (1999). Both of those decisions involved rejection of testimony based on the Gamboa-Gibson disability worklife expectancy tables. However, Judge Garbis did not explicitly indicate whether Dr. Pacey had assumed a reduction in work-life expectancy for the child and, if so, how much of a reduction, in arriving at her overall conclusion that the child’s earning capacity had been reduced by 16.9%. 

May 8, 2018

D’Ambrosia v. Lang, 985 So. 2d 800 (LA App. 2008). The Louisiana Court of Appeals described the role of vocational expert Thomas Meunier in this case as follows:

A vocational rehabilitation  counselor considers age, academic achievement, and skill level involved in the training, ultimate career goal, and physical ability to do that type of job. With someone without an established earning capacity, a vocational counselor typically considers tables used by governmental entities as well as by his profession. Typically, he uses tables that outline earnings and average earnings for different occupations.

He also looks at the physical demands of an occupation--in this case an orthopedic surgeon. The United States Department of Labor publishes The Dictionary of Occupational Titles that describes the physical, intellectual, and aptitude demands of a career. The Department of Labor also publishes an Occupational Outlook Handbook which describes the demand for certain occupations, the working conditions, and earnings by region.

Mr. Meunier uses work-life expectancy tables for people with severe disabilities, and non-severe disabilities compared to people of the same age and level of education. Through this means, he determines a difference in work life. This can be done for a child, a teenager, or someone who is still in school and who has not actually earned money. It is accepted  in his profession to be able to project those types of earnings based on intelligence, physical ability, demand for the occupations, and similar factors. He reviews information from the treating physicians, such as functional impairments.
   
May 9, 2018

Critical Path Resources, Inc. v. Cuevas, 2018 Tex. App. LEXIS 2253 (TX App. 2018). This decision involved an explosion that injured Torres Rodriguez. One of the issues the Court of Appeals addressed was the factual sufficiency for an award of $3,810 for past loss of household services and $61,444 for future lost household services to Branca Rodriguez. An economic expert was not involved, but the Court held that “juries can apply their own experience to estimate the value of household services that would have been rendered by the injured person even without proof of their value.” The award was to the wife of the injured man, who has had to provide household services that her husband would have provided and will be required to do so in the future.

May 11, 2018

Webster v. Center for Diagnostic Imaging, Inc., 2018 U.S. Dist. LEXIS 78018 (S.D. IN 2018). The Plaintiff challenged Thomas Ireland’s use of Webster tax returns to determine earnings losses the plaintiff. Judge Jane Magnus-Stinson denied this motion in limine, saying:

The Court concludes that the general method of using tax returns to determine the value of Ms. Webster's lost wages is sound--indeed, the Court is hard-pressed to identify a better way make such calculations. [Footnote removed.]  However, the issue of whether Mr. Ireland correctly computed calculations to arrive at his conclusions will be left to the jury after the Websters have been afforded the opportunity to cross-examine him at trial.
   
May 12, 2018

Parekh v. Argonautica Shipping Invs., B.V., 2018 U.S. Dist. LEXIS 341700 (E.D. LA 2018). This was a maritime wrongful death action. The surviving widow tried to argue that her husband had a work-life expectancy to age 75. Federal Judge Susie Morgan said:

The Court finds, even weighing all evidence in favor of Plaintiff, that she has not created a genuine dispute of material fact regarding Captain Parekh's capability of working longer than his statistical work-life average. Under Madore, Plaintiff must provide "evidence that a particular person, by virtue of his health or occupation or other factors, is likely to live and work a longer, or shorter, period than the average."None of Plaintiff's evidence does so. First, Plaintiff's self- serving affidavit is not persuasive summary judgment evidence. The Fifth Circuit rejects attempts to defeat summary judgment by the submission of self-serving affidavits and testimony. [] Captain Parekh was employed in a highly dangerous, physically demanding field. As the Fifth Circuit stated, an employee in such a field "might have become disabled before [his intended retirement] as a result of illness or some other misadventure [].  [Plaintiff] presented no evidence that such events were particularly unlikely given his health or other factors.  In this case, Plaintiff has likewise failed to provide evidence that "such events were particularly unlikely" to occur with respect to Captain Parekh. [Footnotes removed.] []

Without expert testimony, medical records, or other valid summary judgment evidence to describe the state of Captain Parekh's health and the nature of his duties, Plaintiff's submissions do not amount to more than the assertion that Captain Parekh "had no plans to retire and intended to work for the rest of his life." This does not "fully develop[] the evidentiary basis for [a] departure" from the work-life expectancy average. Although under Deperrodil the Fifth Circuit does not mandate that Plaintiff hire a vocational rehabilitation expert in order to meet the Madore standard, Plaintiff must provide evidence that explains why Captain Parekh was "likely to live and work [] longer" than the statistical average. The Court finds Plaintiff has failed to create a genuine dispute of material fact with regard to Captain Parekh's likelihood of working longer  than the average work-life expectancy. Defendant is entitled to a ruling that Plaintiff may only recover loss of support damages consistent with average work-life expectancy. [Footnotes removed.] 

Deperrodil v. Bozovic Marine, Inc., 842 F.3d 352 (5th Cir. 2016). This was an appeal by a defendant of a district court decision under the Longshore and Harbor Workers’ Compensation Act (LHWCA) that had projected the work-life of the decedent to have been to age 75. In affirming the district court’s determination of age 75 retirement, the court said:

Courts use work-life expectancy data to calculate future earnings, unless there is evidence supporting a variation from the average. E.g., Madore v. Ingram Tank Ships, Inc., 732 F.2d 475, 478 (5th Cir. 1984). "Such an average is not conclusive. It may be shown by evidence that a particular person, by virtue of his health or occupation or other factors, is likely to live and work a longer, or shorter, period than the average." Id. (emphasis omitted).

According to BLS data, dePerrodil had a work-life expectancy of 72 years. At trial, however, dePerrodil presented a vocational-rehabilitation counselor as an expert witness. She interviewed dePerrodil on two occasions and reviewed his medical history. She concluded it was "very reasonable" dePerrodil would work until age 75; this conclusion was based on: dePerrodil's testimony that he and his wife had an agreement he would work until age 75; his work history; his earnings records; and his healthcare providers' recommendations for future treatment. DePerrodil's expert economist then provided the court with two calculations, one using BLS' age-72 work-life expectancy; the other, the vocational counselor's age-75 expectancy. With both calculations before it, the court awarded future lost wages based on an age-75 retirement. 
 
May 13, 2018

Faulkenberry v. Yost, 2018 U.S. Dist. LEXIS 1248, 2018 WL 297615 (W.D. TX 2018). Regarding work-life expectancy, Federal Judge Sam Sparks said:

At trial, Faulkenberry produced no evidence as to work-life expectancy, except to testify he hoped to work until age 65. Trial Tr. of Sept. 18, 2017 at 114. He did not offer expert testimony as to his work-life expectancy, nor did he provide testimony or evidence as to the average statistical work-life expectancy of someone in his line of work. See Trial Tr. of Sept. 18, 2017 at 43 (testifying work at the chop shop required substantial "physical strength" because inventory pieces weighed 25 to 50 pounds on average); cf. Barto v. Shore Constr., LLC, 801 F.3d 465, 475 (5th Cir. 2015) (holding testimony plaintiff wants to work until a particular age is insufficient to rebut presumption the average work-life expectancy should apply). Finally, Faulkenberry presented no evidence of applicable discount rates to allow the jury to properly discount the award to present value.

Barto v. Shore Constr., L.L.C., 801 F.3d 465 (5th Cir. 2015). At issue in this appeal by the defense  of the district court’s decision was the work-life expectancy of the plaintiff. The 5th Circuit said:

A damages award for future lost wages should generally be based upon a seaman's work-life expectancy, meaning "the average number of years that a person of a certain age will both live and work." Madore v. Ingram Tank Ships, Inc., 732 F.2d 475, 478 (5th Cir. 1984). "Such an average is not conclusive. It may be shown by evidence that a particular person, by virtue of his health or occupation or other factors, is likely to live and work a longer, or shorter, period than the average." Id. "Absent such evidence, however, computations should be based on the statistical average." Id.[]

[T]he district court noted that expert economists provided wage loss estimates for work-life expectancies of age 55 to "age 67, which is the Social Security requirement age for Mr. Barto." The district court then said, "What I'm going to do is award something in the middle. I think that's a reasonable estimation of his loss of future earning capacity." Accordingly, the district court awarded Barto $300,000 for future lost wages. McDermott argues that  the district court erred by relying upon an above-average work-life expectancy.

The 5th Circuit held that the trial court was in error using an above average for work-life expectancy without supporting evidence and reduced the award for lost future earnings to an assumed work-life expectancy to age 55.8. 

May 23, 2018

Seme v. Safran, 2012 U.S. Dist. LEXIS 199285 (D. NJ 2012). This was a motion granting a defense motion in limine to exclude testimony of Andrew Verzilli on loss of household services. Verzilli had assumed a 50% reduction in the plaintiff’s ability to provide household services.  Federal Judge Joseph E. Irenas said:

Mr. Verzilli's assumption that Plaintiff suffered a 50% reduction in her ability to perform household chores has no factual basis in the record. Although Dr. Friedman analyzed Plaintiff's ability to ballroom dance, waitress, and ride motorcycles, he did not opine on Plaintiff's ability to perform household chores. Moreover, Plaintiff's deposition testimony provides no further factual basis with which to calculate the fraction of household services.  Plaintiff is currently able to perform. Mr. Verzilli's assumption, absent some sort of factual foundation, will only serve to mislead the jury. Accordingly, to the extent Mr. Verzilli's opinion relies on the assumption that Plaintiff's ability to perform household services was reduced by 50%, Defendants' Motion will be granted.