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.

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).

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.

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).

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.

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.

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.

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 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.

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.

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.

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.

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).

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.

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.

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.

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.

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.

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%. 

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.

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.

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.] 

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. 

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.

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.

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.

Both [James] Mandel and the defendant's expert, Dr. Kenneth Boudreaux, testified that Madore had a worklife expectancy of 25.8 years, basing their opinions on the worklife expectancy rates compiled by the United States Department of Labor.  No evidence was adduced to show that Madore's personal characteristics were likely to give him a longer worklife. Yet the district court based the award on a worklife expectancy of 30.8 years, presumably because Madore would reach age 65 at that time. 

This was erroneous.  Even if retirement age for Madore could be anticipated to be age 65, it is far from certain that, even in the absence of this injury, he would have continued to work until that time.  He might have, as some workers do, decided to retire early.  He might have become disabled before then as a result of illness or some other misadventure.  He might have died before then.  The phrase "work-life expectancy" literally reflects its meaning: the average number of years that a person of a certain age will both live and work.  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.  Absent such evidence, however, computations should be based on the statistical average.

In computing the loss of future earnings, gross earnings should not be used.  Unless the amounts the worker would have been required to pay in income taxes and social security taxes is negligible [citation footnote removed] or should, for some articulated reason, be disregarded, the lost income stream must be computed after deducting the income taxes and social security taxes the worker would have paid had he continued to work, for he is entitled only to be made whole for what he has lost, his net income. 

If the deceased is under the age of eighteen, there shall be a rebuttable presumption that the annual pecuniary losses shall be calculated based on the annual income of the deceased’s parents, provided that if the deceased has only one parent earning income, then the calculation will be based on such income, but if the deceased had two parents earning income, then the calculation will be based on the average of the two incomes.

Dr. Krueger's calculation based on Ms. Hughes's income was of sufficient weight to assist the jury in determining an appropriate amount of pecuniary losses authorized under section 537.090. Likewise, his methodology in reaching his estimate was reasonable within the statute's plain language.   
   
Given the nature of Dr. Krueger's challenged testimony as establishing a rebuttable presumption under the statute, Midwest and Dr. Niedens had the opportunity to challenge Dr. Krueger's testimony, to point out any weakness and aid the jury in determining the appropriate weight to give his opinion. See Deck v. Teasley, 322 S.W.3d 536, 539 (Mo. banc 2010). In point of fact, Midwest and Dr. Niedens did successfully challenge the evidence through cross-examination of Dr. Krueger as the jury's award of pecuniary losses was much less than the section 537.090 presumed pecuniary loss calculation arrived at by Dr. Krueger.

[G]iven the 5.6-year gap in employment right before he was injured, it is very difficult to determine with any degree of reasonable probability, any post-injury loss of earning capacity. However, this Court does not find it unreasonable to think that Mr. Smith, at age forty-one, may have returned to the work force at least on some intermittent basis. But, it is speculative.[]
   
The Court finds that any post-injury earning loss, which is very hard to predict, can be compensated by actually earning post-injury wages. The Court therefore does not award any damages for loss of earning capacity.

[T]o the extent that the Defendants criticize Ms. Ford’s use of a United States Life Table by noting that she “made an assumption that Plaintiff’s working career would have been 6.7 years shorter than it would have been if the accident had not happened,” (see Mem. in Supp. of Mot. To Exclude [D.N 49-1], the Court finds that the criticism fails. Courts have often found life tables to be a reasonable estimate of life expectancy, even while acknowledging that their predictions are not absolute. See, e.g., Knierem v. U.S. Gov’t Dep’t of Navy, 802 F. Supp. 2d 965, 972 (S.D. Ind. 2011) (citing cases).  Indeed, other than Defendant’s bald assertion, nothing indicates that the table in Ms. Ford’s report is unreliable – or that it fails to accurately portray the U.S. Censuse Bureau’s data.

Because the entire $360,488 awarded to Williams will be treated as pay for time lost for purposes of determining her benefits under the RRA, we conclude that the entire $360,488 should also be treated as pay for time lost for purposes of the RTTA and, therefore, is subject to withholding of  taxes. See 45 U.S.C. § 231(h)(2); Heckman; and Liberatore.

While plaintiffs argue that Hosfield did not independently review the data contained on the spreadsheets upon which he relied, Hosfield testified that information was consistent with deposition testimony and exhibits that he reviewed. (Mem. at Ex. 1, 137:17-23 and 140:1-3.) "[A]n expert witness is not required to verify all the facts on which he relies." Tilstra, 791 F.3d at 753; see also Minemyer v. B-Roc Representatives, Inc., No. 07 CV 1763, 2009 U.S. Dist. LEXIS 103933, 2009 WL 3757378, at *7 (N.D. Ill. Oct. 29, 2009) ("[T]here is no overarching general requirement, applicable in all cases, that a financial or economic expert independently verify each entry or document on which he bases his opinion."); Tuf Racing Prods., Inc. v. American Suzuki Motor Corp., 223 F.3d 585, 591 (7th Cir. 2000).

The second issue presented by this motion to dismiss is whether or not "loss of enjoyment of life" or in other words, hedonic damages is to be considered a distinct item of damages, separate and apart from pain and suffering, under Illinois law as requested in Counts VIII, IX and X.  In determining the recoverability of hedonic damages under Illinois law, it is important to distinguish between claims brought under the Illinois Survival Act, 755 ILCS 5/27-6 (1992), and claims brought under the Illinois Wrongful Death Act, 740 ILCS 180/1, 180/2 (1992).  "A survival action allow for recovery of damages for injury sustained by the deceased up to the time of death; a wrongful death action covers the time after death and addresses the injury suffered by the next of kin due to the loss of the deceased rather than the injuries personally suffered by the deceased prior to death." Wyness v. Armstrong World Indus., 131 Ill. 2d 403, 546 N.E.2d 568, 571, 137 Ill. Dec. 623 (1989). Based upon the few decisions that have addressed the issue, it is clear that  damages for loss of enjoyment of life are not recoverable under the Illinois Wrongful Death Act. Gonzalez v. City Wide Insulation, 1990 U.S. Dist. LEXIS 6360 *1, No. 88 C 1299, 1990 WL 77525, at *4 (N.D. Ill. May 25, 1990)(finding that Wrongful Death Act "does not provide for recovery of hedonic damages for recovery of hedonic damages in light of the fact that it was designed to 'compensate the surviving spouse and the next of kin for the pecuniary losses sustained due to the decedent's death.'"). However, such damages are recoverable in survival actions -- at least "to some extent. . . ." Fetzer v. Wood, 211 Ill. App. 3d 70, 569 N.E.2d 1237, 1245, 155 Ill. Dec. 626 (2d Dist. 1991).

The Court finds Dr. Smith's characterization of Plaintiff's spine injury as "disabling" to be a medical opinion and the Court will preclude him from such a characterization. Similarly, the Court will bar Dr. Smith from suggesting that a disability can be inferred from Plaintiff's "back or spine problems." Dr. Smith's opinion about the nature of Plaintiff's injuries should be stricken, but the fact that the existence of a disability could result in a net lost earning capacity is precisely the type of opinion on which an economist may opine in a personal injury case.
 

Defendants may seek to present argument and evidence surrounding reasonable cost of reasonably necessary medical care, including the availability of insurance benefits under the ACA. In seeking to exclude evidence and argument that the ACA may cover I. Perez's future care costs, Plaintiffs contend the argument is speculative because Defendant provides no evidence to support the ACA's viability. The Court finds Plaintiffs argument surrounding the viability of the ACA goes to the weight of any evidence or argument presented by Defendant on the issue. Accordingly, Plaintiffs' motion is DENIED.

The Fifth Circuit has never permitted a plaintiff's expert to cherry-pick earnings from a year other than the year the injury occurred without providing any rationale.  In its order granting GLDD's motion in limine in part, the Court noted Lawrence's failure to provide such a rationale, observing that Lawrence has not "provide[d] the Court with any explanation as to why the 2013 figure is a more reasonable starting point than, say, plaintiff's 2015 earnings, or an average across the four years."[ ] Additionally, the Court expressed skepticism about the validity of the use of the 2013 figure.[ ] In his present motion, Lawrence once again fails to offer any explanation as to why he asked Wolfson to deviate from the general rule stated in Culver II. The Court thus concludes that Lawrence has not suffered any injustice as a result of its prior order. [Footnotes removed.]

Watts asserts the section 538.220 periodic payment schedule was arbitrary and unreasonable in that it does not assure full compensation due to the low interest rate and 50-year payment schedule. The jury, as required by section 538.215, discounted Naython's future medical damages to present value. The requirement that future medical damages be discounted to present day value necessarily means that full compensation for those future damages is, in large part, dependent on the statutory interest rate being the same as the rate of health care inflation over the course of the payment schedule. Watts offered expert testimony from two economists who concluded that the 50-year payment schedule, coupled with a 0.26 percent interest rate, virtually guaranteed that inflation in health care costs would result in Naython having insufficient funds to pay his future medical costs. Under these circumstances, the periodic payment schedule affords none of the financial security intended by the statute. Although section 538.220.2 required the court to establish some periodic payment schedule, once a present value reduction was made, use of an inconsistent future damages interest rate guaranteed that the jury's damages award would not actually cover Naython's future medical damages and, therefore, would take from him the full value of the jury's award. Consequently, the judgment is reversed and the case is remanded. On remand, the court shall enter a new periodic payment schedule that, consistent with the goal of reducing medical malpractice costs, also ensures that Naython will receive the benefit of the jury's award for future medical care.

In this case, Hebert quotes the Gamboa Gibson study for the proposition that "[d]isability significantly reduces both earnings and worklife expectancy," and then concludes that Luwisch's disability has reduced his worklife by 5.4 to 5.5 years. [Footnote removed.] Hebert utterly fails to justify how the Gamboa Gibson data support this conclusion, however. Accordingly, the Court finds that Hebert's opinion as to Luwisch's work-life expectancy is unreliable and therefore inadmissible.

Dr. Krueger understood the plain language of section 537.090 to mean "[t]hat the annual pecuniary loss suffered by the reason of a death of a minor child is equal to the annual income of the deceased['s] parent[]." He thus applied the statutory provision by "tak[ing] what the parent is earning with what their income is and I project that as a pecuniary loss starting upon the date of death through the life expectancy of the parent." Dr. Krueger then explained that he discounted this figure to arrive at his present valuation of these economic losses. For this measure of pecuniary losses, Dr. Krueger reached figures of $49,132 in past economic losses and $294,856 in future annual pecuniary losses, for a combined total of $343,988. Dr. Krueger then went on to testify that he believed the section 537.090 presumed pecuniary loss amount was low and did not appropriately account for other household consumption items. Conversely, counsel for Midwest and Dr. Niedens cross-examined Dr. Krueger and pointed out that the section 537.090 presumed pecuniary loss figure calculated by Dr. Krueger should be decreased since it assumed wage earning by an infant, which was unrealistic. Thus, both sides were permitted to rebut the section 537.090 presumed pecuniary loss calculation at trial.

Utilizing a reliable economic methodology, the economic expert explained that if Barr had lived and retired at ages sixty, sixty-five, or sixty-seven (the social security age of full retirement) he would have earned less in retirement than if he retired at age seventy as testified to by his wife.

Based on the credible testimony of Mrs. Barr, the Court finds that Donald Barr would have worked at least until age seventy and so it is that particular wage loss amount, as calculated by Mr. Gibson, that the Court will focus on. [] Mr. Gibson was able to provide the Court with the wage loss associated with the death of Donald Barr to age seventy and net of his personal expenditures. Therefore, the Court finds the wage loss in this case, proximately caused by the death of Mr. Barr, to be one million, eighty one thousand, seven hundred and eighty two dollars ($1,081,782.00).

In Green v. Bittner, 85 N.J. 1, 424 A.2d 210 (1980), the Court expanded the category of pecuniary damages to include not only the loss of future financial contributions but also the lost value of services such as companionship and care and the loss of advice, guidance and counsel. The Court, however, limited damages for companionship and advice "strictly to their pecuniary element," with the value of the services determined in accordance with "what the marketplace would pay a stranger with similar qualifications for performing such services," with no value attached to the "emotional pleasure that a parent gets when it is his or her child doing the caretaking rather than a stranger." Id. at 12, 424 A.2d 210. Thus, in assessing both financial and non-financial losses incurred because of a wrongful death, the focus is on the value of what the decedent would have contributed to his or her survivors during  a continued lifetime. This Court has never deemed a loss that fails to meet that definition to be a "pecuniary" injury under N.J.S.A. 2A:31-5. (pp. 21-23)
   

Front and back pay are damages that replace compensation that the employee would have earned in due course absent the discrimination. They are intended to place the plaintiff in the same economic position he or she would have enjoyed absent the discrimination. Moreover, plaintiffs asking for an offset to cover adverse tax consequences resulting from a single lump sum payment of front and back pay do not assume that the defense will pay their entire tax burden for that recovery; they ask only to be compensated for the additional tax consequences resulting from the lump sum character of the payment. [References removed.]

While noneconomic damages for emotional distress are also intended to compensate the plaintiff, they obviously do not replace a tangible economic loss. Congress explicitly decided that noneconomic damages were to be taxable when they are attributable to nonphysical injury, and Congress placed this tax burden on the plaintiff. I.R.C. § 104(a)(2) (excluding damages, other than punitive damages, from gross income only if such damages arise from personal physical injury or physical illness). Under Pham and Lara's reasoning, a plaintiff would retain no tax liability for noneconomic damages. Shifting the tax burden on these awards entirely to the defendant simply goes too far.

Plaintiffs' expert's report only considers the estate's loss of Mrs. Flowers' Social Security income. The economic loss report does not consider pension benefits Mrs. Flowers was receiving on behalf of her late husband, and makes no accounting for Mrs. Flowers personal expenditures. Without these facts it is impossible to determine what, if any, economic loss Plaintiffs have suffered from the unfortunate passing of Mrs. Flowers. The expert's economic loss report, and anticipated testimony are insufficient and will not assist the jury to understand the evidence or to determine a fact in issue.

[T]he Rule is quite clear that fee shifting is mandatory unless "manifest injustice" would result. We think that is exactly what would happen here were Rule 26(b)(4)(E)(i) interpreted in the fashion urged by the plaintiff. For it would result in the payment of money to a party acting as his own expert even though he had incurred no cost that should in fairness be borne by the party seeking his deposition. That is not appropriate cost shifting, but rather the inappropriate subsidization of the other side's case.

Dr. Miller offers his report to rebut the opinions of Plaintiff's expert, Ms. Gragg-Smith, regarding the costs of Plaintiff's future medical care. Dr. Miller challenges Ms. Gragg-Smith's use of the billed or charged rate to determine Plaintiff's future medical expense needs. Dr. Miller's opinion considered the rates paid by private insurers and government entities to determine the reasonable value of Plaintiff's future care, using these rates as a benchmark and recognizing that the large proportion of the marketplace comprised of Medicare payments has an impact on prices. He opines that, based on a study by a national healthcare actuarial firm, private sector professional fees are paid at a rate equal to 128 percent of the Medicare rate for various services and items, including therapies, catheter placement, laboratory tests, and surgical procedures. Defendants state that, when discussing the market value of Plaintiff's claimed future care, Dr. Miller will not reference any private health insurance or government benefits available to Plaintiff. The Court finds these opinions of the market rates paid for care by all market payers do not violate the collateral source rule, because they are not offered as evidence of payments by a third party to reduce the defendant's liability for damages--they are instead offered to establish the reasonableness of the amount of damages.

The Court also finds that Dr. Miller is qualified to opine on this matter. His methodology is sufficiently reliable, because it relies on his economic analysis of government-regulated fee schedules and reputable studies performed by a well-established actuarial firm. Finally, Dr. Miller's opinion will assist the trier of fact in determining the reasonableness of Plaintiff's claimed future medical expenses. Dr. Miller's testimony regarding the reasonable rate of Plaintiff's future medical expenses is admissible.

[E]ven if Dr. Smith's methods of calculation were reliable, the VSL studies on which his expert opinion depends establish only how the overall value of a life is measured in the field of economics, not how enjoyment of life is measured, which is the relevant question the jury must resolve in awarding hedonic  damages.