January 11, 2011

Moore v. Health Care Authority, 181 Wn.2d 299; 332 P.3d 451 (WA 2014). In this class action case, the State had argued that lost health insurance of workers entitled to recovery should be based on out-of-pocket costs. The Washington Supreme Court said:

The primary flaw in this underlying assumption is that it refuses to acknowledge that those who are wrongfully denied health benefits suffer damage even if they do not incur direct out-of-pocket medical expenses during that particular time period. In its ruling, the trial court pointed to studies showing that people who do not have health insurance do not obtain routine preventive care, which results in deferred medical problems. More significantly, studies show that those without health benefits even put off necessary care for urgent medical issues. Based on these studies, the trial court concluded that the State's method of calculating damages would result in a “great understatement” of the actual damages.

January 17, 2019

Denny v. Kent County Road Commission, 317 Mich. App. 727; 896 N.W.2d 808 (MI App. 2018). This decision of the Michigan Court of Appeals allows survivors of a decedent to recover their own damages under the Michigan Wrongful Death Act (MCL 600.2922) and for the estate of a decedent to also recover for the lost earnings of the decedent. The Court said:

However, a claim for lost financial support under the wrongful-death statute is not the same as a claim for lost earnings. Specifically, lost earnings are damages that decedent could have sought on his own behalf had he lived, whereas damages for lost financial support would be sought by one who depended on the decedent for financial support. See, e.g., id. Because the damages are distinct, the fact that the wrongful-death statute allows for recovery of lost financial support does not change the character of plaintiff's claim for damages for the decedent's lost earnings.

Williams v. Mercy Clinic Springfield Cmtys, 2019 Mo LEXIS 4 (MO 2019). This decision reversed and remanded a trial court decision. The Missouri Supreme Court held that the Missouri periodic payments statute 538.220.2 as used by the trial court resulting in unconstitutional unfair treatment of the plaintiff. The statute specifies a interest rate to be used to distribute periodic payments that was lower than the interest rate used to reduce future payments to present value, with the result that the plaintiff could not receive the full value of the award determined by a jury. The court said:

The application of section 538.220.2 is unconstitutional as applied to Williams because payment of future medical damages at a different interest rate than the interest rate used to compute the present value of the jury's award deprives Williams of the full value of the award and violates her due process rights.


January 21, 2019

Oden v. Chemung County Indus. Dev. Agency, 87 N.Y.2d 81; 661 N.E. 142 (N.Y.  1995). This was a ruling of New York’s highest appellate court, that a jury award of $66,000 for lost retirement benefits would be more than offset by $141,330 in disability benefits that the plaintiff will receive as the result of his injury. At issue was how the collateral source rule operated within categories of damages. Disability benefits and retirement benefits were deemed to have come from the same source from the standpoint of evaluating lost pension benefits, but the Court was clear that the net gain in pension benefits caused by the injury could not be used to offset losses of health and welfare benefits or lost future earnings. The court said:

[P]laintiff's retirement pension benefits have not been shown to replace the lost future earnings  and health and welfare benefits for which the jury awarded him $80,000.  Rather, those benefits are paid in lieu of ordinary pension benefits and do not necessarily correspond to any future earning capacity plaintiff might have had.  Indeed, it is undisputed that, notwithstanding his retirement as an ironworker, plaintiff would have been free to earn income from his labor in other capacities without loss of his disability retirement pension benefits.  Thus, it cannot be said that the disability pension benefits plaintiff expects to receive are duplicative of the award he received for lost future earnings.

February 1, 2019

Walker v. Spina, 2019 U.S. Dist. LEXIS 5275 (D. N.M. 2019). In response to a motion in limine to exclude the hedonic damages testimony of William Patterson, Federal Judge James O. Browning, interpreting New Mexico law, allowed Patterson to explain the general concept of hedonic damages, but relying upon Smith v. Ingersoll-Rand, 214 F.3d 1235 (2000), limited Patterson’s testimony as follows:

The Court, therefore, will allow Patterson to describe hedonic damages, but not to quantify Walker's hedonic damages, e.g., Patterson may not state that S. Walker's "lost value of the pleasure of life is $102,707" or that she lost $10,000.00 in her value of life, or discuss his worksheet showing his calculations for such figures.

February 5, 2019

Kennedy v. Magnolia Marine Transp. Co., 189 F. Supp.3d 610 (E.D. LA 2016). This decision discussed a claim in a life care plan for “financial management damages,” as follows:

Plaintiff's vocational rehabilitation expert and Certified Life Care Planner, Dr. Cornelius Gorman, has developed a life care plan for plaintiff that includes $692,500 for financial management. Following the April 29, 2016 pretrial conference, the Court issued an order stating that it "will not permit plaintiff to argue entitlement to financial management damages at trial." It further ordered that "[i]f plaintiff objects to this ruling, he shall brief the issue to the Court.  Plaintiff has done so. He argues, in short, that "he is entitled to put on evidence in the form of expert testimony as to whether he will need financial management and why [because], [a]s a practical matter, plaintiff needs financial management assistance if he is awarded a large amount of money." []

Even as a matter of first impression, it is clear that such damages are not permitted in this case. This is not a case in which plaintiff lacks the mental capacity to manage his funds or a case in which the accident diminished plaintiff's mental capacity to manage his funds. Plaintiff may be compensated for medical expenses, for loss of earning capacity, for pain and suffering, and for other damages that defendant caused. Even if the need for financial management can be considered as "damages," a finding this Court does not make, plaintiff cannot be compensated for damages not caused by defendant's conduct. The Court's order regarding financial management stands and plaintiff's claim for such damages should be dismissed.

March 7, 2019

Dutton v. Rando, 2019 N.J. LEXIS 27 (N.J. App. 2019). This decision involved a wrongful death action resulting from an automobile accident. During the decison, the New Jersey Court of Appeals addressed the 1980 New Jersey Supreme Court decision in Green v. Bittner, 424 A.2d 2010 (1980), which specifically allows recovery for the advice, council and companionship the decedent might have provided to survivors. The court said (citations removed):

Under New Jersey law, in cases involving the death of a child, plaintiffs may recover for "the pecuniary value of the child's companionship, including his or her advice and guidance, as the parents grow older. With respect to companionship, "the jury's focus is on the existence of [the parent-child] relationship and the value of the advice, guidance and counsel that inhere in it." "Given a normal parent-child relationship, a jury could very well find it is sufficiently probable, had the child lived, that at some point he or she would have rendered . . . companionship services . . . and advice, guidance and counsel[.]"

Once the parent-child relationship is established, juries should employ "an objective standard for calculating the value of advice, guidance and counsel . . . confined to what 'the marketplace would pay' for lost household services or the services of a business adviser, therapist or trained counselor." "[W]hile pecuniary losses under N.J.S.A. 2A:31-5 cannot be premised on speculation, an exact calculation of the plaintiff's damages may not be feasible in every case."

The 11th Circuit also explicitly held that expert testimony is not necessary to establish the value of lost services of this type.

Bobo v. TVA, 855 F.3d 1294 (11th Cir. 2017).  This decision involves the wrongful death of Barbara Bobo from mesothelioma. With respect to damages, the 11th Circuit vacated the portion of the District Court decision that related to damages. At issue was whether the estate could recover for amounts originally billed or only amounts actually paid in satisfaction of those bills. The District Court had held that the estate could recover for amounts originally billed whether or not actually paid, but the 11th Circuit, interpreting Alabama collateral source rule, held that only amounts paid by Ms. Bobo or her insurers for past medical treatments could be recovered.