January 11, 2011
Moore v. Health Care Authority,
(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
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,
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
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.,
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.
March 12, 2018
Jordan v. Ventura, 2019 U.S.
Dist. LEXIS 37540 (W.D. AR 2019). This decision involved a personal
injury in an automobile accident. Ralph Scott was proffered as an
economic expert to testify about the lost earning capacity of Jordan.
Scott used the national average earnings for truck drivers to project
Jordan’s past and future lost earning capacity. Ventura moved to
exclude Scott’s testimony regarding past lost earning capacity. Federal
Judge Susan O. Hickey granted the defense motion, saying:
Loss of earning capacity is the loss of
the ability to earn in the future." Id. In his report, Scott provides a
base rate of income that Jordan would have earned but for this
accident. Scott uses the national average for earnings of truck drivers
to determine what Jordan would have earned but for this accident and
provides a calculation for Jordan's past "lost earning capacity"
instead of lost earnings. However, past lost earning capacity is not a
recoverable element of damage under Arkansas law. Accordingly, the
Court will not allow Scott to testify as to any past "lost earning
Judge Hickey did not make any ruling with respect to Scott’s
calculations for “future lost earning capacity.” The apparent meaning
of this decision is that past earnings loss must be based on actual
past lost earnings, for which there was no clear evidence, but future
earnings loss can be based on future loss of earning capacity, which
could conceivably be greater than future expected earnings.
March 17, 2018
Finney v. Morton, 2019 N.Y.
App. Div. LEXIS 1776 (N.Y. App. 2019). This order granted a defense
motion to reverse a trial court decision that had awarded damages to
the plaintiff for past and future lost household services was reversed
on the following basis: [A]lthough the plaintiff's
expert economist valued the loss of the decedent's household services
based on a statistical average of services performed in a two-person
household, there was no evidence in the record as to the nature and
frequency of any services actually performed by the decedent prior to
his death. Rather, the record was silent on this issue. In addition,
there was no evidence of actual expenditures incurred in replacing
whatever household services the decedent may have performed in the
past, or of any anticipated future expenditures with regard to such
services. Accordingly, the plaintiff should not have been awarded
damages for past and future loss of household services since, in the
absence of any evidence establishing what services the decedent
actually performed, those awards were speculative and were not
warranted by the facts.
Hannibal v. TRW Vehicle Safety Sys.,
LEXIS 134318 (E.D. AR 2018). This wrongful death action
resulting from an automobile accident. The defense challenged the
projected value for loss of life damages of the plaintiff by economist
Dr. Rebecca Summary, saying:
Dr.[Rebecca] Summary proposes to
testify regarding Krista's loss of life damages using a method known as
the "value of a statistical life." Arkansas law provides that in
addition to other elements of damages, "a decedent's estate may recover
for the decedent's loss of life as an independent element of damages."
Ark. Code Ann. § 16-62-101(b). The Arkansas Supreme Court has
construed the statute to allow for damages that a decedent would have
placed on her own life. Durham v. Marberry, 356 Ark. 481, 492, 156
S.W.3d 242, 248 (2004). An estate seeking loss of life damages must
present some evidence that the decedent valued her life from which a
jury could infer that value and on which it could base an award of
damages. One Nat'l Bank v. Pope, 372 Ark. 208, 214, 272 S.W.3d 98, 102
No court applying Arkansas law has ruled as to whether expert testimony
may be admitted to assist the jury in determining loss of life damages.
An overwhelming majority of courts from other jurisdictions, however,
have concluded that the methodology adopted by Dr. Summary does not
meet the Daubert standards and may not be admitted into evidence. Smith
v. Jenkins, 732 F.3d 51, 66 (1st Cir. 2013); Kurncz v. Honda North
America, Inc., 166 F.R.D. 386, 388-89 (W.D. Mich. 1996). Dr. Summary
explains in her report that the value of a statistical life methodology
is based upon the trade-off between risk and money. It involves the
assignment of monetary values to death risks based upon how much
persons are willing to spend for a small reduction in the risk of
death. Dr. Summary's value here is based upon government studies used
to assign values to human lives in conducting cost/benefit analyses for
potential government projects. The First Circuit in Smith has explained
why this is not a reliable methodology for determining the value of a
human life. 732 F.3d at 66-67. In addition to being unreliable, Dr.
Summary's analysis would not assist the jury in determining what value
Krista Hannibal placed on her own human life. It has nothing to do with
Krista specifically. Cf. id. at 67 ("Even assuming that Dr. Smith's
formula is a reliable measure of the value of life, it was of no
assistance to the jury in calculating Smith's loss of enjoyment of
Dr. Summary will not be permitted
to testify regarding loss of life damages based upon the value of a
Families Advocate v. Corp. V,
U.S. Dist. LEXIS 56845 (D. N.D. 2019). This was an order excluding the
testimony of economic expert Dr. Stan V. Smith, who had proffered
testimony about loss of enjoyment of life, loss of relationship, loss
of advice and counsel, and loss of accompaniment services, all of which
were previously recommended for exclusion in a report of the magistrate
judge. Federal Judge Timothy L. Brooks said in conclusion:
Dr. Smith's opinions are marinated in a
proprietary blend of theoretical "studies" (developed for use in other
contexts), and peppered with arbitrary "benchmarks" a la ipse dixit,
and, finally, tabulated with present value spreadsheets to give the
illusion of forensically precise calculations in D.M.'s specific case.
Beyond the illusion, the reality is more akin to hocus pocus. And this
Court is certainly not alone in finding Dr. Smith's methodologies
suspect and unreliable.1Link to the text of the note Dr. Smith's
calculations are based on arbitrary figures and assumptions that are
unrelated to the facts of the case. An expert's calculations should be
excluded when they are "so fundamentally unsupported that [they] can
offer no assistance to the jury." Wood v. Minn. Mining & Mfg. Co.,
112 F.3d 306, 309 (8th Cir. 1997) (citations omitted).
The problem here is not so much whether Dr. Smith reviewed and
incorporated facts from D.M.'s medical findings, as it is Dr. Smith's
unreliable methodology--which cannot be properly applied to the facts
in this case, at least not in any meaningful or reproducible manner.
May 1, 2019
Cochrane v. Schneider National
Carriers, Inc, 980 F.Supp. 374 (D.Kan 1997). Dr. Gerald Olson
was permitted to testify about all normal pecuniary losses, but not
permitted to advance a projection of the value of lost “emotional
services” the decedent would have provided to his family. Dr.
Olson had calculated an average of the salaries of teachers, social
workers, psychologists and counselors as being in the range of $25,000
to $30,000 per year. He had then projected that the decedent teenaged
son would have provided “emotional services” in this range. The court
also rejected this testimony because Dr. Olson provided no specific
times during which these services were being provided. Revised listing.
May 3, 2019
Soria v. United States Bank N.A.,
Dist LEXIS 70068 (C.D. CA 2019). This case involved an injury
to the credit of Samuel Soria because of identity theft by an employee
of U.S. Bank. The plaintiff economic expert was Dr. Stan V. Smith, who
projected losses of credit expectancy and the value of the lost time
Soria had spent dealing with inaccurate reporting. The court excluded
Smith’s testimony on loss of credit expectancy, describing Smith’s
testimony as follows:
According to Dr. Smith, Soria could
have borrowed as much as $60,000 in year 2016 dollars. (Dkt. 66-1
[Declaration of Dr. Stan V. Smith] Ex. 1 [Expert Report, hereinafter
"Smith Rep."] at 5.) Because Soria's credit score declined from 735-740
to 524, however, Soria would have to pay a higher interest rate to
obtain this line of credit. (Id. at 4-6.) Based on a peer-reviewed
article that Dr. Smith coauthored, Dr. Smith estimated Soria would pay
an increased 12 percent per year in costs as a result of his lower
credit score. (Id.) The increased cost would last for seven years, the
length of time a delinquency remains on a credit report. (Id.) Based on
this, Dr. Smith calculated Soria's loss of credit expectancy to be
The Court indicated that this part of Dr. Smith’s testimony was
inadmissible because Smith provided no analysis regarding how he
arrived at the figure of $60,000, which was significantly in excess of
Soria’s annual earnings during the previous three years. However, the
Court allowed Smith’s testimony regarding Soria’s allegedly lost time,
valued at $27.67 in 2017 dollars, indicating that the hourly value goes
to the weight, but not the admissibility of Smith’s testimony. Smith
had also calculated hedonic damages for Soria, but the plaintiff had
withdrawn that claim before this decision.
Kowalewski v. BNSF Ry. Co.,
2019 Minn. App. Unpub. LEXIS 339. (MN App. 2019). This decision held
that federal law and not Minnesota state law governed the
post-judgement interest rate in FELA cases. The Court also said:
BNSF further argues that Kowalewski's
entire award should be taxed as earned income and that amounts be
withheld to satisfy taxes required by the Railroad Retirement Act
(RRTA). FELA damages for lost wages qualify as taxable compensation
under the RRTA. See BNSF Ry.
v. Loos, No. 17-1042, 2019 WL 1005830, at *8 (U.S. Mar. 4,
2019). In this case, however, the jury awarded Kowalewski $15,343,753,
but none of that amount was designated as wage loss on the
special-verdict form. As such, none of the award need be withheld.
May 20, 2019
Families Advocate, LLC v. Sanford
Clinic N, 2019 U.S. Dist. LEXIS 60438 (D. N.D. 2019). This
decision of Magistrate Judge Alice R. Senechal to recommend the
exclusion of the testimony of Dr. Stan V. Smith on hedonic damages,
loss of consortium, loss of guidance and counsel, and loss of
accompaniment services. Judge Senechal recommend Smith’s exclusion in
all of those areas. Her recommendation that Smith’s testimony be
excluded includes several pages describing the opinions of Dr. David D.
Jones in support of the defense motion to exclude Smith’s testimony.
Judge Senechal’s recommendation to exclude Smith’s testimony was
accepted by federal district Judge Timothy Brooks in Families Advocate v. Corp. V, U.S.
Dist. LEXIS 56845 (D. N.D. 2019).
Knaack v. Knight Transportation Inc.,
U.S. Dist. LEXIS 75480 (D. NV 2019). In this case, the defense had
moved to exclude Dr. Stan V. Smith’s testimony about loss of family
advice, counsel, guidance, instruction and training services and loss
of accompaniment services. Federal Judge Larry R. Hicks denied the
Dwyer v. Southwest Airlines Co.,
U.S. LEXIS 77844 (M.D. TN 2019). The plaintiff had moved to add a
claim for her lost household services, which Federal Judge Aleta A.
Traugher denied as “futile” because Tennessee law does not allow
recover by an individual plaintiff for her own household services.
Judge Traugher conducted a survey and concluded that of the 47
jurisdictions that were represented in the consolidated multidistrict
litigation including this case, 17 allowed recovery by an individual
for his or her own lost household services, while 30 jurisdictions did
not. Judge Traugher, however, went on to say that damage for such
losses could be sought as part of the plaintiff’s damages for pain and
suffering, and that if the plaintiff’s injuries have required her to
pay a third party for services she previously performed for herself,
she could seek compensation for such payments as part of her economic
May 28, 2019
Louisville Sw Hotel v. Lindsey,
Ky. App. LEXIS 91 (KY App. 2019). This decision rejected a defense
appeal, but granted the plaintiff’s appeal in this wrongful death
action. The jury had awarded punitive damages against the Comfort Inn
based upon the death of Chance Brooks, a minor child, but had awarded
$0 for the lost future earnings of the child, the pain and suffering
involved in drowning, and loss of consortium to the child’s parents.
The court held that a trial limited to determining amounts for those
damages was necessary. Sara Ford of Vocational Economics had testified
at trial that the value of the child’s lost lifetime earnings was
$1,890,874 with a high school degree and $3,770,805 with a bachelor
July 4, 2019
Lewis v. Ukran, 2019 Cal. App.
LEXIS 588 (CA App. 2019). The Court addressed the responsibilities for
projecting damages and reducing future losses to present value in
California as follows:
We hold, in a contested case, a party
(typically a defendant) seeking to reduce an award of future damages to
present value bears the burden of proving an appropriate method of
doing so, including an appropriate discount rate. A party (typically a
plaintiff) who seeks an upward adjustment of a future damages award to
account for inflation bears the burden of proving an appropriate method
of doing so, including an appropriate inflation rate. This aligns the
burdens of proof with the parties' respective economic interests. A
trier of fact should not reduce damages to present value, or adjust for
inflation, absent such evidence or a stipulation of the parties.
July 9, 2019
Martinez-Morales v. Victualic Co.,
2013 U.S. Dist. LEXIS 79996 (D. P.R. 2013). This decision of U.S.
Magistrate Judge Marcos E. Lopez denied a motion to exclude the
testimony of Dr. Jaime L. del Valle Caballero. Caballero had used the
LPE method to project the earning capacity loss of the plaintiff. The
defense challenge focused on whether the LPE method properly took
account of the business cycle. Judge Lopez ruled that the probabilistic
nature of the LPE method accounted for such issues.
July 10, 2019
Economy v. Sutter East Bay Hospitals,
31 Cal. App. 5th 1147; 243 Cal. Rptr. 3d. (CA App. 2019). One of the
issues in this appeal was the calculations of Dr. Barry Ben-Zion for
tax neutralization of the award. Tax neutralization means adjusting the
size of an award so that the after-tax value of the award would be the
same as it would have been if loss amounts had not been lost. The court
Although an award to compensate for an
income-tax disparity for lost future wages is inherently speculative,
as is any award for lost future income, we see no reason why this
factor cannot be established with sufficient certainty. As the trial
court noted, plaintiff's expert provided “detailed testimony regarding
his calculations of (i) plaintiff's total tax liability had plaintiff
not been terminated and had he continued to earn income, (ii) the
amount plaintiff would have to pay in taxes if awarded the computed
loss of earnings (back and front pay), and (iii) the tax neutralization
amount, i.e., the amount of money needed to generate a net amount equal
to the adverse tax consequence.” We agree with the trial court that the
foundational information relied on by the expert, including the
applicable tax rates, provided a reasonable basis for his opinions.
The Court also provided a review of decisions in the federal circuits
regarding the tax neutralization question. The California Supreme Court
has since denied certiorari for an appeal of this decision.
July 12, 2019
Blue Book Servs. v. Amerihua Produce,
Inc., 337 F. Supp. 3d 802 (N.D. IL 2018). This memorandum
by Federal Judge Edmond E. Chang denied a defense motion to exclude the
testimony of Blue Book’s damages expert, C. Kenneth White, saying:
Amerihua challenges that White is not
qualified to testify as an expert in this case, arguing that he does
not meet any of the purported "Gold Standards" for expert testimony set
forth by their own rebuttal expert, Stan Smith. Def. Br. at 14.
The argument goes that because White does not have a doctorate degree,
has never taught a college course, and has not authored a university
textbook, he is not a witness "qualified as an expert by knowledge,
skill, experience, training, or education." Def. Br. at 14; Fed. R.
Civ. P. 702. But the list of factors picked by Amerihua are not
conclusive and are most definitely not required by Daubert and Kumho
Tire.  White has been an independent financial consultant since 2003,
and before that, he held senior positions at Ernst & Young as a
certified public accountant. R. 54, DSOF Sealed Exhibits Exh. V, White
Report (sealed) at 36. More importantly, he has over 40 years of
professional experience with specialization in valuation and damage
analyses. Id. He has a bachelor's degree in accounting and a master's
degree in business administration, on top of passing the CPA
examination. Id. He has similarly served as an expert in myriad cases.
Id. Just because White has focused his career on applying his skills to
concrete cases rather than teaching courses or publishing articles does
not disqualify him from expert analysis—nor does Rule 702 suggest as
much. See Kumho Tire, 526 U.S. at 148-49; Tuf Racing, 223 F.3d at 591.
Bland v. Green, 2019 La. App.
LEXIS 1171 (LA App. 6-27-2019). This decision reversed and remanded a
trial court decision that had granted a defense motion in limine to
exclude the testimony of economic expert Dr. Randolph Rice because Rice
did not expressly incorporate the plaintiff’s pre–injury earnings as a
foundation for his projection of the plaintiff’s lost earning capacity.
Rice had relied upon the analysis of vocational expert Carla Seyler for
his opinions about the plaintiff’s pre-injury earnings record. The
Court of Appeals said:
Dr. Rice relied on Ms. Seyler's figures
that were the result of her consideration of Mr. Bland's seasonal work
history and prior earnings. In essence, Dr. Rice adopted Ms. Seyler's
work product. He also was provided Mr. Bland's pre-injury tax returns.
After having considered the past tax return earning history of Mr.
Bland, and adopting the lost earning capacity determination of Ms.
Seyler, which alsoincluded her own consideration and estimation of Mr.
Bland's work and earning history, Dr. Rice gave a range of values based
upon the potential length of Mr. Bland's working life and the annual
lost earning capacity figures provided by Ms. Seyler. Dr. Rice
calculated that Mr. Bland's losses ranged from $483,021 to $595,863,
depending on how much longer he expected to work. In sum, Dr. Rice [Pg
5] provided a lump-sum value equal to the total of Mr. Bland's lost
earning capacity through his remaining life based upon the annual
earning capacity figures determined by Ms. Seyler.