Masterlist of Legal Decisions Since 1/1/2010

January 10, 2010

McNamara v. Kmart Corporation, 2010 U.S. Dist. LEXIS 865 (D. Virg. Isl.). This opinion upheld a trial court decision not to admit the testimony of economic expert Robert Johnson and to severely limit the testimony of vocational rehabilitation expert Susan McKenzie. The Court rejected the testimony of physiatrist Dr. Gary Jett, upon whose testimony much of the testimony of McKenzie and all of the testimony of Johnson rested. The Court said: Johnson’s conclusions were premised on his understanding of McNamara’s future medical and non-medical expenses provided to him by McKenzie. Because future medical needs and costs were beyond McKenzie’s expertise and her calculation of medical expenses were derived from Dr. Jett’s unreliable chart, the basis for Johnson’s opinions were faulty. There was simply nothing for him to reduce to present value. His testimony would have been a mere reiteration of Dr. Jett’s suspect numbers.” The Court’s description of Dr. Jett’s methods and opinions was very negative.

January 12, 2010

Dolores v. Southern Farm Bureau Casualty Insurance, 44,883 (La.App. 2 Cir. 01/06/10); 2010 La. App.  LEXIS 4 (La.App. 2010). This decision upheld the JNOV decision of the trial court judge to increase the jury’s award of damages for a brain injury to a child to $600,000. The testimonies of Bob Gisclair and Barney Hegwood, vocational experts for the plaintiff and defense, respectively, are described, but no economists were mentioned. Testimony of the vocational/rehabilitation experts related to the percentage of “lost access” to the job market that was caused by the injury, not a projection of the lost earnings that would result from the lost access to the job market. Gisclair argued for between 50% and 60%. Hegwood argued for 20%. There was no mention of how these percentages were translated into a specific amount for lost earnings.  There were also life care plan elements for transportation and counseling. The round number of $250,000 in damages for “future economic loss and training and medical expenses” suggests that no specific method was  used to convert a percentage of “lost access to the job market” into a specific present value of lost earning capacity. The plaintiff had retained an economist who is mentioned as having reduced Gisclair’s life are plan to a present value of $814,416, but there was no mention of the economist reducing the child’s lost earnings to present value.

January 19, 2010

Pinkston v. Accretive Health, 2010 U.S. Dist LEXIS 3163 (E.D. Mich. 2010) This was an order granting summary judgment to the defendant. As a part of that order the court said: “Defendant has filed a motion in limine to exclude the expert report and testimony of Plaintiff's expert, Dr. Frank P. Stafford, from trial. Generally, Defendant contends that Dr. Stafford's testimony and report do not meet the reliability requirements of Federal Rule of Evidence 702 and Daubert, and that the report fails to conform to the requirements of Federal Rule of Civil Procedure 26(a)(2)(B). Defendants contends that Dr. Stafford is an economist who is not qualified to provide an expert opinion as a vocational expert, that his report is based on inaccurate data and makes assumptions that have no basis in fact, and that he has not provided the reasons or basis for his opinions. Plaintiff responds that Dr. Stafford's methodology is an accepted methodology among economists and that Defendant's failure to submit expert testimony challenging the methodology is fatal to Defendant's motion. Based on the fact that Defendant is entitled to summary judgment on Plaintiff's claims, this motion will be denied as moot.”

Aurite v. Morris, 2010 U.S. Dist. LEXIS 3328 (D.N.J. 2010). This is a decision under New Jersey’s The Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. § 39:6A-8, providing partial summary judgement to with respect to a claim for noneconomic damages and partial summary judgment with respect to permanent economic loss. The plaintiff’s economic expert was Dr. Robert Wolf, who assumed a permanent injury for purposes of his calculations. The court held that the plaintiff had not sufficiently demonstrated a demonstrated a personal injury. The court held that while Dr. Wolf’s report was intended to deal with a permanent injury, it also provided evidence that might support a claim for temporary loss of earning capacity. 

January 26, 2010

Graham v. Offshore Specialty Fabricators, 2009 0117 (L.A.App. 1 Cir. 01/08/ 10); 2010 La. App. LEXIS 13 (La. App. 2010). This decision involved economic damage calculations by Drs. Randolph Rice and Hugh Long for the plaintiff and Dr. Kenneth Boudreaux for the defendant. The decision describes the assumptions underlying each expert’s calculations for lost earnings resulting in present values of $227,473 for Rice, $129,744 for Long and $8,943.51 for Boudreaux. Rice projected lost future annual earnings on the basis of $29,200 while Boudreaux argued that the plaintiff could still earn minimum wage and that there was no future loss. Long’s calculations were not described in the same detail. The Court pointed out that the plaintiff had admitted that he had not filed federal tax returns in at least ten years because he was not making enough to have to file and the plaintiff’s Social Security earnings record showed that for 22 of the 30 years shown he had reported income of less than $1,000 per year. However, the Court said: “While this court might believe that Boudreaux’s estimate was more reasonable, based on Graham’s work attitude and inconsistent employment history, Rice’s decision to base the estimate of lost wages on Graham’s actual wages that he was earning with Offshore at the time of the accident and for the preceding three months was not unreasonable. Therefore, we conclude that the jury’s acceptance of that estimate and its award of $44,700 for past wage loss was not manifestly erroneous. Similarly, we must defer to the jury’s decision concerning the award for lost future earning capacity. Before his accident, Graham had the capacity to earn the wages that he was making with Offshore as a deckhand. The evidence establishes that after his accident, he no longer had that capacity. His injury deprived him of a capacity he would have been entitled to enjoy even though he might never have profited from it monetarily. Therefore, the jury’s award of $125,000 for loss of future earning capacity was well within its discretion and must be upheld.”

February 8, 2010

Ulerio v. New York City Transit Authority, 2010 NY Slip Op 727; 2010 N.Y. App. Div. LEXIS 720 (N.Y. App. 2010). This decision upheld a trial court’s award of damages, saying: “The testimony of plaintiff’s doctors and economist was sufficient to support the damages awarded . . . particularly since defendant offered no expert testimony to counter that of the economist (italics added for emphasis). . .The award for future rehabilitative services was proper even though plaintiff had discontinued physical therapy, in view of her explanation that she had stopped because she could no longer afford it.”

Reed v. Boy Scouts of America, Inc., 2010 DNH 18 (D.N.H. 2010). This decision held that New Hampshire would allow injured plaintiffs to recover amounts billed for medical services rather than amounts accepted in payment for amounts billed or that were provided gratuitously by friends and relatives. It also held that Reed was unable to recover for lost future wages because New Hampshire law requires that “‘an award for future damages must be reduced to present value and, given the complexity of the modern economic environment, . . . the reduction must be based upon specific economic evidence and not merely upon personal knowledge that the jury may or may not possess.’ Hutton v. Essex Group, Inc., 885 F. Supp. 331, 334 (D.N.H. 1994). Furthermore, ‘the plaintiff bears the burden of coming forward with evidence of the proper rate of discounting,’ either through the testimony of an economic expert or other ‘economic data’ supported by ‘a proper foundation. Id. At 334-35.”  

Werner Enterprises v. Brophy, 2009 WY 132 (Wyoming 2009). This appeals decision provides extensive discussion of whether the plaintiff’s life care planning expert, Jack Dahlberg, was qualified to assume that Brophy’s injuries were permanent for purposes of projecting Brophy’s life care needs. The court held that even though no medical expert was presented regarding the issue of the permanency of Brophy’s injury, Brophy had presented sufficient evidence for a jury to infer that Brophy’s injuries were permanent. 

February 14, 2010

Doll v. Jesse Brown, 75 F.3d 1200; 5 Am. Disabilities Cas. (BNA) 369 (7th Cir. 1996).  This is a  Richard Posner decision characterizing the use of probabilities in a suit for discrimination against the Veterans Administration. Posner was concerned about the either-or conclusion reached by the trial court regarding Doll’s chances for promotion if discrimination had not occurred and invites comparison withe the lost chance of survival approach in medical malpractice cases. “It is an extension of the routine practice in tort cases involving disabling injuries of discounting lost future earnings by the probability that the plaintiff would have been alive and working in each of the years for which damages are sought. It recognizes the inescapably probabilistic character of many injuries. It is essential in order to avoid undercompensation and thus (in the absence of punitive damages) underdeterrence, though to avoid the opposite evils of overcompensation and overdeterrence it must be applied across the board, that is, to high-probability as well as to low-probability cases. If the patient in our example was entitled to 25 percent of his full damages because he had only a 25 percent chance of survival, he should be entitled to 75 percent of his damages if he had a 75 percent chance of survival--not 100 percent of his damages on the theory that by establishing a 75 percent chance he proved injury by a preponderance of the evidence. He proves injury in both cases, but in both cases the injury is merely probabilistic and must be discounted accordingly.” The trial court opinion was reversed with respect to back pay and remanded for further consideration, but affirmed in other respects. Posner instructed the trial court judge as follows: “On remand the district judge should continue to apply the clear and convincing rule, but we do not forbid him to apply it to probabilities as distinct from certainties of loss, as explained in this opinion. So if, for example, the government is able to prove by clear and convincing evidence that Doll had no more than a 20 percent chance of being appointed foreman in lieu of Stein (had the Veterans Administration complied with the Rehabilitation Act), it will be open to the district judge to consider whether to award Doll 20% of the back pay the judge awarded him in the first round of this litigation.”

February 20, 2010

Fanning v. Sitton Motor Lines, 2010 U.S. Dist. LEXIS ( D. Kan. 2010).  This decision granted plaintiff’s argument that the existence in the household of a grandchild who was not adopted until after the decedent’s death should be taken into account in calculating the decedent’s self consumption even though the child did not qualify as an “heir” under Kansas law. Plaintiffs argued that exclusion of testimony regarding N.F. would create an "inaccurate self-consumption rate" for the decedent and lead to a gross underestimation of the pecuniary losses to the decedent's survivors. The court said: “The plaintiffs' economic expert calculated the decedent's self-consumption rate based upon the number of individuals in the household, including N.F. Thus, while the plaintiffs state that they do not seek to make an official claim for damages on behalf of N.F., they argue that they should be permitted to reference N.F. in calculating their own damages, because her presence in the household affected the decedent's self-consumption rate, and because Ms. Fanning must now provide support for N.F. that would previously had been provided by the decedent.” The court went on to say: “[T]he plaintiffs argue that testimony regarding N.F. is necessary to properly calculate damages related to health insurance costs. The decedent provided health insurance for those within the household  and such expenses must now otherwise be taken care of. Therefore, the plaintiffs intend to include N.F. in their calculation of Ms. Fanning's own damages insofar as Ms. Fanning must now provide for her insurance expenses that previously would have been taken care of by the decedent. In sum, while the plaintiffs concede that they do not seek to assert damages claims on behalf of N.F. as an ‘heir,’ they assert that her presence in the household is relevant and affects the amount of damages suffered by Ms. Fanning.”

February 26, 2010

United States v. Theodore Cienfuegos, 462 F.3d 1160 (9th Cir. App. 2006). This decision held that the district court abused its discretion by awarding only $11,629.87 in restitution to the estate of a decedent killed by the defendant under the Mandatory Victims Restitution Act of 1996 (MVRA). The decision held that lost income should be considered in a manner similar to civil wrongful death, but that restitution cannot depend on amounts received by a victim’s estate “from insurance or any other source.”  The 9th Circuit pointed out that “Any amount paid to a victim under an order of restitution shall be reduced by any amount later recovered as damages for the same loss by the victim in – (A) any Federal civil proceeding; and (B) any State civil proceeding, to the extent provided by the law of the State.” The 9th Circuit, however, went on to specify that: “Speculative losses are incompatible with the MVRA’s statutory theme because ‘[o]ne cannot bear the burden of proving the amount of a loss by a preponderance of the evidence when it is no more than possible that the loss will occur at all.’ United States v. Follet, 259 F.3d 996, 1002 (9th Cir. 2001). Suggested by Paul Bjorklund.
March 9, 2010

Lewis v. Seacor Marine , Inc, 2002 WL 34359733 (E.D.La.).  This order granted a defense motion in limine to limit the testimony of rehabilitation expert Cornelius Gorman and economic expert Douglas Womack with respect to the possibility that the plaintiff would have risen to the rank of captain “in the maritime world” at some uncertain point in the future.  The court said, referring to Womack’s projection: “The plaintiff’s economic analysis extrapolating his future lost earnings for the greater part of his worklife expectancy is both unreliable and not grounded in the facts of the plaintiff’s work history, which presents dabbling in very different industries, as well as absence of work from time to time. The analysis is also devoid of any consideration of the fact that the plaintiff had only worked as deckhand for approximately one month before the accident. The opinion’s assumption – except for the first eight years  plaintiff would in fact earn the salary of a seafaring captain for the remainder of his worklife – is devoid of any basis in fact, and thus unreliable, misleading and irrelevant. Although the case law makes it clear that absolute certainty is impossible, considerations of reliability require that any economic analysis be ensconced with some semblance of reality. . .  The slender reed on which Womack’s projection rests warrants no credence from the gatekeeper.” Suggested by Stephen Horner. 

March 19, 2010

Spotlite Skating Rink, Inc., v. Barnes, 988 So. 2d 364 (Miss. 2008). The defense challenged a jury’s award of $600,000 in the death of a 10 year old female child on the ground (among other grounds) that Dr. George Carter, the economic expert for the plaintiff, based his calculations on the rebuttable presumption that the child would have had average earnings for an average child nationally. The child had come from a poor area and the defense argued that her losses should be based on persons from that area, not national figures. The rebuttable presumption was set forth in the Mississippi decision in Greyhound Lines, Inc., v. Sutton, 765 So. 2d 1269,1277 (Miss. 2000). Between the Sutton decision and the Barnes cases, the Mississippi Supreme Court had adopted Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) as Mississippi’s standards for admission of expert testimony. The Barnes Court held that Daubert had not affected the applicability of standards set forth in the Sutton decision. The Court also repeated that using a local standard led to the “unfair and prejudicial” result that deaths of children from affluent areas would get larger awards than children from poor areas. The Court also pointed out that the defense had vigorously cross examined Carter on these issues and that jury had rejected the defense position in reaching its decision. The trial court’s decision was affirmed. Suggested by Gerald D. Martin.

March 21, 2010

Kranz v. Tiger, 2010 N. J. Super. Unpub. LEXIS 498 (N.J. Super. 2010).  In this case, Dr. Arthur Tiger, a medical doctor, was sued because of his failure to appear at a medical negligence trial in which the plaintiff Kranz had sued for damages with Tiger as his medical expert. Because the case depended heavily on testimony of Tiger, Kranz settled his negligence case for a lower amount than he had expected to win if Tiger had testified. Kranz then sued his attorneys and Tiger. Kranz’s attorneys had settled out of the case. The case went to trial and jury found that Tiger had not been negligent based on the reasons for his non-appearance at the trial. Kranz’s attorneys had failed to call Tiger to tell him to come to court on the trial date, but Kranz argued that Tiger had been notified previously to appear and should have called to confirm that he was still needed. Tiger, as had been his previous practice, was in his office waiting for a telephone call that did not come and had concluded that the case had settled when he did not receive a call on the date of his scheduled appearance. The Superior Court of New Jersey upheld the trial court decision that Tiger was not negligent. Suggested by Frank Tinari. 

March 28, 2010

Eaton v. Hancock County, 2010 U.S. Dist. LEXIS 28817 (D. Maine 2010). This is an order of John A. Woodcock, Jr., chief federal district judge of the District of Maine upholding a granted motion in limine of a U.S. magistrate judge. The magistrate judge had granted a motion in limine to bar testimony of vocational expert Peter Mazzaro and economist Dr. Robert Strong that was based on the assumption that the plaintiff Ronald Eaton would have become a licensed master plumber with corresponding earnings. At the time of his injury, Eaton was an unlicensed plumber’s helper with limited work history. The magistrate judge had allowed testimony based on the plaintiff’s actual work history, but barred testimony based on the plaintiff becoming a licensed plumber in the future. There was testimony that Eaton had completed a twelve-month trainee program as a plumber and was supposed to start as an apprentice. Judge Woodcock said: “Even conceding Mr. Eaton’s facts, to conclude that Mr. Eaton would have become a licensed plumber still requires speculation about his successful completion of a multi-step process, involving thousands of hours of fieldwork under ongoing supervision and a passing grade on a master plumber’s written examination. . . The brief answer to these objections is that even though Mr. Eaton had taken the very first step along this difficult course, had demonstrated an interest and aptitude in plumbing, and might at some point achieved his aspiration, to assume at trial that he would have done so would be to speculate. 

April 4, 2010

Wolfe v. United States, 2010 U.S. Dist. LEXIS 31813 (S.D. Miss. 2010). The Court held that: “Under Mississippi law, in order to establish a legal ‘causal’ connection the plaintiff must show that the claimed proper treatment (in a medical malpractice case) . . . would have provided him with a greater than fifty percent chance of a better result than was in fact obtained (parentheses added, bolding in original).” In this case, a “better result” would have been survival of the decedent if the decedent had been admitted to the medical facility two days earlier in spite of the decedent’s refusal to be admitted to the facility.

April 19, 2010

Vokovich v. 1345 Fee LLC, 2010 N.Y. Slip Op 2986; 2010 N.Y. App. Div. LEXIS 2933 (N.Y. App. Div. 2010).  As regards basis earnings, the appellate court said in affirming the trial court: “As to the award for future lost earnings, plaintiff's economist projected this claim by presuming plaintiff would work as a steamfitter 50 weeks a year for another 12 years, under the collective bargaining agreement negotiated by Local 638 of the Steamfitters Union, while ignoring the fact that plaintiff had actually been working, both before and after the accident, through Local 355 of the Services Workers Union, at wages substantially less than those available through Local 638. This economic analysis utilized the higher wages and benefits available from Local 638, applying a growth rate of 3.5% per year through plaintiff's anticipated retirement at age 65, and assumed that he would work 35 hours per week (1,750 hours each year), notwithstanding testimony from the vice president of Local 638 that a steamfitter is lucky to work even 1,700 hours per year. This estimate, predicated on various assumptions that lacked any evidentiary support, was unduly inflated, and thus justified the court's reduction of the jury's award.”

Taylor v. Progressive Security Ins. Co., 09-701 (La.App. 3 Cir. 04/07/10); 2101 La. App. LEXIS 506 (La. App. 2010). The Court said: “The evidence in the record demonstrates that Ms. Taylor has incurred almost $ 65,000.00 in medical expenses in a four-year period, without yet having an expensive neck surgery recommended by her physician. Ms. Taylor's future expenses (including a possibility of two costly surgeries and a multitude of additional treatments) were established with some degree of certainty. Thus, the jury did not err in awarding Ms. Taylor $180,000.00 for future medical expenses, and we will not disturb that award (italics added for emphasis).”

Cox v. Shelter Insurance Company, 09-0958 (La.App. 3 Cir. 04/07/10); 2010 La. App. LEXIS 509 (La. App. 2010). The trial court judge had granted a motion in limine to bar the testimony of vocational expert Glenn Hebert in its entirety and to preclude economist Dr. Douglas Womack from testifying on any wage issue, basing its decision on a Daubert standard. The Louisiana Court of Appeals held that it was in error to do so, saying: “The trial court did not base its decision on the defendants' Daubert argument. Instead, it concluded that neither witness could testify concerning loss of earning capacity because, at the time of trial, Mrs. Brown had not enrolled in nursing school and was not then a nutritionist. That being the case, the trial court concluded, any testimony concerning lost wages in either of these two fields would be based on conjecture. The general rule is that ‘the factual basis for an expert's opinion goes to the credibility of the testimony, not its admissibility, and it is up to the opposing party to examine the factual basis of the opinion in cross-examination.’. . . Appellate review of a question of law is simply a decision as to whether the trial court's decision is legally correct or incorrect. . . The fact that Mrs. Brown had not enrolled in nursing school does not, as a matter of law, preclude the Browns from presenting expert testimony on whether Mrs. Brown suffered a loss of earning capacity because she is now unable to become a nurse. The factual basis of the experts' opinions is a credibility issue that should have been resolved by the jury. . .Accordingly, we find that the trial court erred in granting the defendants' motion in limine to exclude the testimony of Mr. Hebert and Dr. Womack.”

Falik v. Hornage, 2010 Md. LEXIS 110 (Md. App. 2010).  This decision involved appeals relating to two trial court decisions relating to extensive information sought by the plaintiff about the defense medical expert’s financial records. Plaintiff attorneys in Falik v. Hornage wanted copies of all of Dr. Falik’s 1099's for the past 5 years, a list of all cases in which he had provided expert testimony to include the name and contact information for both the party and the party’s attorney who had retained him, federal and state income tax returns, both personal and business, for the past five years, a copy of Dr. Falik’s calendar reflecting appointments for defense related medical examinations, and occasions on which Dr. Falik had testified live in any court for any defendant. After the Circuit court granted plaintiff’s motion in part, Dr. Falik appealed that decision, but ultimately withdrew from that case, rendering the appeal moot. Similar demands were made in Falik v. Holthus.  The circuit court in Holthus granted plaintiff motions, but limited the time frame to two years and issued a confidentiality order.  That decision was also appealed. Falik v. Hornage was then consolidated with Falik v. Hornage for purposes of the current decision. The Maryland Court of Appeals provided extensive discussion of prior cases involving personal financial records of expert witnesses in Maryland and Pennsylvania, with the court citing Wrobleski v. de Lara, 353 Md. 509, saying: “[W]e conclude that the trial court in Holthus followed thoughtfully our guidance in Wrobleski to allow only a controlled inquiry into whether a witness offered as an expert earns a significant portion or amount of income from applying his or her expertise in a forensic nature and is thus in the nature of a ‘professional witness.” The Court of Appeals went on to comment that even though the case of Falik v. Hornage had been rendered moot by the withdrawal of Dr. Falik, the Court of Appeals felt that the trial court in Hornage had not tightly controlled the amount of information that Dr. Falik was required to provide in the manner indicated in Wrobleski.

April 23, 2010    

Pollard v. E. I. Du Pont De Nemours & Company, 532 U.S. 843; 121 S. Ct. 1946 (2001). This decision of the United States Supreme Court held that front pay is not a compensatory damage in a wrongful termination case, but an equitable remedy that serves in lieu of reinstatement in the job from which an individual was wrongfully terminated. This was relevant to the size of an plaintiff’s award in that compensatory damages were subject to a statutory cap on compensatory damages. The Court defined front pay as follows: “[F]ront pay is simply money awarded for lost compensation during the period between judgment and reinstatement or in lieu of reinstatement. For instance, when an appropriate position for the plaintiff is not immediately available without displacing an incumbent employee, courts have ordered reinstatement upon the opening of such a position and have ordered front pay until reinstatement occurs.”

Sedie v. United States, 2010 U.S. Dist. LEXIS 39123. (N.D.Ca. 2010). In this opinion, Magistrate Judge Elizabeth D. Laport provided extensive discussion of how she weighed evidence in a personal injury case in which both plaintiff and defendant had retained vocational experts and economic experts. She strongly favored the opinions of vocational expert Andrew O’Brien and was fairly critical of things that Thomas Yankowski did not do. She also favored the analysis of  economist Margo Ogus over Phillip Allman, but the basis appeared to primarily be that Allman had relied on the opinions of Yankowski, which in turn were largely based on one medical doctor whose testimony did not impress Judge Laporte. However, the judge also felt that O’Brien and Ogus had not omitted steps that she felt had been omitted by Yankowski and Allman.

April 27, 2010

Smith v. Sandals Resorts International, 2010 U.S. Dist. LEXIS 39028 (E.D. Pa 2010). Judge Timothy R. Rice agreed to change $1 million of a $6.5 million settlement from an award under Pennsylvania’s wrongful death act to Pennsylvania’s survival action. This was in response to an appeal by the father of a single male living alone whom the judge said had very little to do with raising the decedent. Judge Rice held that the father had no entitlement to any funds from the wrongful death portion of the settlement, but felt that the settlement had not accounted for 250 days of pain and suffering preceding the death of the decedent. The amount of the settlement was not changed, but the changed allocation of the award within the settlement amount resulted in the father receiving $245,628.23. A letter from economic expert Andrew Verzilli is mentioned in footnote 6, but there was no discussion of Verzilli’s opinions. 

May 1, 2010

Smith v.  Louisiana Farm Bureau Casualty Insurance Company, 45,013 (La.App. 2 Cir. 04/23/10); 2010 La. App. LEXIS 563 (La. App. 2010). This decision reduced the trial court amount, but held the Louisiana Farm Bureau Insurance Company liable for a $122,000 award to the plaintiff in a Louisiana wrongful death circumstance. Dr. W. Patton Culbertson was the economic expert for the plaintiff and Dr. Melvin Harju was the economic expert for the defendant. The court described the calculations of each expert and adjusted the amount of lost support based on Dr. Culbertson’s figure after correction for Dr. Culbertson’s misunderstanding of the amount of monthly payments on a monthly car note. The decision also described the interaction of the Louisiana survival action and wrongful death action. After reviewing whether the decedent had survived for even an instant after his fatal accident, the Court approved an award of $250,000 for damages in the survival action in addition to the $122,000 in damages under the wrongful death action, saying: “If there is even a scintilla of evidence showing any pain and suffering by a victim prior to his death, damages are warranted in a survival action.”  

Hoyt v. Career Systems Development Corporation, 2010 U.S. Dist Lexis 43584 (S.D. CA 2010).  This judicial memorandum considered nine motions in limine, the seventh of which was to bar the testimony of Gene Konrad, a CPA. The court said: “Plaintiff argues that her economic expert, Gene Konrad, a certified public accountant familiar with personnel and payroll matters, should be able to offer an expert opinion as to whether Plaintiff was an employee or an independent contractor. . . [A]s noted by the Court in the order on summary judgment, the ‘most important consideration’ in determining whether an individual is an employee or an independent agent is the control test, which considers ‘whether the person to whom the services is rendered has the right to control the manner and means of accomplishing the result desired.’ . . . The Court grants Defendant’s motion to exclude Plaintiff’s expert from opining as to whether Plaintiff was an independent contractor or an employee because the testimony would constitute a legal conclusion and invade the jury’s fact-finding role and the Court’s role in instructing the jury on the applicable law. Additionally, the Court finds that the most important factor, the degree of control Defendant exercised over Plaintiff, falls within the common knowledge and experience of the jury and that expert testimony on the subject is excluded.” 

May 12, 2010

White v. Cooper Tools, Inc., 2010 U.S. Dist. LEXIS 45730 (D.S.D. 2010). In this case, Dr. George Langelett was the economic expert for the plaintiff and Linda K. Graham was the life care planning expert for the plaintiff. The defense had offered no damages experts, contesting the case primarily on liability. After the testimony of a liability expert for the plaintiff, the defense petitioned for a continuance that included obtaining economic expert Dr. Kenneth Boudreaux and rehabilitation expert Mr. Larry Stokes, whose reports were filed five days after the new deadline. Plaintiff submitted a motion in limine to bar defense experts based on timeliness. The Court held that the delay was “harmless error” and did not impose sanctions on the defense or exclude the testimony of defense experts.
 
May 19, 2010

Ellis v. Ethicon, Inc., 2009 U.S. Dist LEXIS 106620 (D.N.J. 2009). This was an opinion rejecting the cross appeals of defendant and plaintiff under the Americans with Disabilities Act (ADA) and reinstating the employment of Theresa Ellis. In dealing with the issue of back pay damages, the Court said: “Plaintiff offered the expert testimony of Dr. Gamboa, a vocational expert on damages, to support her claim of back pay. Dr. Gamboa testified that Ellis’ total economic loss (past and future), which included a reduction for taxes, both federal and state taxes, is $1,769,000. See Gamboa, 22. The starting point for Dr. Gamboa’s conclusion is determining Ellis’ present value salary. Dr. Gamboa used $82,540 – which is inaccurate – as Ellis’ salary when she left Ethicon and, without an explanation, testified that Ellis’ present value salary in 2007 was $98,097. . . Dr. Gamboa then multiplied that figure by Ellis’ worklife expectancy of 19 years and subtracted from that number $200,000, which represents Ellis’ earnings from Aventis, and any federal and state taxes. Dr. Gamboa concluded that Ellis’ total economic loss is approximately $1.7 million. However, in light of the findings made in this Opinion, the Court holds that, in many respects, Dr. Gamboa’s simplistic calculations are neither helpful nor reliable.” The Court then went on to make its own calculation of back pay, arriving at a figure of $42,400. The decision also goes on to allow calculations of gross-ups to adjust the back pay award for tax consequences of being paid in a lump sum, requiring the plaintiff to provide additional financial analysis to determine the appropriate amount for the gross-up.      

Kempf Contracting and Design, Inc., v. Cynthia Holland-Tucker, 892 N.E.2d 672 (Indiana App. 2008). The Indiana Court of Appeals held that it was an abuse of discretion for the trial court judge to have allowed the economic testimony of vocational expert John Tierney. The Court described Tierney’s testimony as follows: “As part of his opinion, Tierney determined that Tucker suffered a permanent physical disability. He based that opinion on a definition of physical disability used by the American Community Survey (“ACS”), which is conducted by the United States Census Bureau. The ACS defines physical disability as “conditions that substantially limit one or more basic physical activities such as walking, climbing stairs, reaching, lifting, or carrying.”. . Tierney then used databases compiled by the government to determine the earning capacity of people with a physical disability who have attained a bachelor’s degree, as Tucker had, and to determine the work life expectancy of people in the same category. He did not look at data regarding people with a physical disability in Tucker’s specific profession of engineering, as that information was not a available in the databases he utilized. . . The databases Tierney utilized in reaching his opinion were not specifically geared to Tucker’s specific disability, but only to persons with a general disability as defined by the ACS. . .   Tucker failed to present any evidence to establish the scientific reliability of Tierney’s methodology in determining Tucker’s reduction in earning capacity and work life expectancy. . . Tucker presented no evidence . . . that this process had been tested or subjected to peer review, or whether there was a known or potential error rate.  Further, no testimony was given that standards existed to control how the process was utilized by people in the vocational economic field. At the motion to exclude hearing, Tierney testified that the database and methodology he used to determine Tucker’s future earning capacity were well known in the field of vocational disability and rehabilitation and that private parties have written to the effect that disability has an effect on earnings and employment. . . However, Tierney did not name any peer-reviewed publication or provide any citation to authority that supported his bald assertion that his methodology to determine Tucker’s lost future earnings was generally accepted in the field of vocational economics. Additionally, even though Tierney may have testified previously regarding this methodology, such fact does not establish that his methodology was scientifically reliable. As a result, we conclude that. . . the trial court abused its discretion when it allowed Tierney to testify. 

May 31, 2010

Sallitt v. Stankus, 2010 U.S. Dist. LEXIS 51957 (M.D. PA 2010). This is a memorandum rejecting an appeal by the defendants in a wrongful discharge case in which a sheriff punished a deputy for supporting his opponent in a past election. The economist for the plaintiff was Andrew Verzilli. One of the points of appeal by the defendant was that plaintiff suffered no economic damages and should not have been awarded back pay and front pay because he was suspended with pay during a nine month period before the final discharge. The judge pointed out that the jury had not awarded back or front pay, but past and future economic damages based on the impact of the suspension and ultimate discharge on the deputy’s opportunities to obtain other remunerative employment. The defendant also argued that plaintiff’s economic expert Andrew Verzilli was not aware of pertinent facts relating to the other employment opportunities that were lost. The judge said about this argument: The economist was not charged with the task of determining what factors precluded plaintiff from obtaining these jobs. The jury’s task was to determine whether the defendant actually caused these losses. Therefore, whether the economist had pertinent facts regarding the employment at these other places or why plaintiff was precluded from those jobs is immaterial. The defendant also argued that since Verzilli had projected the losses as between $687,000 and $1,657,035, the jury’s award of $125,000 for these losses involved gross speculation. In a footnote, the judge said: “Notably, defense counsel did not request that the court charge the jury that they must at least award the minimum amount suggested by the plaintiff’s expert witness. 

Delane v. City of Newark, 343 N.J. Super. 225; 778 A.2d 511 (N.J. Super. 2001). This was an allocation order relating to a lien on workers’ compensation benefits received by Heidi Delane after the death of her husband. Regarding loss of companionship the Court said: “[D]amages for loss of companionship and society are really economic dependency damages. See Green v. Bittner, 85 N.J.1; 424 A.2d 210 (1980).The measure of these sorts of damages is the monetary value of those services which the dead companion used to provide and for which the dependent must now pay.” Suggested by Frank Tinari.

June 24, 2010

Rath v. Hamilton Standard Division of United Technologies Corp., 292 N.W. 2d (Minn. 1980). This decision involved the distribution of a wrongful death award. The court held that the decedent’s daughter should have been able to recover more than her loss of monthly child support payments. In the context of that decision, the Minnesota Supreme Court said that it had “held consistently that nondependent relatives may recover, e.g., the parents of a child beyond majority who has married . . .; or a wife who has since remarried. The Court also quoted an article in Bench and Bar by Judge Hatfield to the effect that: “Unless there is a showing that a child will suffer a pecuniary loss by the death of his parent after he reaches the age of 21, it is my suggestion and practice to determine the number of support years that the surviving spouse and each of the next of kin have lost by reason of the death and divide the funds for distribution proportionately. The article by Judge Hatfield then gave a mathematical example in which the wife would be supported for her 20 year life expectancy, one child for one year to age 21, another child for 11 years to age 21, and a third child for 16 years to 21 for a total of 48 support years. The apportionment would then be 20/48ths, 1/48ths, 11/48ths and 16/48ths. This decision may provide a basis for arguing that age 21 is the normal expected period for a normal health child to be able to recover loss of financial support. Suggested by Dave Jones.   

August 8, 2010.

Painter v. Ju Lin, 2010 U.S. Dist. LEXIS 77936 (E.D. Tenn. 2010). This decision sets out the standards for recovery in a wrongful death action in Tennessee. It stresses that: “[T]he assessment of damages is not governed by fixed rules of mathematical precession, but the matter is left to the sound discretion of the jury.” The Court went on to say: “Damages under the Tennessee wrongful death statute can be delineated into two distinct classifications. . . The first classification permits recovery for injuries sustained by the deceased from the time of injury to the time of death. Damages under the first classification include medical expenses, physical and mental pain and suffering, funeral expenses, lost wages, and loss of earning capacity. . . The second classification permits recovery of incidental damages suffered by the decedent’s next of kin. . . Incidental damages have been judicially defined to include ‘the expectancy of life, the age, condition of health and strength, capacity for labor and earning money through skill, any art, trade, profession or business, and personal habits as to sobriety and industry. . . Pecuniary value also takes into account the decedent’s probable living expenses had the decedent lived. . . Thus, in an action by a wife for damages for the wrongful death of her husband, the measure of recovery is the pecuniary value of the life of the husband to the wife, and not what wages the husband might have been able to earn, nor merely what it would have taken to hire another to do the work he did, as such basis of recovery would overlook the value of the husband’s personal interest in the affairs of the home and the economy incident to his services. . . The party seeking damages has the burden of proving them. However, in tort cases the proof need not establish the amount of damages with mathematical precision . . . as long as the proof is as certain as the nature of the case permits, and it enables the jury to make a fair and reasonable assessment of the damages. . . Thus, while damages should not be awarded when the existence of damages is uncertain, they may be awarded if the existence is certain, but the extent of damages is not.”

Welch v. Leavey, 397 F.2d 189 (5th Cir. 1968). Welch was injured on November 24, 1961 and was determined by the Commissioner under the Longshoreman Act to have suffered a permanent partial-disability to his back. Welch had subsequently been promoted and had an increase in salary from $10,790 in 1959 to $14,927 in 1964. The Longshoreman Act 33 U.S.C. § 908(c)(21) required compensation equal to 66 2/3 percentum of the difference between his average weekly wages and his wage-earning capacity thereafter in the same employment or otherwise. Because the Deputy Commissioner had determined that Welch’s wage-earning capacity had increased rather than fallen, no permanent award was made. Welch appealed. In denying Welch’s appeal, the 5th Circuit cited section 908 (h) of the Longshoreman Act as follows: “The wage-earning capacity of an injured employee * * * shall be determined by his actual earnings if such actual earnings fairly and reasonably represent his wage-earning capacity; provided, however, that if the employee has no actual earnings or his actual earnings do not fairly and reasonably represent his wage-earning capacity, the deputy commissioner may, in the interest of justice, fix such wage earning capacity as shall be reasonable, having due regard to the nature of the injury, the degree of physical impairment, his usual employment, and other factors or circumstances in the case which may affect his capacity to earn wages in his disabled condition including the effect of disability as it may naturally extend into the future.” 

August 9, 2010

Hopper v. M/V UBC Singapore, 2010 U.S. Dist. LEXIS 70716 (S.D. Tex. 2010). This memorandum granted defense motions to exclude the testimony of three plaintiff experts, including Dr. Kenneth McCoin, an economist. The Court said: “In the Fifth Circuit, lost future wages in maritime cases are calculated using a four-step process: (1) estimate the expected remaining work-life of the plaintiff; (2) calculate the lost income stream; (3) compute the total amount of damages; and (4) discount that total amount to its present value. Culver v. Slater Boat Co., 722 F.2d 114, 117 (5th Cir. 1983)(en banc). . . ‘Calculation of the lost income stream begins with the gross earnings of the injured party at the time of the injury.’ From the gross earnings combined with other income incidental to the injured party’s work, ‘the fact finder should subtract amounts the wage earner would be required to pay, such as income tax and work expenses.’. . Where the injury results in the wage earner’s death, ‘the maximum loss of benefits to the survivors cannot be determined without also subtracting the living expenses that the worker would have incurred had he continued to live and work. . . The record establishes that McCoin, while acknowledging the Culver procedure, failed to comply with it in any meaningful way. McCoin began his analysis with $93,000.00 as Hopper’s gross earnings at the time of his death in April 2009. His only source for this figure was the representation of Plaintiff’s counsel. . . McCoin had the relevant payroll information, including 1099 forms, pay stubs and unfiled tax returns, but he elected not to consider this information. Had he reviewed the actual payroll records, he could have determined that Hopper’s annualized gross revenue for 2009 was $69,000. Alternatively, he could have determined that Hopper’s historical annual gross revenue was $73,067. Instead, McCoin chose to accept the figure provided by Plaintiff’s counsel. This is clearly not ‘the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.’ McCoin failed to deduct all the taxes that Hopper would be required to pay. Although McCoin issued a timely revision to his report, deducting $299,039.00 in Social Security taxes he initially failed to deduct, the original failure to deduct all applicable taxes reflects the lack of ‘intellectual rigor’ in McCoin’s analysis in this case. . . In calculating the living expenses that Hopper would have incurred had he continued to live and work, also referred to as the personal consumption deduction, McCoin relied on a Department of Labor report entitled, ‘Consumer Expenditures for 2007.” There is no evidence that this report is routinely used or generally accepted by economic experts for calculating a personal consumption deduction. Indeed, the report is a survey of household expenses for a year, not an analysis of the amount any individual would be expected to consume over an extended period of years.’” 

September 2, 2010

Kuithe v. Gulf Caribe Maritime, Inc., 2010 U.S. Dist LEXIS 89661 (S.D. Alabama 2010). The defendant challenged the trial court decision on the ground that the report of the plaintiff economic exert’s reduction of the plaintiff's lost future earnings to present value did not employ the below-market discount method required  by Culver v. Slater Boat Co., 722 F.2d 114 (former 5th Cir. 1983) (en banc) ("Culver II"). The court said: “It is clear that the report of the plaintiff's expert does not employ the below-market discount rate method required by Culver II. Instead, it uses a nominal interest rate of 4.5%. However, the expert in his deposition testimony made clear that he utilized an inflation rate of 3.5% in calculating the plaintiff's lost future income and that, had he used the below-market discount method, he would have used the same inflation rate and a below-market discount rate of 1%. He also testified that, had he used the below-market discount rate method, his figures for the present value of lost income would have been exactly the same (because the 3.5% would have been deducted from both the future income stream and the discount rate). The plaintiff thus presented expert evidence of a below-market discount rate and of lost income using that method. The defendant's motion for judgment on partial findings is due to be denied in this respect.”

November 21, 2010

Blackwell v. Wyeth, 408 Md. 575; 971 A.2d 235 (Maryland 2009). This decision affirmed the decision of trial court Judge Berger preclude expert testimony claiming that the drug thimerosal in a vaccine might have been the cause of autism in Jamarr Blackwell. In this decision Maryland’s highest court (Court of Appeals) also reaffirmed that Frye-Reed standards applicable in Maryland and not Daubert standards for the admission of expert testimony under Maryland Rule 5-702, which is Maryland’s equivalent of Rule 702 in the Federal Rules of Civil Procedure. The “Frye” part of the Frye-Reed standard is based on the federal decision in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Maryland adopted the Frye standard of “general acceptance within the relevant profession” in Reed v. State, 283 Md.375; 391 A.2d 364 (1978). The trial court judge had held a ten-day evidentiary hearing before excluding the testimony of plaintiff’s experts. The Court of Appeals went to great length to describe the testimony in Blackwell and to explain Maryland’s reliance on the “general acceptance” criterion in Frye. However, the Court cited a number of Daubert-based decisions in reporting its analysis, particularly the U.S. Supreme Court decision in Joiner v. General Electric Company, 522 U.S. 136 (1997).  In Joiner, the U.S. Supreme Court spoke about avoidance of an “analytic gap” between the evidence presented and the inferences to be drawn as necessitating speculation on the part of a jury. Joiner was also cited as having “admonished against reliance solely on an expert’s word that his conclusion is appropriate to the underlying data and methods.” The Blackwell Court went on to cite a number of cases in other states in which there was focus on the issue of the “analytic gap” between the evidence to be presented and conclusions to be inferred. Based on those cases, the Blackwell court looked in detail at the basis for the proposed testimony of plaintiff experts and found that none of the methods used by those experts to establish a causal link between thimerosal and autism was generally accepted in the medical professions relevant to admission of the testimony. The trial court judge determined that none of five plaintiff experts was expert in the relevant field, which Judge Berger had determined to be epidemiology. In upholding Judge Berger’s conclusion, the Blackwell Court said: “When a novel theory of science is presented . . . its reliability and validity are dependent not only on the application of generally acceptable methodology and analysis, but also upon the knowledge, skill, experience, training or education of the scientist who purports to utilize them, because the expert must embody expertise in the relevant scientific field to be able to give an opinion regarding the results of the process of scientific discovery.” The Blackwell Court held that since none of the five plaintiff experts had expertise relevant to maintaining  generally accepted standards in analyses relating to autism and its causes, the trial court judge had not abused his discretion in precluding the testimony of those experts. The Court added that: “[W]e agree with the well-reasoned and cogent opinion of Judge Berger.”

Estate of Shearer v. T & W. Tool and Die Corporation, 2010 WL 2870266; 2010 U.S. Dist. LEXIS 73197 (E.D.KY 2010). The Court held that the hedonic damages testimony and loss of relationship testimony of economic expert Dr. Stan V. Smith was not admissible under Federal Rule 702 and Daubert Standards. The reason given for non-admissibility, however, was that there is no right to recover for loss of enjoyment of life or loss of relationship in a Kentucky wrongful death action. Thus, Smith’s testimony was precluded as irrelevant to the issues to be resolved in litigation. There was no assessment of the scientific merits of hedonic damages testimony.

November 24, 2010

Janda v. Michael Renzi Trust, 2010 NY Slip Op 8534; 2010 N.Y. App. Div. (N.Y. App. 2010). This decision involved an appeal from the defense regarding, among other issues, the base income of the plaintiff. The Appeals Court said: “[A]s the defendants correctly contend, the plaintiff's economist erroneously projected the plaintiff's lost earnings based on an annualization of his earnings for the year 2005. The record establishes that the plaintiff earned $ 25 per hour for the first half of 2005 and only $ 15 per hour subsequently, until the date of the accident. Since no evidence was adduced that the plaintiff would again have earned $25 per hour, the economist's earnings projection  was incorrect to the extent it was based on that assumption. Accordingly, the awards for past and future lost earnings are excessive to the extent indicated.”

December 23, 2010

Helpin v. Trustees of the University of Pennsylvania, 2010 Pa. LEXIS 2911 (Pa 2010). The Pennsylvania Supreme Court renewed its commitment to its decision in Kaczkowski v. Bolubasz, 421 A.2d 1027 (Pa. 1980), holding that calculation of lost future earnings in Pennsylvania other than medical malpractice cases must be based on a 0% real discount rate, meaning that “viewed long term, inflation rate and interest rate will completely offset each other.” Justice Saylor’s dissent called for normal discounting, as in other states.

December 31, 2010

Schnebly v. Baker, 217 N.W.2d 708 (Iowa 1974). The Iowa Supreme Court upheld a trial court decision that the cost of life care for a child would increase at the same rate as the discount rate. The decision appeared to assume that the rate of inflation and the rate of the cost of care for the child were the same growth rate. This was a case cited in Paducah Area Public Library v. Terry, 655 S.W.2d 19 (1983) as having allowed a total offset assumption by the trial court. However, the essence of the decision was that inflation could be considered, but that future values should be reduced to present value. The trial court had offset future inflation with the discount rate and the Schnebly court held that was permissible based on the evidence in the Schnebly case. 

January 1, 2011

Kaczkowski vs. Bolubasz, 421 A.2d 1027 (Pennsylvania 1980). The Pennsylvania Supreme Court held that damages should be based on a “total offset” between rate of inflation and discount rate in all Pennsylvania cases, but allowed Pennsylvania trial courts to have testimony about productivity gains an individual worker might have achieved over his or her lifetime. In its analysis, the Court rejected theories that ignored the impact of future inflation, but ultimately chose between “the evidentiary approach” taken by the Court in Feldman v. Allegheny Airlines, 382 F. Supp 1271 (D. Conn. 1974), aff’d 524 F.2d 384 (1st Cir. 1975) and a modified version of the “total offset” approach taken by the Alaska Supreme Court in Beaulieu v. Elliot, 434 P.2d 665 (1967). Beaulieu did not separately consider productivity increases, which Kaczkowski allowed. The Kaczkowski court said: “Upon proper foundation, the court shall consider the victim’s lost future productivity. Moreover, we find as a matter of law that future inflation will be presumed equal to future interest rates with these factors offsetting. Thus, the courts of this Commonwealth are instructed to abandon the practice of discounting lost future earnings. By this method, we are able to reflect the impact of inflation on these cases without specifically submitting this question to the jury.” Justice Flaherty dissented, saying: [S]uch an approach is a simple one, but it does not achieve justice, and, has only been adopted in one jurisdiction, i.e. Alaska. We should simply permit expert testimony on the issues of inflation and productivity.” On March 2, 2002, the Pennsylvania legislature enacted The MCARE Act (PA 2002-13) requiring that ordinary discounting procedures should be applied in medical malpractice cases to projections of lost earnings, but other types of cases in Pennsylvania still require use of total offset discounting.  

January 17, 2011

Mitchell v. Buchheit, 559 S.W.2d 528 (Missouri 1977).  In this decision, the Missouri Supreme Court reversed previous case law that prevented parents from suing for damages during the majority of adult children, as had been the case under earlier versions of the Missouri Wrongful Death Act. The Court said: “Parents, seeking to recover for the death of a minor child, should not be prohibited from trying to establish a reasonable probability of pecuniary benefit from the continued life of said child beyond the age of minority.” 

February 17, 2011

Matlock v. Greyhound Lines, Inc. 2010 U.S. Dist. LEXIS 92359 (D. Nev. 2010).  The defendant argued that hedonic damages are a component of pain and suffering and are not a separate and distinct compensatory award, and that expert testimony is required to support a claim for hedonic damages. The Court said: “The Court does not agree. Hedonic damages are ‘monetary remedies awarded to compensate injured persons for their noneconomic loss of life's pleasures or the loss of enjoyment of life.’ Banks ex rel. Banks v. Sunrise Hosp., 120 Nev. 822, 102 P.3d 52, 61--64 (2004). In Banks the Nevada Supreme Court found that expert  testimony is not required, but may be utilized to assist a jury in making its determination of hedonic damages. Additionally, the Banks court found that awards for hedonic damages are typically not permitted separate and apart from pain and suffering damages. As in Banks however, the award here was not prejudicial ‘because the jury could have easily added the value of the hedonic loss to the pain and suffering award.’”

March 8, 2011

Couch v. Astec Industries, Inc., 2002 NMCA 84 (New Mexico Court of Appeals 2002). This decision reconfirms that a trial court judge can admit testimony by an economic expert about hedonic damages in a personal injury case in New Mexico.  Brian McDonald had testified at the trial court level that the value of a statistical life lies between $500,000 and $11 million, with $3 million as the average. McDonald testified that this figure represented “the value of an entire life from cradle to grave and included earnings as well as intangible enjoyment.” McDonald declined to specify a percentage of a whole life that the plaintiff lost because of his injuries. The defense appealed on the basis that failure to specify a percentage rendered his testimony unhelpful to a jury. The Court of Appeals responded: “We disagree. McDonald’s testimony regarding a statistical life gave the jury a range of monetary values that likely proved helpful in evaluating Plaintiff’s claim. He also provided concrete guidance to the jury in determining a percentage of the monetary value that might reasonably compensate plaintiff. . .[I]f McDonald had complied and offered a specific value for Plaintiff’s hedonic damages claim, he would have intruded improperly into the fact finder’s domain.” The court cited Smith v. Ingersoll-Rand Co, 214 F.3d 1235 (10th Cir. 2000) as indicating that the role of an economic expert regarding hedonic damages in New Mexico was one of explaining the general concept of hedonic damages and the nature of the statistical studies in the value of life literature.

March 16, 2011

Adkins v. Hontz, 2011 Mo. App. LEXIS 316 (Mo. App. 2011). This decision affirmed the trial court in a cross appeal of a wrongful death verdict in a case involving the death Malorie Adkins, a 13 year old girl.  Among other issues upheld on appeal, the trial court had refused to admit the testimony of Ina K. Zimmerman, an expert witness in caregiving for the elderly, on the sum of economic damages resulting from services the decedent child could have provided to the plaintiff parents of the decedent child. The Court of Appeals pointed out that Zimmerman was not an economist and that the plaintiff had also provided the testimony of economist John O. Ward “who extensively testified to the loss of earnings available to her survivors had Malorie had some college education, if she had earned a college degree, and if she had a master’s degree.” The Court added: “Dr. Ward also testified as to the value of the loss of services, attention, filial care, and protection suffered by the plaintiffs because of Malorie’s death. Dr. Ward’s testimony extensively addressed the subject matter of Zimmerman’s excluded testimony.” The jury awarded $100,000 for past non-economic damages; $375,000 for future non-economic damages; $17,771.16 for past economic loss; $0 for future economic loss. In a combined survival action, the jury also awarded $50,000 to the estate of Malorie Adkins for conscious pain and suffering in the process of dying.


March 17, 2011

Sigur v. Emerson Process Management, 492 F. Supp. 2d 565 (M.D. La. 2007). Testimony of Philip A. Garrett, CPA, regarding loss of sales as the alleged result of actions of the defendant was excluded. The Court said: “[W]hile it is permissible for an expert to be retained solely for the purpose of opining on the issue of lost sales or damages, such an opinion is only relevant if it is based upon correct causal assumptions. In other words, Garrett's opinion concerning the quantity of Sigur's lost sales from January 1, 2005 to December 31, 2005 lacks the "relevance" to this lawsuit, required by Fed. R. Evid. 702, if it is not based upon a correct assumption that such losses in sales were caused by the alleged conduct of the defendants, and the Court therefore deferred issuance of a final ruling on defendants' motion to exclude to allow Sigur the opportunity to submit some competent evidence demonstrating that the causal ssumptions underlying Garrett's opinions are valid and that other factors which may have impacted Sigur's sales during the relevant time period, such as market conditions and the sales history of the customers at issue, were considered in determining causation. In conclusion, the Court noted that, if Sigur is able to submit competent, summary judgment-type evidence indicating that there is, at the least, a genuine factual dispute concerning the underlying causal assumptions upon which Garrett relied in forming his opinions, Garrett's opinions as to damages will have relevance to this matter,  and the Court can then proceed to determine whether Garrett's methodology in calculating Sigur's damages satisfies the requirements of Daubert.” The court then held that evidence did not support the causal assumptions used by Garrett.

March 24, 2011

Gurule v. Ford Motor Company, 2011 N. M. Unpubl. LEXIS 51 (N.M. App. 2011). The New Mexico Court of Appeals held that it was not in error for the trial court judge to have admitted the hedonic damages testimony of William Patterson. The Court said: “While we recognize that most courts have found quantifying the value of a human life, including the loss of enjoyment component, to be based on an unreliable methodology post-Daubert, we do not believe that the district court erred in finding Patterson's testimony reliable. . . Contrary to Defendant's characterization of Patterson's testimony, Patterson's testimony was mostly definitional in nature as to the types of considerations that can be taken into account when an economic value is placed on the enjoyment of a human life. He testified that economists have used several differing methods in valuing a human life, including the enjoyment component, and that application  of these methods has led to a wide disparity in the dollar amounts that economists have provided as benchmarks. He then provided a very broad range of values for an individual Gurule's age, based on present value calculations of an annual range determined by a meta-study that averaged 67 individual studies to exemplify the wide divergence between economists in determining the value of the enjoyment of life. We cannot say that the district court abused its discretion in finding that this testimony had a reliable basis. . . Patterson testified only as to the theories and techniques economists use in determining the value of a human life, and his calculations were not based on his personal perceptions on the value of enjoyment of life, but instead were based on values derived from a benchmark meta-study. As to Patterson's qualifications, he has a bachelor's degree in economics, has taught a variety of economic topics, has authored materials on a variety of legal-economic topics, including the valuing of life, has been an expert in court over 120 times, including testimony regarding hedonic damages, and has been retained by Defendant in other cases. Additionally, Defendant cross-examined Patterson both on his qualifications and on his testimony. A general economic background in conjunction with experience as an expert are sufficient qualifications for expert testimony on the economic theories underlying the values provided by benchmarks studies on loss of enjoyment of life and calculating the present value of a range of benchmarks. . . Based on the nature of Patterson's testimony and his background, we cannot say that the district court abused its discretion in finding that Patterson was qualified as an expert.”

April 23, 2011

Swartz v. Gale Webb Transportation Company, 215 S.W.3d 127 (Missouri 2007). Megan Swartz was injured in an automobile accident. The decision deals with medical consequences of her injury that could not satisfy the “more likely than not” requirement. The trial court decision to allow testimony about her increased risk of those medical consequences was upheld. The Missouri Supreme Court held that: “[W]hen an expert testifies to a reasonable degree of certainty that the defendant’s conduct placed the plaintiff at increased risk of suffering future consequences, Missouri courts have long held that such testimony is admissible to aid the jury in assessing the extent and value of the plaintiff’s present injuries, even if those future consequences are not reasonably certain to occur.” The court rejected an approach used in Illinois and Connecticut that argued that: “A plaintiff can obtain compensation for a future injury that is not reasonably certain to occur, but the compensation would reflect the low probability of occurrence,” negatively citing Dillon v. Evanston Hosp., 199 Ill. 2d 4839 (Ill. 2002). Instead, the Missouri Supreme Court said: “[E]vidence of Ms. Swartz’s increased risk of future harm was admissible for purpose of establishing the extent and nature of her injuries. . . That Ms. Swartz’s present injury brings with it this increased risk of future injury ‘is information the jury should have in the difficult task of trying to give plaintiff’s condition a dollar value,’” citing Vitt v. Ryder Truck Rentals, Inc. 340 So. 2d 962, 965 (Fla. App. 1977). 
 
Deck v. Teasley, 322 S.W.3d 536 (Missouri 2010). This decision addressed the meaning of subsection 490.715.5 of the Missouri code that was newly enacted in 2005. That section “codifies the common law collateral source rule and modifies it in certain respects.” That subsection provides that evidence of the dollar amount necessary to satisfy the financial obligation to health care providers is admissible at trial and creates the rebuttable assumption that such amount represents the value of the medical treatment rendered. The court then said: “The effect of that presumption is governed by the general law of presumptions. A presumption places the burden of producing substantial evidence to rebut the presumed fact on the party against whom the presumption operates. . . When substantial evidence is produced rebutting the presumed fact, the case is decided on the basis of the evidence as if no presumption existed. . . In other words, when a presumption is rebutted, it disappears from the case and the fact finder received the issue free of any presumption.” The Court later added: “The legislature’s use of a ‘rebuttable presumption’ is consistent with its recognition that the item of damage for which recovery is sought is the value of the services rendered, not a reimbursement of amounts paid by a collateral source. Therefore, the legislature permitted a party to introduce evidence that a figure other than the amount actually paid represented the value of the services rendered in the particular case.” In the Deck matter, the jury was only permitted to hear evidence that the value of Ms. Deck’s medical treatment was $9,094.28, the amount Ms. Deck, Medicare and supplemental insurance actually paid for the treatment after adjustment and held that the jury should also have been permitted to  hear evidence that the value of her medical treatment was $27, 991.30, the amount originally billed by medical service providers as evidence of the value of the medical services she required.

Martinez v. Milburn Enterprises, Inc., 290 Kan. 572; 233 P.3d 204 (Kansas 2010). On July 23, 2005, plaintiff Karen Martinez slipped and fell while shopping at defendant’s business in Lyons, Kansas. She underwent back surgery at Wesley Medical Hospital and was ultimately billed $70,496.15. The hospital accepted $5,310 in satisfaction of the bill; $4,689 from plaintiff’s private health insurance company, Coventry health Systems (Coventry), and $621 from plaintiff as her deductible and co-pay. Pursuant to its contract with Coventry, the hospital wrote off the balance of $65,186.15. The issue on appeal was whether she could recover as medical costs the amount originally billed or the amount accepted by the medical provider in payment, regardless of the source of the payment. In a long decision, the Court reviewed three approaches it found in other states: (1) Reasonable value of services; (2) Actual amount paid; and (3) Benefit of the Bargain. Reasonable value of services would often, but not always mean using amounts originally billed as the reasonable value of the services that could be recovered by plaintiffs. Actual amount paid is the amount paid by third party providers. Benefit of the bargain “allows plaintiffs to recover the full value of their medical expenses, including the write-off amount, when the plaintiff has paid some consideration for the benefit of the write-off.” The Court rejected the benefit of the bargain approach proposed by the plaintiff, accepting a “reasonable value” approach that expressly rejects an automatic assumption that amounts charged are the “reasonable value” of the amounts to be recovered, stating that: “Evidence demonstrating that the charged amount is not reasonable typically has been admitted through cross-examination of plaintiff’s witnesses, by direct examination of defendant’s witnesses, or both.” The Court went on to say: “[W]e note that according to KADC’s brief, studies performed earlier in this decade reveal that the average charge-to-cost ratio (i.e. ‘mark up’) for approximately 4,000 hospitals across the country was 244.37%. Wesley Medical Center, the hospital where our plaintiff underwent her surgery and treatment, had a charge-to-cost ration of almost 400% according to the study.” The Court held that evidence of discounts was admissible, but that the fact that the discounted values were paid by collateral sources was not.

May 7, 2011

Oliveros v. Romm, 2011 Wash. App. LEXIS 1069 (Wash. App. 2011). From the decision: “Dr. Clarence H. Barnes testified that the Oliveroses’ past and future damages post-2002 accident totaled $836,818. The defense did not put on an expert to controvert Dr. Barnes’s testimony.” After the verdict, one of the jurors contacted the attorney for the plaintiff’s to claim juror misconduct by the jury foreman and an appeal was filed based on that claim. One of the claims of misconduct was that the jury awarded $61,000 for past and future noneconomic damages, but zero sums for economic damages even given that the economist’s figures and medical bills were uncontroverted. The Court of Appeals held, however, that there was no juror misconduct and affirmed the verdict. 

Smith v. Jenkins, 2011 U.S. Dist. LEXIS 47742 (D. MA 2011). In a case involving a claim of fraud, defendant’s appealed partly based on an argument “that Smith's damages were based solely on the expert testimony of Dr. Stanley Smith, a forensic economist (who is not related to the plaintiff), which defendants argue should not have been admitted. It is true that Dr. Smith's testimony was hardly a model of exactitude, and in retrospect, it perhaps should have been excluded, but it is equally true that from every appearance, the jury did not base its damages award on those portions of Dr. Smith's relatively brief testimony that veered from the mundane into the purely speculative. (The court instructed the jury to disregard Dr. Smith's attempt to import a wholly conjectural potential tax liability into his "willingness to pay" econometric model and refused to admit his written report in evidence). It appears rather that the jury based its far less ambitious awards against those defendants it found liable on a common-sense assessment of the impact that the ruin of Smith's credit had (and will have) on his emotional health and future earning prospects.” One of the defendants “made a more amplified argument that the damages testimony of Dr. Smith was unreliable and should have been excluded on Daubert grounds. As the court is of the view that Dr. Smith's testimony (to the extent the jury was permitted to consider it) had no pernicious influence on the damages award, it will reject this argument.”

May 8, 2011

Urban Court Reporting v. Arnold Davis, 158 A.D.2d 401; 551 N.Y.S.2d 235 (New York App. Div. 1990).  The Appeals Court said: “[C]ontrary authority notwithstanding . . ., we think that an attorney who, on his client’s behalf, obtains goods or services in connection with litigation should be held personally responsible unless the attorney expressly disclaims such responsibility.”

May 12, 2011

Gregory  v. Carey, 246 Kan. 504 (1990). The trial court had rejected testimony by an annuitist. The Kansas Supreme Court indicated that the rejection was within the discretion of the trial court judge, with discussion in the decision suggesting that the Kansas Supreme Court agreed with the trial court judge. The decision also held that the plaintiff, who was in a semi-comatose state, was entitled to recover for loss of enjoyment of life as a part of pain and suffering. There is also discussion of legislative changes in the collateral source rule in medical malpractice cases in Kansas. Revised listing.
   
Anderson/Couvillon v. Neb. Dept. of Soc. Services (Anderson II), 253 Neb. 813; 572 N.W.2d 362 (Neb. 1998).  This was a retrial mandated by Anderson/Couvillon v. Neb. Dept. of Social Services (Anderson I), 248 Neb. 651; 538 N.W.2d 732 (1995). Anderson I had held that Stan Smith was not permitted to present hedonic damages testimony. In Anderson II, the plaintiff had replaced Stan Smith with Robert Johnson as her economic expert. Johnson did not attempt to present hedonic damages testimony. Johnson was prevented by the trial court from testifying about earnings loss calculations based on the assumption that the plaintiff (a sexually abused child) would have graduated from college. The trial court held that without evidence that Anderson was considering college, Johnson’s testimony about loss of earnings with a college  would be too speculative. The jury made an award of $400,00 for pain and suffering, which included loss of enjoyment of life. The decision of the trial court was affirmed.     

Sheck v. Dalcorso, 2005 N.J. Super. Unpub. LEXIS 178 (N.J. App. 2005). The trial court rejected the hedonic damages testimony of Stan V. Smith, but allowed Smith to testify about the dollar value of the plaintiff’s loss of household services. Among issues considered in the appeal, the plaintiff appealed the decision not to permit Smith to testify about hedonic damages. The court considered prior decisions and law review articles for and against allowing an economic expert to testify about hedonic damages at some length and concluded that the trial court judge “was (not) in an informed position to rule on the issue.” The appeals court directed the trial court judge to reconsider the issue at length before deciding whether or not to permit Stan Smith to testify about hedonic damages. It also authorized either side to seek interlocutory relief prior to trial if that side was not satisfied with the judge’s decision on that issue. 

May 13, 2011

Glover v. Hester, 2011 U.S. Dist. LEXIS 39093 (W.D. LA 2011). This is a memorandum in response to defendant’s Daubert motion to exclude the economic damages expert Anthony A Juneau, Jr., a Certified Public Accountant on the ground that Juneau is not an economist. The court denied the motion to exclude Juneau, indicating that the reliability of Juneau’s testimony does not depend on Juneau’s academic background, that Juneau’s testimony is sufficiently tied to the facts of the case to be admissible, and that the court considered determining present values to be more than a lay matter such that “these damage calculations are beyond the general ken of the average juror.”

May 14, 2011

Eskelson ex rel. Eskelson v. Davis Hosp. and Medical Center, 2010 UT 59; 242 P.3d 762 (UT 2010). Rule 702of the Utah Rules of Evidence, as amended in 2007,  provides:

(a) Subject to the limitations  in subsection (b) if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. (b) Scientific, technical, or other specialized knowledge may serve as the basis for expert testimony if the scientific, technical, or other principles or methods underlying the testimony meet a threshold showing that they (I) are reliable, (ii) are based upon sufficient facts or data, and (iii) have been reliably applied to the facts of the case. (c) The threshold showing required by subparagraph (b) is satisfied if the principles or methods on which such knowledge is based, including the sufficiency of facts or data and the manner of their application to the facts of the case, are generally accepted by the relevant expert community.

Commenting on the new version of the rule, the Ekelson court said:

Rule 702(a) requires the court to consider whether expert testimony is necessary to assist the trier of fact and whether the proposed expert has the necessary “knowledge, skill, experience, training or education” to provide such assistance to the trier of fact. After determining whether the expert is so qualified, the court then turns to the reliability of the “scientific, technical, or other specialized knowledge” that serves as the basis for hte expert’s testimony. Utah R. Evid. 702(b).

May 15, 2011

Arble v. State Farm Mutual Ins. Co., 2011 U.S. Dist. LEXIS 8202 (D. NM 2011). This decision is a Memorandum and Order Denying Defendant’s Motion to Strike Plaintiff’s Expert Witness Rob Painter. The defendant had disclosed its expert Michael Hearrold on the last day possible for a defense expert to be disclosed. The plaintiff then filed a motion in limine to exclude Hearrold based entirely on Painter’s Affidavit regarding Hearrold’s opinions, indicating that Painter only testify at the Daubert hearing regarding Hearrold, but not at trial. The defense challenged plaintiff’s use of Painter as untimely. The Court held that Painter did not need to have been disclosed under Rule 26(a)(2)(A) and that Painter was not required to submit an expert report under Rule 26(a)(2)(B) given that Painter’s role was to be limited to the Daubert hearing.

Chambers v. Village of Moreauville, 10-01368 (La. App. 3 Cir. 04/06/11); 2011 La. App. LEXIS 415 (La. App. 2011). This was an appeal of a trial court award for $54,148 in future lost wages, $10,000 in future medical expense, $200,000 for general damages/pain and suffering, and $25,000 for hedonic damages. The court upheld the awards for general damages/pain and suffering and hedonic damages, held that the $10,000 for future medical expense be placed in a reversionary trust, and reversed the award for future lost wages. The court explained that the award for future lost wages was based on the testimony of Dr. G. Randolph Rice. Rice had projected a loss of $54,148 if Chambers lost her current job at the correctional center on the date of trial and was able to procure employment at $9.00 per hour. The Court said: “[T]he record is devoid of evidence that Chambers more probably than not would lose her job with the center [Pg. 13] due to her injuries. Indeed, she received a merit promotion and pay raise after the accident. She missed relatively little work considering the complexity and severity of her injury. An award of loss of future earning in this instance is simply too speculative and is manifestly erroneous.”

May 17, 2011

Robinson v. Bates, 112 Ohio St. 3d 17; 2006 Ohio 6362; 857 N. E.2d 1195 (OH 2006). The Ohio Supreme Court held that the collateral source rule does not apply to bar evidence of the amount accepted by a medical care provider from an insurer as full payment for medical or hospital treatment. Both the amount billed by the provider and the amount paid by the insurer are admissible to prove the reasonable value of medical treatment. It is a matter for the jury to decide the reasonable value of medical services that can be recovered by an injured plaintiff. This decision was in part based on R.C. 2315.20 that was passed in 2005 by the Ohio legislature allowing a defendant in a tort action allowing a defendant to introduce “evidence of any amount payable as a benefit to the plaintiff as a result of the damages that result from an injury.” This decision reviewed decisions in other states on the question of what is admissible. The court  found that ten states had concluded that a plaintiff is entitled to recover the full amount of reasonable medical expenses charged, including amounts written off from the bills pursuant to contractual rate reductions, citing cases in South Dakota, Delaware, District of Columbia, Georgia, Hawaii, Illinois, Mississippi, Missouri, South Carolina, Virginia, Wisconsin, and Louisiana. The court listed Pennsylvania, California, Idaho, and Florida as concluding that plaintiffs may only recover amounts actually paid. The court also indicated that the Ohio General Assembly found that “[t]wenty-one states [other than Ohio] have modified or abolished the collateral source rule.”

Stanley v. Walker, 906 N.E.2d 852 (IN 2009). At the trial court level, the defendant tried to introduce evidence of the discounted amounts actually paid. The plaintiff objected, arguing that Indiana’s collateral source rule bars evidence of insurance benefits. The trial court agreed with the plaintiff. The Indiana Court of Appeals affirmed the trial court decision. The Indiana Supreme Court reversed the trial court decision and held that: “To the extent that discounted amounts may be introduced without referencing insurance, they may be used to determine the reasonable value of medical services.” The decision held that the Indiana legislature had “abrogated” and replaced the collateral source rule with a collateral source statute in I.C. § 34-44-1-2. The court explained that evidence of the amounts originally billed are admissible but that the defendant could provide contradictory evidence, including expert testimony, as long as the fact that amounts paid were paid by an insurer was not mentioned. The court pointed out that this is what the defense in the Stanley case had attempted to do. Stanley had conceded that the collateral source statute prevented Stanley from mentioning that third parties had paid the plaintiff’s bills, but wanted to submit evidence to the jury that would show the amount accepted in satisfaction of medical charges in this case. “Because Stanley sought to do so without referencing insurance,” the Indiana Supreme Court held that the defendant should have been permitted to do so.

May 18, 2011

Celebrity Cruises Inc. v. ESSEF Corp, 434 F. Supp. 2d 169 (S.D.N.Y. 2006). One aspect of this decision related to the application of a Daubert standard to the affidavit of an “attack expert” for purposes of a Daubert hearing. The court pointed out that both parties were operating under the incorrect assumption that the admissibility of testimony from the “attack expert” should be itself subject to a determination of admissibility under a Daubert standard.  The court explained that under Rule 104(a) of the Federal Rules of Evidence, the court is not bound by the rules of evidence except those with respect to privilege. The court said: “Thus, I need not determine whether Mr. Browning’s evidence would be independently admissible under Daubert. I need only determine whether it is sufficiently reliable to be persuasive in my evaluation of the expert report that it criticizes.” 

May 19, 2011

Nassau Anesthesia Associates v. Chin, 2011 N. Y. Slip Op 21178 (N.Y. Misc. 2011).  The court said:

[W]here a medical provider seeks a monetary judgment against an uninsured individual, the Court cannot ignore the realities of today's healthcare marketplace. At the Court's request, plaintiff provided the Court with information comparing the amounts charged to uninsured persons (such as defendant) and the amounts plaintiff would have accepted from major private insurers or the federal government under Medicare and Medicaid. The differences in payments are striking. According to plaintiff's billing supervisor, "[a] person without insurance, such as the Defendant, . . . would pay $8,675.00" for plaintiff's anesthesia services. In contrast, if defendant had been covered by Blue Cross Blue Shield, United Healthcare, or Vytra, plaintiff would have been paid between $5,208.01 (Blue Cross Blue Shield) and $6,970.00 (United Healthcare). Medicare, in turn, would have paid plaintiff only $1,605.29. And if defendant were covered by Medicard, plaintiff would have received just $797.50. Each of the foregoing amounts represents a fee calculation that reflects, in one way or  another, the supposed "value" of plaintiff's services. Although plaintiff requests  an award based upon its "uninsured patient" rates, it makes no claim that any of the lesser rates mentioned are "unreasonable" or that a lesser award would deny it "fair and reasonable" compensation. Consequently, at least  in cases, such as this one, where plaintiff submits nothing more than a conclusory assertion from its billing supervisor that plaintiff's fees are "customary and standard," the Court concludes that plaintiff's "customary and standard" fees are not conclusive and binding. To the contrary, as recognized in Temple Univ. Hosp. v. Healthcare Mgmt Alternatives, 2003 PA Super 332, 832 A.2d 501 (Pa. Super. Ct. 2003), the amounts "actually received" by medical providers from insurers are a far better indicator of the reasonable value of a provider's services than the "full published charged" unilaterally set by the provider.

The court awarded $4,252.11, plus interest, costs and applicable disbursements. That amount was calculated as the average amount that would have been accepted by third-party payers such as private insurers and federal health-care programs, as listed above.

May 21, 2011

Christus Health v. Dorriety, 2011 Tex. App. LEXIS 3755 (TX App. 2011). Dr Richard Bean was the economic expert for the plaintiff and had calculated present values for life care, lost earnings and lost household services for the plaintiff. During his trial appearance, Dr. Bean was confronted with the fact that he had prepared all of his calculation under the assumption that the plaintiff’s birth date was 1962 when it was in fact 1952. This was introduced as part of a challenge to the jury’s verdict, which the court denied, saying that “Pecuniary loss in a wrongful-death case is not subject to a precise mathematical calculation, and the jury is given significant discretion in determining this element of damages.” The court described Bean’s calculations before and after the mistake was discovered as follows:

Dr. Bean's original calculation for care for Timothy alone was $1,174,000. In addition, however, he testified that pecuniary losses would include lost income of $435,700, and loss of household services of $422,043. Thus, using these calculations, the jury could have begun its deliberation with evidence of pecuniary losses totaling $2,031,743. After Dr. Bean's mistake was discovered, he revised some of his calculations accordingly: (1) the estimate for care for Timothy changed from $1,174,000 to $230,000; (2) the lost wages number was reduced from $435,000 to $80,000; and (3) the calculations for household services remained the same at $422,043. The revised figures totaled $732,043.

May 24, 2011

Jones & Laughlin Steel Corp. v. Pfeifer, 103 S. Ct 2541, or 462 U.S. 523 (1983). This is the single most important case in the field of forensic economics. Justice Stevens delivered the opinion of the United States Supreme Court, which sets out a framework for how damages in a personal injury case should be presented by an economic expert.  The court is very careful not to specify a particular set of methods, as urged on it by various amici briefs that were filed, saying:

Because our review of the foregoing cases leads us to draw three conclusions. First, by its very nature the calculation of an award for lost earnings must be a rough approximation. Because a lost stream can never be predicted wtih complete confidence, any lump sum represents only a ‘rough and ready’ effort to put the plaintiff in the position he would have been in if not injured. Second, sustained price inflation can make the award substantially less precise. Inflation’s current magnitude and unpredictability create a substantial risk that the damages award will prove to have little relation to the lost wages it purports to replace. Third, the question of lost earnings can arise in many different contexts. In some sectors of the economy, it is far easier to assemble evidence of an individual’s most likely career path than others.

Instead of providing specific methods, the court provides a list of the issues that must be addressed in the report and the general framework for the methodologies that can be used to address those issues. The Pfeifer court indicated that if a court accepted a “below market” discount rate approach, a trial court is not likely to be reversed if it adopts a below market rate between 1% and 3% and “explains its choice.” The court also affirmed its earlier decision in Liepeldt that lost earnings must be projected in after-tax terms. Revised listing.

May 30, 2011

Valentine v. CSX, 2011 U.S. Dist. LEXIS 56407 (S.D. IN 2011).  This order by Judge Jane Magnus-Stinson addresses 16 motions in limine from the plaintiff, 8 motions in limine from the defense, and a defense motion to separate witnesses. The disposition of the first three of plaintiff’s motions are of interest to forensic economists. Plaintiff’s economic expert was Gregory Green, Ph.d.  The defense did not offer its own economic expert. The plaintiff wanted to preclude the defense expert from being asked questions relating to the Skoog-Ciecka railroad work-life expectancy tables on the ground that the tables are based on earning expectations rather than earning capacity. The court pointed out that Green himself had established the authority of the Skoog-Ciecka tables to establish Valentine’s earning capacity and held that the propriety of each table considered is a question of weight, not admissibility and allowed Green to be questioned about the Skoog-Ciecka tables. The court also refused to bar testimony about a document prepared by vocational expert Terry Cordray on behalf of railroads when retained by railroads. There is also indication that the court was concerned about whether or not Dr. Green’s testimony accounted for Tier I and Tier II taxes.

June 1, 2011

Ursini v. Sussman, 143 Misc. 2d 727; 541 N.Y.S.2d 916 (NY Misc. 1989). This decision goes through the steps required to implement a jury verdict under New York’s CPLR 5031. The decision does not specifically mention section 50-A, but this decision would fall under that section which is for medical malpractice cases. That section of CPLR 5031 has since been changed, but section 50-B for non medical malpractice cases is still the same as it was at the time of this decision. Much of the decision relates to determining the present value of periodic payments required under New York law for the specific purpose of determining the attorney’s fee. This order from Judge Gammerman explains how he determined the amount of the attorney’s fee. In order to make that determination, Judge Gammerman had to select a discount rate. He did so in the following manner:

Over the past several years, at least nine economists have testified  for both plaintiff and defendant) in cases involving claims for future losses. In discussing the appropriate discount rate to be used in reducing future losses to present value, the testimony of all nine fell within the range of 6% to 8%.  The court, thus, is adopting a discount rate of 7.5%. The use of such a discount rate (at the upper end of the 6% to 8% range) is, in my view, in keeping with the intent of the Legislature.  A higher discount rate reduces the attorney's fee thus providing greater payment to the client and further serves to reduce the defendant's premium (or cost) for the annuity policy required by the judgment.

June 2, 2011

McCann v. United States Lines, Inc., 803 F.2d 771 (2nd Cir. 1986). Judge Kaufman described how damages in a personal injury matter should be calculated:

If the award were disbursed at the precise moment of injury, and if the economy were free of inflation, this calculation would represent a fair award of damages. However, neither of these assumptions holds true. Therefore, certain adjustments must be made. Consider inflation first. Just as the defendant would be unfairly penalized if required to pay the full $100,000 today, rather than the discounted sum of $73,601, so would the plaintiff be undercompensated if the court failed to account for the effects of inflation on his award. Therefore, courts will either subtract the estimated rate of inflation from the prevailing market rate of interest before discounting the judgment to present value or account for the effects of inflation in projecting the plaintiff's wages. Doca v. Marina Mercante Nicaraguense, S.A., 634 F.2d 30, 34-38 (2d Cir. 1980), cert. denied, 451 U.S. 971, 101 S. Ct. 2049, 68 L. Ed. 2d 351 (1981). Assuming an inflation rate of 4% and a prevailing interest rate of 6%, the discount rate would be reduced to 2%, and the damage award would now come to $89,826.

June 9, 2011

Risko v. Thompson Muller Auto. Group, 2011 N. J. LEXIS 630 (N.J. 2011). This was a wrongful death case. The New Jersey Supreme Court said:

As related to economic damages, plaintiff called economic expert, Dr. Robert P. Wolf, who opined that decedent would have lived for sixteen more years, during which she would have supplied emotional support for plaintiff, and that for 10.68 of those years, decedent would have been able to provide household services and physical support to her spouse. Dr. Wolf calculated that, based on these projections, plaintiff suffered economic loss in the amount of $143,988 in household services, $328,012 in "advice, counsel, support and companionship," and $562,307 in "passive security" constituting "sleep time [and] on-call  services" that a spouse provides. Dr. Wolf concluded that the sum of these figures, $1,034,307, represented the discounted value of plaintiff's economic loss. Defendant vigorously disputed the quantification and legitimacy of the "sleep time" calculations by plaintiff's expert.

In a footnote, the Court also added that: “Dr. Wolf defined ‘sleep time [and] on-call services’ as the time decedent ‘was there and available to [plaintiff] for any specific needs that may have arisen.’ For reasons not specifically related to Dr. Wolf’s testimony, the court held that a new trial on damages only must be held. 

Leitinger v. Dbart, Inc., 2007 WI 84; 302 Wis. 2d 110; 736 N.W.2d 1 (WI 2007). Following an injury to Joseph Leitinger, the health care provider billed $154,818.51 for the medical sevices provided to Leitinger. Leitinger’s health insurance company paid $111,394.73 to satisfy those bills. At issue was $43,424.78 that was originally billed, but not paid by Leitinger’s health insurance company. After providing coverage or previous Wisconsin cases regarding the issue of determining the “reasonable value” of medical services and the nature of the collateral source rule in Wisconsin, the majority held that “the collateral source rule prohibits parties in a personal injury action from introducing evidence of the amount actually paid by a collateral source for medical treatment rendered to prove the reasonable value of medical treatment.” Two members of the court dissented from this decision and would have allowed such evidence to be presented to a jury that must determine the “reasonable value” of the medical services needed by an injury victim.
                           
June 10, 2011

Temple University Hospital v. Healthcare Management Alternatives, 2003 PA Super 332; 832 A.2d 501 (PA Super 2003). At issue in this case was the amount that Healthcare Management Services (HMS) had to pay Temple University Hospital for services rendered. The trial court had held that HMS had to pay the amount billed by Temple University Hospital. The Superior Court reversed the trial court decision and held that the amount to be paid should be the “reasonable value” of the services provided, based on the average charge for the services at issue contained in contracts with government agencies and insurance companies. The court pointed out that published rates of the hospital were based “upon the manner in which it calculated its published rates, which were designed to offset the shortfall caused by its federal mandate to treat indigent patients. Healthcare’s economist, Dr. Allen Dobson, testified that the Temple University Health System received eighty percent or less of its full published charges. The court noted that:

Dr. Dobson also testified that based on the Hospital’s data, the full published charges in 1994 were approximately 172% of its actual costs. In addition, Dr. Dobson testified that private payers typically paid 121% of the cost of hospital services in 1994, 119% in 1995, and 112% in 1996.

Nassau Anesthesia Associates v. Chin, 2011 NY Slip Op. 21178; 2011 N.Y. Misc. LEXIS 2267 (District Court, Nassau County). This decision related to the amount that had to be paid by an uninsured patient of a bill for anesthesia at $8,675. The court pointed out that the average payer of medical bills does not pay the amount originally billed so that the amount originally billed cannot be assumed to be the “reasonable value” of the services rendered. After considering amounts paid by different types of third party payers, the court averaged amounts that would have been paid by third party payers, and held that Chin must pay $4,252.11.

July 5, 2011

DuPlantier v. Bisso Marine Co., 2011 U.S. Dist. LEXIS (E.D.La 2011). The defense issued a subpoena duces tecum on May 12, 2011, requiring that plaintiff economic expert John Theriot produce his reports in other cases for the previous five years. The plaintiff and Theriot filed a motion to quash the subpoena on June 29, 2011 even though motions to quash subpoenas with protective orders were required to be filed within two weeks of the receipt of the subpoena. The judge held that the plaintiff and Theriot had waived their right to file a motion to quash by not filling that motion within the two week deadline and denied the motion. The judge, however, persuaded the defense attorney to reduce the period over which reports must be provided to two years. The judge ordered that “John Theriot shall produce all of his expert reports for the last two (2) years in which he has used a person’s wage history instead of a single year’s earnings to calculate wage loss, redacting from those reports each claimant’s personal information, within two weeks within the signing of this Order” (bolding as in original). 

July 12, 2011

Nelson v. Rehabilitation Enterprises of North Eastern Wyoming, 1997 U.S. App. LEXIS 22339; 1997 Colo J. C.A.R 1696 (10th Cir. 1997). This is an unpublished decision. Under 42 U.S.C. § 1981a(b)(3)(B) a $100,000 cap existed on compensatory damages for sexual harassment and retaliatory discharge. A jury awarded $90,000 for sexual harassment and $100,000 for retaliatory discharge. The trial court judge held that $39,000 of the $100,000 portion of the retaliatory discharge award was for back pay. The 10th Circuit held that the judge had failed to provide clear jury instructions and a clear jury verdict form, but that there was no indication that the jury intended $39,000 to be for back pay and that the entire jury award was for compensatory damages subject to the cap in the federal statute, thus reducing the award form $139,000 to $100,000. The 10th Circuit avoided establishing a precedent with this decision, but made it clear that the problem in this case would have been avoided with clear judicial instructions and a better from for the jury to report damages that asked the jury to make separate findings with respect to each jury element.  

August 25, 2011

Michels v. United States, 815 F. Supp. 1244 (S.D. Iowa 1993).  Dr. Michael Sandberg, a professor of finance at Coe University relied on the Gamboa tables to project reductions in the worklife expectancy of Vincent Michels at age 19 of either 50.3 percent as a high school graduate or 32.3 percent as a college graduate. The Court identified the publication containing the “Gamboa report” as “the United States Department of Labor’s 1987 Worklife Expectancy of Disabled versus Non-Disabled Person’s by Sex, Race and Level of Educational Attainment.” (This was the correct title for the first version of the Gamboa tables that was published by Vocational Economics, not the United States Labor Department.) The Court provided several criticisms of the “Gamboa report,” saying that:

[T]he Gamboa report lumped together without differentiation persons suffering from both mental and physical disabilities. Michels suffers from no mental abnormalities, only physical impairments to his lower left extremity. Finally, while the subjects of the report were required to have at least a five percent whole body impairment or be eligible for social security benefits, the study does not evaluate the work life expectancy of individuals according to whole body disability ratings. Thus, it is not clear whether a person, such as Michels, who suffers from a twenty-five percent whole body impairment will have a reduced work life expectancy equal to the mean reduced work life expectancy of subjects in the Gamboa report. Therefore, the court will disregard Sandberg's reductions for work life expectancy. Indeed, Michels' own vocational rehabilitation expert, Mr. Marquardt, testified that based upon his current condition he did not believe Michels suffered a reduced work life expectancy. Equally as important, there was simply no medical evidence that Michels' present or expected future medical condition would reduce his work life expectancy. Thus, Dr. Sandberg had no basis in fact for projecting the results of the Gamboa report to Michels' present or future physical condition and his own work life expectancy.

August 26, 2011

Young v. Pleasant Valley School District, 2011 U. S. Dist. LEXIS 93151 (M.D. PA 2011). The plaintiff filed a motion to compel the defendant’s expert Dr. Edward Dragon to answer questions about his income providing expert testimony. Dragon is a management consultant who testified that the school district had reacted appropriately to questions about course content of a teacher that had allegedly created a sexually hostile environment. The intent of the question was potentially to show the bias of the witness. Judge Yvette Kane held that requiring Dragon to answer the question would have been “needlessly intrusive especially in light of the information’s marginal relevance. Judge Kane indicated that the defense had not shown why less intrusive information was insufficient.

August 27

Cummings v. BIC USA, 2100 U.S. Dist. LEXIS 95566 (W.D. KY 2011). Judge Joseph H. McKinney, Jr., denied a defense motion in limine to exclude the testimony of Plaintiff’s life care planning expert Cameron Parker, Plaintiff’s vocational expert Sharon Brown Hope and Plaintiff’s economic expert Dr. Lawrence Lynch. Judge McKinney explained why he found the testimony of each expert admissible in useful detail.

September 1

Russo v. Lorenzo, 2011 Fla. App. LEXIS 12477. The narrow issue on appeal was whether the lost retirement benefits of a decedent husband must be offset by the widow’s survivor benefit. The trial court had ruled that the widow’s benefit was a collateral source and not allowed the defense to question the plaintiff’s economic expert about the wife’s continuing benefits from her late husband’s retirement plan. The Appeals Court held that the loss of the husband’s retirement benefit must be offset by the value of the benefit being received by the wife. The husband had not reached retirement age and was not vested in the retirement plan at the time of his death, but his wife started to immediately receive retirement benefits. A footnote to the decision near the end of the decision said that: “During a proffer to the court, the economist put the value of the benefit, reduced to present value dollars at $1,222,636.” Earlier in the decision, the Appeals Court had said that the plaintiff’s economist had testified that the plaintiffs’ “had suffered between $1.5 and $1.8 million in lost support,” but that the jury awarded $11,537,700 in damages, $10 million of which was for pain and suffering of the decedent. It was not clear whether the economist referenced in the footnote was the plaintiff’s economist or another economist for the defense, but the decision to remand and require an offset appears to reduce damages for lost support from $1,537,700 by $1,222,636 to a figure of $315,064. This would also suggest that the value of the wife’s benefits after the death of her husband significantly exceeded the value of the decedent husband’s retirement benefits, starting from a future retirement date.

September 2

Howell v. Hamilton Meats & Provisions, Inc., 2011 Cal. LEXIS 8119 (Cal. 2011). The court said about the reasonable value of past medical expenses for which a plaintiff has sought recovery:

When a tortiously injured person receives medical care for his or her injuries, the provider of that care often accepts less than that stated in the provider’s bill as full payment, pursuant to a preexisting contract with the injured person’s health insurer, an amount less than state in the provider’s bill. In that circumstance, may the injured person recover from the tortfeasor, as economic damages for past medical expenses, the undiscounted sum stated in the provider’s bill but never paid by or on behalf of the injured person? We hold that no such recovery is allowed for the simple reason that the injured plaintiff did not suffer any economic loss in that amount. . .
   
The collateral source rule, which precludes deduction of compensation the plaintiff has received from sources independent of the tortfeasor from damages the plaintiff “would otherwise collect from the tortfeasor”. . . ensures that plaintiff here may recover in damages the amounts that were paid for her medical care. The rule, however, has no bearing on amounts that were included in a provider’s bill but for which the plaintiff never incurred any liability because the provider, by prior agreement, accepted a lesser amount as full payment.

At the trial court level, an original award of $189,978.63 was reduced to $130,286.90 based on the logic in Hanif v. Housing Authority, 200 Cal. App.3d 635 (1988). The California Court of Appeals reversed the decision of the trial court. With this decision, the California Supreme Court affirmed the standard in the Hanif decision and reversed the decision of the California Court of Appeals.

September 3

Rivera v. Passaic County, 2011 U.S. Dist. LEXIS 8069 (D. N.J. 2011). This decision related to whether the estate of Jesse M. Rivera could claim hedonic damages (loss of enjoyment of life) for a period of time prior to his death from hanging himself while in the general prison population. The defense argued that since Rivera attempted suicide, Rivera was obviously not enjoying his life. The District Court held that argument to be unavailable. The Court also relied upon the New Jersey decision in Eyoma v. Falco, 247 N.J.Super. 435 (1991) to hold that Rivera’s estate could claim hedonic damages during the period after hanging but before death when Rivera was comotose, but still alive, but ended when Rivera died. The final question related to when the period of hedonic damages loss began. The plaintiff wanted the period of hedonic damages to begin when Rivera was removed from suicide watch and placed in the general prison population on October 9, 2008. The District Court ruled with the defense that hedonic damages only began when Rivera hanged himself on the morning of October 13, 2008 and died seven hours later. Thus, the period of time during when the estate of Rivera was entitled to recover hedonic damages was seven hours. There was no mention of an economic expert in the decision.

Barclay v. Cameron Charter Boats, Inc., 2011 U.S. Dist LEXIS 87524; 2011 WL 346830 (W.D. La. 2011). This decision was a ruling on three motions, the first of which was a motion to exclude the testimony of Dr. Douglas Womack, an economist. Womack had projected a value for the future earning capacity of Jackie Ray Barclay on the basis of an assumption that Mr. Barclay would be able to return to work after his injury, but only at the federal minimum wage. The Court said:

This argument is not supported by any facts or evidence and thus amounts to pure speculation. While this assumption may represent a possibility; possibility alone cannot serve as the basis for an expert’s opinion. . . Because there is no evidence to support Dr. Womack’s minimum wage opinion, any expert testimony that includes these unsupported calculations of future eanings is inadmissible. This is not to say that it could not be supported by lay evidence if Mr. Barclay offered any; it merely reflects Mr. Barclay’s inability to meet his burden of establishing the reliability of Dr. Womack’s testimony. 

The court also held that a vocational expert opinion was not specifically required to establish the value of post-injury earnings.

September 4

Cowley v. Sunset Yacht Charters, Inc., 2011 U.S. Dist. LEXIS 80222 (S.D. Fla 2011). Judge James I. Cohn held that: “[A] vocational expert or economist is not an absolute prerequisite to prove a loss of earning capacity. . . Plaintiff’s evidence regarding future income will be based not only on his own testimony, but on his treating physicians’ testimony. . . The testimony will establish that, but for the injury, the Plaintiff could have continued to work in a ship captain capacity, i.e. the physician will opine that Plaintiff cannot return to gainful work in any capacity whatsoever.”

September 10
Darnell v. Hoelscher, Inc., 2011 U.S. Dist LEXIS 101165 (S.D. IL). Among other motions, the defense filed a motion to exclude the testimony of Dr. Lane Hudgins on the ground that her testimony would be based on unreliable facts or data, in that her testimony was based on the deposition of the decedent’s son rather than financial records or tax documents of the decedent’s business. Judge Gilbert said:

An expert may base her opinion on facts or data "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject" and "need not be admissible in evidence in order for the opinion or inference to be admitted." F.R.E. 702. Estimates of economic loss to a business by a knowledgeable employee of the business are the kind of data that can be "reasonably relied on by experts in the particular field in forming opinions or inferences upon on the subject." F.R.E. 703. The accuracy of the underlying data goes to the weight of the opinion evidence, not its admissibility, and can be challenged on cross examination of Robert Darnell and Dr. Hudgins. Therefore, the Court will not exclude Dr. Hudgins' testimony.

Riley v. Ford Motor Company, 2011 U.S. Dist. LEXIS 81889 (S.D. MS 2011). Judge Starrett denied the defendant’s motion to exclude the testimony of James Koerber. This decision was reached under the Mississippi Wrongful Death Act. As a result of an automobile accident, A. R., a minor, was killed. The calculation of special interest to forensic economists was the calculation of losses to the parents and surviving minor sibling, C.R. Koeber calculated the loss to survivors of A.R. by projecting lost earnings net of a personal consumption reduction of 49.18%. Ford challenged this percentage and argued that the appropriate consumption factor should have been between 72.6% and 97.7%, as projected by defense expert Carl Brooking. Koerber’s calculations used the Patton Nelson personal consumption tables, assumed a two person future household for A.R. Koerber relied upon family income in the Patton-Nelson tables and also assumed that A.R. would be married and used a figure for average earnings of a two person family. Judge Starrett acknowledged the weakness of using average earnings for a two person family to determine a reduction for personal consumption, but said: “Despite this obvious weakness in Koerber’s testimony, the Court believes that excluding his testimony would be an extreme measure.” Pointing out that both Kuerber and Brooking had used the Patton-Nelson tables, Judge Starrett added that: “[T]he court does not believe that Koerber’s use of the data for the average two-person household, as opposed to the data for two-person households in specific income brackets, renders his testimony completely unreliable. Furthermore, Defendants will have ample opportunity to cross-examine Koerber on these very issues.” Suggested by Gerald Lee.

September 23
Hutchins v. St. Paul, Minneapolis & Manitoba Railway, 44 Minn. 5; 46 N.W. 79 (MN 1890). This decision involved the claim for wrongful death damages in the death of 39 year old adult son who was living alone by the mother of the decedent. This decision states: “[D]amages are to be assessed under the [wrongful death] statutes is that of pecuniary loss, and not of solatium. No compensation can be given for wounded feelings, or loss of the comfort and companionship of a relative, nor for the pain and suffering of the deceased.” There was no record of the deceased son having provided any financial support to his mother.  In reversing a trial court award to the mother, the Court said:

The pecuniary benefit which the mother might reasonably have expected to derive from the continuance of the life of her son must have been almost exclusively confined to contributions of money or property for her support. . . The future must be judged by the past. Here was a healthy, able-bodied man, who had attained the age of 39 years. He had no one but himself to support, aside from the paltry sums occasionally given to his mother, and yet he had accumulated nothing, and died almost absolutely penniless. He certainly was not in the line of promotion in his calling. True, it is possible that he might have become more thrifty in future, but this was not at all probable, in view of his age and past history. He might have met with some extraordinary streak of good luck, such as discovering a valuable mine, or drawing a large prize in a lottery, but these contingencies are altogether too speculative to form any legitimate basis for an estimate of damages.

Conlon v. Trans National Trucking LLC, 2011 U.S. Dist. LEXIS (E.D. PA 2011).  Defendants appealed a wrongful death award of $2,223,289 and a Survival Act award of $1,270,280 as excessive. The Court pointed out that defendants had not explained why the total award of $3,493,559 was excessive and not provided their own estimate of damages to counter the testimony of plaintiff expert David L. Hopkins about the future lost earnings and fringe benefits of the decedent. The jury award fell within the range testified to by Mr. Hopkins. Therefore the Court concluded that there was no basis to conclude that the jury’s award was unsupported or excessive.

The Atchison, Topeka & Santa Fe Railroad Company v. Cross, 58 Kan. 424; 49 P. 599 (KS 1897). This decision involved parental right to recover for possible losses under the Kansas Wrongful Death Act after adulthood of a 13 year old decedent. Defendants had asked for a  jury instruction limiting the amount of recovery of the plaintiffs to the minority of the decedent. The Court held that was erroneous, saying: “While the plaintiffs would have no right to take the boy's earnings without his consent after he should reach his majority, it might well be that the ties of natural affection would be sufficiently strong to cause him to do them even more service after his majority than before. A recovery by parents for the death of a son after his majority is not at all uncommon.”

October 17

Bulala v. Boyd, 239 Va. 218 (VA. 1990). Loss of earnings of an infant are not recoverable if there is a of lack of foundation. The Court said:

In a personal injury action, a plaintiff is not precluded from recovering damages for lost future earnings or for diminution of earning capacity by reason of his infancy. . .But we have never held that statistical averages alone can form a sufficient evidentiary foundation for such damages. In order to carry his burden of proof, an infant plaintiff, like any other plantiff, must 'furnish evidence of sufficient facts or circumstances' to enable the jury to make 'intelligent and probable estimate' of such damages. Such evidence must relate to facts and circumstances personal to the plaintiff as an individual, not merely to his membership in a statistical class.

According to the Court, the economist for the plaintiff had “ascertained the median income for women in metropolitan areas in Virginia. He multiplied that income by the number of years in a normal work life expectancy, based on national averages, and discounted the product by factors based upon mortality, age, race, and sex. The court held that method to be “too remote and speculative” to be admissible. This decision also precludes recovery for hedonic damages as a separate element of damages.

October 27, 2011

Hogans v. United States, 2005 U.S. Dist. LEXIS 32359; 2005 WL 3338065 (W.D.Tex. 2005). This case involved Dr. Don Huddle as an economic expert for the plaintiff and Dr. Stan Smith as an economic expert for the defendant. The Court held that Dr. Huddle’s method: “followed the ‘below market’ rate method required by the Fifth Circuit as stated in Culver v. Slater Boat Co., 722 F.2d 114 (5th Cir. 1983). His discount rates of 1.2 percent for future medical cost and 1.0% for future lost earnings fall squarely within the example of proper below-market discount rates set forth in Culver.” The Court said of Dr. Smith: “The methodology employed by defendant’s economic expert, Dr. Smith, violates Culver because Dr. Smith relied primarily on a market methodology specifically disapproved by the Fifth Circuit Court of Appeal’s below market requirements. Dr. Smith’s high discount rate of 7.42% fails the Culver test because Dr. Smith’s methodology employs a 2/3 (65%) reliance on the stock market’s average over the highest performing period in the market’s history, and Culver maintains a below  method that distinguishes a seriously injured plaintiff’s need to sustain his or her future economic needs after suffering a serious injury from speculating investors willing and able to accept some risk for a potentially higher return on their investments.”

November 13, 2011

Johnny v. Bornowski, 2011 U.S. Dist. LEXIS 130495 (W.D. MO 2011). Defendants had filed a motion in limine based on Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), to exclude the testimony of Paul Deutsch, a psychologist and rehabilitation expert and the testimony of John Ward to the extent that Ward’s testimony depended on the opinions of Deutsch. Deutsch was described as projecting specific medical treatment needed by the plaintiff, for which costs were projected in the form of a life care plan, and also opined as to Plaintiff’s work restrictions, diminished work life and the probability that Plaintiff will return to full time work or part time work. The court said:

[T]he Court finds Dr. Paul Deutsch’s testimony inadmissible as it relates to future medical treatments, work restrictions, diminished work life, and probability plaintiff will return to work full time or part time. Deutch’s expert testimony is only admissible as it relates to psychological treatment. This includes psychological evaluations, individual counseling options, and career guidance counseling. To the extent that Dr. John Ward’s economic forecast relies on Dr. Paul Deutsch’s testimony as to future medical treatments, diminished work life, and probability Plaintiff will return to work full time or part time, Dr. Ward’s testimony is also inadmissible.   

November 15, 2011

Dollman v. Mast Industries, Inc., 2011 U.S. Dist. LEXIS 99802 (S.D.N.Y. 2011).  The court granted a motion in limine to preclude Randall K. Filer from testifying about (1) the reasonableness of Dollman’s job search, and (2) the impact of Dollman’s immigration status on her potential damages and the potential of Dollman qualifying for certain immigration benefits. The court said about Filer:

Filer has an extensive background in labor economics and is undoubtedly qualified to offer testimony on Dollman’s general economic damages. He has no specific experience, however, relating to the fashion industry or the fashion industry job market. (See Filer Dep. 26-28.) In preparing his report, he consulted with only one member of the fashion industry–his niece, who provided background information on fashion industry job search strategies. (Filer Dep. 55-56.) And there is simply nothing in Filer’s experience, training or education that endows him with specialized knowledge of job search techniques, in the fashion industry or otherwise. Given this lack of expertise, Filer’s testimony about the reasonableness of Dollman’s job search will not assist the jury, which is fully capable of making this determination on its own.                

November 19, 2011

US Airways v. McCutchen, 2011 U.S. App. LEXIS 22883 (3rd Cir 2011). The Court said:

After Appellant James McCutchen suffered a serious automobile accident, a benefit plan administered by US Airways paid $66,866 for his medical expenses. McCutchen then recovered $110,000 from third parties, with the assistance of counsel. Then US Airways, which had not sought to enforce its subrogation rights, demanded reimbursement of the entire $66,866 it had paid without allowance for McCutchen's legal costs, which had reduced his net recovery to less than the amount it demanded. US Airways filed this suit against McCutchen for "appropriate equitable relief" pursuant to § 502(a)(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), 29 U.S.C. § 1132(a)(3)(B). The issue before us is whether McCutchen may assert certain equitable limitations, such as unjust enrichment, on US Airways' equitable claim. We conclude that he may. We therefore vacate the District Court's order requiring McCutchen to pay US Airways the entire $66,866 and remand the case for that Court to fashion "appropriate equitable relief."

December 1, 2011

Knitowski v. Gundy, 2011 N. J. Super. Unpub. LEXIS 2797 (N.J. Super. 2011).  In an unpublished decision, the New Jersey Superior Court upheld the trial court’s admission of testimony from Dr. Anthony Gamboa as a “vocational economist.” Gamboa testified based on his study of data from the American Community Survey (ACS) that workers with a cognitive disability earn an average of 6.1% less and work an average of 7.1 fewer years than their “non-disabled counterparts.” Trial court Judge Buchsbaum had concluded that “Dr. Gamboa’s testimony concerning plaintiff’s reduced worklife expectancy was based upon an accepted methodology and reliable data” and that “any possible shortcomings in Dr. Gamboa’s opinion went to the weight of his opinion, not to its admissibility.” The Superior Court said: “Our courts adopt a liberal approach when assessing an expert witness’s qualifications” and concluded that “Judge Buchsbaum did not abuse his discretion when he concluded that Dr. Gamboa was qualified by experience, education and training to offer expert testimony in the field of vocational economic analysis.” 

December 2, 2011

Tardif v. People for the Ethical Treatment of Animals, 2011 U.S. Dist. LEXIS 138100 (M.D. FL, 2001). After performing a Daubert analysis on the proposed economic damages testimony of Dr. Bernard Pettingill, Judge John Steele excluded the testimony of Dr. Pettingill. Judge Steele determined that Dr. Pettingill was qualified as the first requirement of a Daubert analysis. Judge Steele also determined that Dr. Pettingill’s analysis was reliable. However, Judge Steele did not think that Dr. Pettingill’s testimony would be helpful to a jury, which was what Judge Steele described as the third requirement of proposed expert testimony. Judge Steele explained:

The Court finds Dr. Pettingill’s calculations regarding Yerk’s lost wages to be unreliable because he does not provide “good grounds” to support his conclusions. Daubert, 509 U.S. at 590. An expert’s “knowledge” within the meaning of the Federal Rules of Evidence connotes more that subjective belief or unsupported speculation.

First, the two year Associate Degree of $27,000 per year is unverifiable based upon the information provided in Dr. Pettingill’s report. According to plaintiff, the$27,000 figure was obtained from the U.S. Department of Labor, Bureau of Labor Statistics, Monthly Labor Review, January Editions (Doc. #144-2, p.7 ¶4.1) and the citation is stated as “ibid, www.census.gov/hhes/www/cpstables/03210/perinc/new_04.htm1” (Id, p.5, ¶1.4).  The Court has reviewed both sources and is unable to locate the $27,000 figure. (Footnote 1 said: The content of this website is no longer available and plaintiff has not provided this data as an exhibit.)

Second, there is nothing in the report that supports Dr. Pettingill’s conclusion that Yerk is unlikely to work in the criminal justice field in the future because of the “residual impact” of this lawsuit and that his four year degree in criminal justice will be “practically worthless.2” The report includes no information regarding the relevant employment market, and merely stating that Yerk has unsuccessfully applied to various police departments in the local area is insufficient. The Court finds Dr. Pettingill’s application of the average wage of a two-year Associate Degree graduate questionable on its face. This testimony regarding the portion of Dr. Pettingill’s report addressing lost wages will be disallowed. (Footnote 2 said: For example, some branches of the federal government will accept applications from individuals who have a four-year degree in any field, including criminal justice. http://www.opm.gov/qualifications/standards/IORs/gs1100/1102QAs.htm.)

December 13, 2011

Marzullo v. J.D. Pavement Maint., 2011 Ohio 6261 (Ohio App. 8th, 2011). The Ohio Court of Appeals held that the trial court abused its discretion in allowing Dr. John Burke, an economic expert, to testify regarding future loss of earnings and in-kind services because his expert report and opinion was not based on competent and credible medical testimony, but rather on assumption. The Court explained that it found that the trial court’s decision allowing Dr. Burke’s testimony was unreasonable “because it left the jury to make an expert conclusion whether [the plaintiff’s] condition impaired her ability to work,” since “neither of [the plaintiff’s] medical experts or her psychological expert testified with any reasonable degree of economic certainty that [the plaintiff’s] injury prevented her from obtaining her pre-injury wage or from performing daily activities.”  

December 17, 2011

Anastasion v. Credit Service of Logan, Inc., 2011 U.S. Dist. LEXIS 116271 (D. UT 2011). Judge Stewart denied a motion to exclude testimony of Stan V. Smith regarding loss of credit expectancy and claims based on “time spent trying to resolve problems with the credit reporting agency” based on insufficient facts and speculation, but allowed the defendant to raise further objections at trial. Judge Stewart excluded Stan Smith’s testimony based on hedonic damages arising from credit problems based on the fact that there has been no physical injury or loss of life.

Hamza v. Saks Fifth Avenue, Inc., 2011 U.S. Dist. LEXIS 13932 (S.D.N.Y. 2011). This decision provides extensive discussion of what is determined by a jury and what is determined by a judge in a case involving alleged violations of Title VII of the Civil Rights Act resulting in a termination of employment. Judge Stamp rejected plaintiff’s motion to exclude economic testimony about front and back pay of Michael Soudry under a Daubert standard. The defendant argued that Soudry’s testimony would have been about facts readily available without need for expert analysis. The judge said:

While it is true, as the defendant points out, that most, if not all of the statistical bases for Mr. Soudry's calculations can be found online and are readily available to anyone who seeks them out, this Court is of the opinion that without technical and specialized knowledge and skill, one would not be able to appreciate or calculate the importance and effect that each of the bases has on Ms. Hamza's total economic loss. Mr. Soudry has employed his specialized knowledge as a forensic economist to organize and utilize each piece of this earnings "puzzle" into a final calculation at which fact-finders would not be able arrive themselves if each piece of information were presented to them individually. To put it differently, simply because the necessary ingredients of Mr. Soudry's final opinion were readily attainable does not mean that it did not require specialized knowledge in order to place them together into a meaningful economic loss calculation.

Judge Stamp, however, ruled that Soudry could not testify before the jury because decisions about amounts to be awarded front pay and back pay are made by the judge and not a jury.  The decision reads as if Soudry might be allowed to testify before the court after the jury verdict if the jury found the defendant liable for discrimination, saying: “Should the jury find liability on the part of the defendant at trial, any testimony or exhibits regarding front and back pay damages shall be submitted to this court following the verdict.”

December 21, 2011

Philichi v. United States, 2011 U.S. Dist. LEXIS 145757 (W.D. WA 2011). Judge Leighton said:

The economic losses arising from Michael's permanent injury are difficult to estimate. He has lost past earnings but also  loss of future capacity (the difference between the current earning capacity and his earning capacity prior to his permanent injuries), increased educational expenses and past and future medical assistive expenses. The testimony from both economists is unpersuasive. Mr. Moss' analysis assumes that Michael would have continued on the path he was on before he was injured, i.e., that he would have continued on to obtain full-time employment in the construction trades. Dr. Nickerson testified that the disability and deformity of Michael's dominant hand makes no difference in his loss of future earning potential. The Court rejects Dr. Nickerson's conclusion. The Court also rejects the assumption of Mr. Moss but does not render the damage item as speculative. It is difficult to determine with precision, but the Court is certain that Michael will suffer the loss of future earning potential in some significant amount.

Judge Leighton went on to describe in some detail how he arrived at total economic damages resulting from medical malpractice of $900,982.29.

February 11, 2012

Larson v. Wisconsin Central LTD, 2012 U.S. Dist. LEXIS 12463 (E.D. WI 2012). This is an order in response to a defendant’s motion in limine allowing economic expert Stan Smith to testify about the value of the plaintiff’s lost earnings and household services, but precluding Smith from testifying about Larson’s claim for lost retirement benefits. The defense argued that Smith should not have been permitted to testify about lost earnings to the end of the plaintiff’s life expectancy, but judge held that since Smith provided year-to-year data his testimony was permissible. The judge stated (incorrectly) that the Skoog-Ciecka railroad work-life expectancy tables were not peer-reviewed and supposedly had other problems such that Smith’s refusal to include calculations based on those tables does not violate Daubert or raise issues with his methodology. The judge held that Smith’s use of different methods when working for plaintiffs and defendants is an issue that should be raised on cross examination and not in a Daubert motion. With respect to household services, the judge held that Smith’s use of a 75% reduction in the plaintiff’s ability to provide household services was not represented as Smith’s opinion, but based on the plaintiff’s estimate and therefore admissible. With respect to retirement benefits, the plaintiff had voluntarily retired in order not to have to pay Railroad Retirement Board taxes on his earnings and to maintain his full disability benefits and therefore was not entitled to claim lost retirement benefits. 

CSX Transportation, Inc. v. Pitts, 2012 Md. App. LEXIS 9 (Md. App. 2012). This appeals court decision addressed five issues raised by CSX. One issue was: “Whether the circuit court erred in preventing appellant from cross-examining appellee’s economist as to statistics concerning a railroad employee’s average age of retirement?” The circuit court judge had not allowed “Dr. Hamilton,” the plaintiff’s economic expert, to be questioned about the average age of retirement of railroad workers because evidence of benefits from a collateral source such as sick benefits or pension benefits is not admissible to diminish a plaintiff’s damages. The defendant was permitted to ask what the loss would have been if the plaintiff had retired at age 60, but not to ask whether “the overwhelming majority of people that retire in the railroad industry were, in fact, 60 years old.” The appeals court held that the trial court judge’s determination that the question did not relate to the plaintiff individually and therefore was not an abuse of the trial court judge’s discretion. This included preventing the defense from questioning Hamilton about the AAR work life tables. Hamilton’s answer to the question about losses if the plaintiff retired at age 60 was that the plaintiff would have zero losses.  

February 23, 2012

Dossat v. Hoffman-La Roche, Inc., 2012 U.S. Dist. LEXIS 21002 (D. NV 2012).  This is was a judicial ruling on 11 motions in limine in an employment discrimination suit, one of which was a defense motion to exclude hedonic damages testimony. The court said:

To the extent Plaintiff seeks to introduce evidence of reduction of value of life, or "hedonic” damages, such evidence is not relevant where Plaintiffs termination is not properly before the Court. Plaintiffs expert testimony is speculative and unreliable and will not be helpful to the jury. The jury would be able to make its own decision on damages if it finds intentional infliction of emotional distress. Accordingly, Defendants' Motion in Limine No. 2 is granted.

March 18, 2012

Carney v. United States, 598 F. Supp. 2d 439 (D. Md. 2005). In evaluating the reports of economists for the plaintiff and defense in a personal injury action, Judge Catherine C. Blake said:
 
Regarding the calculation of future lost wages, I accept for the most part the approach of the defendant's well-qualified economist, Dr. Louis J. Maccini, professor of economics at Johns Hopkins University, to the extent he differs from the plaintiff's expert economist, Dr. Andrew Verzilli. Dr. Maccini recognized that federal, state, and local income tax should be deducted; he also reduced the gross earnings of a Chief Engineer by an appropriate percentage of business expenses, which Dr. Verzilli did not; he projected a retirement age of approximately 63 rather than 65, based on average work life expectancies, which seems particularly reasonable as to the Chief Engineer's job in light of its physically demanding nature; and he appropriately reduced the amount to present value. Recognizing that future damages must be reasonably estimated rather than precisely calculated, I accept Dr. Maccini's calculation of a total wage loss, including benefits, of $1,077,000.

Risko v. Thompson Muller Automotive Group, 2010 N.J. Super Unpub. LEXIS 1446 (N.J. App. 2010). This was an appeal of the trial court judge’s decision in a wrongful death action to grant a new trial to the defendant that was granted by the Appellate Decision of the Superior Court of New Jersey. In describing damages, the court said:

Defendant also did not produce any expert proof refuting plaintiff's damages claim. In this regard, plaintiff produced an economic expert, Dr. Robert P. Wolf, who concluded that plaintiff had suffered economic damages of $ 1,034,307 as a result of Camille's death, including $ 143,988 for loss of household services, $ 328,012 for loss of advice, counsel, support, and companionship, and $ 562,307 for lost sleep-time, on-call services. At the close of evidence and following the court's instruction, the jury returned a verdict finding defendant solely negligent and awarding plaintiff $ 1,210,319 in compensatory damages and $ 539,681 for pain and suffering, for a total amount of $ 1.75 million.

Dearman v. Transocean Offshore Deepwater Drilling, Inc., 2012 U.S. Dist. Lexis 16852 (E.D. LA 2012). Among other issues being addressed in this memorandum, the plaintiff moved to exclude the testimony of Dr. Kenneth Boudreaux under the Daubert Standard. Judge Eldon F. Fallon rejected the motion saying:

The Court finds that Daubert is satisfied and Dr. Boudreaux may testify at trial. Plaintiff argues without citing any support that Dr. Boudreaux, as an economist, is unqualified to offer an opinion on pre-accident earning capacity. Plaintiff also criticizes Dr. Boudreaux's use of income averaging as unsupported and unreliable methodology; however, as noted by Transocean, Dr. Boudreaux has supported this methodology with at least two peer-reviewed articles. Finally, Plaintiff opposes Dr. Boudreaux based upon his reliance on the Camus Study. While the Court recognizes the split in jurisprudence involving this study, it finds that  the objection to the use of this study goes to the weight of the evidence as opposed to admissibility. Notably, any concerns and/or challenges Plaintiff has regarding Dr. Boudreaux's testimony may be raised during cross-examination. 

March 26, 2012

BNSF Railway Co. v. LaFarge Southwest, Inc., Civ. No 06-1076, 2009 WL 4279849 (D.N.M. 2009). Judge M. Christina Armijo granted in part a motion in limine to exclude the reports and testimony of Brian McDonald and Allen Parkman for the plaintiff and W. Kip Viscusi for the defendant. She held that the majority rule in federal courts “is that any attempt to quantify the value of a human life is inadmissible and does not meet the relevance and reliability factors set forth in Daubert and progeny.” She said:

I construe this rule as applying to any testimony which attempts to quantify (or place a monetary value on) a particular decedent’s hedonic damages, as well as any opinion testimony which places before the jury a dollar figure or numeric formula as a so-called “benchmark figure,” “guideline,” or “range of values” to be used in calculating such damages.

Viscusi’s role in the case was to rebut testimony provided by McDonald and Parkman and Judge Armijo rules that there was no need for the jury to hear rebuttal testimony, given her ruling. 

Chavez v. Marten Transport, LTD, 2012 U.S. Dist. LEXIS 39586 (D.N.M. 2012). Judge Martha Vázquez held that Brian McDonald “will be permitted to testify at trial as to the concept and meaning of hedonic damages, and the areas of experience that should be considered in determining those damages for Chavez, but will not be permitted to testify at trial as to the value of a statistical life, or the range of the value of a statistical life in the United States, or otherwise present the jury with a quantitative measurement of hedonic damages.”


April 1, 2012

Parsi v Daioleslam, 2012 U.S. Dist. LEXIS 44300 (D.D.C. 2012). Judge John D. Bates granted a defense motion to exclude the testimony of economic expert Joel Morse, saying:

Given the multiple factual, arithmetical, and theoretical errors in Morse's calculations, the Court finds that Morse's calculations are ultimately not reliable enough to put before the factfinder. When asked repeatedly about his factual and theoretical assumptions, Morse explained that "I'm just trying to help the trier of fact or a jury who might say, Well, I've listened to all of the testimony and they would have grown at 5 or 10 or 15 or 20. Those are reasonable growth rates to consider, and I've done the math." Morse Depo. at 203. But it is hard to see how "d[oing] the math" could be of any help to the factfinder when the math is so untethered from the reality of NIAC's finances. To take just one example, Morse's own report shows that the 2008 and 2009 surpluses were lower in part because of NIAC's increased expenses, yet his model attributes the change entirely to defendant's actions. Allowing that math to go before the factfinder would not assist in determining what damages were actually caused by defendant, and it would "convey [footnote omitted] a delusive impression of exactness in an area where a jury's common sense is less available than usual to protect it."

April 12, 2012

Rebelwood Apartments v. English, 48 So. 3d 483 (MS 2010).  The Mississippi Supreme Court reversed a trial court of $3,000,000 verdict against Rebelwood Apartments in the wrongful death of Crystal English. Among other grounds, the Court pointed out that:

English’s economic expert, Dr. Glenda Glover testified that Crystal’s loss of income was $1,163,060, using a national-average figure of $38,651 for Crystal’s annual income in the base year, 2007. Crystal had an earnings history of more than five years and had never earned that amount. Crystal’s hourly wage was $6.70. According to her tax returns, her income in 2005 and 2006 was (sic) $10,585 and $13,099, respectively. Dr. Glover’s report states, “Though she was earning $6.70 at the time of her death, in applying the earning capacity approach, income of $38,651 is based on the National Income Average.” . . .

Dr. Glover stated on cross-examination, “What I’m assuming is that – I’m going to apply the national average to her life. I’m not going to apply at $6.70 because that’s not her value. I’m not going to get into the black-woman-no-value theory, and we’re not going to go there. I refuse to go there with you today.”

The Supreme Court held that Glover’s interjection of race was irrelevant, prejudicial and inflammatory. The Court also pointed out that Glover’s opinion was based on a conceptual misunderstanding that a court is determining the value of a person when making an award. The goal is to provide a sum of money that will, in fact, replace the money that the decedent would have earned. The court also criticized Glover for

. . .other deviations from the proper method of determining lost future income: (1) assuming that Coleman would h ave worked until age sixty-five, as opposed to using nationally accepted tables for work-life expectancy; (2) adding fringe benefits that Coleman never received; and (3) using “ballpark” figures. . . Personal consumption must be taken into account. . . Fringe benefits must not be added unless they have actually been received. . . .Work-life expectancy cannot be assumed, but must be based on an objective standard.

In arriving at its opinion, the court distinguished its opinion from the opinion it reached in Greyhound Lines, Inc. V. Sutton, 765 So. 2d 1269 (Miss. 2000) in which the Court had upheld a trial court judges decision to use national averages in projecting the lost earnings of three minor children under the age of eight based on national averages for high school graduates. The key difference was that Crystal English had a five year earnings record that had been ignored by Dr. Glover. The Court also emphasized standards used in Culver v. Slater Boat Co., 722 F.2d 114 (5th Cir. 1983) in setting out the proper basis for calculating damages in a wrongful death action.

 April 17, 2012

Rinker v. Carnival Corporation, 2012 U.S. Dist LEXIS (S.D. FL 2012). Judge Patricia Seitz excluded the life care plan testimony of Robert Lessne because:

Dr. Lessne's report and his deposition testimony indicate that his report is based on the life expectancy of a healthy 62 year old woman. However, the medical evidence, as well as Dr. Lessne's report, indicates that Plaintiff is not a healthy 62 year old woman; she is a 62 year old woman with stage three colon cancer, that was diagnosed in March 2011. Thus, Dr. Lessne's report and its conclusions lack "fit" with the facts of this case. As a result of this lack of fit, when questioned at his deposition, Dr. Lessne testified that his "numbers would change" if his life expectancy projection was wrong.

Dr. Lessne's life care plan includes various doctors' appointments, various therapies, and an attendant/driver for 16 hours per day for the rest of Plaintiff's life expectancy. However, nothing in the report indicates where or how Dr. Lessne developed these numbers. At his deposition, Dr. Lessne admitted that he did not speak with Plaintiff's doctors or Plaintiff. He also admitted that all of the projected medical care and frequency estimates are simply his opinion. Thus, there is no evidence to support many of Dr. Lessne's estimates for future medical care needs and their costs in Plaintiff's life care plan. Under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), the Court must assess the reasoning or methodology underlying the expert's testimony.

Here, Dr. Lessne has not provided any reasoning or methodology to support his future medical care needs projections for Plaintiff. It appears that his estimates are nothing more than his own ipse dixit.. . . Consequently, Dr. Lessne may not testify regarding Plaintiff's future medical care needs.
 
April 30, 2012

Johnny v. Bornowski, 2012 U.S. Dist. LEXIS. (W.D. MO 2012). This is a ruling in response to the Plaintiff’s Motion for Reconsideration of an earlier ruling limiting the testimony of Dr. Paul Deutsch. Upon reconsideration, Judge Gaitan held that Dr. Deutch, who is a life care planning expert and psychologist, could provisionally “include discussion of chronic pain management program and Plaintiff’s diminished work life or probability Plaintiff will be able to return to work.” Judge Gaitan required, however, that “Plaintiff must submit segments of Deutsch’s deposition testimony, literature relied upon, and any additional items Plaintiff intends to use during trial on this subject for prior approval by the Court” by May 25, 2012. However the court repeated its earlier restriction that Deutsch may not testify regarding future medical treatments or work restrictions. Judge Gaitan also said: “To the extent that Dr. John Ward’s economic forecast relies on Dr. Paul Deutsch’s testimony as to future medical treatments and work restrictions, Dr.  Ward’s testimony is also inadmissible.”

May 3, 2012

Baldonado v. Wyeth, 2012 U.S. Dist. LEXIS 59512 (N.D. IL 2012). The Court granted in part a motion to exclude the punitive damages testimony of the plaintiff’s economist, Dr. Michael Maloney and scheduled a Daubert hearing to determine the admissibility of Dr. Maloney’s “net worth” opinions regarding the value of the Wyeth Corporation. The court held that:

It is not proper for Dr. Maloney to give an expert opinion on the amount of punitive damages the jury should award. The amount, if any, is for the jury to decide based on the facts of this case and the applicable punitive damages law. Such testimony would invade the province of the jury.

The Court also determined that “net worth” is relevant to punitive damages under Illinois law, which governed this case. Wyeth challenged Dr. Maloney’s opinions regarding net worth on the basis that Dr. Maloney’s opinions refer to market capitalization, not net worth. The Court indicated that “it is unclear from Dr. Maloney’s report and deposition testimony how he has calculated net worth beyond market capitalization.” The Court indicated that it will hold a Daubert hearing on that narrow issue.

May 11, 2012

Millo v. Delius, 2012 U.S. Dist. LEXIS 65211 (D.AK 2012). This was an order granting partial summary judgment to the defendant based on Alaska law in a wrongful death action. The decedent was survived by three adult daughters and his wife. The adult daughters were not being financially supported. Judge Sharon Gleason held that the adult daughters did not qualify as dependents for statutory purposes under the Alaska Wrongful Death Act. Plaintiff claims for punitive damages, pain and suffering of the decedent were also denied. The surviving wife also made a claim for “companion and advice-type services” as a type of economic loss as compared with non-economic loss, as valued in a report of economist Dr. Pershing Hill.” Non-economic loss was capped at $400,000 and the intent of the distinction was avoid having “companion and advice-type services” included with the $400,000 cap.  Judge Gleason said:

Plaintiff’s exert Dr. Hill attempts to distinguish companionship from consortium by asserting that “people are able to hire paid ‘companions’ such as nurses and health aides. He uses wage rates for those professions to value the loss of Mr. Millo’s services in that regard. However, the practical examples of companionship Dr. Hill describes in his report are activities such as bowling, sharing an evening meal, attending movies, and other social activities that do not resemble the duties of a paid nurse or health aide. Non-economic damages are, as the Alaska Supreme Court stated in Schreiner, a means of recovering “for an injury not otherwise compensable.” The implications of Dr. Hill’s argument–that a surviving spouse could pay a companion to provide the type of companionship the married couple formerly enjoyed–are not convincing. This court finds that the loss of companionship and advice that a surviving spouse experiences, while indisputably a loss, is not an economic loss under Alaska law (footnotes omitted).

While non-market services such as the performance of household chores and subsistence hunting and fishing can, under Alaska law, qualify as economic damages, the provision of companionship and advice from a loved one falls within the category of non-economic damages, and is therefore subject to the statutory cap on such damages. Accordingly, summary judgement is granted to Dr. Delius on this issue.

Schreiner v. Fruit, 519 P.2d 462 (Alaska 1974). This decision held that a wife has an independent right to sue of loss of consortium due to negligently inflicted injury to her husband. This decision has been cited to indicate that care, comfort and companionship cannot be valued as economic losses because they do not constitute replaceable services. The Court said:

A claim for relief for loss of consortium provides a means of recovery for an injury not otherwise compensable.  It should be recognized as "compensating the injured party's spouse for interference with the continuance of a healthy and happy marital life." The interest to be protected is personal to the wife, for she suffers a loss of her own when the care, comfort, companionship, and solace of her spouse is denied her.  The basis for recovery is no longer the loss of services, but rather the injury to the conjugal relation.

May 14, 2012

Naquin v. Elevating Boats, LLC, 2012 U.S. Dist. LEXIS 66104 (E.D. LA 2012). This legal memorandum partially granted a motion in limine to limit the testimony of Dr. G. Randolph Rice, an economist, on two issues and the testimony of Dana W. Davis, a social worker, with respect to whether the plaintiff suffered from PTSD as a result of his injury. Davis was permitted to describe as a lay witness her observations during the course of treatment of any symptoms plaintiff exhibited, but not to testify about PTSD or causation of the symptoms.  Rice was not permitted to testify about the value of lost meals that were supposedly provided to the plaintiff since there was no evidence that such meals were provided. Rice had projected lost earnings to age 70 based on the plaintiff’s statement that he intended to work to age 70. Judge Barbier said:

Dr. Rice’s testimony regarding Plaintiff’s future lost earnings is only permissible if alternative evidence shows that Plaintiff’s personal characteristics – including his health, occupation, and other facts – are likely to give him a longer work life expectancy that the rate provided by the Department’s statistical tables. Here , Plaintiff has expressed an intention to “present evidence at trial that he would have continued working past the average work life expectancy.” Because the nature of this evidence Plaintiff plans to present is not entirely clear at present, the Court deems it most appropriate to defer its ruling on this aspect of Defendant’s motion at the present time. However, Dr. Rice will not be permitted to testify regarding his future lost wage calculations based merely on his assumptions of Plaintiff’s work life expectancy. Nor will self-serving testimony regarding the fact that Plaintiff “intended” to work until age 70 suffice.

Lambert v. Teco Barge Line, 2007 U.S.  Dist. LEXIS 62278 (E.D. LA 2007). This legal memorandum was in response to motions to reconsider a previous motion in limine and to limit the testimony of plaintiff’s economic expert Harold Asher and to exclude the testimony of defense economic expert Dr. Kenneth Boudreaux. The court granted the plaintiff’s motion to reconsider on the basis that the standard for loss is earning capacity, not expected earnings so that a jury could consider whether higher future earnings might have been available because of enhanced earnings of tug boat captains, post Katrina. It denied plaintiff’s motion to exclude the testimony of Dr.  Boudreaux. It also limited the testimony of Mr. Asher using Bureau of Labor Statistics figures for work life expectancy. There is indication in the opinion that Mr. Asher had submitted two supplemental reports, the second of which was based on the worklife used by Dr. Boudreaux.

June 6, 2012

Flowers v.  Lea Power Partners, 2012 U.S. Dist. LEXIS 67359 (D.N.M. 2012). Judge James Parker held that Dr. Brian McDonald could testify about the definition of hedonic damages and the components of life that may be considered in calculating hedonic damages, but may not testify about an dollar range of values attributable to a statistical life. The plaintiff had also argued that the Court should strike an affidavit by Dr. Thomas Ireland in the case of Esquibel v. John Q. Hammons, LLC, that the defendant at attached to the defendant’s motion in limine. The judge held that because the affidavit was relevant to hedonic damages, the affidavit would be considered in ruling on defendant’s motion. Judge Parker then quoted Ireland’s affidavit extensively in his decision.

July 25, 2012

Fischer v. Mittal Steel USA, Inc., 2012 U.S. Dist. LEXIS 102798 (N.D. Ind 2012). From the decision: Defendant seeks to exclude evidence or argument regarding hedonic damages, which it describes as damages premised on the lack of personal enjoyment occasioned by injury. While Indiana Supreme Court has stated that a jury should not be instructed to consider the effect of the plaintiff's injury on "the quality and enjoyment of his life," it also observed that the phrase includes some losses that a jury should consider as part of the damage calculation. Canfield v. Sandock, 563 N.E.2d 1279, 1282 (Ind. 1990). The Court explained that a plaintiff who loves music or golf, or who can no longer lift a grandchild, should be compensated if Defendant's negligence robbed him of such pleasures. The Court approved an instruction that the jury could consider the effect of an injury on a plaintiff's "ability to function as a whole person." Id. Accordingly, to the extent that Defendant seeks to exclude evidence to show that, as the result of his accident, Christopher Molnar is no longer able to participate in activities that he previously enjoyed, the motion is DENIED.  However, Plaintiff should refrain from using the phrase "loss of enjoyment of life." To that extent, the motion is GRANTED with respect to Item 8.

August 4, 2012

Doe v. TAG, Inc., 1993 U.S. Dist LEXIS 16356 (N.D. Ill. 1993). In one of the first decisions regarding hedonic damages after the Daubert decision the Court said:

In this case, the plaintiffs intend to introduce Smith's testimony to establish -- through economic principles -- the value of Doe's future loss of enjoyment of life. There is no binding Seventh Circuit precedent suggesting that such economic testimony is sufficiently reliable to be admissible . . .The court therefore follows the well-reasoned opinion of Mercado v. Ahmed, 756 F. Supp. 1097 (N.D. Ill. 1991). . . Because Smith's testimony would not assist the trier of fact in reaching its decision, his testimony is irrelevant -- and must be excluded.

August 29, 2012

Bailey v. Nyloncraft, Inc., 2012 U.S. Dist. LEXIS 122120 (E.D. MI 2012).  Judge George Caram Steeh granted defendant’s Daubert motion in limine to exclude the “loss of society” testimony of Stan V. Smith, pointing out that “plaintiffs do not cite a single published opinion in which Smith’s loss of society/companionship testimony has been admitted over a Daubert challenge.” The decision reviews claims made by the plaintiffs in favor of hedonic damages testimony, including 19 affidavits from economists “that purportedly reflect a general consensus in the relevant community that evaluation of loss of society damages can be ascertained with a reasonable degree of scientific certainty.” The judge added that:

[M]any of the affidavits do not address the use of ‘value of life’ figures to calculate the value of loss of society damages, many are duplicates and some are from Stan Smith himself. These affidavits do not negate the economists’ responses in a 2009 survey in the Journal of Forensic Economics which asked economists if they would be willing to calculate hedonic damages in an injury case. Of the economists who responded, 83.6% responded because such damages ‘are far too speculative to quantify’ and ‘[t]his should be left up to the trier of fact.’

Judge Steeh concluded that: “Smith’s testimony concerning loss of society damages is inadmissible because it is irrelevant and unreliable.”

September 15, 2012

Hinkle v. Ford Motor Company, 2012 U.S. Dist. LEXIS 127302 (E.D. KY). The Court said, in part quoting another decision, that: “‘Under Kentucky law, recovery may be made for injuries suffered during the period of time between injury and death,’ provided the injured person was conscious for part or all of the time.” This case involved the estates of three decedents, all of whom were killed in an automobile crash. The estate of Hinkle claimed loss of hedonic damages for the short period between injury and death. There was an issue of fact whether Hinkle had any period of consciousness before expiring and the estate’s claim was allowed to proceed on that basis. No economic expert was involved.

Spaulding v. Tate, 2012 U.S. Dist. LEXIS 125669 (E.D. KY). This case involved the death of Judy Carol Spaulding in an automobile accident. The court said:

The Supreme Court of Kentucky has held that damages for pain and suffering are not proper for a person who remained unconscious from the time of injury until the time of death. Vitale v. Henchey, 24 S.W.3d 651, 659 (Ky. 2000). "Damages for pain and suffering may be awarded, however, if the injured person was partly conscious, had intervals of consciousness, or was conscious for a short time before death." Id. (internal quotation marks omitted). The question, then, is whether there is a genuine issue of material fact regarding the consciousness of Mrs. Spaulding during the period between the accident and her death.

In Kentucky, even a brief  period of consciousness may suffice to warrant the recovery of damages for pain and suffering.

The Court held that there was a material issue of fact about whether Ms. Spaulding had an instant of consciousness during which pain and suffering, including hedonic damages, could have occurred. No economist was involved. 

September 20, 2012

Anastacion v. Credit Service of Logan, Inc., 2011 U.S. Dist. LEXIS 116271 (D. UT 2011).  The Court granted a motion in limine to exclude the hedonic damages testimony of Stan V. Smith in a credit loss case involving no physical injury. The Court said:

[W]ith respect to Dr. Smith's testimony regarding reduction in the value of Plaintiff's life, or hedonic damages, the Court will grant Defendant's Motion. Plaintiff argues in her Reply that this evidence should be admissible, arguing that Dr. Smith is extremely qualified, that his testimony is based on reliable economic and scientific methods, and that it has received extensive peer review and acceptance.  Plaintiff further states that hedonic damages are "used by every federal regulatory agency." However convincing these arguments may be, they do not change the fact that hedonic damages are used to approximate the loss of the value of life, and therefore are used in cases involving death or injury. As Plaintiff herself states, when "every federal regulatory agency" uses hedonic damages, it is "in analyzing the potential impact to life or limb."  Furthermore, the three Tenth Circuit cases that have mentioned hedonic damages all involve either physical injury or loss of life.  As Plaintiff has not suffered the loss of life or limb, testimony regarding hedonic damages will not assist the trier of fact. Therefore,  the Court will grant Defendant's Motion with respect to this testimony. (Footnotes omitted.)

September 27, 2012

Ortiz v. Wiwi, 2012 U.S. Dist. LEXIS 137880 (M.D. GA 2012).  Judge C. Ashely Royal denied a motion in limine to exclude the economic expert testimony of J.C. Poindexter, Ph.D. The analysis went through the wording of Rule 702 of the Federal Rules of Civil Procedure and five standards set forth in the Advisory Committee Notes for Rule 702, suggesting that the courts consider:
 
(1) Whether the [expert is] proposing to testify about matters growing naturally and directly out of research [he has] conducted independent of the litigation, or whether [he has] developed [his] opinion expressly for purposes of testifying;
(2) Whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion;
(3) Whether the expert has adequately accounted for obvious alternative explanations;
(4) Whether the expert is being as careful as he would be in his regular professional work outside his paid litigation consulting;
(5) Whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give.

Regarding Dr. Poindexter, Judge Royal said:

Dr. Poindexter's opinions are reliable. Indeed, these opinions are the types of opinions that forensic economists commonly give. In reaching his conclusions, Dr. Poindexter employed the tools and training that a forensic economist uses, and his factual conclusions logically arise from the information he reviewed. His opinions are very conservative, as his projections are based on Decedent making a maximum $10 an hour, no matter the job. Indeed, Dr. Poindexter's calculations do not account for Decedent receiving any promotions, seniority advances, or any other escalations throughout his life. Opposing counsel vigorously cross-examined Dr. Poindexter about his conclusions, and Dr. Poindexter clearly explained why he reached conclusions contrary to those explanations posed by Defendants' counsel. (Footnotes omitted.)

October 10, 2012

Gradia v. Tanner, 2002 U.S. Dist. LEXIS 28446 (D. N.M. 2002). U.S. Magistrate Judge William Deaton granted a motion to limit the hedonic damages testimony of Dr. Allen Parkman, as follows:

This matter comes before the Court upon Defendants' Motion in Limine to Exclude the Testimony of Dr. Allen Parkman Regarding Loss of Value of Life or Hedonic Damages [docket no. 27]. In responding to Defendants' motion, Plaintiff relies in part on Smith v. Ingersoll-Rand Co., 1997 U.S. Dist. LEXIS 23443, which is attached to his response. In Smith, Judge Vazquez found that the economic studies which purportedly would allow valuation of hedonic damages by an expert would fall into the category of social science and would not require a Daubert analysis of the proposed testimony since the proper analysis would be under Fed. R. Evid. 702. Judge Vazquez went on to find that the use of the economist's testimony for purposes of placing a value on hedonic damages would not be reliable and that it would be unhelpful and confusing to the jury; therefore, Judge Vazquez did not allow the economist to place a value on the hedonic damages suffered by the Smiths. However, Judge Vazquez did allow the expert in her case to give testimony explaining hedonic damages. I agree with the approach and logic taken by Judge Vazquez in the Smith case. While I will not allow the expert in this cause, Dr. Allen Parkman, an economist, to testify regarding the value of the hedonic damages suffered by Plaintiff's deceased, I will allow him to explain the nature of hedonic damages. Also, Dr. Parkman may give his opinion as to the economic loss to the estate caused by the death of Jay Gradia.

October 25, 2012

Payne v. Jones, 2012 U.S. App. LEXIS 20665 (2nd Cir. 2012). In this decision, the 2nd Circuit vacated the trial court award of $300,000 in punitive damages and remanded the case to the trial court for a determination of punitive damages unless the plaintiff accepted a reduced award of $100,000 in punitive damages. The decision included a comparison of the ability of judges versus economists in determining the proper value for punitive damages:

While judges have no greater ability than jurors to determine any correct amount of punitive damages (as there is no such thing as a correct amount), judges do have far greater familiarity with the experience of the legal system, which includes not only the large awards that have been the subject of well publicized appeals, but also small awards that are not appealed and therefore cannot easily be found in public sources. Judges have a better awareness than juries whether a particular award is consistent with the norms that prevail in that system. And while judges do not necessarily have any greater expertise than jurors as economists, and cannot necessarily better assess the point at which damages become excessive and cause harm to the economy, it would be catastrophically expensive and impractical to have the parties in every tort trial call economists as expert witnesses to educate the jury on the consequences of damages to the overall economy. Responsibility to appraise these matters of necessity falls on the courts even if they lack expertise in economics and feel ill equipped to make such evaluations.

The 2nd Circuit also discussed the award in the context of single digit ratios recommended in State Farm v. Campbell, 538 U.S. 408 (2003).

Here, the ratio of the $300,000 punitive damages award to Jones's $60,000 compensatory award is 5 to 1. The ratio, without regard to the amounts, tells us little of value in this case to help answer the question whether the punitive award was excessive. Had the facts of the harm to Payne been such that the jury appraised his compensable loss at only $10,000 based on the same conduct by Jones, and the jury had imposed a punitive award on Jones of $100,000, we would not consider the punitive award excessive, even though the ratio of 10-to-1 would have been twice as high as the 5-to-1 ratio that actually resulted. On the other hand, if exactly the same conduct by Jones had caused Payne $300,000 of compensable harm by reason of a concealed susceptibility of which Jones was not aware, and the jury had imposed the same $300,000 in punitive damages, the punitive damages would appear to us to be very high (because of the relevant low degree of reprehensibility of Jones's conduct) although representing only a 1-to-1 ratio. The 5-to-1 ratio of punitive to compensatory damages, by itself, tells nothing about whether the punitive award was excessive, but given the substantial amount of the compensatory award, the punitive award five times greater appears high.

Johnson v. Recca, 492 Mich. 169 (MI 2012). This decision reversed the Michigan Court of Appeals determination that “replacement services” (household services) damages are allowed under Michigan’s No-Fault Automobile Insurance statute, MCL 500.3135(3)(c). The trial court had granted summary judgement. The case involved an injury to Penny Jo Johnson, who was not working and was not insured at the time of her injury. The Michigan Supreme Court held that MCL 500.3135(3)(c) does not provide for services to replace the services (such as household services) that a plaintiff or decedent had previously been able to provide.

October 29, 2012

Johnson v. Manhattan & Bronx Surface Transit Operating Authority, 71 N.Y. 2d 198; 519 N.E.2d 326 (N. Y. 1988).  The Court of Appeals of New York held that taxes should not be considered in determining wrongful death damages based on complexity of the issues. The Court said: 

No crystal ball is available to juries to overcome the inevitable speculation concerning future tax status of an individual or future tax law itself.  Trial strategies and tactics in wrongful death actions should not be allowed to deteriorate into battles between a new wave of experts consisting of accountants and economists in the interest of mathematical purity and of rigid logic over less precise common sense.  Countless numbers of unknown and unpredictable variables for tax purposes alone include, as mere examples, future marital and family status, changes in rates, exemption and deduction provisions of overlapping tax codes.  All sides to this issue would no doubt agree at least that this could produce much guesswork.  So, a majority of jurisdictions have wisely stayed with a rule precluding evidence of after-tax income on the earnings damage issue to avoid "turning every negligence case into a trial [at least] of the future federal income tax structure" involving "a parade of tax experts" (citations omitted). . . .
   
There should be no illusion but that introduction of evidence of after-tax income is intended to lessen the over-all amount of awards by decreasing the components, formulas and foci of the jury.  While we fully recognize the lack of mathematical certainty of jury damage awards, we are also realists appreciating the futility of expecting these kinds of unknowable projections to change very much except perhaps to add bedeviling confusion.

November 3, 2012

Tucker v. Las Vegas Metropolitan Police Department, 2012 U. S. Dist. LEXIS 156097 (D. NV 2012). This decision denied a defense motion in limine to exclude the testimony of economic expert Dr. Thomas Carroll on the basis that the only requirement for testimony to be allowed is that the economic expert was qualified. Judge Lloyd D. George said: 

Defendants argue that plaintiffs' expert Dr. Thomas Carroll, an economist, uses a speculative foundation when arriving at an opinion that, as temporarily disabled, decedent could have earned $920,000 and contributed $322,240 to his father during the remainder of his life. Defendants point out that decedent was chronically homeless with possible mental illness, and occasionally lived with his father. Defendants further point out that Dr. Carroll had no record of decedent's earnings or previous support for his father upon which he based his opinion. Therefore, defendants urge the court to exclude Dr. Carroll's opinion. . .
   
In this case, there is little doubt regarding the qualifications of Dr. Carroll, and his report, though relying on assumptions on future earning capacity, exhibits a thorough methodology and analysis, which would be helpful to the trier of fact in considering potential damages. Of course, defendants will have the opportunity to challenge Dr. Carroll's conclusions at trial.

Clemons v. United States, 2012 U.S. Dist. LEXIS 155196 (S.D. MS 2012). This was the decision of a federal judge awarding damages in an FTCA case involving the wrongful death of Tiara Clemons and her unborn child, named as Aubrey Clemons, citizens of the Choctaw Nation. Dr. G. Richard Thompson was the plaintiff’s economic expert. James A. Koerber was the defense economic expert. Judge Carlton W. Reeves explained his award of damages for each decedent. In making his award of $874,373 for economic losses resulting from the death of Tiara Clemons, Judge Reeves compared the positions of the economic experts, as follows:

The first dispute concerns the number of years Tiara could be expected to work. The plaintiff's expert assumed, based on certain sources, that Tiara would work until the normal retirement age of 67. The defendant's expert assumed, based on other sources, that Tiara would work for approximately 21 and a half years. The defense expert's assumption was based upon a study of "initially inactive women with less than a high school education."Tiara did have some work experience, so it is not immediately obvious that she matches the "initially inactive" description. But grouping Tiara with the findings of that study is also not quite apt because the evidence indicated that Tiara was completing her GED, and therefore should be treated as a high school graduate, not a high school dropout. All in all, the plaintiff's expert's assumption is more compelling on this point.
   
Another disputed assumption is Tiara's expected tax rate. The plaintiff's expert testified that with three children and relatively modest earnings, Tiara's taxes would be negligible. The defendant's expert assumed a greater rate, especially if Tiara went on to obtain a two-year degree. The Court agrees that the former approach more closely matches our situation.

The contested assumption of most significance is how much education Tiara ultimately would have completed. Lifetime wages for graduates of community colleges are, on average, higher than lifetime wages for GED recipients. As a result, each expert made two calculations, one for Tiara completing community college and one for her without that credential. Within that latter category, the experts appear  to have made a further distinction: the plaintiff's expert assumed Tiara's wages as a GED holder, while the defense expert assumed Tiara's wages in a minimum wage-only job. (Citations and footnotes removed.)

Judge Reeves castigated both experts for failing to provide calculations based on the achievement of Aubrey Clemons of a bachelor degree and said:

It bears repeating that no one, not even the capable experts who testified in this suit, can predict accurately what Aubrey Anna would have  earned had she survived. She was only 30 weeks old. The Court -- which has been given only two options, high school completion or two-year degree holder -- must make a reasonable guess informed by prior caselaw, national averages, and long-term trends. It concludes that Aubrey Anna would more likely than not move at least one rung up the ladder of economic opportunity. As a result, her grandmother will be awarded $773,280 for lost earnings.
 
November 9, 2012

King v. William Beaumont Hospital, 2012 U.S. Dist. LEXIS 160455 (S.D. MI 2012). Judge Dinese Page Hood described front and back pay in the following way:

Future damages or front pay is compensation for "the post-judgment effects of past discrimination." Shore v. Federal Express Corp., 777 F.2d 1155, 1158 (6th Cir. 1985). "While the determination of the precise amount of an award of front pay is a jury question, the initial determination of the propriety of an award of front pay is a matter for the court." Arban v. West Publishing Corp., 345 F.3d 390, 406 (6th Cir. 2003). The district court's determination of whether an award of front pay is appropriate must ordinarily precede its submission of the case to the jury. Roush v. KFC Nat'l Management Co., 10 F.3d 392, 398-99 (6th Cir. 1993).  Awards of front pay must be guided by consideration of certain factors, including: an employee's duty to mitigate; the availability of employment opportunities; the period within which one by reasonable efforts may be re-employed; the employee's work and life expectancy; the discount tables to determine the present value of future damages; and other factors that are pertinent on prospective of damage awards. Id. at 399. In Arban, the trial court determined not to submit the issue of front pay to the jury after proofs were presented at trial and finding that there was insufficient evidence for the issue to be brought to the jury. Arban, 345 F.3d at 406. Speculative testimony on front pay cannot support submitting the issue to the jury. Id. at 407. An economic expert's testimony on the issue of future damages or front pay based on the Social Security Wage Index was found to be speculative. Id. In this case, the front pay issue need not be determined by the Court until proofs have been presented at trial.

November 11, 2012

Schreiner v. Fruit, 519 P.2d 462 (AK 1974). From its own standpoint, the principle ruling in this case was that wives have the same right to sue for loss of consortium due to negligently inflicted injuries to their husbands that husbands had in Alaska with respect to wives. The court said about the right to sue for loss of consortium that:

A claim for relief for loss of consortium provides a means for an injury not otherwise compensable. It should be recognized as “compensating the injured party’s spouse for interference with the continuance of a healthy and happy marital life.” The interest to be protected is personal to the wife, for she suffers a loss of her own when the care, comfort, companionship, and solace of her spouse is denied her. The basis for recovery is no longer the loss of services, but rather the injury to the conjugal relation.

Put into the context of forensic economics, “care, comfort, companionship, and solace” one spouse derives from another is not a “service” like household services that can be replaced in the commercial market, but something uniquely irreplaceable that is intangible because of its uniqueness.

November 12, 2012

North Slope Borough v. Brower, 215 P. 3d 308 (AK 2009). This was an appeal by the defendant of the trial court decision to award damages to the mother of an adult male son under Alaska’s survival of claims statute, AS 09.55.570, and wrongful death statute, AS 09.55.580. The appeal primarily argued that the mother should not have been allowed to recover damages under both statutes. The Alaska Supreme Court affirmed the trial court decision “because Kulawik v. ERA Jet Alaska [820 P.2d 627 (Alaska 1991)] controls most of these issues,” affirming the trial court’s reasoning that “when at least one statutory beneficiary is found to exist, the beneficiary must be able to recover all pecuniary damages to an estate.” This included recovery of the son’s expected lifetime earnings over the son’s (not the mother’s) life expectancy. Hugh Richards was identified as the plaintiff’s economic expert, but the decision did not discuss his methods of calculation. The jury verdict in this case segregated plaintiff’s damages into “economic” and “non-economic” losses. The description for non-economic loss included “loss of consortium, affection, and companionship.” The Court described damages allowed under the wrongful death and survival actions in Alaska, as follows:

The wrongful death statute, AS 09.55.580, states in pertinent part:
   
(a) [W]hen the death of a person is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter . . . . [T]he damages   therein shall be the damages the court or jury may consider fair and just. The amount recovered, if any, shall be exclusively for the benefit of the decedent's spouse and children . . . or other dependents. When the decedent is survived by no spouse or children or other dependents, the amount recovered shall be administered as other personal property of the decedent but shall be limited to pecuniary loss. . . .
(b) The damages recoverable under this section shall be limited to those which are the natural and proximate consequence of the negligent or wrongful act or omission of another.
(c) In fixing the amount of damages to be awarded under this section, the court or jury shall consider all the facts and circumstances and from them fix the award at a sum which will fairly compensate for the injury resulting from the death. In determining the amount of the award, the court or jury shall consider but is not limited to the following:
    (1) deprivation of the expectation of pecuniary benefits to the beneficiary or beneficiaries, without regard to age thereof, that would have resulted from the continued life of the deceased and         without regard to probable accumulations or what the deceased may have saved during the lifetime of the deceased;
    (2) loss of contributions for support;
    (3) loss of assistance or services irrespective of age or relationship of decedent to the beneficiary or beneficiaries;
    (4) loss of consortium . . . .
   
The survival of claims statute, AS 09.55.570, states in pertinent part:
   
All causes of action by one person against another . . . survive to the personal representatives of the former and against the personal representatives of the latter . . . . The personal representatives may maintain an action thereon against the party against whom the cause of action accrued, or, after the party's death, against the personal representatives of the party.

Schultz v. Harrison Radiator Division General Motors Corp., 90 N.Y.2d 311 (1997). Damages for household services are to be awarded only for actual past expenditures and future services. An award had been made for past lost household services by the trial court. That award had been affirmed by an intermediate court of appeals, but was reversed by New York’s highest court in a decision that otherwise affirmed the trial court verdict and the appeals court decision, but remanded the decision to the trial court to implement its decision with respect past lost household services. 

Defendant contends that since plaintiff did not incur any actual expenditures on household services between the accident and the date of verdict, having relied on the gratuitous assistance of relatives and friends, the jury improperly awarded plaintiff $ 43,096 in that respect.  We agree.

A damages award reflecting the value of such services did not serve a compensatory function and was improperly made (see, Coyne v Campbell, 11 NY2d 372). The jury should also have been instructed that future damages for loss of household services should be awarded only for those services which are  reasonably certain to be incurred and necessitated by plaintiff's injuries.  Contrary to plaintiff's contention, such an instruction does not require him to be dependent on the charity of others.  Such a charge to the jury merely ensures that any compensatory damages awarded to plaintiff are truly compensatory.
       
Michigan Central Railroad Company v. Vreeland, 227 U.S. 59 (1913). This U.S. Supreme Court decision is a very early decision under the Federal Employers Liability Act (FELA), holding that a broad interpretation of household services is in order in FELA actions when calculating damages. The Vreeland Court held that:

A pecuniary loss or damage must be one which can be measured by some standard.  It is a term employed judicially, "not only to express the character of the loss of the beneficial plaintiff which is the foundation of the recovery, but also to discriminate between a material loss which is susceptible of pecuniary valuation, and that inestimable loss of the society and companionship of the deceased relative upon which, in the nature of things, it is not possible to set a pecuniary valuation." Patterson, Railway Accident Law, § 401. . . .

Neither "care" nor "advice," as used by the court below, can be regarded as synonymous with "support" and "maintenance," for the court said it was a deprivation to be measured over and above support and maintenance.  It is not beyond the bounds of supposition that by the death of the intestate his widow may have been deprived of some actual customary service from him, capable of measurement by some pecuniary standard, and that in some degree that service might include as elements "care and advice." But there was neither allegation nor evidence of such loss of service, care, or advice; and yet, by the instruction given, the jury were left to conjecture and speculation.

Tilley v. The Hudson River Railroad Company, 24 N.Y. 471 (NY 1862). This pre-FELA decision addressed the meaning of “pecuniary,” as in “pecuniary damages,” under the then New York wrongful death act as follows:

The difficulty upon this point arises from the employment of the word pecuniary in the statute; but it was not used in a sense so limited as to confine it to the immediate loss of money or property; for if that were so, there is scarcely a case where any amount of damages could be recovered. It looks to prospective advantages of a pecuniary nature, which have been cut off by the premature death of the person from whom they would have proceeded; and the word pecuniary was used in distinction to those injuries to the affections and sentiments which arise from the death of relatives, and which, though most painful and grievous to be borne, cannot be measured or recompensed by money. It excludes, also, those losses which result from the deprivation of the society and companionship of relatives, which are equally incapable of being defined by any recognized measure of value.

November 15, 2012

Peterson v. Lou Bachrodt Chevrolet, 76 Ill. 2d 353; 392 N.E.2d 1 (Ill. 1979). At issue in this case was whether a plaintiff could recover for the value of free medical services provided by the Shriners’ Hospital for Crippled Children. The Court said:

The final issue raised by the parties is whether the plaintiff may recover the value of free medical services rendered by the Shriners’ Hospital for Crippled Children in performing surgery on Mark Peterson’s leg. Contrary to plaintiff’s argument, we believe that the holding in Jones & Adams Co. v.  George (1907), 227 Ill. 64, 669, is still good law and is controlling. In the George case, the court held that a personal injury plaintiff could not recover for the value of nursing services rendered by the plaintiff’s family. The reasoning of the decision is sound and, we believe, fully applicable here. An individual is not entitled to recover for the value of services that he has obtained without expense, obligation, or liability. (Accord, see Coyne v. Campbell (1962), 11 N.Y.2d 372, 183 N. E.2d 891, 230 N.Y.S. 2d 1.) . . .

We refuse to join those courts which, without consideration of the facts of each case, blindly adhere to ‘the collateral source rule, permitting the plaintiff to exceed compensatory limits in the interest of insuring an impact upon the defendant.’. . it is not the purpose of compensatory tort damages to punish defendants or to bestow a windfall upon plaintiffs. The view that a windfall, if any is to be enjoyed, should go to the plaintiff . . .borders too closely on approval of unwarrented punitive damages, and is not a view espoused in our cases. The argument has also been made that one who renders services gratuitously intends to bestow a gift, and that allowing a defendant to mitigate damages in this situation effectively shifts the benefit to the defendant. We do not believe, however, that presumed intentions should play so important a role in our analysis. We are concerned more with discerning the actual effect upon the parties, and we believe that justice is better served in this way.

November 28, 2012

LaFever v. Kemlite, 185 Ill. 2d 380; 706 N.E.2d 441 (IL 1998). The Illinois Supreme Court said:

A future lost earnings award compensates plaintiff for impairment of plaintiff's earning capacity. Impairment of earning capacity is calculated by deducting the amount plaintiff is capable of earning after his injury from the amount he was capable of earning prior to his injury, and awarding plaintiff the difference. Expert testimony is not necessary to establish loss of future earning ability. The plaintiff "may testify that his injuries diminished his capacity to work, and the appearance of [the] plaintiff on the witness stand and his testimony as to the nature of his injuries and their duration is sufficient to take the question of impaired earning capacity to the jury." "Evidence that plaintiff's injury [is] permanent and that it prevented him from continuing employment [is] generally sufficient to permit a jury to arrive at a calculation of lost future wages"("once plaintiff introduces evidence of permanent injury, the jury should be instructed as to loss of future earnings"). (Citations deleted.)

December 14, 2012

Treadaway v. Societe Anonyme Louis-Dreyfus, 894 F.2d 161. (5th Cir. 1990).  In this case, the plaintiff economic expert had projected lost future earnings of $167,877.02, but the jury had awarded $170,000 for lost future earnings. The plaintiff’s vocational expert had also testified that the plaintiff had the capacity for earnings in a minimum wage job, which the plaintiff economic expert had testified would reduce future lost earnings to $134,955.61. The 5th Circuit invoked its “maximum recovery rule” to give the plaintiff an option of a new trial or accepting a remittatur of $36,207.17.  The “maximum recovery rule” is apparently loosely defined as “reducing a jury’s award to the maximum loss a jury could reasonably have found.” In this case, that meant that the plaintiff’s economic expert and vocational expert together effectively determined a maximum reasonable award of $134,955.61. 

Illinois Central Railroad v. Young, 2012 Miss. App. LEXIS 792 (Miss. App. 2012).  The trial court decision in this case was reversed and remanded for future trial in part because the trial court judge had allowed testimony about lost SSI benefits of a 24 year old schizophrenic single mother of two young children to be based on the life expectancy of the decedent without regard to the period of time during which the children would have been expected to be supported. The decision held that support that was provided based on SSI benefits received by the mother could be treated as pecuniary losses of the children, but that the loss should be have been based on the period of time during which such support for the children would have been likely. The decision also evaluated the testimony of economic expert Dr. David Channel under a Daubert standard and found Dr. Channel’s testimony admissible.

December 17, 2012

District of Columbia v. United States, 67 Fed. Cl. 292 (U.S. Court of Claims, 2005). Citing Sandstrom v. Principi, 358 3d 1376 (Fed. Cir. 2004) and U.S. Shoe v. United States, 296 F.3d 1378 (2002) in holding that cost of living increases cannot be added to awards for past damages in suits against the United States, absent a specific waiver of sovereign immunity from liability for interest. This decision focuses on the narrow question of whether past damages must be awarded in past lost nominal dollars versus being awarded in past lost real dollars and holds that only past lost nominal dollars can be awarded. Suggested by Paul Bjorklund.

December 18, 2012

Andler v. Clear Channel Broadcasting, 670 F.3d 717 (6th Cir. 2012). In this decision, the 6th Circuit provided an outline for how an economist should calculate loss of earning capacity.  The court said (citations and footnotes removed throughout):

A tort plaintiff can recover future economic damages for any loss of earning capacity caused by her injury. A plaintiff claiming lost earning capacity must offer sufficient proof of (1) "'future impairment'" and (2) "'the extent of prospective damages flowing from the impairment.'" The measure of damages in the second step is "'the difference between the amount which the plaintiff was capable of earning before his injury and that which he is capable of earning thereafter.'" The measure of damages in the second step is "'the difference between the amount which the plaintiff was capable of earning before his injury and that which he is capable of earning thereafter.'"
   
The damages are awarded for loss of earning power, not simply loss of earnings. The proper focus is thus what the injured plaintiff could have earned over the course of her working life without the injury versus what she will now earn, not what she earned or will earn in any given year. See id. (plaintiff must show that "the amount of wages [he] will be capable of earning over his working life after his injury is less than the amount of wages he was capable of earning over his working life before his injury"). Accordingly, the fact that a plaintiff earns a higher annual salary after an injury than she did prior to the injury does not bar her from recovering for loss of earning capacity. In such situations, the plaintiff can still recover if she can show that she would have earned even more over the course of her working life if she had not been injured.
   
Similarly “the jury may consider the earnings of the plaintiff  at the time of the injury, but the jury is not bound to accept such earnings as conclusive of his future earning power." A plaintiff who is unemployed or  otherwise earning below her potential at the time of injury, for example, can recover damages for lost earning capacity, as can an injured child, student, or homemaker.
   
Departures from actual pre-injury earnings must be justified and cannot be unduly speculative. Like all expert testimony, an expert witness's calculations of future earning capacity are inadmissible under Federal Rule of Evidence 702 if based on "unsupported speculation." Testimony regarding what an injured plaintiff could have earned should take into account factors such as the plaintiff's age, employment record, training, education, ability to work, and opportunities for advancement. Further, an expert may reasonably depart from historical earning patterns in light of changed circumstances that occurred prior to the injury but were not yet reflected in the plaintiff's actual salary.
   
When calculating earning-capacity factors such as projected salary and years in the workforce, experts often consult actuarial tables, Bureau of Labor Statistics figures, or other averages along with the plaintiff's historical earnings.

Pooshs v. Phillip Morris USA, 2012 U.S.Dist. LEXIS172727 (N.D. CA 2012). The decision is the order of Judge Phyllis J. Hamilton with respect to the admissibility of testimony by four of the plaintiff’s experts, one of whom was economic expert Robert Johnson. Judge Hamilton found that Johnson was sufficiently qualified to render an opinion regarding economic damages, but pointed out weaknesses that she said could be addressed in cross examination. However, she ruled for defendants in limiting the testimony of Johnson with respect to punitive damages to testimony about the net worth of the defendant’s financial position. She also specified the standards for awarding punitive damages under California law as “the degree of reprehensibility of the defendant’s conduct; the amount of compensatory damages awarded; and the defendant’s financial condition or wealth.”

Johnson v. Manhattan & Bronx Surface Transit Operating Authority, 71 N.Y.2d 198; 519 N.E.2d 326; 524 N.Y.S.23d 415 (N.Y. 1988).  This decision held that the measure of damages in a wrongful death action must be based on gross income, not after-tax income. The Court said:

No crystal ball is available to juries to overcome the inevitable speculation concerning future tax status of an individual or future tax law itself. Trial strategies and tactics in wrongful death actions should not be allowed to deteriorate into battles between a new wave of experts consisting of accountants and economists in the interests of mathematical purity or of rigid logic over less precise common sense. Countless numbers of unknown and unpredictable variables for tax purposes alone include, as mere examples, future marital and family status, changes in rates, exemption and deduction provisions of overlapping tax codes. All sides to this issue would no doubt agree at least that this could produce much guesswork. So a majority of jurisdictions have wisely stayed with a rule precluding evidence of after-tax income on the earnings damage issue to avoid “turning every negligence case into a trial [at least] of the future federal income tax structure” involving a “parade of tax experts.”

December 19, 2012

Castelluccio v. IBM, 2012 U.S. Dist. LEXIS 158801 (D. CT 2012). This decision was an order of Judge Dominic J. Squatrito allowing, but limiting the testimony economic experts for each side in the litigation. The defense designated Charles L. Sodikoff, Ph.d., as its expert “in the are of mitigation of damages, and specifically job search activity end employability. Sodikoff was permitted to testify about the nature of the plaintiff’s job search, but not to express an opinion about whether the plaintiff’s job search met the requirement for mitigation of damages.  The plaintiff designated Dr. Gary Crakes as its expert on economic loss. Dr. Crakes was permitted testify about economic loss resulting from the plaintiff’s termination at IBM, but not about past or future loss attributable to the exercise of stock options. 

Martinez v. Glassman, 2012 Nev.Unpub. LEXIS 1480. (NV 12). This decision was an unpublished order that cannot be regarded as a precedent that upheld the decision of a trial court regarding the testimony of Dr. James G. Tappan, an OB/GYN. Dr. Tappan was found not to be an expert with respect to causation of injuries to a newborn child and also not an expert with respect to life care plans for the child. The court said that “Dr. Tappan’s sole experience with life care plans stems from his review of those plans as an expert witness in the context of litigation. Thus, Dr. Tappan has no experience, training, or formal schooling that would qualify him as an expert on life care plans.”   

January 11, 2013

Adae v. State, 2013 Ohio 23 (OH App. 2013). This decision affirmed the trial court ruling of the Court of Claims. The third assignment of error that was rejected was a challenge to the methods used by Dr. David Boyd, plaintiff’s economic expert, to value the earning capacity of Cynthia Adae, who had worked on her family farm from 1978 until her injuries. After her injury, she resumed limited work in a roadside farm market, but at reduced capacity compared with before her injuries. She had never been paid a wage or salary and the defense argued that the loss should have been measured in terms of reduced farm income. Dr. Boyd calculated Adae’s reduced earning capacity as worth $10.43 per hour as of 2007. He assumed that she had worked ten hours per day, five days per week, 50 weeks per year before her injury, but had been limited to 4.5 hours per day, five days per week, 50 weeks per year after her injury. On this basis, Dr. Boyd testified to a present valued loss of $284,459.73, the amount awarded by the trial court.


January 14, 2013

Chustz v. J.B. Hunt Transport, 659 So. 2d 784 (LA App. 1995). This very short memorandum vacated a trial court’s decision to allow the hedonic damage testimony of Dr. Stan Smith and granted a motion to exclude Smith’s testimony.

Hendricksen v. State of Montana, 2004 MT 20; 84 P.3d 38 (MT 2004). This decision recognized “loss of ability to pursue an established course of life” and “emotional distress” as different categories for which an injured plaintiff can seek damages, pointing out that whether the damages overlap is a question of proof. An economic expert was not involved in this decision. The court described damages for “loss of ability to pursue an established course of life” as follows:

Damages for loss of ability to pursue an established course of life compensate for impairment of the ability to pursue one’s chosen pursuits in life, calculated separately from the loss of earning capacity. . . A claim for the loss of ability to pursue an established course of life need not be premised on a physical limitation. A plaintiff is entitled to recover, in the case of permanent injuries, a reasonable compensation for the destruction of his capacity to pursue an established course of life.

February 17, 2013

Baker v. Promise Regional Medical Center, 2013 U.S. Dist. LEXIS 20762 (D. KS 2013).  This decision affirmed awards of $500,000 to the widow and $300,000 to the adult daughter of a decedent plus medical and funeral costs in a wrongful death action, relying on Wentling v. Medical Anethesia Services, 237 Kan. 503 (1985) and several other Kansas decisions. The term “loss of a complete family” was recognized as a component of economic damages. The unique component of this ruling appeared to be that an adult child can be awarded damages for “loss of a complete family.” An economist was not involved as an expert in this case. 
.
April 20, 2013

Allen v. Bank of America, 2013 U.S. Dist. LEXIS 37815 (D. Md. 2013). This case had to do with alleged bank violations of provisions of state and federal law in the provision of mortgage servicing and mortgage payment services to the Allens. Plaintiffs offered Stan Smith as an economic expert to testify about hedonic damages and loss of credit expectancy by the Allens. Judge Catherine Black granted a defense motion to exclude Smith’s testimony on hedonic damages, but reserved judgment regarding his credit expectancy calculations. She said:

BANA has moved to exclude all of the testimony of the Allens' designated damages expert, Stan V. Smith, asserting that he is unqualified to offer his proposed expert opinions and that the opinions themselves are irrelevant and unreliable. The Allens seek to offer his testimony on two types of damages they allegedly suffered because of BANA's actions: loss of credit expectancy and "hedonic damages" (also known as "loss of enjoyment of life"). The Allens, in turn, have moved to exclude the expert BANA seeks to offer to rebut Smith's testimony. For the reasons set forth below, Smith's testimony on "hedonic damages" will be excluded (as will any testimony by BANA's expert rebutting as much), but the parties' motions will otherwise be denied without prejudice as the relevance and reliability of their expert opinions on the Allens' credit expectancy is an issue for trial.

BANA's argument seeking to exclude Smith's testimony on "hedonic damages" largely focuses on Smith's qualifications  and the reliability of his opinions on this issue. Setting aside the question of Smith's credentials and methods, which raise significant doubts about his proposed expert opinions, the court finds that any testimony on so-called "loss of enjoyment of life" or "hedonic damages" would not "help the trier of fact to understand the evidence or determine a fact in issue" as required by Fed. R. Evid. 702(a). See, e.g., Mercado v. Ahmed, 974 F.2d 863, 870-71 (7th Cir. 1992). While the Allens are correct that they may seek "noneconomic damages" for emotional injuries they suffered because of BANA's actions, (citations deleted) a jury is perfectly capable of determining such damages without any expert testimony (citations deleted). The court is not convinced that an expert whose opinion is based almost entirely on asking laypersons how a particular event has affected their enjoyment of life would provide any assistance to the jury in making that determination for themselves. Accordingly, BANA's motion to exclude testimony on this topic will be granted.

Luttrell v. Island Pacific Supermarkets, Inc., 2013 Cal. App. LEXIS 270 (Cal. App. 2013). This decision involved both a failure of the plaintiff to mitigate his medical damages (by not treating his ulcer) and an application of Howell v. Hamilton Meats & Provisions, Inc., (2011) 52 Cal.4th 541, holding that a plaintiff can only recover for amounts actually paid to medical care providers and not for amounts originally billed. The Court held that Luttrell could recover 50% of amounts actually paid to medical care providers for his past medical expenses. The 50% reduction was based on his failure to mitigate his damages by seeing proper treatment for his medical condition. Suggested by Dave Jones.

April 22, 2013

Sasnett v. Jons, 2013 Mo. App. LEXIS 413 (MO App. 2013). It was noted without objection that Dr. John Ward had provided deposition testimony “regarding the loss to the family resulting from the loss of Sasnett’s income and benefits, household services, and the leisure time shared with his family” in a total amount of $1,975,000. No objection was stated in the decision to Dr. Ward’s calculation of the dollar value of leisure hours with family as time spent providing family services. 

Brereton v. United States, 973 F. Supp. 752 (E.D. MI 1997). Judge Marc Goldman held that hedonic damages for a decedent under the Michigan Wrongful Death Act were only allowed from the moment of injury to the moment of death.  He also held that hedonic damages testimony of Stan V. Smith was inadmissible to measure the loss of society and companionship of survivors with the decedent.

Under Michigan law, loss of society and companionship caused by wrongful death compensates survivors "for the destruction of family relationships that result[] when one family member dies." Mr. Smith's testimony is irrelevant and unhelpful in making this assessment. The intrinsic value of the decedent's life is an unfit measure of the value of his relationship with the surviving plaintiffs; it is like comparing apples to oranges. To make that valuation the factfinder will need to consider the characteristics of the relationship, not the value society might place on the safety and health of a statistically average individual. Therefore, Mr. Smith's testimony is inadmissible under Fed. R. Evid. 403 as irrelevant.

Even if the proposed expert testimony was not patently irrelevant, this Court would recommend exclusion of such evidence as unreliable and irrelevant under the Daubert analysis.
     
Sargon Enterprises v. University of Southern California, 55 Cal. 4th 747 (CA 2012). This decision has been interpreted as meaning that California has come much closer to having adopted  the federal standards of Daubert v. Merrell Dow Pharmaceuticals, (1993) 509 U.S. 579.  In Sargon, the California Supreme Court reinstated a trial court decision to exclude the testimony of James Skorheim, who projected that a small start-up company would have become a giant in the dental implant industry for purposes of projecting damages. The trial court had excluded Skorheim’s lost profits testimony as speculative. A Court of Appeals decision had held that Skorheim should have been permitted to testify. The California Supreme Court explained the trial court decision in some detail and reinstated the trial court decision, saying:

The trial court's preliminary determination whether the expert opinion is founded on sound logic is not a decision on its persuasiveness. The court must not weigh an opinion's probative value or substitute its own opinion for the expert's opinion. Rather, the court must simply determine whether the matter relied on can provide a reasonable basis for the opinion or whether that opinion is based on a leap of logic or conjecture. The court does not resolve scientific controversies.  Rather, it conducts a "circumscribed inquiry" to "determine whether, as a matter of logic, the studies and other information cited by experts adequately support the conclusion that the expert's general theory or technique is valid." (Imwinkelried & Faigman, supra, 42 Loyola L.A. L.Rev. at p. 449.) The goal of trial court gatekeeping is simply to exclude "clearly invalid and unreliable" expert opinion. (Black et al., Science and the Law in the Wake of Daubert: A New Search for Scientific Knowledge (1994) 72 Tex. L.Rev. 715, 788.) In short, the gatekeeper's role "is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." (Kumho Tire Co. v. Carmichael, supra, 526 U.S. at p. 152.)

May 1, 2013

Laney v. Vance, 2013 Miss. LEXIS 171 (MS 2013).  The Mississippi Supreme Court reversed the trial court decision “because the trial judge committed reversible error in instructing a jury that they could consider the ‘value of life’ of the deceased in awarding damages, and because counsel for Vance made improper and prejudicial comments to the jury in closing arguments.” The Court held that it was a matter of law in Mississippi that no award can be made for loss of value of life in a wrongful death action.

Dugar v. Washington Metropolitan Area Transit Authority, 565 F.Supp. 2d 120 (DDC 2008).  This decision discussed how lost earnings should be calculated.  Judge Henry H. Kennedy, Jr., said: “When determining whether to award damages for future lost earnings, the court must consider facts specific to the plaintiff at issue, such as age, sex, occupational class, and probable wage increases over the remainder of the plaintiff's working life.”  Judge Kennedy also said: “The discount rate must be determined by comparing projected growth rates of wages with current and historic interest rates. The court rejects Dr. Edelman's view that the net discount rate must be determined using only current interest rates.” 

July 12, 2013

Degraw v. Gualtieri, 2013 U.S. Dist LEXIS 95853 (M.D. Fla. 2013).  The Court issued partial summary judgment holding that hedonic damages were not allowed under Section 1983 of the Federal Civil Rights Act (42 U.S.C. § 1983) given that hedonic damages were not allowed under the Florida Wrongful Death (F.S. § 768 16-26). (Hedonic damages are allowed under Section 1983 if allowed under state statutes.) This decision discussed and mirrored another recent decision of a federal district court in Florida in Breedlove v. Orange County Sheriff’s Office, 2012 WL 2389765 (M.D. Fla. 2012). 

August 5, 2013

Shirley v. Smith, 261 Kan. 658; 933 P.2d 651 (KS 1997). At issue was whether Shirley could claim “loss of time” spent catheterizing herself following a medical injury at wage rates based on  what her employer paid her for work time. The Kansas Supreme Court held that a claim for “loss of time” must be based on loss of earning capacity, but reversed the court of appeals and upheld the trial court in holding that time spent by Shirley in self-cathetarization was an economic loss and not a non economic loss.  The Court said:

For the jury's purpose of placing a monetary value on the self-catheterization treatment, the evidence of what an employer would have paid Shirley for her time is not out of line. Furthermore, Dr. Smith concedes that there is evidence to support the jury's figure, which was the midpoint of  the range suggested by Shirley's economics expert witness. Although presented in the belief that the element of damage was loss of time, the evidence serves as well to establish what Shirley or another nonmedical person would be paid for the time it takes to administer the treatment. Thus, if there was error with respect to the label applied to the element of damages, it was harmless.

August 11, 2013

Jerome v. Watersports Adventure Rentals, 2013 U.S. Dist. LEXIS 97146 (D. Virgin Is. 2013). This decision granted in part and denies in part a renewed defense motion in limine to exclude the testimony of Dr. Richard Moore, an economic expert who had provided opinions regarding the loss of earning capacity, future medical expenses, increased insurance premiums and the discount rate utilized to reduce future values to their present value. The decision provides a detailed Daubert consideration of three reports issued by Dr. Moore, which had resulted in decreases in his projections of lost earning capacity from $3,733,003 in his first report to $1,841,387 in his second report to $1,802,705 in his third report. This memorandum opinion by judge Wilma A. Lewis provides a detailed explanation for why she ultimately excluded Dr. Moore’s opinions about lost earning capacity, but allowed his testimony regarding future medical expenses, increased insurance premiums and his discount rate.  The discussion of what Judge Lewis refers to as the “Pennypack factors” is very instructive.

Tamburri v. Suntrust Mortgage, Inc., 2013 U.S. Dist. LEXIS 86375 (N.D. CA 2013). This order granted defense motions to strike the expert reports of Everett Harry and Stan V. Smith because they were not “based at least in part, on the Rule 30(b)(6) deposition testimony of the named defendants” as required by an earlier order. The Court had granted permission for a late filing based on the alleged need for the depositions to prepare the reports. The court described the excluded reports as follows:

Mr. Harry, an accountant, prepared a report that seeks to quantify Plaintiff’s lost past and future earnings resulting from her “deep-seated, enduring emotional harm” cause by Defendant’s alleged conduct. Mot. Ex. A p. 3. Although the report alludes to “foreclosure-specific costs that Ms. Tamburri has incurred, “ Id., Plaintiff has not shown that Rule 30(b)(6) deposition testimony was necessary to calculate that figure.
   
Dr. Smith prepared a report calculating “(1) the additional cost of mortgage expenses; and (2) the loss of credit expectancy.” Mot. Ex. B. p. 1. Dr. Smith’s methodology was “generally based on interest rates and consumer prices.” Id. Nothing in Dr. Smith’s report relies upon testimony or facts related to the 30(b)(6) depositions. 

Meeks v. Murphy Auto Group, Inc., 2010 U.S. Dist. LEXIS 132693 (M.D. FL 2010). The Court described Stan Smith’s proposed testimony as follows: “Regarding damages, Plaintiff proffers the expert opinions of Stan Smith, Ph.D., who opines that Plaintiff has sustained $1,772.00 in loss of time spent and $1,000 in credit expectancy.” Smith’s report was stricken as untimely in that it was filed after the filing deadline. The Court granted summary judgment to the defendant on several grounds, including the untimeliness of Smith’s report.

Bell v. May Department Stores, 6 S.W. 3d 871 (MO 1999). In a decision that has been cited for the language below, the Missouri Supreme Court said:

An expectancy is "that which is expected or hoped for." To have valid credit expectancy one need not have a formal contract. There must be, however, a reasonable expectation of obtaining credit. This expectancy cannot be too indefinite or remote.

August 24, 2013

Manko v. United States, 830 F.2d 831 (8th Cir. 1987).  The 8th Circuit held that the Federal Tort Claims Act specifies that damages should be based on state law in the state where a tort claim against the United States occurs, such that Missouri damages law applied in the case at hand. The Court interpreted Missouri law as precluding reduction for income taxes when determining lost earnings in a personal injury action. The Court also held that damages should not be reduced for Medicare benefits and Social Security benefits that the plaintiff had or would receive in the future since those benefits came and would come from a collateral source. There is, however, an interesting distinction regarding Medicare benefits in that an earlier 8th Circuit decision in Overton v. United States, 619 F.2d 1299 (8th Cir. 1980) had held in Missouri a payment comes from a collateral source if two conditions are met: (1) that the payment came from a source independent of the liable party and (2) that the plaintiff “may be said to have contracted with the prospect of ‘double recovery.” The Court held that Manko had contributed to the Medicare program and thus satisfied the second prong of that requirement. The Court also suggested that “a good argument can be made that” not subtracting taxes in calculating awards for lost earnings is “unfair to defendants,” that is what the law of Missouri requires. Suggested by Kurt Krueger.

Dempsey v. Thompson, 363 Mo. 339; 251 S.W.2d 42 (MO 1952). This decision held that income taxes are not to be deducted in Missouri when calculating an award for loss of earnings, but that a jury can be given an instruction that an award for loss of earnings is not subject to income taxes. The Court said:

All of the cases to which we have been cited or have found bearing directly on this subject uniformly hold that too many unforeseeable and variable factors would enter into any attempted computation of income tax liability on loss of future earnings to permit of any reasonably accurate estimate thereof. 

The court also held that there should be no calculation of the tax consequences of the discount rate. On this issue, the Court said:

It may be argued that if the jury is instructed an award is not taxable, it should also be instructed that any income realized therefrom is taxable.  But we think not soundly so.  To do so would cause the jury to enter into a field fully as speculative, if not more so, than an effort to compute and deduct income tax liability from the estimated gross loss of earnings before payment of taxes.  In the case of income tax liability on future income realized from investment of the award there is the additional imponderable of what income, if any, a particular plaintiff would probably earn from investment thereof.  Furthermore, we believe the jury would assume that any such income was subject to income tax assessment to the same extent as income from any other source; and, inasmuch as it could not possibly be estimated, any reference thereto in an instruction would tend to confuse and distract the jury and lead it into speculating on the amount thereof. 

August 25, 2013

Mickey v. BNSF, 2013 WL 2489832; 2013 Mo. App. 691 (Mo. App. 2013).  At the trial court level, a jury awarded $345,000 to Mickey for damages in an FELA personal injury matter. In paying the judgement, BNSF withheld $12,820.80 for Tier I, Tier II and Medicare payroll taxes that were owing on $345,000 treated as earnings in the year awarded. Mickey refused to accept payment of $345,000 minus $12,820.80 on the ground that the award was insufficient based on the jury’s verdict. At issue was whether the award was for “time lost” working. The trial court ruled in favor of Mickey and was affirmed by the Missouri Court of Appeals, saying:

Here, although Plaintiff sought damages for lost wages along with medical expenses and other damages, BNSF did nothing to ensure prior to the entry of the judgment that the judgment entered specify that a portion of the damages awarded to Plaintiff constituted "pay for time lost."

The Court of Appeals went on to say that a verdict, once reached, cannot be modified by the court and thus required BNSF to pay Mickey the full amount of $345,000. 

Heckman v. BNSF, 286 Neb. 453 (Neb. 2013).  At the trial court level, Heckman was awarded $145,000 for on-the-job injuries suffered while working for the BNSF. The BNSF withheld $6,202.70 in Tier I, Tier II and Medicare payroll taxes that would have been owed on the verdict if treated as an award for lost earnings (assuming that the award is taxable under IRS rules).  The decision provided a detailed explanation for how $6,202.70 had been determined as the sum of $2,684.16 for Tier I taxes, $1,416.04 for Tier II taxes and $2,102.50 for Medicare taxes.  Heckman had earned $42,891.32 working for the BNSF as of the date of the judgment. That amount had been subtracted from $145,000 in determining the amounts of the award that were subject to Tier I and Tier II taxes. The trial court judge ordered BNSF to specify that none of the award was for lost earnings. The Nebraska Supreme Court reversed, holding that Nebraska law is based on a presumption that a general award (as compared with awards for specific categories) means that the plaintiff has prevailed on all claims. Since one of the claims was for lost earnings, at least part of the award was for lost earnings. Under IRS rules, if a general award is partly for lost earnings, the entire award is treated as if the award was for lost earnings. The Nebraska Supreme Court reversed the order of the trial court that BNSF report the award as not for time lost and supported the decision of the BNSF to withhold $6,202.70 for employee payroll taxes on $145,000 in lost earnings. In doing so, the Nebraska Supreme Court distinguished its decision from the decision in Mickey v. BNSF (2013) on the basis of differences in the presumed treatment of general versus special damages between Missouri and Nebraska.  The Nebraska Supreme Court went on to point out that the parties could have reached a settlement that specified that none of the award was for “lost time” and therefore not taxable for Tier I, Tier II and Medicare taxes, but had been unable to do so.

August 27, 2013

Bloor v. Fritz, 143 Wn. App. 718; 180 P.3d 805 (WA App. 2008). This decision is one of the very few decisions in which an economic expert is mentioned as provided testimony with respect to loss of credit expectancy.  The economic expert in this case was Robert Moss, who is identified as providing both loss of credit expectancy and short-term loss of earnings projections. With respect to loss of credit expectancy, the Washington Court of Appeals quoted the trial court decision favorably as follows:

Due to the reduction of the Bloors' credit scores it is reasonably certain that for at least the next ten (10) years the Bloors will suffer economic loss when they apply for credit. A reasonable estimate of the loss they will suffer from the damage to their credit scores can be made based on the increased cost they will likely than not [sic] incur to acquire and pay a home purchase loan. The reduced credit scores the Bloors now have will result in them having to pay approximately one percentage point more in interest on a home loan, which translates to a current loss of $10,000.00, when the added cost of the loan over the normal amortization period of the loan is reduced to present cash value. This loss is reasonably certain and based on reliable statistical data provided by Robert Moss, the Bloor's [sic] economic expert witness.

Further details about how Moss arrived at a figure of $10,000 for loss of credit expectancy are not provided. Moss also projected a short-term loss of earnings for Ed Bloor at $7,500 based on the incident causing the loss of credit expectancy.

August 29, 2013

Parker v. Twentieth Century Fox, 3 Cal. 3d 176; 474 P.2d 689 (Cal. 1970). Parker is the real name of actress Shirley Maclaine. She had a contract to lead in a musical, but the contract was cancelled and she was offered an alternative lead in a movie western. She sued and won $750,000 in damages. The California Supreme Court said: “[B]efore projected earnings from other employment opportunities not sought or accepted by the discharged employee can be applied in mitigation, the employer must show that the other employment was comparable, or substantially similar, to that which the employee has been deprived; the employee’s rejection or failure to seek other available employment of a different or inferior kind may not be resorted to in order to mitigate damages.” Submitted by Jerry Martin. (Revised from central file listing.)

August 31, 2013

Nelson v. Cooper T. Smith Stevedoring Company, 2013 U.S. Dist. LEXIS 123876 (E.D. LA 2013). Economic expert Dr. Kenneth J. Boudreaux had projected the lost earning capacity of Trevis Nelson on the basis of his last year of earnings at $45,217.90 and on the basis of an average for the last four years of earnings at $23,031.57. The plaintiff moved to preclude Boudreaux from testifying based on the four year average. The Court denied Plaintiff’s motion to limit Boudreaux’s testimony, saying that:

It is well established in the Fifth Circuit that the trier of fact may rely upon a lost income stream calculation that is based on an average wage rate, particularly if the plaintiff has had an inconsistent work history.

After citing several prior decisions that allowed wage loss calculations to be based on average earnings, the Court described the plaintiff’s work history as follows:

[P]lantiff’s deposition testimony discloses that plaintiff held several jobs at varying rates of pay in the years before his accident.  Additionally, he changed jobs often and was incarcerated for approximately sixteen months beginning around 2008. Accordingly, it would be reasonable for the jury to conclude that Dr. Boudreaux’s calculations based on Nelson’s average income best capture Nelson’s likely future earnings. Exclusion of those calculations is unwarranted.

September 4, 2013

Gerstenbluth v. Credit Suisse, 2013 U.S. App. 17841 (2nd Cir. 2013).  Gerstenbluth had settled a claim of age discrimination with Credit Suisse Securities for $250,000. Credit Suisse withheld $4,217.66 for FICA taxes and forwarded the withheld taxes to (the Court presumed) the IRS. No mention is made regarding whether Credit Suisse also paid the employer portion of FICA taxes in addition to the settlement amount. Nothing was apparently withheld for federal or state income taxes, but a W-2 was issued to Gerstenbluth for $250,000 as “Wages, Salaries, and Tips.” Both Gerstenbluth and Credit Suisse acknowledged that FICA taxes should have been withheld if Gerstenbluth had won an award for back pay and front pay, but Gerstenbluth argued that a settlement amount was somehow different. The 2nd Circuit noted that Gerstenbluth’s claim would imply asymmetric treatment of awards versus settlements and said: “We can think of no justification for this asymmetric treatment.” On this basis, the 2nd Circuit upheld the trial court decision in Gerstenbluth v. Credit Suisse, 2012 U.S. Dist. LEXIS 14483; 2012-2 U.S. Tax Cas. (CCH); 110 A.F.T.R.2d (RIA) 6238. 

September 8, 2013

Ham v. Maine-New Hampshire Interstate Bridge Authority, 92 N.H. 268 (1943). The New Hampshire Supreme Court ruled that damages for loss of enjoyment of life (later called “hedonic damages) were not available in a wrongful death action in New Hampshire.  The court said:

In the nature of things one may not himself receive compensation for the wrongful loss of his right to live, and claim for the loss cannot be an asset of his estate in any fair view of the compensatory principle of allowable elements of damages. While allowance for bodily and mental suffering is granted as in justice imposed on a wrongdoer, the estimate  must be within the bounds of justice. To allow for the enjoyment of continued life would mean an entrance into a boundless field of arbitrary assessment, for which no policy of the law exists. The limitation of damages in actions for death brought under the statute indicates that the policy for any allowance is of restriction. It is sometimes said that a wrongdoer is better off in causing death than in causing severe and lasting injury without death. If this may be considered in the balance of adjustments in social relations, it does not serve to outweigh the reasons which bar allowance for damage on this account.

West v. P Bell Helicopter Testron, Inc., 2013 U.S. Dist. LEXIS (D. N.H. 2013). The Court held that Ham v. Maine-New Hampshire Interstate Bridge Authority, 92 N.H. 268 (1943) was still good law in ruling that hedonic damages are not allowed in a wrongful death action in New Hampshire. 

September 19, 2013

Higgs v. State, 222 P.3d 648 (NV 2013). This decision was used by the Nevada Supreme Court to make it clear that while Nevada accepts the United States Supreme Court decision on Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and progeny as “persuasive,” Nevada has not “adopted” Daubert as the standard for admission of expert testimony, as some had interpreted from the Nevada Supreme Court’s decision in Hallmark v. Eldridge, 124 Nev 492; 189 P.3d 646 (NV 2008). The Court emphasized that NRS 50.275 has been and remains the standard. The Court also repeated that it had articulated five factors to be considered in a flexible way by district courts in admitting expert testimony, as:

(1) within a recognized field of expertise; (2) testable and has been tested; (3) published and subjected to peer review; (4) generally accepted in the scientific community (not always determinative); and (5) based more on particularized facts rather than assumption, conjecture, or generalization.

October 18, 2013

Case v. Town of Cicero, 2013 U.S. Dist. LEXIS 148656 (N.D. IL 2013). Item H in this memorandum concerned the admissibility of hedonic damage testimony by Stan V. Smith in this personal injury claim. Magistrate Judge Daniel G. Martin limited Smith’s testimony as follows:

Smith may explain what hedonic damages mean and the general factors that are ordinarily considered part of such damages. No dollar amount may be cited, nor may Smith propose any methodology by which the jury could calculate Nicholas’ hedonic damages. This testimony will help the jury carry out its fact-finding function to determine an appropriate amount of damages.

Smith v. Dorchester Real Estate, Inc., 2013 U.S. App. LEXIS 20785 (1st Cir. 2013). The 1st Circuit held that it was reversible error for the trial court to have admitted the hedonic damage and loss of credit expectancy testimony of Stan V. Smith (not the plaintiff) and remanded to the trial court a consideration of Dr. Smith’s loss of time calculations. The decision provided extensive explanation of the methods used by Smith for each of Smith’s calculations, with extensive citations of previous decisions disallowing Smith’s hedonic damages testimony. The court also  rejected Smith’s method for calculating the value of lost credit expectancy as a mere possibility and unhelpful to a jury, saying: “Absent evidence to the contrary, Smith’s loss of future credit expectancy at the rate calculated by Dr. Smith was merely in the realm of possible harm. As such, it was speculative and should have been excluded.” The court went on to stress that loss of credit expectancy was a compensable harm if properly calculated. 

October 25, 2013

Willink v. Boyne USA, Inc., 2013 U.S. Dist. LEXIS 152566 (D. MT. 2013).  The issue at hand was whether the plaintiff could introduce evidence about amounts originally billed in addition to amounts actually paid by Medicare in complete satisfaction of past medical bills of the plaintiff. Both parties agreed that Montana law limits recovery to amounts actually paid in satisfaction of those bills, but the plaintiff wanted to present evidence about amounts originally billed. The Court held that amounts originally billed could have been presented as evidence if there was any reason for doing so that could document medical procedures needed for the future as a foundation for a life care plan. No argument had been made to that effect in the current case, making such evidence irrelevant under Rule 402. The court drew a distinction from Chapman v. Mazda Motor of America, Inc., 7 F. Supp. 2d 1123 (D. MT. 1998), in which recovery was limited to amounts actually paid, but evidence about amounts originally billed was deemed relevant “to show the jury the severity and extent of [plaintiff’s] injuries” and “may bear on the necessity of future needs and provide a foundation for a life care plan.”

October 26, 2013

Chesapeake Operating, Inc., v. Hopel, 2013 Tex. App. LEXIS 13281 (Tex. App. 2013). The Court of Appeals reversed a trial court on the issue of damages based on the trial court’s admission of speculative testimony by vocational expert, Dr. Cornelius Gorman that was also the basis upon which the lost earning capacity of the plaintiff had been projected by the plaintiff’s economist, Dr. Douglas Womack. The court’s discussion of its reasons for reversing and remanding based on Gorman’s testimony was extensive. Gorman had opined that the plaintiff would “probably” have received two promotions to a position earning $125,000 per year in the oil drilling industry as either “an MWD lead engineer or a directional driller.” The Court said: “We believe Appellee’s experience in oil drilling, as testified to by Gorman, was inaccurate and exaggerated. Appellee’s work history showed he moved from job to job often and in varying industries.” The court concluded that: “The data underlying Gorman’s opinion was of such little weight that the jury should not have received his expert opinion on Appellee’s lost earning capacity.” For that reason, the trial court had abused its discretion in admitting Gorman’s testimony. The Court added that: “The trial court likewise abused its discretion in allowing Gorman to “crunch the numbers” before the jury based on conjecture.”

Haygood v. Escabedo, 356 S.W.3d 390 (Texas 2011). This Texas Supreme Court decision sets forth the standard for recovery of medical expenses in Texas as amounts “paid or incurred by or on behalf of” the claimant under Section 41.0105 of the Texas Civil Practice and Remedies Code. The Court also limited evidence at trial “to expenses that the (health care) provider has a legal right to be paid.” The trial court had admitted testimony based on list prices for medical care on bills issued by medical care providers. The Court pointed out that such list prices were often a function of being driven by government regulation and negotiations with private insurers to set list prices as high as possible, but that “[f]ew patients today ever pay a hospital’s full charges, due to Medicare, Medicaid, HM0s and private insurers who pay discounted rates.” The Court also held that the common law collateral source rule also applied so that award recipients might receive windfall gains in the form of an award to cover costs already paid for by third party insurers. Thus, plaintiffs can only present evidence of amounts actually paid by themselves or amounts paid by third party insurers to satisfy health care provider obligations, but can be awarded those amounts even if plaintiffs have not had to pay those amounts themselves.  

October 27, 2013

Lewis v. Seacor Marine, Inc., 2002 WL 34359733 (E.D. La. 2002). A motion in limine to limit the testimony of vocational expert Cornelius Gorman and Douglas Womack was granted by Judge Kurt D. Englehardt. Gorman assumed that the plaintiff, who had only worked one month as a deck hand would have rise to captain status and a captain’s salary within eight years. Womack had calculated the present value of damages on the basis of Gorman’s report. The Court said:

[T]he quantum leap to captain and a captain’s salary for the remainder of (Lewis’s) worklife is not well-grounded in the facts of this case.  Any reliable analysis or projection would have factored in the plaintiff’s prior work history and the fact that Lewis had only worked in the marine industry for one month prior to the accident, and then as a deckhand. There is no suggestion or innuendo that the injured plaintiff Gary Lewis took any concrete steps on the difficult road to becoming a captain, nor that he was even descended from a long line of seafaring captains and harbored dreams of attaining that position as a youth.

November 30, 2013

Johnson v. Redd, 2013 N.J. Super. Unpub. LEXIS 2739 (N.J. Super. 2013). This opinion provides written explanation for the granting of a defense motion to exclude the hedonic damages testimony of Dr. Stanley V. Smith in a personal injury action. Smith was permitted to testify as to the plaintiff’s lost wages and household expenses. The court cited Scheck v. Dalcorso, 2005 N.J. Super Unpubl LEXIS 178 (App.Div. Dec. 29, 2005) as the only previous New Jersey decision with respect to hedonic damages. Smith had also been excluded in that decision. The decision reviewed the “willingness to pay” (WTP) approach in some detail as well as Smith’s method for using WTP studies and extensively cited Smith v. Dorchester Real Estate, Inc., 2013 U.S. App. LEXIS 20785 (1st. Cir. Oct. 15, 2013) in holding that Smith’s testimony did not meet the requirement of New Jersey’s Frye standard. The court also held that Smith’s “impairment ratings” of 40% and 80% were arbitrary and therefore unreliable.
January 7, 2014

Smith v. City of Evanston, 260 Ill. App. 3d 925; 631 N.E.2d 1269 (Ill. App. 1994). In this decision, the Court of Appeals affirmed the trial court’s decision to grant a new trial on the issue of damages only and said:

To clarify instructions on the categories of damages, we direct the court on remand to eliminate “disability” and “aggravation of preexisting condition” as separate categories of damages and include instead  “loss of a normal life,” with other instructions consistent with this opinion. 

The Court of Appeals chose the “loss of normal life” language based on law review article by Michael Graham entitled Pattern Jury Instructions: The Prospect of Over or Undercompensation in Damage Awards for Personal Injuries, 28 DePaul L. Rev. 33 (1978). At issue was the possibility that a jury had double counted losses based on the jury instruction. No economist was mentioned in the decision. One economic expert has attempted to have hedonic damages testimony admitted in Illinois by changing the name of alleged damages from “loss of enjoyment of life” and/or “hedonic damages” to “loss of normal life,” but performed the same calculations that the expert would have used for “loss of enjoyment of life” and/or “hedonic damages.”

Knight v. Lord, 271 Ill. App. 3d 581; 648 N.E.2d 617 (Ill. App. 1995). The Court of Appeals affirmed the trial court’s decision not to grant a new trial. As part of the reasoning, the Court of Appeals held that the trial court was correct in not accepting Plaintiff’s proposed jury instructions, saying that: “Plaintiff's proposed jury instruction would have improperly allowed disability and loss of enjoyment of life to be included as separate elements of damages.” The Court of Appeals cited Smith v. City of Evanston, 260 Ill. App. 3d 925; 631 N.E.2d 1269 (Ill. App. 1994). In holding that the language “loss of normal life” was the preferred language to avoid jury confusion. 

January 8, 2014

Mallicoat v. Archer-Daniels-Midland Company, 2013 U.S. Dist. LEXIS 160971 (E.D. MO 2013). Testimony of economist Dr. Leroy Grossman was excluded as speculative based on his pre-injury and post-injury assumptions in a personal injury action under the Jones Act. Dr. Grossman had assumed that the plaintiff would have continued to be employed by the plaintiff even though the plaintiff was fired after his injury for having lied on his employment application. Dr. Grossman also assumed that the plaintiff would only be able to earn minimum wage after his injury based on having been requested to make that assumption by the plaintiff attorney. The fact that the plaintiff had lied on his employment application was discovered when the plaintiff filed for unemployment compensation following the injury.

January 9, 2014

Von Weigen v. Shelter Insurance Company, 2014 U.S. Dist. LEXIS 1932 (C.D.KY 2014).  This case involved a claim by the plaintiffs that Shelter Insurance did not meet its contractual obligations in an uninsured motorist claim. The plaintiff was an attorney who refused to provide information requested by an accountant for Shelter Insurance and hired Dr. William Baldwin, an economist, who prepared a lost earnings claim. The plaintiff moved to exclude the testimony of the defense expert on the grounds that the defense expert Calvin Cranfill, an accountant, stated in his deposition that he did not consider himself qualified to prepare a lost earnings analysis himself given the inadequate information he had available.  The defense expert offered opinions regarding the inadequacies of Baldwin’s report, particularly Baldwin’s acceptance of financial information from the plaintiff without backup documentation. The Court held that:

[T]he testimony of Mr. Cranfill will be helpful to the trier of fact in making its determination regarding Mr. von Wiegen's alleged lost profits. In addition, his opinion will assist the trier of fact determine     whether the plaintiffs' expert had enough data and documentation to determine Mr. von Wiegen's amount of lost damages.

CSC v. United States, 2013 U.S. Dist. LEXIS 178961 (S.D. IL 2013). This decision of U.S. District Judge John A. Ross is interesting because he compared several calculations by Charles Linke for the plaintiff and Thomas Ireland for the defense. Judge Ross clearly preferred the testimony of Charles Linke.  Judge Ross said:

Professor Charles Linke's analysis, during the plaintiffs' case, is based on the earnings for full-time year round average male workers in his analysis. On the other hand, Professor Thomas Ireland used all male workers, including part-time. Since approximately eighty percent of male college graduates work year round full-time, the Court finds Dr. Linke's analysis more valid. His upper bound present value projection is $3,874,604. Dr. Linke's lower bound is $2,559,050. The middle ground of both of those is $3,216,827. That number is a fair value for Sean's diminished earnings capacity.

Professor Linke's methodology included averaging each of the items from the Klosterman/Dietzen plan to calculate the present value. All of Dr. Linke's methodology was set forth in detail in his report. Professor Ireland concedes that Professor Linke's upper bound net discount rate would be appropriate for what Dr. Ireland refers to as "true" medical expenses. Professor Ireland offered no methodology for determining what constitutes "true" medical expenses, as opposed to "false" medical expenses. Indeed, when asked by the Court about physical therapy  costs, he testified that he assumed that they have not gone up and will not go up as much as "true" medical expenses. On the other hand, the medical care segment of the CPI published by the U.S. Bureau of Labor Statistics includes everything in the Klosterman/Dietzen life care plan as medical expenses. . . In particular, it includes "fees paid to individuals or agencies for the personal care of invalids, elderly or convalescence in the home including food preparation, bathing, light house cleaning, and other services." Professor Ireland conceded that if the Court determines that the components of the Klosterman/Dietzen life care plan to be medical expenses, then Dr. Linke's upper bound is the appropriate discount rate.

DeJana v. Marine Technology, 2013 U.S. Dist. LEXIS 178982 (E.D. MO 2013).  This order related to a case involving two deaths caused by a boating accident. The Plaintiff’s economist Lane Hudgins projected lost financial support for the wife of one of the decedents and lost accumulations to the estate of the decedent in the other. A motion in limine to exclude her testimony was denied in the order. The judge also ruled against the Defense position that lost accumulations to an estate are not allowed under the Missouri Wrongful Death Act. The judge held that such damages could be claimed if sufficient evidence was provided that survivors would have suffered such losses. The defense economic expert Thomas Ireland was excluded from testifying about the likelihood that the second decedent would have married or about whether lost accumulations to an estate were allowed in Missouri. The judge held that although Ireland could not testify about the likelihood that decedent would have married, that issue “may remain a question of fact for the jury.”

January 29, 2014

Estate of Barabin v. AstenJohnson, 2014 U.S. App. LEXIS 74 (9th Cir. En Banc 2014). In this decision, the 9th Circuit reversed the trial court decision because the trial court had failed to conduct a Daubert hearing into the relevance and reliability of a theory underpinning the plaintiff’s theory of causation of Plaintiff’s decedent’s mesothelioma. The Court held that this was error prejudicial to the defense and therefore warranted reversal. The Court avoided ruling on whether or not the theory used by Plaintiff’s experts was valid or invalid, but held that such a determination needed to be made before expert testimony relying on the theory was admitted.  Suggested by Dave Tucek. 

March 3, 2014

State v. McGrady, 753 S.E.2d 361 (N.C. App. 2014). The North Carolina Court of Appeals held that amendments to North Carolina’s Rule 702(a) by the North Carolina legislature had effectively adopted the Daubert standard enunciated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), reversing earlier North Carolina decisions that had held that North Carolina had not adopted Daubert. The issue did not involve economic expertise. Suggested by David Tucek.

March 6, 2014

Giza v. BNSF Railway Company, 2014 Iowa Sup. LEXIS 19 (Iowa 2014). The Iowa Supreme Court reversed the trial court and held that: “[W]e do not believe federal law precludes the introduction of statistical evidence as to when railroad workers in the plaintiff’s position typically retire.” Based on that ruling, the decision of the trial court to exclude evidence about retirement patterns of railroad workers by Mark Erwin, the defense expert resulted in reversal of the trial court decision and remand to the trial court for a new trial. The Court agreed with Plaintiffs that evidence regarding available retirement benefits at age 60 for workers eligible for such benefits should not be permitted because retirement benefits are a collateral source. The court also ruled, however, that evidence about the fact that Erwin’s testimony that the average age of retirement of workers with 30 years of railroad service at age 60 was age 60.7, notwithstanding the fact that the railroad worker said he planned to retire at an older age.  John O. Ward, the plaintiff economist, had projected lost earnings to age 66.  

April 1, 2014

Luttrell v. Wood, 902 S.W.2d 817 (KY 1995). This Kentucky Supreme Court decision held that while household services of a decedent in a Kentucky Wrongful Death case were valuable to survivors, “ordinary and necessary services that come with day-to-day family like . . . are clearly not an element of damages for wrongful death.” In Kentucky, the measure of damages in a wrongful death action is the damage to the estate of the decedent’s “power to labor and earn money.”  The Luttrell Court held that the ability to provide household services for survivors is not part of a decedent’s “power to labor and earn money.” 

April 4, 2014

Mallicoat v. Archer-Daniels-Midland Company, 2013 U.S. Dist. LEXIS 160971 (E.D. MO 2013). U.S. Magistrate Judge Terry I. Adelman excluded the testimony of economic expert Dr. Leroy Grossman on the basis that Dr. Grossman’s assumption that the plaintiff was only able to earn minimum wage after his injury was not supported by the record in this case and because Dr. Grossman had not taken into account the fact that the Plaintiff had been dismissed from employment because of dishonesty. 

April 5, 2014

Barclay v. Cameron Charter Boats, Inc., 2011 U.S. Dist. LEXIS 87524 (W.D.LA 2011).  The Court granted defendant’s motion in limine to exclude the testimony of economist Dr. Douglas Womack based on Dr. Womack’s use of a minimum wage assumption for post-injury employment.  The court said:

Dr. Womack expert opinion on future earnings capacity (i.e., Mr. Barclay can only earn a minimum wage salary in the future) is predicated on two assumptions: first, that Mr. Barclay will be able to return to work, which could be supported by Dr. Williams' testimony, and second, that Mr. Barclay will earn no more than the federally mandated minimum wage, which is supported by nothing. Mr. Barclay contends that this latter assumption derives from his age and employment history. Essentially, he argues that he will be unable to make anything above the federally mandated minimum wage in a "light duty" job because he has never worked a "light duty" job. This argument is not supported by any facts or evidence and thus amounts to pure speculation. While this assumption may represent a possibility, possibility alone cannot serve as the basis for an expert's opinion. See Gideon v. Johns-Manville Sales Corp., 761 F.2d 1129, 1137 (5th Cir. 1985). Because there is no evidence to support Dr. Womack's minimum wage opinion, any expert testimony that includes these unsupported calculations of future earnings is inadmissible.

June 3, 2014

Maltonado v. Kiewit La. Co, 2014 La. App. LEXIS 1420 (LA App. 2014).  This wrongful death decision involved a number of elements of interest to forensic economist. The plaintiff economic expert was Dr. Gerald Cassanave of Vocational Economics. The defense economic expert was Dr. Kenneth Boudreaux. One difference between the experts was the appropriate five years to consider in arriving at a base income for future projections. Cassanave excluded two years while Boudreaux used the last five consecutive years. Cassanave ignored the undocumented states of the worker while Boudreaux provided alternative calculations based on American earnings and based on Mexican wage rates. Cassanave provided calculations for household services while Boudreaux argued that there was no evidence that survivors of the plaintiff had purchased any household services after the decedent’s death. Cassanave did not reduce his calculations for personal consumption, while Boudreaux subtracted 26%. Cassanave added 9.9% for lost job-related fringe benefits, while Boudreaux indicated that there was no evidence that the decedent had ever had any fringe benefits. This decision also dramatically reduced jury awards to the plaintiff’s family for pain and suffering and love, affection and society and “Bystander award” allowed in Louisiana law for having to observe a very painful death.

July 9, 2014

Kenney v. Liston, 2014 W. Va. LEXIS 633 (WV 2014).  The West Virginia Supreme Court addressed the issue of whether plaintiffs can claim past medical damages based on amounts originally billed by medical service providers or amounts ultimately paid in satisfaction of those medical bills, following an injury. The Court held that the collateral source rule requires that a plaintiff should be able to recover amounts originally billed, saying:

[T]he amount of the medical expenses that was discounted or written off can be considered both a benefit of the plaintiff’s bargain with his health insurance carrier, and a gratuitous benefit arising from the plaintiff’s bargain with the medical provider. “A creditor’s forgiveness of debt – that is what a write-down in the present context amounts to – is often considered equivalent to payment in other contexts, e.g., income tax, credit bids at foreclosure, etc.  In other words, a creditor’s partial forgiveness of a tort victim’s medical bills via a write-down is properly considered a third-party ‘payment,’ evidence of which is barred by the collateral source rule.” (Citing McConnell v. Wal-Mart Stores, Inc., 2014 U.S. Dist. LEXIS 14280 (D. Nev. 2014).

The majority cited a number of cases from other states that held that past medical damages should be based on amounts originally billed, while the dissent from Justice Loughry cited some of the cases from other states that have held that past medical damages should be based on amounts actually paid in satisfaction of amounts originally billed.

July 15, 2014

State Farm Fire and Casualty Company v. Bell, 2014 U.S. Dist. LEXIS 92067 (D.KS). This order of Judge Daniel D. Crabtree allowed the economic testimony of Anthony M. Gamboa, which was based on the assumption that the plaintiff has a mobility disability as defined by the U.S. Census Bureau’s American Community Survey. The order did not discuss whether Gamboa’s loss analysis was based on a shortened work-life expectancy. The plaintiff’s life care planning expert was Laura Lampton, whose testimony was allowed in part and limited in part.

Farring v. Hartford Fire Insurance Company, 2014 U.S. Dist. LEXIS 33488 (D. NV). This two page order of Judge James C. Mahan denied a defense motion limine to exclude the hedonic damages testimony of Stan V. Smith under the standards of Daubert and Kumho. No mention was made in this order of prior federal court decisions to exclude hedonic damages testimony. Judge Mahan stated that because the “willingness to pay” literature “determines conclusions through observations of large amounts of data, its reliability is not in doubt.” The judge also said that: “Dr. Smith’s work has been published in countless peer-reviewed academic journals, and that the particular theories he uses in this case are included in textbooks relied upon by numerous universities across the country. While some economists disagree with Dr. Smith’s conclusions, his methodology has a strong following in the field.”  This is the first federal court decision in a case reported by LEXIS that has allowed hedonic damages testimony under a Daubert standard.

Stokes v. John Deere Seeding Group, 2014 U.S. Dist. LEXIS 21725 (C.D. IL 2014). This decision of Judge Sara Darrow excluded the hedonic damages testimony of Stan Smith. Her decision extensively discussed the Value of Statistical Life (VSL) literature, the method used by Stan Smith to derive his hedonic measures from the VSL literature, and makes it clear that the judge does not consider Smith’s methodology to be reliable. She said: “There is no basis, scientific or otherwise, for asserting that the only components of life’s value are economic productivity and enjoyment.” She also cited Michael L. Brookshire, et al, “A 2009 Survey of Forensic Economists: Their Methods, Estimates, and Perspectives,” 21 J. Forensic Econ. 5 (2009) to indicate that the hedonic damage approach of Smith has not been shown to be “generally accepted within the scientific community,” indicating that 83.8% of 173 respondents would refuse to calculate loss of enjoyment of life in an injury case and 82.2% of 174 respondents would critique a calculation of hedonic damages. She pointed out that while the survey was voluntary,

[T]he overwhelming negative response must least raise strong doubts as to whether Dr. Smith’s methodology can be termed ‘generally accepted.’ For this reason and because Dr. Smith’s method relies on unfalsifiable and unsubstantiated inferences, as described, it is unreliable.

Judge Darrow went on to deny a request from the plaintiff that, should court exclude Dr. Smith’s testimony on the plaintiff’s personal hedonic damages calculations, Smith would still be permitted to “explain the concept” of hedonic damages. She said:

The only sufficient testimony Dr. Smith could provide covers matters already “obvious to the layperson” . . . A jury has no need for an expert to make the banal observation that the value of life exceeds a person’s economic productivity.

Palms Casino v. Rodriguez, 2014 Nev. LEXIS 55; 130 Nev. Adv. Rep. 46 (NV 2014).  The Nevada Supreme Court reversed the trial court decision of Judge Jessie Walsh on several grounds and granted Palm’s request to have the remanded case reassigned to a new judge. The Court went out of its way to point out that the testimony of economist Thomas Cargill had been improperly excluded on the basis that Cargill had not stated that he had testified to a reasonable degree of professional probability, saying that Cargill’s “testimony was sufficiently certain given its purpose and content.

Foradori v. Captain D’s, 2005 U.S. Dist. LEXIS 47843 (N.D. MS).  This decision of Judge Michael P. Mills excluded the hedonic damages testimony of G. Richard Thompson, saying:

Captain D's motion to strike the testimony of plaintiff's expert G. Richard Thompson, Phd, who has been called to testify regarding plaintiff's damages, will be granted, to the extent that he seeks to offer expert testimony regarding the pecuniary value of any hedonic damages suffered by Foradori. After reviewing Dr. Thompson's report and the methodologies used therein, the court views his hedonic damages testimony as quintessential "junk" science excluded by Daubert.. See, e.g. Davis v. ROCOR Intern., 226 F.Supp.2d 839 (S.D. Miss. 2002) (excluding hedonic damages expert testimony pursuant to Daubert). Indeed, the notion that Dr. Thompson is able to assign the precise value of $ 1,164,300 to plaintiff's loss of enjoyment of life borders on the absurd, and the specific methodologies used by Dr. Thompson in arriving at this figure strengthen this court's conclusion in this regard.

July 16, 2014

Corenbaum v. Lampkin, 215 Cal. App. 4th 1308 (CA App. 2013). This decision followed Howell v. Hamilton Meats & Provisions, Inc., 52 Cal. 4th 541; 257 P.3d 1130 (CA 2011). The Corenbaum Court limited expert opinion about future medical expenses of an injured plaintiff, as follows:

[F]or an expert to base an opinion as to the reasonable value of future medical services, in whole or in part, on the full amount billed for past medical services to a plaintiff would lead to the introduction of evidence concerning the circumstances under which a lower price was negotiated with that plaintiff’s health insurer, thus violating the evidentiary aspect of the collateral source rule. . . Thus, we conclude that the future medical services that Corenbaum and Carter are reasonably likely to require may not rely on the full amounts billed for plaintiff’s past medical expenses.

This means that any projection of the future costs of medical care must be based on amounts that will be paid in satisfaction of future medical bills, and not amounts originally billed.

Howell v. Hamilton Meats & Provisions, Inc. 52 Cal. 4th 541; 257 P.3d 1130 (CA 2011). The California Supreme Court reversed the California Court of Appeals on the issue of whether a plaintiff can recover amounts originally billed rather than amounts actually paid in satisfaction of bills for medical services following an injury. The Court aid with respect to the collateral source rule in California:

The rule has no bearing on amounts that were included in a provider's bill but for which the plaintiff never incurred liability because the provider, by prior agreement, accepted a lesser amount as full payment. Such sums are not damages the plaintiff would otherwise have collected from the defendant. They are neither paid to the providers on the plaintiff's behalf nor paid to the plaintiff in indemnity of his or her expenses. Because they do not represent an economic loss for the plaintiff, they are not recoverable in the first instance. The collateral source rule precludes certain deductions against otherwise recoverable damages, but does not expand the scope of economic damages to include expenses the plaintiff never incurred.

The Court also said:

We hold, therefore, that an injured plaintiff whose medical expenses are paid through private insurance may recover as economic damages no more than the amounts paid by the plaintiff or his or her insurer for the medical services received or still owing at the time of trial. In so holding, we in no way abrogate or modify the collateral source rule as it has been recognized in California; we merely conclude the negotiated rate differential--the discount medical providers offer the insurer--is not a benefit provided to the plaintiff in compensation for his or her injuries and therefore does not come within the rule.

Pooshs v. Phillip Morris USA, Inc., 2013 U.S. Dist. LEXIS 72769 (N.D. CA 2013). This decision followed California law in holding that past medical expenses must be stipulated by the parties as amounts paid in satisfaction amounts billed for medical services. The Court followed Corenbaum v. Lampkin, 215 Cal. App. 4th 1308 (CA App. 2013) in holding that past medical bills cannot be introduced as evidence of the reasonable value for future medical expenses of the plaintiff. 


Quintero v. United States, 2011 U.S. Dist. LEXIS 20489 (E.D. CA 2011).  In this FTCA case, the Court considered both California’s collateral source rule and the Federal Rules of Evidence in determining that:

Evidence of the actual amounts paid for Esteban's medical care was considered for the limited purpose of ascertaining the reasonable value of the medical services provided. As specifically noted in the findings of fact and conclusions of law, evidence regarding the amounts actually paid for Esteban's medical services was the only evidence of the value of such services submitted other than the billed amounts, which the court found were unduly inflated. In light of the limited evidence of damages offered by the parties, evidence of the amounts actually paid for all Esteban's medical services was substantially probative. There was no jury hearing Esteban's case. The risk of undue prejudice under Rule 403 resulting from the evidence was nonexistent. Contra Lund, 31 Cal. 4th at 8; ("because collateral source evidence is 'readily subject to misuse by a jury,' the likelihood of misuse 'clearly outweighs' the value of such evidence") (emphasis added); Eichel, 375 U.S. at 255 (same). The evidence of the amounts paid in full satisfaction of Esteban's medical debts was properly admitted under either the evidentiary prong of California's collateral source rule or under the Federal Rules of Evidence to show the value of the services and as bearing on the actual loss qua damages.

Valiavicharska v. Tinney, 2012 U.S. Dist. LEXIS 12800 (N.D. CA 2012). The Court said with respect to the issue of whether a plaintiff can recover amounts originally billed for medical services or amounts paid by third party payers in satisfaction of those bills:

The Court agrees with Howell and Quintero that the amount actually paid on behalf of Plaintiff by her insurers pursuant to prior agreements with her medical providers is the reasonable value of her medical care. Plaintiff has not cited any case law to the contrary, and this rule makes common sense. The dilemma, however is how to present such evidence to the jury without – perhaps unintentionally – inducing them to reduce the amount of medical damages by the amount paid by insurers in violation of the collateral source rule. The parties are therefore ordered to meet and confer to determine if they can reach an agreement on how to present such evidence.
   
Another potential solution is to follow the procedure that occurred in Howell, namely “where a trial jury has heard evidence of the amount accepted as full payment by the medical provider but has awarded a greater sum as damages for past medical expenses, the defendant may move for a new trial on grounds of excessive damages,” and the plaintiff may “choose between accepting reduced damages or undertaking a new trial.”

Schultz v. The Glidden Company, 2013 U.S. Dist LEXIS (E.D. WI 2013).  Judge Rudolph Randa said as part of his memorandum:

The parties agree that there is a conflict between Wisconsin and Florida law regarding the "collateral source" rule, which generally provides that a plaintiff's recovery of medical expenses will not be reduced by the fact that they were paid by some source collateral to the defendant, such as an insurance company. Leitinger v. Van Buren Mgmt., 2006 WI App 146, 295 Wis. 2d 372, 720 N.W.2d 152, 156 (Wis. Ct. App. 2006). Schultz accrued $762,173.54 in medical expenses for his cancer treatment. Medicare paid $202,323.31 towards this amount, and Schultz's medical providers are not attempting to recover the balance. Under Wisconsin law, Schultz would be entitled to recover the entire balance so long as that amount represents the "reasonable value of medical and nursing services reasonably required by the injury." Id. (citing Ellsworth v. Schelbrock, 2000 WI 63, 235 Wis. 2d 678, 611 N.W.2d 764, 769 (Wis. 2000)).  [*11] Under Florida law, Schultz would be limited to the amount paid out by Medicare. Cooperative Leasing v. Johnson, 872 So. 2d 956, 960 (Fla. Dist. Ct. App. 2004) ("the appropriate measure of compensatory damages for past medical expenses when a plaintiff has received Medicare benefits does not include the difference between the amount that the Medicare providers agreed to accept and the total amount of the plaintiff's medical bills"). Accordingly, the Court agrees with the parties that there is a conflict between Wisconsin and Florida law.

July 17, 2014

Melo v. Allstate Insurance Company, 800 F. Supp. 2d 596 (D. VT 2011).  The Court said:

The Vermont Supreme Court has not decided whether the collateral source rule applies to bar evidence of third party payment that is directed to proof of the value of medical services rendered rather than to proof of the amount of damages owed by a defendant. Vermont's trial courts have reached different conclusions, although the majority have ruled that evidence of collateral source payments is not admissible to prove the reasonable value of medical services rendered.

July 28, 2014

Lees v. Storefront Specialties and Glazing, WL 7808659 (N.M. Dist. 2012).  Judge C. Shannon Bacon held that:

[Thomas R.] Ireland may not provide testimony at trial that challenges the “hedonic damages” approach to a determination of the the loss of enjoyment of life, or that the use of the “values of statistical life” studies are not scientifically reliable or valid to use in the determination of the value of life. These conclusions are contrary to the law of New Mexico. Further, Mr. Ireland may not provide testimony that is his lay person intepretation of the law. This is an improper invasion of the Court’s exclusive role in instructing the Jury on the law.

August 9, 2014

Hance v. Norfolk Southern, 571 F.3d 511 (6th Cir. 2009).  This decision involved a ruling that a worker who was fired because of National Guard obligations was wrongfully terminated. The worker was reinstated and awarded back pay, raising questions regarding how past lost medical insurance and payroll taxes/pension rights should be treated.  The Court held that a terminated worker could be awarded out-of-pocket expenses for either medical expenses that would have been covered or cost of replacement insurance, but was not entitled to recover the market value of medical insurance the worker would have had if he had remained employed. The Court held that awarding the market value of past lost medical insurance would have made the worker “more than whole.” The Court also held that the Norfolk Southern would be required to pay Tier I and Tier II payroll taxes on back pay, but that the worker would receive credit for having worked during those time periods during which he had been dismissed so that he would not have lost any credit toward future pension. Thus, no amount would be owed in the form of back pay based on a claim of lost pension benefits.  

Mickey v. BNSF, 2014 Mo. LEXIS 189 (MO 2014).  The Missouri Supreme Court affirmed the Missouri Court of Appeals in holding that the BNSF had to pay Mickey the full amount of $345,000 awarded by the jury, without reduction for payroll taxes. The BNSF had argued that he was required by law to withhold $12,820.80 from the lost earnings awarded to Mickey to pay Mickey’s portion of payroll taxes to the Railroad Retirement Board. The BNSF had paid that amount sua sponte, believing it was obligated to do so under RRB tax requirements. The Court pointed out that BNSF could cite no basis in any prior court decision that it was required to make such payments to the RRB. 

August 10, 2014

Phillips v. Chicago Central & Pacific Railroad, 2014 Iowa Sup. LEXIS 77 (IA 2014).  The Iowa Supreme Court held that the Railroad Retirement Tax Act (RRTA) required that a railroad employer pay the employer portion of Tier I, Tier II and Medicare payroll taxes on amounts awarded for personal injury to a railroad worker under the FELA. The Court interpreted the RRTA to require that the entire amount of an award be treated as lost earnings subject to RRTA taxes if the loss amounts were not enumerated, as in the jury decision in this case. This amounts awarded based on fringe benefits or lost household services that would not otherwise have been subject to RRTA taxes were subject to Tier I, Tier II and Medicare payroll taxes.

Cowden v. BNSF, 2014 U.S. Dist. LEXIS 91454 (E.D. MO 2014). Judge Richard Webber held in this FELA case that there is no requirement under federal law for a railroad to pay railroad retirement board taxes on amounts awarded to injured railroad workers or to withhold payroll taxes from those amounts. Judge Webber closely examined requirements under the Railroad Retirement Act (RRA) and the Railroad Retirement Tax Act (RRTA) and arrived at his opinion that the RRTA does not require Tier I or Tier II or Medicare payroll taxes to be paid by a railroad employer or withheld from the earnings of an injured railroad worker. In doing so, he rejected decisions reached by the Nebraska Supreme Court in Heckman v. BNSF (2013), the Iowa Supreme Court in Phillips v. Chi. Cent. & Pac. Rr. Co. (2014) and another federal district court decision in Cheetham v. CSX Transportation, but consistent with a decision of the Missouri Supreme Court in Mickey v. BNSF a day after this decision.

Cheetham v. CSX Transportation, 2012 U.S. Dist. LEXIS 49659 (M.D. FL 2012). This decision was under the Family and Medical Leave Act (FMLA). CSX was ordered to pay $199,056 to the plaintiff based on an FMLA violation. CSX wanted to withhold applicable federal and state income taxes and payroll taxes on the $199,056 under federal withholding requirements. The magistate judge recommended that CSX be allowed to do so.

Tolan v. Levi Strauss & Co.,867 F.2d 467 (8th Cir. 1989). This decision provided a review of decisions prior to 1989 with respect to the question of whether a plaintiff could recover the market value of lost past medical and life insurance or medical expenses caused by the lack of insurance and/or costs of replacement insurance before ruling that the award for past lost insurance must be reduced to amounts actually paid by the plaintiff for replacement insurance. This decision was cited in Hance v. Norfolk Southern,571 F.3d 511 (6th Cir. 2009) as providing a review of decisions before 1989. 

August 11, 2014

McMillan v. Mass. Society for the Prevention of Cruelty to Animals, 140 F.3d 288 (1st Cir 1998). The plaintiff won an award based on being underpaid because of sexual discrimination. The trial court had added 21% to back pay to account for allegedly lose job-related fringe benefits. The 1st Circuit held that:

Lost benefits are recoverable only if the plaintiff has offered evidence of out-of-pocket expenses for the same benefits. See Kossman v. Calumet County, 800 F.2d 697, 703-04 (7th Cir. 1986) (holding that, to recover damages representing benefits, a plaintiff must show that she actually incurred insurance or medical care expenses); Taylor v. Central Pa. Drug & Alcohol Servs. Corp., 890 F. Supp. 360, 372 (M.D. Pa. 1995); Berndt v. Kaiser Aluminum & Chem. Sales, Inc., 604 F. Supp. 962, 965 (E.D. Pa. 1985). In this case, even if the budgeted value of benefits corresponding to plaintiff's salary had been less than the budgeted value of benefits corresponding to the salaries of the other department heads, plaintiff presented no evidence that she incurred insurance expenses. In addition, she presented no evidence that any employer-contributed retirement benefits were tied to the amount of her salary. Further, that benefits may have amounted to twenty-one percent of her supervisees' salaries does not mean that benefits constituted an equal percentage of higher salaries. Indeed, it would be logical to expect that employer insurance contributions at all salary levels were substantially the same and that, therefore, benefits were a considerably lower percentage of higher salaries. Because there was no competent evidence from which a  reasonable jury could conclude that Dr. McMillan suffered any loss in benefits as a result of her lower salary, Dr. McMillan's back pay award should be accordingly reduced by the amount of the lost benefits award.

Lubke v. City of Arlington, 455 F.3d 489 (5th Cir. 2006).  The 5th Circuit reversed a trial court decision allowing plaintiff subject to age discrimination to recover for the “value” of past lost insurance, and said:

Because the remedies available under the ADEA (Age Discrimination in Employment) and the FMLA (Family Medical Leave Act) both track the FLSA, cases interpreting remedies under the statutes should be consistent. Consequently,  we hold that the correct measure of damages for lost insurance benefits in FMLA cases is either actual replacement cost for the insurance, or expenses actually incurred that would have been covered under a former insurance plan. The lost "value" of benefits, absent actual costs to the plaintiff, is not recoverable. Here, because the jury awarded an undifferentiated sum for employee benefits without segregating insurance benefits, and the award was based on an incorrect understanding of FMLA remedies, we must  remand to the district court for redetermination of this damage element (parentheses added.). 

August 16, 2014

Parks v. Pine Bluff Sand & Gravel Co., 712 So. 2d 905 (LA App. 1998).  This decision involved a defense claim that the plaintiff economic expert Randolph Rice was in error because he should should have included employer paid Social Security and Medicare taxes as a lost fringe benefit, but was correct in not subtracting employee paid Social Security and Medicare taxes from lost earnings. The Court argued that cases cited by the defense were no longer good law and that Rice was correct not to subtract employee payroll taxes from lost earnings, but should also have added employer paid payroll taxes to lost earnings.

EEOC v. Wilson Metal Casket Co., 24 F.3d 836 (6th Cir. 1994).  The majority held in this decision that the winning plaintiff in a sex discrimination case was entitled to recover for medical expenses she claimed would have been covered if she had not been wrongfully terminated. A dissent claimed that no evidence had been provided indicating that her particular medical expenses (for chemical dependency) would have been covered by her employer provided insurance. No claim was made that she was entitled to recover for the employer cost of medical insurance. 

August 17, 2014

Kossman v. Calumet County, 800 F.2d 697 (7th Cir. 1986).  This decision addressed the question of whether and how past lost medical insurance of ADEA age discrimination claimants should be determined, as follows:

The primary goal of the backpay award is to make a victim of age discrimination whole. (Omitting citation.)  Including the cost of insurance coverage in a backpay award when the victim of discrimination fails to secure alternative coverage allows the victim to recover an unwarranted windfall unless he or she can demonstrate that they were unable to secure coverage and had a medical expense. As the preceding cases demonstrate, Kossman and Jodar must establish  that in fact they incurred expenses in securing alternative insurance coverage or incurred medical expenses that would have been covered under the County's insurance program had they not been terminated in order that they might recover the cost of the insurance benefits or be reimbursed for any proper medical expenses incurred. Thus, the trial court should consider whether Kossman and Jodar after their retirement purchased insurance coverage the County would have purchased for them. The court should include those expenditures in the backpay award that Jodar and Kossman incurred if in fact they did purchase alternative coverage or in lieu thereof incurred medical expenses ordinarily covered under the County's policy.

The court also held that:

Common sense dictates that Kossman and Jodar certainly had no need for deputy sheriff's uniforms during the period they were not employed as deputy sheriffs. The inclusion of the clothing allowance in the backpay award, therefore, would not be in accord with the underlying policy of the ADEA, to make the victim of age discrimination whole.


Galindo v. Stoody Co., 793 F.2d 1502 (9th Cir. 1986). The 9th Circuit held that:

Where an employee's fringe benefits include medical and life insurance, a plaintiff should be compensated for the loss of those benefits if the plaintiff has purchased substitute insurance coverage or has incurred, uninsured, out-of-pocket medical expenses for which he or she would have been reimbursed under the employer's insurance plan.

A footnote to this passage included references to three supporting decisions and two decisions in opposition the the 9th Circuit’s decision that had held that a worker could or “might” recover for the employer cost of providing medical insurance. Those decisions were Fariss v. Lynchburg Foundation, 769 F.2d 958, 965 (4th Cir. 1985) (indicating plaintiff in an ADEA case might recover the cost to employer of providing insurance even where no substitute insurance is purchased; Jacobson v. Pitman Moore, Inc., 582 F. Supp. 169, 179 (D. Minn. 1984) (award of lost insurance benefits in ADEA case not limited to actual expenses).


August 22, 2014

Jacobson v. Pitman Moore, Inc., 582 F. Supp. 169, 179 (D. Minn. 1984). The Court allowed plaintiff in an Age Discrimination in Employment Act (ADEA) case to recover for the “cost of replacing past lost insurance benefits instead of actual out-of-pocket costs as claimed by the defendant in this case.  The Court said:
 
Defendants also object to including as damages $7,882, which represents the cost of replacing insurance benefits defendants provided to plaintiff.  Instead, defendants argue that plaintiff should be awarded actual expenditures made by plaintiff in obtaining replacement insurance coverage, and if an uninsured loss is incurred, the actual loss to the extent it would have been covered by the employer's insurance programs.  The Court does not accept the defendants' proposed method of calculating plaintiff's damages. . . The insurance benefits plaintiff lost are not any less of a monetary benefit to her because she could not afford to replace her insurance benefits or because she did not become sick. . . . Accordingly, the Court finds that plaintiff is entitled to recover her lost insurance benefits.

August 23, 2014

Fariss v. Lynchburg Foundation, 769 F.2d 958, 965 (4th Cir. 1985). This was an appeal of a trial court decision in an Age Discrimination in Employment Act (ADEA) case. The ADEA plaintiff had subsequently died after his termination. On the issue of whether past lost insurance should be calculated on the basis of past out-of-pocket costs, market value of the insurance or the employer cost for providing the insurance, the 4th Circuit said:

Had Mr. Fariss not been terminated, he would have been covered by a life insurance policy with a $42,000 face value for the two years before his death. This insurance coverage, not the proceeds, is the benefit for which the employer must be held liable. Here the employer would in no event have been liable to the employee for the $42,000, but only for the continuing payment of premiums. The value of being insured for a given period is precisely the amount of the premiums paid. To require the employer to pay the face value of the policy would be to compel assumption of a risk not undertaken on behalf of any other employee.
   
Nor is it sufficient to respond that an employer who discriminates in violation of the ADEA deserves to bear such a sizable and unanticipated penalty, for in most instances, the employee can easily avoid the risk of being uninsured by purchasing  an individual policy of comparable value. Where the employee elects to obtain substitute insurance, the "make whole" concept underlying ADEA damages . . . would permit full recovery of any additional premiums for the comparable individual policy beyond what the employer would have paid for group insurance.

The 4th Circuit also held that the defendant was entitled to an offset against back pay and front pay for a lump sum for pension benefits that Mr. Fariss received at the time of his termination. Since that lump sum was larger than his lost earnings because of his subsequent death, there was no net loss of financial support from his lost earnings to his surviving wife.

August 28, 2014

Moore et al. v. The Health Care Authority et al., 2014 Wash. LEXIS 641 (WA 2014).  This decision considered alternative methods proposed by employees and the State of Washington to value past medical insurance lost by part time employees as part of a class action lawsuit. The State argued that the only damages that it should pay were out-of-pocket costs paid by class members for medical expenses or for substitute health insurance that class members purchased during time when they were denied health benefits. This was to be established through an individual claims process. Employees held that the State’s method was inaccurate, contrary to the evidence, and would lead to a windfall to the wrong doer.  Employees proposed three alternative methods for measuring damages resulting from the State’s failure to provide medical insurance to part time employees: (1) Treat the amount the State would have paid to provide health benefits as the loss; (2) Treat the amount the state unlawfully retained by failing to provide health benefits as the loss; and (3) Treat the amount the state would have paid in health care costs for the group if they had been covered as the loss. The trial court generally sided with the Employees, but had refused to grant summary judgment to either side because additional information was needed “on the likelihood that any members would have opted out of coverage because of availability from another source. The trial court had also held that long term consequences of failures to seek medical attention because of lack of medical insurance should be considered. The Washington Supreme Court agreed with the trial court with respect to summary judgment and the need for more information, but emphasized that its ruling should not be treated as a “one size fits all” ruling for all future cases. Suggested by William Brandt.

August 31, 2014

Windom v. Norfolk Southern Railway Company, 2012 U.S. Dist. LEXIS 173477 (M.D. GA). In this FELA personal injury case, the jury awarded $200,000 in damages, including $100,000 in “net lost wages and benefits reduced to present value,” but held that the Plaintiff’s contributory negligence resulted in a net award of $20,000 to be paid by the Norfolk Southern to the Plaintiff. The Norfolk Southern withheld $6,233.23 as payroll taxes allegedly owed by the Plaintiff on the $100,000 portion of the award that was for lost earnings, only $10,000 of which represented a recovery by the Plaintiff.  Thus, in effect, the Norfolk Southern was reducing the $10,000 paid by the Norfolk Southern for “time lost” by the plaintiff by 62.33% for payroll taxes. The Norfolk Southern asked the Court to rule that the judgment had been satisfied by $13,766.77 paid to the Plaintiff as a result of the award, with the $6,233.23 being withheld Tier I, Tier II and Medicare payroll taxes the Norfolk Southern was allegedly going to have to pay to the Railroad Retirement Board. The Court held that the Norfolk Southern must pay the $6,233.23 to the Plaintiff on the ground that the Norfolk Southern had not provided that the Norfolk Southern would have to pay the amounts withheld to the Railroad Retirement Board.

September 3, 2014

Cox v. Martin, 2012 U.S. Dist. LEXIS 113549 (W.D. MO 2012). The U. S. District Court interpreted that:

[Mo. Rev. Stat. § 490.715.5(1)] provides a non-exhaustive list of factual matters to consider in determining whether the presumption has been rebutted, including (1) the medical bills incurred, (2) the medical bills paid, and (3) the unpaid amount that the plaintiff will be "obligated to pay to any entity" in the event of a favorable verdict. Other factors recognized, or testimony accepted, by Missouri courts as rebutting the presumption include: whether the amounts charged are customary and reasonable, whether the health care provider typically attempts to recover the full amount of the bill, and the extent to which the amount accepted represents the value of the medical services.

September 4, 2014

Jacques v. Manton, 125 Ohio St. 3d 342; 928 N.E.2d 434 (OH 2010). This decision involved medical expenses following an automobile accident and the passage of and Ohio statute addressing the issue of the reasonable value of past medical expenses. The Ohio Supreme Court said:

Because R.C. 2315.20 does not prohibit evidence of write-offs, the admissibility of such evidence is determined under the Rules of Evidence. A plaintiff is entitled to recover the reasonable value of medical expenses incurred due to the defendant's conduct. . .The reasonable value may not be either the amount billed by medical providers or the amount accepted as full payment. . . "Instead, the reasonable value of medical services is a matter for the jury to determine from all relevant evidence. Both the original medical bill rendered and the amount accepted as full payment are admissible to prove the reasonableness and necessity of charges rendered for medical and hospital care."

Hana v. Chams, 2011 Ill. App. Unpub. LEXIS 1997 (Ill App. 2011). The Illinois Court of Appeals held in a medical malpractice case that:

As our supreme court has now made clear, Illinois follows a "reasonable-value approach" to the collateral source rule. Id. at 413. Under this approach, and as a substantive rule of damages, "[a]ll plaintiffs are entitled to seek to recover the full reasonable value of their medical expenses." . . . Furthermore, under this approach, "'collateral benefits do not reduce the defendant tort liability, even though they reduce the plaintiff's loss.'" Id. at 419, quoting Arthur, 216 Ill. 2d at 78. [ Arthur v. Catour, 216 Ill. 2d 72, 833 N.E.2d 847, 295 Ill. Dec. 641 (2005)] As such, a plaintiff may recover for the reasonable value of medical treatment even where that treatment is, in whole or in part, paid for by private insurance, by a governmental insurance program, or is provided gratuitously. Id. at 413, citing Restatement (Second) of Torts § 920A cmt. b, c (1979).

Swanson v. Brewster, 784 N. W.2d 264 (MN 2010). The Minnesota Supreme Court reversed a trial court decision in a motor vehicle accident in light of its interpretation of a recent Minnesota legislative act modifying the application of the Minnesota collateral source rule with respect to offsets for costs paid by third party providers. The issue in this case is the narrower question of whether the offset should only be for the amount actually paid by third party providers or for the amounts originally billed by third party providers. The Court said:

We conclude that  negotiated-discount amounts--amounts a plaintiff is billed by a medical provider but does not pay because the plaintiff's insurance provider negotiated a discount on the plaintiff's behalf--are "collateral sources" for purposes of the Minnesota collateral-source statute, Minn. Stat. § 548.251. We therefore hold that the district court erred in its collateral-source determination because it failed to classify the amount by which Swanson's medical providers discounted Swanson's medical bills as a collateral source. Because of Swanson's accident with Rebecca Brewster, Swanson's medical expenses totaled $ 62,259.30. After Swanson's copayments of $ 1,169.80, $61,089.50 in charges remained. Because the money HealthPartners delivered to the medical providers ($17,643.76) combined with the negotiated discount ($43,445.74) fully satisfied Swanson's remaining $ 61,089.50 obligation, the total amount of "collateral sources that have been paid for the benefit of [Swanson] or are otherwise available to [Swanson]" is $ 61,089.50 for purposes of Minn. Stat. § 548.251, subd. 2(1). As required by Minn. Stat. § 548.251, subd. 3, the district court on remand should also offset the collateral-source amount--$ 61,089.50--by $ 4,570.64, the total of Swanson's health insurance premium payments for the two-year period immediately before this action. Accordingly, the district court on remand should reduce Swanson's damage award by the amount of $ 56,518.86.

Brethren Mutual Insurance v. Suchoza, 212 Md. App. 43; 66 A.3d 1073 (MD App. 2013). The Court of Special Appeals of Maryland indicated that “reasonable value” was the standard in Maryland and that Brethren had not provided any expert testimony to the effect that amounts actually paid in satisfaction of Suchoza’s bills represented the reasonable value of the medical services provided to Suchoza. The Court added:

[T]he mere acceptance by a medical provider of the payment of a lesser amount on a bill is not probative of the reasonable value of the medical services reflected in that bill. There are many reasons (e.g., managed care contracts, Medicaid contracts, private insurance agreements, etc.) why medical providers would accept a lesser amount than the amount charged. Indeed, in his deposition testimony, Dr. Urban stated: "I think that the charges are what I should get paid for [the medical service provided]. We have horrible contracts with our companies and I think that we are actually right now redoing our contracts because we don't get paid enough for what we do." 

Scott v. Garfield, 454 Mass. 790; 912 N.E.2d 1000 (MA 2009). This case involved an injury caused by rental house for which the plaintiff sued the owners of the house for damages. The Massachusetts Supreme Court took up this case on its own initiative from the Appeals Court. One of the issues in the appeal was a claim by the defendants that the defense should have been about to present evidence about the amounts actually paid to satisfy the plaintiff’s medical bills. The court said:

The judge properly excluded from the jury's consideration the amounts paid to Scott's health care providers.  The collateral source rule required that the amounts actually paid to the health care providers by the health insurer be redacted on the medical bills admitted in evidence. In any event, there could be no abuse of discretion here. Despite the defendants' argument that the jury, in determining Scott's reasonable medical expenses, should have been allowed to consider, in addition to the amounts billed, the amounts actually accepted by the health care providers as full payment, the defendants made no evidentiary proffer, i.e., a showing that the health care providers had agreed to accept as full payment some amount less than the amount billed, that would have laid the foundation for such a challenge to the application of the collateral source rule.

The court went on to say that defendants could have challenged the reasonableness of original bills by summoning and cross examining the medical care providers.

September 9, 2014

Bratek v. BNSF, 2011 WL 1883042 (C.D. Ill. 2011).  Economic expert Thomas Ireland was excluded from testifying about the possible loss of household services of the plaintiff. In deposition Ireland had admitted that he did not “have enough information to calculate a specific dollar value that I think was professionally responsible” and that Ireland had not determined a specific wage rate for replacement household services in the Fort Madison, Iowa area. The court said:

Dr. Ireland's deposition testimony shows that he does not know the value of alleged household services loss. Dr. Ireland does not have enough information to draw any conclusions or assist the trier of fact in assessing the household service loss. His testimony does nothing other than invite the jury to speculate about the amount of the alleged household service loss.

September 21, 2014

Toyota Motor Manufacturing v. Williams, 122 S.Ct. 681 (2002). “It is insufficient for individuals attempting to prove disability status under this test to merely submit evidence of a medical diagnosis of impairment.” Disability must be analyzed in a “case by case manner” “in terms of their own experience,” in terms of “the effect of that impairment on the life of the individual.” Revised listing.

Hough-Scoma v. Wal-Mart Stores, Inc., WL 261857 W.D.N.Y.; 1999 U.S. Dist. LEXIS 7046. The decision in this case was reversed because the vocational expert, Dr. Allen Winship, had relied upon the Gamboa tables as the sole basis for projecting that the plaintiff’s work-life expectancy had been shortened.  The plaintiff had returned to work at her old job, though with modified duties, but at the same pay. The Court pointed out that the Gamboa tables had not been admitted into evidence, that there was no evidence in the record that the Gamboa tables had been accepted in the relevant scientific community, and that there was no medical evidence that the plaintiff’s condition would worse over time such that she would not continue to work as long as before her injury. Given the lack of evidence of a reduction in work-life expectancy, the Court concluded that Dr. Winship’s testimony should not have been admitted. This is a revised listing.

October 29, 2014

Villacorta v. Cemex Cement, Inc., 221 Cal. App. 45h 1415; 165 Cal Rptr. 3d 441 (Cal. App. 4th Dist., 2013). The jury awarded $198,000 for lost earnings in a discrimination case (Venezuelan employers discriminating against a Filipino employee). The plaintiff had taken alternative work at a slightly lower earnings rate after eight months of unemployment, but with a required two hour drive each way to get to and from work. The award was for three years of lost earnings without reduction for amounts earned in the second job. The jury felt that the job requiring the two hour drive each way with slightly lower earnings was not comparable employment and therefore that earnings in that replacement employment should not be treated as a mitigation offset to Villacorta’s losses. The Court of Appeals upheld the trail court verdict, based on Parker v. Twentieth Century-Fox Film Corp., 3 Cal.3d 176 (1970). In other words, earnings during the loss period that fall outside of the duty to mitigate do not constitute an offset to losses that can be taken by a defendant in a California wrongful termination case. Villacorta had been unable to find comparable employment during the three year period since his termination.

November 26, 2014

Nilavar v. Osborn, 137 Ohio App. 3d 469 (Ohio App. 2000).  This was a breach of contract case. The plaintiff’s economic expert, Alan Duvall, had relied upon the Gamboa tables in the preparations of his damages analysis. The defense challenged the admissibility of testimony based on the Gamboa tables as one point in its appeal. The Court concluded that Duvall’s testimony based on the Gamboa tables was admissible, as follows:

[W]e conclude that Duvall's testimony based upon the Gamboa study was relevant and could assist the trier of facts in understanding the evidence presented or in determining a fact in issue, to wit: the amount of damages suffered by Nilavar due to Osborn's breach of contract. Applying the factors set forth in Daubert, we note that while there was no evidence that the Gamboa study had been subjected to peer review or had been generally accepted by the scientific community, these factors are not prerequisites to admissibility under Daubert. . . . The Gamboa study was based on data from the Current Population Survey by the U.S. Department of Commerce, Bureau of Census. The Gamboa study had been published for at least nine years at the time of trial, and Duvall knew of other experts who relied on it. Duvall also testified that if he had based his damage calculations on the "Cieka Study," which Osborn's expert recognized as authoritative, his calculations would have been even higher. Duvall utilized the more conservative study.

The decision is unclear about which study by “Ciecka” was being referred to, but it appears that damages calculated based on the Gamboa tables by Duvall reduced the loss period that would have been found in whichever “Ciecka” study was being referred to.

Johnson v. CSX, 2008 Ill. App. LEXIS 1354 (Ill. App. 2008). This decision responded to a defense challenge to the trial court decision in a FELA action. One of the issues raised by the defense was the nature of jury instructions regarding Johnson’s future lost earnings. The court said:

Dr. Anthony Gamboa, PhD, also testified at trial. Dr. Gamboa  is a vocational economist who testified regarding Johnson's future wage loss claim based on his status as a disabled person. Dr. Gamboa utilized a definition of disability from the American Community Service (ACS) that is published by the Census Bureau. According to Dr. Gamboa, the ACS definition of disability provides that a physical disability is a limitation or problem with climbing, lifting, prolonged standing, sitting or walking. Dr. Gamboa performed a vocational assessment of Johnson that was based on Johnson's medical records, Johnson's employment and tax records and depositions given by Drs. Miz, Carobene and Gates. Dr. Gamboa also testified that he functions like an appraiser, who measures the impact of disability on a subject's earning potential. Dr. Gamboa testified that Johnson was 39 years old at the time of trial, had a high school education and a pre-injury work-life expectancy between 21.2 and 22.5 years and a pre-injury earning capacity of $ 63,177 per year. According to Dr. Gamboa, disability reduces earnings because it reduces the work-life expectancy. Dr. Gamboa also testified that it is probable that Johnson will have a post-injury reduction in his work-life expectancy  to between 16.4 and 19.4 years as a result of his injury and resulting disability. According to Dr. Gamboa, people with herniated discs have problems with heavy lifting, with bending and with pain and Johnson was halfway between a person with anon-severe work disability and no work disability at all. Dr. Gamboa also testified that Johnson's lifetime loss of earning capacity ranged from $ 195,909 to $ 299,137.

Cox and Tube City LLC v. Matthews, 901 N.E.2d 14 (Ind. App. 2009). In this appeal of the trial court decision, the defense questioned the legitimacy of Gamboa’s use of the Gamboa tables in preparing his calculations. The Court said:

Dr. Gamboa based his opinion on the medical findings of Dr. Fortson, who had previously testified. Therefore, we cannot conclude that the trial court abused its discretion in determining that the findings of a medical doctor were a sufficiently reliable basis for a specialist's opinion under Rule 702(b). . . Moreover, Dr. Charles Linke, an economist and Tube City's expert, used the same methodology as Dr. Gamboa, including the same percentage for fringe benefits, the same interest rate growth rate, and the same data from the Current Population Survey that is gathered by the U.S. Bureau of the Census. Therefore, Tube City cannot now complain that Dr. Gamboa's methodology is unreliable.

November 30, 2014

Shaheen v. Advantage Moving and Storage, 369 Ill. App. 3d 534 (Ill. App. 2006). One of the grounds for this defense appeal of the jury verdict in this personal injury case was that the trial court abused its discretion by allowing Dr. Anthony Gamboa to testify about his estimate of diminished earning capacity. Defendants did not challenge Gamboa’s use of data, but argued that Gamboa should have given more weight to the fact that the defendant earned more in 2001, the year after the plaintiff’s injury, than the plaintiff earned in the last year before the injury and that government statistics do not distinguish between nonsevere work disabilities and severe work disabilities. The Court held that Dr. Gamboa had “provided an adequate foundation for his opinion with his credentials and his use of data typically used by persons in his profession.” The court added:

We note that defendants used the gain in actual earnings effectively to impeach Dr. Gamboa. The jury found that the plaintiff showed that he would lose $200,000 in earnings, and that amount is less than one-fourth of Dr. Gamboa’s estimate of lost earnings. At plaintiff’s 2001 earnings of nearly $60,000 per year, 3.5 years of diminished work life will cost plaintiff about $200,000 in lost earnings. Even if the jury had completely rejected Dr. Gamboa’s testimony, the evidence supports the assessment of $200,000 in lost earnings.  See Stringham v. United Parcel Service, Inc., 181 Ill. App. 3d 312, 317, 536 N.E.2d 1292, 130 Ill. Dec. 81 (1989) (uses change in expected work life to estimate lost earnings).    

January 19, 2015

Hoyal v. Pioneer Sand Company, Inc. 188 P.3d 716 (CO 2008). In this decision, the Colorado Supreme Court, en banc, held in a 7 to 3 decision that “evidence of a decedent’s future income tax liability should not be considered when calculating net pecuniary loss to a plaintiff in a wrongful death action.”

January 22, 2015

Ferguson v. Valero Energy Corp., 2009 U.S. Dist. LEXIS 34888 (E.D. Pa. 2009). This is an opinion by Judge Mary A. McLaughlin interpreting Delaware’s Wrongful Death Act and Survivor’s Act as they apply to categories of damages. There is no discussion of an economic expert in the decision. The case involved the death of a single adult man who was living with, but not financially supporting his father. The father sued for damages under the Delaware Wrongful Death Act, but died before the father’s case was tried. The decedent’s two brothers then sued for damages under Delaware’s Survival Act. The court held that even though the decedent had not been supporting his father, there was sufficient evidence that the decedent had provided household services to assist his father. The estate was allowed to seek recovery for the value of  household services the decedent son had provided for his deceased father. The judge also said: “Delaware courts have consistently held that the Wrongful Death Act allows the recovery of that portion of the decedent’s lost earnings that would have been saved, over and above the decedent’s spending on his maintenance, and passed on to his estate.”  However, this provision applied only between the moment of injury and the moment of death, which was too brief in this case to have allowed earnings loss damages to occur. The plaintiffs had sought “any and all hedonic damages allowed for the loss of the decedent’s life and enjoyment of future life as permitted by Delaware law or as evidence of the pain and suffering and mental anguish” of the decedent. Judge McLaughlin’s discussion of hedonic damages under the Survivor’s Act relied heavily on the decision in Sterner v. Wesley College Inc., 747 F. Supp. 263 (D. Del. 1990). Under Delaware law, any claim for hedonic damages has to be as a part of pain and suffering and not as an independent category of damages “at least under circumstances like those in Sterner and here, where only a brief interval occurred between decedent’s injury and death. . . .The Court therefore predicts that if Delaware law were to allow for the recovery of hedonic damages for life’s pleasures and loss of enjoyment of life, then the Survivor’s Act would allow recovery of such damages only to the extent they were suffered for the period of time between the injury at issue and the decedent’s death.  Revised listing.

Featherly v. Continental Ins., 73 Wis.2d 273, 243 N.W.2d 806 (1976).  This decision in related to the earning capacity losses of Clyde Featherly as the result of an automobile accident. His losses were presented to the jury in terms of the lost profits of his business, which was determined to be inadequate by the Wisconsin Supreme Court, saying:

While there may be an award for the loss of earning capacity measurable by  loss of salary, if such salary is truly a measure of earning capacity, a more difficult problem is presented where one is self-employed and derives his income from the profits of a business.  Where there is a personal injury, tort law in Wisconsin does not compensate for loss of profits per se.  Loss of profits is appropriate only if there is a clear causal relationship to the value of the earning capacity. Loss of profits is not in itself, under the circumstances here, admissible as a separate element of damages or per se as proof of the value of earning capacity.

March 7, 2015

Figurski v. Trinity Health-Michigan, 2015 Mich. App. LEXIS 452 (MI 2015). This decision reversed the trial court decision on the ground that the trial court should have permitted plaintiff’s causation experts to testify, but agreed with the trial court’s decision to allow testimony of Dr. Anthony M. Gamboa regarding plaintiff’s future wage loss. Gamboa’s five-step method was described in the decision in some detail and included his opinion that the plaintiff child had no post-injury earning capacity. Dr. Gamboa projected 36.6 years of work-life expectancy with a pre-injury high school degree and 37.7 years with an Associate’s Degree. Gamboa’s “total offset” method was based on a 5.2% wage growth rate for 1951-2011, with an earning capacity loss in the range between $2.2 million and $2.9 million, depending on educational achievement. The decision also describes Gamboa’s growth rates of 3.2% from ages six to 12 and 5.2% thereafter for home health care workers in plaintiff’s life care plan. The court said of Gamboa:

Gamboa was qualified as a vocational rehabilitation expert. He held a number of degrees, including a Master’s in Vocational Counseling and Ph.D. in an area that included vocational counseling and education. Gamboa also received an MBA and testified that he liked to focus on statistics. Gamboa had been with Vocational Economics in one capacity or another since 1977. His work there necessarily included offering expert opinions on the cost of future care and compensation loss. He was a prolific writer in the area of earning capacity loss and work-life expectancy.

March 10, 2015

Newill v. Campbell Transportation Company, 2015 U.S. Dist. 4338 (W.D. PA 2015). This memorandum from Judge Terrence F. McVerry denied a plaintiff motion to exclude the testimony of economic expert Dr. Gary Skoog on the work-life expectancy of a deck hand on a commercial vessel. Skoog’s testimony was based on spreadsheets regarding retirement ages of deck hand provided by the defendant, while the plaintiff argued that Skoog should have used the Skoog-Ciecka-Krueger work-life expectancy tables that Skoog had co-authored. Skoog had explained why those tables were not reliable when applied to deck hands, but had not offered specific work-life expectancies for deck hands. The court pointed out that the data relied upon by Skoog had been provided to the plaintiff prior to Skoog’s deposition and that the plaintiff had been able to vigorously question Skoog about his opinions during Skoog’s deposition. The court held that an expert’s opinion cannot be excluded based on an expert’s assumption that “a person’s work-life will be of a certain length.” However, the court held that Skoog should be precluded from testifying that payments for maintenance may be credited against an award for past lost wages. 

Russell v. Allianz Life Insurance, 2015 U.S. Dist. LEXIS 1946 (N.D. MS 2015).  The Court excluded the opinions of economic expert Robert Vance with respect to the lost profits of Dugan Calvin Russell allegedly due to a termination of a contract with Allianz Life Insurance Company. There were important issues with how profits were calculated and with the manner in which Vance calculated the work-life expectancy of Russell, who was 70 years of age at the time of the alleged contract violation. Vance had testified in deposition that he had relied upon work-life expectancy tables produced by Skoog and Ciecka in other cases, but in this case had taken into account subjective factors specific to Russell – “current situation, health, hopes, abilities and the nature of the work itself” – when generating his opinion regarding Russell’s work-life expectancy, which Vance rated at ten years. Vance also claimed to have relied upon work-life expectancy studies of self-employed workers showing that work-lives were “typically five to ten years longer than the work-life expectancy tables,” but did not provide citation to those alleged other studies. The court said:

Vance’s failure to utilize the Skoog-Ciecka study as an objective standard for estimating Russell’s work-life expectancy does not, by itself, make his findings unreliable. Rather, the problem with Vance’s report is that he also failed to use any objective standard, including the self-employment work-life expectancy studies he claimed to have used in other cases. In light of Vance’s reliance on Russell’s self-serving testimony, and in the absence of any indication as to how Vance might otherwise have arrived at his work-life expectancy opinion, the Court is left with no basis from which it can conclude that Vance’s ten-year estimate of Russell’s work-life expectancy – nearly three times that suggested by the Skoog-Ciecka study – is based on reliable methodology. Accordingly, the Court concludes that Vance’s opinions based on this assumption are unreliable under Rule 702.

March 28, 2015

Krohmer v. Dahl, 145 Mont. 491; 402 P.2d 979 (MT 1965).  In this wrongful death action, the Supreme Court of Montana agree with the trial court’s admission of testimony by Dr. George Heliker of the University of Montana economics department, saying:
 
This court agrees that the testimony and exhibits of Heliker were speculative in nature, but no more so than any other evidence that has for its purpose the proof of future action or events.  The issue before the trial judge, as seen by this tribunal, was whether the testimony of Heliker should be allowed, in order to give the jury some basis upon which to reach a conclusion in regard to the possible future earnings of the decedent, or whether to leave the jury unguided and hope that by their common knowledge and sense of justice they might arrive at a more accurate estimation of damages.  It appears to us that in this particular case the element of conjecture is reduced significantly by the admission of expert testimony as to the possible future earnings of the decedent. It also appears that this expert testimony is not only the best evidence, but the only evidence available in this case to prove future earnings.

Turrieta v. Wyche, 54 N.M. 5 (N.M. 1949). In this personal injury action, the New Mexico Supreme Court said about the testimony admitted in court from a person in the profession for which the plaintiff was training, that:

No general rule can be formulated that would properly control the admission of evidence to prove a man's future earning capacity.  It must be arrived at largely from probabilities; and any evidence that would fairly indicate his present earning capacity, and the probability of its increas`e or decrease in the future ought to be admitted.  This would include evidence of age, intelligence, habits,  health, occupation, life expectancy, ability, the probable increase in skill, rates of wages paid generally to those following his vocation, particularly so, where as in this case, the injured person has fitted himself for, but has not entered into, the work or business of his chosen vocation. (Citations omitted.)

It may be that such testimony is speculative, as asserted by defendant; but no more so than any that has for its purpose the proof of future action or events.  It is all problematical at best.  It is not questioned that mortality tables are admissible,  but possibly not one time in fifty would the life expectancy of any individual come within a year of the actual length of his life.  It is, to say the least, problematical whether he would continue to live, continue in health, continue to work, continue to work with much the same effort and ability he has shown in the past, continue to have the desire and the opportunity to work.  Also, that the amount of wages paid him and those following his occupation generally in the past,  will continue to be paid; that the wage scale will not be materially affected by depression, strikes, inflation, or war; that interest rates will remain much as they are.  However "speculative" such testimony may be, it is the best that can be produced to establish earning capacity over a period of years.  A jury of twelve average citizens ordinarily can be depended on to assess damages fairly, after they have heard and considered such evidence.

May 12, 2015

Gressett v. Central Arizona Water Conservation District, 2015 LEXIS 42806 (D. AZ 2015). The jury concluded that the defendant had violated the Family and Medical Leave Act (FMLA) and awarded damages. This decision provides the judge’s orders with respect to amounts awarded for liquidated and compensatory damages. Among other issues considered was whether the plaintiff was entitled to a tax neutral (“grossed up” award). The court explicitly rejected a tax neutral award saying about the plaintiff’s economic expert, Paul Bjorklund’s projections:

Bjorklund produced four tables. The Court believes the estimates based on mitigation at Plaintiff's then-current pay as a paralegal are most appropriate to use in this case because the mitigation assumption is based on actual earnings by Plaintiff, and personalized historical data is preferable to descriptive statistics concerning an entire profession. The Court also deems Bjorklund's tables incorporating income tax effects to be needlessly complicated and the Court is aware of no authority requiring it to adjust awards so that the effects upon the recipients are tax-neutral vis-à-vis the position the recipient would have been in had she not been wronged.

May 14, 2015

Meek v. Montana Eighth Judicial Dist. Court, 2015 MT 130 (MT 2015).  The plaintiff appealed a District Court pre-trial ruling that held that amounts originally billed for the medical expenses of Judy Meek before her death could not be presented to the jury. The court by a 6 to 1 margin held that the District Court was in error in excluding testimony about the amounts originally billed, and said:

[I]f at trial Meek introduces evidence of Judy Meek's medical bills the defendants may contest the reasonableness of those bills as a measure of damages. If so, evidence of the amount that Medicare pays to other health care providers for the same or similar service could be relevant to that issue, as long as there is no evidence or argument that Judy Meek was covered by Medicare or other insurance, or that Medicare or an insurer paid any part of her medical expenses. Those matters may be considered only by the District Court and only after a verdict, as provided in § 27-1-308(3), MCA.

May 22, 2015

Ashford v. Wal-Mart Stores, 2013 U.S. Dist. LEXIS 5845 (S.D. MS 2013). This is an opinion granting in part and denying in part defendant’s motion in limine to exclude the testimony of Dr. George Carter on earnings loss, fringe benefit loss and household services loss. The court granted a motion in limine to exclude testimony based on the assumption that the plaintiff was totally disabled by a slip and fall injury, but denied excluding any of Carter’s calculations altogether. Judge Halil Suleyman Ozerden drew a distinction between Davis v. ROCOR International, 226 F. Supp. 2d 839 (2002), in which the testimony of an economist was excluded based on the economist drawing his own conclusions about the percentage lost of household services and the current case in which the 75% loss being assumed was a percentage testified to by the plaintiffs. Judge Ozerden cited a 2011 Journal of Legal Economics paper in support of Carter’s use of Dollar Value of a Day for his household services calculation.

May 23, 2015

Passmore v. Barrett, 2015 U.S. Dist. LEXIS 66225, (N.D. IN 2015).  This is the denial of a Motion to Bar Opinion Testimony from Stan Smith. Smith initially offered opinions in this wrongful death action about the decedent’s “loss of value of life; and loss of society or relationship,” which defendants argued were not permitted under Ind. Code § 34-23-1-1. The plaintiff agreed to withdraw those categories, but defendants continued to challenge Smith’s testimony on “loss of wages and employee benefits and loss of household/family housekeeping and house management services.” The Court agreed with Plaintiffs that those damages are allowed under Ind. Code § 34-23-1-1 and denied the defense motion to exclude Smith’s testimony on those damages. The Court indicated that defense could file a motion requesting an extension to retain a damages expert to counter the testimony of Smith. 

May 27, 2015

Gradia v. Tanner, 2002 U.S. Dist. LEXIS 28446 (D. N.M. 2002). Judge William Deaton limited the testimony of Dr. Allen Parkman on hedonic damages, as follows:

This matter comes before the Court upon Defendants' Motion in Limine to Exclude the Testimony of Dr. Allen Parkman Regarding Loss of Value of Life or Hedonic Damages [docket no. 27]. In responding to Defendants' motion, Plaintiff relies in part on Smith v. Ingersoll-Rand Co., 1997 U.S. Dist. LEXIS 23443, which is attached to his response. In Smith, Judge Vazquez found that the economic studies which purportedly would allow valuation of hedonic damages by an expert would fall into the category of social science and would not require a Daubert analysis of the proposed testimony since the proper analysis would be under Fed. R. Evid. 702. Judge Vazquez went on to find that the use of the economist's  testimony for purposes of placing a value on hedonic damages would not be reliable and that it would be unhelpful and confusing to the jury; therefore, Judge Vazquez did not allow the economist to place a value on the hedonic damages suffered by the Smiths. However, Judge Vazquez did allow the expert in her case to give testimony explaining hedonic damages. I agree with the approach and logic taken by Judge Vazquez in the Smith case. While I will not allow the expert in this cause, Dr. Allen Parkman, an economist, to testify regarding the value of the hedonic damages suffered by Plaintiff's deceased, I will allow him to explain the nature of hedonic damages. Also, Dr. Parkman may give his opinion as to the economic loss to the estate caused by the death of Jay Gradia.

June 1, 2015

Castrillon v. St. Vincent Hospital and Health Care Ctr., 2015 U.S. Dist. LEXIS 69530 (S.D. IN 2015).  This memorandum from Judge William T. Lawrence excluded the testimony of Stan V. Smith on both the Plaintiff’s hedonic damages and wage loss. With respect to hedonic damages, Judge Lawrence said:

Even assuming Dr. Smith arrives at his "value of life" number in a scientifically reliable way, reducing it by, say, 25 percent would arrive at the value of a life that has been cut short by 25 percent, not at a life that is of the same duration but 25 percent less enjoyable. In order to be useful to the jury, Dr. Smith would have had to start with the value of the enjoyment of the Plaintiff's life but-for the events at issue in this case and then reduce that figure by the percentage of enjoyment she has lost; instead, he started with what he purports to the overall value of her life. Dr. Smith offers no explanation why he believes the value of a person's life is the same as the value of the enjoyment of a person's life, and, as the First Circuit held [Citing Smith v. Jenkins, 732 F.3d 51, 66 (1st Cir. 2013)], "[t]hat Dr. Smith may equate [the two] is not enough to bridge that gap." Accordingly, Dr. Smith's testimony regarding hedonic damages lacks a factual basis and therefore fails to satisfy Rule 702 and will not be admitted. [Footnotes removed from quotation.]

On wage loss, Smith had made speculative assumptions with respect to both the Plaintiff’s pre-injury earnings and post-injury earnings that Judge Lawrence rejected, particularly given that the Plaintiff was earning more at present than projected by Smith.

June 10, 2015

Simms v. United States, 2015 U.S. Dist. LEXIS 69456 (S.D. WV 2015).  This decision provides a detailed explanation for how the collateral source rule applies to Medicaid in terms of offsets allowed to the United States for its contributions to care for child who was wrongfully born on February 25, 2008.  It also provides extended discussion of the life care expectancy reports of physicians on both sides of the case and by non-physician life expectancy experts on both sides of the case. Dr. Robert Shavelle was the defense’s non-physician life expectancy expert and Dr. Michael Freeman was the plaintiff’s non-physician life expectancy expert. Both Shavelle and Freeman were referred to respectfully as “epidemiologists.” Based on all of this evidence the Court made its own decision that the life expectancy of the injured child, now seven years of age, was to age 21.

June 12, 2015

Sam v. Smith, 2015 U.S. Dist. LEXIS 74476 (S.D. MS 2015). This is a memorandum granting defendant’s motion in limine to exclude the testimony of plaintiff economic expert Dr. Robert W. McLeod.  Judge William Barbour, Jr., went through the earnings record of the plaintiff’s decedent year by year, which included very little income in the last two years before the decedent’s death, and said:

Although there is no evidence that Smith had worked in the behavioral health field for over three years, and there is no evidence that she was seeking employment in that field, McLeod has proffered expert opinions regarding Smith’s loss of past and future income based on her “Projected Employment” as a Director of Behavior Health Programs. McLeod further opines that Smith would have held a position in her “Projected Employment” from the date on which she died (i.e., January 8, 2011) through August 31, 2019, and that she would have had starting a starting salary of $167,501.

June 13, 2015

Liberatore v. Monogahela Railway Company, 2015 Phila. Ct. Comm. PL. LEXIS 123 (Common Pleas Court of Philadelphia County, 2015). Judge George W. Overton quashed three appeals made by the Consolidated Rail Corporation and Norfolk Southern Railroad to the judge’s order that the jury verdict be paid in full at $87,500 rather than after subtraction for two liens and alleged RRB taxes of $10,521.75, which reduced the award to $52,172.65. Thus, the defendants were ordered to pay $87,500 to the plaintiffs. The judge had held previously that Heckman v. BNSF, 286 Neb. 453 (Neb. 2013) and Phillips v. Chicago Cent. & Pac. R. Co., 853 N.W.2d (Iowa 2014) were “unpersuasive,” “as other courts have,” citing Mickey v. BNSF, 437 S.W.3d 207 (Mo. 2014).  Heckman and Phillips had held that a reduction for Tier I and Tier II taxes for the employee contribution were appropriate. Mickey had held that reduction for payroll taxes was not appropriate.

June 19, 2015

Strayton v. Delaware Health Corporation, 2015 Del. LEXIS 288 (DE 2015).  Diane Strayton suffered serious burn injures while a resident at Harbor Healthcare, a skilled nursing center.  She brought a medical negligence suit for damages, including cost of medical care to treat her burns. Without Medicare coverage, she would have been billed $3,683,797.11. Medicare paid Strayton’s health care providers $262,550.17 “in full satisfaction of Strayton’s hospital stay and other care.” The trial court limited Strayton’s recovery for this portion of her claims to the $262,550.17 that was actually paid. She appealed and the Delaware Supreme Court ruled as follows:

We conclude that the collateral source rule does not apply to amounts required to be written off by Medicare. Where a healthcare provider has treated a plaintiff covered by Medicare, the amount paid for medical services is the amount recoverable by the plaintiff as medical expense damages.

June 22, 2015

State ex rel Children, Youth & Families Dep’t, 2015 N.M. App. LEXIS 67 (N.M. App. 2015). This decision is an appeal from sanctions by the Children, Youth and Families Department (CYFD) imposed as a result of “contumacious” refusal to comply orders of the district court. CYFD had made housing arrangements for two children that the district court had specifically forbidden. In determining the amount of sanctions to be imposed, the district court had allowed Stan Smith to present hedonic damages testimony. The Court of Appeals noted that Alberico/Daubert standards did not apply in New Mexico courts to “expert testimony by an economist that is based solely upon experience and training.”  Thus, the Court of Appeals held that the distict court did not err in not applying the Alberico/Daubert standard for scientific reliability of the economist’s testimony. The Court of Appeals, however, added that: [T]he basis of Smith’s opinions provided rich fodder for cross examination.”  

Tallentire v. Offshore Logistics, 800 F.2d 1390 (5th Cir. 1986). One of the issues an appeal from a U.S. District court in Louisiana was whether or not the defendant’s economist should have deducted social security taxes in computing lost future earnings. The 5th Circuit said: “[O]ur cases establish that social security taxes should be deducted in computing future earnings.”

Pickle v. International Oilfield Divers, 791 F.2d 1237 (5th Cir. 1986). The 5th Circuit noted that: “IOD correctly argues that the district court erred in not deducting social security taxes from its estimate of Pickle’s future income.

Gaston v. G & D Marine Servs., 631 So. 2d 547 (LA App. 1994). Dr. Melville Z. Wolfson had calculated gross earnings before “income taxes and Social Security taxes” to be $54,361 and after income taxes and Social Security taxes at $46,570. The trial court awarded the plaintiff $54,361 and the Court of Appeal reduced the award to $46,570.

Cappiello v. Exxon Corp., 695 So. 2d 1097 (LA App. 1997). The Court of Appeal amended the trial court award in a maritime personal injury action to subtract for FICA taxes at 7.65%. The plaintiff economic expert, Dr. Randolph Rice, had not subtracted FICA taxes, but the court had awarded exactly the amount Dr. Rice had recommended, The Court of Appeal reduced that amount by $38,000 based on those taxes.

August 1, 2015

Olson v. Olson Estate, 2008 SD 39; 751 N.W.2d 706 (SD 2008). The South Dakota Supreme Court deferred from deciding whether loss of prospective inheritance is recoverable in a wrongful death action in South Dakota. The decedent on whose behalf this action was brought was Edda Olson, the sister of the decedent, both of whom were killed in the same automobile accident. Thus this was the estate of a decedent sister suing the estate of her decedent brother for losses resulting from her death. The Court said:

In this case, we need not decide whether recovery of a prospective inheritance will be recognized in South Dakota The question need not be decided because, even if recognized,  Elda could not have proved that she had such a claim. She had no claim to a prospective inheritance because Glenn's will contained a common disaster clause expressly providing that Elda was entitled to no inheritance unless she survived Glenn by thirty days, a fact that did not occur. Therefore, under Glenn's will, Elda was considered to have predeceased Glenn, and Elda was entitled to no inheritance. Thus, Elda's Estate could prove no loss of prospective inheritance as a matter of law.

G.M.M. v. Kimpson, 2015 U.S. Dist. LEXIS 99715 (E.D.N.Y. 2015). This decision involved vocational expert Kenneth Reagles and economic expert Dr. Frank Tinari on the plaintiff side and economic expert Dr. Bernard F. Lentz on the defense side. The plaintiff child was Hispanic, which was not taken into account in a material way be Reagles and Tinari on the plaintiff side, but had been taken into account by the defense expert Lentz. Judge Weinstein held that it was a matter of federal law under what he called “the McMillan Rule” that ethnicity cannot be taken into account in projecting the lost future earnings of an injured child.  This was based on the decision in McMillan v. City of New York, 253 F.R.D. 247 (E.D.N.Y. 2008), which involved a black plaintiff. Judge Weinstein discussed reasons why race or ethnicity should not be taken into account at great length in this decision.

August 18, 2015

Collier v. Simms, 366 S.W.2d 499, 500 (Mo. App. 1963). The issue before the court was whether a wife, who was not employed outside the home, could recover damages in Missouri for impairment of her physical ability to perform her domestic services.  On this matter the court said:

We take it to be axiomatic that to impair the ability to work of any human being (husband, wife, bachelor or spinster) is to injure a personal right, quite apart from any monetary loss, which might  result from such impairment. Any physical inability of a housewife to perform domestic duties must necessarily mean a physical inability to work and labor.  Put another way, if a housewife may not be permitted to recover damages for physical inability to perform her domestic duties, then it follows, as night follows day, that a housewife may not recover for physical inability to work and labor.  This simply cannot be, and is not, the law.  If it were the law, then every woman, upon becoming a housewife, would thereby deprive herself of the right to recover for any impairment of her inability to work and labor and perform her domestic duties.

August 23, 2015

Wolfe v. Kansas City, 334 Mo. 796; 68 S.W.2d 821 (Mo.1934). This decision described the meaning of “earning capacity” in Missouri as follows:

“It seems plain that wrongful interference with any capacity or function of a human being should be compensated for, aside from any existing need for the exercise of such capacity or function. The vicissitudes of life may call upon any person to put forth every effort to serve himself or those who are dependent upon him. In many if not all cases of series personal injury the public may have an interest, and its welfare may require that the injured person be compensated for the wrong done to him, thus in a measure lessening the demand which may be made upon the public. Impaired ability to work is in itself an injury and deprivation, distinct from any loss of earnings it entails and the sufferer is entitled to compensation for it. It may be treated as part of the mental suffering resulting from the injury and as due to the consciousness of impaired power to care for one’s self. In the nature of the case the sum which will compensate for such damage is not ascertainable by mathematical computation; it must be fixed by the jury with respect to the evidence and the probabilities, and should be sufficient to compensate therefor. (Italics ours.).” The quotation marks are correctly included because the Missouri Supreme Court was quoting the court of appeals decision that it was affirming.

September 4, 2015

Stayton v. Delaware Health Corporation, 117 A.3d 521 (Delaware, 2015). The Delaware Supreme Court held in this decision that a plaintiff can only recover the amount actually paid by Medicare in full satisfaction of past medical expenses caused by an injury. It held that the Delaware collateral source rule does not apply in this circumstance. The amount that the hospital and other health care providers would have charged was $3,683,797.11, but Centers for Medicare and Medicaid Services (CMS) actually paid was $262,550.17. The decision discussed at some length different approaches taken by other states to this same question.

On balance, we believe  the better course is to treat the amount paid by Medicare as dispositive of the reasonable value of healthcare provider services. Delaware has followed the Restatement (Second) of Torts in its application of the collateral source rule. The fact that treating the amount paid as dispositive is consistent with § 911 of the Restatement gives us confidence that the approach we adopt today is not only administrable but fully consistent with the common law tort principles underlying Delaware's collateral source rule.

October 26, 2015

Nomat v. Motta, 215 IL App (1st) 14102-U; 2015 Ill. App. Unpub. LEXIS 2024. This decision of the Illinois Court of Appeals reversed the trial court decision on various grounds. Two grounds were of interest to forensic economists. First, the Court of Appeals rejected the lost earning capacity testimony of Dr. Charles Linke on the ground that Linke had based his projection of lost earnings on pay rates in a job that had been offered to the plaintiff, but the plaintiff had rejected prior to his injury. 

February 3, 2016

Buccina v. Grimsby, 2016 U.S. Dist. LEXIS 9224 (N.D. Ohio 2016). Judge James C. Carr held that “there appears to be no uniform maritime rule governing the admissibility of contractual discounts, and that it is not inappropriate for a federal court exercising admiralty jurisdiction to look at state law for guidance.” At issue was the ruling of the Ohio Supreme Court in Robinson v. Bates, 112 Ohio St. 3d 17 (2006) that “the difference between amount billed and the amount accepted for medical services is not a ‘payment’ for purposes of the collateral source rule. Judge Carr indicated that “I . . accept that the Ohio Supreme Court’s holding that such write-offs do not constitute a benefit from a collateral source.” Other states have held that write-offs of the difference between amounts billed and amounts actually paid for medical services are a secondary insurance benefit that qualifies as excluded by the collateral source rule.

Nieman v. Illinois Central Railroad Company, 2015 IL App (1st) 143098-U; 2016 Ill. App. Unpubl. LEXIS 61 (Ill. App. 2016). James Niemann had been terminated from railroad employment prior to filing an FELA claim based upon repetitive injury. The trial court granted a plaintiff motion in limine to exclude testimony of Dr. Gary Skoog that did not include loss of earnings past the date of Nieman’s termination. Dr. Stan Smith calculated Nieman’s loss of earnings based upon both railroad earnings and non-railroad earnings through age 67 to have a present value of $1,869,695. Smith’s analysis was apparently based upon the assumption that Nieman could have found earnings equivalent to railroad earnings outside the railroad industry. The court of appeals cited Terry Cordray, the plaintiff’s vocational expert, to the effect that Nieman had no transferable skills outside the railroad industry. The court of appeals said: “Thus, evidence of projected railroad wages beyond the date of Nieman’s termination from railroad employment by Smith was not admissible in a retrial on the issue of damages only.” In the retrial, Smith was excluded from testifying in the retrial on damages trial regarding lost earnings after the date of termination. Since Skoog had been excluded by the trial court from testifying because he had limited losses to the date of termination, Skoog would presumably be permitted to testify in the retrial given that the court of appeals limited potential earnings loss damages to the termination date used by Skoog.   

Moorhead v. Crozier Chester Medical Center, 564 Pa. 156; 765 A.2d 786 (PA 2001).  The Pennsylvania Supreme Court affirmed a trial court decision that the plaintiff could recover the amount actually paid for medical services following her injury. The parties had stipulated as to the amount paid by Medicare and accepted by the defendant as payment in full for medical services at $12,167.40. The issue was whether the plaintiff was entitled to recover for amounts originally billed by the defendant for those services at $108,668.31. The Pennsylvania Supreme Court held that the collateral source rule did not apply to the original charge since that amount was not paid by any collateral source. The Supreme Court said:    Clearly, Appellant is entitled to recover $ 12,167.40, the amount which was paid on her behalf by Medicare and Blue Cross, the collateral sources. See Restatement (Second) of Torts § 920A(2), supra, note 2. But the essential point to recognize is that Appellee is not seeking to diminish Appellant's recovery by this amount. Rather, the issue is whether Appellant is entitled to collect the additional amount of $ 96,500.91 as an expense. Appellant did not pay $ 96,500.91, nor did Medicare or Blue Cross pay that amount on her behalf. The collateral source rule does not apply to the illusory "charge" of $ 96,500.91 since that amount was not paid by any collateral source. See McAmis v. Wallace, 980 F. Supp. 181 (W.D. Va. 1997) (collateral source rule did not require that plaintiff recover the amount of the Medicaid write-off since no one incurred the written-off amount); Bates, supra (collateral source rule did not apply to amount written off pursuant to Medicaid contract).

February 17, 2016

Tucker v. United States, 2014 U.S. Dist. LEXIS 160265 (D. OR 2014). This was a personal injury action under the federal Public Vessels Act (PVA). The Court held that this case was controlled by Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523 (1983). Based on that decision, the magistrate judge John V. Acosta held that all damages should be reduced to present value as of the time of the injury, not the time of trial. Plaintiff’s economic expert Dr. Eugene Silverberg had projected present values as of the date of trial. Judge Acosta reduced all damages by five percent by multiplying each damage element calculated by Silverberg by 0.95. Because the PVA did not authorize pre-trial interest, no pre-trial interest was added to the reduced damages elements. Judge Acosta held that the award for past medical damages should not be based upon amounts originally billed by service providers, but amounts actually paid to satisfy those bills, saying: “It is unreasonable to seek reimbursement for amounts that were never paid. Rather, in this court’s view, an award for past medical expenses should be based upon the actual amount expended.” Judge Acosta also rejected the defendant United States request to base future medical expenses on the Workers’ Compensation Medicare Set-Aside Arrangement (“MSA”) based upon testimony from Ro Baltayan, a vocational expert specialist with a certification for Medicare set-asides, to the effect that the application of Medicare set-asides in liability cases was unclear.
   
February 20, 2016

Salinas v. State Farm Fire and Casualty Company, 2012 U.S. Dist. LEXIS 153962 (S.D. TX 2012). Gary Kronrad was excluded in this case as an expert to testify about punitive damages. The court said:

Courts have determined that experts cannot testify as to what the amount of punitive damages, if awarded, should be. See Voilas v. General Motors Corp., 73 F. Supp. 2d 452, 464 (D.N.J. 1999) ("[T]here are no credentials that could qualify an individual as a punitive damages expert, primarily because the area of assessing punitive damages . . . rests strictly within the province of the jury and, thus, does not necessitate the aid of expert testimony.") (citing Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 24-25, 111 S. Ct. 1032, 113 L. Ed. 2d 1 (1991) (Scalia, J., concurring) ("[I]t has been the traditional practice of American courts to leave punitive damages (where the evidence satisfies the legal requirements for imposing them) to the discretion of the jury . . . .")). In Voilas, the district court excluded the testimony of an expert who proposed to provide three different approaches for the jury to determine what the expert deemed was a reasonable range for punitive damages. 73 F. Supp. 2d at 463.    

March 4, 2016

Godinez v. Alta-Dena Certified Dairy, LLC, 2016 U.S. Dist. LEXIS 23290 (C.D. CA 2016). The defense successfully argued that there was no legal authority for a “gross up” of taxes to make a plaintiff “whole” under the California Fair Employment and Housing Act (FEHA). The Court said:

[T]his Court finds that a presentation to the jury of possible negative tax consequences resulting from a favorable damages aware is inherently speculative and thus must be excluded in its entirety pursuant to Federal Rule of Evidence 403. In order to proffer such evidence to the jury, Plaintiff would have to establish with “reasonable certainty” what damages Plaintiff would incur.

The Court also noted: “The plain language of the FEHA is . . . silent as to any ‘gross up’ of damages to compensate for any potential negative tax consequences of a lump sum FEHA damages award.”

Nomat v. Motta, 215 IL App (1st) 14102-U; 2015 Ill. App. Unpub. LEXIS 2024 (Ill. App. 2015) This decision of the Illinois Court of Appeals reversed the trial court decision on various grounds. Two grounds were of interest to forensic economists. First, the Court of Appeals rejected the lost earning capacity testimony of Dr. Charles Linke on the ground that Linke had based his projection of lost earnings on pay rates in a job that had been offered to the plaintiff, but the plaintiff had rejected prior to his injury. Second, the trial court had excluded the testimony of Mary Rossi, a certified legal nurse consultant, whose testimony about the reasonableness of medical bills was based on a proprietary software program. The Court of Appeals held that Rossi’s testimony should not have been excluded and should be allowed in a retrial.

April 1, 2016

Galack v. PTS of America, LLC., U.S. Dist. LEXIS 135083 (N.D.GA 2015). Dr. Bruce Seaman was proferred to testify to both the decedent’s lost earnings and a calculation of the decedent’s waking hours (if not killed) times the minimum wage rate of $7.25 per hour as a benchmark for intangible damages that a jury could consider. Judge Harold L. Murphy held that the Georgia Wrongful Death Act allowed recovery for the "the full value of the life of the decedent," which included intangible aspects of life, and said:

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

April 11, 2016

Sprester v. Batholow Rental Co., 2016 U.S. Dist. LEXIS 19498 (W.D. TX 2016).  This case involves an appeal from a decision of the magistrate judge not to strike a defense position that the defense

. . should be allowed to present evidence to the jury that Sprester failed to submit his healthcare expenses to a healthcare insurance company, and failed to contract for available insurance benefits, specifically those available under the Affordable Care Act.

The plaintiff argued that this defense position was contrary to the Texas collateral source rule. The defense position was that the failure of the plaintiff to contract for all available insurance benefits constituted a failure to mitigate damages. The Court indicated that this issue could be considered again when this issue came up at trial.

April 12, 2016

Parkview Hospital v. Frost, 2016 Ind. App. LEXIS 68 (IN App. 2016). This case involved a suit by Frost, who was uninsured, charging that Parkview Hospital’s charges for medical services provided to Frost were unreasonably high.  Parkview Hospital had refused to provide information about amounts paid in full satisfaction for the same services by third party providers.. The trial court held that evidence of discounts provided to patients with private insurance or governmental healthcare was admissible and thus held in Frost’s favor. The Indiana Court of Appeals affirmed the trial court, but there was a spirited dissent from Judge Najam.

April 29, 2016

Pontiac National Bank v. Vales, 2013 IL App (4th) 111088; 993 N.E.2d 463 (IL App. 2013). The Illinois Court of Appeals reversed a trial court decision to permit the defense to inquire into a plaintiff’s medical expert’s earnings from expert testimony over the past eight years. The Court of Appeals held that any bias or financial interests of an expert could be adequately exposed if each party was permitted to question the experts for a two year period preceding the existing trial date. The Court of Appeals also held that the plaintiff should have been permitted to show that the attorneys for the defense had retained the expert in the past.  Citing previous decisions of the Illinois Supreme Court, the Court of Appeals said:
 
In those cases, the supreme court held that it is permissible to cross-examine an expert witness about the amount and percentage of income he generates from his work as an expert witness, the frequency with which he testifies as an expert, and the frequency with which he testified for a particular side, in order to expose any bias, partisanship, or financial interest that may taint his testimony and opinions. . . Nevertheless, cross-examination is not a “free-for-all.” It is not a proper function cross examination to harass expert witnesses or to unnecessarily invade their legitimate privacy. Such unbridled cross-examination discourages reputable professionals from testifying during trial, making it difficult for parties to obtain expert testimony necessary to meet their burden of proof. 

Lee v. City of Richmond, 2014 U.S. Dist. LEXIS 139366 (E.D. VA 2014). Judge Robert E. Payne granted a defense motion to exclude the economic testimony of various witnesses, including economic experts Chad L. Staller and James Markham. Judge Payne’s exclusion of Staller and Markam was based upon their use of unrealistic assumptions about the future earnings of Jatayun Trayvon Fleming, who was shot and killed by Richmond police. Judge Payne said, in part:

Staller and Markham assume that, from 2011 onwards, Fleming's income would bear a reasonable resemblance to that of an average 22-year-old individual with a high school education. They do not even acknowledge that Fleming's past income was drastically less than their averages would suggest, much less attempt to explain why the factors which had depressed Fleming's earnings in the past would not affect him in the future. Indeed, there is no indication that Fleming suffered from any temporary disability or circumstances beyond his control. His history appears to have been a function of his limited work ethic and criminal activities, and no one, not even Staller and Markham, has suggested that Fleming was in the process of rehabilitating himself as a productive member of society.
   
It is this refusal to distinguish Fleming's employment history, together with the inability to reconcile the future income projections with past amounts of documented income, that leads the Court to conclude that Staller and Markham's proposed testimony about Fleming's lost future earnings is speculative and conjectural, based on unrealistic assumptions, and not the product of reliable methods and principles. Therefore the testimony is inadmissible under Daubert and Rule 702.

May 4, 2016

Alexander v. United States, 2016 U.S. Dist. LEXIS (W.D.WA 2016).  This memorandum decision grants a plaintiff motion to exclude evidence of the plaintiff’s future eligibility for TRICARE medical funding until the plaintiff reached age 21 and then coverage under the Affordable Care Act (ACA) for the remainder of the plaintiff’s life expectancy. TRICARE is provided, in large part, by the United States government, but is partly financed by private contributions. The Court held that partial private funding made TRICARE benefits a collateral source rather than coming from the same source as the defendant United States. The Court also held that evidence of ACA benefits should be excluded for similar reasons.

May 21, 2016

Marlin v. BNSF Ry. Co., 2016 U.S. Dist. LEXIS 29445 (S.D. IA 2016).  The BNSF Railroad withheld $3,698.36 in Railroad Retirement payroll taxes based upon a $75,000 award for injuries while working for the BNSF. This amount was the amount that would have been owed if the $75,000 was treated as wage earnings. Martin relied upon Cowden v. BNSF Ry. Co., 2014 U.S. Dist. LEXIS 91454, in resisting a reduction for payroll taxes from his award, arguing that RRTA (Railroad Retirement Tax Act) does not apply to personal injury awards. The Court considered other decisions on this issue and held that the BNSF wrongfully withheld $3,698.36 from the payment it owed to Martin.

Loos v. BNSF Ry. Co., 2015 U.S. Dist. LEXIS 167603 (D. MN 2015). The BNSF Railroad withheld $3,765 in Railroad Retirement payroll taxes based upon an $85,000 award for injuries while working for the BNSF. This amount was the amount that would have been owed if the $85,000 was treated as wage earnings. Loos relied upon Cowden v. BNSF Ry. Co., 2014 U.S. Dist. LEXIS 91454, arguing that the RTTA (Railroad Retirement Tax Act) does not apply to personal injury awards. The Court ordered that the $3,765 should not have been withheld. This decision also cited Clark v. Burlington Northern, Inc., 726 F.2d 448, 450 (8th Cir. 1984) in holding that BNSF was not entitled to a setoff for amounts paid for medical insurance that paid for the medical expenses resulting from the injury to Loos. The Clark decision had held that: “Medical expenses paid for by insurance are exempt from setoff regardless of whether the employer paid one hundred percent of the insurance premiums.”

Loy v. Norfolk Southern Ry., 2016 U.S. Dist. LEXIS 48824 (N.D. IN).  The Norfolk Southern Railroad withheld $23,838.73 in Tier I and Tier II payroll taxes from a personal injury award of $937,500 won by Low in trial. The Court denied Norfolk Southern’s request to withhold that amount, citing Cowden v. BNSF Ry. Co., 2014 U.S. Dist. LEXIS 91454 and arguing that the RTTA (Railroad Retirement Tax Act) does not apply to personal injury awards.

Liberatore v. Monongahela Ry. Co., 2016 Pa. Super LEXIS 2011; 2016 PA Super 79 (PA Super. 2016). This decision reversed a trial court decision to deny the right of the Monongahela Railroad to withhold $10,521.75 in Tier I and Tier II taxes from an $87,500 award won by Liberatore in a FELA action for earnings loss due to injury while working for the Monongahela railroad. The Superior discussed at some length most of the previous decisions that have been reached for and against railroads subtracting payroll taxes from awards in reaching its opinion, but did not include the most recent three federal district court decisions precluding railroads from deducting payroll taxes. An amicus curiae brief of the U.S. Department of Justice arguing that such taxes should be withheld appears to have played a prominent role in this decision.  

May 22, 2016

Green v. Polyester Fibers, LLC. 2016 U.S. Dist. LEXIS 66746 (N.D. MS 2016).  Judge Sharion Aycock excluded testimony of the plaintiff’s economic expert, Ronald Missun, based upon Mississippi substantive law, which relies upon the federal 5th Circuit decision in Culver v. Slater Boat Company, 722 F.2d 114, 121 (5th Cir. 1983). Missun had used a “total offset” calculation for damages in the Green case. Judge Aycock indicated not understanding what Missun was doing by pointing out that Missun had assumed that the growth rate for medical expenses was 4.8% and the discount rate for medical expenses was 4.8% while the growth rate for earnings was 1.1% and the discount rate for lost earnings was 1.1%. The Culver decision specifically rejected total offset. 

May 28, 2016

Langenbau v. Med-Trans Corp., 2016 U.S. Dist. LEXIS 29996 (N.D. IA 2016). This was a memorandum decision regarding a number of evidentiary motions, including a motion to exclude testimony of economic expert John O. Ward regarding the Value of Statistical Life (VSL). Judge Strand excluded Ward’s testimony as not timely disclosed, but also as inadmissible under Rule 702 because Ward had admitted not being an expert qualified to offer expert testimony about the VSL. Ward’s testimony was also excluded under Rule 403 as confusing and overly prejudicial. Since the standard for damages in a wrongful death action under Iowa law is “the net worth or value of the estate which the decedent would reasonably be expected to have saved and accumulated as the result of her efforts between the time of her death and the end of her natural life had she lived, Ward’s testimony would not be relevant. Judge Strand said: “The VSL opinions would not be helpful to the jurors, because such opinions would have little or no tendency to prove the appropriate individualized amount of wrongful death damages under the proper standard.” Judge Strand added:

Third, even if offered simply as “information” that the VSL is an average that may (or may not) be considered by the jury in reaching its damage award, the VSL opinions are potentially unduly misleading and prejudicial, warranting their exclusion under Rule 403. Offering a dollar figure as the “value” of a life may mislead or invite jurors to grasp at this pseudo-official figure as an easy way to resolve the difficulties of deciding wrongful death damages, and the size of the figure could invite some inflation of a damages award on the improper basis of an emotional response.

The defense had retained Dr. Kenneth McCoin in this case. McCoin admitted during this deposition that the VSL is a “valid” concept, but Judge Strand ruled that this admission could not be “twisted” into an acknowledgment that the VSL is a “valid” basis for measuring damages in a wrongful death action. In footnote 5 of the decision, Judge Strand cited a number of legal decisions based on the VSL concept that reached the same conclusion that Judge Strand had reached.

July 12, 2016

Brooks v. Caterpillar Global Mining America, LLC, 2016 U.S. Dist. LEXIS 87800 (W.D. KY 2016). This is a memorandum denied a defense motion to exclude the testimony of vocational expert Dr. Leonard Matheson and granted in part and denied in part a defense motion to exclude  the testimony of economic expert Dr. Stan V. Smith regarding the economic impact of a crushed hand suffered by Plaintiff Brooks. Brooks was continuing to work as a coal miner, but Matheson opined that Brooks would be unable to do so in the long run, but would be suited to be an over-the-road truck driver. Smith’s testimony was based on a calculation of losses if Brooks was able to remain employed for five years or ten years as a coal miner and then become an over-the-road truck driver. The Court rejected defense claims that Smith’s calculations were speculative. Defense also challenged Smith’s use of a 0% net discount rate based upon Paducah Area Public Library v. Terry. The Court held that federal law permits use of a 0% net discount rate as long as it is not represented as required. The defense also moved to exclude portions of Smith’s testimony that projected earnings loss past work-life expectancy to life’s end. The Court noted that Smith had provided loss of earnings before injury to age 67 and after injury to age 62 on page 13 of Smith’s report, but did not exclude Smith’s testimony about earnings to life expectancy, but excluded testimony by Smith on Kentucky law.

State ex rel. Children, Youth and Families Dep’t v. Mercer-Smith, 356 P.3d 26 (N.M. App. 2015). The New Mexico Court of Appeals held that hedonic damages testimony by Dr. Stan V. Smith was not subject to the Alberico standard for admissibility of expert testimony and therefore that the trial court did not err in admitting Smith’s testimony regarding loss of enjoyment of life.

August 4, 2016

Clanton v. United States, 2016 U.S. Dist. LEXIS 101742 (S.D. IL 2016).  This was a ruling by federal judge Nancy J. Rosenstengel that the fact Medicare was paying for the medical expenses of the injured plaintiff could not be mentioned even though Medicare is part of the federal government and thus the source for funds being used to pay for the medical expenses of the plaintiff. A key issue was the fact that the plaintiff had paid Medicare Part A while working and Medicare Part B after retiring and having Medicare Premiums deducted from his disability payments. Judge Rosenstengel cited a number of prior decisions indicating that Medicare payments in similar cases against the federal government could not be mentioned as a collateral source if a plaintiff had paid any amounts for Medicare taxes, which made the plaintiff himself a collateral source. 

August 22, 2016

Cordova v. BNSF Railway Company, 2014 Cal. App. Unpub. LEXIS 7975 (CA App. 2014).  This decision affirmed a decision of the trial court that the BNSF was not entitled to reduce Cordova’s award based upon withholding Tier I, Tier II and Medicare payroll taxes on the entire amount of the award in a personal injury action. The BNSF had argued that it was required by the Railroad Retirement Tax Act (RTTA) to tax the entire amount of an award as lost future earnings subject to payroll taxes. The RTTA contains a provision suggesting that the value of all benefits received by a worker will be treated as lost earnings if not otherwise apportioned. During the trial the BNSF had asked that the award not be apportioned (divided into amounts for lost earnings, lost fringe benefits and pain and suffering) over the objection of Cordova. The trial court had held that BNSF was responsible for the non-apportionment and therefore must bear the consequences of non-apportionment, affirming the trial court opinion in that regard.

October 3, 2016

Licudine v. Cedars-Sinai Medical Center, et al. 2016 Cal. App. LEXIS 803 (Cal. App. 2016). This case clarifies that reasonable certainty is required for the fact of loss of earning capacity and establishes “reasonable probability” as the standard for determining the value of such a loss. The plaintiff in this medical malpractice action was a college senior, intending to become a human rights lawyer. She graduated on time and was accepted for admission by two law schools, but received medical deferments and worked for two years. Plaintiff’s medical expert testified that future problems “would certainly impact [her] … career choice [and] education,” but more specific evidence regarding “but for” or diminished attorney earnings was not presented. Nonetheless, the jury awarded $285,000 in past economic loss (for a period where the plaintiff claimed she would have been a law student but for her injury) and $730,000 in future loss of earning capacity. The appellate court upheld the granting of a new trial, finding there was no evidence of past lost earnings and insufficient evidence to support the amount awarded for future loss of earning capacity, and holding that although the jury “may infer the fact of a loss of earning capacity … [it] may not infer the amount or extent of that loss from the injury alone.” Future earning capacity must be based on what is “reasonably probable she could have earned.” Also, it found the award of just $30,000 for past and future noneconomic loss suggested juror confusion regarding the verdict form. During the trial phase the plaintiff had requested, unsuccessfully, judicial notice of a BLS printout showing median earnings for attorneys, and the decision discusses this method of introducing evidence, sometimes considered as an alternative to expert testimony. Further, the court said that evidence of bar exam passage rates and employment statistics for a specific law school would not be barred by law during the retrial, but subject to the discretion of the trial judge. This listing was developed by Jennifer Polhemus. 

January 16, 2017

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

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

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

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

February 6, 2017

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

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

March 4, 2017

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

March 5, 2017

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

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

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

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

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

March 6, 2017

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

March 8, 2017

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

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

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

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

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

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

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

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

March 10, 2017

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

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

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

April 6, 2017

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

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

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

April 9, 2017

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

April 20, 2017

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

May 1, 2017

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

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

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

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

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

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

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

May 6, 2017

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

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

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

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

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

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

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

Under the Montana Survival Act,

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

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

May 10, 2017

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

May 11, 2017

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

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

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

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

June 21, 2017

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

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

June 23, 2017

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

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

July 2, 2017

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

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

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

July 4, 2017

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

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

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

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

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

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

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

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

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

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

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

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

July 5, 2017

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

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

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

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

July 14, 2017

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

July 16, 2017

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

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

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

July 17, 2017

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

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

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

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

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

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

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

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

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

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

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

August 5, 2017

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

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

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

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

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

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

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

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

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

August 17, 2017

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

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

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

August 18, 2017

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

August 23, 2017

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

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

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

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

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

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

September 6, 2017

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

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

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

October 3, 2017

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

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

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

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

This decision was suggested by Gene Trevino.

October 4, 2017

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

October 10, 2017

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

October 28, 2017

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

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

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

November 4, 2017

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

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

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

November 8, 2017

Clemens v. Quest Corporation, 2017 U.S. App. LEXIS 22099 (9th Cir. 2017). The 9th Circuit Court of Appeals vacated District Court decision that had rejected a “gross up” in awards to account for adverse tax consequences created by lump sum amounts for back and front pay made in a single year and subject to higher taxes in that year than would have been the case if a worker had not been terminated and thus had the earnings in the years when pay would have been received. The Court of Appeals said:

We join the thoughtful analysis of the Third, Seventh, and Tenth Circuits, and reject the matchbook musings of the D.C. Circuit. In so doing, we also agree with those courts that the decision to award a gross up--and the appropriate amount of any such gross up--is left to the sound discretion of the district court. As the Third Circuit put it, "we do not suggest that a prevailing plaintiff in discrimination cases is presumptively entitled to an additional award to offset tax consequences . . . . The nature and amount of relief needed to make an aggrieved party whole necessarily varies from case to case," Eshelman, 554 F.3d at 443, and the "circumstances peculiar to the case" drive that decision, id. (quoting Albemarle, 422 U.S. at 424).

November 15, 2017

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

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

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