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. Centurylink, 874
F.3d
1113; 130 Fair Empl. Prac. Cas. (BNA) 908; 101 Empl. Prac. Dec.
(CCH) P45,916 (9th Cir: 2017). This decision of the 9th
Circuit vacated a 2014 district court decision denying a tax
adjustment to neutralize the impact of taxes on the amount of an
award for lost back pay. The 9th Circuit indicated that it was
joining the 3rd, 7th and 10th Circuits in allowing district courts
to make such adjustments. The court noted that the D.C. Circuit had
a contrary ruling and cited a paper by Thomas R. Ireland, Tax Consequences of Lump Sum Awards in
Wrongful Termination Cases, 17 J. Legal Econ. 51, 53-54
(2010) (explaining the circuits' approaches to equitable tax
adjustments). 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[.]
November 15, 2017
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.
April 28, 2018
Hartness v. Union Pacific Railroad
Company, 2008 U.S. Dist. LEXIS 106319 (E.D. AR 2008). In
this memorandum, Judge Garrett Eisele tentatively excluded the
testimony of Bob White, a vocational expert, that the plaintiff
would have retired at age 62. Judge Eisele said:
It appears, based on the record,
that Dr. Schoedinger has provided no opinions regarding
Plaintiff's current physical limitations, no disability rating,
and has offered no medical testimony to support the conclusion
that Plaintiff must retire at age 62. Mr. White indicates in his
Affidavit that "Mr. Hartness was advised in 2006 by his treating
doctor, George Schoedinger, M.D., not to attempt to return to his
railroad occupation." [Footnote removed] As Union Pacific points
out, however, this portion of Dr. Schoedinger's deposition
testimony simply states that Plaintiff "may be forced to
discontinue railroad work." But, this "may be" opinion is arguably
undercut by Dr. Schoedinger's subsequent decision to to return
Plaintiff to work without limitation. There is nothing in the
record before the Court to indicate that Dr. Schoedinger believes
that Plaintiff's medical condition will render him unable to
perform his current job duties beyond the age of 62.
In the absence of some medically supportable basis for his
prediction that Plaintiff will not be able to perform any work
beyond the age of 62, the Court can not allow Mr. White to testify
that in his opinion Plaintiff's best case scenario is retirement
at age 62. Plaintiff has failed to establish that Mr. White, a
vocational rehabilitation expert, is qualified to make this
prediction.
Judge Eisele indicated that he was willing to hold a pre-trial
hearing to consider whether White’s testimony would ultimately be
allowed.
May 2, 2018
Martin v. United States,
448 F. Supp. 855 (E.D. AR 1977). This FTCA case involved the
wrongful deaths of a number of individuals in an airplane crash.
Several different economic experts were involved, including Dr.
Raleigh Ralls, a well-known economic expert at the time. The
decision was governed by Arkansas law. In the decision, loss of
financial support was determined on the basis of after-tax income of
the decedents.
May 3, 2018
Castro v. Melchor, 2018
Haw. LEXIS 54 (HI 2018). This decision upheld the trial court and
Hawaii Court of Appeals decision to allow the estate of a viable
unborn fetus to recover $250,000 for the fetus’s loss of enjoyment
of life and that an award in that amount was not in error even
though no evidence was presented to justify that amount. An
economist was not mentioned in the decision. Earlier decisions of
the Hawaii Supreme Court that loss of enjoyment of life of decedents
may be recovered, but economic testimony regarding dollar amounts is
not admissible.
May 5, 2018
Dorman v. Anne Arundel Medical
Center, 2018 U.S. Dist. LEXIS 75560 (D. MD 2018). This
case involved losses resulting from a birth injury that would
permanently affect the child’s mobilitity. The plaintiff proffered
testimony from both Dr. Tanya Rutherford Owen, a vocational expert
and Dr. Patricia Pacey, an economic expert. Federal District Judge
Marvin J. Garbis denied a defense motion to exclude the testimony of
Dr. Owen, but limited the testimony of economist Dr. Patricia Pacey
to providing a projection of the value of lifetime earnings of
healthy male college graduates and precluded her testimony regarding
reductions in those earnings based upon assumed disabilities of the
plaintiff. Judge Garbis explained his reasoning as follows:
It appears clear any possible
economic evaluation methodology would reasonably find that a
mobility disability, such as the one that B.M. has, will cause
some future income loss. The question is how that future income
loss can be reliably measured. The Court is troubled by the
specificity of Dr. Pacey's opinion that B.M. would suffer a
"16.9%" loss of income over his lifetime because Dr. Pacey's
methodology does not appear to be based on any equally specific
analysis. Dr. Pacey used Census Bureau data (and other sets of
similar data) to compare the lifetime income of (1) a healthy,
able-bodied male with a college degree with (2) a "moderately
disabled" male with a college degree. Because disabilities come in
all types, this broad comparison of "healthy" to "moderately
disabled" is unreliable and speculative. As an example, Dr. Pacey
does not account for differences between mobility disabilities and
cognitive disabilities, or between mobility disabilities and other
physical disabilities such as eye or hearing disabilities. The
nature of those disabilities would naturally change the nature of
any occupation that those individuals choose. Dr. Pacey also does
not adjust the data for any other factors (beyond assuming that
B.M. will get a bachelor's degree), including, for example, the
degree of disability, the age of disability onset, or the nature
of the relevant occupation.
Owen’s proffered testimony was based on a Vocational Worksheet
that explained four factors she used to arrive at her opinion that
the plaintiff child would “sustain some loss of earning capacity,”
but no details were provided in the decision. Judge Garbis’ cited
two previous decisions that are discussed in this paper: Kempf
Contracting and Design, Inc. v. Holland Tucker (2008) and Phillips
v. Industrial Machine (1999). Both of those decisions involved
rejection of testimony based on the Gamboa-Gibson disability
worklife expectancy tables. However, Judge Garbis did not
explicitly indicate whether Dr. Pacey had assumed a reduction in
work-life expectancy for the child and, if so, how much of a
reduction, in arriving at her overall conclusion that the child’s
earning capacity had been reduced by 16.9%.
May 8, 2018
D’Ambrosia v. Lang, 985 So.
2d 800 (LA App. 2008). The Louisiana Court of Appeals described the
role of vocational expert Thomas Meunier in this case as follows:
A vocational rehabilitation
counselor considers age, academic achievement, and skill level
involved in the training, ultimate career goal, and physical
ability to do that type of job. With someone without an
established earning capacity, a vocational counselor typically
considers tables used by governmental entities as well as by his
profession. Typically, he uses tables that outline earnings and
average earnings for different occupations.
He also looks at the physical
demands of an occupation--in this case an orthopedic surgeon. The
United States Department of Labor publishes The Dictionary of
Occupational Titles that describes the physical, intellectual, and
aptitude demands of a career. The Department of Labor also
publishes an Occupational Outlook Handbook which describes the
demand for certain occupations, the working conditions, and
earnings by region.
Mr. Meunier uses work-life expectancy tables for people with
severe disabilities, and non-severe disabilities compared to
people of the same age and level of education. Through this means,
he determines a difference in work life. This can be done for a
child, a teenager, or someone who is still in school and who has
not actually earned money. It is accepted in his profession
to be able to project those types of earnings based on
intelligence, physical ability, demand for the occupations, and
similar factors. He reviews information from the treating
physicians, such as functional impairments.
May 9, 2018
Critical Path Resources, Inc. v.
Cuevas, 2018 Tex. App. LEXIS 2253 (TX App. 2018). This
decision involved an explosion that injured Torres Rodriguez. One of
the issues the Court of Appeals addressed was the factual
sufficiency for an award of $3,810 for past loss of household
services and $61,444 for future lost household services to Branca
Rodriguez. An economic expert was not involved, but the Court held
that “juries can apply their own experience to estimate the value of
household services that would have been rendered by the injured
person even without proof of their value.” The award was to the wife
of the injured man, who has had to provide household services that
her husband would have provided and will be required to do so in the
future.
May 11, 2018
Webster v. Center for Diagnostic
Imaging, Inc., 2018 U.S. Dist. LEXIS 78018 (S.D. IN 2018).
The Plaintiff challenged Thomas Ireland’s use of Webster tax returns
to determine earnings losses the plaintiff. Judge Jane
Magnus-Stinson denied this motion in limine, saying:
The Court concludes that the general
method of using tax returns to determine the value of Ms.
Webster's lost wages is sound--indeed, the Court is hard-pressed
to identify a better way make such calculations. [Footnote
removed.] However, the issue of whether Mr. Ireland
correctly computed calculations to arrive at his conclusions will
be left to the jury after the Websters have been afforded the
opportunity to cross-examine him at trial.
May 12, 2018
Parekh v. Argonautica Shipping
Invs., B.V., 2018 U.S. Dist. LEXIS 341700 (E.D. LA 2018).
This was a maritime wrongful death action. The surviving widow tried
to argue that her husband had a work-life expectancy to age 75.
Federal Judge Susie Morgan said:
The Court finds, even weighing all
evidence in favor of Plaintiff, that she has not created a genuine
dispute of material fact regarding Captain Parekh's capability of
working longer than his statistical work-life average. Under
Madore, Plaintiff must provide "evidence that a particular person,
by virtue of his health or occupation or other factors, is likely
to live and work a longer, or shorter, period than the
average."None of Plaintiff's evidence does so. First, Plaintiff's
self- serving affidavit is not persuasive summary judgment
evidence. The Fifth Circuit rejects attempts to defeat summary
judgment by the submission of self-serving affidavits and
testimony. [] Captain Parekh was employed in a highly dangerous,
physically demanding field. As the Fifth Circuit stated, an
employee in such a field "might have become disabled before [his
intended retirement] as a result of illness or some other
misadventure []. [Plaintiff] presented no evidence that such
events were particularly unlikely given his health or other
factors. In this case, Plaintiff has likewise failed to
provide evidence that "such events were particularly unlikely" to
occur with respect to Captain Parekh. [Footnotes removed.] []
Without expert testimony, medical
records, or other valid summary judgment evidence to describe the
state of Captain Parekh's health and the nature of his duties,
Plaintiff's submissions do not amount to more than the assertion
that Captain Parekh "had no plans to retire and intended to work
for the rest of his life." This does not "fully develop[] the
evidentiary basis for [a] departure" from the work-life expectancy
average. Although under Deperrodil the Fifth Circuit does not
mandate that Plaintiff hire a vocational rehabilitation expert in
order to meet the Madore standard, Plaintiff must provide evidence
that explains why Captain Parekh was "likely to live and work []
longer" than the statistical average. The Court finds Plaintiff
has failed to create a genuine dispute of material fact with
regard to Captain Parekh's likelihood of working longer than
the average work-life expectancy. Defendant is entitled to a
ruling that Plaintiff may only recover loss of support damages
consistent with average work-life expectancy. [Footnotes
removed.]
Deperrodil v. Bozovic Marine, Inc.,
842 F.3d 352 (5th Cir. 2016). This was an appeal by a defendant of a
district court decision under the Longshore and Harbor Workers’
Compensation Act (LHWCA) that had projected the work-life of the
decedent to have been to age 75. In affirming the district court’s
determination of age 75 retirement, the court said:
Courts use work-life expectancy data
to calculate future earnings, unless there is evidence supporting
a variation from the average. E.g., Madore v. Ingram Tank Ships,
Inc., 732 F.2d 475, 478 (5th Cir. 1984). "Such an average is not
conclusive. It may be shown by evidence that a particular person,
by virtue of his health or occupation or other factors, is likely
to live and work a longer, or shorter, period than the average."
Id. (emphasis omitted).
According to BLS data, dePerrodil
had a work-life expectancy of 72 years. At trial, however,
dePerrodil presented a vocational-rehabilitation counselor as an
expert witness. She interviewed dePerrodil on two occasions and
reviewed his medical history. She concluded it was "very
reasonable" dePerrodil would work until age 75; this conclusion
was based on: dePerrodil's testimony that he and his wife had an
agreement he would work until age 75; his work history; his
earnings records; and his healthcare providers' recommendations
for future treatment. DePerrodil's expert economist then provided
the court with two calculations, one using BLS' age-72 work-life
expectancy; the other, the vocational counselor's age-75
expectancy. With both calculations before it, the court awarded
future lost wages based on an age-75 retirement.
May 13, 2018
Faulkenberry v. Yost, 2018
U.S. Dist. LEXIS 1248, 2018 WL 297615 (W.D. TX 2018). Regarding
work-life expectancy, Federal Judge Sam Sparks said:
At trial, Faulkenberry produced no
evidence as to work-life expectancy, except to testify he hoped to
work until age 65. Trial Tr. of Sept. 18, 2017 at 114. He did not
offer expert testimony as to his work-life expectancy, nor did he
provide testimony or evidence as to the average statistical
work-life expectancy of someone in his line of work. See Trial Tr.
of Sept. 18, 2017 at 43 (testifying work at the chop shop required
substantial "physical strength" because inventory pieces weighed
25 to 50 pounds on average); cf. Barto v. Shore Constr., LLC, 801
F.3d 465, 475 (5th Cir. 2015) (holding testimony plaintiff wants
to work until a particular age is insufficient to rebut
presumption the average work-life expectancy should apply).
Finally, Faulkenberry presented no evidence of applicable discount
rates to allow the jury to properly discount the award to present
value.
Barto v. Shore Constr., L.L.C.,
801
F.3d
465
(5th
Cir.
2015).
At
issue
in
this
appeal
by
the
defense
of
the
district
court’s decision was the work-life expectancy of the plaintiff. The
5th Circuit said:
A damages award for future lost
wages should generally be based upon a seaman's work-life
expectancy, meaning "the average number of years that a person of
a certain age will both live and work." Madore v. Ingram Tank
Ships, Inc., 732 F.2d 475, 478 (5th Cir. 1984). "Such an average
is not conclusive. It may be shown by evidence that a particular
person, by virtue of his health or occupation or other factors, is
likely to live and work a longer, or shorter, period than the
average." Id. "Absent such evidence, however, computations should
be based on the statistical average." Id.[]
[T]he district court noted that expert economists provided wage
loss estimates for work-life expectancies of age 55 to "age 67,
which is the Social Security requirement age for Mr. Barto." The
district court then said, "What I'm going to do is award something
in the middle. I think that's a reasonable estimation of his loss
of future earning capacity." Accordingly, the district court
awarded Barto $300,000 for future lost wages. McDermott argues
that the district court erred by relying upon an
above-average work-life expectancy.
The 5th Circuit held that the trial court was in error using an
above average for work-life expectancy without supporting evidence
and reduced the award for lost future earnings to an assumed
work-life expectancy to age 55.8.
May 23, 2018
Seme v. Safran, 2012 U.S.
Dist. LEXIS 199285 (D. NJ 2012). This was a motion granting a
defense motion in limine to exclude testimony of Andrew Verzilli on
loss of household services. Verzilli had assumed a 50% reduction in
the plaintiff’s ability to provide household services. Federal
Judge Joseph E. Irenas said:
Mr. Verzilli's assumption that
Plaintiff suffered a 50% reduction in her ability to perform
household chores has no factual basis in the record. Although Dr.
Friedman analyzed Plaintiff's ability to ballroom dance, waitress,
and ride motorcycles, he did not opine on Plaintiff's ability to
perform household chores. Moreover, Plaintiff's deposition
testimony provides no further factual basis with which to
calculate the fraction of household services. Plaintiff is
currently able to perform. Mr. Verzilli's assumption, absent some
sort of factual foundation, will only serve to mislead the jury.
Accordingly, to the extent Mr. Verzilli's opinion relies on the
assumption that Plaintiff's ability to perform household services
was reduced by 50%, Defendants' Motion will be granted.
May 28, 2018
Madore v. Ingram Tank Ships,
732 F.2d 475 (5th Cir. 1982). This Jones Act decision contains three
elements of interest to forensic economists. It held that the Jones
Act does not allow the minor child of a personally injured seaman to
recover the child’s own loss of consortium, that the trial court was
in error for substituting a longer work-life expectancy than was
shown in (then) standard work-life expectancy tables and it was
clear that Social Security and Medicare payroll taxes are income
taxes that should be deducted when calculating earning capacity
loss.
Regarding work-life expectancy, the Court said:
Both [James] Mandel and the
defendant's expert, Dr. Kenneth Boudreaux, testified that Madore
had a worklife expectancy of 25.8 years, basing their opinions on
the worklife expectancy rates compiled by the United States
Department of Labor. No evidence was adduced to show that
Madore's personal characteristics were likely to give him a longer
worklife. Yet the district court based the award on a worklife
expectancy of 30.8 years, presumably because Madore would reach
age 65 at that time.
This was erroneous. Even if retirement age for Madore could
be anticipated to be age 65, it is far from certain that, even in
the absence of this injury, he would have continued to work until
that time. He might have, as some workers do, decided to
retire early. He might have become disabled before then as a
result of illness or some other misadventure. He might have
died before then. The phrase "work-life expectancy"
literally reflects its meaning: the average number of years that a
person of a certain age will both live and work. Such an
average is not conclusive. It may be shown by evidence that
a particular person, by virtue of his health or occupation or
other factors, is likely to live and work a longer, or shorter,
period than the average. Absent such evidence, however,
computations should be based on the statistical average.
Regarding payroll taxes, the Court said:
In computing the loss of future
earnings, gross earnings should not be used. Unless the
amounts the worker would have been required to pay in income taxes
and social security taxes is negligible [citation footnote
removed] or should, for some articulated reason, be disregarded,
the lost income stream must be computed after deducting the income
taxes and social security taxes the worker would have paid had he
continued to work, for he is entitled only to be made whole for
what he has lost, his net income.
May 29, 2018
Mansil v. Midwest Emergency
Medical Services, P.C., 2018 Mo. App. LEXIS 539 (W.D MO
App. 2018). This was the first appellate case interpreting language
added to the Missouri Wrongful Death Act (Section 537.090) in an
amendment dated 8/28/2006. The relevant amended language was:
If the deceased is under the age of
eighteen, there shall be a rebuttable presumption that the annual
pecuniary losses shall be calculated based on the annual income of
the deceased’s parents, provided that if the deceased has only one
parent earning income, then the calculation will be based on such
income, but if the deceased had two parents earning income, then
the calculation will be based on the average of the two incomes.
Dr. Kurt V. Krueger had been permitted to testify regarding losses
suffered by Shelly Mansil, the mother of the decedent child, based
on his understanding of the meaning of this language in the Missouri
statute, which was challenged on appeal by the defendant. Judge Mark
D. Pfeiffer rejected that appeal, saying:
Dr. Krueger's calculation based on
Ms. Hughes's income was of sufficient weight to assist the jury in
determining an appropriate amount of pecuniary losses authorized
under section 537.090. Likewise, his methodology in reaching his
estimate was reasonable within the statute's plain
language.
Given the nature of Dr. Krueger's challenged testimony as
establishing a rebuttable presumption under the statute, Midwest
and Dr. Niedens had the opportunity to challenge Dr. Krueger's
testimony, to point out any weakness and aid the jury in
determining the appropriate weight to give his opinion. See Deck
v. Teasley, 322 S.W.3d 536, 539 (Mo. banc 2010). In point of fact,
Midwest and Dr. Niedens did successfully challenge the evidence
through cross-examination of Dr. Krueger as the jury's award of
pecuniary losses was much less than the section 537.090 presumed
pecuniary loss calculation arrived at by Dr. Krueger.
June 6, 2018
Smith v. United States,
2018 U.S. Dist. LEXIS 90530 (D. OR 2018). In this case, Smith had
“generally steady” employment from 1992 to through May of 2008,
mostly in construction jobs. He drew unemployment for an extended
period thereafter but had not returned to work at the time of his
alleged medical injury in November or December of 2013, supposedly
at the time when he was just about to seek new employment. Smith had
a “relevant medical history that include[d] obesity, diabetes
mellitus, hypertension and depression. Mr. Smith was 5 foot 6 inches
tall and weighed 283 pounds just prior to the events at issue in
this case.” The plaintiff economic expert Daniel Rubenson, Ph.D.,
projected Smith’s lost earnings for a work-life expectancy of 18
years (starting at age 46.6) at $34,392 (Smith’s average earnings
from 2005-2007) to show an earning capacity loss of from $94,342 to
$629,342. (Additional details about Rubenson’s assumptions were
provided in the decision.) Judge Mark D. Clarke, however, said:
[G]iven the 5.6-year gap in
employment right before he was injured, it is very difficult to
determine with any degree of reasonable probability, any
post-injury loss of earning capacity. However, this Court does not
find it unreasonable to think that Mr. Smith, at age forty-one,
may have returned to the work force at least on some intermittent
basis. But, it is speculative.[]
The Court finds that any post-injury earning loss, which is very
hard to predict, can be compensated by actually earning
post-injury wages. The Court therefore does not award any damages
for loss of earning capacity.
June 15, 2018
Neupauer v. United States,
2017 U.S. Dist. LEXIS 203393 (M.D. PA 2017). This decision involved
an personal injury to Gary Neupauer at the age of 62. The
plaintiff’s vocational expert Patricia Chilleri testified that
Neupauer was totally disabled from labor market participation by his
injury. She used the Gamboa-Gibson work-life expectancy tables to
project that he lost 4.6 years of work-life expectancy, which Judge
Robert Mariani determined to have a present value of $161,644. There
was apparently no defense challenge to the use of the Gamboa-Gibson
tables.
June 17, 2018
Southard v. Belanger, 966
F. Supp. 2d 727 (W.D. KY 2013). The defense challenged the
admissibility of the testimony of Sara Ford in this personal injury
case primarily based upon her use of a “one size fits all” table
rather than deficiencies in the earnings and work-life expectancy
data that she used in her projections. Regarding life and work-life
expectancy, Judge Joseph H. McKinley, Jr., said:
[T]o the extent that the Defendants
criticize Ms. Ford’s use of a United States Life Table by noting
that she “made an assumption that Plaintiff’s working career would
have been 6.7 years shorter than it would have been if the
accident had not happened,” (see Mem. in Supp. of Mot. To Exclude
[D.N 49-1], the Court finds that the criticism fails. Courts have
often found life tables to be a reasonable estimate of life
expectancy, even while acknowledging that their predictions are
not absolute. See, e.g., Knierem v. U.S. Gov’t Dep’t of Navy, 802
F. Supp. 2d 965, 972 (S.D. Ind. 2011) (citing cases).
Indeed, other than Defendant’s bald assertion, nothing indicates
that the table in Ms. Ford’s report is unreliable – or that it
fails to accurately portray the U.S. Censuse Bureau’s data.
June 18, 2018
Norfolk Southern Railway Company
v. Williams, 2018 Ala. Civ. App. LEXIS 101 (AL App. 2018).
This decision held that all of an FELA personal injury award of
$360,488 was subject to railroad retirement taxes (Tier I, Tier II,
and Medicare), resulting in tax withholding from the plaintiff’s
award of $19,188.37. The Alabama Court of Appeals said:
Because the entire $360,488 awarded
to Williams will be treated as pay for time lost for purposes of
determining her benefits under the RRA, we conclude that the
entire $360,488 should also be treated as pay for time lost for
purposes of the RTTA and, therefore, is subject to withholding
of taxes. See 45 U.S.C. § 231(h)(2); Heckman; and
Liberatore.
This decision was supported by four judges, with one dissent based
on the dissenting judge’s opinion that the tax exemption of personal
injury awards applies to payroll taxes as well as income taxes. The
plaintiff had made other claims for damages than lost earnings that
would not have been subject to payroll taxes, but did not specify
how much of the award was for lost earnings (“time lost”) and how
much was based on other claims. This decision provided an extensive
review of decisions regarding whether payroll taxes should be
subtracted from personal injury awards in FELA actions.
Munoz v. Norfolk Southern Railway
Company, 2018 IL App (1st) 171009; 2018 Ill. App. LEXIS 330
(IL App. 2018). This decision of the Illinois Court of Appeals
affirmed the trial court decision that the tax exemption from income
taxes on personal injury awards applies to payroll taxes, rejecting
Norfolk Southern’s claims that it was required by law to withhold
payroll taxes from FELA awards even though not required to withhold
federal and state personal income taxes on such awards. This was the
decision of two of three judges on the Court of Appeals. The third
judge dissented on the basis that he believed that the award was
subject to payroll taxes. This decision provided an extensive review
of decisions regarding whether payroll taxes should be subtracted
from personal injury awards in FELA actions.
July 2, 2018
Bevan v. Valencia, 2018
U.S. Dist. LEXIS 108196 (D. NM 2018). This decision excluded
the defense hedonic damages testimony of Cheryl D. Willis, M.D., a
forensic adolescent psychiatrist, who was going to testify about
dollar value of the loss of life enjoyment of an adolescent who had
committed suicide. The court said: "Nowhere in her report does
Willis explain her methodology or its reliability, or how her
expertise led to her opinions."
Diperna v. Chicago School of
Professional Psychology, 2018 U.S. App 17426 (N.D. IL
2018). One of the parts of this decision was to uphold the
trial court's decision that Stan Smith's hedonic damages testimony
would not be helpful to the jury. Jennifer DiPerna was a student
pursuing a master's degree in clinical psychology at The Chicago
School of Professional Psychology (TCSPP), a private, non-profit
institution. After TCSPP disciplined DiPerna for posting an image to
her personal Instagram account that TCSPP considered offensive,
DiPerna filed this lawsuit alleging breach of contract and
negligence. Subsequently, DiPerna was dismissed from the program for
plagiarism. Smith calculated DiPerna’s loss of enjoyment of life
resulting from these events. The trial court granted summary
judgement the defendant on all counts, including the trial court’s
determination that loss of enjoyment of life damages were not
available in a case of this sort.
Green v. Sears Protection Company,
2018 U.S. Dist. LEXIS 107161 (N.D. IL 2018). Defendants challenged
the admission of testimony regarding class certification from
Christopher Jackman. Plaintiff challenged admission of testimony
regarding class certification from Mark J. Hosfield. This order was
a recommendation of Michael J. Mason, U.S. Magistrate judge, that
both challenges should be rejected. With respect to Hosfield, Judge
Mason said:
While plaintiffs argue that Hosfield
did not independently review the data contained on the
spreadsheets upon which he relied, Hosfield testified that
information was consistent with deposition testimony and exhibits
that he reviewed. (Mem. at Ex. 1, 137:17-23 and 140:1-3.) "[A]n
expert witness is not required to verify all the facts on which he
relies." Tilstra, 791 F.3d at 753; see also Minemyer v. B-Roc
Representatives, Inc., No. 07 CV 1763, 2009 U.S. Dist. LEXIS
103933, 2009 WL 3757378, at *7 (N.D. Ill. Oct. 29, 2009) ("[T]here
is no overarching general requirement, applicable in all cases,
that a financial or economic expert independently verify each
entry or document on which he bases his opinion."); Tuf Racing
Prods., Inc. v. American Suzuki Motor Corp., 223 F.3d 585, 591
(7th Cir. 2000).
July 5, 2018
Kaufman v. Cserny, M.D.,
856 F. Supp. 1307 (S.D. IL 1994). This decision provides a
clear discussion regarding the availability of hedonic damages under
the Illinois Survival Action and the Illinois Wrongful Death Action.
Federal Judge J. Phil Gilbert said:
The second issue presented by this
motion to dismiss is whether or not "loss of enjoyment of life" or
in other words, hedonic damages is to be considered a distinct
item of damages, separate and apart from pain and suffering, under
Illinois law as requested in Counts VIII, IX and X. In
determining the recoverability of hedonic damages under Illinois
law, it is important to distinguish between claims brought under
the Illinois Survival Act, 755 ILCS 5/27-6 (1992), and claims
brought under the Illinois Wrongful Death Act, 740 ILCS 180/1,
180/2 (1992). "A survival action allow for recovery of
damages for injury sustained by the deceased up to the time of
death; a wrongful death action covers the time after death and
addresses the injury suffered by the next of kin due to the loss
of the deceased rather than the injuries personally suffered by
the deceased prior to death." Wyness v. Armstrong World Indus.,
131 Ill. 2d 403, 546 N.E.2d 568, 571, 137 Ill. Dec. 623 (1989).
Based upon the few decisions that have addressed the issue, it is
clear that damages for loss of enjoyment of life are not
recoverable under the Illinois Wrongful Death Act. Gonzalez v.
City Wide Insulation, 1990 U.S. Dist. LEXIS 6360 *1, No. 88 C
1299, 1990 WL 77525, at *4 (N.D. Ill. May 25, 1990)(finding that
Wrongful Death Act "does not provide for recovery of hedonic
damages for recovery of hedonic damages in light of the fact that
it was designed to 'compensate the surviving spouse and the next
of kin for the pecuniary losses sustained due to the decedent's
death.'"). However, such damages are recoverable in survival
actions -- at least "to some extent. . . ." Fetzer v. Wood, 211
Ill. App. 3d 70, 569 N.E.2d 1237, 1245, 155 Ill. Dec. 626 (2d
Dist. 1991).
From this description, it appears that a decedent could recover for
loss of enjoyment of life between the moment of injury and the
moment of death. An economic expert was not mentioned and there was
no discussion of methods for presenting hedonic damages testimony in
this decision.
July 20, 2018
Stachulski v. Apple New England,
LLC, 2018 N.H. LEXIS 133 (N.H. 2018). This decision held
that awards for hedonic damages and pain and suffering are available
for cases involving injuries that are not permanent injuries.
Testimony at issue was testimony of Dr. Seth Rosenbaum, who had
testified at trial about the plaintiffs loss of enjoyment of life
and pain and suffering caused by non-permanent injuries. The
decision also reviewed case law in New Hampshire regarding hedonic
damages.
August 26, 2018
Bevan v. Valencia, 2018
U.S. Dist. LEXIS 108196 (D. NM 2018). This decision granted a
plaintiff’s motion in limine to exclude the report and testimony of
Cheryl Wills, a forensic adolescent psychiatrist, who was proffered
as providing testimony relevant to the hedonic damages of the
plaintiff. Judge Kenneth J. Gonzalez provided a Daubert evaluation
of the testimony of Wills and determined that Wills’ testimony would
not be helpful to a jury and would be “more unfairly prejudicial
than probative” under Rule 403 of the Federal Rules of Evidence.
August 27, 2018
Streit v. Halverson, 2018
U.S. Dist. LEXIS 133136 (W.D. MO 2018). This opinion limited but did
not exclude the testimony of economic expert Dr. Stan V. Smith
regarding “impairment to wages” and loss of household services.
Hedonic damages were not an issue in this decision. Judge Willie J.
Epps held that:
The Court finds Dr. Smith's
characterization of Plaintiff's spine injury as "disabling" to be
a medical opinion and the Court will preclude him from such a
characterization. Similarly, the Court will bar Dr. Smith from
suggesting that a disability can be inferred from Plaintiff's
"back or spine problems." Dr. Smith's opinion about the nature of
Plaintiff's injuries should be stricken, but the fact that the
existence of a disability could result in a net lost earning
capacity is precisely the type of opinion on which an economist
may opine in a personal injury case.
September 1, 2018
I. Perez v. United States,
2018 U.S. Dist. LEXIS 124717; 2018 WL 3450348 (S.D. CA 2018).
This decision held that the Affordable Care Act (ACA), a child’s
access to TRI-CARE through his father, and other sources of care can
be mentioned under California’s collateral source rules as
potentially covering the child’s future life care needs. Regarding
the Affordable Care Act, the court said:
Defendants may seek to present
argument and evidence surrounding reasonable cost of reasonably
necessary medical care, including the availability of insurance
benefits under the ACA. In seeking to exclude evidence and
argument that the ACA may cover I. Perez's future care costs,
Plaintiffs contend the argument is speculative because Defendant
provides no evidence to support the ACA's viability. The Court
finds Plaintiffs argument surrounding the viability of the ACA
goes to the weight of any evidence or argument presented by
Defendant on the issue. Accordingly, Plaintiffs' motion is DENIED.
September 2, 2018
Lawrence v. Great Lakes Dredge
& Dock, 2018 U.S. Dist. LEXIS 125131 (E.D. LA 2018).
This order affirmed a decision to limit the testimony of economist
Dr. Shael M. Wolfson. To determine an earnings base for the lost
earnings of Lawrence, Wolfson had used Lawrence’s 2013 earnings as a
base earnings rate for his projections of lost future earnings and
had ignored earnings in 2014 and 2015 even though Lawrence was
injured in December of 2015. Wolfson has said in his report that he
had been asked by counsel to assume that 2013 earnings should be
treated as an earnings base. Federal Judge Lance M. Africk
said:
The Fifth Circuit has never
permitted a plaintiff's expert to cherry-pick earnings from a year
other than the year the injury occurred without providing any
rationale. In its order granting GLDD's motion in limine in
part, the Court noted Lawrence's failure to provide such a
rationale, observing that Lawrence has not "provide[d] the Court
with any explanation as to why the 2013 figure is a more
reasonable starting point than, say, plaintiff's 2015 earnings, or
an average across the four years."[ ] Additionally, the Court
expressed skepticism about the validity of the use of the 2013
figure.[ ] In his present motion, Lawrence once again fails to
offer any explanation as to why he asked Wolfson to deviate from
the general rule stated in Culver II. The Court thus concludes
that Lawrence has not suffered any injustice as a result of its
prior order. [Footnotes removed.]
September 11, 2018
Watts v. Cox Medical Centers,
376 S.W.3d 633 (MO 2012). This decision declared that a cap on
non-economic damages adopted by the Missouri legislature in §
538.210 violated the Missouri constitution. It also reversed and
remanded the trial court’s periodic payment schedule for the child’s
future medical expenses under § 538.220. The Missouri Supreme Court
held both that a trial court was entitled to determine how much of
an award must be paid in a lump sum, and that periodic payments must
be structured in a way that assures full recovery. On this latter
aspect, the Court said:
Watts asserts the section 538.220
periodic payment schedule was arbitrary and unreasonable in that
it does not assure full compensation due to the low interest rate
and 50-year payment schedule. The jury, as required by section
538.215, discounted Naython's future medical damages to present
value. The requirement that future medical damages be discounted
to present day value necessarily means that full compensation for
those future damages is, in large part, dependent on the statutory
interest rate being the same as the rate of health care inflation
over the course of the payment schedule. Watts offered expert
testimony from two economists who concluded that the 50-year
payment schedule, coupled with a 0.26 percent interest rate,
virtually guaranteed that inflation in health care costs would
result in Naython having insufficient funds to pay his future
medical costs. Under these circumstances, the periodic payment
schedule affords none of the financial security intended by the
statute. Although section 538.220.2 required the court to
establish some periodic payment schedule, once a present value
reduction was made, use of an inconsistent future damages interest
rate guaranteed that the jury's damages award would not actually
cover Naython's future medical damages and, therefore, would take
from him the full value of the jury's award. Consequently, the
judgment is reversed and the case is remanded. On remand, the
court shall enter a new periodic payment schedule that, consistent
with the goal of reducing medical malpractice costs, also ensures
that Naython will receive the benefit of the jury's award for
future medical care.
September 12, 2018
Riggs v. Life Care Centers of
America, 2018 U.S. Dist. Lexis 113716 (E.D. WA 2018). This
order of Chief Federal Judge Thomas O. Rice granted a plaintiff’s
motion for a tax adjustment of $281,527, as calculated by economic
expert William Brandt and awarded Brandt $1,000 for costs of
calculating the amount of this tax adjustment in an after-trial
determination. The defense had presented contrary evidence through
Dennis R. Reinstein, who had projected the tax adjustment at
$129,065.
September 24, 2018
Nilssen v. Osram Silvania, Inc.,
2007 U.S. Dist. LEXIS 5792. (N.D. IL 2007). This was a patent
infringement lawsuit brought by Nilssen that was won by Osram. As
the prevailing party, Osram was entitled to recover its costs in
defending against the patent infringement claims. This order of
Federal Judge John H. Darrah was issued in response to Nillsen’s
objections to Osram’s claims for reimbursement of costs. Various
specific costs were discussed in some detail, including costs of
video-taping instead of stenographic recording of deposition
transcripts and costs of travel to take the deposition of one of
Osram’ss witnesses in Norway. Nilssen also objected to fees paid to
one of Osram’s experts in attending the depositions of other Osram’s
experts. Economic experts were not mentioned in the decision. This
decision was appealed to the District of Columbia Federal Circuit
and upheld in Nilssen v. Osram Silvania, Inc., 528 F.3d 1352 (D.C.
Cir. 2008).
September 25, 2018
Luwisch v. American Marine
Corporation, 2018 U.S. Dist. LEXIS 101371 (E.D. LA 2018).
Federal Judge Susie Morgan limited the testimony of Glenn Hebert, “a
purported expert in vocational rehabilitation” who used the
Gamboa-Gibson work-life expectancy tables to reduce Luwisch’s
work-life expectancy by 5.5 to 5.4 years in calculating damages.
Judge Morgan said:
In this case, Hebert quotes the
Gamboa Gibson study for the proposition that "[d]isability
significantly reduces both earnings and worklife expectancy," and
then concludes that Luwisch's disability has reduced his worklife
by 5.4 to 5.5 years. [Footnote removed.] Hebert utterly fails to
justify how the Gamboa Gibson data support this conclusion,
however. Accordingly, the Court finds that Hebert's opinion as to
Luwisch's work-life expectancy is unreliable and therefore
inadmissible.
Judge Morgan extensively cited the opinion of Judge Vance in Noel v. Inland Dredging Co.,
LLC, 2018 U.S. Dist. LEXIS 67768, 2018 WL 1911821 (E.D. La. Apr. 23,
2018), in reaching her decision.
The Medicine Company v. Mylan Inc.,
2017
U.S.
Dist.
LEXIS
179107
(N.D.
IL
2017).
This
opinion
and
order of Federal Judge Amy J. St. Eve involved a bill of costs
totaling $276,193.89 for its costs as the prevailing party in a
patent infringement case. The Court awarded Mylan $217,632.88. This
order provides the rationale for that value. Judge Amy J. St. Eve
cited Chicago United Indus., Ltd. v. City of Chicago, 2011 U.S.
Dist. LEXIS 106523 (N.D. Ill. Sept. 20, 2011) (collecting cases) as
holding that: "These courts have reasonably concluded that a ratio
of 3 to 1 preparation to deposition time is reasonable in complex
cases[.]" She also denied plaintiff objections to paying for experts
who did not testify during the trial.
September 26, 2018
Mansil v. Midwest Emergency
Medical Services, 2018 Mo. App. LEXIS 539 (W.D. MO 2018).
In this case, Dr. Kurt Krueger had testified to damages to Joanna
Hughes caused by the death of her daughter during childbirth. Dr.
Krueger projected a value equal to the nominal value of the mother’s
earnings as of the death of the child, projected for the mother’s
life expectancy, and discounted to present value using a real
discount rate. The court described Krueger’s calculation as follows:
Dr. Krueger understood the plain
language of section 537.090 to mean "[t]hat the annual pecuniary
loss suffered by the reason of a death of a minor child is equal
to the annual income of the deceased['s] parent[]." He thus
applied the statutory provision by "tak[ing] what the parent is
earning with what their income is and I project that as a
pecuniary loss starting upon the date of death through the life
expectancy of the parent." Dr. Krueger then explained that he
discounted this figure to arrive at his present valuation of these
economic losses. For this measure of pecuniary losses, Dr. Krueger
reached figures of $49,132 in past economic losses and $294,856 in
future annual pecuniary losses, for a combined total of $343,988.
Dr. Krueger then went on to testify that he believed the section
537.090 presumed pecuniary loss amount was low and did not
appropriately account for other household consumption items.
Conversely, counsel for Midwest and Dr. Niedens cross-examined Dr.
Krueger and pointed out that the section 537.090 presumed
pecuniary loss figure calculated by Dr. Krueger should be
decreased since it assumed wage earning by an infant, which was
unrealistic. Thus, both sides were permitted to rebut the section
537.090 presumed pecuniary loss calculation at trial.
The jury awarded past damages of $25,000 and future damages of
$100,000. On appeal the defense appealed on the basis that it was
unrealistic to assume that an infant had earnings equal to the
average earnings of her parent, as indicated in section 537.090 as a
reputable presumption. However, the defense had not presented its
own expert to rebut the presumption that Krueger’s figures were
realistic and the court pointed out that the jury had, in effect,
rebutted Krueger’s figures by arriving at awards that were lower
than Krueger’s. An appeal of this decision to the Missouri Supreme
Court was denied.
September 27, 2018
LG Electronics v. Whirlpool Corp.,
2011
U.S.
Dist.
LEXIS
121361
(N.D.
IL
2011).
This
opinion
and
order of Federal Judge Amy J. St. Eve awarded $411,029.12 in costs
to Whirlpool Corporation as the prevailing party in this commercial
litigation. Among other issues in the order was the reasonableness
of various Whirlpool expenses based on Whirlpool’s costs for experts
in the litigation. Federal Judge Amy J. St. Eve indicated that
judges in the Federal Northern District of Illinois had generally
concluded that expert charges for preparation for depositions should
not exceed a 3 to 1 ratio and reduced amounts charged by five of
Whirlpool’s experts for preparations for depositions to a 3 to 1
ratio. She also held that work done by experts who did not
ultimately testify had to be paid for by the LG, the losing party.
September 30, 2018
Lee v. Bueno, 2016 OK
97;381 P.3d 736 (OK 2016). This decision of the Oklahoma Supreme
Court held that Okla. Stat. tit. 12, § 3009.1 (2011), which modified
the Oklahoma collateral source rule to require that evidence of
medical costs in personal injury cases must be limited to amounts
paid or owed rather than costs billed, was constitutional under the
Oklahoma constitution. The concurring opinion by Justice Kauger is
particularly significant. Suggested by Christina Tapia.
October 1, 2018
Eliasen v. Hamilton, 111
F.R.D. 396, 1986 U.S. Dist. LEXIS 22692 (N.D. IL 1986). The
plaintiff had hired both a valuation expert and an expert in the
field of petroleum engineering, but did not name the petroleum
engineering expert as a testifying expert. The valuation expert had
not used or relied upon the report of the petroleum engineering
expert. The defendant wanted to depose the non-testifying petroleum
engineering expert and to depose several of that expert’s employees.
The court allowed the non-testifying expert to be deposed, but
limited the scope of the deposition to exclude work done for the
plaintiff or from obtaining any documents made in preparation for
trial. However, the defense was permitted to explore information
acquired or opinions formed before the petroleum engineering expert
was hired by the plaintiff.
Barr v. United States, 2018
U.S. Dist. LEXIS 171825 (S.D. IL 2018). Judge David Herndon
described the calculations of David Gibson of Vocational Economics
as being based on the following possible work-life expectancy
assumptions:
Utilizing a reliable economic
methodology, the economic expert explained that if Barr had lived
and retired at ages sixty, sixty-five, or sixty-seven (the social
security age of full retirement) he would have earned less in
retirement than if he retired at age seventy as testified to by
his wife.
Based on the credible testimony of Mrs. Barr, the Court finds that
Donald Barr would have worked at least until age seventy and so it
is that particular wage loss amount, as calculated by Mr. Gibson,
that the Court will focus on. [] Mr. Gibson was able to provide
the Court with the wage loss associated with the death of Donald
Barr to age seventy and net of his personal expenditures.
Therefore, the Court finds the wage loss in this case, proximately
caused by the death of Mr. Barr, to be one million, eighty one
thousand, seven hundred and eighty two dollars ($1,081,782.00).
This is of interest for two reasons: (1) Mr. Gibson did not use the
Gamboa-Gibson method for measuring the decedent’s work-life
expectancy; and (2) Mr. Gibson frequently does not subtract for
personal consumption in wrongful death cases in Illinois.
Markle v. United States,
2015 U.S. Dist. LEXIS 95610 (N.D. WV 2015). In this case, the
plaintiff economic expert Daniel Selby, a CPA, used the
Gamboa-Gibson work-life expectancy tables.
October 12, 2018
Beim v. Hulfish, 216 N.J.
484; 83 A.3d 3 (NJ 2014). This decision interpreted the New Jersey
Supreme Court decision in Green
v. Bittner (1980), as follows:
In Green v. Bittner, 85 N.J. 1, 424 A.2d 210
(1980), the Court expanded the category of pecuniary damages to
include not only the loss of future financial contributions but
also the lost value of services such as companionship and care and
the loss of advice, guidance and counsel. The Court, however,
limited damages for companionship and advice "strictly to their
pecuniary element," with the value of the services determined in
accordance with "what the marketplace would pay a stranger with
similar qualifications for performing such services," with no
value attached to the "emotional pleasure that a parent gets when
it is his or her child doing the caretaking rather than a
stranger." Id. at 12, 424 A.2d 210. Thus, in assessing both
financial and non-financial losses incurred because of a wrongful
death, the focus is on the value of what the decedent would have
contributed to his or her survivors during a continued
lifetime. This Court has never deemed a loss that fails to meet
that definition to be a "pecuniary" injury under N.J.S.A. 2A:31-5.
(pp. 21-23)
October 17, 2018
Pham v. City of Seattle,
151 P.3d 976; 159 Wash.2d 527 (WA 2007). This was a four to
three decision of the Supreme Court of the state of Washington based
upon differences among the justices in the amount of attorney fees
that the successful plaintiffs were able to recover. The amount
awarded by the trial court for tax neutralization relating to back
pay and front pay was not at issue, but the Court held that tax
neutralization was not relevant to amounts awarded for non-economic
damages, saying:
Front and back pay are damages that
replace compensation that the employee would have earned in due
course absent the discrimination. They are intended to place the
plaintiff in the same economic position he or she would have
enjoyed absent the discrimination. Moreover, plaintiffs asking for
an offset to cover adverse tax consequences resulting from a
single lump sum payment of front and back pay do not assume that
the defense will pay their entire tax burden for that recovery;
they ask only to be compensated for the additional tax
consequences resulting from the lump sum character of the payment.
[References removed.]
While noneconomic damages for emotional distress are also intended
to compensate the plaintiff, they obviously do not replace a
tangible economic loss. Congress explicitly decided that
noneconomic damages were to be taxable when they are attributable
to nonphysical injury, and Congress placed this tax burden on the
plaintiff. I.R.C. § 104(a)(2) (excluding damages, other than
punitive damages, from gross income only if such damages arise
from personal physical injury or physical illness). Under Pham and
Lara's reasoning, a plaintiff would retain no tax liability for
noneconomic damages. Shifting the tax burden on these awards
entirely to the defendant simply goes too far.
October 29, 2018
Flowers v. Christiana Care Health
System, 2018 Del. Super. LEXIS 736 (DE Super. 2018). This
order granted a defense motion to exclude the opinion of the
Plaintiff’s economic expert on the following basis:
Plaintiffs' expert's report only
considers the estate's loss of Mrs. Flowers' Social Security
income. The economic loss report does not consider pension
benefits Mrs. Flowers was receiving on behalf of her late husband,
and makes no accounting for Mrs. Flowers personal expenditures.
Without these facts it is impossible to determine what, if any,
economic loss Plaintiffs have suffered from the unfortunate
passing of Mrs. Flowers. The expert's economic loss report, and
anticipated testimony are insufficient and will not assist the
jury to understand the evidence or to determine a fact in issue.
November 21, 2018
Krepps v. NIJT(USA),
Inc.,297 F.R.D. 579 (N.D. IL 2013). Matthew Krepps, a “Harvard
trained economist,” sought an order compelling the defendant to pay
for Krepps’ regular billing rate for his testimony in deposition on
his own expert witness on his own behalf (between $2,000 and $7,000,
depending on length of time). Federal Magistrate Judge Jeffrey N.
Cole, denied Krepps’ request, saying:
[T]he Rule is quite clear that fee
shifting is mandatory unless "manifest injustice" would result. We
think that is exactly what would happen here were Rule
26(b)(4)(E)(i) interpreted in the fashion urged by the plaintiff.
For it would result in the payment of money to a party acting as
his own expert even though he had incurred no cost that should in
fairness be borne by the party seeking his deposition. That is not
appropriate cost shifting, but rather the inappropriate
subsidization of the other side's case.
November 23, 2018
White v. FCA US, LLC., 2018
U.S. Dist. LEXIS 196612 (E.D. MI 2018). In this case, the defense
argued that the Michigan Wrongful Death Act specifies that losses in
a wrongful death action are based on losses to statutory survivors
and sought summary judgement to that effect. The plaintiff argued
that the Michigan Products Liability Act Mich. Comp. Laws §
600.2945(c) allowed the estate of a decedent to seek loss of
earnings of a decedent, regardless of whether those earnings
provided support for survivors bringing the action. The Federal
District Court held that this has been a “vexing” question in
Michigan Courts, but held that Michigan law did not preclude the
plaintiffs from claiming lost earnings of a decedent, ruling that
the Michigan Wrongful Death Act was a composite wrongful death act
and survival action. This decision would support a proposition that
the entirety of a decedent’s lost earnings could be claimed in any
wrongful death action under the Michigan Wrongful Death Act.
November 24, 2018
CSX Corporation v. United States,
2018 U.S. App. LEXIS 32943 (11th Cir. 2018). This decision
held that neither railroad stock options to its employees nor
railroad provision of relocation benefits to its employees are
subject to the Railroad Retirement Tax Act.
November 27, 2018
Denney v. Kent County Road
Commission, 317 Mich. App. 727; 896 N.W.2d 808 (MI App.
2016). The Michigan Court of Appeals held that the highway exception
to governmental immunity MCL 691.1402(1) creates a statutory
exception to the Michigan Wrongful Death Act, such that plaintiffs
bringing an action under MCL 691.1402(1) can claim the entirety of a
wrongfully killed decedent’s earnings rather than just amounts that
would have been provided in financial support. This decision was
appealed to the Michigan Supreme Court, which denied certiorari in
894 N.W.2d 608. Suggested by William King.
December 12, 2018
Gaddy v. Terex Corporation,
2017 U.S. Dist. LEXIS 150478 (N.D. GA 2017). This U.S. District
Court decision was interpreting the Georgia collateral source rule
and related to the “amount’s billed” versus “amounts actually paid”
issue with respect to medical expenses. Federal Judge William S.
Duffy, Jr., held that the defense economic expert Henry Miller,
Ph.D., was not permitted to testify directly to discounted amounts
actually to be paid be paid by Medicare and private insurance for
the life care plan of the plaintiff. However, Dr. Miller was
permitted to testify regarding the reasonable market value of the
needed life care needs of the plaintiff. Judge Duffy said:
Dr. Miller offers his report to
rebut the opinions of Plaintiff's expert, Ms. Gragg-Smith,
regarding the costs of Plaintiff's future medical care. Dr. Miller
challenges Ms. Gragg-Smith's use of the billed or charged rate to
determine Plaintiff's future medical expense needs. Dr. Miller's
opinion considered the rates paid by private insurers and
government entities to determine the reasonable value of
Plaintiff's future care, using these rates as a benchmark and
recognizing that the large proportion of the marketplace comprised
of Medicare payments has an impact on prices. He opines that,
based on a study by a national healthcare actuarial firm, private
sector professional fees are paid at a rate equal to 128 percent
of the Medicare rate for various services and items, including
therapies, catheter placement, laboratory tests, and surgical
procedures. Defendants state that, when discussing the market
value of Plaintiff's claimed future care, Dr. Miller will not
reference any private health insurance or government benefits
available to Plaintiff. The Court finds these opinions of the
market rates paid for care by all market payers do not violate the
collateral source rule, because they are not offered as evidence
of payments by a third party to reduce the defendant's liability
for damages--they are instead offered to establish the
reasonableness of the amount of damages.
The Court also finds that Dr. Miller is qualified to opine on this
matter. His methodology is sufficiently reliable, because it
relies on his economic analysis of government-regulated fee
schedules and reputable studies performed by a well-established
actuarial firm. Finally, Dr. Miller's opinion will assist the
trier of fact in determining the reasonableness of Plaintiff's
claimed future medical expenses. Dr. Miller's testimony regarding
the reasonable rate of Plaintiff's future medical expenses is
admissible.
December 20, 2018
Shank v. Whiting-Turner
Contracting Company, 2018 U.S. Dist. LEXIS 213561 (N.D. OK
2018). The testimony of Dr. Ralph Scott, plaintiff’s economic expert
was excluded on the basis that Dr. Scott’s testimony that the
plaintiff was completely disabled from future employment had no
foundation in any source examined by Dr. Scott.
December 27, 2018
Glisson v. Correctional Medical
Services, Inc., 2018 U.S. Dist. LEXIS 216420 (S.D. IN
2018). Judge Sarah Evans Barker granted a defense motion to exclude
the hedonic damages testimony of Dr. Stan V. Smith. Judge Barker
held that Dr. Smith had not reliably explained how he had arrived at
an annual value of $131,199 per year for life enjoyment from the
Value of Statistical Life literature, but also emphasized that:
[E]ven if Dr. Smith's methods of
calculation were reliable, the VSL studies on which his expert
opinion depends establish only how the overall value of a life is
measured in the field of economics, not how enjoyment of life is
measured, which is the relevant question the jury must resolve in
awarding hedonic damages.
January 11, 2011
Moore v. Health Care Authority,
181 Wn.2d 299; 332 P.3d 451 (WA 2014). In this class action case,
the State had argued that lost health insurance of workers entitled
to recovery should be based on out-of-pocket costs. The Washington
Supreme Court said:
The primary flaw in this underlying
assumption is that it refuses to acknowledge that those who are
wrongfully denied health benefits suffer damage even if they do
not incur direct out-of-pocket medical expenses during that
particular time period. In its ruling, the trial court pointed to
studies showing that people who do not have health insurance do
not obtain routine preventive care, which results in deferred
medical problems. More significantly, studies show that those
without health benefits even put off necessary care for urgent
medical issues. Based on these studies, the trial court concluded
that the State's method of calculating damages would result in a
“great understatement” of the actual damages.
January 17, 2019
Denny v. Kent County Road
Commission, 317 Mich. App. 727; 896 N.W.2d 808 (MI App.
2018). This decision of the Michigan Court of Appeals allows
survivors of a decedent to recover their own damages under the
Michigan Wrongful Death Act (MCL 600.2922) and for the estate of a
decedent to also recover for the lost earnings of the decedent. The
Court said:
However, a claim for lost financial
support under the wrongful-death statute is not the same as a
claim for lost earnings. Specifically, lost earnings are damages
that decedent could have sought on his own behalf had he lived,
whereas damages for lost financial support would be sought by one
who depended on the decedent for financial support. See, e.g., id.
Because the damages are distinct, the fact that the wrongful-death
statute allows for recovery of lost financial support does not
change the character of plaintiff's claim for damages for the
decedent's lost earnings.
Williams v. Mercy Clinic
Springfield Cmtys, 2019 Mo LEXIS 4 (MO 2019). This decision
reversed and remanded a trial court decision. The Missouri Supreme
Court held that the Missouri periodic payments statute 538.220.2 as
used by the trial court resulting in unconstitutional unfair
treatment of the plaintiff. The statute specifies a interest rate to
be used to distribute periodic payments that was lower than the
interest rate used to reduce future payments to present value, with
the result that the plaintiff could not receive the full value of
the award determined by a jury. The court said:
The application of section 538.220.2
is unconstitutional as applied to Williams because payment of
future medical damages at a different interest rate than the
interest rate used to compute the present value of the jury's
award deprives Williams of the full value of the award and
violates her due process rights.
January 21, 2019
Oden v. Chemung County Indus. Dev.
Agency, 87 N.Y.2d 81; 661 N.E. 142 (N.Y. 1995). This
was a ruling of New York’s highest appellate court, that a jury
award of $66,000 for lost retirement benefits would be more than
offset by $141,330 in disability benefits that the plaintiff will
receive as the result of his injury. At issue was how the collateral
source rule operated within categories of damages. Disability
benefits and retirement benefits were deemed to have come from the
same source from the standpoint of evaluating lost pension benefits,
but the Court was clear that the net gain in pension benefits caused
by the injury could not be used to offset losses of health and
welfare benefits or lost future earnings. The court said:
[P]laintiff's retirement pension
benefits have not been shown to replace the lost future
earnings and health and welfare benefits for which the jury
awarded him $80,000. Rather, those benefits are paid in lieu
of ordinary pension benefits and do not necessarily correspond to
any future earning capacity plaintiff might have had.
Indeed, it is undisputed that, notwithstanding his retirement as
an ironworker, plaintiff would have been free to earn income from
his labor in other capacities without loss of his disability
retirement pension benefits. Thus, it cannot be said that
the disability pension benefits plaintiff expects to receive are
duplicative of the award he received for lost future earnings.
February 1, 2019
Walker v. Spina, 2019 U.S.
Dist. LEXIS 5275 (D. N.M. 2019). In response to a motion in limine
to exclude the hedonic damages testimony of William Patterson,
Federal Judge James O. Browning, interpreting New Mexico law,
allowed Patterson to explain the general concept of hedonic damages,
but relying upon Smith v. Ingersoll-Rand, 214 F.3d 1235 (2000),
limited Patterson’s testimony as follows:
The Court, therefore, will allow
Patterson to describe hedonic damages, but not to quantify
Walker's hedonic damages, e.g., Patterson may not state that S.
Walker's "lost value of the pleasure of life is $102,707" or that
she lost $10,000.00 in her value of life, or discuss his worksheet
showing his calculations for such figures.
February 5, 2019
Kennedy v. Magnolia Marine Transp.
Co., 189 F. Supp.3d 610 (E.D. LA 2016). This decision
discussed a claim in a life care plan for “financial management
damages,” as follows:
Plaintiff's vocational
rehabilitation expert and Certified Life Care Planner, Dr.
Cornelius Gorman, has developed a life care plan for plaintiff
that includes $692,500 for financial management. Following the
April 29, 2016 pretrial conference, the Court issued an order
stating that it "will not permit plaintiff to argue entitlement to
financial management damages at trial." It further ordered that
"[i]f plaintiff objects to this ruling, he shall brief the issue
to the Court. Plaintiff has done so. He argues, in short,
that "he is entitled to put on evidence in the form of expert
testimony as to whether he will need financial management and why
[because], [a]s a practical matter, plaintiff needs financial
management assistance if he is awarded a large amount of money."
[]
Even as a matter of first
impression, it is clear that such damages are not permitted in
this case. This is not a case in which plaintiff lacks the mental
capacity to manage his funds or a case in which the accident
diminished plaintiff's mental capacity to manage his funds.
Plaintiff may be compensated for medical expenses, for loss of
earning capacity, for pain and suffering, and for other damages
that defendant caused. Even if the need for financial management
can be considered as "damages," a finding this Court does not
make, plaintiff cannot be compensated for damages not caused by
defendant's conduct. The Court's order regarding financial
management stands and plaintiff's claim for such damages should be
dismissed.
March 7, 2019
Dutton v. Rando, 2019 N.J.
LEXIS 27 (N.J. App. 2019). This decision involved a wrongful death
action resulting from an automobile accident. During the decison,
the New Jersey Court of Appeals addressed the 1980 New Jersey
Supreme Court decision in Green v. Bittner, 424 A.2d 2010 (1980),
which specifically allows recovery for the advice, council and
companionship the decedent might have provided to survivors. The
court said (citations removed):
Under New Jersey law, in cases
involving the death of a child, plaintiffs may recover for "the
pecuniary value of the child's companionship, including his or her
advice and guidance, as the parents grow older. With respect to
companionship, "the jury's focus is on the existence of [the
parent-child] relationship and the value of the advice, guidance
and counsel that inhere in it." "Given a normal parent-child
relationship, a jury could very well find it is sufficiently
probable, had the child lived, that at some point he or she would
have rendered . . . companionship services . . . and advice,
guidance and counsel[.]"
Once the parent-child relationship
is established, juries should employ "an objective standard for
calculating the value of advice, guidance and counsel . . .
confined to what 'the marketplace would pay' for lost household
services or the services of a business adviser, therapist or
trained counselor." "[W]hile pecuniary losses under N.J.S.A.
2A:31-5 cannot be premised on speculation, an exact calculation of
the plaintiff's damages may not be feasible in every case."
The 11th Circuit also explicitly held that expert testimony is not
necessary to establish the value of lost services of this type.
Bobo v. TVA, 855 F.3d 1294
(11th Cir. 2017). This decision involves the wrongful death of
Barbara Bobo from mesothelioma. With respect to damages, the 11th
Circuit vacated the portion of the District Court decision that
related to damages. At issue was whether the estate could recover
for amounts originally billed or only amounts actually paid in
satisfaction of those bills. The District Court had held that the
estate could recover for amounts originally billed whether or not
actually paid, but the 11th Circuit, interpreting Alabama collateral
source rule, held that only amounts paid by Ms. Bobo or her insurers
for past medical treatments could be recovered.
March 12, 2018
Jordan v. Ventura, 2019
U.S. Dist. LEXIS 37540 (W.D. AR 2019). This decision involved a
personal injury in an automobile accident. Ralph Scott was proffered
as an economic expert to testify about the lost earning capacity of
Jordan. Scott used the national average earnings for truck drivers
to project Jordan’s past and future lost earning capacity. Ventura
moved to exclude Scott’s testimony regarding past lost earning
capacity. Federal Judge Susan O. Hickey granted the defense motion,
saying:
Loss of earning capacity is the loss
of the ability to earn in the future." Id. In his report, Scott
provides a base rate of income that Jordan would have earned but
for this accident. Scott uses the national average for earnings of
truck drivers to determine what Jordan would have earned but for
this accident and provides a calculation for Jordan's past "lost
earning capacity" instead of lost earnings. However, past lost
earning capacity is not a recoverable element of damage under
Arkansas law. Accordingly, the Court will not allow Scott to
testify as to any past "lost earning capacity.
Judge Hickey did not make any ruling with respect to Scott’s
calculations for “future lost earning capacity.” The apparent
meaning of this decision is that past earnings loss must be based on
actual past lost earnings, for which there was no clear evidence,
but future earnings loss can be based on future loss of earning
capacity, which could conceivably be greater than future expected
earnings.
March 17, 2018
Finney v. Morton, 2019 N.Y.
App. Div. LEXIS 1776 (N.Y. App. 2019). This order granted a defense
motion to reverse a trial court decision that had awarded damages to
the plaintiff for past and future lost household services was
reversed on the following basis: [A]lthough the
plaintiff's expert economist valued the loss of the decedent's
household services based on a statistical average of services
performed in a two-person household, there was no evidence in the
record as to the nature and frequency of any services actually
performed by the decedent prior to his death. Rather, the record was
silent on this issue. In addition, there was no evidence of actual
expenditures incurred in replacing whatever household services the
decedent may have performed in the past, or of any anticipated
future expenditures with regard to such services. Accordingly, the
plaintiff should not have been awarded damages for past and future
loss of household services since, in the absence of any evidence
establishing what services the decedent actually performed,
those awards were speculative and were not warranted by the facts.
Hannibal v. TRW Vehicle Safety Sys.,
2018
U.S.
Dist.
LEXIS
134318
(E.D.
AR
2018). This wrongful death action resulting from an automobile
accident. The defense challenged the projected value for loss of
life damages of the plaintiff by economist Dr. Rebecca Summary,
saying:
Dr.[Rebecca] Summary proposes to
testify regarding Krista's loss of life damages using a method
known as the "value of a statistical life." Arkansas law provides
that in addition to other elements of damages, "a decedent's
estate may recover for the decedent's loss of life as an
independent element of damages." Ark. Code Ann. § 16-62-101(b).
The Arkansas Supreme Court has construed the statute to allow for
damages that a decedent would have placed on her own life. Durham
v. Marberry, 356 Ark. 481, 492, 156 S.W.3d 242, 248 (2004). An
estate seeking loss of life damages must present some evidence
that the decedent valued her life from which a jury could infer
that value and on which it could base an award of damages. One
Nat'l Bank v. Pope, 372 Ark. 208, 214, 272 S.W.3d 98, 102 (2008).
No court applying Arkansas law has ruled as to whether expert
testimony may be admitted to assist the jury in determining loss
of life damages. An overwhelming majority of courts from other
jurisdictions, however, have concluded that the methodology
adopted by Dr. Summary does not meet the Daubert standards and may
not be admitted into evidence. Smith v. Jenkins, 732 F.3d 51, 66
(1st Cir. 2013); Kurncz v. Honda North America, Inc., 166 F.R.D.
386, 388-89 (W.D. Mich. 1996). Dr. Summary explains in her report
that the value of a statistical life methodology is based upon the
trade-off between risk and money. It involves the assignment of
monetary values to death risks based upon how much persons are
willing to spend for a small reduction in the risk of death. Dr.
Summary's value here is based upon government studies used to
assign values to human lives in conducting cost/benefit analyses
for potential government projects. The First Circuit in Smith has
explained why this is not a reliable methodology for determining
the value of a human life. 732 F.3d at 66-67. In addition to being
unreliable, Dr. Summary's analysis would not assist the jury in
determining what value Krista Hannibal placed on her own human
life. It has nothing to do with Krista specifically. Cf. id. at 67
("Even assuming that Dr. Smith's formula is a reliable measure of
the value of life, it was of no assistance to the jury in
calculating Smith's loss of enjoyment of life.").
Dr. Summary will not be
permitted to testify regarding loss of life damages based upon the
value of a statistical life.
Families Advocate v. Corp. V,
U.S. Dist. LEXIS 56845 (D. N.D. 2019). This was an order excluding
the testimony of economic expert Dr. Stan V. Smith, who had
proffered testimony about loss of enjoyment of life, loss of
relationship, loss of advice and counsel, and loss of accompaniment
services, all of which were previously recommended for exclusion in
a report of the magistrate judge. Federal Judge Timothy L. Brooks
said in conclusion:
Dr. Smith's opinions are marinated
in a proprietary blend of theoretical "studies" (developed for use
in other contexts), and peppered with arbitrary "benchmarks" a la
ipse dixit, and, finally, tabulated with present value
spreadsheets to give the illusion of forensically precise
calculations in D.M.'s specific case. Beyond the illusion, the
reality is more akin to hocus pocus. And this Court is certainly
not alone in finding Dr. Smith's methodologies suspect and
unreliable.1Link to the text of the note Dr. Smith's calculations
are based on arbitrary figures and assumptions that are unrelated
to the facts of the case. An expert's calculations should be
excluded when they are "so fundamentally unsupported that [they]
can offer no assistance to the jury." Wood v. Minn. Mining &
Mfg. Co., 112 F.3d 306, 309 (8th Cir. 1997) (citations omitted).
The problem here is not so much whether Dr. Smith reviewed and
incorporated facts from D.M.'s medical findings, as it is Dr.
Smith's unreliable methodology--which cannot be properly applied
to the facts in this case, at least not in any meaningful or
reproducible manner.
May 1, 2019
Cochrane v. Schneider National
Carriers, Inc, 980 F.Supp. 374 (D.Kan 1997). Dr. Gerald
Olson was permitted to testify about all normal pecuniary losses,
but not permitted to advance a projection of the value of lost
“emotional services” the decedent would have provided to his
family. Dr. Olson had calculated an average of the salaries of
teachers, social workers, psychologists and counselors as being in
the range of $25,000 to $30,000 per year. He had then projected that
the decedent teenaged son would have provided “emotional services”
in this range. The court also rejected this testimony because Dr.
Olson provided no specific times during which these services were
being provided. Revised listing.
May 3, 2019
Soria v. United States Bank N.A.,
2019
U.S.
Dist
LEXIS
70068
(C.D.
CA 2019). This case involved an injury to the credit of Samuel Soria
because of identity theft by an employee of U.S. Bank. The plaintiff
economic expert was Dr. Stan V. Smith, who projected losses of
credit expectancy and the value of the lost time Soria had spent
dealing with inaccurate reporting. The court excluded Smith’s
testimony on loss of credit expectancy, describing Smith’s testimony
as follows:
According to Dr. Smith, Soria could
have borrowed as much as $60,000 in year 2016 dollars. (Dkt. 66-1
[Declaration of Dr. Stan V. Smith] Ex. 1 [Expert Report,
hereinafter "Smith Rep."] at 5.) Because Soria's credit score
declined from 735-740 to 524, however, Soria would have to pay a
higher interest rate to obtain this line of credit. (Id. at 4-6.)
Based on a peer-reviewed article that Dr. Smith coauthored, Dr.
Smith estimated Soria would pay an increased 12 percent per year
in costs as a result of his lower credit score. (Id.) The
increased cost would last for seven years, the length of time a
delinquency remains on a credit report. (Id.) Based on this, Dr.
Smith calculated Soria's loss of credit expectancy to be $28,252.
The Court indicated that this part of Dr. Smith’s testimony was
inadmissible because Smith provided no analysis regarding how he
arrived at the figure of $60,000, which was significantly in excess
of Soria’s annual earnings during the previous three years. However,
the Court allowed Smith’s testimony regarding Soria’s allegedly lost
time, valued at $27.67 in 2017 dollars, indicating that the hourly
value goes to the weight, but not the admissibility of Smith’s
testimony. Smith had also calculated hedonic damages for Soria, but
the plaintiff had withdrawn that claim before this decision.
Kowalewski v. BNSF Ry. Co.,
2019 Minn. App. Unpub. LEXIS 339. (MN App. 2019). This decision held
that federal law and not Minnesota state law governed the
post-judgement interest rate in FELA cases. The Court also said:
BNSF further argues that
Kowalewski's entire award should be taxed as earned income and
that amounts be withheld to satisfy taxes required by the Railroad
Retirement Act (RRTA). FELA damages for lost wages qualify as
taxable compensation under the RRTA. See BNSF Ry. v. Loos, No.
17-1042, 2019 WL 1005830, at *8 (U.S. Mar. 4, 2019). In this case,
however, the jury awarded Kowalewski $15,343,753, but none of that
amount was designated as wage loss on the special-verdict form. As
such, none of the award need be withheld.
May 20, 2019
Families Advocate, LLC v. Sanford
Clinic N, 2019 U.S. Dist. LEXIS 60438 (D. N.D. 2019). This
decision of Magistrate Judge Alice R. Senechal to recommend the
exclusion of the testimony of Dr. Stan V. Smith on hedonic damages,
loss of consortium, loss of guidance and counsel, and loss of
accompaniment services. Judge Senechal recommend Smith’s exclusion
in all of those areas. Her recommendation that Smith’s testimony be
excluded includes several pages describing the opinions of Dr. David
D. Jones in support of the defense motion to exclude Smith’s
testimony. Judge Senechal’s recommendation to exclude Smith’s
testimony was accepted by federal district Judge Timothy Brooks in Families Advocate v. Corp. V,
U.S. Dist. LEXIS 56845 (D. N.D. 2019).
Knaack v. Knight Transportation
Inc., 2019 U.S. Dist. LEXIS 75480 (D. NV 2019). In this
case, the defense had moved to exclude Dr. Stan V. Smith’s testimony
about loss of family advice, counsel, guidance, instruction and
training services and loss of accompaniment services. Federal Judge
Larry R. Hicks denied the defense motion.
Dwyer v. Southwest Airlines Co.,
2019 U.S. LEXIS 77844 (M.D. TN 2019). The plaintiff had moved to add
a claim for her lost household services, which Federal Judge Aleta
A. Traugher denied as “futile” because Tennessee law does not allow
recover by an individual plaintiff for her own household services.
Judge Traugher conducted a survey and concluded that of the 47
jurisdictions that were represented in the consolidated
multidistrict litigation including this case, 17 allowed recovery by
an individual for his or her own lost household services, while 30
jurisdictions did not. Judge Traugher, however, went on to say that
damage for such losses could be sought as part of the plaintiff’s
damages for pain and suffering, and that if the plaintiff’s injuries
have required her to pay a third party for services she previously
performed for herself, she could seek compensation for such payments
as part of her economic damages.
May 28, 2019
Louisville Sw Hotel v. Lindsey,
2019 Ky. App. LEXIS 91 (KY App. 2019). This decision rejected a
defense appeal, but granted the plaintiff’s appeal in this wrongful
death action. The jury had awarded punitive damages against the
Comfort Inn based upon the death of Chance Brooks, a minor child,
but had awarded $0 for the lost future earnings of the child, the
pain and suffering involved in drowning, and loss of consortium to
the child’s parents. The court held that a trial limited to
determining amounts for those damages was necessary. Sara Ford of
Vocational Economics had testified at trial that the value of the
child’s lost lifetime earnings was $1,890,874 with a high school
degree and $3,770,805 with a bachelor degree.
July 4, 2019
Lewis v. Ukran, 2019 Cal.
App. LEXIS 588 (CA App. 2019). The Court addressed the
responsibilities for projecting damages and reducing future losses
to present value in California as follows:
We hold, in a contested case, a
party (typically a defendant) seeking to reduce an award of future
damages to present value bears the burden of proving an
appropriate method of doing so, including an appropriate discount
rate. A party (typically a plaintiff) who seeks an upward
adjustment of a future damages award to account for inflation
bears the burden of proving an appropriate method of doing so,
including an appropriate inflation rate. This aligns the burdens
of proof with the parties' respective economic interests. A trier
of fact should not reduce damages to present value, or adjust for
inflation, absent such evidence or a stipulation of the parties.
July 9, 2019
Martinez-Morales v. Victualic Co.,
2013
U.S.
Dist.
LEXIS
79996
(D. P.R. 2013). This decision of U.S. Magistrate Judge Marcos
E. Lopez denied a motion to exclude the testimony of Dr. Jaime L.
del Valle Caballero. Caballero had used the LPE method to project
the earning capacity loss of the plaintiff. The defense challenge
focused on whether the LPE method properly took account of the
business cycle. Judge Lopez ruled that the probabilistic nature of
the LPE method accounted for such issues.
July 10, 2019
Economy v. Sutter East Bay
Hospitals, 31 Cal. App. 5th 1147; 243 Cal. Rptr. 3d. (CA
App. 2019). One of the issues in this appeal was the calculations of
Dr. Barry Ben-Zion for tax neutralization of the award. Tax
neutralization means adjusting the size of an award so that the
after-tax value of the award would be the same as it would have been
if loss amounts had not been lost. The court said:
Although an award to compensate for
an income-tax disparity for lost future wages is inherently
speculative, as is any award for lost future income, we see no
reason why this factor cannot be established with sufficient
certainty. As the trial court noted, plaintiff's expert provided
“detailed testimony regarding his calculations of (i) plaintiff's
total tax liability had plaintiff not been terminated and had he
continued to earn income, (ii) the amount plaintiff would have to
pay in taxes if awarded the computed loss of earnings (back and
front pay), and (iii) the tax neutralization amount, i.e., the
amount of money needed to generate a net amount equal to the
adverse tax consequence.” We agree with the trial court that the
foundational information relied on by the expert, including the
applicable tax rates, provided a reasonable basis for his
opinions.
The Court also provided a review of decisions in the federal
circuits regarding the tax neutralization question. The California
Supreme Court has since denied certiorari for an appeal of this
decision.
July 12, 2019
Blue Book Servs. v. Amerihua
Produce, Inc., 337 F. Supp. 3d 802 (N.D. IL 2018).
This memorandum by Federal Judge Edmond E. Chang denied a defense
motion to exclude the testimony of Blue Book’s damages expert, C.
Kenneth White, saying:
Amerihua []challenges that White is
not qualified to testify as an expert in this case, arguing that
he does not meet any of the purported "Gold Standards" for expert
testimony set forth by their own rebuttal expert, Stan Smith. Def.
Br. at 14. The argument goes that because White does not
have a doctorate degree, has never taught a college course, and
has not authored a university textbook, he is not a witness
"qualified as an expert by knowledge, skill, experience, training,
or education." Def. Br. at 14; Fed. R. Civ. P. 702. But the list
of factors picked by Amerihua are not conclusive and are most
definitely not required by Daubert and Kumho Tire. [] White has
been an independent financial consultant since 2003, and before
that, he held senior positions at Ernst & Young as a certified
public accountant. R. 54, DSOF Sealed Exhibits Exh. V, White
Report (sealed) at 36. More importantly, he has over 40 years of
professional experience with specialization in valuation and
damage analyses. Id. He has a bachelor's degree in accounting and
a master's degree in business administration, on top of passing
the CPA examination. Id. He has similarly served as an expert in
myriad cases. Id. Just because White has focused his career on
applying his skills to concrete cases rather than teaching courses
or publishing articles does not disqualify him from expert
analysis—nor does Rule 702 suggest as much. See Kumho Tire, 526
U.S. at 148-49; Tuf Racing, 223 F.3d at 591.
Bland v. Green, 2019 La.
App. LEXIS 1171 (LA App. 6-27-2019). This decision reversed and
remanded a trial court decision that had granted a defense motion in
limine to exclude the testimony of economic expert Dr. Randolph Rice
because Rice did not expressly incorporate the plaintiff’s
pre–injury earnings as a foundation for his projection of the
plaintiff’s lost earning capacity. Rice had relied upon the analysis
of vocational expert Carla Seyler for his opinions about the
plaintiff’s pre-injury earnings record. The Court of Appeals said:
Dr. Rice relied on Ms. Seyler's
figures that were the result of her consideration of Mr. Bland's
seasonal work history and prior earnings. In essence, Dr. Rice
adopted Ms. Seyler's work product. He also was provided Mr.
Bland's pre-injury tax returns. After having considered the past
tax return earning history of Mr. Bland, and adopting the lost
earning capacity determination of Ms. Seyler, which alsoincluded
her own consideration and estimation of Mr. Bland's work and
earning history, Dr. Rice gave a range of values based upon the
potential length of Mr. Bland's working life and the annual lost
earning capacity figures provided by Ms. Seyler. Dr. Rice
calculated that Mr. Bland's losses ranged from $483,021 to
$595,863, depending on how much longer he expected to work. In
sum, Dr. Rice [Pg 5] provided a lump-sum value equal to the total
of Mr. Bland's lost earning capacity through his remaining life
based upon the annual earning capacity figures determined by Ms.
Seyler.
July 16, 2019
Stearney v. United States,
2019 U.S. Dist. LEXIS; 2019 WL 2151548 (D. AZ 2019). This case
involved the wrongful death of two Japanese parents and one sibling
in an automobile accident, with significant physical harm to the
surviving minor child, who had recovered and returned to Japan to be
cared for by relatives. Economic expert Paul Bjorkland for the
defense calculated loss of annual costs of child care at $38,004.11
in the United States and $27,571.67 in Japan until the child reached
majority plus medical expenses, equaling $503,722.67, and awarded
$10 million for the child’s non-economic losses. The Court and the
plaintiff also accepted Bjorklund’s calculation of to the estate of
R.H.’s deceased sibling “Yuki” as $525,000, after accounting for
income taxes. Judge David G. Campbell provided a general explanation
for how Bjorklund calculated damages and relied on Bjorklund’s
figures with minor modifications. The plaintiff did not present an
economic expert at trial. However, the drunk driver who caused the
accident was held 90 percent liable and the United States only 10
percent liable so that the amount the plaintiff was likely to
collect was only 10 percent of the damages awarded.
July 25, 2019
Lough v. BNSF, 2019 U.S.
Dist. LEXIS 119122 (D. N.M. 2019). Federal Judge Judith C. Herrera
limited the hedonic damages testimony of Dr. Allen Parkman by
indicating that could provide no quantified values, even as
benchmarks, but could testify about hedonic damages as follows:
Mr. Parkman may testify as to the four factors he
utilized in valuing hedonic damages — specifically the effect that
the injury had on "the ability to enjoy the occupation of your
choice," "activities of daily life," social leisure activities," and
"internal well-being." The Tenth Circuit permits expert testimony on
these exact four "broad areas of human experience which [an expert]
would consider in determining [hedonic] damages."
July 26, 2019
Winston v. Winston v. United
States, 11. F. Supp. 2d 948 (W.D. KY 1998). The Plaintiff
had filed a motion in limine to preclude expert testimony regarding
the present value and interest rates applicable to future expense
streams in a minor’s action against defendants. The basis of the
motion was Plaintiff’s argument that Kentucky law applied and that
the Kentucky decision in Paducah Library v. Terry, 655 S.W. 2d 19
(Ky. App. 1983) required use of total offset. Federal Judge Charles
R. Simpson denied plaintiff’s motion, pointing out that the Paducah
Library decision did not require total offset and that federal law
applied to this question in any case. He said that inflation and
discount rates do not offset “in the real world.”
Mallon v. Hudson Sav. Bank,
2019 N.J. Super. Unpub. LEXIS 1674 (N.J. Super. 2019). This was an
appeal and cross-appeal of a disparate treatment verdict won by the
Plaintiff. One of the issues in the cross appeal was a request by
the Plaintiff, supported by an amicus brief from the National
Employment Lawyers Association of New Jersey, for an increase in the
award to account for tax neutralization. The Superior Court rejected
that appeal on the basis that the Plaintiff had argued to the jury
that the amounts projected did not cover tax costs that would result
from the award. The court indicated that tax neutralization would
ordinarily be allowed, but that the circumstances of this case made
the trial court’s decision not to provide for tax neutralization
reasonable.
August 3, 2019
Haines v. Get Air LLC, 2019
U.S. Dist. LEXIS 128438 (D. AZ 2019). Judge Rosemary Marquez denied
a motion in limine to exclude the testimony of Dr. Anthony M.
Gamboa, saying:
[T]he Court finds that Dr. Gamboa
reliably applied his principles and methods to the facts of this
case. Fed. R. Evid. 702(d). The Court disagrees with Defendant's
argument that Dr. Gamboa failed to consider Plaintiff's unique
characteristics, such as his driven nature. To the contrary, Dr.
Gamboa considered Plaintiff's drive, intelligence, and educational
goals in opining that Plaintiff will likely achieve a
baccalaureate or higher level of education. He also considered
other specific characteristics, such as Plaintiff's age, gender,
and injury severity, in reaching his lost-earning-capacity
opinion. The Court rejects Defendant's contention that Dr.
Gamboa's opinion is irrelevant because it is insufficiently
tailored to Plaintiff's circumstances.
August 5, 2019
Wooten v. BNSF Ry. Co.,
2019 U.S. Dist. LEXIS 68808 (D. MT 2019). Among other economic
and financial issues considered in this case was an appeal by the
plaintiff for a “gross up” in the award to account for higher front
pay and back pay taxes that Wooten will bear as a result of the lump
sum award received by Wooten. The Court declined to add any amount
to further “gross up” or “neutralize”taxes on Wooten’s award. The
Court explained:
This Court declined to give an
instruction to the jury on the tax gross up and similarly declined
to include a line of damages on the verdict form for such relief.
Nonetheless, the Court allowed Wooten's forensic economist,
[Jeffrey] Opp, to present exhibits and testimony on the amount he
believed necessary to insulate Wooten from the tax consequences of
a one-time payment of the total jury award. Additionally, the
Court allowed Wooten to present evidence and argument on this
issue throughout the trial. As has been discussed above, the jury
awarded Wooten front pay in the amount of $1,407,978, a number
between Opp's proposed front pay awards of $1,329,014 for
approximately 30 years of BNSF work and $1,546,143 for
approximately 37 years of work at BNSF. (Docs. 283-155 at 2; 289
at 4.) [] [T]he Court cannot be positive that the jury, after
hearing Opp's testimony and Wooten's argument, did not take the
tax consequences of a lump sum payment into account—the award
falls between Opp's calculations of the loss amount.
Munoz v. Norfolk Southern Ry.,
2019 IL App (1st) 171009-B; Ill. App. LEXIS 487 (IL App 2019). The
Court reversed its own 2018 decision in light of the U.S. Supreme
Court decision in BNSF v. Loos, 139 S. Ct. 893 (2019). It reverses
its own 2018 decision as a direct consequence of BNSF v. Loos and
remanded to the trial court for a determination of the amount of
Tier I and Tier II taxes that both Munoz and Norfolk Southern own on
the FELA award to Munoz. The decision provided a detailed discussion
of decisions leading up to the U.S. Supreme Court decision in BNSF
v. Loos.
August 7, 2019
Crawford v. Franklin Credit
Management, 2015 WL 13703301 (S.D. N.Y. 2015). This was an
order of Federal District Court Judge Kimba M. Wood ruling on
motions in limine filed by the defense. One of the challenged
experts was Dr. Stan V. Smith, an economist. Judge Wood ruled
individually on seven different damage areas: “(1) excess costs; (2)
loss of equity; (3) additional interest on car loans; (4) the loss
of credit expectancy; (5) the value of time spent by Linda Crawford;
(6) loss of wages and employee benefits; and (7) the reduction in
value of life.” Judge Wood denied defense motions to exclude Smith’s
testimony on excess costs, loss of credit expectancy, and additional
interest costs on car loans, but precluded Smith from testifying
about loss of equity, loss of time spent, loss of wages and
benefits, and reduction in value of life. Explanations were provided
for each loss category. Loss of time spent was precluded because:
Smith provides no justification for
which Crawford’s time should be valued at a rate similar to that
which is paid to bookkeepers, clerks, secretaries and assistants,
as opposed to, for instance, paralegals, human resource officers
or customer service agents.
Smith’s reduction in the value of life testimony was precluded based
on a number of cited decisions and a reference to Thomas R. Ireland,
“The Last of Hedonic Damages: Nevada, New Mexico, and Running a
Bluff," J. Legal Econ, October 2009, at 91, 92-97.
August 18, 2019
Wilson v. Sundstrand Corporation,
2003 U.S. Dist. LEXIS 4 (N.D. IL 2003). This order denied a defense
motion to strike the testimony of Dr. Stan V. Smith on behalf of the
plaintiffs. The action was a 1929 Warsaw Convention action involving
an airplane crash in Indonesia that had killed 26 passengers, none
of whom was American. By the deadline for expert reports, Smith had
provided a full report for only one of the 26 decedents, none of
whom was an American. The primarily basis for the motion to exclude
Smith’s testimony was the failure of the plaintiffs to provide full
reports by the disclosure deadline. Smith calculations included a
variety of damage elements, including loss of enjoyment of life
(hedonic damages). Judge Kennelly held that this was inadequate and
that complete reports should be filed for all decedents. Judge
Kennelly sanctioned plaintiff attorneys with a fine and set the
trial date further in the future, but did not exclude Smith on that
basis. Judge Kennelly said:
Smith’s original report regarding
one of the deceased passengers adequately explained Smith’s
opinions, the basis for those opinions, and his reasoning, and
plaintiffs state without contradiction that the supplemental
reports for the other twenty-five follow a similar format. The
apparent flaws exposed by Sunstrand may provide ample ammunition
for cross examination of Smith, and they conceivably provide a
basis for challenging some or all of his testimony via a motion in
limine, but they are not of sufficient magnitude to warrant
striking the original or supplemental reports or barring Smith
from testifying at trial.
August 21, 2019
BNSF Ry. Co. v. Loos, 139
S. Ct. 893; 203 L. Ed 2d 160 (U.S. 2019). In this decision,
the U.S. Supreme Court by a 7 to 2 decision reversed the decision of
the 8th Circuit decision in Loos v. BNSF Ry. Co, 865 F.3d 1106
(2017). The 8th Circuit had held that an award of damages for lost
wages under the Federal Employers Liability Act (FELA) was not
subject to Tier I and Tier II payroll taxes and affirmed the trial
court opinion to that effect. As a result, payroll taxes must be
paid on compensation for lost wages even though those earnings are
not taxable under federal and state income taxes. In doing so, the
Supreme Court created a new “hybrid” category under which some
federal and stat income taxes on income apply to awards for wage
loss, but other federal taxes on that portion of income do not. The
legal arguments weighed in reaching this decision are complex, but
the ruling itself is straight-forward. Henceforth, railroad
employers will be required to withhold payroll taxes on amounts
awarded for lost past future pay from the awards and will have to
pay the employer taxes mandated under the Railroad Retirement Tax
Act (RRTA). The importance of this decision lies in what was not
decided or addressed in the decision – how the wage amounts for
which payroll taxes are paid will be treated in the formulas for
disability and retirement benefits under the paired Railroad
Retirement Act of 1974 (RRA). The decision determined that payroll
taxes must be paid, but not how the payment of those taxes will
impact the disability benefits and retirement benefits that workers
may have been receiving or will receive in the future.
Robinson v. Geico Gen. Ins. Co.,
447
F.3d
1096
(8th Cir. 2006). This decision was in response to a plaintiff
challenge to the defense’s medical expert based on that expert not
being an orthopedist. On the question of the defense expert’s
specialization as a neurologist, rather than an orthopedist, the
Court said:
The district court did not abuse its
discretion by allowing the testimony of Dr. Horenstein. Rule 702
does not require a defense medical expert to be of the identical
medical speciality as the plaintiff's expert. Instead, Rule 702
only requires that an expert possess "knowledge, skill,
experience, training, or education" sufficient to "assist" the
trier of fact, which is "satisfied where expert testimony advances
the trier of fact's understanding to any degree." 29 WRIGHT &
GOLD, FEDERAL PRACTICE AND PROCEDURE: EVIDENCE § 6265 (1997).
"Gaps in an expert witness's qualifications or knowledge generally
go to the weight of the witness's testimony, not its
admissibility." Id.; see also Lauria v. Nat'l R.R. Passenger
Corp., 145 F.3d 593, 598 (3d Cir. 1998) (holding trial court
abused its discretion by excluding testimony simply because the
trial court did not deem proposed expert to be the best qualified
or because proposed expert did not have the specialization that
the trial court considered most appropriate).
September 4, 2019
Michels v. United States,
815 F. Supp. 1244 (S.D. IA 1993). U.S. Magistrate Judge Mark W.
Bennett awarded Michels $49,518.04 for lost earning capacity. The
plaintiff economic expert was Dr. Michel L. Sandberg, a professor of
finance at Coe College. Sandberg had projected a loss of earning
capacity of either $691,623 or $487,903. The United States attorneys
argued that Michels should be compensated $54,104 to pay for four
years of college. Sandberg had used the 1987 Worklife Expectancy of
Disabled versus Non-Disabled Person's by Sex, Race, and Level of
Educational Attainment, the "Gamboa report" to project that Michels
would have either a 50.3 percent reduction in work-life if he
graduated from high school or a 32.3 percent reduction in worklife
if a college graduate. Judge Bennett said:
The court finds these reductions in
Michels' work life expectancy to be unsupported by the record. The
Gamboa report suffers from several deficiencies which render it
unreliable in assessing Michels' work life expectancy. . . [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 wassimply no medical evidence that Michels' present or
expected future medical condition would reduce his work life
expectancy.
September 23, 2019
Cramer v. Equifax Info. Servs.,
2019
U.S.
Dist. LEXIS 161062 (E.D. MO 2019). This memorandum by Federal
District Judge Charles A. Shaw excluded hedonic damages testimony by
Dr. Stan V. Smith, plaintiff’s economic expert. This was a case that
involved an alleged injury to the plaintiff’s credit caused by
actions of Equifax Information Services under the Fair Credit
Reporting Act (FRCA), but no physical injury was involved. Regarding
hedonic damages, Judge Shaw said:
[E]ven if hedonic damages were
appropriate in an FCRA case, plaintiff has not shown that Dr.
Smith's testimony is necessary or reliable in assisting the trier
of fact to understand or determine a fact in issue in this case.
See Saia v. Sears Roebuck & Co., 47 F. Supp. 2d 141, 149 (D.
Mass. 1999) (expert testimony on hedonic damages, purporting to
calculate injured plaintiff's loss of enjoyment of life based on
"willingness to pay" model which considered consumer behavior,
wage risk premiums, and regulatory cost-benefit analysis, was
unreliable whether evaluated as scientific or as "technical or
other specialized" knowledge) (citing to various federal courts
rejecting expert testimony on hedonic damages, in particular Dr.
Smith's); see also Allen v. Bank of Am., N.A., 933 F. Supp. 2d
716, 734 (D. Md. 2013) ("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."); Kurncz v. Honda N. Am., Inc., 166 F.R.D. 386,
388 (W.D. Mich. 1996) ("The willingness to pay model on the issue
of calculating hedonic damages is a troubled science in the
courtroom, with the vast majority of published opinions rejecting
the evidence."). For these reasons, Dr. Smith's testimony
regarding hedonic damages will be excluded.
However, Judge Shaw also ruled that Smith would be permitted to
testify about loss of credit expectancy if the plaintiff was able to
develop a basis for arguing that there was some tangible loss and
would be able to testify about the value of plaintiff’s loss of time
spent resolving her credit problems.
September 28, 2019
Reynolds v. W. Sugar Coop.,
2019 U.S. Dist. LEXIS 140833 (D. NE 2019). This decision was in
response to the Plaintiff’s claim that defense economic expert Eric
Frye had testified beyond his expertise in vocational and life care
planning areas. The Court denied Plaintiff’s claim, indicating that
Frye’s report and deposition transcript did not support claims made
by Plaintiff.
December 16, 2019
Riggio v. Pruneda, 2019
U.S. Dist. LEXIS 214222 (S.D. MS. 2019). Federal District Judge
Louis Guirola, Jr., denied defense motions in limine to exclude the
testimony of economic expert George Carter regarding the plaintiff’s
loss of household services and job-related fringe benefits. Carter
had used Dollar Value of a Day: 2017 Dollar Valuation to value the
household services of Kim Mills, the decedent in a wrongful death
action using tables for single women living alone. The court cited
several previous cases in allowing Carter’s testimony about lost
household services based on Dollar Value of a Day. The Court also
allowed Carter’ testimony about Mills’ lost job-related fringe
benefits.
Aguero v. Gayoso, 2013 WL
7020461 (Cir. Ct. Desoto Cty., Miss 2013). Economic exert George
Carter’s testimony about lost household services based on was
allowed based on the fact that
[M]any economists commonly rely on
studies which estimate the time spent on household services,
taking into account the size of the family, whether each family
member works, their age, etc. - one such study being Dollar Value
of a Day: 2007 Dollar Valuation, Shawnee Mission, Kansas,
2011.
December 17, 2019
Ellis v. Kovalchuk, 2014
U.S. Dist. LEXIS 190142 (S.D. MS 2019). Federal District Judge
Henry T. Wingate granted defense motions to exclude the testimony of
economic expert George Carter regarding household services and
discretionary fringe benefits of the decedent Laura Ellis in a
wrongful death action under Mississippi law. Judge Wingate described
Carter’s household services analysis as follows:
Dr. Carter's analysis declares that
Mrs. Ellis would have provided household services valued at $34.77
per day until the expected end of her work life, and then $53.45
per day thereafter until her expected death. Dr. Carter reaches
this declaration after referring to figures in publically
available valuation studies and government statistics and
accounting for inflation. Carter seems to also consider Mrs.
Ellis' age, the projected end of her work life, and her projected
life expectancy.
The Court held that without other facts specific to the life of Ms.
Ellis, this testimony was inadmissible. The Court held that Carter’s
failure to account for the personal consumption of her household
services by Ellis was not a basis for excluding her testimony, but
mentioned the fact that no evidence was provided indicating that any
replacement household services had been purchased. The Court also
held that the fact that discretionary fringe benefits were available
through Ellis’s employment was not sufficient without evidence that
Ellis had availed herself of those fringe benefits.
Dallas v. Premier Vehicle Transp.,
Inc., 2017 U.S. Dist. LEXIS 1347672; 2017 WL 3623750 (S.D.
MS 2017). This decision by Federal District Judge Louis
Guirola, Jr., granted a defense motion to exclude the testimony of
economic expert George Carter based on the assumption that the
decedent, a 22 year old single person, would have had a 20 year
military career, but did not exclude Carter’s testimony regarding
loss of household services, saying:
[T]he fact that Dallas was single
and did not reside with other members of his family does not
foreclose the possibility that he did or would have provided
household services or entitlement benefits to them. . . Whether
the plaintiff can prove these damages is another matter, but that
question is for the jury to decide. Dr. Carter's opinion testimony
in regard to loss of household services and entitlement benefits
will be allowed.
December 31, 2019
Tillery v. Children’s Hosp. of Phila., 156 A.3d 1233 (PA
Super 2017). The defendant argued that Pennsylvania’s Medical Care
Availability and Reduction of Error Act, 40 Pa. Stat. Ann. §§
1303.101-910 (MCARE) applied to future medical expenses as well as
to lost earnings. MCARE is an act of the Pennsylvania legislature
that requires that lost earnings be reduced to present value. The
Tillery Court held that the present value of future medical care is
only relevant to the determination of attorney fees. Future medical
expenses are to be paid as periodic payments and do not have to be
reduced to present value. The Tillery Court also held that “delay
damages” can be awarded. “Delay damages” appears to refer to post
trial interest on delayed payment of damages.
January 27, 2020
Gibson v. United States, 2020 U.S. Dist. LEXIS 8656; 2020 WL
241550 (D. MT 2020). This wrongful death decision by Federal
Judge Brian Morris excluded loss of enjoyment of life (hedonic
damages) testimony of Dr. Ann Adair, but permitted her testimony
regarding the decedent’s loss of earnings and the value of the
decedent’s lost household services. Adair testified that the U.S.
Department of Transportation used an average figure of $9.6 million
for the value of a human life in 2016 and that the Environmental
Protection Agency (EPA) value valued a human life at $7.4 million in
2006, both of which led to her conclusion that the value of a human
life was $9.4 million in October, 2019, when this case was tried.
Judge Morris cited Dorn v. BNSF, 297 F. 3d 1183 (9th Cir. 2005),
Mercado v. Ahmed, 974 F. 2d 863 (7th Cir. 1992), and Starling v.
Banner Health, 2018 U.S. Dist. LEXIS 28747 (D. AZ 2018), in
concluding that “Adair’s testimony failed to satisfy the standards
of reliability and relevance as required under FRE 702 and Daubert.”
Saulsberry v. Savannah River Remediation, 2020 U.S. Dist.
LEXIS 8578 (D. S.C. 2020). This decision included a ruling by U.S.
District Court Judge J. Michelle Childs not to award to avoid the
negative tax consequences of receiving a lump-sum backpay award.
Judge Child explained the concept of negative tax consequences,
citing several cases that had allows such awards, but pointed out
that the calculation of such awards was complicated and that in
Enshelman v. Agere Sys., 554 F.3d 426 (3rd Cir. 2009) the plaintiff
had provided a sworn affidavit from a forensic economist making the
necessary calculations and that “articulated a clear methodology for
the court to follow.” This case had gone on for 17 years to that any
such calculation was complex. The plaintiff had submitted a simple
table by Sanford Lloyd, CPA, but had not testified in the trial and
had not explained his calculations in detail.
February 17, 2020
Choudry v. Fowlkes, 243 Md. App. 75; 210 A.3d 107 (Md. App.
2019). This decision involved a defense challenge to a jury award to
the mother of an adult decedent child (aged 22) who had been living
with her mother before her death of $500,000 for the lost household
services of the decedent child. The Maryland Court of Special
Appeals agreed with the defense and reversed the award. The Court
held that in order to claim a loss of household services in
Maryland, a plaintiff must:
(1) identify domestic services that have a market value;
(2) have reasonably expected the decedent to provide the
identified services, which-absent the decedent'slegal obligation
to provide the services-will typically require evidence showing
that the decedent was regularly providing the services in the
past; and (3) present some evidence concerning the duration the
decedent would have likely provided the services.
The Court considered the plaintiff’s evidence in light of each of
those requirements and held that the award for lost household
services should be reversed.
February 18, 2020
Jennings v. Nash, 2020 U.S. Dist. LEXIS 26611 (W.D. MO 2020).
Hedonic damages testimony of Stan V. Smith was excluded under the
Daubert standard with citations to a number of other federal
district court decisions reaching the same conclusion.
Adriatic Marine, LLC v. Harrington, 2020 U.S. Dist. LEXIS
26514 (E.D. LA 2020). Glenn Hebert, as the vocational expert for
Harrington, had calculated Harrington’s 2019 income as $85,684.
Adriatic Marine submitted tax returns showing that Harrington had
only earned $36,993 in 2019, resulting in a substantial
overstatement of Harrington’s losses. Based on this error, Hebert
was excluded from testifying. G. Randolph Rice, an economic expert
whose report was based on Hebert’s calculation, was also excluded
from testifying. A request from Harrington to submit corrected
reports was also denied.
February 25, 2020
Erickson v. Biogen, Inc., 2020 U.S. Dist. LEXIS 31304 (W.D.
WA 2020). The decision in this case involved a doubling of the
plaintiff’s back pay award of $390,500 based on the False Claims Act
(FCA) of the federal government. Federal District Judge John
C. Coughenour also reduced the front pay award from a period of 15
years to a period of five years in a remittitur. The result was that
plaintiff’s calculation of the required amount for tax
neutralization (“gross up”) had to be reduced. Judge Coughenour
said:
FCA doubling of back pay is punitive, not compensatory,
so it should be excluded from any tax gross up. And assuming
Plaintiff accepts the remittitur, the amended past and future
economic damages award is now $1,119,640. Thus, any potential tax
gross up must be recalculated. Therefore, the Court GRANTS
Plaintiff's request for a tax gross up and ORDERS Plaintiff to
submit a new calculation of the gross up on only on the past
economic damages, not the FCA doubling of back pay.
March 1, 2020
Markle v. United States, 2015 U.S. Dist. LEXIS 95610 (N.D. WV
2015). This decision did not focus on the Gamboa-Gibson work-life
tables, by defense economic expert Daniel Selby relied upon
participation rates from the 2010 Gamboa-Gibson Worklife Tables to
reduce the number of hours Patricia Markle was assumed to work after
her injury, thereby reducing his previous estimate of damages. There
was no challenge from the plaintiff to this use of the Gamboa-Gibson
tables, other than the lateness of its disclosure. Judge Gina Marie
Groh rejected plaintiff's motion to exclude Selby's revised report
on the ground of late disclosure.
Bennett v. United States, 2018 U.S. Dist. LEXIS 226328; 2018
WL 6265092 (C.D. CA 2018). The defense challenged the vocational
expert opinions of Philip Sidlow of Vocational Economics, Inc., on
several grounds. Judge Dolly M. Gee granted the defense
motion to exclude Sidlow's business evaluation of Bennett's business
on the ground that Sidlow "does not have any certification or
accreditation in business valuation or accounting, and he has ever
taught economics at any level." Sidlow was also excluded from
testifying that using only Bennett's post-injury earnings to
determine post-injury earning capacity. However, Sidlow was
permitted to testify using the Gambo-Gibson tables regarding reduced
work-life expectancy of Bennett following his injury.
March 29, 2020
Banks v. Eighth Judicial Dist. Court of Nev., 2020 Nev. App.
Unpub. LEXIS 30; 2020 WL 283402 (NV App. 2020). This one page
decision denies a writ of mandamous challenging, in part, an
exclusion of portions of the testimony of economic expert Stan V.
Smith. In denying the write, the Court noted that:
[T]he district court’s order does not foreclose
the plaintiff’s expert, Dr. Smith, from testifying at trial but only
imposes certain conditions on his doing so, including that he lay a
detailed foundation for his opinions.
The challenged order of Susan H. Johnson in Banks v. Diaz (Case No.
A-18-773248-C, Dept. No. XXII, District Court of Clark County,
Nevada) dated December 4, 2019 had allowed Smith to testify about
Banks past loss of earnings, but not to speculate about future wage
loss or the value of housekeeping and home management services with
having a factual basis. Smith was also precluded from testifying
about Banks’ alleged loss of value of life without having a basis
other than an interview from Smith’s staff and speculation that
Banks had lost 20 to 40 percent of his ability to lead a normal
life.
April 10, 2020
Greenberg v. Bd. of Supervisors, 2020 U.S. Dist. LEXIS 60725
(E.D. LA 2019). This was a ruling excluding testimony by economic
expert Stan V. Smith based upon his second report in this case.
Defense economic experts Ed Comeaux and Charles Theriot had
detected a more than $500,000 mistake in Smith’s calculations for
one of two scenarios in his first report. As a result, Smith was
limited to testifying about only one of his two scenarios in that
report. Smith’s second report introduced two different scenarios,
but was rejected based on being filed past the deadline for reports.
April 29, 2020
Michon v. Campbell, 2019 U.S. Dist. LEXIS 230156 (N.D. IL
2019). The hedonic damages testimony of Dr. Stan V. Smith was
excluded by Federal District Judge Harry D. Leinweber. Michon had
asked the Court to adopt the "middle ground" approach taken in
Richman v. Burgeson, 2008 U.S. Dist. LEXIS 48349 (N.D. Ill. June 24,
2008) of allowing Smith to testify about the general nature of
hedonic damages without offering quantification. Judge Leinweber
declined to do so and said:
As many, if not most, courts in this District and
elsewhere have reasoned, Dr. Smith's methodology for ascertaining
hedonic damages is not scientifically reliable. This Court agrees
with that point and is not inclined to allow the testimony of
hedonic damages generally when the underlying methodology is
unsound. Moreover, such testimony will serve only to confuse the
jury. The Court thus adopts the view held by the majority
of courts in this District and finds that Dr. Smith's
proffered testimony on hedonic damages fails to satisfy Rule 702
and Daubert. Accordingly, Defendants' Motion to Exclude Expert
Testimony (Dkt. No. 125) is granted.
May 22, 2020
Lewis v. Lead Indus. Ass’n, 2020 IL 124107 (IL
5-21-2020). This decision was regarding a narrow collateral
source issue. Plaintiffs in a class action sought to recover
the costs of blood lead screening, which their children underwent as
required by the Lead Poisoning Prevention Act of the state of
Illinois. The children did not suffer an injury and parents of
the children were not charged for the costs of blood lead screening,
but the need for blood lead screening was created by alleged
negligence of the defendants. Plaintiffs argument was that payment
for the screening was from a collateral source and therefore they
should receive the reasonable value of the screening costs even
though those costs were paid by a third party. The Illinois Supreme
Court held that the absence of a physical injury precludes a tort
action that alleges only an economic injury and no physical injury
or property damage. The trial court had ruled that the absence of a
physical injury precluded the tort action. The Illinois Court
of Appeals had reversed the trial court. The Illinois Supreme Court
was reversing the decision of the Illinois Court of Appeals and
affirming the trial court decision.
June 29, 2020
Anderson v. Portercare Adentist Heath Sys., 2020 Colo Dist.
LEXIS 231 (CO Dist. 2020). This decision of Federal District Judge
Elizabeth Beebe Volz granted a defense motion to exclude the
"valueof life/loss of enjoyment of life" (hedonic damages) opinions
of economic expert M. Brian McDonald. The decsion relied heavily on
Scharrel v. Wal-Mart Stores, 949 P2d 89 (CO App. 1997), Smith v.
Jenkins, 732 F3d 51 (1st Cir 2013), and Flowers v. Lea Power
Partners, 2012 WL 1795081 (D. NM 2012). McDonald's testimony would
have been that a "statistical life" in the United States is worth
between $5.3 and $13.4 million, with $9.6 million as a "central
tendency." McDonald offered opinions about lost earning capacity,
household services and cost of a life care plan, which had not been
challenged.
June 29, 2020
Anderson v. Portercare Adentist Heath Sys., 2020 Colo Dist.
LEXIS 231 (CO Dist. 2020). This decision of Federal District Judge
Elizabeth Beebe Volz granted a defense motion to exclude the
"valueof life/loss of enjoyment of life" (hedonic damages) opinions
of economic expert M. Brian McDonald. The decsion relied heavily on
Scharrel v. Wal-Mart Stores, 949 P2d 89 (CO App. 1997), Smith v.
Jenkins, 732 F3d 51 (1st Cir 2013), and Flowers v. Lea Power
Partners, 2012 WL 1795081 (D. NM 2012). McDonald's testimony would
have been that a "statistical life" in the United States is worth
between $5.3 and $13.4 million, with $9.6 million as a "central
tendency." McDonald offered opinions about lost earning capacity,
household services and cost of a life care plan, which had not been
challenged.
August 3, 2020
Smith v. Chrysler Group, 2017 U.S. Dist. LEXIS 232222 (E.D.
TX 2017).This decision of Federal Magistrate Judge Keith F. Giblin
excluded the "per diem" economic testimony of Dr. Gary D. Kronrad
regarding mental anquis and loss of companionship and society and
Kronrad's testimony about household services because Kronrand's
testimony about household services made no effort to ascertain the
actual service contributions of the decedent or the decedent's
health conditions prior to his death.
August 4, 2020
Stillman v. Wal-Mart Stores, 2020 U.S. Dist. LEXIS 136205
(W.D. MO 2020). This decision granted a defense motion to preclude
the plaintiff from presenting evidence of the amount billed by
third-party providers following bumping his head on an overhead door
in a Wal-mart Garden Center. Federal Judge Greg Kays said:
Even if evidence of the amount billed was not precluded
by § 490.715, the Court would reach the same result under a
different analysis. Pursuant to Federal Rule of Evidence 403, a
court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of confusing the issues or
misleading the jury. Evidence of the amount Plaintiff was billed
may be relevant to the actual cost of his medical treatment—the
amount billed is usually at least loosely related to the actual
cost of medical care received. But the probative value of this
evidence here is substantially outweighed by the danger of
confusing the issue or misleading the jury about what the actual
cost of the care received was. When a hospital issues a $200,000
bill for medical care and the bill is completely satisfied by a
$70,000 payment, the actual cost of the care received is $70,000.
Any evidence or argument to the contrary is confusing and
misleading.
August 12, 2020
Martinez v. Cont'l Tire the Ams., 2020 U.S. Dist. LEXIS
147720 (D. NM 2020). This memorandum of U.S. District Judge Kea W.
Riggs limited the hedonic damages testimony of Dr. M. Brian McDonald
as follows:
Dr. McDonald may testify about the definition of hedonic
damages and the components of life that may be considered in
considering hedonic damages but may not quantify those damages or
provide a range of values attributable to a statistical life, or
"benchmarks."
McDonald was permitted to testify about lost earnings and lost
household services of the plaintiff.
Murphy v. Sandoval Cty., 2019 U.S. Dist. LEXIS 229986 (D. NM
2019). This memorandum decision of U.S. District Judge Scott W.
Skavdahl limited the hedonic damages testimony of Dr. M. Brian
McDonald as follows:
[T]his Court will grant County Defendants' Motion to the
extent that while Dr. McDonald may discuss the concept of and
factors to be considered in determining hedonic damages, he shall
not attempt to place any dollar figure for or quantify hedonic
damages and will limit any opinion testimony accordingly.
Dr. McDonald was permitted to testify about lost earnings without
limitation.
Griego v. Douglas, 2018 U.S. Dist. LEXIS 26933; 2018 WL
1010277 (D. NM 2018). This memorandum opinion of United States
Magistrate Judge Karen B. Molzen limited the hedonic damages
testimony of Dr. M. Brian McDonald, as follows:
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.
McDonald was permitted to testify about lost earnings and lost
household services of the plaintiff.
August 13, 2020
Millward v. Bd. of Cty. Comm'rs of Teton, 2018 U.S. Dist.
LEXIS 23107 (D. WY 2018). Federal District Judge Scott W. Skavdall
limited the hedonic damages testimony of Dr. Allan Parkman as
follows:
[T]he Court finds that Parkman is qualified to offer
expert testimony as to the concept of hedonic damages, to the
extent it relates to any viable damage claim under 42 U.S.C. §
1983. He may not however offer any monetary value, specific or
otherwise of Mr. Millward's hedonic damages or express any opinion
testimony regarding a numeric formula such as "benchmark figure,"
guideline," or "range of values" to be used in calculating such
damages. See Fancher v. Barrientos, 2015 U.S. Dist. LEXIS 179990,
2015 WL 11142939 (July 1, 2015) (citing BNSFRy. Co. v. LaFarge
Southwest, Inc., supra.)
September 17, 2020
Rochkind v. Stevenson, 2020 Md. LEXIS 414 (MD 2020).
This decision was used by a 4 to 3 majority to adopt Daubert v.
Merrell Dow Pharmaceutals, 509 U.S. 579, 113 S. Ct. 2786 (1993), and
progeny, as the standard for admission of expert testimony,
replacing the combination of Reed-Frye and Maryland Rule 5-702. The
immediate decision was to reverse the Maryland Court of Special
Appeals and remand the decision to the trial court for retrial for
the sixth time, in this instance on the basis of testimony of
Cecelia Hall-Carrington that lead paint in Rochkind's rental
property was a significant contributing factor in Stevenson's
neurological problems, including ADHD. The decision went further
than Daubert by increasing the four tests of Daubert to ten tests,
including:
(1) whether a theory or technique can be (and has
been) tested;
(2) whether a theory or technique has been
subjected to peer review and publication;
(3) whether a particular scientific technique has
a known or potential rate of error;
(4) the existence and maintenance of standards
and controls;
(5) whether a theory is generally accepted;
(6) whether experts are proposing to testify
about matters growing naturally and directly of research they have
conducted independent of the litigation, or whether they have
developed their opinions expressly for purposes of testifying;
(7) whether the expert has unjustly extrapolated
from an accepted premise to an unfounded conclusion;
(8) whether the expert has adequately
accounted for obvious alternative explanations;
(9) whether the expert is being as careful as he
[or she] would be in his [or her] regular work outside his [or her]
paid litigation consulting; and
(10) whether the field or expertise claimed by
the expert is known to reach reliable results for the type of
opinion the expert would give.
The first trial in this litigation in January 2014 included an eight
day Reed-Frye hearing that determined that the Gamboa-Gibson
work-life expectancy tables were not generally accepted by forenic
economists and that Dr. Michael Conte could not testify using those
tables. During this hearing, economic experts Michael Brookshire,
Gary Skoog, Chris Pflaum, and Frank Slesnick testified forthe
defense. Economic experts Michael Conte and David Gibson testified
for the plaintiff.
Doe v. Colgate Univ., 2020 U.S. Dist. LEXIS 75989 (N.D. N.Y.
2020). In this case, a Colgate male student was accused of raping a
female student and sued for damages based on the violation of his
right to defend himself. Stan Smith calculated hedonic damages for
the accused male. Federal Judge Frederick J. Scullin, Jr., cited a
number of other decisions excluding hedonic damages calculations and
excluded Smith's proposed hedonic damages testimony.
September 22, 2020
Slater v. Jelinek, 2008 U.S. Dist. LEXIS 136270 (D. NE 2008).
By agreement of the parties in this case, loss of guidance services,
loss of enjoyment of life and loss of society and relationship
calculations of Dr. Stan V. Smith were excluded by senior judge Lyle
E. Strom.
September 23, 2020
Santillan v. Schaafsma, 2006 U.S. Dist. LEXIS 108851 (C.D. IL
2006). This decision extensively cited Ayers v. Robinson, 887 F.
Supp, 1049 (1995) in excluding the hedonic damages testimony of Dr.
Stan V. Smith. This decision also provides a good review of
decisions for and against the admission of hedonic damages testimony
as of 2006.
Hart v. Corrections Corporation of America, 2014 U.S. Dist.
LEXIS 197426; 2014 WL 12670796 (D. NM 2014). Federal District Court
Judge M. Christina Armijo granted defense motions to limit the
testimony of Dr. M. Brian McDonald in two ways but permitted
McDonald to explain the general concept of hedonic damages. McDonald
was precluded from offering his opinion that the reasonable range
for the value of life was from $5.0 million to $6.0 million.
McDonald was also precluded from offering rounded present values for
a life care plan.
December 3, 2020
Budagov v. Char, 2020 N.J. Super. Unpub. LEXIS 1869 (N.J.
Super. 2020). Judge De La Cruz denied a defense motion to
exclude the testimony of plaintiff economic experts Kristin Kucsma
and Kenneth Betz regarding loss of household services, but granted a
defense motion to exclude their testimony regarding loss of
companionship services of a man with double amputation of his legs.
Kucsma and Betz had provided a total value for the household
services of the injured plaintiff and estimated that 80% to 100% of
his ability to provide household services had been lost. The
decision did not discuss how the total value was calculated, but
indicated that the defense had also provided an alternative expert
report forthe loss of household services and would also be permitted
to testify about that expert’s opinions. The defense expert was not
named. With respect to the claim for loss of the plaintiff’s
companionship, Judge De La Cruz said:
The economists’ opinion on these claims for loss of
companionship services are all based on activities that are
non-economic in nature. These non-economic claims are within the
purview of the jury's discreet evaluation, as they involve
evaluation and credibility findings regarding the loss of
intimacy, companionship, marital relations, and acts of love that
are unique and individual to this couple. . .These non-economic
claims are based on plaintiffs' relationship and are not items
that are within the purview of an economist to place a price tag
on.
December 12, 2020
Synder v. Bank of Am., N.A., 2020 U.S. Dist. LEXIS 206437
(N.D. CA 2020). This case involved a plaintiff not obtaining a
National Mortgage Settlement (NMS)-Compliant loan modification
order. Dr. Stan V. Smith was excluded from testifying based on
incorrect assumptions and lack of specialized knowledge about the
NMS. Smith projected that the plaintiff incurred $373,235 in lost
time, and between $582,563 and $1,165,124 in loss of enjoyment of
life (hedonic damages). The court also cited multiple cases in which
Smith’s testimony has been rejected.
Wood v. Paccar, Inc., 2020 U.S. Dist. LEXIS 136846 (N.D. IA
2020). The defense moved to exclude Dr. Stan V. Smith’s testimony
regarding loss of enjoyment of life (hedonic damages), household
services, and loss of wages and benefits. U.S. Magistrate Judge Mark
A. Roberts excluded Smith regarding hedonic damages but denied
excluding Smith’s testimony regarding household services and loss of
wages and benefits.
December 15, 2020
Martinez v. Cont’l Tire of the Ams., LLC, 2020 U.S. Dist.
LEXIS (D. NM 2020). Federal Judge Kea W. Riggs limited
the hedonic damages testimony of Dr. Brian McDonald, as follows:
The majority of cases in this district limit expert
testimony that attempts to place a dollar value on hedonic damages
as unreliable, irrelevant, or unhelpful to the jury. ("Generally,
New Mexico United States District Judges have excluded or limited
expert testimony on hedonic damages.") . . . ("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 is inadmissible and does not meet
the relevance and reliability factors set forth in Daubert and its
progeny.") The Court agrees with these cases and concludes that
attempts by an expert to quantify the hedonic value of life is
unreliable, irrelevant, or does not assist the jury.
The Court, however, permitted McDonald to explain the concept and
factors involved in determining hedonic damages, but without
offering any quantitative values, including ranges and benchmarks.
Judge Riggs also denied a defense motion to exclude McDonald’s
household services testimony.
December 18, 2020
Stillman v. Wal-Mart Stores, 2020 U.S. Dist. Lexis 136205
(W.D. MO 7-31-2020). This decision held that the plaintiff could not
introduce amounts originally billed by third party providers after a
personal injury, but must claim only amounts paid in satisfaction of
those bills.
February 15, 2021
Cheromiah v. United States, 1999 U.S. Dist. LEXIS 25363 (D.
NM 1999). William Patterson , III, was permitted to provide per diem
hedonic damages testimony by U.S. District Judge Martha Vazquez, who
said:
Plaintiffs retained William Patterson, III, an
economist, to testify regarding hedonic damages. Mr. Patterson
will not testify as to the value of Michael Cheromiah's life.
Rather, he will provide a multiplier that takes into account Mr.
Cheromiah's life expectancy, the growth rate per year, and the
present value of whatever yearly figure the Court chooses (should
the Court find that Plaintiffs have prevailed on liability). Mr.
Patterson starts with a figure of $10,000 per year because he
believes that this number provides a "good multiple." . . . He
then figures in the decedent's life expectancy and the growth rate
and then discounts back to present value. . .The Court can then
apply its own finding as to the value of Mr. Cheromiah's life to
the figure provided by Mr. Patterson rather than having to figure
out the present value and life expectancy calculations itself. .
.
Mr. Patterson's proposed testimony, then, is very
different than the hedonic damages testimony that has not been
accepted by courts including this one. See, e.g., Smith v.
Ingersoll-Rand Co., 94cv1083 MV/DJS, Memorandum Opinion and Order
filed Nov. 17, 1997; McGuire v. City of Santa Fe 954 F. Supp. 230,
231 (D. N.M. 1996); Mercado v. Ahmed, 974 F.2d 863 (7th Cir.
1992). In each of these cases, the expert intended to rely on
studies and other government analyses to put a dollar figure on
the value of the plaintiff's/decedent's enjoyment of life. See
Smith, slip op. at 2 (expert would "offer the jury a valuation of
[plaintiffs'] loss of enjoyment of life"); McGuire, 954 F. Supp.
at 232 (one expert "arrived at a percentage value of Plaintiff's
lost enjoyment of life," and the other expert "address[ed] what
the monetary value of the lost enjoyment is worth."). In each of
these cases, the courts rejected the testimony because they found
that the studies quantifying the value of lost enjoyment of life
were widely disparate and not generally accepted. See, e.g.,
McGuire, 954 F. Supp. at 232-33 (applying Daubert factors).
Raigosa v. Roadtex Transp. Corp., 2005 U.S. Dist. 50001 (D.
NM 2005). Dr. Everett Dillman was not permitted to provide per diem
hedonic damages testimony by U.S. Magistrate Judge Richard L.
Puglisi, who said:
Dr. Dillman's report discusses "benchmark" values,
estimating "hypothetical per diems of $10-$100 per day" suffered
by Dorothy Raigosa for lost value of life, and by Plaintiff for
loss of consortium. Defendants contend that Dr. Dillman's opinion
as to these two areas of damages should be excluded because it is
speculative, unreliable and lacking in adequate basis. In support
of their position, Defendants proffer the affidavit of George F.
Rhodes, Jr., PhD, an economist and Professor of Economics Emeritus
at Colorado State University. In his affidavit, Dr. Rhodes states,
albeit in greater detail, that there is no reliable or valid
scientific procedure or test which can assign a numeric value to a
human life, that there is no means by which an attempt to assign
such a value can be tested, that no objective criteria exist by
which to value human life, that economists have no training which
would permit them to place a dollar value on the existence or
enjoyment of life, and that none of the procedures used by
economist to place a dollar value on life is based on a properly
formulated scientific hypothesis and have not been validated or
generally accepted.
New Mexico permits the recovery of hedonic damages for
wrongful death as well as damages for loss of consortium. Romero
v. Byers, 1994-NMSC-031, 117 N.M. 422, 428, 872 P.2d 840, 846
(1994) (wrongful death); UJI 13-1810A. (loss of consortium).
However, expert testimony attempting to quantify such damages
invades the fact finder's domain. Couch v. Astec Industries, Inc.,
2002- NMCA 084, 132 N.M. 631, 636 53 P.3d 398, 403 (Ct. App.
2002). I am persuaded by the weight of authority that rejects
expert testimony placing a dollar figure on hedonic damages,
finding such testimony unreliable, untestable, failing to meet the
requirement of general acceptibility and/or invading the province
of the fact finder.
February 26, 2021
Diwara v. United States, 2020 U.S. Dist. LEXIS 40131 (E.D. PA
2020). This decision granted a motion to exclude the testimony of
Dr. Bruce Grossinger, a neurologist, regarding the employability of
Jennifer Diawara following her injuries in a motor vehicle accident
caused by a U.S. Postal vehicle. The court said:
As a neurologist who treated Mrs. Diawara, Dr. [Bruce]
Grossinger is certainly qualified to provide expert testimony
related to her neurological treatment, neurological injuries, and
any ways in which those neurological injuries cause her various
limitations. However, even in light of the Third Circuit Court of
Appeals' liberal interpretation of the specialized knowledge
requirement, neither Dr. Grossinger's experience nor his opinion
in this case demonstrate that he is qualified to offer an opinion
on how those neurological symptoms or limitations impact her
employability. Those opinions are of the sort that should be left
to the judgment of a vocational expert.
March 23, 2021
Kuznetsov v. Long, 2020 U.S. Dist. LEXIS 251687 (D. NM 2020).
U.S. Magistrate Judge Gregory T. Fouratt limited the hedonic damages
testimony of M. Brian McDonald, as follows:
The Court will permit Dr. McDonald to testify about (a)
the current cost of Plaintiff's future medical care and (b) a
general explanation of the components of a person's life the jury
may consider in deciding whether to award hedonic damages. The
Court will not permit Dr. McDonald to testify as to any specific
values of any kind, whether by way of suggestion, example, or
otherwise.
March 27, 2021
Fowlkes v. Choudhry, 2021 Md. LEXIS 120 (MD 2021). This
decision affirms the Maryland Special Court of Appeals decision in
Fowlkes v. Choudhry, 243 Md. App. 75 (2019), which reversed a
$500,000 award in a wrongful death action for household services a
mother had been awarded by the trial court for household services
the daughter, who lived with her month, would have provided to her
mother. The decision includes a review of cases in other states
involving parental suits in wrongful death cases for the household
services of a child. It does not preclude all decisions involving
parental loss of household services by an adult child but indicates
the type of proof needed to successfully make such a claim.
April 19, 2021
Cardwell v. City of San Francisco, 2021 U.S. Dist. LEXIS
72358 (CA 2021). Martin Cunniff, an attorney, was held not to be
qualified to testify about the lost earning capacity, lost
investment returns on retirement accounts, and hedonic damages, but
was permitted to testify about the present value of medical
treatments needed by the plaintiff. The Court held that Cunniff had
no particular credential that would make him qualified on these
matters, but included an extended discussion regarding why Cunniff’s
hedonic damages testimony was not admissible. Magistrate Judge
Donna M. Ryu described Cunniff’s hedonic damages testimony as
that:
Cunniff opines that Caldwell suffered hedonic damages
because of his wrongful imprisonment in the amount of $749,400.
Cunniff Expert Report at 12. Cunniff reaches this figure by
examining the cost of "pay-to-stay" jails, which allow
incarcerated people who can afford it to pay for a safer, cleaner
facility. Id. Prices for these paid options vary by city, usually
in the range of $75-$251 for California jails, but Cunniff settles
on a rate of $100 per day as a "useful proxy for how much a
consumer would pay to still 'enjoy life' while incarcerated." Id.
He states that it is a conservative price because presumably
people would be willing to pay more to avoid jail altogether. Id.
He calls this kind of calculation a "real world" market
experiment. Id. Cunniff concludes that Caldwell's hedonic damages
are $100 per day multiplied by the 7,494 days he was wrongfully
imprisoned, for a total of $749,400.
She cited a number of legal decisions excluding expert testimony on
the issue of hedonic damages and indicated that courts have been
particularly skeptical of “willingness-to-pay” methods for
calculating hedonic damages.
Estate of Smart v. Chaffee, 2020 U.S. Dist. LEXIS 241444 (D.
KS 2020). This case involved the fatal shooting of Marquez Smart by
police officers in Wichita, Kansas, and was brought under Section §
1983 of the Federal Civil Rights Act. At issue was whether hedonic
damages could be claimed in wrongful death claim under Section §
1983 even though not authorized under the Kansas Wrongful Death Act.
The Court cited a number of cases hold that hedonic damages were
recoverable under Section § 1983, even though not authorized under
the Kansas Wrongful Death Act. Expert testimony about hedonic
damages was not addressed in this decision.
Collado v. State of New York, 396 F. Supp. 265 (S.D. NY
2019). This case involved the fatal shooting of John Collado
by an undercover police officer. A jury had awarded $2.5 million for
Collado’s wrongful death act. At issue was whether hedonic damages
can be recovered in a Section § 1983 action under the Federal Civil
Rights Act even though hedonic damages are not authorized under the
New York Wrongful Death Act. Federal Circuit Judge Denny Chin,
sitting by designation, held that hedonic damages could be awarded
under Section § 1983, and affirmed the jury verdict of $2.5 million.
Judge Chin also said:
[I]t is difficult if not impossible to put a monetary
value on the loss of a life or the loss of enjoyment of life. See,
e.g., Smith v. Ingersoll-Rand Co., 214 F.3d 1235,1244-46 (10th
Cir. 2000) (affirming district court's decision to allow expert to
testify as to "the meaning of hedonic damages" but not to
"quantify hedonic damages")
April 20, 2021
Kowalewski v. BNSF Ry. Co., 2019 Minn. App. Unpub. LEXIS 339;
2019 WL 175924 (MN App. 4-22-2019. As part of responding to an
appeal by BNSF of a trial court award to Kowalewski on various
issues, the Court said:
BNSF . . . argues that Kowalewski's entire award should
be taxed as earned income and that amounts be withheld to satisfy
taxes required by the Railroad Retirement Act (RRTA). FELA damages
for lost wages qualify as taxable compensation under the RRTA. See
BNSF Ry. v. Loos, No. 17-1042, 139 S. Ct. 893, 203 L. Ed. 2d 160,
2019 WL 1005830, at *8 (U.S. Mar. 4, 2019). In this case, however,
the jury awarded Kowalewski $15,343,753, but none of that amount
was designated as wage loss on the special-verdict form. As such,
none of the award need be withheld.
Little v. BNSF Ry. Co., 2020 U.S. Dist. LEXIS 222151 (W.D. WI
2020).
The court concludes that the general damages award is
subject to payroll tax under the RRTA.But BNSF isn't pushing for
an offset for taxes on the entire $726,000 damages award. BNSF
proposes to calculate Little's tax liability using the testimony
of Little's economist, Jeffrey Opp. Opp testified, consistent with
his expert report, that Little's lost wages totaled $519,004. See
Dkt. 122 (trial transcript), at 116 (estimated past lost wages
totaling $227,997) and id. at 121 (estimated future lost wages
totaling $291,007); see also Dkt. 18 (Opp report). BNSF thus
calculates Little's payroll tax liability, based on 2019 rates, to
be $23,471.25. Little doesn't dispute BNSF's calculation of the
payroll taxes on the damage award.
But the parties have overlooked one aspect of the jury award. The
jury reduced the award by $150,000 based on Little's failure to
"tak[e] reasonable steps to secure alternative employment." Dkt.
100 (verdict). This amount for failure to mitigate affects only
the award for lost wages. And a reduction of $150,000 affects only
the calculation of the Tier 1 Medicare tax, as the other payroll
taxes are subject to limits that are reached regardless of the
reduction. By the court's calculation, the reduction in Tier I
Medicate tax would be $3,525. Thus, the total offset for payroll
taxes to which BNSF is entitled is $19,946.25.
Burlington Northern Santa Fe Ry. v. Loos, 139 S. Ct. 893
(U.S. 2019). In a seven to two decision, the Unites States Supreme
Court reversed both the trial court and 8th Circuit Court and held
that FELA awards for “time lost” were taxable under the Railroad
Retirement Tax Act (RTTA). The lower courts had held that awards
were not taxable under the RTTA. This was in spite of the fact that
such awards are not taxed under the federal personal income tax or
state income taxes. The FELA (Federal Employers Liability Act)
applies exclusively to railroad workers who have been injured or
killed and are suing employing railroads for compensation. Railroad
Retirement taxes are payroll taxes paid by both railroad employees
and railroad employers to provide disability and retirement benefits
for railroad workers, including Tier I, Tier II, and Medicare taxes,
as administered by the Railroad Retirement Board. The decision
indicated that railroads were required to withhold employee payroll
taxes and to pay the employer taxes on the portions of awards that
were for lost earnings. The decision did not address how payment of
those taxes would be considered in determining future disability and
retirement benefits of railroad workers.
April 21, 2021
Munoz v. Norfolk Southern Ry., 2019 IL App (1st) 171009-B;
Ill. App. LEXIS 487 (IL App 2019). The Court reversed its own 2018
decision in light of the U.S. Supreme Court decision in BNSF v.
Loos, 139 S. Ct. 893 (2019). The Court had previously ruled in 2018
that payroll taxes should not be subtracted from personal injury
awards. In light of BNSF v. Loos, the Court remanded the case to the
trial court for a determination of the amount of Tier I and Tier II
taxes that should be withheld from the award. The decision provided
a detailed discussion of decisions leading up to the U.S. Supreme
Court decision in BNSF v. Loos. (Revised listing)
Kowalewski v. BNSF Ry. Co., 2019 Minn. App. Unpub. LEXIS 339; 2019
WL 175924 (MN App. 4-22-2019. As part of responding to an appeal by
BNSF of a trial court award to Kowalewski on various issues, the
Court said:
BNSF . . . argues that Kowalewski's entire award should
be taxed as earned income and that amounts be withheld to satisfy
taxes required by the Railroad Retirement Act (RRTA). FELA damages
for lost wages qualify as taxable compensation under the RRTA. See
BNSF Ry. v. Loos, No. 17-1042, 139 S. Ct. 893, 203 L. Ed. 2d 160,
2019 WL 1005830, at *8 (U.S. Mar. 4, 2019). In this case, however,
the jury awarded Kowalewski $15,343,753, but none of that amount
was designated as wage loss on the special-verdict form. As such,
none of the award need be withheld.
Little v. BNSF Ry. Co., 2020 U.S. Dist. LEXIS 222151 (W.D. WI
2020). This decision was reached in March of 2020, one year after
the United States Supreme Court decision in BNSF v. Loos. It
provides an innovative suggestion for dealing with what the Court
understood to be the general principle that if an award includes
damages for lost earnings and no apportionment is made for other
damage elements including loss of fringe benefits, loss of household
services, and pain and suffering, the entire award will be deemed as
for lost earnings and subject to payroll tax reductions. BNSF
proposed the following solution, which the Court implemented along
with its own modification, as follows:
The court concludes that the general damages award is
subject to payroll tax under the RRTA. But BNSF isn't pushing for
an offset for taxes on the entire $726,000 damages award. BNSF
proposes to calculate Little's tax liability using the testimony
of Little's economist, Jeffrey Opp. Opp testified, consistent with
his expert report, that Little's lost wages totaled $519,004. See
Dkt. 122 (trial transcript), at 116 (estimated past lost wages
totaling $227,997) and id. at 121 (estimated future lost wages
totaling $291,007); see also Dkt. 18 (Opp report). BNSF thus
calculates Little's payroll tax liability, based on 2019 rates, to
be $23,471.25. Little doesn't dispute BNSF's calculation of the
payroll taxes on the damage award.
But the parties have overlooked one aspect of the jury award. The
jury reduced the award by $150,000 based on Little's failure to
"tak[e] reasonable steps to secure alternative employment." Dkt.
100 (verdict). This amount for failure to mitigate affects only
the award for lost wages. And a reduction of $150,000 affects only
the calculation of the Tier 1 Medicare tax, as the other payroll
taxes are subject to limits that are reached regardless of the
reduction. By the court's calculation, the reduction in Tier I
Medicare tax would be $3,525. Thus, the total offset for payroll
taxes to which BNSF is entitled is $19,946.25.
May 1, 2021
Herrera v. Berkley Reg'l Ins. Co., 2021 U.S. Dist. LEXIS 266;
2021 WL 24548 (D. NM 2021).In this decision, the defendant had moved
to exclude the testimony of Dr. Brian McDonald, with a focus on Dr.
McDonald’s calculation of Mr. Herrera’s lost earning capacity as
$484,779 and loss of household services at $387,675, but also added
“and he will testify about Mr. Herrera’s value of life damages.”
Judge Carmen E. Garza described Dr. McDonald’s calculations for lost
earning capacity and lost household services, but there was no
discussion of Dr. McDonald’s testimony about value of life damages.
This suggests that he defendant did not attempt to prevent Dr.
McDonald’s testimony about value of life damages. Such testimony is
generally permitted in New Mexico as long as no dollar values are
provided in the testimony.
May 2, 2021
Haynes v. Union Pac. R.R. Co., 395 S.W.3d 192 (TX App. 2020).
The decision was devoted primarily to other issues. The argument
that Union Pacific was entitled to an offset for employee retirement
taxes it withheld and paid from the award to Haynes was not opposed
by Haynes. The court said:
UP asserts that it is entitled to an offset for its
payment of railroad retirement taxes. In his reply brief, Haynes
recognized that, in the interim between the trial court's ruling
on this issue and this appeal, the U.S. Supreme Court has settled
this issue and ruled that past wage loss awards are taxable. See
BNSF Ry. Co. v. Loos, 139 S. Ct. 893, 899-900, 203 L. Ed. 2d 160
(2019). . . . We sustain UP's request that we modify the judgment
to reduce the lost-wages award by $14,648.40 as an offset to
account for the taxes paid.
May 4, 2021
Knaack v. Knight Transportation Inc., 2019 U.S. Dist. LEXIS
75480 (D. NV 2019). In this case, the defense had moved to exclude
Dr. Stan V. Smith’s testimony about loss of family advice, counsel,
guidance, instruction and training services and loss of
accompaniment services. Federal Judge Larry R. Hicks denied the
defense motion, saying that:
[Defendants also argue that hedonic damages (loss of
relationship) should be excluded and the loss of accompaniment
damages is really another way to obtain hedonic damages. In Dr.
Smith's testimony, he articulates the difference between hedonic
and other household services damages and why he finds them
different. However, the record shows that plaintiffs do not intend
to argue for hedonic damages, nor did Dr. Smith include this
opinion in his report.
Plaintiffs argue that Dr. Smith and Mr. Weiner (defendants'
expert) used a similar methodology for calculating loss of
household/ family advice, counsel, guidance, instruction and
training services and loss of accompaniment services, and came to
similar conclusions. Finally, defendants also argue that hedonic
damages (loss of relationship) should be excluded and the loss of
accompaniment damages is really another way to obtain hedonic
damages. In Dr. Smith's testimony, he articulates the difference
between hedonic and other household services damages and why he
finds them different. However, the record shows that plaintiffs do
not intend to argue for hedonic damages, nor did Dr. Smith include
this opinion in his report.
Revised listing.
May 13, 2021
Bolden v. AMTRAK, 2005 U.S. Dist. LEXIS 52805 (E.D. LA
2005). Federal Judge Kurt D. Engelhardt excluded the testimony
of economic expert Stan V. Smith regarding the following elements in
Dr. Smith’s report: (1) loss of enjoyment of life or hedonic
damages; (2) loss of household/family replacement services; and (3)
loss of relationship.
May 15, 2021
Lessert v. BNSF Ry. Co., 476 F. Supp. 3d 926; 2020 U.S.
Dist. LEXIS 139672; 2020 WL 4500218. This was a wrongful death
action under the FELA. The decision was reached after the U.S.
Supreme Court decision in BNSF v. Loos (2019) by U.S. District Judge
Jeffrey L. Viken. The decision involved challenge to the testimony
of Dr. Stan V. Smith’s calculations for loss of earning capacity,
much of which criticized Dr. Smith for hedonic damages calculations
in other cases, which Judge Liken indicated was irrelevant to the
case at hand. He did, however, comment on Thomas Ireland’s report
calling for the subtraction of Railroad Retirement payroll taxes for
purposes of determining after-tax lost earnings. BNSF v. Loos (2019)
was not mentioned in the decision, but Ireland’s report was written
before BNSF v. Loos. Ireland’s report had relied upon the 8th
Circuit decision in Loos v. BNSF (2017), which had held that
railroad retirement payroll taxes were not to be withheld from an
award.
Lessert v. BNSF Ry. Co., 476 F. Supp. 3d 926; 2020 U.S.
Dist. LEXIS 139672; 2020 WL 4500218. This was a wrongful death
action under the FELA. The defendant challenged the admissibility of
Dr. Stan V. Smith’s testimony based on hedonic damages
testimony in other cases. Judge Jeffrey Liken said:
The court begins by addressing defendant's reliance on a
number of other federal cases excluding Dr. Smith as an expert.
Dr. Smith often opines on "hedonic damages" in litigation, which
are damages that "attempt to compensate a victim for the loss of
the pleasure of being alive[.]" Families Advocate, LLC v. Sanford
Clinic N., No. 16-CV-114, 2019 U.S. Dist. LEXIS 56845, 2019 WL
1442162, at *1 (D.N.D. March 31, 2019). Quite a few federal courts
have refused to permit Dr. Smith to testify concerning his method
for calculating hedonic damages. Smith v. Jenkins, 732 F. 3d 51,
66 (1st Cir. 2013) (collecting cases). Here, however, plaintiff
expressly disclaims any claim for hedonic damages. (Docket 194 at
p. 23 n.15) ("[T]here is no claim for hedonic damages and no
economic evaluation of hedonic damages is proffered by Plaintiff
or Dr. Smith."). The court therefore does not view the authority
defendant cites as indicative of a uniform condemnation of Dr.
Smith's testimony in the federal courts, as its objections
insinuate.
May 23, 2021
Budagov v. Char, 2020 N.J. Super. Unpub. LEXIS 1869
(N.J. Super. 2020). The court granted a motion in limine to exclude
economic expert testimony about loss of companionship in a personal
injury case involving a life care plan for one of the plaintiffs.
The Court said:
The Court agrees with the defense that the opinions from
plaintiffs' economic experts [Kristin Kucsma, M.A. and Kenneth
Betz, M.B.A.] relating to loss of companionship services do not
relate to actual economic loss where plaintiff would have had to
hire someone to perform his prior household and family duties.
Instead, plaintiffs are attempting to quantify their own
impairment and loss of enjoyment of life with economic
evidence. It is not for an economist to quantify the value of a
loved one's companionship and that is what historically the jury
will be asked to decide, The evidence on this loss of
companionship issue "is so one-sided that one party must prevail
as a matter of law," leading to a grant of the requested relief. .
. . Given these reasons, defendants' motion to bar plaintiffs'
economic experts' opinion as to the claim for loss of
companionship services is hereby granted.
May 27, 2021
Balan v. Vestcor Fund Xxii, 2021 U.S. Dist. LEXIS 99532 (M.D.
FL 5-26-2021), Judge Maria Morales Howard excluded the hedonic
damage testimony of Dr. Stan V. Smith, saying:
Upon review of a sampling of the federal court cases on
Dr. Smith's List, the Court found none in which he provided
testimony at trial before a United States District Court. Further,
the Court's independent research revealed that Dr. Smith's
testimony regarding hedonic damages has been found inadmissible by
the vast majority of federal courts including some of the cases on
his List. These findings and the reasoning of the courts excluding
Dr. Smith's testimony on the value of hedonic damages further
support the Court's conclusion that Dr. Smith's testimony would
not be helpful to a jury. Moreover, the Court continues to be
convinced that to the extent Dr. Smith's testimony has any
probative value, it is outweighed by the risk that purported
expert testimony putting a specific value on the Plaintiff's
noneconomic damages will confuse and/or mislead the jury.
June 9, 2021
Santiago v. Fischer, 2020 U.S. Dist. LEXIS 255479 (E.D. NY
2020). Federal District Judge Margo K. Brodie excluded the hedonic
damages testimony of Dr. Stan V. Smith, saying:
Dr. Smith arrives at his initial value of life figure
[$4.6 million in 2016] through an analysis of studies from the
1980s of "consumer behavior and purchases of safety devices,"
"wage risk premiums to workers," and "cost-benefit analyses of
regulations." (Smith Report 4.) While the Court understands that
such studies are well-accepted and appropriate for use in a number
of contexts, such as by government agencies or other entities
conducting cost-benefit analyses, the Court finds, as other courts
have, that they are not helpful in assisting a factfinder in
evaluating the value of a unique human life.
Judge Brodie also cited many prior decisions excluding the hedonic
damages testimony of Smith.
Sandmann v. Ky. Transp. Cabinet Dep’t of Hwys. & Ky Claims
Comm’n, 2021 Ky. App. Unpub. LEXIS 202 ; 2021 WL 1328566 (KY
App. 2021). The Kentucky Court of Appeals affirmed the
decision of the Kentucky Claims Commission that there was
insufficient evidence to support Sandmann’s claim for lost future
wages. In the process, the Court agreed that:
Sandmann testified that even though he was somewhat
limited in how long he could walk, stand, drive, or sit, he still
returned to his previous employment as an IT programmer for FedEx.
He worked the same job, the same hours, and received the same
pay—with regular annual increases. Sandmann also admitted he did
not expect to retire early. Additionally, the Claims Commission
did not find [Sara] Ford's testimony persuasive. It took issue
with the lack of underlying support for Ford's opinion. She did
not identify any work Sandmann would be unable to do in the
future. She did not explain how she arrived at her figures, only
that she estimated his work life expectancy. And, she did not
refer to any medical opinions or records to document any of
Sandmann's limitations.
This was an instance in which an expert from Vocational Economics
Inc., projected future wage loss for a person who was earning the
same wages after his injury as before the injury and losses were
based entirely on assumed reduction in worklife expectancy.
June 11, 2021
Hauck v. Wabash Nat’l Corp., 2021 U.S. Dist LEXIS 108943 (D.
NM 2021). Federal District Judge Kenneth J. Gonzales excluded all
testimony of Dr. Stan V. Smith regarding noneconomic damages on the
basis of inappropriate behavior. Judge Gonzales said:
Ms. Hauck is prohibited from eliciting testimony from
Dr. Smith regarding her entitlement to non-economic damages,
including hedonic, loss of guidance, counselling, society,
relationship, support, and accompaniment damages. In pertinent
part, Dr. Smith's opinion assigning a dollar-amount to Ms.
Chambers' hedonic-damage award is unreliable pursuant to Daubert
and its progeny. Moreover, the Court concludes that Dr. Smith's
failure to disclose his proposed testimony regarding the "general
scope of hedonic damages" is incurable and prejudicial. Therefore,
Dr. Smith's opinions quantifying a hedonic-damage award and
generally explaining the concept are both properly excluded. For
these reasons, the Court grants Wabash's Motion to Exclude (Doc.
157).
June 12, 2021
Smith v. Providence Health & Servs.-Or., 361 Ore. 456 (OR
2017). This decision of the Oregon Supreme Court determined that
“loss of chance” is a cognizable injury in a medical malpractice
action in the state of Oregon, reversing the decision of the trial
court holding otherwise. As part of its analysis, the court said:
Loss of chance as a theory of recovery for negligence,
and in particular for medical malpractice, has gained traction in
the last half-century. At this point, courts in most states have
reached the issue, and more than half of the jurisdictions in the
United States that have considered the issue have embraced the
theory, at least to some extent. See Lauren Guest, David Schap,
and Thi Tran, The "Loss of Chance" Rule as a Special Category of
Damages in Medical Malpractice: A State-by-State Analysis, 21 J
Legal Econ 53, 58-60 (2015)(reviewing case law as of 2014 and
concluding that 41 states had addressed loss of chance, with 24
states having adopted some version of the theory).
June 13, 2021
Kaniu v. Dickerson, 2013 U.S. Dist. Lexis 187675 (M.D. PA
2013). This case involved the lost earnings of an owner of a closely
held business who was not paying himself a salary. The defense
argued that this implies that the Plaintiff had no income, and moved
to exclude the testimony of Dr. David Schap. The motion was denied.
Federal judge Richard P. Conaboy, who described Schap’s methodology
as follows:
David Schap, a Professor in the Department of Economics
at the College of the Holy Cross in Worcester, Massachusetts, has
been retained as an expert by Plaintiff to assess: (1) his
earnings loss in the time between the accident in question and the
date chosen for use as the threshold for calculating Plaintiff's
prospective earnings loss; and (2) the value of Plaintiff's
prospective earnings loss. Using various scholarly publications
and statistics from the Department of Health and Human Services,
the Department of Commerce, and the Social Security
Administration, Professor Schap determined that, as a 54
year old male, Plaintiff's pre-injury work life expectancy was
9.17 years. Because Plaintiff paid his truck driver employees at
an annualized rate of $48,100.00 per year, and because Plaintiff
is himself a professional truck driver who holds a commercial
driving licence (CDL), Professor Schap calculated Plaintiff's
prospective wage loss as $441,077.00 (9.17 x $48,100.00) and
calculated Plaintiff's "interim wage loss" in the 1.48 years
between his accident and the beginning of the prospective loss as
$67,629.00 (1.48 x $48,100.00). [Footnote omitted.]
Kouma v. Franzen and BNSF, 2019 Neb. Trial Order LEXIS 2036
(4/25/2019). This is an order issued by Nebraska District Court
Judge Jodi L. Nelson for the District of Lancaster County, Nebraska.
The order accepts a stipulation of the parties that granted a motion
by BNSF indicating that BNSF was entitled to an offset of $1,445.76
for Medicare payroll taxes and $2,390 in RRTA (Railroad Retirement
Tax Act) taxes of $2,390, both of which had to be paid based on the
lost earnings component of the award to Susan K. Franson resulting
from the death of her husband James P. Franson. BNSF was also
ordered to report that the decedent’s daily rate was $259.04 “for
purposes of crediting months of service.” Much of the background
underlying this order is not explained, but this must have been a
wrongful death award under the (FELA) Federal Employers Liability
Act and based upon the BNSF v. Loos (2019) decision of the United
States Supreme Court.
July 8, 2021
Laetz v. Hyundai Motor America, 2014 WL 12768503 (W.D. MI
2014). U.S. District Judge Janet F. Neff excluded non-economic
damages opinions of Dr. Stan V. Smith, plaintiff’s economic expert,
saying:
Smith, as an economist, may testify concerning
calculations of loss of income and the value of the decedent’s
services based on Plaintiff’s testimony, but Smith may not testify
regarding non-economic damages such as for the decedent’s loss of
loss of life’s enjoyment (hedonic damages) or the loss of society
and companionship of the decedent’s mother or daughter, which is a
question for the trier of fact.
July 26, 2021
Scheck v. Dalcorso, 2005 N.J. Super. Unpub. LEXIS 178; 2005
WL 3543177 (N.J. Super. 2005). The New Jersey Superior court
remanded the decision to the trial court on other grounds, but
required that the trial court judge conduct an N.J.R.E.104 hearing
regarding whether the hedonic damages testimony was admissible.
Smith had been excluded from testifying at the original trial.
The Superior Court provided lists of decisions favoring and opposing
hedonic damages testimony as part of its decision.
Bolden v. AMTRAK, 2005 U.S. Dist. LEXIS 52805 (E.D. LA
2005). In response to defendant’s motion in limine in a wrongful
death action, Dr. Stan V. Smith was excluded from testifying about
loss of enjoyment of life, loss of household services, and loss of
society and relationship. Smith’s excluded testimony for loss of
household services included ordinary household services, advice and
counsel services, and companionship services.
August 22, 2021
Sturgis v. R & L Carriers, 2021 U.S. Dist. LEXIS 152766
(N.D. IN 2021)
U.S. District Court Judge Damon R. Leichty excluded the testimony of
economic expert David Gibson in a wrongful death action. A number of
grounds for exclusion were discussed and Mr. Gibson’s methods were
described in some detail, including: (1) Differences in fundamental
methods between Mr. Gibson and his cited authorities; and (2)
Gibson’s efforts to claim that use of reliable data from the ACS and
ASEC surveys made Gibson’s methods for deriving conclusions he
reached from that data reliable; (3) Gibson’s incorrect claim that
his methods for calculating worklife expectancy were generally
accepted; and (4) the fact that Gibson could not cite any authority
other than his own publications for his methods for deriving
worklife expectancies from ACS and ASEC data. Judge Leichty said:
Mr. Gibson's calculations of an age-earnings profile and
worklife expectancy relied on broad, underlying survey data. He
says "[t]he large sample sizes of the ACS and ASEC surveys assure
low standard error rates" [ECF 108-1 at 12]. Just because the data
resists error doesn't mean the method by which they are input
proves reliable. Using a method unrooted in a decedent's
occupation or artificially inflating income contrary to an opinion
witness's own guiding authorities necessarily amplifies the risk
of error beyond a reliable and recognized economic method.
Brown v. Burlington Northern Santa Fe Ry., 765 F.3d 765 (7th
Cir. 2014). This decision was an exclusion of a medical doctor who
was deemed qualified to testify, but whose methods were in this case
were not deemed to be reliable. The Court said:
An expert must do more than just state that she is
applying a respected methodology; she must follow through with it.
In deciding whether an expert employed a reliable method, the
district court has discretion to consider "'[w]hether the expert
has adequately accounted for obvious alternative explanations. []
'"The expert need not exclude all alternatives with certainty,
however. See Gayton v. McCoy, 593 F.3d 610, 619 (7th Cir. 2010)
("[A]n expert need not testify with complete certainty about the
cause of an injury; rather he may testify that one factor could
have been a contributing factor to a given outcome.").
Mapp v. Karos, 1990 U.S. Dist. LEXIS 21306 (E.D. WI 1990).
Stanley V. Smith (later Stan V. Smith) was excluded from testifying
about dollar values for the life of decedent in a wrongful death
action as not relevant to damages allowed under the act. Smith’s
calculations for loss of society and relationship were also excluded
because:
[T]estimony as to an average relationship without being
specific to the decedent's relationship with her children will not
assist a jury. In Wisconsin, an award for the loss of society and
companionship must be based on the specifics of the relationship
in question, just as the loss of enjoyment of life must be
grounded in the age, health, habits, and pursuits of the injured
party [in a personal injury case].
August 22, 2021
Kasnia v. Brothers Aviation, 1989 U.S. Dist. LEXIS
19566 (E.D. WI 1989). This decision was reached under Michigan
state law regarding hedonic damages and loss of society and
relationship. Judge Robert W. Warren excluded testimony from Stanley
Smith saying: "The problem of translating the loss
resulting from an accident into money damages is always a complex
and often imprecise calculation." Willinger, 241 Pa. Super. 456,
469, 362 A.2d 280, 286-87 (1976). But the Michigan courts and
legislature have established guidelines to assist the jury in
calculating loss compensation, and hedonic damages or damages for
loss of life's pleasures is not one of the elements of recovery in a
wrongful death action under the loss of society and companionship.
Accordingly, the Court GRANTS defendants' motion in limine to
preclude the introduction of any and all evidence concerning hedonic
damages or damages for the loss of enjoyment of life in this trial
on the ground that this evidence is irrelevant. This order precludes
the plaintiff's expert Stanley V. Smith from testifying as to his
opinion concerning the value of the Kasnia's loss of society and
companionship claim.
September 13, 2021
Crouch v. Master Woodcraft Cabinetry, LLC, 2021 U.S.
Dist. LEXIS 172785 (E.D. AR 2021). Federal District Judge Kristine
G. Baker excluded the value of life testimony of Dr. Ralph Scott,
citing the decision in Hannibal v. TRW Vehicle Safety Sys., Inc., WL
377500 (E.D. AR 2018) by Federal Judge J. Leon Holmes excluding the
proposed value of life testimony of Dr. Rebecca Summary. The
Hannibal decision included discussion of the exclusion of Dr. Stan
V. Smith in Smith v. Jenkins, 732 F.3d 51 (D. MA 2013). Judge Baker
said:
This Court adopts the same reasoning and, therefore,
excludes Dr. Scott's proposed testimony that would present for the
jury's "consideration the value that government agencies place on
the statistical value of life," including the documents published
by the United States Department of Transportation and the
Environmental Protective Agency suggesting values of life (Dkt.
No. 16-1, at 3).
Hannibal v. TRW Vehicle Safety Sys., Inc.,2018 U.S. Dist.
LEXIS 134318 WL 377500 (E.D. AR 2018). The value of life
testimony of Dr. Rebecca Summary was excluded by Federal District
Judge J. Leon Holmes, saying:
No court applying Arkansas law has ruled as to whether expert
testimony may be admitted to assist the jury in determining loss of
life damages. An overwhelming majority of courts from other
jurisdictions, however, have concluded that the methodology adopted
by Dr. Summary does not meet the Daubert standards and may not be
admitted into evidence. Smith v. Jenkins, 732 F.3d 51, 66 (1st Cir.
2013); Kurncz v. Honda North America, Inc., 166 F.R.D. 386, 388-89
(W.D. Mich. 1996). . . ("Even assuming that Dr. [Stan V.] Smith's
formula is a reliable measure of the value of life, it was of no
assistance to the jury in calculating Smith's loss of enjoyment of
life.").
October 31, 2021
Shipley v. Hunter Warfield, Inc., 2021 U.S. Dist. LEXIS
208718 (M.D. FL 2021). Dr. Stan V. Smith calculated five types of
damages suffered by the plaintiff that resulted from an inadequate
investigation for the plaintiff: (1) the loss of credit expectancy;
(2) additional auto-loan interest; (3) the loss of mortgage
expectancy; (4) the value of time spent; and (5) the reduction in
value of life ("RVL"), also known as loss of enjoyment of life or
“hedonic” damages." The defendant moved to exclude Smith’s
opinion in it entirety, but focused on hedonic damages. The
plaintiff did not oppose exclusion of Smith’s hedonic damages
testimony and that testimony was excluded. Smith was also not
permitted to testify about the value of the plaintiff’s time trying
to remedy the alleged inadequate investigation, but was permitted to
testify about mortgage expectancy and interest rates available
without the impact of the inadequate investigation.
Pepin v. Wisconsin Central, Ltd., 2021 U.S. Dist. LEXIS
187909 (W.D. MI 2021). The Court that railroad retirement taxes
should not be excluded when calculating loss of earnings. The court
provided two rationales for not excluding Tier I and Tier II taxes:
(1) That such taxes will be levied on the portion of an award that
is for lost earnings under BNSF v. Loos (2018); and (2) That
because Pepin is not claiming a loss of pension benefits, taxes to
finance those benefits should not be excluded.. This decision
provides a good review of legal decisions regarding claims of lost
pension benefits and railroad retirement taxes.
Broeker v. BNSF, 2021 U.S. Dist. LEXIS 135065 (D. WY 2021).
The court rejected a plaintiff motion that evidence of available
retirement benefits at age 60 be excluded under the collateral
source rule because plaintiff intended to retire at age 67. The
court said:
The probative value of Plaintiff's retirement
eligibility at age 60 is relevant to his future retirement date.
Id. As Plaintiff's economist testified, Plaintiff is economically
incentivized to extend his retirement date out as far as possible
because it increases his calculated future losses; he can increase
his damages by claiming he was planning to work well past age 60.
Id. (citing Exhibit A, Jeffrey Opp deposition at 30:16-31:4).
However, based RRB actuarial data, 63-67% of railroad
employees retire at age 60 if retirement eligible, and Plaintiff
is eligible to retire at age 60. Id. at 7 (citing Opp Dep. at
32:9-12, 47:12-16). At age 61, 80% of retirement-eligible
railroaders will retire; by 64, the number approaches 94%. Id.
(citing Opp Dep. at 47:17-48:2). Based on RRB actuarial data, it
is far more likely than not Plaintiff would retire earlier than
his claimed retirement age of 65. Id. This evidence is highly
probative of what his actual retirement date would have been had
he not been injured. Id.
Taylor v. B&J Martin, Inc., 2021 U.S. Dist. LEXIS 413309
(E.D. LA 2021). U.S. District Judge Jay C. Zainey held that
lost earnings calculations in the 5th Circuit must use the “blow
market” discount rate method and that plaintiff’s economic expert
Shael Wolfson had 20 days to reframe Wolfson’s calculations using
that method. Judge Zainey said:
After Pfeifer was decided, the Fifth Circuit in Culver
v. Slater Boat Co. ("Culver II"), 722 F.2d 114 (5th Cir. 1983) (en
banc) held that the "below-market-discount" method must be used
when conducting loss of income calculations. In Culver II, the
Fifth Circuit described this method by saying, "the trier of fact
[first starts by] estimat[ing] the wage increases the plaintiff
would have received each year as a result of all factors other
than inflation." Id. (emphasis added). Next, "[t]he resulting
income stream is discounted by a below-market discount rate." Id.
"This discount rate represents the estimated market interest rate,
adjusted for the effect of any income tax, and then [is] offset by
the estimated rate of general future price inflation. Id. This
rate can either be reached by stipulation or by introducing
competing expert opinions. Id. at 122.November 3, 2021
Zavaglia v. Sarah Neuman Ctr. for Healthcare &
Rehabilitation, 25 Misc. 3d 590; 883 N.Y.S.2d 889 (N.Y. Misc.
2009). This case awarded an uninjured spouse to recover
damages for having had to provide care for an injured spouse.
The court said:
To the extent that the non-injured spouse can establish
that there are services, which were not required prior to injury,
that have been incurred or are reasonably certain to be incurred
to meet the reasonable requirements of the injured spouse, the
non-injured spouse may recover from the person causing the injury
for the reasonable value of those services.
Suggested by Kristin Kucsma.
November 5, 2021
Todero v. Blackwell, 2021 U.S. Dist. LEXIS 193913 (S.D. IN
2021). Defendants argued in this wrongful death case that the proper
measure of damages in this Section 1983 case is loss of enjoyment of
life, not the value of life itself. For that reason, plaintiffs
should be precluded from arguing “about the priceless value of human
life.” Plaintiffs argued that both concepts “def[y] a precise
economic calculation” and should not be based on how the value of
life is measured in the field of economics, but rather testimony
about Mr. Todero’s life.
November 10, 2021
Smith v. Chrysler Group, 2017 U.S. Dist. LEXIS 232222 (E.D.
TX 2017). (Revised listing.) This decision of Federal Magistrate
Judge Keith F. Giblin excluded the "per diem" economic testimony of
Dr. Gary D. Kronrad regarding mental anquish, and loss of
companionship and society. Kronrad's testimony about household
services was also excluded. Judge Giblin said:
[T]he Fifth Circuit emphasized that one of the issues
with per diem arguments is that they "cannot be supported by
evidence because pain and suffering cannot be measured in dollars
on a unit of time basis" and "the amount of such damages must
necessarily be left, without mathematical formula, to the sound
discretion of the jury, because there is no mathematical rule by
which the equivalent of such injuries in money can be legally
determined. . . Furthermore, in this case, Dr. Kronrad testified
that he had no professional advantage over a juror in determining
the value of mental anguish and did not have any expertise in that
area. Accordingly, while it might be permissible for Plaintiffs to
make a per diem argument at closing—which the Court does not
decide at this time—it is not appropriate to allow Dr. Kronrad to
give testimony supporting such a calculation. Chrysler's motion is
GRANTED as to this request. Next, Chrysler asks the Court to
exclude Dr. Kronrad's opinion regarding the value of Arthur's
household services because his opinion is not based upon
sufficient facts or data. In particular, Chrysler argues that Dr.
Kronrad made no attempt to ascertain Arthur's actual contribution
to the household and did not consider Arthur's medical issues in
calculating Plaintiffs' damages. Plaintiffs did not respond to
this argument. This request is likewise GRANTED.
December 21, 2021
Webb v. City of Maplewood, 2021 U.S. Dist. LEXIS 222959 (E.D.
MO 2021). This was an order denying motions in limine to exclude the
testimonies of opposing economic experts Dr. William Rogers for the
plaintiff and Dr. Thomas Ireland for the defendant. Rogers proposed
two methods for compensating persons who were incarcerated in
Maplewood jails for reasons deemed to be invalid.. One method was to
use a $23.89 per hour average in 2020 dollars per hour compensation
of persons working as jailors in three local St. Louis
municipalities . The second method was to use $22.51 per hour in
2020 dollars derived from Quality Adjusted Life Years (QALYs)
derived from the Value of Statistical Life (VSL) literature. Ireland
argued that neither measure was valid that both methods were forms
of hedonic damages because there is no market-based value comparable
to the involuntary aspects of incarceration. Ireland was not
permitted to testify about legal aspects of hedonic damages or that
poverty might lead to a willingness to be incarcerated.
Moe v. Grinnell College, 2021 U.S. Dist. LEXIS 239863 (D. IA
2021). Federal District Judge Rebecca Goodgame Ebinger granted a
defense motion to exclude the hedonic damages testimony of Dr. Stan
V. Smith, saying:
Smith's hedonic damages calculation is not sufficiently
reliable for admission at trial because the method is not
testable, has not been peer reviewed, lacks governing standards,
and is not generally accepted by economists. Additionally, Smith's
method to determine the percent reduction in the value of life is
not based on objective indicia because it relies on self-reported
percentages. Furthermore, hedonic damages are not relevant because
Moe has not experienced physical injury or death. As a result, the
portion of Smith's expert report and related testimony concerning
hedonic damages is inadmissible under Rule 702. The probative
value of Smith's expert report is also outweighed by the threat it
poses of misleading the jury. The Court excludes the portion of
Smith's expert report concerning hedonic damages and related
testimony under Rule 403.
January 15, 2022
In re Am. River Transp. Co., 2022 U.S. Dist. LEXIS 1733 (E.D.
LA 2022). The Court denied a defense motion under Daubert v.
Merrdell-Dow Pharmaceuticals, 509 U.S. 79 (1993), to excluder the
hedonic damages testimony of Dr. Stan V. Smith in boat accidents
resulting in the deaths of three crewmen. Plaintiffs proffered the
hedonic damages testimony of Smith, which defendants argued were not
relevant to damages in a death case. The Court denied the motion
because this was a bench trial and the purpose of Daubert to prevent
unreliable scientific evidence from reaching a jury. The decision
contained no discussion of the nature of or problems with the
reliability of hedonic damages testimony.
April 14, 2022
Stella v. Davis Cnty., 2022 U.S. Dist. LEXIS 45628 (D. UT
2022). Defendants requested that plaintiffs be barred from
suggesting any specific value for general damages, including pain
and suffering, premature loss of life, and loss of consortium. Judge
Jill N. Parish discussed the fact that general damages are difficult
to calculate by any methodology, citing Smith v. Ingersoll Rand, 214
F.3d 1235, 1245 (10th Cir. 2000), as follows:
Attempts to quantify the value of human life have met
considerable criticism in the literature of economics as well as
in the federal court system. Troubled by the disparity of results
reached in published value-of-life studies and skeptical of their
underlying methodology, the federal courts which have considered
expert testimony on hedonic damages in the wake of Daubert have
unanimously held quantifications of such damages inadmissible.
Judge Parish did not exclude plaintiffs from providing per diem
damages estimates, but with the added proviso:
[T]o the extent that Plaintiffs intend to suggest a per
diem calculation predicated on a particular life expectancy to the
jury, Plaintiffs must provide that calculation. Defendants are
entitled to conduct discovery related to the foundation for the
life expectancy calculation. Outside of the aforementioned
discovery, the court sees no value to conducting discovery as to
the admittedly arbitrary non-economic damages amount that
Plaintiff's counsel selects to suggest to the jury.
Henkle v. Cumberland Farms, Inc., 2017 U.S. Dist. LEXIS
217367. Defendants challenged the admissibility of projections of
future medical expenses by Roderick Moe, CPA. Moe had used the
mirror image approach, which Judge Donald M. Middlebrooks described
as follows:
In order to determine the present value of Henkle's
future medical expenses, Moe multiplied Henkle's future medical
expenses by a projected percentage increase in costs per year
("growth rate") for six categories of medical [care] to calculate
the growth rate for each category, Moe calculated the average
yearly change in medical costs for that category over the past 24
years. Moe selected the past 24 years as the relevant time frame
for determining changes in medical expenses in order to "reflect
the future 24 years of medical costs," which represent Henkle's
life expectancy.
Judge Middlebrooks pointed out that Moe provided no indication that
his method for determining growth rates by the “mirror image”
approach was generally accepted or defended in any existing
publication, and cited Ollis v. Knecht, 751 N.E. 825 (IN App. 2001),
which had rejected a different economic expert who had also used the
“mirror image” approach.
April 16, 2022
Hunter v. Town of Mocksville, 201 F. Supp. 3d 750 (M.D. NC
2016). This decision involved the wrongful discharge of three police
officers, for whom a decision about front pay was being made by U.S.
District Judge Thomas D. Schroeder. Judge Schroeder provided a list
of factors to be considered when awarding whether to award front pay
and the period of time for which front pay was to be awarded for
each officer. The factors considered were:
• The plaintiff's age
• The length of time the plaintiff was employed
by the defendant employer.
• The likelihood the plaintiff's employment would
have continued absent the discrimination.
• The length of time it will take the plaintiff,
using reasonable effort, to secure comparable employment.
• The plaintiff's work life expectancy.
• The length of time other employees typically
held the position lost.
• The plaintiff's status as an at-will employee.
• The plaintiff's ability to work, including the
ability to work for the defendant employer.
• The plaintiff's subjective intention to remain
in the position.
• The plaintiff's efforts to mitigate damages.
Coterel v. Dorel Juvenile Grp., Inc., 2015 U.S. Dist. LEXIS
185451 (W.D. MO 2015). The defense had moved to exclude the
testimony of Dr. Kurt V. Krueger based on Krueger’s interpretation
of language in Section § 537.090 of the Missouri Wrongful Death Act
stating that:
If the deceased is under the age of eighteen, there
shall be a rebuttable presumption that the annual pecuniary losses
suffered by reason of the death shall be calculated based on the
annual income of the deceased's parents, provided that if the
deceased has only one parent earning income, then the calculation
shall be based on such income, but if the deceased had two parents
earning income, then the calculation shall be based on the average
of the two incomes.
Krueger interpreted that language to mean that the language created
a separate category for awarding parents of a minor child who was
wrongfully killed such that parents were entitled to an amount equal
to the average earnings of the parents starting immediately and
continuing for the life expectancy of both parents. The defense
economic expert was unnamed, but apparently argued that the parents
had suffered no loss of financial support resulting from the death
of the child. Judge Steven R. Bough denied the motion to
exclude Krueger, allowing both Krueger and the defense expert to
testify based on their respective understandings of the meaning
of § 537.090. The subsequent trial reached a defense verdict
that was appealed to the 8th Circuit and affirmed, but without
reference to how damages should have been calculated.
Eagen v. United States, 2022 U.S. Dist. LEXIS 40172; 2022 WL
683121 (E.D. MO 2022). Plaintiffs had retained Dr. Kurt V. Krueger
as their expert in this wrongful death claim for the wrongful death
of a minor child. The defense retained Dr. Rebecca Summary. The
defense did not challenge the admissibility of Krueger’s testimony,
but plaintiffs challenged the admissibility of the testimony of
Summary. Judge Shirley Padmore Mensah denied plaintiff’s motion and
held that:
[T]his Court finds that the opinions at issue here are
not at odds with the Missouri wrongful death damages statute. The
statute expressly states that the "presumption that the annual
pecuniary losses suffered by reason of the [minor's] death shall
be calculated based on the annual income of the deceased's
parents" is "rebuttable." Mo. Rev. Stat. § 537.090. That plain
language does not, in any way, limit the evidence either party may
use to attempt to rebut the presumption, either in an upward or
downward manner.
Warner v. Talos E R T L L C, 2022 U.S. Dist. LEXIS 31316
(E.D. LA 2022). This case involved the wrongful death of Walter
Jackson, who had a son in a previous marriage, and was now living
with a different wife. Smith had been retained on behalf of the son,
but had treated Jackson, his previous wife, and their son as a
family unit for purposes of calculating the following damages
son: (1) wages and employee benefits, (2) household and family
services, (3) value of life, and (4) society and relationship. In
response to Talos's motion, the plaintiff withdrew the third and
fourth categories, but maintained (1) and (2). It appears that
Smith was retained only on behalf of the son from the previous
marriage and not the decedent’s current wife, but only damages for
the son were being considered. Judge James D. Cain, Jr, pointed out
that the decedent’s only relationship with the son was long distance
telephone calls, and that decedent’s only financial contributions in
support of the son were payments “somewhere” between $200 per month
and $1,000 per month, and limited the loss period to age 18 for the
son. Smith was otherwise allowed to testify about lost wages
and lost family services.
May 2, 2022
Valenzuela v. City of Anaheim, 6 F. 4th 1098 (9th Cir.
2021).This decision concerned whether California’s Wrongful Death
Act was consistent with Section § 1983 of the federal Civil Rights
Act. At issue was whether post-death hedonic damages were required
under Section § 1983. The Court cited the decision in Chaudhry v.
City of Los Angeles, 751 F.3d 1096 (9th Cir. 2014) in holding that
an award for post-death hedonic damages was required under the
federal Civil Rights Act even though not allowed under California’s
Wrongful Death Act.
Valenzuela v. City of Anaheim, 2022 U.S. App. LEXIS 8471 (9th
Cir. 2022).This decision concerned whether California’s Wrongful
Death Act was consistent with Section § 1983 of the federal Civil
Rights Act. At issue was a three judge panel’s decisions in this
Valenzuela v. City of Anaheim, 6 F.4th 2098 (2021) and in Craig v.
Petropulos, 856 Fed Appx. 649 (2021) whether post-death
hedonic damages were required under Section § 1983. The 9th Circuit
panel respected the decisions of in Valenzuela and Craig, but said
that an award of post-death hedonic damages was required, but saying
also that:
Post-death "hedonic" damages awards are speculative,
contravene traditional common law damages principles, contradict
California state law, and where, as here, the awards would have
been $9.6 million and $1.6 million respectively in Valenzuela and
Craig without post-death "hedonic" damages, are not necessary to
satisfy the policy goals of § 1983 under Supreme Court precedent.
For these reasons, our court should have ordered a review of the
two cases by an en banc panel.
Anderson v. Hale, 2002 U.S. Dist. LEXIS 28281 (W.D. Ok.
2002). This decision excluded the hedonic damages testimony of
Dr. James Horrell, but allowed Horrell to testify about earning
capacity and lost services. Plaintiffs had relied upon the decision
in Smith v. Ingersoll-Rand, 214 F.3d 1235 (10th Cir. 2000) in
arguing that Horrell’s testimony was admissible. The Court
held that Smith v. Ingersoll-Rand was not relevant because that
decision involved issues in New Mexico law that were not relevant in
Oklahoma. The Court said:
In Smith v. Ingersoll-Rand, the district court was
called upon to rule on the admissibility of the proposed expert
testimony of Stan Smith, the reputed father of the theory of
hedonic damages. The district court excluded Smith's testimony
purporting to quantify hedonic damages but did allow Mr. Smith to
testify "about the meaning of hedonic damages." Smith, at 1244. It
is unmistakably clear from the Tenth Circuit's opinion, affirming
the judgment of the district court, that the indispensable
predicate for the admission of Stan Smith's testimony about the
meaning of hedonic damages was that "hedonic damages are
explicitly allowed under New Mexico law . . . ." Id.
This is a revised listing.
Lewis v. City of Chicago, 2005 U.S. Dist. LEXIS 63709; 2005
WL 8178978 (N.D. IL 2005). The court said:
The individual defendants move to bar or limit Lewis'
expert economist, Stan Smith, from testifying regarding losses
attributable to: (a) lost wages and employee benefits, (b)
replacement services, such as advice, counsel, guidance and
instruction, (c) enjoyment of life, and (d) society or
relationship . . .Lewis concedes the motion with respect to
Smith's opinions about loss of advice, counsel, guidance and
instruction, loss of accompaniment services, loss of value of
life, and loss of society or relationship. . . . Lewis' concession
is not surprising given the number of courts that have excluded
testimony in these categories. See, e.g., Mercado v. Ahmed, 974
F.2d 863 (7th Cir. 1992); Ayers v. Robinson, 887 F. Supp. 1049
(N.D. Ill. 1995) Doe v. Tag, Inc., 1993 U.S. Dist. LEXIS 16356, at
*7-9 (N.D. Ill. Nov. 16, 1993); Saia v. Sears Roebuck & Co.,
Inc., 47 F. Supp. 2d 141 (D. Mass. 1999). Accordingly, the motion
in limine is granted with respect to Smith's testimony relating to
loss of advice, counsel, guidance and instruction, loss of
accompaniment services, loss of value of life and loss of society
or relationship.
May 19, 2022
Cardenas v. Western Express, 2020 U.S. Dist. LEXIS 261869
(W.D. OK 2-12-2021). This order was a response to a defense motion
in limine to exclude various calculations of economist Dr. Stan V.
Smith. The court allowed Smith’s calculations regarding lost
earnings, but excluded Smith’s calculations regarding lost
job-related fringe benefits based on Smith having provided no
information regarding whether the plaintiff had fringe benefits in
his employment. Smith’s calculations for lost household services was
limited to evidence of specific household services provided by the
decedent for children the decedent was not living with.
Smith’s loss of Guidance and loss of companionship calculations were
excluded because those elements are part of consortium and not part
of pecuniary damages.
Mize-Kursman v. Marin Community College Dist., 202 Cal. App.
4th 832 (CA App. 2012). The plaintiff had suffered a salary
reduction following whistle blower complaints and had continued to
work at the lower salary for several years. At the time of trial,
she was 65 and four months in age and was projected by economist Dr.
Barry Ben-Zion to work another 3.83 years to age 69.14. Ben-Zion had
calculated both loss of pay and reduction of pension benefits, with
a total loss with a present value of $351,935. The
defense had presented evidence that the plaintiff could have chosen
to retire in lieu of continuing to work, showing that her retirement
amount exceeded her pre-reduction salary. The jury found in favor of
the plaintiff but awarded no damages. The Court of Appeals held that
this was reversible error because available retirement benefits
could not be used to reduce lost earnings. The Court reversed the
decision and remanded for retrial on damages. The case then settled.
Thanks to Barry Ben-Zion for assistance with this description.
June 20, 2022
Roberts v. Tim Dahle Imps., Inc., 2022 U.S. Dist. LEXIS 98682
(D. UT 6-1- 2022). The Court denied a defense motion to exclude or
limit compensatory and punitive damages on the basis that
calculations of those damages were not provided by the appropriate
deadline. The court held that calculations of noneconomic damages,
including hedonic damages, damages for emotional distress and
punitive damages do not require specific calculations to be
provided. The Court cited Smith v. Ingersoll-Rand Co., 214 F.3d
1235, 1245 (10th Cir. 2000) regarding hedonic damages, as follows:
Attempts to quantify the value of human life have met
considerable criticism in the literature of economics as well as
in the federal court system. Troubled by the disparity of results
reached in published value-of-life studies and skeptical of their
underlying methodology, the federal courts which have considered
expert testimony on hedonic damages in the wake of Daubert have
unanimously held quantifications of such damages inadmissible.
The Court added that: “Punitive damages are similarly left to the
discretion of the jury and are not subject to concrete rules or
calculation.”
June 27, 2022
Sullivan v. City of Buena Park, 2022 U.S. Dist. LEXIS 91684
(C.D. CA 4-11-2022). Federal District Judge Cormac J. Cadrney
excluded the testimony of economic expert Robert Johnson regarding
the value of the decedent, David Sullivan. Johnson’s testimony
would have been that the value of any human life fell within the
range of $3,900,000 to $14,400,000 based on papers by Drs. Ted
Miller and Kip Viscusi. Judge Cadrey commented on the fact that
Johnson’s testimony would apply to any decedent, “from a vagrant
bum, an infant, spouse, or the local version of Dr. Jonas Salk.” It
was also noted that no justification was given for using the two
papers by Miller and Viscusi rather than other studies with other
values.
July 3, 2022
McGee v. Target Corp., 2022 U.S. Dist. LEXIS 109296 (D. NV
6-17-2022). Federal District Judge Kent J. Dawson denied a defense
motion to exclude the hedonic damages testimony of Stan V. Smith,
saying:
The Nevada Supreme Court has permitted economists to use
various methods to arrive at their conclusions on hedonic loss,
including a "willingness-to-pay method" similar to the one
utilized by Smith in this case. Id. at 62-63. Smith uses his
"willingness-to-pay method" but uses different data and sources to
arrive at his conclusions than the expert in Banks [Banks v.
Sunrise Hospital, 2004]. This difference is properly addressed on
cross-examination. The Court is confident that Smith's testimony
is not substantially more prejudicial than probative and that it
will not confuse the issues or mislead the jury. As stated
previously, Smith's report merely gives the jury a framework with
which to determine a damages amount. Target will have the
opportunity to attack Smith's data and calculations on
cross-examination, but it will be up to the jury to determine the
credibility of the witness and the weight to give his report.
Miller v. Juarez Cartel, 2022 U.S. Dist. LEXIS 112463 (D.
N.D. 6-24-2022). This was a judicial ruling by Federal Magistrate
Judge Clare R. Hochhalter in an ATA (Anti-Terrorism Act) case
involving deaths and injuries to two American families by the Juarez
Cartel. The defendant was not represented and there was no
expectation that the defendant would pay awarded damages. The case
was bench-tried and expert reports were submitted in writing. Damage
opinions of economic expert Stan V. Smith for one group of
plaintiffs and by J. Matthew Sims for another group of plaintiffs
were reported in the decision. Smith’s opinions included loss
of wages and benefits, loss of household services, loss of guidance
and counsel, loss of accompaniment services, life care services of
one decedent for a family member, value of life of decedents, or
loss of society and relationship. Sim’s damage opinions included
loss of wages and benefits, household services and care for fellow
family members, and cost of vocational rehabilitation for injured
minor children. Sims did not include guidance and counsel, loss of
accompaniment services, value of life, or loss of relationship, but
Judge Hochhalter included amounts based on Smith’s calculations for
the first group of plaintiffs.
Laney v. Vance, 112 So. 3d 1079 (MS 4-25-13). The
Mississippi Supreme Court reversed and remanded the trial court
opinion, saying: “Because the trial judge committed reversible error
in instructing the 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 during closing
arguments, we reverse and remand for a new trial.” There is no
indication that an economic expert was involved in this case.
Gurvey v. Twp. of Montclair, N.J., 2022 U.S. Dist.
LEXIS 59815 (D. N.J. 3-31-2022). Gurvey’s claim was that police
officers entered his residence and forced him to have an unwanted
psychiatric examination to determine whether Gurvey was suicidal.
Stan Smith valued Gurley’s alleged wages and benefits and Gurvey’s
reduction in value of life caused by this incident. This was part of
a cross-motion for summary judgment that was denied. The judge
denied a defense motion to exclude Smith’s testimony without
prejudice, meaning that the motion in limine could be refiled at a
later stage of the litigation.
July 17, 2022
James v. Antarctic Mech. Servs, 2020 U.S. Dist. LEXIS 52619
(S.D. MS 2020). Economic expert Dr. George Carter relied upon
earnings projections of vocational expert Kathy Smith, who did not
rely on James’s actual earnings record. The Court stated that loss
of earning capacity in Mississippi must be based at least in part on
a plaintiff’s actual earnings record, if such a record existed. For
that reason and because lost fringe benefit can only be calculated
if there is evidence that a plaintiff is actually using them,
Smith’s testimony was excluded and Carter’s testimony that relied
upon Smith’s opinions on lost earning capacity was also excluded.
Carter was permitted to testify about household services based on
Carter’s assumption that James’s custodial granddaughter would
continue to live with James until age 18.
August 10, 2022
Pepin v. Wisconsin Central, Ltd., 2021 U.S. Dist. LEXIS
187909 (W.D. MI 2021). The Court that railroad retirement taxes
should not be excluded when calculating loss of earnings. The court
provided two rationales for not excluding Tier I and Tier II taxes:
(1) That such taxes will be levied on the portion of an award that
is for lost earnings under BNSF v. Loos (U.S. 2019);
and (2) That because Pepin is not claiming a loss of pension
benefits, taxes to finance those benefits should not be excluded.
This decision provides a good review of legal decisions regarding
claims of lost pension benefits and railroad retirement taxes. The
decision also held that statistical evidence of average age of
retirements of railroad workers could be presented to a jury, but
not the availability of retirement benefits if a plaintiff
retired,