What would Daubert say about those economic damages? 8.13.2004

Here is an interesting economic damage scenario posed by a couple of attorneys, that our economists were ask to comment on.

The situation

Suppose a pair of 10 yr old twins were tragically injured t the end of 4th grade on the exact same day in the exact say manner, but completely different accidents caused by completely different defendants. You are sought out to be hired by the Plaintiff attorney for Johnny who lives with his mom. His mom is a RN.

You are also sought to be hired by the defense attorney regarding Jimmy who lives with his dad who is a auto mechanic.

The cases will be heard by the same judge. Both kids are somewhat above average students, have modestly above average intelligence, and are very devoted to the parent they live with. They see little of the other parent.

On weekends, Johnny often goes to work with his mom at the hospital where she works, he loves doing this and is fascinated by all the technology. He has at times said he might become a nurse like his mom. On weekends Jimmy often goes to work with his dad at the shop, he loves to do this and likes all the technology. He has at times said he might become an auto mechanic like his dad.

Consider the following:

The plaintiff attorney asks if you would please portray to the jury, among other types of losses only the expected wage loss assuming Johnny were to become an RN, and no other career. In the town, such local wages start at about $40,000.

The Plaintiff attorney further asks that you consider the only the full time earnings' expectancy, as he believes in this jurisdiction "earnings capacity" is the standard, and asks you to compute full time wages to age 67. The attorney is confident he will get a motion in limine requiring the jury to disregard any unemployment, premature death, and withdrawal from the labor force statistics.

Bottom line is: you are asked to assume that he would work 45 years to age 67 after graduating from nursing school at age 22.

On the other hand, the defense attorney asks if you would please portray to his jury, among other types of losses, the expected wage loss assuming Jimmy were to become an auto mechanic, and no other career. Assume such wages start at $18,000 per year at age 18 after high school and average about 36,000 for auto mechanics in the local area.

In contrast to the plaintiff's attorney, the defense attorney further asks that you consider the only expected worklife years only, as he believes that the jury instructions regarding earnings capacity will fully allow a jury to consider unemployment, lack of labor market participation and premature death. Thus he wants you to consider worklife of (lets just say) 35 years from age 18.

You are told and have no reason to doubt that different judges have ruled differently on such "earnings capacity" motions in this jurisdiction, there is no governing case law, so whether a jury will be allowed to consider premature death, unemployment and withdrawal from the labor force statistics is a toss up. You will not know until trial. Further, you are led to believe that depending upon the strength of the arguments of either side, it is entirely possible that the judge may rule one way in one case and another way in the other case, basing his ruling on the strictly on the strength of the arguments presented in each case by the attorneys handling each case.

The Question: What do you do?

A. Do you agree with the plaintiff's request regarding the RN wages and full time work to 67?
B. Do you agree with the defendant's request regarding auto mechanic wages and worklife years?
C. Do you take both cases?

{'Answers' in the coming days}