By the numbers: Will it or won't it go to trial...

Something to consider when deciding who to use and how much to spend when retaining an economic expert:

Most times your economic expert will NOT be needed to provide testimony at either a deposition or trial.

Survey results show that:

About 20 percent of cases require a deposition of the expert
About 12 percent of cases require actual trial testimony by the expert.

Source:
Expert Communications
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Daubert challenges to economic testimony

What does it mean for an economic expert report to be ' Daubert Quality'?

While no sensible economist would guarantee that their economic expert testimony will survive a Daubert-type challenge in court, there are things that a reasonable economist can do to help increase the odds that their testimony will survive a challenge. The court is actually pretty clear on what a Daubert quality economic expert report is.

For instance in a recent case, See Elliott v. Kiesewetter, No. 03-1681 (3d Cir. Oct. 18, 2004) (unpublished) (Sloviter, Van Antwerpen, & Cowen, JJ.) the court upheld the economic asset valuation testimony in the matter. (Posted on www.daubertontheweb.com/blog702.html)

The court found:

*The expert had the qualifications to make the testimony that he made

*The methodology that he relied upon was generally accepted and widely used in his field

*The testimony was relevant and provided the jury with insights that they could not make on their own

Excerpts from the opinion follow:

"The Kiesewetters next contest the admissibility of the Beneficiaries’ expert witness. The admissibility of expert testimony is governed by Fed.R.Evid. 702. We have summarized the requirements of Rule 702 as focusing on the “trilogy of restrictions on expert testimony: qualification, reliability and fit.” Schneider v. Fried, 320 F.3d 396,404 (3d Cir. 2003); see also Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.579 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).

Here, the record shows the Beneficiaries’ expert possessed the specialized expertise necessary for5qualification, employed a methodology necessary for reliability, and gave relevant testimony that assisted the jury. See generally In re Paoli R.R. Yard PCB Litig., 35 F.3d717, 741-743 (3d Cir. 1994). The expert had been qualified previously and testified herethat his methodology is customarily relied upon in his industry for the valuation of assets,a subject beyond the experience of most jurors. For these reasons, we discern no abuseof discretion as to the admission of the Beneficiaries’ expert."

Inside Lost Compensation.Com

Recent buzzzz:

A number of bloggers, such as Newmarks door and others, have recently asked how can we offer our economic damage reports for so cheap? They have suggested that there must be something a-miss with our service.

Our Response:

As you could guess, the response to our novel service has been overwhelming. While our services do not fit the bill for all attorneys, a significant number of attorneys have found that our services is exactly what they need.

We have been able to provide these attorneys with economic damage reports that are equal to or better than the ones that they had been used to receiving from their local economists. And as our clients know, all of our economic damage reports are produced by Ph.D. University economists. A number of economists have also successfully provided economic testimony in trial and hearings.

We have found that our system allows our economic experts to just do their jobs. Having Ph.D. economist just do analysis and not admin work, allows us to provide attorneys with a superior economic damage report at a substantial savings.

As for our service, while we can not and do not guarantee that our damage reports will survive a Daubert challenge, we do ensure that our experts adhere to generally accepted principles when constructing our economic damage analysis.

Attorney question about client's worklife

Q: In my client's economic damage report, why did the economist project that my client would retire before he is eligible for social security benefits?

A: The economist is not actually projecting your client to retire before he is eligible for retirement. The economist is actually measuring the expected remaining worklife for your client.

That is, the economist is accounting for the projected time out of the work force due to layoffs, illnesses, etc, that your client can reasonably expect over his remaining worklife. The expected worklife projection is based on the plaintiff's labor force status, education, race and gender.

For instance, a 40 year white male who is currently out of the labor force and has less than a high school education, will have around 17 full working years remaining. The 17 full years estimate accounts for the time the individual is expected to be out of the workforce. Stating the worklife expectancy in this manner makes it easier for most people, i.e. juries, to understand.

Rebutting the rebuttal economic expert witness

Cross examination questions for the defendant's economic expert.

In this case, it is claimed that the health club's failure to provide prompt medical care caused the wrongful death of Mr. S. As usual, the defendants in the case provided rebuttal of the plaintiff's economic expert report. The defense expert principally challenged the plaintiff's expert worklife and life expectancy assumptions. The defense expert claims that the plaintiff's medical condition (diabetes and hypertension) result in a shortened work life and life expectancy.

Below are some lines of questions that were used to cross examine the defendant's economic expert in the case

Line of questioning 1

Objective: Show that the references that he relied upon to from his opinion are not reliable and not relevant in the current case

* 2 of the 3 references mentioned in the defendant's expert report are based on non-race based data for people not living in the U.S.

- One reference a 1996 Canada study that does not have tables that include the person's race in the calculation

- One reference is a poorly cited New Zealand study that most likely does not include race

* The life expectancy tables from www.lifexpectancy.com do not suggest a substantially different work life expectancy from the estimate in the plaintiff's expert report

* None of the three studies listed in the defendant's report provide any support whatsoever that the worklife of Mr. S will be decreased because of the medical conditions.

*To probe:

- Did his analysis include the Type of diabetes that Mr. S had?

- Did he know if the deceased was on medicine or insulin? Would this knowledge have an effect on the results? Why didn't you get this information?

- What references and/or knowledge is he using to make the conclusion/opinions that the experiences of Canadians in 1996 is applicable to Mr. S (probe hard here)?

- Ask detailed questions about the underlying data in the medical references that he cited. (Most likely the economic expert will have very little knowledge of how it is constructed or how applicable it is to the current case) For example, what is a 'multi-state life table model' as stated in the reference number 2 of his report.

-Really probe the fact that the studies that 'support' his analysis do not include race.

Line of questioning 2:

Objective: Show that the references that he relied upon to from his opinion are reliable upon by other economists (including the deponent)

* Only www.lifeexpectancy.com table is routinely used in forensic economics work

* Canada study and New Zealand study are not routinely used in forensic economics work

* None of the three studies listed in the defendant's report are used by other forensic economists to suggest a shortened worklife

Line of questioning 3

Objective: Show that his opinions, even if they are correct, would not create a substantially different estimate of the deceased economic damages

* None of the three studies listed in the defendant's report provide any support whatsoever that the worklife of Mr. S will be decreased because of the medical conditions, so his work life

*Mr. S had a lump sum retirement option; if he took this option his retirement would not have been effected by the 'defendants' supposedly shorted life expectancy.

* Life expectancy estimates (www.lifeexpectancy.com) from the only routinely used study is not substantially different from the plaintiffs expert report.

* Plaintiff's expert report mortality tables that include people with diabetes and thereby accounts for the relatively higher rate of diabetes and hypertension in the African-American community

Workers Compensation Back Wages v. Lost of Earnings Capacity Calculations

In injury cases, it is common for the lost back wages from workers compensation and the estimated back wages in a loss of earnings capacity analysis to differ. Sometimes by quite a bit.

In most states, workers compensation policies will pay the injured worker a set amount based on the average amount that the person earned at the time of the injury.

For example, in Texas the workers compensation amount is based on the injured person's average wages from their last or most recent 13 weeks of work prior to the injury accident.

In contrast, projections of back wages in lost of earnings capacity are designed to estimate how much the injured person could have been expected to earn had (s)he not been injured.

Lost of earnings capacity calculations are usually based on historical earnings information spanning the last 1 to 5 years. Depending on the variance in the wages associated with the person's job at the time of the injury, the difference between the amount workers compensation policy pays and the amount that the person could have been reasonably expected to earn could vary significantly.