What would Daubert day about those damages? 12.29.2004

(From a recent case our economists were asked to comment on...)

A career ending injury to a professional opera singer

Situation

An automobile injury caused a career ending injury for a pretty well known (at least in professional circles) opera singer. The injury destroyed some of his vocal cords and the plaintiff can no longer sing either informally or professionally. In this case, the forensic economist was asked to place a value on the plaintiff’s ability to sing. Under the plaintiff's attorney's theory of damages, they are only concerned about the value of the income received from singing and does not want to look at the current earnings from the opera singers current employment.

What would Daubert say about those damages?

Well placing a value only on the ability to sing is possible. As with any valuation, the analysis must consider the specifics and the details of the individual's profession. The more specialized the profession the more details there are to consider. Some things economists would consider (Thanks NAFE listserv!):

• If this man is a major soloist-quality singer, his earnings path is unique and would most likely have to be evaluated on a case-by-case basis.
• If he is or was a chorus type, or an occasional second-string understudy for major stars, union data could be useful. In this situation, his earnings path would also depend on whether he sang with a regional company or a company of national/world stature. It may also depend on whether he had made and successfully sold recordings and how well he was managed.
• Finally, the work life expectancy for a performing vocal musician is relatively short, as the voice natually changes in early middle age, so even without an injury, he might have had to turn to teaching at what would be a relatively early point in anyone else's career.

Economic Expert Evidence in the State Courts: Frye v. Daubert

Economic evidence in the state courts:

Traditionally, attorneys and legal scholars have believed that scientific evidence, including testimony concerning economic damages, faces a lower hurdle is states that adopt Frye instead of Daubert standards. The conventional thinking is that the Frye standards of "general acceptability" are lower than the stricter and more defined requirements of Daubert.

Recent research suggest that the conventional thinking on this issue is not backed up by empirical facts. (For a copy of the working paper, click here...)


The research of two law professors, which uses a novel approach based on the removal rate of toxic tort cases, suggest that the states choice of Frye or Daubert has little or no effect on the admissibility of scientific evidence. Specifically, these researchers examined the rate at which defendants successfully removed toxic tort cases from state court to Federal court. In their research, the authors compared the removal rate of states that adopted Daubert and Frye standards.

According to the authors, if the choice matters then if all other case facts are equal, the data should show that in states that adopted tougher Daubert standards, the removal rate (from state to federal court) should be lower since there would be fewer reasons for the defendants to want to remove the case. Likewise, in states that experienced a recent change in their handling of scientific evidence, say from Frye to Daubert, the data should show a change in the removal rate.

The authors empirical work, which included a number of advanced statistical analyses, suggested that in contrast to conventional wisdom there was no statistically significant difference in either the inter-state or intra-state removal rate.

Thorny legal issues concerning expert witnesses (12.6.04)

Can a judge bar an expert witness from testifying in their court for life?

That is the question facing a expert witness in GA today.

As reported in the professional section of American Medical News and Daubert on the web's Blog 702, a medical doctor is facing a lifetime ban on providing expert witness testimony by a GA state judge. According to the reports, the judge banned the expert because he found the expert's testimony to be "conflicting, lacking in credibility and apparently untruthful." The judge was also apparently concerned about the fact that the doctor recanted significant portions of the prior deposition testimony that he had given in the case.

The legal commentators at Blog 702 and several other legal commentators mentioned in the AMN article, seem to think that the legal precedent for the judge's life ban is shaky.

Useful practice tip 12.02.2004: Disability schedules for injured vets

To determine the amount a vet will recieve if they become injured while in the service, the VA uses a set schedule based on the amount of earnings capacity loss. The amount of earnings capacity loss is determined by the VA

The VA payment for disability compensation:
(The agency decides on a monthly payment by considering the type of injury and calculating the “loss of earning capacity.” The VA uses a 0 to 100 percent disability rating scale with set dollar amounts.)


Disability Percentage Dollar Amount

10 $106
20 205
30 316
40 454
50 646
60 817
70 1,029
80 1,195
90 1,344
100 2,239