Study: Tort reform increase the death rate of elderly, lower-income, and minorities

Using medical malpractice tort reforms and state-level data from 1980-2000, two Emory University Law Professors, PAUL H. RUBIN, JOANNA M. SHEPHERD, examine empirically whether tort reforms have disproportionate effects on different demographic groups. They find that the impact of tort reform varies substantially among demographic groups.

Their results suggest that women, children, and the elderly do not enjoy tort reform’s benefits as much as men and middle-aged people.

The research further suggest that these individuals may be harmed by tort reform

Source:

Rubin, Paul H. and Shepherd, Joanna M. (2008) "The Demographics of Tort Reform," Review of Law & Economics: Vol. 4 : Iss. 2, Article 3. Available at: http://www.bepress.com/rle/vol4/iss2/art3

Race is off-limits factor in wrongful death case

From: Federal Judge Blasts Use of Statistics on Race to Set Damages in Ferry Crash, Anthony Lin, New York Law Journal, October 15, 2008


A Brooklyn federal judge has slammed the use of statistics showing racial differences in life expectancy to determine damages for a catastrophically injured black man.James McMillan was rendered a quadriplegic in the 2003 crash of the New York City-operated Staten Island Ferry. Last month, Eastern District of New York Judge Jack B. Weinstein awarded McMillan damages of $18.3 million.

The city had sought to limit McMillan's damages on a number of grounds, arguing that his past criminal records as much as his race indicated a shorter life expectancy. But Weinstein indicated during trial he would issue a written decision further explaining his reasoning on the race issue.

Issuing that decision Tuesday, Weinstein said the consideration of statistical differences in life expectancy among races in determining damages would be discriminatory and unconstitutional. He noted that a wrongheaded insistence on immutable racial differences had been behind the U.S. Supreme Court's infamous decision in Plessy v. Ferguson, 163 U.S. 537 (1896), which upheld racial segregation under the doctrine of "separate but equal.""Statistical reliance on 'race' leads to such questions as whether Plessy would have been today categorized as 'African American' for life expectancy purposes,"

Weinstein wrote. "In a more recent example, 'racially' characterizing for statistical purposes in a negligence lawsuit the current Democrat Party presidential candidate, born of a 'White' American mother and an 'African' citizen of Kenya, would be considered absurd by most Americans."

The judge also said racial statistics should be rejected on scientific grounds, and he approvingly cited a number of well-known anthropologists who regard race as a social construct rather than a biological fact."Reliance on 'race'-based statistics in estimating life expectancy of individuals for purposes of calculating damages is not scientifically acceptable in our current heterogeneous population,"

Weinstein wrote in McMillan v. City of New York, 03 civ. 6049.Though the judge acknowledged a documented mortality gap between blacks and whites, he said the gap likely owed much to socioeconomic factors masked as "race."

He noted some studies indicating that blacks and whites of equivalent socioeconomic status enjoyed similar longevity.Weinstein said that courts had increasingly moved toward race- and gender-neutral calculations of damages, and observed that racial differences were ignored by Special Master Kenneth R. Feinberg in his administration of the federal September 11th Victim Compensation Fund.The Corporation Counsel's Office declined to comment on Weinstein's decision.

Undocument worker' lost wages in NY

From Bender's Immigration blog:

"[U]ndocumented workers who violate IRCA may not recover lost wages in a personal injury action based on a violation of New York Labor Law." Ambrosi v. 1085 Park Ave. LLC, S.D.N.Y., Sept. 25, 2008

See decision...

The Intrinsic Value of Economic Testimony in a Employment Discrimination Lawsuit

Using a jury's verdict to determine the value of expert economic testimony

Often times it is difficult for an attorney to determine what value hiring an expert adds to their case. One way to value expert testimony is to consider the award that the jury determines in relationship to the expert's damage estimate. A recent employment case in San Antonio, Texas is particularly insightful.

In this employment discrimination case, the plaintiff hired an indiviudal to calculate back and front pay losses. The plaintiff, who began working at the employer in 1979, was terminated in 2005 for opening a confidential document on her computer, while a male employee, who also opened a confidential document a short time later, was not fired or disciplined. The defense hired a rebutal economic expert.

The plaintiff's economic expert opined that the plaintiff had suffered about $950,000 in back and front pay losses. In contrast the defense hired an economist who opined that the plaintiff had lost, at most, $28,000. The defense expert opined that with the plaintiff's background, which was in computers, he was more than capable of obtaining a job that paid as much or more as he earned at the defenfant/employer.

The jury agreed that the plaintiff was the victim of discrimination and awarded, economic damages, mental anguish, and attorneys fees. The award for economic damages is quite insightful in this case.

The jury awarded the plaintiff $330,888 in front and back pay losses. The award was clearly less than the plaintiff's economic expert but more than the defense expert's analysis. One way to look at the value of the economist testimony is to look at what the award would have been had there been had their not been an opposing economist hired by the defense. Conceptually, the jury's award suggest that the value of the defendant's testimony was approximately $619,112.

That is the $950,000 opinion of the plaintiff economist minus the $330,888 award from the jury. The idea is that the jury would have awarded the plaintiff for the full amount of the award had the defense attorney not testified.

Fluctuating work week method is endorsed by 10th circuit

The U.S. Court of Appeals for the 10th Circuit endorsed the fluctuating workweek method of calculating back pay awards for misclassified salaried employees in lawsuits arising under the Fair Labor Standards Act. In Clements v. Serco, Inc., 2008 U.S. App. LEXIS 13806 (10th Cir. July 1, 2008).

The 10th Circuit held that the district court properly used the fluctuating workweek method to calculate a back pay award for unpaid overtime, rather than the alternative time-and-a-half formula...

According to FLSA, 29 C.F.R. § 778.114(a):

When the number of hours worked in a week moves around:

"the regular rate of the employee will vary from week to week and is determined by dividing the number of hours worked in the workweek into the amount of the salary to obtain the applicable rate for the week."

For instance consider a person earning $1,500 a week who was was misclassified as exempt from recieving overtime. Assume that the court has determined that the person generally works 50 hours a week. Since it has been determined that they are misclassified, they are entitled to 10 hours of OT.


Under the fluctuating workweek calculation, the value of the OT that the employee is entitled to is:

Regular rate = 1,500/50 = $30.00

so the OT owed would be = 0.5* $10hours * $30.00 = $150.00

In contrast, under the usual FLSA calculation, the person would recieve a rate of one-and-one-half times the regular rate. Under the usual calculation it would be:

Regular rate = 1,500/50 = $30.00

so the OT owed would be = 1.5*$10hours*$30.00=$450.00

The underlying idea is that when the fluctuating workweek applies, employees receive overtime compensation at a rate of one-half their regular rate for the week – – "because such hours have already been compensated at the straight time regular rate, under the salary arrangement." Therefore, applying the fluctuating workweek approach typically reduces the amount of overtime compensation to which an employee is entitled.

At the end of the day, the value of the unpaid overtime for the misclassified worker will be lower.

Lack of evidence does not exclude economic damage calculations

Daubert Watch 6.23.2008

In this LA personal injury case, defendants appealed the trial court's ruling admitting the testimony of Plaintiffs' vocational expert and expert economist. The defendants had stated at the trial court level that there was no evidentiary basis for the opinions of the witnesses.

The appeals court affirmed the trial court's ruling, stating that defendants had not challenged the scientific basis or expertise of either expert. Accordingly, trial court properly admitted the testimony.

See: dauberttracker.com

For more information on the plaintiff verdict, go to:
http://www.judgeconque.com/Jury%20Verdicts/lafayette.html

Philip Broussard, et al vs. Lafayette Ins. Co., et al; #20060333
DAMAGES - PERSONAL INJURY
Judge Patrick L. Michot (Div. "K") Presiding, April 2007
Plaintiff(s) Attorneys: Joseph Gaar, Jr.; Jason Welborn
Defendant(s) Attorneys: Richard Petre, Jr.

VERDICT: In favor of Plaintiff and against Defendants

AWARD:
Past Medical Expenses $ 84,079.25
Future Medical Expenses 12,000.00
Pain, suffering and disability; physical and mental (past, present,future) 154,000.00
Loss of past earnings 23,423.00
Loss of future earning capacity 165,000.00
Loss of enjoyment of life 20,000.00

TOTAL AMOUNT $ 458,502.25

Daubert Watch 5.39.3008: Economist passes the muster

In Mcdaniel vs. Gallery Model Homes, Inc. age discrimination case, in the Southern District of Texas, JOHN D. RAINEY, UNITED STATES DISTRICT JUDGE ruled that the defendant's concerns went to the weight NOT the admissibility of the economist's testimony.

The motion by the defense attorney is particular interesting. It is clear that there was a lot of bad blood betwen these two parties.

In the motion the defense complained of :

- The economic damage report (on back and front pay) not meeting rule 26(b) standards. (According to the motion the plaintiff's economist did not provide all the required documents )

- Plaintiff economist not having enough data to perform and adequate analysis

- The unknown rate of error of his worklife estimates

- Use of benefits multiplier and the fact that the ezpert did not know the exact benefits that the defendant provided

- Growth rate did not match the plaintiffs job. Economist used aggregate data not specific to sales

- Health of the plaintiffs. The plaintiffs had knee surgery that may have prevented them from performing some types of work. The economist did not include this in his analysis.


(see: dauberttracker.com for details)

Defense's Motion to Exclude : 58-1.pdf

Calculating damages in FLSA and wage and hour cases

Singer et. al v. City of Waco, Texas

Moral of the story: Audit your data, use the correct number of work period hours in regular rate calculations, and consider offsets

In this case the Court considers the issue of damages in wage and hour case involving the Waco fire department. In the case, the jury found that the City willfully acted (and in bad faith) when it failed to pay the Plaintiffs overtime due under FLSA.

Following the liability portion of the case, the 180 plaintiff WFD employees entered the damages phase of the trial. In the damages phrase both sides engaged economic damage experts to calculate the value of the unpaid overtime.

Although the The court awarded the plaintiff's a significant amount that including liquidated damages, the award was significantly less than the plaintiffs' expert opined. Specifically, the Court stated that:

• The summaries prepared by the defendant were more credible because they were double checked and audited.
• The Court was also clear (and provided very detailed damage tables) to make sure that the correct number of hours in a pay period were used (as required under FLSA for the calculation of the regular rate).
• To avoid unjust enrichment, The City should be able to count OT overpayments as an offset to the FLSA underpayments.
• In this case the offset was calculated as by, first determining the underpayments due under FLSA, assessing the liquidated damage requirement of FLSA, and then adding the amount underpayments due to the Texas Local Government Code. Only then should the overpayments made by the City during the four years prior to filing the lawsuit be offset against the total damages amount.

Bottom line: Good case to review when calculating damages in wage and hour cases


damage_calc_waco.pdf

'Grossing up' the plaintiffs damages in employment cases, is it right?

From a legal standpoint maybe not, to some economists the answer is yes.

For some economists, whether or not a state allows consideration of income tax adjustments to arrive at earnings losses, the gross-up for excess taxes in employment lawsuits is a separate and necesary calculation. Recent IRS and court rulings cause a prevailing plaintiff not to be made whole if they win.

That is because the lump-sum award will be taxed at a relatively higher rate than would have been paid on the earnings year-by-year. Think: Of winning the taxes on winning the lottery

Several articles address the issue and present a simple (and mathematically correct) procedure & formula for calculing the gross-up.

Tyler J. Bowles, and W. Cris Lewis, “Taxation of Damage Awards: Current Law and Implications,” Litigation Economic Digest, Fall 1996, Volume 2, Number 1, pp. 73-77

Ben-Zion, Barry, "Neutralizing the Adverse Tax Consequences of a Lump-Sum Award in Employment Cases," Journal of Forensic Economics 13(3), 2000, pp. 233-244;

Daubert watch: Court allows economist to testify on damages of Mexican nationals

(see dauberttracker.com)

In a case concerned with wrongful death actions brought by the families of two Mexican Nationals, the defendants argued that the plaintiffs' expert did not have sufficient facts about the two decedents and their families and that the expert used statistics about the US for the purpose of calculating the plaintiffs' losses. The plaintiffs' families lived in Mexico.

The court said that to the extent Dr. Ward might have been able to obtain more complete information, that fact went to the weight to be ascribed to his opinions, not to their admissibility.

The district court noted that the plaintiffs' expert acknowledged at the conclusion of his reports that the plaintiffs resided in Mexico, and that the calculation of the plaintiffs' economic losses must be converted to Mexican standards and that this conversion constituted the application of reasonably reliable principles and methods to the facts known to the plaintiffs' expert.

see:


Alvarado vs. Loftus
Date of Decision: 3/19/2007
Jurisdiction: Federal
Docket Numbers: 05-cv-01666 REB-PAC
Court: Colorado

9/11 Judge puts damages first

(excerpt from NYT)

Little-noticed lawsuits brought against the airlines, security companies move toward trials.

In a reversal of the usual legal procedure, the Judge in some of the first 9-11 cases to go to trial has ordered six trials for damages to take place before any trial for liability.

Instead of focusing on the merits of the cases, the trials will focus instead on the victims' pain and suffering and on the grief of their surviving families. The plaintiffs acknowledge that the biggest difference between the two sides is over the value of pain and suffering. Economic losses are calculated by a mathematical model, and the margin for dispute is relatively small.

New collateral source rule research

"The Collateral Source Rule and Medicaid Plaintiffs: Eliminating Windfalls and Double Recovery"Thomas Jefferson Law Review, Vol. 30, 2007Contact: REBECCA F. ANDERSON Independent

http://ssrn.com/author=781664FullText:http://ssrn.com/abstract=974966

ABSTRACT: This Note examines damages awards for past medical expenses ofMedicaid plaintiffs and the collateral source rule's role in determiningthose damages. The traditional collateral source rule's substantivecomponent prohibits any reduction in the plaintiff's recovery for benefitsor payments the plaintiff receives from collateral sources, i.e. any sourceother than the defendant. The rules evidentiary component excludes admissionof any evidence of collateral sources. Two primary criticisms of the rule are: (1) windfalls to Medicaid plaintiffs when they recover more than Medicaid paid on their behalf, and (2) double recovery by Medicaid.

Resolving the difficulties of the rule requires a two-step solution. First, states should adopt a "real reasonable value"approach to the collateral source rule by allowing the parties to introduce evidence of the amounts billed for the services,amounts paid by Medicaid to satisfy the obligation, and evidence of automatic reimbursement to Medicaid.

Secondly, states should adopt two requirements in the handling of medicalexpenses for Medicaid plaintiffs: notify the state Medicaid agency when the plaintiff files suit against a defendant involving medical expenses paid by Medicaid and if the plaintiff recovers for medical expenses, the state Medicaid agency should automatically be reimbursed the amount they paid on plaintiff behalf after a pro rata reduction for their share of legal costs....

Vioxx damages reduced from $32 million to $7.75 million

The $32 million jury award in a Vioxx lawsuit to a woman who lost her retired, 71-year-old husband was reduced to $7.75 million to conform to Texas state law. Merck & Co. was originally ordered to pay $7 million in noneconomic damages and $25 million in punitive damages. Judge Alex Gabert, however, ordered the punitive damages reduced to $750,000 to conform to a 2003 Texas law. The law caps punitive damages at twice the amount of economic damages (lost pay) with a maximum of $750,000 in addition to noneconomic damages. Because the man was retired and was awarded no economic damages for lost wages, Merk & Co. was ordered to only pay the maximum award under Texas state law.

Solution for Attorney's Economic Damages Catch 22

We were contacted by an attorney last week who believed he was in a Catch 22 regarding economic damages in his case. "I don't think I can get an economic expert to calcualte damages until the court rules on the validity of certain earnings evidence, but if I wait until then, it will be too late to present economic damage testimony." We were happy to inform the attorney that there is a simple solution to this seemingly complex situation.

As economic experts, we have the flexibility to produce reports with multiple scenarios. For example, in this attorney's specific case, there was no doubt that his client sustained injures. There was, however, a dispute regarding if a portion of the plaintiff's earnings after the incident were the result of work he performed prior to or following the injury. The attorney understood the calculation of damages well enough to know that post-injury earnings would be an important part of calculating the plaintiff's future damages. He was pleased to learn that a report could be created that projected the plaintiffs losses in two scenarios that accounted for the potential differences in post-injury earnings.

Damages for the Holidays? Lost earnings exist when vacation/sick time used for injury recovery

The experts at Lost Compensation were recently contacted by an attorney seeking advice on whether or not he should take a case. The plaintiff was injured in a typical slip and fall incident. The plaintiff incurred damages due to medical expenses, but the attorney was unsure if he should take the case because he didn't believe lost wages were recoverable. While the plaintiff was unable to work during his recovery time, his absense from work was fully covered by the vacation and sick time he had accrued over his years as an employee.

After our brief discussion, the attorney learned that although the plaintiff did not have a loss of earnings visible in his pay statements, he did in fact have recoverable damages in that area. Vacation and sick time provided to an employee in a work agreement has a real, and usually easily measured, dollar amount value. The loss of vacation and sick time can be valued at the rate the employee would have been paid had that time been spent working. That time is part of the benefits of the employment agreement and when an individual is unable to utilize that time as he wished due to an injury that another is repsonsible for, the losses are recoverable.

Follow-up to Attorney Buzz...

Follow-up to the Buzz: Daily UCLA Taser video





Here is the actual UCLA taser event (from the UCLA student newspaper website) that has attorneys talking.

The Buzz: Attorneys debate claim for damages in UCLA taser incident

Things became heated today on a popular attorney listserve as opinions were expressed about the lawsuit and claim for damages expected to come out of UCLA police using a stun gun on the 23-year-old UCLA student of Iranian descent, Mostafa Tabatabainejad. A high-profile attorney has been hired to file a police brutality suit. Civil rights attorney Stephen Yagman, who frequently brings actions against law enforcement agencies, also plans to file a federal civil rights lawsuit on the student's behalf, accusing UCLA police of false arrest and "brutal excessive force."

Attorneys across the country are voicing their opposing opinions. Some made posts supporting a possible claim of damages including pain and suffering while others scoffed at a potential claim for damages and applauded the UCLA police for using what they deem to be appropriate force.

Are these losses economic losses?

Case background:

Plaintiff's lost their parents in a plane crash due to a airplane defect. The parents had a very large estate and as a result the estate taxes that the children had to pay when the deceased parent's assets were transferred to them amounted to several million dollars.

It is argued by the children's attorneys that had the parents not died the parents would have transferred the estates to the children over time and in a more tax advantageous way. According to the children the parents were in the process of doing that at the time they died.

Should the childern's estate tax bill be considered a loss in the economic damage calculation in the airplane products liability lawsuit?

Female editor wins major wrongful employment termination lawsuit

A federal jury in Manhattan ruled on Monday, October 23 in favor of former editor-in-chief of The Source, Kimberly Osorio, in her sexual harassment and gender discrimination suit against the magazine and its founders, David Mays and Raymond "Benzino" Scott.

The jury awarded her $400, 000 in lost back pay and front pay and a total of $15.1 million for the relatalition. The judge later lopped off nearly half of the $15.5 million verdict fired-editor Kimberly Osorio won.

The plaintiff's were represented by high profile New York plaintiff's attorney Kenneth Thompson of Thompson Wigdor & Gilly.

Claim for damages made by Chamber of Commerce President who has fought “frivolous” lawsuits

The West Virginia Trial Lawyers Association (WTLA) has expressed its displeasure with state Chamber of Commerce President Steve Roberts after filing a personal injury lawsuit related to an injury his daughter sustained when hit in the eye with a paintball by another child. Mr. Roberts is suing for damages related to medical bills, loss of income and travel expenses as well as a claim for non-economic damages.

"For years now, Steve Roberts has led the charge to restrict access to West Virginia's courts," said Jeff Jones, the WVTLA President. "Over and over, he has characterized lawsuits filed by injured workers, people hurt by dangerous products, and people who were being cheated by insurance companies as 'frivolous.' He claims that these victims were trying to hit the 'lawsuit lottery' jackpot."

Mr. Roberts claims the lawsuit has nothing to do with any of the restrictions for which the state Chamber lobbied.

Verdict against Amtrak has attorneys talking

The recent $24 million verdict ($1.6 million in economic losses) against Amtrak has many attorneys talking. The following are listserv post by attorneys commenting on the case.

'What I find curious is that we rarely, if ever, hear about run-away juries going in the other direction--where there was, to common public perception, a legitimate and grievous injury, but the jury came back with nothing. Statistically, if there are instances of juries apparently going absurdly high, then there should be an equal number of juries apparently going absurdly low. That we hear only of the former is a possible indicator of media bias. '

-attorney, Atlanta, GA


'The verdict that was rendered was the work of 12 good men and women, I
suppose. Every time I hear about a runaway jury, I go back and think
that each juror is just like me. ...Verdicts like this do not usually come out of nowhere. They happen usually because a defendant has time and time again ignored an obvious problem that could have been fixed. '

-attorney, Atlanta, GA

'... NEVER EVER EVER take a burn case to trial. I mean, damages are awarded for PAIN AND SUFFERING. If a person gets money for a broken bone, how much more do they get for a burn? ... I think the defendant is so bound up with the liability analysis, they forget to step back and think how a jury is going to react to a guy with burns over 75% of his body. Their stomachs turn, they wince in fear to even imagine such a thing happening, they don't want to look at him and then they feel guilty... and they open up [the defendant's] pocketbook

-attorney, Pasendena,CA

Large economic damage award in burn case

Jury Awards $24.2 Million to Boys Injured on Amtrak Tracks

A Philadelphia federal jury in the United States District Court for the Eastern District of Pennsylvania yesterday awarded total damages of $24.2 million against Amtrak and Norfolk Southern for electrical burn injuries suffered on August 10, 2002 in Lancaster, Pennsylvania by two 17-year-old boys, Jeffrey Klein and Brett Birdwell.

The evidence showed that the boys saw the train parked behind the store, that one of the cars had ladders on each corner and a catwalk around the top, and that the boys decided to climb up and see what the view was of the city. Unknown to the boys was the presence of a fully energized, 12,000 volt catenary electrical wire just six feet above the boxcars.

The jury awarded Klein $1.6 million for future lost earning capacity; $9 million for pain and suffering, scarring, humiliation, and loss of life’s pleasures; past and future medical expense and punitive damages against Amtrak and Norfolk Southern.

The plaintiff's attorney are: Jospeh Roda and Dianne Nast at http://www.rodanast.com/

Illegal aliens can recover lost U.S. wages

In Balbuena v. IDR Realty LLC, New York State's highest court, The New York Court of Appeals, declined to bar illegal aliens who are plaintiffs in personal injury lawsuits from recovering wages lost as a result of their injuries.

The Washington Legal Foundation (WLF), as defendants in other similar cases have argued, argued that such awards are preempted by federal law because they undermine federal immigration policy by encouraging more illegal aliens to enter the country.

The court did not agree with the WLF.

BACKGROUND ON THE CASE:

This personal injury tort suit was filed by Gorgonio Balbuena, an illegal alien who was
severely injured while working for Taman Management Corp. Balbuena’s right to recover for his injuries and medical expenses was notchallenged; but Balbuena also claimed that he was entitled to recover the wages he could have earned in this country had he not been injured.

The intermediate appellate court held that he should be able to recover lost wages based on the average wages a similarly skilled worker earns in his native Mexico. Both sides appealed from that decision.

A copy of WLF’s brief is posted on its web site, www.wlf.org.

Daubert watch: Damages testimony based on history of loss not sufficient

Case: Webb vs. Braswell, Mississippi, Supreme Court


Economic Testimony inadmissible.

Case Summary:

The reviewing court ruled that the testimony was proffered for one purpose, to show damages of lost profits as a result of unplanted crops. The plaintiffs (Webbs) brought this testimony forward without ever establishing that they were profitable. Rather, the Webbs had been farming and operating at a loss in the years prior to the farming year which was the subject of this litigation.

Therefore, the amount of damage allegedly resulting from the unplanted crops was not reasonably ascertainable based on the Webbs' past experience, as the rules required. This being the case, any testimony to prove damage to the Webbs was tenuous at best and failed the reliability prong of the Daubert/McLemore test.

See dauberttracker.com for more details....

Economic damages in Pennsylvania personal injury cases

The case law in each states makes the calculation of the damages in personal injury cases a little different in each state. Below are some of key features of economic damage calculations in Pennsylvania personal injury cases.

1. The total offset method is required in all non-medical malpractice personal injury torts. (Kaczkowski v. Bolubasz (Pa. 421 A.2d 1027) However, productivity can be factor in if the person's earning history suggest that his or her wages would have grown at a rate greater than inflation.

2. No income taxes are generally accounted for in personal injury damage calculations

3. Discounting is used in medical malpractice personal injury torts.

Specifically, Act 13, the Pennsylvania Medical Care Availability and Reduction in Error Act ("MCARE") was enacted by the Pennsylvania legislature on March 20, 2002.

Section 510 of MCARE states:

"Future damages for loss of earnings or earning capacity IN A MEDICAL PROFESSIONAL LIABILITY ACTION shall be reduced to present value based upon the return that the claimant can earn on a reasonable secure fixed income investment. These damages shall be presented with competent evidence of productivity and inflation over time. The trier of fact shall determine the applicable discount rate based on competent evidence."

What would Daubert say about those damages? 12.01.05

The situation

Plaintiff is discharged from a job. Ten months later, the plaintiff obtains a substantially equivalent position. After 3 months in the new position, plaintiff voluntarily resigns. There is no reason to believe the plaintiff would not have been able to remain in the job indefinitely. Plaintiff's attorney wants to argue that the earnings in the second job are not mitigating earnings, since the plaintiff resigned?

Does this make sense? What would Daubert say?


Some economists and vocational experts think so:

Voc. Expert and Economist #1 Says:

"I would think that the plaintiff's claims may have merit. Just being hired for a job (placeability) has little to do with the ultimate ability to complete the job tasks and be successful in this position (employability). A comprehensive vocational evaluation would suggest jobs in which the plaintiff could expect long-term success and these positions would be mitigating in nature.

Success on the job is a combination of having the appropriate skills to complete the essential job tasks required in that position AND a general liking of the job and all that it entails...I imagine that there are many jobs for which I would qualify but that I would have a total disgust of doing. In my opinion, it is not the responsibility of the plaintiff to mitigate losses by working in a position which may contribute to long-term frustration, stress, etc.

Voc Expert and Economist #2 Says:

I believe vocational experts can make a strong argument that interests and temperaments should be taken into account in evaluating losses and appropriate mitigation.

Stress (or properly, unhealthy reaction to stress)is the secret killer in our economy. It results from a poor match between work and worker. Chronic pain, either physical or emotional, is a contributor. Previously embedded triggers need to be identified and taken into account in the selection of mitigating employment. Without such analysis we may set the plaintiff up for failure.