Calculating lost wages for foreign workers killed in the U.S.

Calculating damages for individuals who reside in other countries but are killed or injured in the U.S. is difficult. In these types of cases, we typically do not have sufficient knowledge, and/or data on a number economic factors that we usually consider when performing economic earnings or revenue loss. For instance, many countries do not have and maintain data that can be easily used to calculate personal consumption factors. In some instances, determining the amount of taxes the individual might have paid in the foreign country may also be difficult.

In the next few post, we will be discussing a case, Ostrowiecki vs. Aggressor Fleet, Ltd., CIVIL ACTION No. 07-6598,CIVIL ACTION No. 07-693, United States District Court in Louisiana, that deals with the death of a Brazilian business owner.

Hot tubbing Expert Witnesses

In a recent New York Times article ADAM LIPTAK's article discussed the potential problems associated with having experts that are hired by the individual parties. One interesting possibility to deal with the dueling experts is call 'hot tubbing experts'. While not nearing as fun as it sounds, in the process, (also called concurrent evidence), experts are still chosen by the parties, but they testify together at trial — discussing the case, asking each other questions, responding to inquiries from the judge and the lawyers, finding common ground and sharpening the open issues. The process has been used in Australia

A high stakes way of handling Daubert motions

How do most judges handle Daubert motions? Do they hold pre-trial hearings or just rule based on briefs?

One Federal Judge has an interesting approach to handling Daubert motions. He decides all motions right at the time the expert is to testify live at trial. When the challenged expert comes up, the Judge sends the jury out of the room and then allows the challenging side to cross examine the challenged expert witness.

The stakes are high because if the Judge allows the expert to testify then the time that the challenging party spent crossing the challenged expert witness is deducted from the challenger's allotted time. If the challenging party wins, then the time spent crossing the challenged expert is deducted from the challenged expert's side (the challengee?).

Needless to say, attorneys think long and hard in this judge's court before bringing a Daubert motion.

Judge says: Let them both in!

In a N.J. employment discrimination case, Judge William Walls, faced with dueling stats experts found both of the cases to be admissible.

Background and case from www.dauberttracker.com

The plaintiffs were former and current employees of the defendants Johnson & Johnson. The plaintiff filed an employment discrimination suit on behalf of themselves and other similarly situated employees against Johnson & Johnson. The case was filed pursuant to Section 1981 of the Civil Rights Act of 1871, as amended by the Civil Rights Act of 1991, and the New Jersey Law Against Discrimination, N.J. Stat. ¤ 10:5-1.

The expert statistical report, prepared by Dr. Janice Madden and Dr. Alexander Vekker ("Madden Report"), was relied upon by the plaintiff to support their claim of commonality. Defendant filed a motion to strike the Madden Report arguing that (1) the Madden Report was irrelevant to class certification and therefore "unfit" under Daubert and (2) the Madden Report was unreliable.

The Madden Report concluded that from 1997 to 2003: (1) African American employees were less likely than comparably qualified white employees to be selected for promotion, (2) African Americans and Hispanics had lower base salaries than comparably qualified whites, and (3) there was an average wage differential at hire by race and ethnicity. The court rejected defendant's motion to preclude the Madden Report in light of the fact that the Madden Report controlled for job hierarchy, job function, age, tenure at Johnson & Johnson, and education.

The court held that Dr. Madden's regressions were not so incomplete that they were unreliable or irrelevant.

The Defendant submitted the Wise Report prepared by Dr. David Wise, an expert on statistical data, to support its contention that the Johnson & Johnson companies were not a single class environment for the purpose of class certification. The Wise Report concluded: (1) there was no common pattern of compensation and promotion consistently adverse to African American and Hispanic employees, (2) the data were inconsistent with the assumption that the determinants of compensation and promotion were the same at all Johnson & Johnson companies, (3) few of the estimated minority effects were statistically different than zero, and (4) to the extent that there were differences in compensation and promotion, they were small and could be explained by small differences between the job-related attributes of minority and white employees.

The court denied plaintiff's motion to strike the expert report as it concluded that the report was not so fatally flawed as to be inadmissible as a matter of law.

Therefore, the court denied both the plaintiff and defendant's motion to strike each other's expert

What some judges think about economic testimony

A task force of judges, attorneys and economists were tasked with determining if economic evidence in anti-trust cases was useful or confusing to judges and juries. In a nutshell, the economists generally believed that their testimony was useful and not confusing. In contrast:

“A majority of Task Force members believe that there is a problem with confusing economic testimony in the federal courts....some characterize the problem as significant and others characterize it as only modest…"


See, 'Final Report of Economic Evidence Task Force" August 1, 2006' (at the bottom of the page..)

Relying on the words and works of others

Daubert on the web reports that decision in Linn v. Fossum, No. SC05-134 (Fla. Nov. 2, 2006) limits experts ability to rely on consultations with colleagues and related experts. This cases has the potential to affect the way that economists and vocational experts work together. For more, see:

Experts May Not Testify on Direct to Reliance on Consultations with Colleagues, Florida Supreme Court Rules