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

Expert Directory Listing for Daubert-Quality experts ONLY

According to an email solicitation from, The Daubert Expert Witness directory, (http://www.daubertexpertwitness.com/) the group has created a new expert listing service. The new service will contain only those expert witnesses who can confirm that they have successfully defeated a Daubert challenge.

The charge for a listing is $495 a year for experts. Free for attorneys. Experts have to be able to prove they have survived a Daubert challenge in the past. The FAQ does not say that having your testimony excluded makes you ineligible; you just have to have survived one challenge in the past.

All and all a good idea; we wish them luck on the site.

However, one question comes to mind. What if the expert is 1 (successful challenge) and 29 (exclusions)? Only the 1 successful challenge will show. Not sure how a listing by this expert would be all that helpful for the potential retaining attorney.

What not to say in a deposition about your spouse...

Below is an excerpt from an economic expert's deposition in a wrongful death case. At this point in the depo, the economist is discussing the role of family income on the calculation of personal consumption.

Q. [By attorney] Did the issue of the amount of the deceased wife, was that relevant to any of your -- any of your calculations?

A. [By economist] It would have been. But I didn't get any idea of what her earnings were. If I had had some idea, it would have impacted (the analysis)... Normally, when people are living together, part of the spouse's income would be consumed by the decedent. In this case, though, they weren't living together.

And the extreme example of that would be if my wife died, economically I would be better off. She doesn't work. She wouldn't be consuming any of my income. That's the extreme view of it. But, again, I saw nothing in her (deceased's wife) deposition indicating how much she worked, how much she made, anything like that to where I could take that into account.

Economic damages testimony at an employment arbitration

Presenting economic damages testimony at a arbitration is bit different from doing the same at a trial. At an arbitration there is no jury. Instead it is more like a bench trial in a more informal setting, usually an attorneys office. Plus the time allotted for economic damage testimony is usually a lot shorter.

Most importantly, since the trier of fact is not a jury, there is little need to go thru a lot of the areas that you would with a jury trial. For instance, the arbitrator is more than likely familiar with the concept of discounting. Just telling them what the discount factor is (and reinforcing that a high discount factor means low damages and vice versa is usually enough.)

Here is one line of questions (based on recent economic damages testimony in an employment termination case)

1. Briefly introduce the economists to the arbitrator

2. What were you asked to do? At this point, unlike during the writing of the report, the response by the economist will be more pointed and direct.

3. In performing your economic analysis of the plaintiff's economic damages, what did you review? For the sake (and sanity) of all involved, the economist's response should be general but all inclusive. For example, "I reviewed several classes of documents. These included, pleadings, payroll records, tax returns, and retirement information"

4. Generally can you describe what you did? This is short and sweet. "I compared the income the plaintiff was making prior to her termination to that which she is currently making" Briefly describe what the before and after termination packages included.

5. Quickly go more into detail in what was done.

- Hit earnings, future increases, what the discount factor was that was used.
- Explain what was NOT included.

Inside the witness box: the funny things economists say

Here are some simply priceless funny experiences of actual economists. The names that posted them to a popular economics listserve have been removed to protect the guilty parties, enjoy! (thanks economics listserv)

Act I

Attorney - Now you said over 80% of your work comes from litigation support?
Economist - Yes, sir.

Attorney - That means most of your income comes from working on calculations related to law suits?
Economist - Yes, sir.

Attorney - And that means you spend almost all of your time working with attorneys?
Economist- Yes, sir. Each job has its own cross to bear.

Act II

After a quite long cross exam, during which I answered ‘yes sir’ and ‘no sir’ as often as possible the attorney asked me: “Doctor, I guess all your years in the military got you into the habit of answering yes sir and no sir.” I just looked at him and said “No sir, my mother taught me that.”

Act III

Attorney: Doctor, are you a financial advisor? Do you help people with their investments?
Economist: No Sir... well, that is not exactly correct. I am helping a bank trust department evaluate a specific portfolio and I do help my Mother-in-Law when she asks.

Attorney: You help your Mother-in-law? Does she pay you for your advice?
Doctor: No Sir, but she lets me sleep with her daughter.

Act IV

Economist: You keep asking me the same question twice.
Attorney: I'm sorry but I had to repeat my economics course.
Economist: So because you had to repeat economics you have to repeat your questions.

New forensic economics blog...welcome!

Ralph Fresco, and economist in Dayton, OH, has a wonderful new blog, titled 'The Forensic Economist' @

http://forensiceconomist.blogspot.com/

from his site:

'This blog is mainly concerned with topics of interest to forensic economists. This would include posts on the evaluation of damages in litigation. Of primary interest are economic issues related to litigation in personal injury and wrongful death suits. However, economic issues that involve other types of litigation may also be discussed.'

Welcome!

When attorneys become expert witnesses

Attorneys in the Wal-Mart break-time class action appeared in a Philadelphia Common Pleas courtroom Tuesday to debate the plaintiffs' request for counsel fees totaling more than $46 million. Among the fees-related expert witnesses called to the stand by the retail giant during the hearing was Ralph Wellington, chairman of Schnader Harrison Segal & Lewis. Wellington who oversees his firm's billing structure, was Wal-Mart's expert on the reasonableness of class counsel's rates.

Read the entire article here: http://www.law.com/jsp/law/LawArticleFriendly.jsp?id=1172656993341

Dispatches from the witness box: Telling the jury about the data that the economic expert used

(continued from 2/10/2007 post...)

After the basic information about how economic damages calculated, the attorney will generally go over the data used in the calculation during the economist's direct . In wrongful death cases with individuals with somewhat checkered past (for example drug use and jail time) and infrequent work histories, the review of documents other than just W-2s and tax returns become very important.

The following illustrate thee trial testimony from such a case.

Question: what data and information did you review?

Ans: Generally, I reviewed all information that tell me about the person's ability to be employed in the labor market. In this case I reviewed all the information that was available that told me about that issue. That includes financial documents concerning his past employment. In this case the only documents that were available were a couple w2s and some documents from his past employer that showed how much he earned.

In addition I also reviewed medical records. In this type of case it is common to review medical records. The medical records tell the economist if there are any factors that will inhibit the person abliity to work. For example, does the person have any physical limitations and/or chemical dependency problems.

In addition, I also reviewed law enforcement and criminal justice records. These are important because it is generally accepted in the economics community that incarceration, arrest and convictions have an effect on a persons wages. The science of economics is very clear that 'run-ins' with the law decrease the projected wages for an individual.

Question 3. In this case did you find the usual information and financial records that you would find?

Answer:

No I did not. The level of financial document in regards to past earnings was not consistent with that of the average stable wage earner.

Question Why? Well for instance there were no tax returns. The only tax document showed that he earned less than 7000. The other documents I reviewed showed earnings less than 12000 a year for a full year.

Question 4: would the average person have filed taxes and had evidence of prior jobs?

Question 5. Did you see any documents that suggest he was getting additional education or training?

Question 6. Would you expect this for the average worker of any race or gender?

Dispatches from the witness box: Direct examination of a defense economic expert in a wrongful death case

The direct examination of an defense economic expert in a wrongful death case tends to go a little differently than the plaintiff's expert. In part, by the time the defense economic expert goes up on the stand, many of the questions that a typical juror will have about what an economist does and the methodology that economists use have been addressed by the plaintiffs.

Rather than go over the same lines of questioning as the plaintiff's attorney some defense attorneys will start the main line of questioning as follows.

Defense attorney: Doctor, can you explain generally how you calculate economic damages in a wrongful death case like this?

Ans: Yes, you generally look at three areas: projected earnings, benefits, and household services. Earnings are..... Lost benefits are the benefits, like health and life insurance, that you would have expected the would have received over his normal working life time....

Household services are the services that the person could have been expected to contribute to the household had they lived. These would include things like the economic value of taking care of the household, mowing the lawn, taking care of the kids...

Defense attorney: Doctor, your methodology is similar to the plaintiffs economic expert is it not?
Ans: yes it is.

[To be continued...]

Dispatches from the courtroom: Using economic expert testimony to tell the jury about the deceased checkered history

In wrongful death cases it is not uncommon for economic experts to unknowly inform the jury with information about the deceased person's history that may not have been otherwise admitted.

In some cases, the information used in a thorough economic analysis requires the economist to review information such as the medical records and criminal records. This type of information can be extremely important in situations where the deceased had a short or sporadic work history.

For instance a person who has a history of drug abuse and incarceration and has not work consistently or regularly will generally have lower expected future earnings than a person with similar past problems who has worked more consistently. In short the latter person, from an empirical standpoint may be past their problems while the former may not be. Economists in court settings routinely use data from various sources to determine the effect of personal behavior factors on wages

Although needed by the economic damage expert, the discussion of the deceased's past drug use or incarceration may be new news to the jury who is hearing the wrongful death case.

The next series of post will discuss the experiences of one our sponsoring economists who recently testified in a high profile wrongful death case.

Witness Box Humor: Worst deposition experience ever!

This has got to be the worst deposition experience ever for all involved! Check out this video of a depostion involving a famous attorney and well respected attorney Joe Jamail and Edward Carstarphen of Ellis, Carstarphen, Dougherty & Goldenthal P.C.

It is hilarious.

http://www.youtube.com/watch?v=e12sqYYLJxA