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How high can your damages expert assume a plaintiff’s future earnings would be?
In a 2002 federal memorandum, the Court
said:
“Dr. Rice, plaintiff’s expert economist,
is expected to testify as to plaintiff’s economic damages,
that is lost past and future income. In a report dated
December 12, 2001, "Dr. Rice set forth various projections
using an annual wage base of approximately $30,000.00.
Plaintiff’s average annual earnings in the three to five
years preceding the accident were approximately $26,000.
His annual earnings for the five years from 1994 through
1999 varied from a low of $15,895 to a high of $39,536.06
in 1996.”
“On April 29, 2002, Dr. Rice produced a second report
at the request of plaintiff’s counsel. This report based
plaintiff’s ‘impairment of earning capacity’ on projected
annual incomes of $38,481.00 and $76,962.00, which of
course produced much higher economic damages....”
“It is the provenance of the Court to assure that an expert’s
testimony is not based on evidence that is speculative
and conjectural, but is sufficiently tied to the facts
of the case so that it will actually assist the trier
of fact in resolving a factual dispute or to understand
the evidence. Daubert, 113 S.Ct at 2795. The court concludes
that Dr. Rice’s testimony as to his supplemental opinion
based on projected annual incomes of $38,000 and nearly
$77,000 is not sufficiently tied to the facts or supported
by the evidence available to the Court at this time, and
is therefore excluded, subject to the Court’s reconsideration
of the issue should evidence be introduced at trial provide
sufficient factual basis for such testimony.”
Scardina v. Maersk Line, LTD., 2002 U.S. Dist. LEXIS 13468
(E.D.LA. 2002).
Dr. Tom Ireland recently made the following observations:
“This appears to be a case in which the retaining attorney
asked Dr. Rice to use higher projections of earnings in
his second report than could be justified on the basis
of the plaintiff’s earnings record. Presumably, Dr. Rice
simply did what he was asked to do, but the Court found
Dr. Rice’s new calculations too far removed from amounts
that could be supported by the record to be helpful to
the jury under Rule 702 of the Federal Rules of Evidence.”
Email Dr. Ireland at: ireland@umsl.edu
Note: case citations dealing with damages issued are compiled
by Dr. Ireland and may be accessed at www.umsl.edu/~ireland.
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