The Western District permits evidence of future lost earning capacity of a minor

By: Justin Ward. This was posted Tuesday, March 13th, 2012

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An interesting article by Sarah Warren Beverly, a Sands Anderson litigation attorney, analyzing a recent federal court decision from Judge Jones that addresses a minor’s ability to claim loss of earning capacity as a component of damages:

The plaintiff bears the burden to prove his or her damages with “reasonable certainty.” Gwaltney v. Reed, 196 Va. 505, 507, 84 S.E.2d 501, 502 (1954). While mathematical precision is not required, such evidence cannot be speculative or wholly based on information gleaned from statistics rather than from facts specific to the individual plaintiff. When the plaintiff is a minor claiming lost future earning capacity as an element of damages, the Virginia Supreme Court has held that the burden of proof becomes nearly insurmountable. However, the Abingdon Division of the Western District of Virginia recently held otherwise, denying the defense’s motion in limine to exclude expert testimony regarding future lost earning capacity, holding that the testimony presented was sufficiently based on data gathered directly from the plaintiff’s own records and family history that it was not considered speculative. Musick v. Dorel Juvenile Group, 2011 U.S. Dist. LEXIS 118354 (W.D. Va. Oct. 13, 2011).

Samantha Musick, five years old, was severely injured during a car accident when she hit her head against the side of her booster seat. Her family filed suit against the manufacturer of the booster seat and intended to introduce expert testimony at trial of Samantha’s loss of earning capacity. The plaintiffs introduced evidence of Samantha’s future earning capacity through an economist and vocal rehabilitation expert. In order to determine her earning capacity, the vocal rehabilitation specialist interviewed the plaintiff’s family members and reviewed her academic and medical records. The expert also assessed the academic history of her family members to determine her expected level of completed education. Based on that information, he determined that Samantha would have the capacity to complete either high school or an associate degree program. This information was compared to the U.S. Census Bureau statistical tables to determine that Samantha’s annual income would result to between $24,000 and $34,000 annually. The economist subsequently took Samantha’s anticipated annual income and calculated her lost earning capacity based on a range of variables including her degree of education and age of retirement, concluding her earning capacity to fall between $576,000 and $1.2 million.

In deciding to allow the evidence, the court distinguished the evidence of damages presented in the case from prior Virginia cases that held the future earning capacity to be too speculative. In Bulala v. Boyd, 239 Va. 218, 389 S.E.2d 670 (1990) the Virginia Supreme Court held that evidence of a child’s future earning capacity was inadmissible because not only was it speculative, but it shifted the burden to the defendant to refute information based on assumptions. Veronica Boyd, through her parents, filed suit against Dr. Bulala for medical malpractice that they claim resulted in birth defects that occurred during child birth. The court instructed the jury that in determining damages for Veronica Boyd, the child, they could consider any loss of future earning capacity. In support of such an instruction, the plaintiffs introduced an economist’s expert opinion regarding the child’s potential earning capacity. The economist looked to the median income for women in metropolitan areas of Virginia and multiplied the number by the normal number of years expected to work based on national averages.

The Court found that the evidence presented did not permit Veronica Boyd to recover for lost future earning capacity. “Estimates of damages based entirely upon statistics and assumptions are too remote and speculative” to establish damages with reasonable certainty. 239 Va. at 233, 389 S.E.2d at 677. While a child is in theory able to claim future lost earnings as an element of his or her damages, the Virginia Supreme Court has “never held that statistical averages alone can form a sufficient evidentiary foundation for such damages.” Id., 389 S.E.2d at 678. In fact, the Supreme Court even found that calculating an infant plaintiff’s damages without any work history or prospect of future earning ability to be “an impossible burden.” Id. This is because the “evidence must relate to facts and circumstances personal to the plaintiff as an individual, not merely to his membership in a statistical class.” Id.

The Court found fault not only with the statistical data, but assumptions made regarding Veronica’s future. The Court stated that in reaching a figure for lost earning capacity, the experts assumed that she would have lived a normal life span, would have been motivated to acquire a reasonable education, would have been motivated to acquire necessary work skills, would have been motivated to work all her life, and would have had the opportunity to do so without hindrance by health, economic, or other factors. The evidence assumes that Veronica would have been spared most of life’s hazards.  Id. There is no ability for the defense to refute any of those assumptions, and they are therefore impermissible.

Judge Jones distinguished the expert testimony presented here from that of Bulala. According to Judge Jones, the plaintiffs’ experts based their opinions not on statistical averages, but rather on data specific to Samantha and her family. However, it would appear that the evidence presented in Musick still assumed that Samantha, too, would be spared life’s hazards. At trial, the jury returned a defense verdict for Dorel Juvenile Group, rendering moot the court’s previous decision to allow evidence of future earning capacity. To date, no other court has relied on Musick to hold that expert testimony regarding future lost earning capacity of a minor is admissible, and the case is not mandatory precedent in Virginia state courts.

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