Day on Torts
A new opinion by the Western Section Court of Appeals in a personal injury case has me scratching my head.
The male plaintiff King was hurt in a car wreck. He claimed damages for loss of earning capacity. He was self-employed in the limestone business and his earnings history in the business was a real issue. The jury awarded $1,050,000 in damages on this element. The trial judge approved the award. The Court of Appeals reversed, saying that the amount was speculative.
Specifically, the Court said “King had no contracts for the sale of limestone. Additionally, King’s main customer bought from other sellers of limestone. Given the track record of King’s business and the uncertainty of sales of limestone, any showing of lost business profits would be speculative and not admissible to show lost earning capacity.” (Footnote omitted.)
Ok. This may be the correct result. But clearly the man had some earning capacity. There was also evidence that he had carpentry skills. The jury believed the plaintiff. So did the trial judge. The issue is whether there is any material evidence to support the verdict.
It does not surprise me that there was no specific proof on future sales of limestone or that the plaintiff had no contracts on the sale of limestone. Are long-term contracts common in the limestone business?
Long-term contracts don’t exist in the professional world. I do not know if I will ever get another client. But the fact that I have managed to make a living for over 24 years and now have enough work to keep three other lawyers and seven other people busy should mean something. If I am injured will my loss of future earnings be speculative? Why not? How can I prove that I will ever get another client? How can I prove that my existing clients won’t fire me tomorrow? How can I prove that the Legislature is not going to eliminate the rights of my future clients and therefore run me out of my practice?
This man apparently had some earnings problems in his business. He had no long-term contracts. His customers used other suppliers. Can’t a jury weigh that all out and determine whether or not the man probably suffered a loss of earning capacity because of his injuries and if so in what amount?
The Court of Appeals threw out the testimony of the plaintiff’s loss of earnings expert, saying it was speculative. I can’t tell from the opinion what the man said so it is a difficult to know whether his testimony was appropriate or not. I do know this: the future is always uncertain. It is entirely possible that you will die before getting to the end of this post. Not likely, but possible.
You cannot take “uncertainity” out of calculations of future damages. Period. It will always be there. Joe Six-Pack working in a factory has no way of knowing that his job won’t be shipped to China next month. In an employment at will state no one knows whether he or she will have a job tomorrow. And while I agree that proving damages for a self-employed person is more difficult than it is for a salaried or hourly worker the law should not erect unrealistic barriers to proof of damages for the self-employed. Uncertainity of future events is part of life, and it is unfair for courts to require unreasonable certainity in an uncertain world.
Twelve citizens of Maury County listened to the evidence and found enough certainity. An experienced trial judge affirmed the verdict. Apparently the 13 of them did not think the testimony on this issue was speculative and you can be assured that the defendant attempted to prove and argued that it was.
By the way, how old was the plaintiff? What were his prior earnings? Wasn’t it possible to remit the verdict rather than order a new trial on this element? The Court of Appeals said “no – to remit the verdict would destroy it.” Perhaps, but since the opinion does not give any information about the man’s earnings or his age future litigants and judges have no guidance from this opinion on how to evaluate motions to remit in the future.
The Court also reversed the trial court-approved future medical expense award. Why? Read this: “In each of their testimonies, each doctor stated to a reasonable degree of medical certainty that King would require medical treatment for the rest of his life because of the injuries he incurred from the accident. Further, each doctor stated that the previous year’s medical expenses would be a reasonable estimate of the costs King would incur per year as a result of the accident. In addition, Appellees presented all of King’s medical bills incurred as a result of the accident. The parties have also stipulated as to the amount of medication expense King will incur per year in addition to his medical treatment expenses. Taking this evidence as true and as a whole, we cannot say that this evidence can support the full extent of the jury’s award for future medical expenses.”
What? The award for future medical expenses was $225,000. The past medical expenses were $75,000+. The opinion does not tell us what amount was spent in the previous year; maybe that number multiplied by plaintiff’s life expectancy (also not stated) does not approximate $225,000. But what else is a plaintiff supposed to do? Assuming the numbers work out (and remember that the jury is charged about inflation and present value) hasn’t the plaintiff met his burden of proof on this issue? And it the numbers don’t add up why not just state what they are?
The biggest problem I have with this opinion is that it will be used by lawyers across the State to attempt to exclude loss of earnings experts and future medical expense experts and the lack of facts in the opinion make it difficult to understand why the Court did what it did. Maybe this decision is correct. Maybe the plaintiff’s loss of earnings expert framed his opinion in such a way as to render it inadmissible. Maybe the plaintiff is fifty-five and never made more than $10,000 a year. Maybe the plaintiff was sixty-five and the medical expenses for the previous year were only $1000 which would make a $225,000 future medical expense award patently unreasonable. But I cannot figure out from this opinion whether the Court’s decision is correct or not. And neither can trial judges who are going to have to make decisions on what evidence should go in on such points in the future.