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A child’s lost earnings

Injured tot has earning capacity up to $1.2M, experts say

A family suing for their 5-year-old daughter’s traumatic brain injury can use expert opinions to prove more than $500,000 in lost earning capacity after the child’s 2009 automobile accident, a federal judge says.

This month’s ruling in a $20-million products liability case could provide an opening for plaintiff’s lawyers to expand the scope of damages in cases involving young children with permanent serious injuries. Under a 1990 ruling from the Supreme Court of Virginia, evidence of a child’s future lost income generally had been considered too speculative to allow at trial.

Abingdon U.S. District Judge James P. Jones said he will allow the evidence, in his Oct. 13 published decision in Musick v. Dorel Juvenile Group Inc. (VLW 011-3-570).

Five-year-old Samantha Musick received a devastating brain injury in 2009 when her family’s minivan was struck from behind by a car whose driver was texting, according to pleadings filed in the case. Although Samantha was secured in a child car seat, she was the only occupant of the minivan with serious injury from the accident in Bristol.

The damage was severe. “She went from being a vibrant, active, intellectually curious little girl to someone who has totally lost the ability to think and take care of herself,” said Roanoke attorney S.D. Roberts Moore, Samantha’s lead counsel.

In her lawsuit, Musick claims her brain damage was the result of poorly designed, unpadded “wings” on the side of the car seat. Dorel, maker of the car seat, contends the child’s injuries were caused when her father, who was not wearing a seat belt, was pushed into the girl by the forces of the crash.

Dozens of motions have been filed and a magistrate judge this month clipped Dorel’s wings on one of its defenses for the company’s failure to produce documents requested in discovery. The judge is threatening to make Dorel pay the plaintiff’s attorneys’ fees incurred in that discovery dispute.

The ruling on lost earning capacity breaks with most Virginia court decisions on the subject, said Abingdon’s Mary Lynn Tate, a former president of the Virginia Trial Lawyers Association.

“I can remember many occasions in courts in this area, judges ruling infants’ loss of earnings was speculative,” she said.

The touchstone case was a 1990 Supreme Court of Virginia opinion in Bulala v. Boyd, 239 Va. 218. Lawyers for a newborn who suffered a crippling birth injury put on statistical evidence of probable lost earnings, using an economist testifying about population averages. The court rejected the evidence as speculative.

Later, the 4th U.S. Circuit Court of Appeals similarly rejected projections of future lost earnings for a 15-year-old girl with a solid academic record who suffered traumatic brain injury.

Faced with that precedent, Moore and the other lawyers for Samantha Musick assembled detailed evidence to support a claim for her lost earning capacity. They argued their vocational expert was relying more on information particular to Samantha and less on generalized statistics.

Vocational rehabilitation specialist Peder Melberg of Richmond interviewed the Musick family and two physicians who had evaluated Samantha. Melberg reviewed medical records and educational records for the whole family.

Melberg concluded that, if not for her totally disabling injuries, Samantha would have had the capacity to complete high school or an associate degree. Based on Melberg’s findings, an economist determined the present value of Samantha’s lost earning capacity is between $576,000 and $1,195,074.

Dorel moved to exclude the testimony, arguing the experts were trying to quantify lost earnings for someone almost a decade away from being able to legally hold a job. “[A]ny prediction as to the vocational path or potential earnings of a five year old is necessarily pure speculation and guesswork,” wrote Dorel counsel Lynne Jones Blain of Richmond.

But the judge said these experts’ opinion were “materially different” from the more generalized earnings evidence used by experts in the two prior cases. Musick’s experts, he said, “combine facts personal to the plaintiff with national data that corresponds to the individualized evidence.”

The resulting evaluation, Jones said, complies with Virginia’s requirement of “a more individualized analysis” of lost earning capacity.

“The fact that the plaintiff’s ascertainable characteristics are limited by her youth is unavoidable and should not prevent her from presenting evidence to a jury of lost earning capacity,” Jones wrote.

“I think there’s definitely a great road map there,” Tate said. “I hope other courts will look for guidance to this opinion.”

Charlottesville plaintiffs’ attorney M. Bryan Slaughter said trial lawyers had been looking for a case that might lend itself to the use of individualized information. “I think the key is just being conservative with it,” he said.

Slaughter said even assuming a minimum wage job, “you would still have substantial earnings over the life of a child.”

A leading defense lawyer warns the Jones opinion presents a “dangerous proposition.” Elizabeth G. Perrow of Roanoke, secretary/treasurer of the Virginia Association of Defense Attorneys, said a 5-year-old’s academic records and interviews with the partisan parents provide little basis to distinguish the precedents.

“To allow the admissibility of such speculative damages prejudices the defendant,” Perrow said. “When such evidence is admitted, it is nearly impossible to combat it in any meaningful way.”

Slaughter is unpersuaded. “I feel quite confident our friends with the defense bar will come up with a way to challenge this evidence,” he said. “They can always find experts who will challenge the assumptions of the plaintiff’s experts.”

Blain, lead counsel for Dorel, did not return a call for comment.

VLW 011-3-570

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