Experts may testify about lost earnings at damages trial

Experts’ conclusions about the lost earning capacity of a woman injured in a motor vehicle accident were not based on an unfounded assumption of full-time employment, or “entirely upon statistics and assumptions.” The defendants can cross examine the experts about the woman’s actual employment history and the role it played in forming their respective opinions.

Background

Susan P. Hollenbeck filed this personal injury action against Emmanuel Trikilis and Elite Contractors Inc. The action arises from a motor vehicle accident that occurred Nov. 17, 2017. Defendants have admitted liability for the accident, and a trial on damages is currently scheduled to begin May 19, 2021. The case is presently before the court on defendants’ motion to exclude expert testimony related to plaintiff’s alleged loss of earning capacity.

Defendants’ motion asks the court to exclude certain opinions offered by Robert Jackson and Dr. Timothy Carpenter. Mr. Jackson is a certified rehabilitation counselor who specializes in vocational rehabilitation. Dr. Carpenter is a forensic economist.

Mr. Jackson was asked to formulate opinions on the vocational implications of the injuries that plaintiff sustained in the accident, including any loss of earning capacity. In a report dated June 25, 2020, Mr. Jackson opined that plaintiff sustained a “total loss of earning capacity” due to the injuries she sustained in the accident and the resulting work-related limitations imposed  by a physician.

Dr. Carpenter utilized the report prepared by Mr. Jackson to calculate the “estimated economic losses due to lost earning capacity.” Dr. Carpenter determined that the total amount of plaintiff’s estimated lost earning capacity is $229,394, which, when discounted to present value, is equivalent to $206,633.

Analysis

Defendants have moved to exclude the financial projections provided by Mr. Jackson and Dr. Carpenter. Defendants argue that the experts’ opinions related to plaintiff’s alleged loss of earning capacity for full-time employment are based on unfounded assumptions rather than her actual work history.

Although plaintiff only worked approximately three days per week following the accident, her pre-accident work history includes full-time employment as a Walmart cashier. Moreover, the record indicates that plaintiff stopped working for Walmart in order to care for her deceased son’s young child and that she was seeking to return to the workforce at the time of the accident. Based on the current record, the court is unable to conclude that the experts’ opinions as to plaintiff’s loss of earning capacity are based on an unfounded assumption of full-time employment or otherwise inadmissible.

The court is likewise unable to conclude that plaintiff’s experts relied “entirely upon statistics and assumptions” in evaluating her loss of earning capacity. Instead, their reports “combine facts personal to the plaintiff with national data that corresponds to the individualized evidence.” Mr. Jackson’s report indicates that he personally interviewed plaintiff and considered her medical history, education, skills and work history. He used this individualized data to determine whether plaintiff is unemployable as a result of the accident and to calculate her pre-injury earning capacity for full-time employment.

Dr. Carpenter then utilized the report generated by Mr. Jackson to assess the present value of plaintiff’s alleged loss of earning capacity. Because Mr. Jackson and Dr. Carpenter “base[d] their conclusions on information personal to the plaintiff,” the court is satisfied that their proposed testimony “complies with the Supreme Court of Virginia’s call for a more individualized analysis of lost earning capacity.”

The court believes that the points made by defendants go to the weight of the experts’ opinions rather than their admissibility. Defendants will be free to cross-examine Mr. Jackson and Dr. Carpenter regarding plaintiffs’ actual employment history and the role that it played in forming their respective opinions. Defendants will also be able to elicit testimony from plaintiff regarding her previous jobs and compensation.

Defendants’ motion to exclude expert testimony related to plaintiff’s loss of earning capacity denied.

Hollenbeck v. Trikilis, Case No. 7:19-cv-00676, Nov. 12, 2020. WDVA at Roanoke (Conrad). VLW 020-3-550. 6 pp.