Michael A. Bottar, Survey of Economic Damage Proof In New York Personal Injury Cases (©2012)

Survey of Economic Damage Proof In New York Personal Injury Cases

Michael A. Bottar, Esq. Bottar Leone, PLLC 1600 AXA Tower II 120 Madison Street Syracuse, NY 13202 T: (315) 422 3466 F: (315) 422 4621 [email protected] www.bottarleone.com In and For Upstate New York. Since 1983.

Survey of Economic Damage Proof In New York Personal Injury Cases P a g e | 1

©2012 Michael Anthony Bottar, Esq. · Bottar Leone, PLLC · 1600 AXA Tower II · 120 Madison St. · Syracuse, NY 13202 · (315) 422-3466 · bottarleone.com

About the Survey

The Survey is a 20,000 foot overview of New York case law. It is intended to

provide only a starting point for the Bar. Whether by accident or design, case law cited

herein is not exhaustive. Further, there may be minority or contrary case law on any

given point.

Questions, comments, or concerns, as well as requests for reproduction, should

be submitted to the author by email at [email protected].



Table of Contents

I. Language of Damages 3 a. Voir Dire 3

i. Media 3 ii. Specific Damage Figures 4

b. During Trial 4 i. Relative Wealth 4

II. Categories of Economic Damages 5

a. Lost Earnings 5 i. Plaintiff Only 8 ii. W2s, Tax Returns and/or Payroll Records 10 iii. Plaintiff’s Employer 12

b. Lost Earning Capacity 13 c. Loss of Medical Benefits 15 d. Loss of Household Services 15 e. Loss of Parental Guidance 18 f. Loss of Grandparental Guidance 20 g. Loss of Services of Child 21

III. Working With Damage Experts and Witnesses 22

a. Generally 22 b. Investigating Qualifications and Experience 23

i. Frye 23 c. Expert Retention 24 d. Foundation For An Economic Damages Award 25

i. Therapists 26 ii. Doctor of Osteopathy 26 iii. Mental Health Professionals 26 iv. Plaintiff 27

e. Damage Experts 27 i. Life Care Planner 27

1. Generally 27 ii. Vocational Rehabilitation Counselor 29

1. Generally 29 2. Pretrial Concerns 30 3. In The Courtroom 31

iii. Economist 34 1. Generally 34 2. In The Courtroom 35

IV. Common Damage Expert Issues 37

a. Missing Witness 37 b. Visuals 37 c. Life Expectancy 38

About the Author 53



I. Language of Damages a. Voir Dire

Practitioners on both sides of “vs” seek insight into a prospective juror’s views

about damage awards, including whether the juror has been influenced by media

reports about “frivolous lawsuits,” and “astronomical verdicts,” as well as insurance

industry public relations campaigns comparing the civil justice system to a lottery and

painting doomsday scenarios about the effects of large damage awards on policy

premiums, job growth, etc.

i. Media

Logically, practitioners want to ask jurors questions about their response to what

they see and hear in their daily lives. Concerns by all involved are heightened as

questioning during voir dire approaches the forbidden topic of insurance.1

This issue of a juror’s familiarity with and reaction to literature, advertisements

and other information pertaining to damage awards was addressed by the Fourth

Department in Graham v. Waite. See 257 N.Y.S. 2d 629 (4th Dept. 1965). This is a

permissible line of inquiry. In Graham, the trial court instructed counsel that he should

“refrain from asking the jury panel or any members thereof any questions relating to

insurance or insurance companies except the items specifically enumerated in CPLR

4110.” Id. at 630. On appeal, the Fourth Department disagreed, stating that “the matter

of dissemination through various news media of the impact of monetary awards in

1 It is well-settled that counsel may ask jurors whether they are insured by the defendant’s insurance company or hold a financial interest in the company. See, e.g., Rinklin v. Acker, 125 A.D.244 (2d Dept. 1908).



negligence cases upon automobile liability insurance rates may be a proper subject for

exploration upon voir dire examination of a jury panel.” Id.

ii. Discussion of Specific Damage Figures

Often, practitioners want to know whether a juror would struggle with returning a

verdict for a specific damage figure, be it $1.00, $100.00, or $1,000,000.00. When

questioning a prospective juror during voir dire about his or her attitude toward a

specific figure, practitioners may (should) test a juror’s comfort with a range of figures,

but may not seek a pledge or similar promise from a juror during voir dire to return a

specific amount. The operative word in this context is “indoctrination.” An advocate

may discuss potential damage figures, but may not indoctrinate the jury because it

would, from the outset, deny the opposition a right to a fair and impartial jury. See

generally People v. Rinehart, 962 N.E.2d 444 (2012).

b. During Trial

i. Relative Wealth

The plaintiff should not be described as the little guy fighting the rich and

powerful. See Koufakis v. Carvel, 425 F.2d 892 (2d Cir. 1970). In Koufakis, plaintiff’s

counsel argued in opening that the case was about a “little” and “virtuous” man against

a “powerful and unscrupulous man with untold wealth.” Plaintiff’s counsel also asked

questions of a witness during trial about whether he had been to all five of the

defendant’s five townhomes, and mentioned during closing that a “millionaire” should

not run from accountability. The Second Deparmtment noted that “[r]emarks such as

these, which can be taken as suggesting that the defendant should respond in damages

because he is rich and the plaintiff is poor, are grounds for a new trial.”



The First Department addressed the issue of relative wealth in Reed v. City of

New York, 304 A.D.2d 1 (1st Dept. 2003). The plaintiff in Reed filed suit for personal

injuries suffered as a result of an accident involving a New York City Police Department

motor scooter. During trial, the plaintiff introduced evidence through two doctors that

she would have benefitted from therapies focusing on pain management and cognitive

rehabilitation, but the therapies were not pursued because of financial problems. The

plaintiff testified, over objection, that “I would like to get physical therapy. I would like to

see Dr. Knight on a more constant basis. I cannot afford the fees and I cannot afford

the time out from work.” In response, the defense attorney attempted to ask the plaintiff

questions about her medical insurance coverage. The trial court sustained the plaintiff’s

objection and told the jury that “it’s really not relevant.” The jury awarded the plaintiff $6

million in damages. On appeal, the First Department affirmed the trial judge’s ruling,

stating that evidence of insurance coverage is unavailable in negligence actions. See

also Sobie v. Katz Constr. Corp., 189 A.D.2d 49 (1st Dept. 1993).

II. Categories of Economic Damages a. Lost Earnings

It is well-settled that the plaintiff bears the burden of proving loss of earnings with

“reasonable certainty.” Johnston v. Colvin, 145 A.D.2d 846, 848 (3d Dept. 1988). The

measure of damages must be based, in part, upon the earning capacity of the injured

person before and after the accident. See, e.g., Calo v. Perez, 211 A.D.2d 607 (2d

Dept. 1995) ($150,000 award for lost earnings proper where plaintiff established that he

was making $25,000 prior to accident as a mason and could not return to the



profession); Whalen v. New York, 270 A.D.2d 340 (2d Dept. 2000) (lost earnings award

supported by evidence including documentation of the wages received by union workers

at the plaintiff’s pay scale and documentation of plaintiff’s employment during the period

immediately preceding the incident), citing Nelson v. 1683 UNICO, 246 A.D.2d 447 (1st

Dept. 1998).

If the plaintiff fails to meet her burden, an award of damages may be reduced or

set aside as “speculative.” Beadleston v. American Tissue Corp., 41 A.D.3d 1074 (3d

Dept. 2007) (“[w]hile there was evidence that plaintiff's injuries make his work as a truck

driver more difficult and prevent him from working part time as a mechanic at $15 per

hour, he resumed working as a truck driver shortly after the accident at the same rate of

pay and continued to be so employed at the time of trial, five years later. Also, there

was no proof as to how many hours of mechanic work he lost. Further, despite one

physician's testimony that plaintiff likely would be unable to work as a truck driver at

some point in the future, no one opined as to when that would occur or whether he then

would be unable to do some other, less physical work at comparable pay. Accordingly,

his future lost wages were not shown with reasonable certainty and no award should

have been made in that category”).

As part of an award for lost earnings, a jury may consider the value of fringe

benefits. See Reid v. Weir-Metro Ambulance Serv., Inc., 191 A.D.2d 309 (1st Dept.

1993) (reducing award to total for wage and fringe benefits reflected in record).

However, if fringe benefits are to be considered, there must be evidence as to the

nature and value of the benefits. See Toscarelli v. Purdy, 217 A.D.2d 815 (3d Dept.

1995) (plaintiff’s testimony of receipt of “medical benefits and meals,” without more, was



insufficient to support award). The fringe benefits cannot be hypothetical. See

Hackworth v. WDW Dev., 224 A.D.2d 265 (1st Dept. 1996) (improper to award

damages for benefits the plaintiff would have had if he were to join a union).

Generally, an award for future lost earnings should be based upon the plaintiff’s

occupation at the time of her injury. See Marmo v. Southside Hosp., 143 A.D.2d 891

(plaintiff entitled to award based upon occupation at time of illness, not 15 years prior).2

In the case of a permanent injury, loss of future earnings should be based upon

prospective earnings for the balance of the plaintiff’s life expectancy at the time of the

injury undiminished by any shortening of that life expectancy because of the injury. See

Doe v. State, 189 A.D.2d 199 (4th Dept. 1993) (error to limit future economic loss to

post-injury life expectancy because it would “reward the defendant for having

successfully injured [the plaintiff] enough to shorten her life span”).

When it comes to the self-employed, lost earnings are lost net profits. See

Young v. Utica Mutual Ins. Co., 86 A.D.2d 764 (4th Dept. 1982) (“lost profits means net

profits” calculated by court as receipts less expenses).

Lost work opportunities caused by an injury may be a compensable damage.

See Bielich v. Winters, 95 A.D.2d 750 (1st Dept. 1983) (no basis for lost opportunity

damage where plaintiff’s evidence provided that he obtained all contracts that he went

after and was fully paid).

2 If the plaintiff is not employed at the time of the injury, the correct damage analysis is loss of earning capacity, discussed infra.



There are a number of different ways to introduce proof of an injured plaintiff’s

earnings before and after an injury, including (1) testimony from the plaintiff, alone or in

conjunction with (2) introduction of the plaintiff’s W2s, tax returns and/or payroll records,

and/or (3) testimony from the plaintiff’s employer. Whether the plaintiff should introduce

more than one piece of evidence depends upon a number of factors, including the

credibility of the plaintiff, the nature of the employment, work history, the quantity of

damages claimed, the complexity of damages claimed, and the availability and/or

quality of documentary or other corroborative evidence.

If the plaintiff presents insufficient proof, only nominal damages may be

recovered. See Baker v. Manhattan R. Co., 118 N.Y. 533 (1891) (stating rule).

i. Plaintiff Only

Although risky practice, testimony only from the plaintiff concerning past/current

earnings may be legally sufficient to support a claim for past and future lost wages.

See, e.g., Shubbuck v. Conners, 72 A.D.3d 1154 (4th Dept. 2010) (“plaintiff's own

testimony, without more, was insufficient to establish by a reasonable certainty his loss

of future wages as a result of the accident. In this case, the W–2 forms and tax returns

that plaintiff introduced demonstrated his yearly income post-accident but they were not

probative of a reduction in future wages as a result of the accident because they did not

compare his pre-and post-accident income nor compare his post-accident income with

the income of similarly situated employees in plaintiff's company”); Walsh v. State of

New York, 232 A.D.2d 939 (3d Dept. 1996) (while award for lost earnings was

supported by the record, the award for overtime was speculative, despite evidence that

plaintiff could not work overtime post-injury, as there was no evidence of how much



overtime the plaintiff worked historically or his pay for same); Johnston v. Colvin, 145

A.D.2d 846 (3d Dept. 1988) (with instruction from court about 39 year old plaintiff’s 20.3

year work life expectancy, $257,000.00 award proper based upon plaintiff’s testimony

that she earned $13.84 per hour in the spring of 1985 and that cost of living raises were

annually 3% to 4%). Whether this type of bare bones proof will carry the day depends

upon the Court and, quite frankly, whether the plaintiff can deliver the proof in

convincing fashion.

The Fourth Department held in Butts v. Braun that the plaintiff could recover for

lost earnings because she testified during trial that she had been employed as a

bookkeeping operator earning $10.50 per hour at the time of the accident, and made

$19,419 during the prior tax year. 204 A.D.2d 1069, 1069 (4th Dept. 1994).

However, the Third Department held in Ordway v. Columbia County Agricultural

Society that a plaintiff was not entitled to damages for lost earnings because the only

evidence in the record was her testimony that she was working on a full-time basis

making “$6.00 and something” an hour. See 273 A.D.2d 635, 637 (3d. Dept. 2000); see

also Seargent v. Berben, 235 A.D.2d 1024 (3d Dept. 1997) (where plaintiff first testified

that he was out of work 7-8 weeks and later that he was out of work 13 weeks, offered

no employment records, and where tax returns were insufficiently clear on losses, if

any, it was improper for jury to award lost earnings).



The First Department reached a similar conclusion in DelValle v. White Castle

System, Inc., where the only proof of lost earnings was testimony from the plaintiff about

his prior employment and new job started two weeks prior. See 277 A.D.2d 13 (1st

Dept. 2000); see also Razzaque v. Krakow Taxi, Inc., 238 A.D.2d 161 (1st Dept. 1997)

(testimony of prior part-time employment and new employment starting on the day of

the accident, without support by W2 or tax returns, was too vague to support award);

Kaylor v. Amerada Hess Corp., 141 A.D.2d 331 (1st Dept. 1988) (lost earnings award

not supported by plaintiff’s uncorroborated testimony that he would have made more

money on sea duty than on shore).

ii. W2s, Tax Returns and/or Payroll Records

“It is the plaintiff's burden to establish his own loss of “actual” past earnings with

“reasonable certainty” - e.g., by submitting tax returns and/or other relevant

documentation.” Papa v. New York, 194 A.D.2d 527 (2d Dept. 1993). An expert may

also be offered to explain the information. See, e.g., Vasquez v. County of Nassau, 91

A.D.3d 855 (2d Dept. 2012); Marzano v. YSF Realty Corp., 12 Misc.3d 116 (Sup. Ct.

App. Term, July 3, 2006) (W2, paystub and testimony from economist established

damage for lost overtime).

The attorney plaintiff in Papa filed suit for damages caused by, inter alia, false

arrest, malicious prosecution and civil rights violations and was awarded $76 million.

See Papa, supra. $140,000.00 of the award was for past lost earnings. On appeal, the

Second Department determined that the jury calculated past damages by multiplying by

four the plaintiff’s $35,000.00 salary from seven years prior to the incident (when he was



a fourth-year associate at Seward & Kissel). The Court noted that the plaintiff left

Seward & Kissel in 1979 to practice as a solo practitioner, and provided no

documentary evidence about his income between 1979 and the 1986 incident.

Therefore, the award was set aside.

The Second Department addressed the issue in Poturniak v. Rupcic, 232 A.D.2d

541 (2d Dept. 1996). The plaintiff in Poturniak filed suit for personal injury and lost

wages. Based upon her testimony at trial that she earned $450.00 a week from two

jobs in the months preceding her accident, and despite the fact that her tax returns

provided that she made no more than $12,000.00 annually in the three years before the

accident, she was awarded $68,200 for past lost earnings. On appeal, the Court held

that the plaintiff’s award for lost wages could not be inconsistent with the documentary

evidence that proved earnings of no more than $36,000.00.

The Fourth Department has held that documentary evidence need not be artful.

See Colegrove v. City of Corning, 54 A.D.2d 1093 (4th Dept. 1976) (in case where

plaintiff “operated a small retail establishment which understandably did not have

sophisticated bookkeeping records. He presented documentary evidence of his bank

deposits for the year preceding his arrest and for the year after the arrest. The gross

income for these two years was shown, as was the amount of the orders placed with

suppliers for materials purchased. There was sufficient evidence to permit the jury to

make a determination with reasonable certainty of the financial condition of the business

before and after plaintiff's arrest”).



iii. Plaintiff’s Employer

Testimony from a plaintiff’s employer may provide the basis for a claim for lost

earnings. See Jeffries v. 3520 Broadway Management Co., 36 A.D.3d 421 (1st Dept.

2007). If the testimony is sufficiently concrete, it may carry the day.

The plaintiff in Jeffries brought suit for injuries stemming from an accident. In

support of her claim for lost earnings, the plaintiff testified that she worked as a

“salaried” secretary 10 years prior to the accident and thereafter worked in theatre as a

stage and production manager. The plaintiff did not offer W2s or other documentary

evidence of income. Instead, the plaintiff produced “playbills” evidencing her work in

various community theatre productions, and called an alleged former employer who

testified that she was involved in 6-10 theatre productions with the plaintiff over a 9 year

period. The purported employer provided no documentation. The Court concluded that

there was insufficient evidence to support a claim for lost earnings.

A different result was reached in Caban v. City of New York. See 46 A.D.3d 319

(1st Dept. 2007). There, the plaintiff offered testimony from a journeyman ironworker

union official who was familiar with plaintiff’s work history and an economist to establish

lost future earnings once the plaintiff become a journeyman. He was awarded

$1,000,000.00. On appeal, the First Department held that the jury’s finding that the

plaintiff would have achieved journeyman status was supported by evidence in the

record.



b. Lost Earning Capacity

As with loss of earnings, loss of earning capacity must also be established by the

plaintiff with “reasonable certainty.” Unlike lost earnings, a recovery for lost earning

capacity is not limited to the loss of or diminution in earnings realized before the

accident and, instead, may include an award for damages “based upon future

probabilities.” Huff v. Rodriguez, 45 A.D.3d 1430, 1433 (4th Dept. 2007). Examples of

lost earning capacity include an injury-related inability to: (1) enter the labor market, (2)

return to work, (3) work in jobs that pay better, and/or (4) obtain promotions or otherwise

advance within a field.

Generally speaking, a claim for lost earning capacity requires that one or more

witnesses be asked a very basic set of questions in order to establish foundation for an

award. Those questions should prompt responses that establish proof: (1) of earning

capacity before the injury or death, (2) of diminished earning capacity, (3) that the

incident caused the diminished earning capacity, and (4) of the dollar amount of the

loss.

The easy case is one where the claimant has an established work history before

an incident, and the incident leads to a temporary or permanent decrease in annual

earnings. The more difficult case for lost earnings exists where the claimant’s earning

capacity has not been realized or the work history is sporadic. Examples of the latter

situation include injury to a minor, injury to a student, or injury to a spouse who does not

routinely work outside of the home.



Proof of physical disability may or may not suffice as proof of impaired earning

capacity. The Second Department decision of Alferoff v. Casagrande is illustrative.

See 504 N.Y.S.2d 719 (2d Dept. 1986). The plaintiff in Alferoff lost her eye during an

altercation at school. A lawsuit against the school followed seeking compensation for

lost earning capacity. The plaintiff argued that her injury prevented her from pursuing a

career in cosmetology. The plaintiff’s proof at trial focused entirely upon this field, and

failed to address general limitations on partially blind workers in the workforce, including

diminished earnings. The defense introduced evidence that the plaintiff worked as a

receptionist after her injury and, in fact, made more as a receptionist than she would

have as a cosmetologist. On the records before the trial court, it held that damages for

lost earning capacity were unavailable and the Appellate Division affirmed.

Recovery for lost earning capacity does not require expert testimony. See, e.g.,

Kirschhoffer v. Van Dyke, 173 A.D.2d 7, 10 (3d Dept. 1991). The plaintiff in Kirschhoffer

filed suit for injuries stemming from an accident involving a dump truck. During trial, the

plaintiff testified that she was qualified to work as a secretary and intended to return to

such employment after her child was old enough to go to school. She was awarded

$1.2 million for impaired earning capacity. On appeal, the defendants argued that the

award for lost future earning capacity was based upon speculation. The Third

Department reviewed the record and noted that there were employment opportunities

for the plaintiff in the local school district, that she did not require further training or

education, and that the plaintiff’s child began school five months after the plaintiff’s

accident. Therefore, the plaintiff’s lost earning capacity was “reasonably certain.”



However, where the plaintiff’s lost earning capacity is not self-evident, an expert

may be necessary. See, e.g., Davis v. City of New York, 264 A.D.2d 379 (2d Dept.

1999) (setting aside award for lost earning capacity due to exposure to lead paint,

where record contained “no quantitative evidence as to what the infant plaintiff might

have earned over the course of his lifetime in a vocational setting and presented no

testimony by an economist qualified to assess work-life expectancy or employment

opportunities and how such factors would be diminished due to the infant plaintiff's

condition. Therefore, there was no reasonable basis for the jury to award damages for

the infant plaintiff's loss of earning capacity”).

c. Loss of Medical Benefits

The costs for obtaining medical insurance coverage and unreimbursed medical

expenses are clearly not one and the same. See Schlachet v. Schlachet, 176 A.D.2d

(1st Dept. 1991). The cost of medical insurance is a compensable component of lost

income. See Lamasa v. Bachman, 2005 WL 1364515 (Sup. Ct. N.Y. Cty., Apr. 13,

2005) (jury award based upon expert’s calculations for plaintiff’s medical insurance

costs paid by union through age 65 was proper).

d. Loss of Household Services

“An injured plaintiff’s loss of household services is considered a quantitative

economic loss separate and apart from pain and suffering.” Cramer v. Kuhns, 213

A.D.2d 131 (3d Dept. 1995). As with other categories of economic damages, “future

damages for loss of household services should be awarded only for those services

which are reasonably certain to be incurred and necessitated by plaintiff’s injuries.”

Schultz v. Harrison Radiator, 90 N.Y.2d 311, 312 (1997).



Moreover, a plaintiff is not entitled to loss of household services from the time of

injury through trial unless expenditures were made and costs were incurred. Schultz,

90 N.Y.2d at 320 (where plaintiff relied up gratituous assistance of relatives through

trial, award of $43,096.00 for past household services was improper).

The Appellate Divisions disagree about whether an expert must testify in order to

quantify the value of household services rendered. The Fourth Department has held

repeatedly that an expert is unnecessary as contributions around the house are a topic

within the general knowledge of a jury. See, e.g., Kastick v. U-Haul, 259 A.D.2d 970

(4th Dept. 1999) (where plaintiff’s spouse and family members testified at trial about the

household services performed by the decedent, the trial court erred in dismissing

plaintiff’s claim for loss of household services despite absence of expert as “[e]xpert

testimony, although permissible, is not a prerequisite to establishing the value of

household services”); Ashdown v. Kluckhohn, 62 A.D.2d 1137 (4th Dept. 1978)

(affirming trial court’s exclusion of “proffered expert testimony concerning the cost of

providing an employee to perform household services” because the “jury could use its

own knowledge in assessing how much, if any, pecuniary loss the husband sustained

by virtue of the loss of his wife’s services in performing the household duties”).

Nevertheless, an expert is a good idea. See Presler v. Compson Tennis Club Assoc.,

27 A.D.3d 1096 (4th Dept. 2006) (trial court erred in granting motion in limine precluding

proof on loss of household services because plaintiff “provided detailed testimony

concerning the type and extent of household services provided by the plaintiff before his

accident and, in their offer of proof, presented expert testimony concerning the extent of

the loss of household services and the value thereof”). With or without an expert, a



plaintiff seeking to make a prima facia case should ensure that the record contains

evidence of what the plaintiff did around the house before the injury or death, and the

frequency of the activity. This evidence may come from the plaintiff, friends, family and

neighbors.

The Second Department requires that an expert testify in order to attach a dollar

figure to lost household services. See, e.g., Merola v. Catholic Medical Center of

Brooklyn & Queens, 24 A.D.3d 629 (2d Dept. 2005) (reducing award from $250,000.00

to $50,000.00 because, while the plaintiff “established his claim by producing proof as to

the nature of the services formerly performed by the decedent, he did not produce

expert testimony or other evidence regarding the value of those services”).

A plaintiff’s proof on loss of household services should be specific or the claim

may be stricken. In Serrano v. 432 Park South Realty Co., the plaintiff sought damages

against a building owner for damages he sustained while working at the building. See

59 A.D.3d 242 (1st Dept. 2009). A jury awarded him $600,000.00 for past pain and

suffering, $4,240,000 for future pain and suffering, and $2,302,425 for future medical

expenses. Within the award for future medical expenses was an award of $443,405 for

“rehabilitation,” $710.556 for “care” and $150,111 for “household services.” On appeal,

the First Department noted that it could not determine from the record what the category

of “household services” was meant to cover and, in turn, that component of the award

was vacated.



The First Department visited the issue in Sanchez v. City of New York. See 97

A.D.3d 501 (1st Dept. 2012). In Sanchez, the decedent’s estate brought suit for

wrongful death. At the time of her death, the 27 year old decedent was employed as a

dental assistant, and was the mother of a 5 year old daughter. The decedent and her

daughter lived with the daughter’s father. The father testified that the decedent was a

loving mother who spent all of her free time with her daughter. The father also testified

that the decedent took care of the household, did the laundry, cooking, food shopping,

and taught the daughter how to be a good person. In further support of the loss of

household services claim, the plaintiff called an economist who testified that the

decedent’s daughter’s economic damage for loss of her mother’s guidance through age

21 to be $345,936. This figure was based upon 20 hours of services per week. The

jury awarded $150,000.00 for this category of damages. The First Department affirmed

the award because the expert’s opinion was based upon governmental statistics and

the defendant did not call an expert to challenge the opinion.

e. Loss of Parental Guidance

The loss of a parent may result in pecuniary injury. A child has a right to recover

the reasonable value of parental nurture and care and loss of physical, moral and

intellectual training by a parent. See, e.g., Kenavan v. New York, 120 A.D.2d 24 (2d

Dept. 1986), aff’d, 70 N.Y.2d 558 (1987) (affirming award for loss of parental guidance

following jury charge stating that “you must also take into consideration the intellectual,

moral, and physical training, guidance and assistance he would have given the children

had he lived”); Zygmunt v. Berkowitz, 301 A.D.2d 593 (2d Dept. 2003) (where record



provided that the decedent spent several hours during weekday evenings and

weekends with his kids, was a “wonderful dad,” taught the children to play baseball,

read to them, took them to the movies, bowling, ice skating, to the park, to the zoo and

to any place “a child would enjoy,” the jury erred in failing to make an award for loss of

parental guidance because damages for loss of parental guidance “should represent an

amount which is fair and just compensation for the pecuniary injuries resulting from the

decedent’s death”).

In order to recover for loss of parental guidance, proof at trial should include a

description of how the decedent provided love, guidance and advice to the children.

Even minimal proof in this regard is sufficient to support at least some damages. See,

e.g., Leger v. Chasky, 865 N.Y.S.2d 616 (2d Dept. 2008) (ruling that jury instruction on

loss of parental guidance to decedent's daughter until she reached the age of 21 was

warranted where the decedent father maintained a good relationship with his daughter

and made bimonthly child support payments); Korman v. Public Service Truck Renting,

Inc., 116 A.D.2d 631 (2d Dept. 1986) (plaintiff’s testimony that the decedent performed

certain household duties for her and provided love, guidance and advice to the couple’s

adult sons was sufficient proof to support an award for loss of parental guidance, but not

an award of $150,000.00); see also Bono v. Peter Pan Bus Lines, Inc. 13 F.Supp.2d

471 (S.D.N.Y. 1998) (while adult son of decedent lived in California and was self-

supporting, award for loss of services and guidance could be larger than customary for

adult child because record revealed that he suffered from a learning disability and

compulsive disorder and he relied upon his mother for counseling and advice,

sometimes calling her four or five times a week).



The fact that a child is an adult is not a bar to recovery. See Gonzalez v. New

York City Housing Authority, 77 N.Y.2d 663 (1991).

Awards for loss of parental guidance can be significant. See, e.g., Carlson v.

Porter, 53 A.D.3d 1129 (4th Dept. 2008) (award of $250,000.00 for past loss of parental

guidance and $750,000.00 per child for future loss of parental guidance was reasonable

for three children under 10 whose mother was killed in a motor vehicle accident).

The condition of decedent at time of death is relevant to the analysis. See

Lamarca v. U.S., 31 F.Supp.2d 110 (E.D.N.Y. 1998) (because of the decedent’s ill

health immediately prior to his last hospitalization, the court ruled there could be no

award for loss of services to his wife, or loss of guidance to his adult children).

When evaluating pecuniary losses to children as a result of the death of a parent,

an award may include compensation for medical care for a child. See LaMendola v.

New York State Thruway Authority, 7 Misc.3d 388 (Ct. Cl. 2004) (expert testimony

supported an award of $115 per session for therapy sessions for daughter, every other

week through her 30th birthday, and to son, every other week for life).

f. Loss of Grandparental Guidance

The loss of a grandparent may also result in pecuniary injury where the decedent

provided regular services and support to the grandchildren. See, e.g., Gonzalez v. New

York City Housing Authority, 77 N.Y.2d 663 (1991) (recovery proper where financially

independent, adult grandchildren relied upon their grandmother’s contributions,

including regular shelter, child care, and near-daily meals); Bennett v. Henry, 39 A.D.3d

575 (2d Dept. 2007) (record permitted 20 year old grandson to recover pecuniary losses



for death of grandmother); Ramos v. La Montana Moving & Storage, Inc., 247 A.D.2d

333 (1st Dept. 1998) (award for loss of grandparental guidance proper where plaintiff

established that decedent regularly provided babysitting services to three infant

grandchildren, imparted family cultural and language traditions to the children and

taught the children to speak Spanish); Pullman v. Pullman, 216 A.D.2d 886 (4th Dept.

1995) (recovery for pecuniary loss was required upon uncontroverted evidence that

decedent cooked, cleaned and ironed for her adult children and babysat her

grandchildren).

The standard by which to measure the value of past and future loss of parental

and grandparental guidance is the cost of replacing the decedent’s services. See Klos

v. New York City Transit Authority, 240 A.D.2d 635 (2d Dept. 1997); generally Escobar

v. Seatrain Lines, Inc., 175 A.D.2d 741 (1st Dept. 1991) (where proof at trial established

only that grandfather provided guidance to two adult children when they were very

young, no basis for award for loss of grandparental guidance).

g. Loss of Services of Child

New York recognizes a parent’s right to recover for the pecuniary value of the

loss of services of a child. See Gilbert v. Stanton Brewery, Inc., 295 N.Y. 270 (1946);

James v. Eber Brothers Wine & Liquor Corp., 153 A.D.2d 329 (4th Dept. 1990)

(affirming award of $250,000.00 to parents for loss of adult son killed instantly because

“evidence established that decedent was a 29 year old talented mechanic and a loving

and loyal son who had made significant contributions to his family,” which included proof

that son lived at home, worked around the home 7-8 hours a week, cut wood and

helped his dad build an addition); Abruzzo v. City of New York, 233 A.D.2d 278 (2d



Dept. 1996) (reducing $1.2 million award to $150,000.00 where 27 year deceased son

assisted his mother with care of his disabled brother, but did not provide other services

to the family or any financial support).

Length of the child’s life is relevant to the analysis. See Charles v. Suvannavejh,

28 Misc.3d 1157 (Sup. Ct. Bronx Cty., Nov. 17, 2009) (short life span of mother’s child,

who was either stillborn or died shortly after birth, did not provide basis for a claim for

loss of the child’s services or society).

This category of damages does not include compensation for grief or loss of the

child’s companionship. See, e.g., Devito v. Opatich, 215 A.D.2d 714, 715 (2d Dept.

1995) (“court erred with respect to that portion of the charge which included as an

element of the parents' damage the loss of their minor daughter's society which is not

compensable”); Beyer v. Murray, 33 A.D.2d 246 (4th Dept. 1970) (trial court erred by

permitting jury to consider an award for a father’s loss of services and society of his

son).

III. Working With Damage Witnesses And Experts a. Generally

“A predicate for the admission of expert testimony is that its subject matter

involve information or questions beyond the ordinary knowledge and experience of the

trier of fact. Moreover, the expert should be possessed of the requisite skill, training,

education, knowledge or experience from which it can be assumed that the information

imparted or the opinion rendered is reliable.” Matott v. Ward, 48 N.Y.2d 455 (1979)

(citations omitted).



b. Investigating Qualifications and Experience

As a general rule, an expert should (1) be qualified by training and certification,

(2) know the facts of the case, (3) be familiar with the application of appropriate

methodology, (4) know not to opine on issues of law, (5) ensure that assumptions have

reliable foundation, and (6) offer opinions relevant to the issues before the court.3

i. Frye

The long-recognized rule of Frye v. United States is that expert testimony based

on scientific principles or procedures is admissible but only after a principle or

procedure has gained “general acceptance” in its specified field. See 293 F.1013 (D.C.

Cir. 1923). A party may seek a Frye hearing if there is a question as to whether an

expert's methodologies or deductions are based upon principles that are sufficiently

established to have gained general acceptance as reliable.

The moving party must show, in effect, that the proferred evidence is sufficiently

“novel” to implicate Frye concerns. See Lipschitz v. Stein, 65 A.D.3d 573 (2d Dept.

2009). If the Court agrees that the expert’s foundation or opinions are not rooted in

generally accepted principles, the expert’s opinion(s) may be barred, in whole or part,

as unreliable.

3 A good place for background on an expert is LexisNexis Expert Research On Demand (formerly IDEX) which, for a fee, will provide full-text transcripts, depositions, disciplinary actions, Daubert/Frye challenges, and more. See https://idex.lexisnexis.com/requests/index.jsp?_requestid=55717.



c. Expert Retention

It can be difficult to make contact with your client’s treating physicians, let alone

redirect their attention away from a busy medical practice to focus upon a lawsuit

(especially a medical malpractice lawsuit). As the treating physician is, in fact, an

expert that must be retained, it is important to be polite, yet persistent.

As an initial step, a thorough practitioner will contact the treating physician’s

office in an effort to locate the most important in the office – i.e., the physician’s

scheduling assistant. Contact with the physician’s scheduling assistant gives a

subsequent letter requesting an appointment the air of credibility.4 Emphasis should be

placed on a client’s request that the attorney contact the doctor in order to help the

attorney understand the case (the overwhelming majority of doctors are natural

teachers and will not pass on an opportunity to bestow their knowledge upon you).

Practitioners can drive this point home by including with the letter an HIPAA

authorization recently signed by the client, i.e., proof the client is on board. Providing a

copy of the relevant copy of the records also makes it easy for the doctor to determine

the amount of effort involved in assisting the patient.

If the treating physician agrees to a meeting or telephone conference, it is

prudent to send a confirmatory letter.5

4 An example is included in the Appendix at page 41. 5 An example is included in the Appendix at page 42.



Where phone calls and initial letters to the treating physician go unanswered, a

more sternly worded letter may bring out the desired result. This letter mentions the

prospect of (although does not threaten) a subpoena, absence from practice, and unfair

compensation for the physician’s time.6

When retaining an expert other than a treating physician, it is important that the

expert understand his or her role and responsibilities. To ensure that you and your

expert are on the same page with respect to procedural matters, many practitioners

provide the expert with a letter of engagement.7

d. Foundation For An Economic Award

It is well-known that a physician may lay the foundation for the permanency of an

injury or condition and the medical necessity of care and treatment. Generally,

testimony from a physician about the permanence of an injury and future pain and

suffering is not essential if the injury or symptoms are “objective” or “obvious,“ but is

necessary if an injury or symptoms are “subjective.” See, e.g., Roskwitalski v.

Fitzgerald, 13 A.D.3d 1133 (4th Dept. 2004) (reasonable for jury to make no award for

future pain and suffering); Daviero v. Johnson, 110 Misc.2d 381 (Sup. Ct. Schenectady

Cty., Jul. 21, 1981), aff’d, 88 App.Div.2d 732 (3d Dept. 1982); Horowitz v. Hamburg-

American Packet Co., 14 App.Div. 631 (1st Dept. 1897).

Less well-known is that other healthcare professionals, discussed infra, may also

be acceptable.

6 An example is included in the Appendix at page 43. 7 An example, adapted from Jim Wren’s Proving Damages to the Jury (2001) , is included in the Appendix at pages 44-45.



i. Physical Therapists

A physical therapist may lay the foundation for the medical necessity of items

included in a claimant’s life care plan. See, e.g., Barnhard v. Cybex Intern, Inc., 89

A.D.3d 1554, 1556 (4th Dept. 2011) (plaintiff's physical therapist was qualified to testify

with respect to the medical necessity of certain items of equipment included in the life

care plan”); generally Layer v. Novello, 17 A.D.3d 1123 (4th Dept. 2005) (nurse

practitioner and physical therapist qualified to testify to medical necessity of standing

device for Medicaid recipient diagnosed with spastic quadriplegia secondary to cerebral

palsy).

ii. Doctor of Osteopathy

A doctor of osteopathy may provide the necessary foundation for a damage

award. See Lee v. Riverhead Bay Motors, 57 A.D.3d 283 (1st Dept. 2008) (error for

court to preclude testimony of plaintiff’s treating physiatrist, a doctor of osteopathy, on

the ground that he was not a medical doctor).

iii. Mental Health Professionals

Testimony from a psychologist may form the basis for an economic damage

award. See Neissel v. Rensselaer Polytechnic Institute, 54 A.D.3d 446 (3d Dept. 2008)

(applying rule); Blakesley v. State, 289 A.D.2d 979 (4th Dept. 2001) (same).

Testimony from a social worker may also be acceptable. See Randi A.J. v. Long

Island Surgi-Center, 46 A.D.3d 74 (2d Dept. 2007) (applying rule).



iv. Plaintiff

The plaintiff may provide a portion of the foundation for an award for future

medical expenses. See, e.g., Serrano v. 432 Park South Realty Co., 59 A.D.3d 242

(1st Dept. 2009) (“the rehabilitation (physical therapy) award is supported by the

plaintiff’s testimony that, as of the time of trial, he was going to physical therapy twice a

month and that he would go more frequently if he had the money and the testimony of a

physician specializing in pain management that plaintiff will need physical therapy twice

a week for the rest of his life, at a cost of approximately $120 per visit.”).

e. Damage Experts

i. Life Care Planners

1. Generally

At the risk of oversimplifying the specialty, the role of a life care planner (“LCP”)

is to synthesize the opinions of other experts in order to project the future needs and

expenses of a claimant.

LCPs hail from a number of different backgrounds, including medicine, nursing,

vocational rehabilitation and economics. See, e.g., Barnhard v. Cybex Intern, Inc., 89

A.D.3d 1554 (4th Dept. 2011) (permitting expert testimony from registered nurse who

prepared plaintiff’s life care plan).

At the present time, LCPs are not licensed, although several certifying

organizations have emerged, e.g., The International Commission of Health Care

Certification, The Commission for Case Manager Certification, The International



Academy of Life Care Planners, and The Certified Nurse Life Care Planner Certification

Board.

While a LCP may be qualified to prepare a life care plan, practitioners should not

assume that a LCP is qualified to provide an opinion about the future medical needs

and costs for a claimant. This is not to say that a LCP cannot offer such opinion – just

that a thorough examination of the expert’s background should be undertaken before

trial.

Courts closely evaluate education, training, experience and credentialing when

considering whether a jury will hear from a LCP. The most important aspect of the

analysis appears to be experience. If the LCP has experience, then testimony likely will

be permitted. See generally Fairchild v. U.S., 769 F.Supp. 964 (W.D.La. 1991)

(precluding testimony from life care planner because, despite the witness’s credentials

including a Ph.D., the witness “has merely attended two seminars on rehabilitative

counseling and has done 25 other life care plans”); Marcano Rivera v. Turabo Medical

Center Partnership, 415 F.3d 162, 171 (1st Cir. 2005) (accepting life care planner as

expert after determining that witness had been admitted as an expert in a number of

state and federal courts).



ii. Vocational Rehabilitation Counselor

1. Generally

A vocational rehabilitation counselor (“VRC”) is a witness who is retained to

assess what jobs a person is qualified to perform (or unqualified to perform) and what

those jobs pay. Customarily, a VRC is used to bridge the gap between a treating

physician’s assessment of a claimant’s injury or impairment and an economist’s

assessment of lost earning capacity. A VRC translates the manner in which an injury or

disability affects a claimant’s ability to participate in the labor force by articulating how,

e.g., the loss of mobility limits the number of jobs available that pay greater than

$50,000.00 annually.

More often than not, a VRC will also have experience with preparing life care

plans may be called upon to fill both roles.

Most VRCs will have obtained education from a program or institution accredited

by the Council on Rehabilitation Education (“CORE”), will be certified by the

Commission on Rehabilitation Counselor Certification as a Certified Rehabilitation

Counselor (“CRC”), or by the American Board of Vocation Experts as a Certified

Vocational Expert “CVA”), and may be members of the International Association of

Rehabilitation Professionals (“IARP”), the National Rehabilitation Association, and the

CRC or CVA. Each professional organization has ethical guidelines that may be fodder

for cross-examination.



2. Pretrial Concerns

If a VRC has examined the plaintiff and intends to testify at trial, the defendant

has a right to have the plaintiff examined by his or her own VRC. See Kavanagh v.

Ogden Allied Maintenance Corp., 92 N.Y.2d 952 (1998) (“As a general proposition, in

personal injury litigation, requiring the plaintiff to submit to extensive vocational

assessment procedure might well be unduly burdensome. Here, however, to establish

damages for plaintiff Kavanagh’s personal injuries, plaintiffs retained a nonphysician

vocational rehabilitation expert who was prepared to testify that examination and testing

established her present lack of capacity to perform in the workforce. Plaintiffs thereby

overtly made vocational rehabilitation assessment procedures ‘material and necessary

in the defense’ for the purposes of rebuttal. The opportunity to present a competing

assessment of Kavanagh’s vocational abilities by an expert thus became imperative to

the goal underlying our discovery rules.”).

The Fourth Department has gone on to provide the defense with an opportunity

for vocational examination even if the plaintiff has no plans to call a VRC. See Smith v.

Manning, 277 A.D.2d 1004 (4th Dept. 2000) (granting motion to compel examination

because “plaintiff intends to establish her present lack of capacity to perform in the work

force” making vocational potential relevant and “[c]ontrary to plaintiff’s contention,

Kavanagh v. Ogden Allied Maintenance Corp. is not limited to cases in which the

plaintiff has retained a vocational rehabilitation specialist”); see generally Burger v.

Bladt, 112 A.D.2d 127 (2d Dept. 1985) (infant plaintiff must attend a two hour

examination conducted by a teacher of the neurologically handicapped to assess

language processing and visual observation abilities, a two hour exam conducted by a



psychologist to assess current intellectual ability, and a one hour exam conducted by a

psychiatrist to determine whether neurological problems exist).

The First Department reached the opposite result in D’Amico v. Manufacturers

Hanover Trust Co., 182 A.D.2d 462 (1st Dept. 1992) (defendant “failed to establish

either that the injury sustained by plaintiff in this action requires resort to extraordinary

procedures for its evaluation or that the particular procedures proposed will not unduly

burden plaintiff. In the context of the discovery already conducted in this case, the

proposed [vocational rehabilitation] examination must be regarded as abusive”).

3. In The Courtroom

One issue subject to frequent appellate review is whether a VRC performed

appropriate testing as part of performing a vocational assessment or preparation of a

life care plan.

Most New York State courts hold that a VRC may testify if the proposed expert

interviewed the injured plaintiff. To put it another way, in the absence of an in person or

telephone vocational interview of the claimant, a VRC’s opinion may be lacking

foundation. See, e.g., Aman v. Federal Express Corp., 267 A.D.2d 1077 (4th Dept.

1999) (testimony speculative without interview); Madden v. Dake, 30 A.D.3d 932 (3d

Dept. 2006) (“We are similarly unpersuaded by defendants' challenges to Supreme

Court's trial rulings permitting certain expert testimony. To establish plaintiff's future

economic losses attributable to her causally related permanent moderate disability,

plaintiff—in addition to her own testimony and that of her treating physician—presented

the testimony of a certified vocational rehabilitation expert, Marvin Reed, and that of an



economist. Reed testified that his opinion was based upon plaintiff's medical and

employment records, a structured interview with plaintiff, government publications and

his extensive experience as a vocational rehabilitation counselor. He testified to

plaintiff's functional limits attributable to her physical impairment, her qualified ability to

work in a sedentary capacity as a nurse, her loss of [earnings], and residual earning

capacity and projected earnings based upon her expected work life, and her future

anticipated medical expenses.”).

With regard to medical care, a number of New York courts also hold that a VRC

cannot speak, albeit informally, to a plaintiff’s need for medical care or procedures. See

Donaldson v. Ryder Truck Rental & Leasing, 189 Misd.2d 750 (Sup. Ct. Niagara Cty.,

Nov. 27, 2001). Therefore, best practice may be to have your VRC speak with one or

more of the plaintiff’s treatment healthcare providers, especially if the medical record is

unclear. See generally Dupont ex rel Dupont v. State. 19 Misc.3d 1144 (Ct. Cl. 2008).

Another issue frequently under appellate review is how far an attorney can

extend the witness. That is, whether an attorney can look to a VRC to do everything,

e.g., assess vocational capacity, prepare a life care plan, and project the cost for lost

wages and the life care plan into the future.

The Fourth Department has held that a VRC cannot fill all roles. See Smith v.

M.V. Woods Const. Co., 309 A.D.2d 1155 (4th Dept. 2003). The plaintiff in Smith was

injured while lifting cinder blocks on a jobsite. During trial, he relied upon a VRC to

express an opinion about past and future loss of earnings, past and future loss of

household services, and future medical expenses. The jury returned a verdict for the



plaintiff. The Fourth Department reversed, stating that the trial court abused its

discretion when permitting the testimony as “[n]othing in the record . . . suggests that

[the VRC’s] area of expertise includes assessing past and future loss of earning, past

and future loss of household services or future medical expenses, all of which are

generally the subject of expert testimony by an economist.”

The First Department reached the opposite conclusion in LaFountaine v.

Franzese. See 282 A.D.2d 935 (1st Dept. 2001). The plaintiff in LaFountaine brought

suit for injuries stemming from the absorption of lead from paint chips. At trial, she

called a VRC to prove a number of elements of damages, including future lost earnings

for which the jury awarded $300,000.00. On appeal, the First Department noted that

the trial court did not abuse its discretion when permitting the plaintiff’s VRC to

“calculate[] plaintiff’s projected future lost earnings,” noting that the expert “testified that,

in his expert opinion, plaintiff would be entitled to an award for future lost earnings

based on her medical, psychological and educational history.”

A common pitfall is a situation where a treating physician testifies that the

claimant has one degree of disability and a defense expert testifies about a different

degree of disability. A VRC is not permitted to credit one physician over another. See

Donaldson v. Ryder Truck Rental & Leasing, 189 Misc.2d 750 (Sup. Ct. Niagara Cty.,

Nov. 27, 2001) (“[w]hile a vocational specialist may give opinion testimony on

employment opportunities . . . that rule should not be extended to allow informal

assessment of the need for and cost of future medical procedures . . . .”). Cautious

practice is to instruct the VRC to assume one scenario and base all opinions on that

scenario. In this circumstance, the attorney has removed the choice about how to



proceed (i.e., who to believe), and the potential for harm on cross-examination, from the

witness. Another option is to ask the VRC to prepare an opinion for each scenario.

iii. Economists

1. Generally

Practitioners retain economists for personal injury cases to establish or discredit

future loss of earnings, future loss of earning capacity, and future medical expenses.

Generally, it is unnecessary to call an economist if the claimant’s loss of earnings

or earning capacity is brief. In this situation, the plaintiff likely meets her burden by

introducing evidence of her pre-injury earnings and the length of time before return to

pre-injury capacity, with a suggestion that the damages are the shortfall.

New York courts do not recognize a single set of credentials in order for an

economist to testify as an expert. That being said, there are generally accepted

qualifications, including a Ph.D. in a branch of economics, as well as either a university

faculty position or association with an economics-related consulting firm.

Many economists are members of the National Association of Forensic

Economists (“NAFE”), and the American Academy of Economic and Financial Experts

(“AAEFE”). In turn, practitioners should be aware of NAFE’s “Statement of Ethical

Principles and Principles of Professional Practice,”8 and AAEFE’s “Statement of Ethical

Principles.”9

8 Reproduced in the Appendix at page 46. 9 Reproduced in the Appendix at pages 47-48.



2. In The Courtroom

The success of an economist’s testimony turns in large part upon the information

provided to the expert by the attorney. Where an economist is provided with the

appropriate information from which to base an opinion, courts rarely prevent an

economist from offering an opinion. In this regard, a number of cases are worth

mentioning to illustrate the point.

The plaintiff in Janda v. Michaerl Reinzi Trust called an economist to prove lost

earnings. 78 A.D.3d 899 (2d Dept. 2010). During trial, the plaintiff offered expert

testimony that he was totally disabled. In turn, the economist assumed that the plaintiff

was totally disabled and projected lost earnings. The jury awarded $163,870.00 for past

lost earnings and $1,892,300.00 for future lost earnings. On appeal, the defendants

argued that the economist erred by projecting the plaintiff’s lost earning based upon an

annualization of his earnings for 2005 when the record established that the plaintiff

earned $25 an hour for the first half of 2005, but only $15 an hour for the latter half of

2005 up to the accident. As the plaintiff introduced no evidence that the plaintiff would

have again earned $25 an hour, the economist’s assumption was improper. The

awards for past and future lost wages were reduced to $118,209.00 and $1,324,610.00.

In Vukovich v. 1234 Fee, LLC, the plaintiff called an economist to calculate and

project lost future earnings for a 53 year old construction worker. 72 A.D.3d 496 (1st

Dept. 2010). The jury awarded $2,103,249.00. On appeal, the First Department noted

that the expert erred by assuming that the plaintiff would work as a steamfitter 50 weeks

a year for another 12 years under a collective bargaining agreement negotiated by

Local 638 of the Steamfitters Union. The expert ignored the fact that the plaintiff had



been working for Local 355 of the Services Workers Union at wages substantially less

than those available through Local 638. As the expert’s damage projection was based

upon inflated wages and too many hours (i.e., unfounded assumptions), the appellate

division affirmed the trial court’s reduction to $1,000,000.00.

A similar error was made in Imbierowicz v. A.O. Fox Memorial Hospital. See 43

A.D.3d 503 (3d Dept. 2007). In Imbierowicz, the plaintiff called an economist to

establish past and future lost wages. The economist based his calculations on what the

decedent would have earned as a construction worker upon average income data for

construction workers in the cities of Albany, Schenectady and Troy. The economist

conceded that the data did not include earnings for Delaware County, the rural area

where the decedent lived and worked. The plaintiff’s widow was awarded more than

$1,000,000.00 for pecuniary losses. On appeal, the Third Department held that the

economist’s opinion was speculative and a new trial on pecuniary damage was ordered.

It is unwise to ask an economist to function as a VRC. See, e.g., Jones v.

Catalano, 29 Misc.3d 1215 (Sup. Ct. Albany Cty., Oct. 20, 2010) (economist could not

testify about the plaintiff’s earning potential “without lead paint exposure” as the

assumption was not “found in the record, personally known to [the economist], derived

from a professionally reliable source or from a witness subject to cross-examination”);

DePeigne v. Medical Center and Medical and Health Research Association of New York

City, Inc., 251 A.D.2d 47 (1st Dept. 1998) (economist could not testify about the costs

associated with raising a blind child as there was no evidence in the record).



It may be improper for a jury to award more economic damages than the

maximum projection offered by an expert economist. See Hersh v. Przydatek, 286

A.D.2d 984 (4th Dept. 2010) (award improper where “[p]laintiffs’ expert economist

testified that the cost of future medical care for plaintiff was $1,733,439, and the record

does not support an amount greater than that”).

Where a plaintiff’s expert economist testifies with proper foundation about

economic damages, it may be difficult to challenge the size of jury award if the

defendant did not call an economist to refute the testimony of the plaintiff’s expert. See

DeOrdio v. Teresi, 65 A.D.2d 980 (3d Dept. 1978) (upholding jury’s award of

$400,000.00 for future lost wages following testimony from plaintiff’s economist that

damages were $765,000.00 because record supported award and defendant did not

call an expert).

IV. Common Damage Expert Issues a. Missing Witness

The defendant has a right to a missing witness charge where the plaintiff retains

for trial, but does not call, an economist. See Dickerson v. Woodbridge, 274 A.D.2d 945

(4th Dept. 2000).

b. Visuals

As a general rule, the use of charts during summation may be authorized

provided the material depicted pertains to matters in evidence. See Carroll v. Roman

Catholic Diocese, 26 A.D.2d 552 (2d Dept. 1966), aff’d, 19 N.Y.2d 612 (1967). If the

plaintiff has not called an economist, then her attorney may not act as an expert during



closing by presenting charts projecting damages into the future. See Johnston v.

Colvin, 145 A.D.2d 846 (3d Dept. 1988) (counsel’s projection of damages for lost

earnings to $317,000.00 was improper as it was the equivalent of unsworn evidence).

c. Life Expectancy

As a general rule, the plaintiff should introduce evidence about life expectancy in

order to establish the duration of a claim for lost income, household services and

support. Customarily, this evidence comes by way of an economist and/or medical

expert. In addition, statistical work/life expectancy tables10 may be introduced. See,

e.g., Lolik v. Big V Supermarkets, 266 A.D.2d 759 (3d Dept. 1999) (tables are guide for

jury); O’Rourk v. Berner, 249 A.D.2d 975 (4th Dept. 1998) (jury free to find that life

expectancy is less than 23 year statistical average); Blyskal v. Kelleher, 171 A.D.2d 718

(2d Dept. 1991) (work/life expectancy tables may be used by the jury as a guide);

Chandler v. Flynn, 111 A.D.2d 300 (2d Dept. 1985) (if the jury is allowed to consider

work/life expectancy tables, they must be given the correct data from the tables and told

to consider the tables together with all of the other evidence).

If proof appears lacking, counsel should note that “there was sufficient evidence

of decedent’s ‘health, habits, employment and activities’ from which a jury could have

determined decedent’s life expectancy.” Kastick, 259 A.D.2d at 971, quoting PJI 3d

2:320, at 1256.

10 Life tables for men and women are reproduced in the Appendix at pages 49-53. The tables are reproduced from the 2007 National Vital Statistics Reports, Volume 59, Number 9, September 28, 2011. Additional information can be found online at http://www.cdc.gov/nchs/data/nvsr/nvsr59/nvsr59_09.pdf.



A jury award that ignores evidence of work and life expectancy may be set aside.

See, e.g., Toscarelli v. Purdy, 217 A.D.2d 815 (3d Dept. 1995) (finding that plaintiff

would work as nightclub entertainer for entire 33 year life expectancy set aside as

“shocking”); Khulaqi v. Sea-Land Services, Inc., 185 A.D.2d 973 (2d Dept. 1992)

(finding that seaman would work to age 75 contrary to evidence).

d. Taxes

Any award for past lost wages and benefits should be limited to the “net, after-tax

amount” of past lost wages. See Murphy v. CSX Transportation, 78 A.D.3d 1543 (4th

Dept. 2010) (award should have been reduced by amount of tier 1 Railroad Retirement

Board taxes that would have been deducted from plaintiff’s wages, had he earned

them).



Appendix

Survey of Eco

©2012 Michael A

onomic Damage Pr

Anthony Bottar, Es

roof In New York Pe

q. · Bottar Leone, P

ersonal Injury Case

PLLC · 1600 AXA T

es

Tower II · 120 Mad

dison St. · Syracuse

e, NY 13202 · (315

P a g

5) 422-3466 · bottar

e | 41

rleone.com

Survey of Eco

©2012 Michael A

onomic Damage Pr

Anthony Bottar, Es

roof In New York Pe


ersonal Injury Case

PLLC · 1600 AXA T

es

Tower II · 120 Mad


e, NY 13202 · (315

P a g

5) 422-3466 · bottar

e | 42

rleone.com

Survey of Eco

©2012 Michael A

onomic Damage Pr

Anthony Bottar, Es

roof In New York Pe


ersonal Injury Case

PLLC · 1600 AXA T

es

Tower II · 120 Mad


e, NY 13202 · (315

P a g

5) 422-3466 · bottar

e | 43

rleone.com

Survey of Eco

©2012 Michael A

onomic Damage Pr

Anthony Bottar, Es

roof In New York Pe


ersonal Injury Case

PLLC · 1600 AXA T

es

Tower II · 120 Mad


e, NY 13202 · (315

P a g

5) 422-3466 · bottar

e | 44

rleone.com

Survey of Eco

©2012 Michael A

onomic Damage Pr

Anthony Bottar, Es

roof In New York Pe


ersonal Injury Case

PLLC · 1600 AXA T

es

Tower II · 120 Mad


e, NY 13202 · (315

P a g

5) 422-3466 · bottar

e | 45

rleone.com

Survey of Eco

©2012 Michael A

onomic Damage Pr

Anthony Bottar, Es

roof In New York Pe


ersonal Injury Case

PLLC · 1600 AXA T

es

Tower II · 120 Mad


e, NY 13202 · (315

P a g

5) 422-3466 · bottar

e | 46

rleone.com

Survey of Eco

©2012 Michael A

onomic Damage Pr

Anthony Bottar, Es

roof In New York Pe


ersonal Injury Case

PLLC · 1600 AXA T

es

Tower II · 120 Mad


e, NY 13202 · (315

P a g

5) 422-3466 · bottar

e | 47

rleone.com

Survey of Eco

©2012 Michael A

onomic Damage Pr

Anthony Bottar, Es

roof In New York Pe


ersonal Injury Case

PLLC · 1600 AXA T

es

Tower II · 120 Mad


e, NY 13202 · (315

P a g

5) 422-3466 · bottar

e | 48

rleone.com

Survey of Eco

©2012 Michael A

onomic Damage Pr

Anthony Bottar, Es

roof In New York Pe


ersonal Injury Case

PLLC · 1600 AXA T

es

Tower II · 120 Mad


e, NY 13202 · (315

P a g

5) 422-3466 · bottar

e | 49

rleone.com

Survey of Eco

©2012 Michael A

onomic Damage Pr

Anthony Bottar, Es

roof In New York Pe


ersonal Injury Case

PLLC · 1600 AXA T

es

Tower II · 120 Mad


e, NY 13202 · (315

P a g

5) 422-3466 · bottar

e | 50

rleone.com

Survey of Eco

©2012 Michael A

onomic Damage Pr

Anthony Bottar, Es

roof In New York Pe


ersonal Injury Case

PLLC · 1600 AXA T

es

Tower II · 120 Mad


e, NY 13202 · (315

P a g

5) 422-3466 · bottar

e | 51

rleone.com

Survey of Eco

©2012 Michael A

onomic Damage Pr

Anthony Bottar, Es

roof In New York Pe


ersonal Injury Case

PLLC · 1600 AXA T

es

Tower II · 120 Mad


e, NY 13202 · (315

P a g

5) 422-3466 · bottar

e | 52

rleone.com



About the Author

Michael A. Bottar is a partner with Bottar Leone, PLLC, a Syracuse-based law firm repeatedly recognized by U.S. News & World Report/Best Lawyers as “first tier” for plaintiffs personal injury litigation.

Mike’s practice is limited to the prosecution of medical malpractice, birth injury, wrongful death, product liability, and severe personal injury actions in all New York State and Federal courts, with an emphasis on claims involving brain and nerve injuries, misdiagnosis, unsafe jobsites, common carrier accidents, and defective medical equipment.

Mike is a graduate of Colgate University (B.A., 2000) and a summa cum laude graduate of Syracuse University College of Law (J.D., 2003), where he is an adjunct professor and the author of the Civil Practice chapter of the Syracuse Law Review’s Survey on New York law. Mike is also the author of A Desktop Guide to Federal Tort Claims within the United States Court of Appeals for the Second Circuit.

Mike sits on the Board of Directors of the New York State Academy of Trial Lawyers (Upstate Chair, Young Lawyers Committee), the Syracuse University Law Alumni Association, and the Central New York Women’s Bar Association (Member, Judicial Screening Committee). Mike is a life member of the Million Dollar Advocates Forum, and is a member of the Onondaga County Bar Association, New York State Bar Association, Northern District of New York Federal Court Bar Association, American Bar Association and the American Association for Justice.

Mike is a past member and executive editor of the Syracuse Law Review, which published his note: "Robbing Peter To Pay Paul: Medicaid Liens, Supplemental Needs Trusts and Personal Injury Recoveries on Behalf of Infants In New York State Following the Gold Decision." Mike’s note has been cited by the Practicing Law Institute (twice), American Jurisprudence Proof of Facts, the American Law Institute, and the American Bar Association's Real Property Trusts and Estates Law Journal. He is a past member and competition co-director of the Syracuse University College of Law Moot Court Honor Society, was inducted into the Order of the Coif, the Order of Barristers and the Justinian Honorary Law Society, and received the law school's R.W. Miller Trial Advocacy Award, the R.M. Anderson Publication Award, and the Law Review’s Distinguished Service Award.

Mike began his legal career as a litigation associate with the New York City office of White & Case, LLP, with professional highlights including representing a French bank on trial in the United States District Court for the Northern District of California (Garamendi et al v. Credit Lyonnais S.A.), and conducting depositions and internal investigations in Buenos Aires, Brussels, Paris, Hong Kong and Shanghai. Immediately prior to joining Bottar Leone, PLLC, Mike was a litigation associate with the Syracuse office of Bond, Schoeneck & King, PLLC.

Mike resides in Manlius, New York, with his wife Tiffany, a physical therapist, and their sons.

Michael A. Bottar, Survey of Economic Damage Proof In New York Personal Injury Cases (©2012)

Documents

Transcript of Michael A. Bottar, Survey of Economic Damage Proof In New York Personal Injury Cases (©2012)