Common Mistakes Defendants Make Regarding Damages in Personal Injury Cases: Tax and Unemployment Considerations and “Required” Care

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In a series of five blogs, we have examined ten common mistakes that defense attorneys often make in Personal Injury cases. according to Dr. Patrick Gaughan, a forensic economist with  Econometrics.  Up to this point, we have covered the first eight mistakes involving: 1) case preparation; 2) failing to conduct complete discovery; 3) deposing key issues on liability issues only; 4) not getting a damages expert on board early enough; 5) failing to explore mitigation; 6) lost earnings projections that do not accurately reflect the plaintiff earnings history; 7) lost earnings that are projected at too high a growth rate, and 8)projecting lost earnings for too long a time period. Of course, the plaintiff’s side will have its own arguments on matters such as these. Moreover, errors on the part of the defense can work in favor of the plaintiff, so the plaintiff’s side should be aware of the kinds of mistakes defense attorneys can make.

The last two mistakes that Dr. Gaughan suggests are very common among defense attorneys in personal injury cases are:

Mistake #9: “Not Making Sure That Taxes, Unemployment, and Discounting are Adjusted Correctly.” 

Depending upon the jurisdiction in which a personal injury case is tried, taxes may be a consideration even when calculating damages following a personal injury. Unemployment compensation must be considered as well. Earnings projections should be projected downward in the event of unemployment. Defense attorneys sometimes fail to do this.

Mistake #10:  “Care Requirements: Making Sure All Care “Required” by Plaintiffs is Truly Necessary.” 

A plaintiff may argue that he or she will suffer future financial losses based on the need for future medical care. A vocational expert can testify as to whether a plaintiff may need special accommodations in order to function at a peak expected performance level in the workplace. Such accommodations may include specially designed chairs or desks, larger computer screens, other ergonomic office equipment, etc. A life care expert may also be brought in to testify about issues related to the kind of future medical that may indeed be “required” in light of the plaintiff’s injury. It is the defense’s job to argue whether the recommended medical care is truly necessary. But the defense does not do so, it is not the plaintiff’s fault. If the plaintiff’s side makes solid arguments toward future care requirements and work-life expectancy, it will only serve to strengthen the plaintiff’s case.

Occupational Assessment Services, Inc. (OAS) is one of the top companies providing vocational expert and life care planning services in the United States. We have extensive experience creating life care plans for plaintiffs and defendants in cases involving severe and permanent injuries. Contact OAS at 800-292-1919 to discuss how we can help with your case.