Legal claims for injuries are usually based on acts of negligence that cause foreseeable harm to another person. Lawyers usually rely on a combination of fact and expert witnesses to prove liability in injury cases. They typically prove fault with the injury victim’s testimony and the testimony of bystanders who saw the accident occur.
In some cases, lawyers may also rely on expert witnesses to prove fault or causation. A lawyer might want an accident reconstruction engineer to determine how a traffic accident occurred. Experts in product design, metallurgy, and other fields might offer opinions about unsafe products. Lawyers rely on expert testimony to establish the standard of care in medical malpractice cases or the risk of chemical exposures in toxic tort cases.
Proof of damages also depends on a mix of fact and expert witnesses. Pain and suffering may be established by the injury victim’s testimony and the observations of the victim’s friends and family. In addition, proof of damages often requires the expert testimony of physicians. In some cases, mental health experts might testify about emotional harm that the injury caused. Unless the permanent nature of an injury is obvious (such as a limb amputation), expert medical testimony is necessary to prove that an injury inflicted by negligence has caused a permanent disability.
Past economic damages, including medical expenses and the loss of wages, might be proved by stipulation, request for admissions, documentary evidence, and (if reasonableness and necessity or causation are at issue) expert testimony. Proof of future economic damages, on the other hand, almost always requires an expert witness.
Loss of Earning Capacity
When accident injuries cause a disability that impairs the ability to work, lawyers use vocational experts to prove loss of earning capacity. While loss of earning capacity is similar to loss of future earnings, the standards for proving the measures of future damages are significantly different.
Loss of future earnings refers to the income the injury victim would have earned from employment in the absence of the injury. Most state courts classify loss of future earnings as special damages. Special damages are losses that have a measurable value. Courts require special damages to be proved with reasonable certainty. That standard is difficult to meet because the future is not easy to predict. Many workers change their jobs or careers many times before they retire. Some lose their jobs because of plant closings. Some benefit from changes in the economy. Some workers are better than others at adapting to change.
Few people can be reasonably certain of their future earnings. That is particularly true when an injury victim is young. If the injury victim is a child, the only reasonably certain prediction is the assurance that the victim would have earned minimum wage in the absence of any injury. Yet children who will grow up to earn large salaries will be cheated if a jury must assume that they would never have earned more than minimum wage.
Nearly all courts now recognize “loss of earning capacity” is a better measure of future damages than “loss of future earnings.” Loss of earning capacity refers to a loss of the same ability to earn income that the plaintiff would have had in the absence of injury. A loss of earning capacity results from a loss of the potential to earn income. While loss of future earnings is measured by the actual earnings that a plaintiff will lose, loss of earning capacity is measured by the potential earnings that a plaintiff will lose.
Loss of earning capacity is classified as general damages rather than special damages.
General damages cannot be measured with precision but can be inferred from the nature of the injury. It is not necessary to prove loss of earning capacity to a reasonable certainty. Juries have discretion to award any reasonable amount that finds some support in the evidence.
How Vocational Experts Prove Loss of Earning Capacity
Vocational experts are essential to obtaining full damages for loss of earning capacity. In the absence of expert testimony, a jury might base future earnings on minimum wage. Vocational experts project a future earnings path, both pre-injury and post-injury, that is grounded in the best available evidence.
Vocational experts conduct a complete investigation to gather sufficient facts that form the foundation for expert opinions. The investigation includes a review of all medical records to determine the injury victim’s physical and mental abilities before and after the accident. Unless it is obvious that the victim can no longer perform any kind of work, the medical record should include a functional capacity evaluation that makes note of limitations (in areas such as lifting, standing, and concentrating) that affect the ability to work.
Vocational experts also examine the injury victim’s academic records, work history, and job training documents to assess the victim’s vocational aptitude prior to the injury. If the victim served in the military, service records may reveal additional training that might have given the victim skills that could be transferred to future employment.
The victim’s job at the time of the injury might reflect the victim’s earning ability, particularly if the victim is older or has expressed a desire to remain in a chosen career. However, current employment is often a stepping stone on the path of a vocational journey. Younger workers, in particular, often have earning abilities that are not adequately reflected by current vocational choices. A vocational expert can determine a range of future earnings that is consistent not just with current earnings but with future earning capacity.
Vocational experts determine post-injury earning capacity by comparing the victim’s physical or mental limitations to the requirements of various jobs. By matching current abilities to jobs in the labor market, the vocational expert can determine the victim’s current earning capacity. An economist can then compare pre-injury earning capacity to post-injury earning capacity, project the difference over a lifetime, and reduce the result to present value. The combined expert testimony will provide admissible evidence upon which a jury can base a verdict for lost earning capacity.