An often under-appreciated category of damages in personal injury cases is the victim’s loss of future earnings. Also referred to as “diminished earning capacity,” this basically covers the amount of money the victim would have earned during the remainder of his or her lifetime but-for the injury caused by the negligent defendant. Obviously, loss of future earnings will vary depending on the victim. In some cases, it may not be possible to calculate these damages without the assistance of expert witnesses.
Lee v. Smith
Consider this recent case from the Georgia Court of Appeals. The underlying lawsuit involves a car accident. The plaintiff alleged the defendant’s negligence caused the accident. The defendant conceded liability but contested the amount of damages.
Of particular interest, the parties disagreed as to the plaintiff’s loss of future earnings due to the accident. Prior to the accident, the plaintiff was a highly regarded intercollegiate high jumper. At trial, the plaintiff’s agent testified that professional high jumpers could earn a substantial income from “sponsorship contracts, appearance fees, and prize money for competing in different track meets.” Had the accident never occurred–requiring the plaintiff to undergo surgery–the agent said he was “reasonably certain” that his client would have earned between $1 million and $2.5 million over the course of a 10-year professional career.
The defendant attempted to present his own expert witness to rebut the agent’s testimony. The plaintiff objected, noting the defense did not identify their proposed expert in advance as required by the judge’s scheduling order. The judge agreed and excluded the expert.
The jury ultimately ordered the defendant to pay $2 million in damages to the plaintiff. The defense appealed, arguing the judge erred in excluding his expert. The defendant also maintained that any award of damages for loss of future income was “speculative” and therefore not justified as a matter of law.
The Court of Appeals rejected these arguments. With respect to the exclusion of the defense’s expert, a majority of the appellate panel said the trial court did not abuse its discretion. The defense’s argument boiled down to a question of when it was reasonably “on notice” that the plaintiff would seek damages for loss of future income. The defense claim it was not aware of this until the plaintiff named its expert at the deadline set by the trial judge. But the Court of Appeals noted the plaintiff initially demanded $3 million and named an “expert to testify about [his] future career” well before the deadline, which “should have given” the defense fair warning.
As for the “speculative” nature of the plaintiff’s claims, the Court of Appeals said the testimony of the plaintiff’s treating physician and sports agent was enough “to show what [the plaintiff] was capable of earning both before and after the injury.” There was certainly no question that from a medical standpoint, the injuries sustained in the accident “negatively impacted Smith’s high-jumping performance, including his performance at the Olympics.” Accordingly, the Court of Appeals affirmed the entire $2 million award.