Proving damages can always be a challenge on behalf of an injured person. Most people sitting on a jury who are asked to award damages to an injured party are being put in that situation for the first time. Most of them have no idea as to what the measuring stick is for awarding damages. The court of course gives some guidance. Likewise the lawyers provide some guidance.
Proving Damages and Maximizing Recovery
In terms of trying to maximize a recovery for a plaintiff, there are some general principles that may be helpful. In Virginia the plaintiff is allowed to ask for a precise amount to the jury. Likewise the amount that is asked for in the suit papers can be disclosed to the jury. Most of the time it is a good idea for the plaintiff, through counsel, to disclose to the jury what it is the plaintiff is asking for. That amount should be as precise as possible. Under the Wakole decision from the Virginia Supreme Court, the plaintiff is now allowed to break down into different categories the amount being requested. That type of specificity provides some degree of guidance to a jury. Call or contact us for a free consult.
Economic v. Non-economic
Generally damages can be broken into economic or non-economic. Economic may consist of medical expenses, loss of income, loss of services and future care cost. Non-economic damages consist of pain and suffering. This blog post deals principally with economic damages. The non-economic damages are addressed in measuring pain and suffering.
Classifying damages simply as economic or non-economic may be too simplistic. David Ball tends to talk about damages in three forms: (1) Harms that can be fixed which include economic losses such as wages and bills; (2) injuries that can be improved on either through surgery, medical devices or personal assistance; (3) injuries that cannot be fixed such as loss of enjoyment of life, loneliness, chronic pain, isolation.
Talking Money
It is important to begin the money discussion with the jury early in the case. This should begin either while picking the jury or at least during the opening statement. On behalf of the plaintiff, it’s important that whatever amount is mentioned be reasonable. That amount should probably also be on the high side but it should be tempered at all times with the concept of reasonableness. When people are faced with money decisions there are a number of studies that show that they tend to become more tight-fisted. Even though a jury is not awarding money out of their pocket, it’s amazing that jurors tend to be tight in awarding one person’s money to another person.
During the voir dire it is critical that members of the jury pool be identified who might be unwilling to award a large amount of money.
Medical Bills
Proving medical bills can be somewhat problematic. Virginia Code § 8.01-413.01 sets forth certain criteria. Where there is no bill that has been provided then under that same section an affidavit may suffice. If the bill is one rendered by a federal facility, then a sworn statement from the facility setting forth the reasonable value of the services is admissible under Virginia Code §8.01.37.1. Pursuant to 42 U.S.C. § 2651, military facilities are to assign to you their right of recovery on their behalf which then enables the plaintiff to claim the reasonable value of the services at a military facility.
In Barkley v. Wallace, 267 Va. 369 (2004) the court held that medical bills, although not admissible for purposes of recovery of the bills, may still be admissible to show non-economic damages.
An issue that can also arise is the defendant may seek to offer the plaintiff’s medical bills where the plaintiff has not done so. That is, if the plaintiff has significant non-economic damages, the plaintiff may chose not to offer what could be considered paltry medical bills. The theory being that may hold down the verdict. The defendant then attempts to offer the bills. Arguments as to why they should not be admissible in that context are several. The context here is different than what presented in Barkley. In Barkley the defense sought to exclude the bills. The court determined that they were probative.
The reasons why the medical bills may not be admissible when offered by the defense are they simply are not relevant. They may not be relevant because they tend not to prove any issue in the case. That is, to offer the minimal bills to show minimal injury simply invites speculation by a jury. When evidence is not relevant, it must be excluded. The second reason why the bills may not be relevant is that they may lead to prejudice, delay or confusion which is likely to outweigh any probative value.
Treating Doctor
The treating doctor may well be your most compelling witness since that doctor has lived with the patient’s injury. That type of compelling testimony offsets the testimony from any retained physicians that may testify.
Proving Damages- Loss of Income
Another component of damages are lost wages. In order to prove lost wages, you should have a report from a doctor. The report should state that there was a period of time when the plaintiff was not able to work. You then need to be able to prove what the actual wage rate was that applied. That normally is proven through a letter from the employer. See Va. Code 8.01-413.1 for obtaining employment records.
Sometimes loss of income can be tough to prove where a person is self-employed. Any of you who have ever been self-employed know that your hours may be irregular. There may not be any set period of time when you work. As such, even though you may not have been able to work between 9 and 5 on a particular day you may have made up that work time on another day. Insurance companies are aware of that. The best way to prove an actual wage loss for a self-employed person is to show the change that occurred from one month to the next. However if income tends to be seasonal then show what the income had been during that same month the year before. The change then may be evidence of what the income loss is.
If the plaintiff’s business is a corporation or an LLC and there is an income claim, then you need to be sensitive to the fact that the defense may claim that the income belongs to the LLC or to the corporation even though they both are a pass-through for purposes of taxation. The income claim therefore needs to be what the plaintiff actually takes out of the business.
Also in future loss of income claims, issues arise as to reducing the claim for taxes. The amount should be a gross amount. This should be the same as in wrongful death actions where the Hoge case indicates the amount should be a gross amount.
Loss of Services
Another component of damages are what are typically called loss of services. The loss of services of a wife or husband as a homemaker or attendant has value. That value may be tough to pin down. That again is the role of the economist.
Future Damages
Future damages frequently come in the form of a Life Care Plan. There are expert witnesses who provide this type of proof. The threshold question is whether or not the life care plan testimony is admissible. In Norman v. Leonard’s Express, Inc., 2023 WL 3034606, Judge Cullen concluded that the defense life care planner could not testify due to a lack of foundation as to the testimony.
Another question that may arise is whether or not these future damages need to be reduced to present value. In Mavity v. MTD Products, Inc., 714 F.Supp.2d 577 (W.D. Va. 2010) the court dealt with federal statutory causes of action and indicated that future damages should be reduced to present value. The same would be true of future loss of earnings. Whether that is required in Virginia is a bit unclear but certainly the better practice would be to reduce it to present value since the jury award is to be based upon present value.
Several other judges in the federal courts in Virginia have refused to follow Mavity. In particular in Norman v. Leonard’s Express, Inc., the court held that the burden was on the defendant to reduce future losses to present value.
The defense frequently may offer their own life care planner who may dispute the need for certain items in the future. The best way to deal with that type of expert witness is to determine what is the foundation for the opinion and then further to ask the witness if they are wrong as to the need for future equipment, i.e., a wheelchair, then that means the plaintiff will not have a wheelchair when the need arises.
Another issue in regard to future damages arises where the plaintiff’s symptoms continue but there is no medical proof of how long they will last. Under Gwaltney v. Reed, 196 Va. 505, the jury should still be instructed as to these future damages.
The Poor Plaintiff
Sometimes plaintiffs cannot get treatment for economic reasons. They have no insurance coverage. Insurance coverage has been denied. Or they simply have no assets to pay for the treatment they need. In those instances where treatment has been recommended whether it be surgery or otherwise, the best course of action is probably the following:
1. Establish they intend to have the treatment.
2. It’s probably best not to make any mention of when the treatment was recommended or when they intend to have it.
3. If you anticipate there being questioning about when they intend to have the surgery and why they haven’t had it up to this point on cross-examination, then it’s best to deal with that issue through a motion in limine. That is, any such cross-examination is likely to elicit collateral source information. That is not admissible.
4. Another alternative is to have the plaintiff say that they are delaying surgery as long as possible so as to get ready for it psychologically and to be able to make arrangements for the recovery during a period of time when they can take time off from work.
Increased Risk
In many cases an injured person is looking at increased risk of future problems due to an injury. Take a case of where a plaintiff has a spinal fusion. There are risks of future problems. Those risks are real. The plaintiff should be allowed to testify to those concerns. Likewise her doctor should be allowed to address them.
Race, Ethnicity and Gender
In calculating damages it is fairly typical for damage experts to premise their conclusions upon the race, ethnicity and/or gender of the plaintiff. The wage claim of a Latino female minor may be considerably different than a white male minor. The projection should be based solely on the facts i.e., family history. Instead they factor in the statistical data that is specific to the Latino population or other minority groups. This reinforces past discrimination and actually pushes it into the future. The defense position in this case is that if there is a difference in society, then it is what it is.
One way to counter that perceived discrimination is based upon the Affordable Care Act. That law outlaws the practice of charging different rates for health insurance based upon gender or ethnicity. The compensation fund that was set up to compensate individuals as a result of the 911 attacks used award formulas that were based upon race and gender. A judge who oversaw that plan, Jack Weinstein, commented that race or ethnicity should not be the determinant.
Proving Damages-Catastrophic Injuries
Catastrophic injuries require special attention. These injuries might be defined as ones involving total and permanent disability. They may involve total loss of earning capacity, huge past and future medical expenses, custodial expenses, and pain and suffering. These types of cases take a toll on the victim. To prove this type of injury you need medical proof of the permanency and totality of the injury. You need to also prove the need for lifetime medical care. It is the medical testimony that lays the basis for future rehab, the need to modify the home and the need for personal care attendants.
The role of the economist is to affirm what those costs are in terms of present value. This applies both as to medical care and loss of income.
In large measure those numbers are based upon the work life expectancy and/or the life expectancy of the Plaintiff. This is governed by either state mandated tables or publications from the U.S. Government.
Golden Rule Argument
The Golden Rule encourages that we treat others as we would want to be treated. That rule however has little application in the courtroom.
The traditional rule across the country has been that counsel may not argue to the jury that they should do unto others as they would want others to do unto them. The standard instead is that the jury should apply the reasonable man standard. In other words, they should ask what the reasonable person would do in that case. Seymour v Richardson 194 VA 709 (1953)
Court Says Golden Rule Argument Inappropriate
In a case reported by the U.S. Court of Appeals for the DC Circuit, Caudle v. District of Columbia, 707 F.3d 354 (D.C. Cir. 2013) the Court noted that the golden rule argument is not allowed as to liability. In this case Plaintiff’s counsel argued that the jury should ask themselves whether they would hesitate to speak up against their boss. Likewise Plaintiff’s counsel asked the jury whether or not they themselves would think twice about complaining about workplace discrimination. Counsel further asked the jury to put themselves in the Plaintiff’s shoes.
Golden Rule as to Liability
Although some U.S. Circuits have held that the Golden Rule argument is allowed as to liability only, this court disagreed. The court said that the Golden Rule argument is not allowed as to liability or damages and awarded a new trial.
Also in this case the attorney for the Plaintiff asked the jury to send a message. Although that is not part of the Golden Rule argument, it likewise is not allowed. The court’s general instruction to the jury tells them to put aside matters of prejudice, sympathy and fear.
Per Diem Arguments
In general, per diem arguments are not allowed in Virginia. In some jurisdictions they are allowed, in particular in Maryland. If such an argument is made, then the trial court should further instruct the jury that dollar amounts are purely suggestions of counsel as to the amount of damages that could be awarded. Giant Food v. Satterfield, 90 Md. App. 660 (1992)
Call or contact us for a free consult. Also see duty in personal injury cases also on this site.
Also for information on lost profit claims see that page. Also see the pages on Wikipedia.
