Brien Roche Law-01

Proving Damages – Economic

Fairfax Injury Lawyer Brien Roche Addresses Proving Damages
Brien Roche

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 (3) 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 Section 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 Section  Pursuant to 42 U.S.C. Section 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 defense in Barkley did not simply redact the dollar amounts of the bills.  In addition in this instance the bills are not relevant to a determination of pain and suffering where economic losses are not claimed.

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.  One 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 regards 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.

Damages Under Wakole

Ed Weiner was plaintiff’s attorney in the above case.  This case is important because it allowed the plaintiff to itemize specific elements of damage.

Ed has been kind enough to share the type of chart that he uses at trial.

1.  Past medical expenses (itemize and total).

2.  Future medical expenses (itemize and total).

3.  Lost wages (the dates, wage amount should be itemized and totaled).

4.  Bodily injuries.

a.  Itemize the actual injuries and duration.

Injury Approximate Duration
i.   Intra-articular fracture of the lower head of the tibia 5 months
ii.  Multiple contusions of both legs 3 weeks
iii. “Sore all over” 1 week

b.  Set forth line by line the effect on health including any disability rating and duration.

Effect on Health Approximate Duration
i.  Degenerative arthritic change to ankle Progressive
ii. 12% permanent disability of lower-left extremity      6% “whole body” disability Permanent

5.  Past pain.


i.  Immediately upon impact.

ii.  Waiting for and during extrication from car.

iii. Ambulance ride to INOVA Fairfax Hospital

In the ER

i.   Leg moved for multiple x-rays and CT scans

ii.  Discharge and car ride home from hospital.

At Home and in PT

i.  Pain from tight splint and swelling for weeks

ii. Painful therapy to regain and improve mobility.

6.  Past mental anguish.

Mental Anguish
i. Sudden impact of crushed metal
ii. Helplessness of being trapped in vehicle

a.  Fear of fire

iii. Inability to move left foot or toes
iv. Concern about a brain injury
v. Fear of what lay ahead

a.  Unfamiliarity with process for treatment or recovery.

b. Possibility of surgery

vi. Inability to care for self/be active with family for many months
vii. Concerns about work.

7.   Future pain and mental anguish.

Future Pain
i.   Daily Discomfort

a. Ranging from stiff, dull pain with inactivity to sudden, sharp pain with activity

ii  Intermittent increased left ankle pain upon kneeling, squatting
iii. Pain with weather changes
iv. Walking up and down steps, grass and uneven surfaces

v.  Walking extended periods.

Future Mental Anguish
i.  Concerns about developing debilitating arthritis
ii.  Anxiety about future fusion surgery and rehabilitation
iii.  Unknown of when a movement will cause pain

8.  Disfigurement, deformity, humiliation and embarrassment.

Disfigurement, Deformity
i.  Limp after inactivity

a. Ankle/leg are stiff in the AM; loosens during morning

ii.  Limp after any physical activity, i.e., walking

a.  End of the work day

iii. Frequent swelling of ankle
iv. Weight gain due to decreased activity

a. No longer runs daily

b.  Can’t participate in the Army 10-Miler

c.  Doesn’t do HIIT (High Intensity Interval Training)

Humiliation, Embarrassment
i.   Unable to hike with his son/Scouts
ii.  Can no longer play in the Annual Teacher-Student Fundraiser Basketball game
iii.  Had to teach while sitting

a.  Foot elevated to reduce swelling

b.  Embarrassing to teach with bare toes exposed

iv. Unable to help parents, friends, neighbors with projects at home/lawn

9.  Past inconvenience.

Past Inconvenience
i.  Severe limitations on mobility

a.  Totally non-weight bearing for approximately 6 weeks

b.  Very limited weight bearing for an additional 4 weeks

c.  On crutches for a total of 10 weeks

d.  Couldn’t drive for 6 weeks

e.  Had to use knee scooter at school

– Computer lab was in remote trailer on the school grounds

f.  Stairs, one at a time, painful and balance difficult

ii.  Numerous doctor and physical therapy appointments.
iii. Unable to perform most activities of daily living independentlyiv.  Not able to assist at home.

a.  Driving kids to school and/or activities

b.  Household chores (making lunches, household repairs)

c.  Yardwork- had to rely on friends and family

v.  Unable to attend church services for 4 weeks

a.  Missed daughter’s first choir performance

vi.   Den Leader for Cub Scouts: gave up leadership and missed events

a. USS Wisconsin overnight

b. Burke Lake camp out

c.  Old Rag hike

e. C&O Canal hike

vii.  Missed annual trip with his father, brother and cousins
viii. Stayed home when family was doing something active

a. Soccer, hiking, walking on grass/uneven surfaces

ix. Cancelled annual neighborhood Halloween party

a. Was not able to go trick-or-treating with children for the first time

10.  Future inconvenience.

Future Inconvenience
i.    Ongoing difficulty with any movement which requires putting weight on the ball of foot/pressure on the ankle

a. Reaching up overhead, squatting, kneeling

b. Climbing ladders

ii.   Impending surgery, recovery, rehabilitation
iii.  Annual follow-up visits, including scans
iv. “Not able to fully participate in many of the activities I once enjoyed.”

a.  Ongoing difficulty with any movements, future surgery, future follow-up visits.

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.

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 injuries to minors also on this site.

For more information on this issue, see the other pages on this site. Also for information on lost profit claims see that page. Also see the pages on Wikipedia.


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