Estimating Damages in Personal Injury Cases

Transcription

1 Estimating Damages in Persnal Injury Cases Presented t the Tuscalsa cunty Bar Assciatin December 11, 2015 Presented by Rbert W. McLed, Ph.D., CFA, CFP, CLU, CVA Financial Ecnmics Cnsulting Grup, Inc.

2 Admissibility f Expert Testimny Daubert v. Merrill Dw Pharmaceuticals, Inc. Kum Tire Cmpany v. Carmichael

3 Daubert In Daubert, seven members f the Curt agreed n the fllwing guidelines fr admitting scientific expert testimny: Judge is gatekeeper. Relevance and reliability. Scientific knwledge = scientific methd/methdlgy: A cnclusin will qualify as scientific knwledge if the prpnent can demnstrate that it is the prduct f sund "scientific methdlgy"/derived frm the scientific methd. Factrs relevant: The Curt defined "scientific methdlgy" as the prcess f frmulating hyptheses and then cnducting experiments t prve r falsify the hypthesis, and prvided a nndispsitive, nnexclusive, "flexible" test fr establishing its "validity": Empirical testing: the thery r technique must be falsifiable, refutable, and testable. Subjected t peer review and publicatin. Knwn r ptential errr rate and the existence The existence and maintenance f standards and cntrls cncerning its peratin. Degree t which the thery and technique is generally accepted by a relevant scientific cmmunity. In 2000, Rule 702 was amended in an attempt t cdify and structure the "Daubert trilgy." Rule 702 nw includes the additinal prvisins which state that a witness may nly testify if 1) the testimny is based upn sufficient facts r data 2) the testimny is the prduct f reliable principles and methds, and 3) the witness has applied the principles and methds reliably t the facts f the case.

4 Kum Tire Extensin f Daubert t nn-scientific testimny

5 Surces f Damages in Persnal Injury Cases Lss f Earnings Lss f Fringe Benefits Medical Expenses/Life Care Plans Hednic Damages Lss f Cnsrtium

6 Assumptins fr Lss f Earnings Base Earnings Grwth Rate in Earnings Discunt Rate Wrklife Expectancy Taxes

7 Base Earnings Actual Earnings at Time f Injury Prblem fr thse currently unemplyed r underemplyed Prblem fr children and students Earnings Capacity Earnings Impairment Vcatinal/Rehabilitatin Experts

8 Grwth Rate in Earnings General Appraches Plaintiff s actual rate f increase Bureau f Labr Statistics Data Inflatin Rate Shuld the grwth rate be based n natinal, reginal r lcal data? Specific Factrs Prmtins Expected Real vs. Nminal Grwth Rates

9 Discunt Rate Nrmally use U.S. Treasury Securities Questin f which maturities Shrt-term Treasuries Blended Rate Real vs. Nminal Discunt Rates

10 Wrklife Expectancy Numerus Studies Wrklife Average age at retirement Breakdwn based n Race Sex Educatin

11 Taxes Damages fr lst earnings are nrmally tax free (punitive damages are nrmally taxable except fr punitive damages paid in civil wrngful death actins when applicable state law, in effect n September 13, 1995, nly allws punitive damages in such cases. (Internal Revenue Cde Sectin 104(c))) Need t adjust incme fr taxes If incme is after tax, then yu need t adjust the discunt rate fr taxes

12 Lss f Fringe Benefits Fringe Benefits Health Care Retirement Life Insurance

13 Medical Csts/Life Care Plans Medical csts attributed t the accident/injury are recverable. Issue f subrgatin Reliance upn ther experts: Physicians Life Care Planners Grwth Rates Discunt Rates

14 Hednic Damages Lss f the enjyment f life Willingness t Pay Mdel Based n measuring what peple pay fr safety that results in small reductins in their risk f death. Fr example, if average peple are willing t pay $25 fr a carbn mnxide detectr that stands a ne in tw hundred thusand chance f saving their life, the WTP mdel wuld imply that such purchasers value their life at $5 millin ($25 times 200,000).

15 Lss f Cnsrtium Nrmally refers t the claims f physically uninjured spuses in persnal injury cases brught by their physically injured mates. Factrs t cnsider in determining damages dispsitin and temperament scial life services rendered in supervising the husehld acts f affectin, lve and sexual intercurse

16 Questins?