Plaintiff attorneys are often faced with a Motion to Preclude a Plaintiff’s expert from opining on Plaintiff’s alleged ongoing wage loss and/or future wage loss or earning capacity. Generally, a Plaintiff is injured through the negligence of a defendant and as a result of the severity of the injuries, the Plaintiff testifies at his or her deposition that he or she a) has not worked or worked as much since the date of the incident; and (b) does not have the ability to return to work at any foreseeable time in the future. Further, the Plaintiff’s treating and/or expert physician disables the Plaintiff from working or working as much as prior to the incident, due to the Plaintiff’s physical limitations in performing his or her job duties.
Further, a vocational rehabilitation expert, who also has reviewed relevant medical and employment records and conducted his or her own research, will opine that the Plaintiff has suffered a loss of future earnings as a result of the accident, and this expert will determine within a reasonable degree of certainty, the amount of that lost future earnings. Lastly, an economic expert will extrapolate that yearly lost earning capacity over the work lifespan of a Plaintiff.
In response to these experts’ findings, defendants generally seeks to have courts deny the use of vocational experts on the basis that the calculation of future lost earnings is “speculative.”
However, defendant’s arguments are generally misguided as the conclusions of the expert go to the weight, not admissibility of the testimony. Accordingly, defendant’s motion as to the admissibility of these reports should be denied.
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PA. Suggested standard jury instruction (Civ.) 7.40, make clear that a plaintiff who suffers from an ongoing disability or limitation is entitled to recover for future loss of earnings or loss of earning capacity. An award for future lost earnings can be supported by testimony of the party alone without the aid of expert testimony. Detterline v. D’Ambrosio’s Dodge, Inc., 763 A.2d 935 (Pa.Super.2000). The fact that the plaintiff has not suffered a loss of income up to the time of trial does not preclude a claim for future lost wages, as it is the plaintiff’s capability to produce future earnings which is critical to the resolution of the claim. Bochar v. J.B. Martin Motors, 374 Pa. 240, 97 A.2d 813 (1953). Similarly, an increase in wages following an accident will not automatically defeat a claim for future lost wages. Christides v. Little, 274 Pa.Super. 343, 418 A.2d 438 (1980). It is not required that the plaintiff use expert testimony in order to establish an impairment of earning capacity. Lay testimony itself will suffice. Gary v. Mankamyer, 485 Pa. 525, 403 A.2d 87 (1979) The plaintiff may also introduce expert testimony relying on government data to establish a claim for impairment of earning capacity. Ruzzi v.
Butler Petroleum Co., 527 Pa. 1, 588 A.2d 1 (1991). The defense may, in turn, introduce its own expert testimony to rebut plaintiff’s claims, or it may challenge plaintiff’s formulation through cross-examination or argument. Carroll v. Avallone, 595 Pa. 676, 939 A.2d 872 (2007).
Accordingly, in preparing a lost earnings or earning capacity claim, practitioners want to present the expert testimony of a vocational rehabilitation expert. Further, the expert should base his or her opinions that Plaintiff would be unable to perform his or her job, or the overtime or side work outside his or her regular work hours on : (1) the medical records reviewed and the multiple diagnoses related to plaintiff’s physical or mental conditions, (2) the compensation plaintiff was paid for work performed prior to the incident (3) the Plaintiff’s experience in performing the type of work he or she is asserting he or she cannot perform, (5) the expert’s own knowledge of the frequency and commonality with which people in the same field perform this type of work, (6) all bonuses and raises that would be received by persons in the same field as they gain more experience and work more years in the same field, and (7) research the expert performed with regard to a prevailing wage for similarly situated persons in the local area based on government data.
The above is not an exhaustive list. However, if an expert bases his or her opinion on the list above, then a trial Court will likely find that the opinion is well-supported by his or her own research as well as the testimony of the plaintiff and the prior medical and employment records he or she reviewed, and is perfectly permissible based on the controlling case law.
Accordingly, while the issues raised in a defendant’s Motion to Preclude, may well be points for cross-examination of the expert, they will in no way justify preclusion of the expert’s testimony in its entirety.
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