The primary difficulty, however, with the future loss-of-earnings award is the evidence, presented by Plaintiff’s own witness, that, even after the accident, Plaintiff was able to do other work. Indeed, both before and after the accident, Plaintiff developed a tax preparation business that yielded the same compensation for four-months’ effort that driving a taxi yielded for eight months, even assuming he was not doing both during January through April. And, even assuming that Plaintiff’s tax preparation business could not be extended beyond that four-month period, it demonstrates Plaintiff’s ability to earn by doing work other than taxi driving that could provide even higher compensation.
Plaintiff testified to no efforts made after the accident to replace his income from taxi driving, although, to be fair, he was not asked by either his counsel or Defendants’. The question is, was it Plaintiff’s burden to introduce evidence that he would be unable to replace the income from taxi driving, in order to show loss in fact, or was it Defendants’ burden in an effort to mitigate damages that necessarily would follow?
A litigant who seeks recovery for diminution of future earnings is obligated to submit some evidence showing the difference between what he is now able to earn and what he could have earned if he had not been injured. Here, Plaintiff’s evidence as to “what he is now able to earn” is limited to the four-month period during which he provides tax preparation services.
There are opinions in which an award of future loss of earnings is upheld upon injury evidence that the plaintiff cannot perform the work s/he performed before the accident. Courts have upheld awards where the plaintiff was disabled from engaging in construction work or any other physically strenuous activity and had no other employment skills; and where the plaintiff was disabled from both physical and sedentary employment as a result of the accident.
Similarly, an award for future lost earnings was upheld where the plaintiff was totally disabled from construction work and testified to the maximum earnings from work that he could perform.
The Court is aware of opinions in which the possibility of replacement employment is addressed under mitigation of damages. The Court concludes, therefore, that, particularly in light of the testimony of Dr. CK and Plaintiff’s demonstrated ability to earn at a higher rate than as a taxi driver, the jury’s award of $300,000 for future loss of earnings cannot stand.
The question becomes the appropriate relief. Specifically, should judgment on the claim be granted to Defendants as a matter of law because there is no valid line of reasoning and permissible inferences which could possibly lead rational people to the conclusion reached by the jury on the basis of the evidence presented at trial; or should there be a new bite trial because the verdict was contrary to the weight of the evidence and not reached on any fair interpretation of the evidence.
As previously noted, the extensive case law uses all of the formulations, which is, of course, quite appropriate because of the multi-faceted nature of a loss-of-earnings claim and, presumably, the precise nature of the deficiency in proof in the particular case. Categorization is difficult because the opinions do not always describe the deficiency in proof that leads the court to set the verdict aside, if only conditionally.
Were the Court to venture a injury guideline, it would be based upon the distinction between proof as to the fact of damage and that as to the amount of damages. It is elemental that damages cannot be recovered in excess of the actual damage sustained. Here, the deficiency in Plaintiff’s proof, in light of its own expert testimony and the undisputed facts as to Plaintiff’s work and earnings history, constitutes a failure to demonstrate a compensable loss of future earning capacity, and not merely a failure to properly account for, or compute, the amount of future lost earnings. The authorities relied upon, moreover, where the plaintiffs similarly failed to produce evidence that they were unable to earn as much by doing other work, dismissed the claim for future loss of earnings. Those authorities require the same result here.
Defendants’ motion to set aside the jury’s verdict is granted to the extent that the jury’s award of $300,000 for future loss of earnings is set aside, and the claim for future loss of earnings is dismissed as a matter of law; the jury’s award of $87,500 for past loss of earnings is set aside, and a new trial granted on that element of damages only, unless, within 30 days after service upon him of a copy of this decision and order, Plaintiff shall file with the Clerk of the Supreme Court, Kings County, a written stipulation consenting to reduce the verdict for past loss of earnings from the principal sum of $87,500 to the principal sum of $70,000, subject to further reduction as might be required by the No-Fault Law.