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Defendant Discusses Elements of Loss of Earnings Criteria in New York Appellate Case

At the core of lost earnings assessment is the focus, in part, on the plaintiff’s earning capacity both before and after the injury. When future loss of earnings is claimed, reasonable certainty must be based upon future probabilities. An expert vocational economic analyst is permitted to provide an opinion as to future lost earnings, since the process of calculating such damages is beyond the general knowledge of the average juror. Where the plaintiff is an infant, expert opinion of that type might be required.

The lost earnings claim, therefore, is comprised of several interrelated elements, on each of which the plaintiff bears at least the burden of coming forward with evidence: medical evidence of disability, depending upon the nature of the injury; proof of causation in fact, primarily the difference between the plaintiff’s earning capacity before and after the accident and proof of the amount of the loss, including necessary documentation and fair calculation.

An injured plaintiff, moreover, is obligated to mitigate damages by endeavoring to seek alternate employment.

The difficulty arises, however, in that while the plaintiff is required to mitigate damages, the burden of proving a lack of diligent effort to mitigate damages is upon the defendant. The precise relationship between a plaintiff’s burden to prove damage or loss in fact, and a defendant’s burden to prove a failure to mitigate damages, is not entirely clear, particularly where, as here, the defendant does not request that the court charge mitigation.

Turning to the jury’s awards here, there seems little doubt that the award of $87,500 for past loss of earnings cannot stand. There was no evidence upon which the jury could base a determination that Plaintiff would have earned more from driving a taxi during the three and a half year period from the accident until trial than he earned before the accident. The $70,000 amount proferred by Defendants is not disputed by Plaintiff on this motion, and appears somewhat generous to Plaintiff as a matter of arithmetic based upon a pre-accident annual income of approximately $19,000, and given Plaintiff’s testimony that he returned to driving a taxi to some extent and for some period prior to trial. The appropriate remedy, based upon the Court’s review of the case law, would be a new trial on this element of damages unless Plaintiff agrees to a reduction in the award.

Defendants are also correct that Plaintiff may recover for loss of earnings only to the extent that they exceed $50,000 in basic economic loss, which would include medical expenses as well as loss of earnings. The parties agreed at trial that the Court would make any necessary adjustment after the jury’s verdict, and a hearing will be scheduled at the appropriate time for that purpose, if the parties cannot agree on an adjustment.

Defendants’ limited objection in its post verdict motion, addressed only to the precise amount of the past lost earnings award, effectively waived any objection to the quality of the plaintiff’s proof on this issue. The jury was entitled to credit the testimony of the plaintiff’s treating physician regarding the plaintiff’s physical condition concerning future lost earnings, and to discredit the testimony of the defendants’ witnesses regarding that issue. Given the nature of Plaintiff’s work, taxi driving, Dr. CK’s testimony is competent and sufficient evidence that he could do it no longer, and the jury’s acceptance of the testimony was not against the weight of the evidence.

The jury also apparently accepted Plaintiff’s testimony that, before the accident, he intended to continue driving a taxi, apparently indefinitely, even though he had returned to school to learn computer skills and the knowledge required for tax preparation, and was earning considerably more from that business for the time spent, and even though there was no evidence of the continued viability of taxi driving during the 30-year period over which the jury provided lost-earnings compensation. Defendants do not challenge the approximately $19,000 annual earnings from taxi driving, which, in any event, is more than the approximately $10,000 annually computed from the jury’s award of $300,000 over 30 years.

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