Loss of Future Earning Capacity: Reasonable Certainty, Expert Testimony and the Perils of Ipse Dixit
Loss of future earning capacity falls within the category of available compensatory damages and refers to a plaintiff’s reduced ability to earn income in the future due to an injury or disability. The Appellate Court of Maryland, formerly the Court of Special Appeals, summarized loss of earning capacity as an element of damages and noted that the objective of an award for such damage is to place a plaintiff in the same economic position as she would have been pre-injury. Anderson v. Litzenberg, 115 Md. App. 549, 573 (1997). Loss of future earning capacity and loss of future earnings are distinct types of compensatory damages. See Derosier v. USPLabs, LLC, Civil Action No. CCB-10-2559, 2011 WL 5825990, at *4 (D. Md. Nov. 17, 2011) (Lewin Realty III, Inc. v. Brooks, 138 Md. App. 244, 279 (2001), aff’d, 378 Md. 70, 835 A.2d 616 (2003 )). The loss of future earning capacity is a plaintiff’s loss of capacity to earn, while loss of future earnings is the loss of sums a plaintiff would have earned in the future. Lewin Realty III, Inc., 138 Md. App. at 281. In terms of loss of future earning capacity, the damages are measured by the “disparity between the market value of his services before and after the injury.” Id. (quoting Anderson v. Litzenberg, 115 Md. App. 549, 573 (1997)).
As an element of damages, a plaintiff bears the burden of proving loss of future earning capacity. Thus, in Maryland, the principle that a damages award may not be based on speculation still applies. See DiLeo v. Nugent, 88 Md. App. 59, 76 (1991), aff’d, 327 Md. 627 (1992). “[S]uch damages cannot be recovered if future consequences are ‘mere possibilities.’” Pierce v. Johns-Manville Sales Corp., 296 Md. 656, 666 (1983).
To establish loss of future earning capacity, plaintiffs will oftentimes call experts, such as economists or vocational specialists, to testify about future earning capacity. This testimony is governed by Maryland Rule 5-702 and the Rochkind/Daubert standard. The ample case law surrounding Rochkind/Daubert aims to exclude “opinion evidence that is connected to existing data only by the ipse dixit of the expert [where there is] simply too great an analytical gap between the data and the opinion proffered.” JFJ Toys, Inc. v. Sears Holdings Corp., 237 F. Supp. 3d 311, 322 (D. Md. 2017) (quoting Pugh v. Louisville Ladder, Inc., 361 Fed. Appx. 448, 454 n.4 (4th Cir. 2010)).
One example of an expert opinion on loss of future earning capacity being excluded under this “ipse dixit” principle comes from the United States Court of Appeals for the Second Circuit. In Boucher v. U.S. Suzuki Motor Corp., the appellate court found that the trial court erred by admitting expert testimony regarding a plaintiff’s lost earnings based on assumptions that the plaintiff would work forty hours per week, fifty-two weeks per year, with fringe benefits and regular pay increases. 73 F.3d 18, 22 (2d Cir. 1996). Prior to the plaintiff’s injury, he had never had regular employment and did not regularly receive pay increases or fringe benefits. Id. at 22. The court found “nothing of probative value—such as a change in family responsibilities, or the acquisition of a new set of skills” accounted for the expert’s assumptions that the plaintiff would suddenly be employed full-time and receive regular pay increases or benefits. Id.
Trial courts in Maryland have also granted motions to exclude ipse dixit expert testimony. Recently, the Circuit Court for Howard County granted a motion to exclude a vocational expert witness and evidence regarding future loss of earning capacity (C-13-CV-23-000818). Such rulings demonstrate that vocational and economist expert witnesses, like any others, are held to Maryland rules and case law on opinion testimony, and that a motion in limine to exclude speculative opinion testimony may prevent unfounded damages testimony from reaching the ears of a jury.
For more information, contact Stephen J. Marshall, Esq.
