Insights

An award for loss of future income encompasses the loss or reduction of a person’s earning potential, which includes their capability to do what they would otherwise be equipped to do by nature, training, and experience.¹ To determine an appropriate award for future lost income, a court will give “substantial consideration” to an expert vocational rehabilitation expert’s calculation. Although vocational rehabilitation experts must rely on specific facts and evidence when assessing a plaintiff’s impairment of earning capacity, Louisiana law is clear that an award for loss of future income is “at best speculative” and cannot be fixed with mathematical precision.²

Recognizing the danger of unfettered “speculation” and excessive awards, Louisiana courts fortunately have set limits to the number of assumptions a vocational rehabilitation expert can make when opining on a plaintiff’s future loss of income and determining an appropriate award future loss of earnings.

Bernard v. Royal Ins. Co., 586 So. 2d 607 (La. App. 4^th Cir.), writ denied, 589 So. 2d 1058 (La. 1991) provides a good illustration of those limits. The Fourth Circuit held that the jury’s award of $1,850,000 for future lost income was based on a highly speculative assumption that the 24-year-old plaintiff, with only a B.S. degree for two full years before the accident but no effort to apply to graduate school, would eventually obtain a doctorate degree in tropical medicine.³

The following facts were revealed during discovery:

• Plaintiff graduated in May 1983 from Xavier University with a B.S. degree.
• At the time of the accident in 1985, Ms. Bernard had taken no steps to begin a graduate program.
• She did not work in her specialty or at a full-time job from May 1983 until July 1985.
• Ms. Bernard's only employment after college was as a substitute teacher for two years and she did not remember whether she earned enough money to file a tax return.
• In her 1987 deposition, she said she considered attending medical school “sometime in the future.”
• In her 1989 deposition, she mentioned that she intended to seek a graduate degree in public health.

Rather than basing his opinions on these facts and Plaintiff’s current employment status, Plaintiff’s vocational rehabilitation counsel, Dr. Wolfson, calculated Plaintiff’s future lost income based on the assumption that Plaintiff would eventually obtain a doctorate degree in tropical medicine. The Fourth Circuit held that this assumption was too speculative for purposes of calculating an award for future loss of income, stating:

"There is no evidence or indication that Ms. Bernard would complete a master's program and earn a doctorate degree. She made no effort to initiate a graduate career. Thus, Dr. Wolfson's calculation of $1,630,415 was based on very unrealistic assumptions."

The Court reduced the award to the amount calculated by Dr. Wolfson based on “the plausible assumption that plaintiff would work in a laboratory without a graduate degree, which is the position she accepted just prior to her accident”.⁴

Louisiana courts recognize the importance of limiting the number of mental leaps that can be made by an expert when calculating an appropriate award for future loss of earnings. Defendants should not be expected to pay for a plaintiff’s lost earnings from their “dream job” when no evidence exists that the plaintiff made any efforts to obtain it. To successfully challenge the expert’s opinion of lost future earnings it is critical to identify the assumptions the expert has used to calculate the alleged loss. An expert should focus on the facts, as pointed out by the court in Bernard, including (1) the academic degrees the plaintiff has earned, (2) enrollment in additional programs or courses, (3) employment history, and (4) employment status at the time of the incident sued upon. When an expert’s opinion relies upon assumptions that reach beyond these types of facts, those opinions should not be considered by the trier of fact when determining an appropriate award for future loss of earnings.⁵

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[1] Coco v. Winston Industries, 341 So.2d at 332.

[2] Robinson v. Graves, 343 So.2d 147 (La.1977); Sherlock v. Berry, 487 So.2d 555 (La. App. 4th Cir.1986), writ not considered489 So.2d 912 (La. 1986).

[3] Bernard,586 So.2d at 617.

[4] Bernard v. Royal Ins. Co.,586 So. 2d 607, 617 (La. Ct. App.), writ denied,589 So. 2d 1058 (La. 1991).

[5] See Engles v. City of New Orleans, 2003-0692 (La. App. 4 Cir. 2/25/04), 872 So. 2d 1166 for a circumstance where the Court found the assumptions made for a future lost wage projection were not too speculative.