Month: June 1999

Injured, Yet Better Off?

Posted on By economica

by Scott Beesley

This article was originally published in the summer 1999 issue of the Expert Witness.

We occasionally encounter the claim that a plaintiff is better off financially than before the accident, or at least will be better off in the future. The evidence for this is usually that they are now earning more than they did at the time of the accident. Therefore how can there be any loss? This is not really very hard to respond to, and there are several reasons why there may still be a modest, or very substantial, loss of future income.

In an article in the March 1999 Barrister, Mr. Cameron J. Ashmore of Russell & Company provided a discussion of this issue, within a broader analysis of possible approaches to future loss assessment. Mr. Ashmore listed four reasons why a person who was apparently earning more might still have a loss of future income: early retirement, increased risk of unemployment, reduced future wage growth, and the prospect of time missed from work over the years. All of these are certainly legitimate concerns, and we commonly address them in our work. They all require, however, subjective judgments regarding the future effects of injury, which are difficult even for vocational experts to assess. If vocational opinions are not provided, or if the plaintiff’s outlook is less than clear, then we commonly consider a range of alternatives
(i.e. various growth, contingency and retirement assumptions). The court can then choose the figures it finds most reasonable in the pre- and post-accident cases, and the loss follows from that. If the court, for example, finds that all of these effects are fairly minimal, then indeed a small future loss is all that will result.

There is another issue to consider in these cases, and that
is wage growth between the date of the accident and the date of the evaluation. I would suggest that in some cases, a future loss is denied on the basis of faulty logic, in that
post-accident wage growth in that period is accepted as a fact, while pre-accident wage growth is implicitly or explicitly not considered. We refer now to wage growth in the general sense of any career progression, either incremental or sudden (such as when improved educational standing leads to a quick increase in income). It should be quite obvious that, no matter how minimal the injury, a plaintiff is never more capable of vocational progress after an injury than before, yet that is commonly implied or suggested outright.

Consider the example of an average male college graduate, injured at the age of 27, when he was earning $32,000. Five years later, at age 32, he is earning $33,000. First, we note that inflation alone applied to the older figure would probably predict an income of roughly $34,500, so even with just that adjustment there is an immediate loss. Much more important is the fact that 1996 Census data would predict that over those 5 years, the plaintiff’s income would have grown by approximately 22.56 percent, plus inflation. Assuming cumulative inflation of 8 percent over the five years, the total estimated increase in pre-accident income is 32.36 percent, and the value of pre-accident income at age 32 is
$42,355. The loss from age 32 to 33 is seen to be approximately
$9,355, and of course this loss may continue through to retirement. (In many cases the annual loss will decrease over time, simply because an average income curve starts with higher growth and levels off, such that a plaintiff who is five years behind, for example, will eventually get closer to their pre-accident level.)

I realize that the above example seems quite trivial, but we have repeatedly seen analyses in which post-accident figures are compared to pre-accident income from several years before, and inflation, or pre-accident wage growth, or both, are ignored. While there is certainly room for argument regarding how much more pre-accident wage growth a plaintiff might have enjoyed, it can never be considered logical to say that they will enjoy better prospects and wage growth after being injured. It is also flatly wrong to compare a post-accident figure to a pre-accident figure from several years before, without adjusting for inflation.

When a high school graduate plaintiff, in another example, retrains 4 years after the accident, and obtains a diploma in technology, their income could easily be far greater than before the accident. I would suggest that it is generally wrong to suggest that there is no future loss. I would further suggest that one fair way to assess the loss is to assume that the plaintiff would have completed the same given diploma one to three years sooner, in the absence of the accident. The loss then is the gap between pre- and post-accident income curves, which, as noted above, could almost vanish when growth slows in the later years of the person’s career. If the plaintiff had had no plans to enter such training until the accident occurred, that should not prevent the use of the method: clearly he/she had the potential to enter some form of training, and any such upgrade would have resulted in increased income. In addition to the loss resulting from a lag of some years, it is also possible that some of the four factors Mr. Ashmore listed will also be found to apply, and a more substantial loss might result.

In the absence of evidence regarding the plaintiff’s intentions prior to the accident, it is reasonable, I would argue, to assume that the plaintiff would have followed the same career path had the accident not occured as he/she has been observed to follow after the accident. If the new field is about as lucrative as any they could have entered, without injury, then there is probably no loss beyond what is due to the time lag and, possibly, some increased contingency risk. The loss is limited to the delay and probably some increased contingency risk. Conversely, the defense should not be able to claim that, because of the accident, the plaintiff has entered a new and better-paying field. To do so is, I repeat, to deny that the given path was possible before the injury, which makes little sense.

Two other examples merit brief mention. The first concerns women who are becoming more involved in work, after their children reach some particular stage (e.g. into grade 1). In such cases we might see a woman who had had very minimal income enjoy significant increases, even after an accident. This is occurring because they can now use their earlier training, or commit to full-time work, or move, or simply devote time to retraining and adding to their employability. It is again false to compare the income such a woman is now earning to what they were earning perhaps 6 years ago, yet this has been done at times. Any correct pre-accident scenario must be an answer to the question “What career path would have been open to Ms. Plaintiff, in the absence of the accident, and considering that her children are older and she can devote more time and energy to work?” One cannot use a pre-accident income level from the past, as if, in the absence of the accident, the children would never have grown up!

A final example is similar in principle to the case of the
“returning mother.” I have handled a fatal case in which pre-accident business income was assessed using the average of several years prior to the accident. As it happened, these were very poor years for the type of business in question, with returns well below the historical average. At about the same time as the accident, the business climate improved dramatically, producing higher returns for the surviving spouse, who was using a family member to replace some of the deceased’s labour. The opposing expert used income from the poor, before accident years to estimate pre-accident income, and an average in the later good years to define post-accident income. The plaintiff was said to be better off, before accounting for the (inadequate) wage paid to the family member to replace the deceased’s labour. After that was subtracted, the plaintiff was said to have suffered only a very slight loss. Note that this entire treatment is fatally flawed, as it assumes that the deceased would never have benefited from the improved business climate. Alternatively, it amounts to claiming that the accident
caused that improved business climate, which seems even more indefensible.

Any loss assessment should properly address the financial effects of changes which are due to the accident, and those alone. Other unrelated changes must be applied in both the pre- and post-accident analyses. Failure to compare apples to apples is an objective wrong, not simply a point of legitimate subjective dispute, like many of the assumptions made in most loss of income reports.

leaf

Scott Beesley is a consultant with Economica and has a Master of Arts degree (in economics) from the University of British Columbia.

Summer 1999 issue of the Expert Witness newsletter (volume 4, issue 2)

Posted on By economica

Contents:

  • Advice for Experts Facing Cross-Examination
    • by Steve Babitsky and James Mangraviti, Jr.
    • This article was written by Steve Babitsky and James Mangraviti, Jr. of SEAK Inc., a consulting firm in Massachusetts. Their article contains some excellent advice for experts who are testifying in court.
  • The Role of Expert Evidence
    • by Christopher Bruce
    • In this article Christopher Bruce examines the difference between experts and lay witnesses. He summarizes some of the leading decisions concerning “The Role of Expert Evidence” from both the Canadian and American courts.
  • Injured, Yet Better Off?
    • by Scott Beesley
    • In this article Scott Beesley discusses the proposition that a plaintiff is better off as a result of an accident, explains why it is false, and provides some examples.

The Role of Expert Evidence

Posted on By economica

by Christopher Bruce

This article was originally published in the summer 1999 issue of the Expert Witness.

The readers of this newsletter are familiar with the use of expert testimony in the Canadian court system. Nevertheless, most of us would be hard pressed to provide a clear definition of the difference between experts and lay witnesses. On a day-to-day basis, the best many of us could do would be to paraphrase the old saw, “an expert is what an expert does.” On occasion, however, it may behoove counsel to examine closely the witness being put forward by opposing counsel and ask “is that individual truly an expert?” In this article, I summarise some of the leading decisions concerning this question from both the Canadian and American courts.

The classic Canadian statement of the role of expert evidence is found in Kelliher (Village of) v. Smith, ([1931] S.C.R. 672), in which the Supreme Court of Canada, quoting from Bevan on Negligence, concluded that in order for testimony to be considered “expert”

[t]he subject matter of the inquiry must be such that ordinary people are unlikely to form a correct judgment about it, if unassisted by persons with special knowledge. (p. 684)

Recently, in R. v. Mohan, ([1994] 2 S.C.R. 9, at 23) the Supreme Court elaborated on this requirement. There, Sopinka JJ stated that expert evidence must be both necessary in assisting the trier of fact and relevant. (Emphasis added)

Under the heading of “necessity in assisting the trier of fact” the Court made it clear that expert evidence was not to be admitted if the subject of the testimony concerned an issue which was within the common knowledge of the trier of fact. In particular, Sopinka JJ quoted approvingly from R. v. Turner, ([1975] Q.B. 834, at 841) in which Lawton, LJ concluded

An expert’s opinion is admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary. (R. v. Mohan, at 24)

Similarly:

…the evidence must be necessary to enable the trier of fact to appreciate the matters in issue due to their technical nature. (p. 23)

The Court ruled that, prima facie, expert evidence was “relevant” if it was “…so related to a fact in issue that it tends to establish it.” (p. 20) However, that was not to be the only criterion. In particular,

Evidence that is otherwise logically relevant may be excluded … if it involves an inordinate amount of time which is not commensurate with its value or if it is misleading in the sense that its effect on the trier of fact, particularly a jury, is out of proportion to its reliability. (p. 21)

Furthermore, relevance was also to include a test to determine whether the evidence was “reliable” and “essential.”

[E]xpert evidence which advances a novel scientific theory or technique is subjected to special scrutiny to determine whether it meets a basic threshold of reliability and whether it is essential in the sense that the trier of fact will be unable to come to a satisfactory conclusion without the assistance of the expert. (p. 25)

In short, the hallmarks of expert evidence were (a) that it concern matters of such a technical nature that the judge or jury could not be expected to reach a “correct” conclusion without assistance; and (b) that it be able to withstand close scrutiny to determine whether it was “reliable.” But those with some experience with litigation will recognise that this decision left many issues unresolved. Most importantly, a number of the terms that were crucial to the application of the Court’s decision were not defined. Without definitions of terms such as “special knowledge,” “reliability,” “novel scientific theory,” and “technical matters,” the lower courts were provided with little direction concerning the characteristics of “expert” testimony.

Some insight into the issues which can arise, and how the courts might resolve them, may be obtained by reviewing the interpretation which the courts in United States have given to Rule 702 of their Federal Rules of Evidence:

Rule 702. Testimony by Experts

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

As the wording of this Rule reflects the wording chosen by the Supreme Court of Canada in R. v. Mohan, the issues faced by the courts in both countries are similar.

Two recent decisions of the United States Supreme Court – Daubert v. Merrell Dow Pharmaceuticals, Inc. ([1992] 509 U.S. 579) and Kumho Tire Co. v. Carmichael, ([1999] 131 F.3d 1433) have ruled on the interpretation of the terms “scientific, technical, or other specialized knowledge” contained in Rule 702. In Daubert the court set out four criteria for determining whether expert testimony met the requirement that it constitute “scientific knowledge.” These are:

  1. Whether the theory or technique “can be (and has been) tested.”
  2. Whether the “theory or technique has been subjected to peer review and publication.”
  3. In the case of a particular technique, what “the known or potential rate of error” is or has been.
  4. Whether the evidence has gained widespread acceptance within the scientific community.

All of these criteria appear valuable for determining the admissibility of “scientific” evidence, such as the testimony of medical researchers. (The issue in dispute in Daubert was whether the drug Bendectin, when taken by pregnant women, had caused birth defects.)

These tests can also be applied to economic and psychological testimony, with some modifications. For example, the test of an economist’s or psychologist’s prediction that a particular child will graduate from university is not the usual “scientific” test, of waiting to see whether child does, in fact, graduate. Rather, it is a reference to the numerous statistical studies which have shown that a child’s ultimate educational attainment is significantly influenced by traits inherited from his or her parents and by such socio-economic factors as the child’s sex and his/her parents’ income and religion.

The second and fourth criteria are also applicable to testimony that is based on the use of theoretical constructs. For example, the concept of “opportunity cost,” which is the basis for one of the methods of valuing household services, has been developed by economists. Although it would be difficult to find direct empirical “tests” of this hypothesis, and its “potential rate of error” is not known; it has been “subjected to peer review and publication” and has “gained widespread acceptance within the scientific community.”

Similarly, whereas there is, to my knowledge, no published theoretical support for the use of the cross dependency approach to valuing fatal accident claims, a number of refereed articles provide such support for the use of the sole dependency approach. Again, although no “scientific evidence” can be offered that the latter approach is superior to the former, those who employ the latter can point to evidence of “peer review and publication.”

The Daubert criteria proved less applicable to issues involving “technical” knowledge, such as that often proffered by engineers, however. Accordingly, the United States Supreme Court agreed to hear Kumho Tire. In that case, a number of passengers in the plaintiff’s vehicle were injured when a tire blew out. An expert in tire failure analysis relied in part on his own (extensive) experience to conclude that the blow out was caused by a defect and not by misuse on the part of the plaintiff. As the expert’s testimony did not meet any of the criteria set out in Daubert, the issue in Kumho was whether “technical and other specialized knowledge,” as defined in Rule 702, was to be subjected to the same criteria as was “scientific knowledge.” The Court ruled that it was not. Testimony about a technical matter could be considered to be “expert” if it

…. focuses upon specialized observations, the specialized translations of those observations into theory, a specialized theory itself, or the application of such a theory in a particular case.

The function of Rule 702 was not to restrict expert testimony to a narrow set of “scientific” disciplines, but to

… make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.

This requirement, that “intellectual rigor” be applied, offers one of the most important “gatekeepers” when evaluating the testimony of those who have been put forward as expert witnesses. Too often “experts” offer no justification at all for their choice of a particular approach; or they offer little more justification than that it has “always been done that way” or that “a number” of courts have employed that approach. This is not evidence of intellectual rigor; nor does it meet any of the criteria for reliability or relevance set out by the Canadian and American Supreme Courts.

leaf

Christopher Bruce is the President of Economica and a Professor of Economics at the University of Calgary. He is also the author of Assessment of Personal Injury Damages (Butterworths, 2004).

Advice for Experts Facing Cross-Examination

Posted on By economica

by Steve Babitsky and James Mangraviti, Jr.

Steve Babitsky and James Mangraviti, Jr., of the Massachusetts consulting firm, SEAK, have written a book entitled, How To Excel During Depositions: Techniques For Experts That Work. They have graciously given us permission to reprint the following excerpt from that book. Although their tips are specifically concerned with answers to questions at depositions, most of their advice applies equally well to cross-examination.

This article was originally published in the summer 1999 issue of the Expert Witness.

Avoid Absolute Words

You are well advised to avoid, where possible, absolute words such as “always” and “never.” Absolute words are frequently an invitation to, and fertile grounds for, cross-examination by counsel. Counsel will attempt to damage your credibility by first getting you to make an absolute statement. She will then use counterexamples in an effort to show the falsity of your statement.

Don’t Elaborate or Volunteer

Volunteering information can be one of the biggest mistakes an expert makes at deposition. Generally, an expert should answer only the questions she is asked and not volunteer information. The volunteering of information will almost always result in new lines of cross-examination. It may also disclose information to which counsel otherwise never would have become privy.

Be Careful When Using Hedge Words

You need to be careful when using hedge words when expressing your opinion. Such words include “I guess,” “I believe,” “it seems,” “it’s possible,” and “I would say.” The only reason that you are testifying is to give an opinion. Hedge words and phrases can quickly undermine your opinion and are an invitation for additional cross-examination. Worse, counsel may be able to make a motion to have your entire testimony stricken because expert guessing is not allowed under the rules of evidence.

Example:

Q: That’s your “guess,” sir?

A: Well, what I meant to say, that it was my opinion that….

Lesson: The expert needed to avoid the hedge words. If he had an opinion he believed in, he should have stated it without employing the hedge words.

Concessions

In answering questions honestly, you may have to make an occasional concession. If you make the concession graciously and move on, you will exude confidence, integrity, and flexibility. If, on the other hand, you doggedly refuse to give an inch, you may come off as rigid and partisan.

The most common error the beginning expert makes in a deposition is the failure to concede an obvious and irrefutable point out of misguided loyalty to his or her side of the case…. Quibbling over the possible exceptions or equivocating in some way helps no one.

“I Don’t Know”

If you are asked a question that you do not know the answer to, your answer should be, “I don’t know.” There is absolutely nothing wrong with this response if you genuinely do not know the answer to the question. There are probably thousands of questions that can be asked of experts in any discipline to which they have no answer. The more the expert hesitates or tries to avoid saying, “I don’t know,” the more emphasis is given to this “lack of knowledge” by the jury or fact finder. No amount of hesitation will bring the answer to you if you do not know it.

Example:

Q: If those wrist rests were unavailable prior to 1991, would you agree she had a higher probability then of being in a neutral position?

A: I don’t know. That’s an interesting question. I don’t know. I mean I guess that’s my answer, I don’t know. But I think the wrist rests certainly emphasizes, even though you have the Ridyard’s ergonomic assessment of 1994, if Miss Sanford and/or her supervisor were trained, that would not have been a product of choice.

Lesson: If you allow yourself to get flustered, your lack of knowledge will be emphasized to the jury. The expert in this example would have been better served by replying, “I don’t know” and then sitting quietly and waiting for the next question.

“I Don’t Recall”

When asked about a fact, situation, or occurrence that you honestly do not remember, the best answer is, “I do not remember” or “I don’t recall.” This is only an appropriate answer when you honestly have no recollection. Perjury ramifications aside, an endless string of “I don’t recalls” (or even one that may seem hard to believe) may tend to damage your credibility. If your response is that you do not recall, counsel may then attempt to refresh your memory. This is permissible under the rules of evidence.

Beware of Open-ended Questions

You should be cautious when dealing with open-ended questions. These questions invite long, rambling answers. Counsel may be trying to get you to volunteer information not called for by the question. If you do volunteer information, it is likely that this information will be used against you during cross-examination. You should therefore answer open-ended questions as concisely as possible, being careful not to provide information that was not asked for. Experts are better served by brief, succinct replies to open-ended questions. If counsel has follow-up questions, let her ask them. Don’t do the lawyer’s job for her.

Avoid Slang

Avoid slang expressions when replying to questions. When they are transcribed and read back to a jury, these expressions diminish the value of your reply and can make you sound almost illiterate. Most slang expressions slip from experts unintentionally. To avoid making such a slip, you will need to maintain your concentration and focus.

Example:

Q: Now, sir, you were asked on direct examination about the history that you took from Ronald Evans, right?

A: Uh-huh.

Q: And the history is the story that he tells you, correct?

A: Uh-huh.

Q: Is that a yes?

A: Yes, it is

Q: Are you familiar with an organization called M.O.R. Incorporated, sir?

A: Nope.

Lesson: The expert’s use of slang cheapens his testimony and diminishes his credibility.

Counsel’s “Bumble and Fumble” Gambit

Do not help counsel when he is apparently bumbling or fumbling with some type of technical question. Experts are frequently tricked into volunteering key information by such real or feigned ignorance. Let counsel bumble or fumble all they want. Remember, you are there to answer questions, not to assist counsel in framing them correctly.

Yes or No Responses

If counsel asks for a yes or no response and you can answer the question with a yes or a no, endeavor to do so. If counsel attempts to insist on a yes or no answer to questions that cannot be answered in that fashion, you can state, “I cannot answer that question with a yes or no reply.” It will then be up to counsel to either let you explain your answer or rephrase his question.

What to Do When You Make a Mistake

Expert witnesses are not expected to be perfect. During a long and arduous deposition, you may misspeak or make a mistake or error. If you do make a mistake, you should correct the error on the record as soon as you recognize your error. “I want to correct a statement I made a few minutes ago. I stated that the 1991 EMG was related to the surgery. That is incorrect.” Counsel may quickly challenge you on your mistake before you have an opportunity to correct it. In that case, admit your error graciously. What you want to avoid after making a mistake is making the matter even worse by your inability or unwillingness to admit the mistake. This could make you look biased. If you discover your mistake after the deposition concludes, notify counsel and correct the deposition transcript when it comes for your signature.

“I Don’t Know, But…”

As an expert witness, you are under oath to tell the truth. You should not speculate, but should testify with a reasonable degree of certainty. At trial, many experts do not practice this principle and, in fact, speculate freely. One of the most common forms of speculation by experts at trial is the “I do not know, but…” reply. It is usually a mistake to use this response. First of all, if you don’t know, then any information you provide after the “but” is mere speculation. Secondly, you may volunteer damaging information after the “but.”

The simple, direct, and best response is, “I don’t know.” The throwaway statements that come after the “but” or “I don’t know” reply help counsel by providing him or her with additional information. This type of reply frequently results in new lines of inquiry and detailed questioning by counsel.

“Hoping”

Sophisticated counsel may attempt to trap the expert witness by the use of the word hope. If you inadvertently agree with a characterization, you may allow the lawyer to successfully call into question the reliability of your opinion. When you are confronted with an “And you are hoping…” question, it may be best to actively refute that characterization. Remember that when you are passive and agree to an attorney’s characterization or mischaracterization, you are in effect letting the attorney put words in your mouth.

Refusal to Speculate

You should not permit yourself to be tricked, cajoled, or forced into speculating when answering questions under oath. There is nothing wrong with the response, “I’m sorry, but I’m not going to speculate on that.”

“Possibility”

Beware of the use of the word possible. Testifying that something is merely “possible” is most likely legally insufficient. If your opinion is only a mere possibility, the judge will most likely not allow it to be presented to the jury as evidence.

“I Guess”

As an expert, you are testifying under oath. Your testimony will help resolve the rights and liabilities of parties who are involved in a legal dispute. Accordingly, there is no place for you to guess. Experts are well advised to leave the guessing to financial advisers, political pundits, and meteorologists. Your “guesses” are not admissible in evidence. Guessing can only hurt your credibility. It should be avoided.

“I Don’t Understand the Question”

You need not answer questions that you do not understand. If the question propounded to you is confusing, the preferred answer is, “I don’t understand the question.” Exercise caution in giving “I don’t understand” replies to avoid answering questions improperly. For example, if you are one of the leading computer experts in the world and have testified that you didn’t understand a question about a browser, it is likely that your credibility will be impaired. You must answer truthfully and are permitted to answer, “I don’t understand” only when that is the actual case.

Compound Questions

Frequently, attorneys attempt to confuse the expert at deposition by asking compound questions; that is, two questions combined. Sometimes the question is asked in a stream of consciousness manner that is difficult to comprehend, let alone answer accurately. When faced with such questions, appropriate responses include: “Counsel, you have asked several questions. Can you simplify the question so I can answer it accurately?” and, “Counsel, I’m sorry, I don’t understand the question. Could you please rephrase it?”

“I Assume”

You should not make unfounded or unsupported assumptions in an attempt to answer a question. If you can’t answer or don’t know the answer, say so. Expert witnesses need not and should not make unsupported or unsubstantiated assumptions in an attempt to answer questions at deposition.

Example:

Q: Does the computer program have the capability of printing out a master index of all of the crash tests?

A: I don’t know, but I would assume that some computer person set this system up and can go in and generate a list of all of the data in there….

Lesson: Assuming in a case like this is akin to guessing and should be avoided. A better answer might have been, “I don’t know.”

leaf

Steve Babitsky is President, and James Mangraviti, Jr. is vice-president, of SEAK Inc. SEAK is a provider of “inter-disciplinary seminars, distance learning resources, and publications” in the areas of workers compensation, occupational health and, medical-legal issues. Further information about them can be obtained from their excellent website: www.seak.com or telephone 508-548-7023.