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ARTICLE:
VTLA Life Care Speech
by M.
BRYAN SLAUGHTER & BRUCE
RASMUSSEN
Your client has
been catastrophically injured, and she is going to need a
lifetime of medical care and assistance with life's daily
activities. Or perhaps her injuries were not so serious, and,
although she will eventually be able to work again, she can
never return to her old job, where she had worked for 20 years
and was making a good wage before she was injured.
The familiar closing argument is true -- she
will have but one day in court. If the jury doesn't give her
enough, if you don't properly ask for enough, she's out of
luck– she can never return and ask for more.
What do you do? How do you present evidence of
these future damages clearly and persuasively, in such a way
that your request attains credibility with the jury?
Credibility and a flawless presentation is never
more important than with this type of testimony. Why? Because
this evidence of future loss will likely comprise the majority
of your damages. Yet, in the eyes of the jury, these figures
are by far the least tangible.
A jury instantly understands and, for the most
part, trusts past lost wages and medical expenses. But attach
an amount to future earning capacity or future medical and
living needs, then multiply those numbers out over a lifetime
– and you will arrive at a figure that a jury does not
intuitively understand. If not supported by excellent testimony
and evidence, the jury will assume the figure is nothing more
than another greedy lawyer trick to "run up the tab"
– to get your client more than what is fair and just.
The most effective way of presenting these damages
is with well-qualified and well-prepared experts: a Life Care
Planner and a Vocational Rehabilitation Specialist.
FINDING AND USING A LIFE CARE PLANNER
• A Life Care Plan is a plan to maximize the quality
of life for your client over her remaining lifetime.
• In any case where a client will likely need long-term
medical care, it is advisable to have the case evaluated
by a Life Care Planner.
• Any Life Care Planner you find should be accredited
by a national organization and certified in rehabilitation
counseling and medical case management.
• Such a specialist will be able to evaluate the future
needs of your client, including medical care and treatment,
medical and home health support, educational and vocational
training, adaptive equipment, adaptive living environments,
and personal equipment.
• Engage the services of a Life Care Planner as quickly
as possible. Such an expert will not be nearly as effective
as a witness at trial, nor will the Life Care Plan be as
credible, if the specialist is brought in immediately prior
to trial.
• Ideally, the Life Care Planner will be engaged soon
after the attorney is retained. The specialist can become
involved immediately with the client's medical care and
can develop a relationship with your client's doctors. In
doing so, the rehabilitation specialist will be advised
of all components of your client's care.
• Make sure to secure all the records and make them
available to your Life Care Planner. Make sure that she
and you understand all diagnoses.
• Have the Life Care Planner interview the client,
preferably in the client's home. The Life Care Planner should
also interview your client's close relatives.
• The Life Care Planner will be able to determine
whether the services that have been provided are appropriate
and adequate. She will also be able to advise you of available
resources which the patient may benefit from that have not
been provided.
• The Life Care Planner will take a complete medical
history. This will consist of her reviewing every medical
record, covering every treatment or medical visit by your
client.
• This history should be included in the Life Care
Plan. If this is not done, you will expose the expert to
cross-examination that the opinion was not based on a proper
foundation. Therefore, the medical history will literally
commence with the emergency room notes through the last
visit before the Life Care Plan is produced.
• This history will also include your client's past
treatments and medications.
• Following the history will be a list of subjects
where the client will need help in the future. These may
include: aides to independent function, drugs and supplies,
educational services, evaluations, home services, community
care services, medical routine, medical services, rehabilitation
services, personal equipment, therapeutic recreation therapies,
and other therapies.
• The Life Care Plan will then set out each of your
client's needs, the frequency in which they will be required,
and the yearly and lifetime cost for such service. At the
end of the Plan, there should be a total cost for your client's
future medical cost – but it is important that everything
is clearly itemized so the jury can see how you arrived
at that figure.
HOW TO AVOID LIFE CARE PLAN TRAPS
• Put the Life Care Planner on the stand for a long
time. Make sure she is extremely well prepared. Have her
bring props, pictures, and any other item that can demonstrate
tangibly the items in the Life Care Plan. For instance,
if a client is going to need leg braces, then have the Life
Care Planner bring in the leg braces. If the client is going
to need therapy, then have a videotape of that therapy.
If the client needs to be institutionalized, then have pictures
or videotape of the institution. The object of this, obviously,
is to make each item in the Life Care Plan as real as possible
to the jury.
• Do not include any items that are not absolutely
necessary. If the jury examines the Life Care Plan and finds
items that they do not believe are necessary to the care
of your client, then your Life Care Plan will lose credibility,
as they will assume you are throwing in items just to run
up the medical costs. If anything sounds silly or frivolous,
then delete it.
• Pay particular attention to the item and the charge
for that item. Make sure the charge for each item is reasonable
in the real world. For example, if the client needs a therapy
ball, and the medical cost is $400, the jury will wonder
why you can't get one at Walmart for $10.
• Make sure to have the Life Care Plan approved by
your client's doctors. Each of your doctors should examine
the Plan and agree with the proposed care and testify to
their agreement at trial.
• Finally, how do you respond to the defense's argument
that the Life Care Plan is excessive? By making sure the
jury knows that every single item in the Plan is necessary
to your client's future. The jury needs to be aware that
if they discount the cost of the Life Care Plan, the client
will eventually have to forgo certain items. Let the jury
know how unfair it would be to follow the defense's advice
and arbitrarily reduce the amount awarded for the Plan.
• Make the jurors decide specifically what they are
cutting. For instance, make them actively decide that your
client only needs therapy once a month rather than once
a week. Jurors will have a much more difficult time discounting
if they are forced to make these hard decisions.
FINDING AND USING A VOCATIONAL EXPERT
The purpose of vocational training is to help
someone get back to work, once they have reached maximum medical
improvement. Often, when a client is left with a disability,
he or she can no longer perform their previous job. Therefore,
they must be retrained so they can re-enter society and become
a productive working member of society.
• Vocational plans can be initiated and developed
while the individual remains in active medical treatment.
• The vocational specialist should have copies of
your client's medical records, especially that showing the
diagnosis and the prognosis.
• The vocational specialist should be given all past
employment and wage information, including descriptions
of all previous jobs held.
• The vocational specialist will need educational
records.
• While it is difficult, it is possible to establish
a loss of earning capacity for a minor. The defense is obviously
going to object that the claimed damages are too speculative.
Counter this by being extremely careful in laying the foundation.
Gather educational records, any work records, parental records
and their job histories.
• The expert should work very hard at defining the
minor's skills and will then have a stronger basis for the
proposed jobs. Do not overreach.
• The related facts and circumstances should be personal
to the plaintiff – not statistical.
• The client should be interviewed by the vocational
specialist and, at that time, tested. The primary test used
is the transferable skills analysis. The heart of your expert's
opinion will be the skills from your client's previous jobs
that are transferable to other occupations.
• If at all possible, get your client back to work.
The best plaintiff from a damages standpoint is one who
is working, but at a lower wage. This will show the jury
that your client is trying – he is not a quitter, nor
is he trying to cheat the system.
WHAT IS LOSS OF FUTURE EARNING CAPACITY?
• Earning capacity can be operationally defined as
an individual's ability or power to generate income through
the performance of work activity.
• It takes into consideration individual traits, characteristics,
abilities, and aptitudes within the context of age, status,
and career development, educational history, employment
history, goals and access.
• By factoring in the effects of the disability, pre-injury
earning capacity can be compared to post-injury earning
capacity, yielding loss of earning capacity.
• An individual's actual earnings pre- or post-onset
of disability are not predeterminative of earning capacity,
and an individual need not have an employment history to
have an earning capacity.
HOW TO AVOID TRAPS FOR THE VOCATIONAL EXPERT
• The jury may understand why the client cannot go
back to his old job, but they will want to know why your
client can't flip hamburgers at McDonald's. This needs to
be explained.
• How does the vocational expert know our client would
have continued in his old job through the work expectancy
that we are currently giving them? For instance, is it reasonable
that a coal miner would work until age 65? You can certainly
make the argument that the coal miner would work this long,
but you need to show the jury why, with items such as work
history and financial need and good health.
• You need to explain the difference between lost
wages and lost earning capacities – because jurors
often do not understand.
• It is helpful for vocational experts to know the
occupations of the jurors, so they can make their explanations
more real and understandable.
• Unless your client is catastrophically injured,
the vocational expert should assume for the jury that your
client will make it back to work someday. That shows the
jury that your client is not giving up – he is a fighter.
Make the jury want to help.
• Your vocational expert should know the current employment
market where your client lives – what the cost of labor
is, and what your client can expect to earn through different
jobs.
RESOURCES FOR VOCATIONAL REHABILITATION EXPERTS
• Dictionary of Occupational Titles
• Classification of Jobs
• Bureau of Labor Statistics Publications
• Virginia Employment Commission Wage Surveys
• Occupational Outlook Handbook
• Professional and Trade Association Publications
• Individual Labor Market Surveys
APPLICABLE CASE LAW
Since absolute certainty in damages is often
unattainable, it is proper to place before the jury all the
facts and circumstances of the case having any tendency to
show damages or their probable amount, in order to allow the
most accurate estimate possible. Oden v. Salch, 237 Va. 525
(1989).
Damages which cannot be established with reasonable
certainty are speculative or conjectural and may not be recovered.
Miller v. Johnson, 231 Va .177 (1986).
Bulala v. Boyd, 239 Va. 218 (1990), is one of
the most significant loss of earning capacity cases. Bulala
involved a child who was injured at birth by the negligence
of the defendant doctor. The child suffered catastrophic injuries,
and died after verdicts were returned in the malpractice case.
The Virginia Supreme Court stated the following regarding
loss of earning capacity by an infant:
In a personal injury action, a plaintiff is
not precluded from recovering damages for lost future earnings
or for diminution of earning capacity by reason of his infancy.
See Moses v. Akers, 203 Va. 130, 132; Watson v. Daniel, 165
Va. 564, 573 (1936). But we have never held that statistical
averages alone can form a sufficient evidentiary foundation
for such damages. In order to carry his burden of proof, an
infant plaintiff, like any other plaintiff, must "furnish
evidence of sufficient facts or circumstances" to enable
the jury to make "an intelligent and probable estimate"
of damages, Gwaltney v. Reed, 196 Va. 505, 507. Such evidence
must relate to facts and circumstances personal to the plaintiff
as an individual, not merely to his membership in a statistical
class.
Undoubtedly, such an evidentiary standard may
confront a plaintiff having no work history and no prospect
of future earning ability with an impossible burden, but we
think that result preferable to the unwarranted burden-shifting
that occurs when future earnings are projected solely on the
basis of statistics.
Bulala at 233.
The Virginia Supreme Court has accepted the
use of vocational experts. In Clark v. Chapman, 238 Va. 655
(1989), plaintiff was shopping in defendant's supermarket
when an employee of the store pushed a large rack of produce
into plaintiff's hand, crushing it. Plaintiff offered a rehabilitation
counselor who testified that the plaintiff, based on her physical
and mental condition, was presently unemployable. The counselor
identified 503 jobs that plaintiff could have performed prior
to the accident, but only 63 jobs that plaintiff would have
available to her upon her recovery.
Defendant argued that the counselor's testimony
should have been excluded because it was beyond her expertise
and not based on medical testimony that plaintiff could not
work. The Supreme Court held, citing Todt v. Shaw, 223 Va.
123 (1982), that medical testimony is not necessary in order
to allow a jury to consider lost future income and stated
that it then followed that such testimony was not necessary
as a predicate for the opinion in that case.
HOWEVER – If plaintiff overreaches or gets sloppy in
his foundation, he will be reversed.
Greater Richmond Transit Co. v. Wilkerson, 242
Va. 65 (1991), provides a good roadmap of what NOT to do with
a vocational expert. In that case, the plaintiff was injured
when she jumped off an out-of-control bus caused by the driver's
failure to engage the emergency brake. The plaintiff engaged
a vocational expert, and the case was ultimately overturned
based on the expert's testimony.
The Court found that: (1) the expert assumed
that plaintiff would have worked 40 hours a week for the balance
of her working life, although there was no evidence that she
usually worked a 40-hour week before her injury; (2) the expert's
projections were based in part on the wages of maids and cleaners
in schools and hospitals, who usually earn more than maids
who work by the day in private homes, as plaintiff had done
for a number of years prior to her injury; and (3) the expert's
projections included only the daily wages of plaintiff's three
highest-paying employers, although the evidence showed that
her other five employers paid plaintiff substantially less.
Citing to Bulala v. Boyd, the Court found that
the expert's testimony was not grounded on all the data relevant
to plaintiff's projected loss of earning capacity. Therefore,
his projections should not have been admitted in evidence.
Perhaps the best case for defining and understanding
earning capacity is Exxon Corp. v. Fulgham, 224 Va. 235 (1982).
In that case plaintiff injured his hand in 1977 in an auto
accident. From 1973 until 1976, plaintiff had worked as a
cabinetmaker's apprentice. However, in March of 1976, he left
that job to work as an office machinery repairman. In this
position he earned $700 per month at the time of the accident
and $1,000 per month at the time of trial, which was more
than he made as a cabinetmaker.
Plaintiff testified he had hoped to go into
the woodworking business for himself, but that this was impossible
because of the work injury. The trial court instructed the
jury that it could award damages for loss of earning capacity
of the plaintiff and admitted evidence of plaintiff's life
expectancy from the Code § 8.01-419 table. The jury awarded
plaintiff $150,000 in damages.
The Supreme Court held that the evidence that
plaintiff was earning more at the time of trial than he was
in 1977 when injured was immaterial, because he was seeking
recovery for loss of earning capacity rather than for actual
loss of earnings. The Court further found that the evidence
by plaintiff and his physician was sufficient for the jury
to have found that, by injury to plaintiff's left wrist, he
sustained a lessening of earning capacity in the future.
There are no Virginia Supreme Court cases regarding
the admissibility of Life Care Plans. In 1994, Judge Markow
admitted a Life Care Plan in Whiteside v. GRTC, 13 Va. Cir.
LU-3467. Nationally, the testimony appears to be generally
accepted. See Ensor v. Wilson, 519 So.2d 1244 (Ala. 1988);
Harlow v. Chin, 405 Mass. 697, 545 N.E.2d 602 (1989); and
Cunningham v. Quaker Oats Co., Fisher-Price Division, 107
F.R.D. 66 (W.D.N.Y. 1985). The key, once again, is to have
a well-qualified expert who has an excellent knowledge of
your client, his medical records, treatment, and prognosis.
Finally, the Plan should be approved by your client's doctors.
Lastly, in federal court, be careful of the
dreaded Daubert/Kumho motions. Defense attorneys are raising
these motions against both vocational experts and life care
planners. With good experts, plaintiffs are surviving these
challenges. Therefore, you must be doubly sure in federal
court that your expert is well credentialed, has testified
numerous times, and that her methodology is based on scientific
principles generally accepted in the field. Both vocational
counseling and life care planning are well established disciplines
with accepted standards within their respective fields. Make
sure, upon retaining her, that your expert is aware of the
requirements of Daubert/Kumho, and stress to her that everything
she does must be meticulously supported.
CONCLUSION
Life Care Planners and Vocational Counselors
are vital experts when a client is seriously injured and will
require a lifetime of medical care and/or cannot return to
his old job. When used properly, these experts will help the
jury truly see the full extent and implications of your client's
injuries and, accordingly, will help you obtain a full and
fair verdict on his behalf.
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