As any trial lawyer has learned, proof of diminished earnings capacity presents one of the more difficult evidentiary problems for plaintiffs. While such damages often form an important aspect of a plaintiff’s damages, juries frequently express a (perhaps more than) healthy skepticism of such claims. The defense’s counsel is likely to contest the viability of loss of earnings capacity claims, and expert opinion will often be required. Careful consideration of the operative law regarding the proof of these claims at trial is essential for any trial lawyer, as a personal injury lawyer, from a firm like the Law Offices of Ryan Quinn, PLLC can explain.
If a person has experienced a permanent injury that hinders the work for which they are qualified to perform by education, training or experience, a damage award for diminished or lost earning capacity is appropriate. Exxon Corp. v. Fulgham, 224 Va. 235 (1982). Even if a plaintiff may be earning more post injury, the plaintiff may still be entitled to damages for the impairment of earning capacity, as damages are based on the potential capacity to earn.
Anthes v. Anthes, 258 Iowa 260, 139 N.W.2d 201 (1965).
Courts routinely admit evidence of numerous factors (including the injured person’s age, health, intelligence, capacity to work, experience, training, record of employment and future avenues of employment) in order to establish earning capacity and changes in earning capacity. Overstreet v. Shoney’s Inc., 4 S.W.3d 694, 704 (Tenn.Ct.App. 1999). Self-employed plaintiffs present special problems in establishing lost earning capacity. If the person uses a solely owned or closely held corporation or similar business entity, a defendant may claim the individual has no loss but that any “loss” is that of the entity. See Landmark Comm. v. Macione, 230 Va. 137,
334 S.E.2d 587 (1985). One potential approach is to present the cost of hiring replacement employees or contractors as evidence of the individual’s diminished earning capacity. See Cost of Hiring Substitute or Assistant During Incapacity of Injured Party as Item of Damages in Action for Personal Injury, 37 A.L.R.2d 364.
A claim for loss of earning capacity cannot be grounded solely on raw statistical evidence. Bulala v. Boyd, 239 Va. 218, 389 S.E.2d 670 (1990). This rule creates difficulties in proving lost earning capacity of infants. If an infant’s lost earning capacity claim is grounded upon facts specific to the infant, a court will allow recovery for the lost earning capacity. Musick v. Dorel Juvenile Group, Inc., 2011 WL 4851552, __F. Supp.2d___ (W.D. Va. 2011).
In summary, proof of lost earnings capacity presents unique problems to a plaintiff’s lawyer at trial. A thorough understanding of the relevant case law is an essential first step toward winning admission at trial of this important evidence of your client’s damages.