Loss of future earnings is a customary injury in personal injury cases. The loss of future earning capacity is similar and related, but there is a difference between the two. The Sixth Circuit recently in Andler v. Clear Channel Broadcasting, Inc., Nos. 10-3264/3266 (February 29, 2012), explain the difference in the mechanics of proving lost future earning capacity.
Brandy Andler, while walking about a campground owned by Clear Channel, stepped into a grass-covered whole 6-8 inches deep and broke several bones in both of her feet. As a result of the fall, she developed arthritis in her feet. Before the injury Andler work part-time as a childcare worker earning $9 – 10,000 per year. her injuries forced her to change jobs; in the two years following the injury she worked full-time as a manicurist and pedicures and increased her annual earnings, making $10,000 in the first year and $25,000 in the second year.
Antler intended to present expert testimony from an accountant, Daniel Selby, who used Bureau Of Labor Statistics figures, to reach the following conclusions: (1) but for her injury antler could have earned approximately $17,600 a year as a full-time childcare worker; (2) her post injury annual earning capacity as a full-time manicurist and pedicures was approximately the same; but, (3) when factoring in the effects of her work disability, such as increased likelihood of missed work or longer-term exit from the workforce, antlers damages for lost earning capacity totaled S232,346. The trial judge, Magistrate Judge Norah McCann King, excluded Selby's testimony, a ruling that caused the Sixth Circuit to order a new trial on Andler's damages.
The Sixth Circuit, in an opinion written by Judge Karen Nelson Moore, took pains to explain the proven elements of lost future earning capacity as follows:
- Damages for lost future earning capacity "are awarded for loss of earning power, not simply loss of earnings. The proper focus is thus what the injured plaintiff could have earned over the course of her working life without the injury versus what she will now earn, not what she earned her will earn in any given year."
- A plaintiff who, at the time of trial, is receiving higher wages than those which he or she was earning at the time of the injury, may nevertheless recover for impairment of earning capacity. 2 Stein on Personal Injury Damages 6.9
- Proof that earnings increased or remained the same between the time of injury and the time of trial does not necessarily bar a recovery for impairment of future earning capacity.
- A plaintiff who is unemployed or otherwise earning below her potential at the time of the injury, for example, can recover damages for lost earning capacity, as can an injured child, student, or homemaker.
- Expert testimony regarding what an injured plaintiff could have earned should take into account factors such as the plaintiffs age, employment record, training, education, ability to work, and opportunities for advancement. an expert may reasonably depart from historical earning patterns in light of changed circumstances that occurred prior to the injury but were not yet reflected in the plaintiff's actual salary.
