Measuring Loss in Catastrophic Injury Cases

Kevin Marshall, Thomas Ireland

Table of Contents  (Back to book ordering page)

Preface xv

Chapter 1: The Interdisciplinary Nature of Measuring Loss in Catastrophic Injury Cases 1
Kevin S. Marshall, Ph.D., M.P.A, J.D.
1.1 The Daubert Trilogy and the court's Gate-Keeping Obligation 3
1.2 Judicial Pragmatism and the Application of Daubert 5
1.3 The Legal Standard 7
1.4 The Assessment and Measurement of Catastrophic Losses 7
1.5 Methodological Forecasting Techniques 8
1.6 A Tripartite Methodological-Interdisciplinary Analysis 9
References 10
Legal Cases 11
Endnotes 12

Chapter 2: The Role of a Forensic Economist in a Damage Assessment for Personal Injuries 15
Thomas R. Ireland, Ph.D.
2.1 Introduction 16
2.2 A Sample Case for this Paper 18
2.3 What an Economic Expert Needs from Other Experts 18
2.4 Projecting Wages and Salaries 20
     A. Dealing with promotions 22
     B. Growth rates in damages projections 22
2.5 Applying Discount Rates, Net Discount Rates, and Real
Discount Rates 23
     A. Discount rates in damages projections 23
     B. The Pfeifer case 24
     C. The net discount rate method 24
     D. The real discount rate method 25
2.6 Earning Capacity and Expected Work Life 26
2.7 Developing Sample Case Tables Showing Earnings Loss 28
     A. Explaining tables 2.1-2.4 at the end of this paper 28
     B. Alternative presentations 29
2.8 Special Rules: Pennsylvania and New York 30
2.9 Dealing with Job-Related Fringe Benefits and Taxes 32
     A. Tax considerations 32
     B. Valuing "legally mandated" job-related fringe benefits 33
     C. Valuing "discretionary" job-related fringe benefits 34
     D. The use of simple percentages 36
     E. Sample Case Development 36
2.10 Dealing with Lost Family Services 37
     A. The nature of family services 37
     B. Replacement cost versus opportunity cost 37
     C. Mitigation offsets for lost family services 37
     D. Sample case development 38
2.11 Dealing with Life Care Costs 39
     A. The role of a life care planning expert 39
     B. Sample case development 39
     C. Errors to avoid 40
2.12 The Hedonic Damage Controversy 41
References 48

[to be updated]

3.6 Using the Vocational Report to Calculate Economic Damages 59
3.7 Maximizing the Vocational Expert's Efficacy 61
3.8 Summary 61
References 62

Chapter 4: An Overview of the Field of Life Care Planning 67
Penelope Caragonne, Ph.D.
Abstract 68
4.1 Introduction 69
     A. Original life care planning training venues 70
     B. Certification for life care planners 71
     C. Formation of professional organizations and development of standards of practice for life care planners 72
     D. Newer training venues for life care training and certification 72
     E. Conferences and workshops available on life care planning 73
     F. Publication options 74
     G. Research on life care planning functions 75
     H. Approved continuing education entities 75
     I. Changes in evaluation and selection of training venues 76
4.2 A Review of Five Training Venues for Obtaining Certification in Life Care Planning 78
     A. The Institute for Medical-Legal Education 78
     B. Kaplan College 81
     C. MediPro Seminars, LLC 86
     D. Capital University Law School life care planner program 90
     E. American Association of Nurse Life Care Planners Certified Nurse Life Care Planner Program 93
4.3 Teaching Methods Used in Life Care Planning Courses 97
     A. Course content 97
     B. The importance and function of clinical experiences during training 98
     C. Trade organizations relevant to life care planners 98
4.4 Steps in Life Care Planning and Outcomes Anticipated from Each Stage 102
     A. Stage I: data collection 103
     B. Stage II: assessment 107
     C. Stage III: collaboration 109
     D. Stage IV: planning 111
     E. Stage V: plan development research 114
     F. Stage VI: facilitation 116
     G. Stage VII: evaluation 119
     H. Stage VIII: testimony 119
4.5 Summary 119
References 120
Endnotes 123

Chapter 5: What a Forensic Economist Needs from a Life Care Planning Expert 129
Thomas R Ireland, Ph.D. and Stephanie Rizzardi Pearson, M.B.A.
5.1 Introduction 129
     A. Clarity 131
     B. Organization 131
     C. Identifying expenditures that are not caused by an injury 132
     D. Clarifying conditional future expenditures 132
     E. Separating prescription and non prescription drugs and supplies 133
     F. Avoidance of overlapping medical care recommendations 133
     G. Reductions during special periods such as summer camps 133
     H. Why totals are best calculated by the life care planning expert 134
5.2 Difficulties in Considering Offsets 134
     A. The van example 135
     B. The food example 136
     C. Recommendation 136
5.3 Difficulties in Dealing with Lost Household Services 136
5.4 Difficulties with Collateral Source Issues 138
5.5 Difficulties with Collateral Provision 139
5.6 Difficulties with Legal Pricing Requirements 139
5.7 Difficulties that Can Be Caused by an Economist 140
References 141
Recommended Readings 142

Chapter 6: The Impact of a Reduced Life Expectancy on the Recovery of Life Care Expenses 145
Anthony H. Riccardi, M.E., M.B.A
6.1 Introduction 145
6.2 Case Illustration 147
6.3 The Impact of New York's CPLR 5-A Periodic Payment Statute 148
6.4 Determination of the Attorney's Fee and Conclusion 150
Civil Practice Law and Rules: Article 50-A 157
References 163
Endnotes 163

Chapter 7: A Primer on Annuity Contracts, Structured Settlements, and Periodic Payment Judgements 165
Anthony H. Riccardi, M.E., M.B.A. and Thomas R. Ireland, Ph.D.
7.1 Introduction 165
7.2 The Annuity Concept 167
7.3 Terms and Definitions 168
7.4 How Structured Settlements Work 171
7.5 Advantages of an Annuity Contract to Replace Lost Earning Capacity 173
7.6 Disadvantages of an Annuity Contract to Replace Lost Earning Capacity 175
7.7 Providing Life-Care with a Standard Survival Probabilities Expectation 176
7.8 Providing Life-Care With Reduced Annual Survival Probabilities 180
7.9 Advantages and Disadvantages of Annuity Payments for Providing Life-Care Needs 182
7.10 How Life Insurance Companies Provide Annuities for Life-Care 184
7.11 Age Rating and How Life Insurance Companies Price Annuity Premiums 185
7.12 The Role of State Legislatures in Dealing with Life-Care Needs of Injured Persons 187
7.13 Why Windfall Gains to a Plaintiff's Heirs May Occur 188
7.14 Periodic Payment Provisions in Tort Reform 189
7.15 Special Needs Trusts 190
7.16 Concluding Observation 191
References 197
Books and Articles 197
Cases 198
Appendix: Periodic Payments in the Fifty States 198
Endnotes 203
Statutes 222
Articles 222
Endnotes 224

Chapter 9: Building an Expert Damages Team 229
Kurt V. Krueger, Ph.D. and John O. Ward, Ph.D.
9.1 Legal Constraints 229
9.2 Qualities of an Expert 231
9.3 Which Experts Are Needed 232
9.4 Finding and Retaining Damages Experts 234
9.5 Retainers and Expert Fees 237
9.6 The Collection of Data for Damages Evaluation 237
9.7 The Written Report 238
9.8 Discovery and Deposition of Experts 238
9.9 Preparation For Trial-Plaintiff's Perspectives 239
9.10 Establishing Order of Testimony 240
9.11 Style of Examination 241
9.12 Cross-Examination 243
9.13 Summary 245
Endnotes 245
Glossary 247
About the Authors 261
Index 267

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