TEA: Volume 11 (2010)

TEA.11.0 – 2010. The Earnings Analyst 11: 84pp.

TEA.11.1 – Further Issues in Calculating and Presenting Medical Monitoring Damages.  George A. Barrett and Michael L. Brookshire.  Individuals are often exposed to toxic substances and may require a significant period of diagnostic testing to determine the presence of environmentally-induced disease. The cause of toxic exposure may be due to tortious behavior in the form of environmental contamination, pharmacological error, or other actions in which pathogens are released upon the public. Some jurisdictions provide for a special category of economic damages intended to fund medical testing to detect the suspect chemicals and the pathology caused by these toxins. The first medical monitoring damages model was introduced by Barrett and Brookshire (2001). This decision tree model calculates the present value necessary to fund a medical monitoring protocol (see Figure 1). Since the development of this model, opportunities for forensic application have occurred. These applications have uncovered issues related to the calculation of damages which were not discussed in the early research. The purpose of this paper is to discuss these issues as they relate to refinements in damages calculations and the presentation of these findings to triers of fact.

TEA.11.2 – Earning Capacity: Highest and Best, or Something Else?  William F. Landsea and Robert A. Male.  A person’s earning capacity is an important element in choosing occupations, personal financial decision-making and lifestyle planning. Earning capacity is also an important issue in the litigation of economic damages. At a point in time, individuals may have the ability to succeed at a variety of occupations, each with a varying set of perceived effort and reward expectations. The highest and best use of a worker’s earning capacity can be defined as those legal and attainable occupations that maximize the worker’s economic rewards. Earning capacity can also be defined as the application (use) of the person’s mental and physical assets toward the acquisition of pecuniary and lifestyle rewards and goals. This definition requires consideration of the person’s perceptions of self and the world of work, as well as past, current, and future opportunity cost and utility choices. Thus the highest and best use of a worker’s earning capacity is found to have four elements that must be understood in order to reasonably determine that person’s earning capacity. Two sources are suggested for determination of highest and best use of earning capacity: fact (evidence) and opinion (research and evaluation analyses). Both are supported by economic theory.

TEA.11.3Pecuniary Damage.  Michael J. O’Hara.  Pecuniary damage is a policy choice. The law (unlike its legal sibling equity) offers the remedy of damages, and thus constrains recoverable losses to those loses that are captured by pecuniary values. Objectivity might be gained, but much can be lost, without noticing the loss when public policy requires loss to equate with a market’s monetary valuation. An assumption that damages paid by the defendant are a mathematical identity with the plaintiff’s loss fosters an erroneous perception of efficiency. In short, the trier of fact only is authorized to rack the value1 of those injuries the law chooses to recognize.