Diminished Earning Capacity: How Much Proof Do You Need?

I. INTRODUCTION

One of the most common questions faced by personal injury practitioners and judges is this: What evidence must a plaintiff produce to support a charge on diminished earning capacity? This article will address that issue and the answer may surprise you. Here’s a hint of things to come: A plaintiff can generally get to the jury on a diminished earning capacity claim with less evidence than you think, and the evidence that is required need not all come from experts.

The concept of diminished earning capacity recognizes that every individual, given his mental and physical abilities, has an inherent and/or acquired ability to earn money, i.e., the person has a certain “economic horizon.” When that person is injured and suffers a loss of those mental or physical capabilities, there is a corresponding decrease in his ability to earn income. That, in essence, is the claim for lost earning capacity.

Part I of this article will focus on the characteristics which an injury must have in order to qualify for a charge on diminished earning capacity: (a) permanence and (b) an effect on employment. Part II will address the necessity and relevance of expert testimony (medical, vocational and economic) in the diminished earning capacity case.

There is an Appendix (arranged alphabetically) attached to this article which summarizes most of the significant diminished earning capacity cases decided in the last 30 years by our appellate courts.

PART I — “THE QUALIFYING INJURY”

A. Permanence

The starting point in proving any diminished earning capacity claim is the existence of a “qualifying injury.” In order to be worthy of a charge on diminished earning capacity, Pennsylvania case law indicates that the injury must be a permanent one. No clear definition of the term “permanent” is recited in any of the reported cases; rather, one must fashion a definition by inference from the particular injuries which have been deemed sufficient to support the charge.

Injuries such as the following are, by their nature, easily categorized as “permanent”: loss of a finger, Swartley vs. Tredyffrin Easton School District, 430 A.2d 1001(1981); McKnight vs. City of Philadelphia, 445 A.2d 778 (1982); loss of several toes, Mattox vs. City of Philadelphia, 454 A.2d 46 (1982); lasting facial disfigurement, Fish vs. Gosnell, 463 A.2d 1042 (1983); severe burns to upper extremities and torso, O’Malley vs. Peerless Petroleum Inc., 423 A.2d 1251 (1980).

In addition to those obvious examples, however, the following less obvious injuries have been deemed to be sufficiently permanent: soft tissue cervical and lumbar injuries which may produce “flare-ups” with excessive activity, Janson vs. Hughes, 455 A.2d 670 (1983); traumatic cervical syndrome which impedes ability to lift and bend, Lewis vs. Pruitt, 487 A.2d 16 (1985); leg fracture which impedes ability to run and reduces general activity level, City of Philadelphia vs. Philadelphia Transportation Company, 162 A.2d 222 (1960); chronic cervical sprain superimposed on normal aging process, Williams vs. Dulaney, 480 A.2d 1080 (1984).

In toto, these cases suggest the following general rule: an injury is “permanent” when it involves some constant, visible loss, or where it will likely produce persistent symptoms (though perhaps not constantly so) into the future. In the latter instance there must apparently be medical testimony to establish the likelihood of future symptoms. Thus, even the classic soft tissue injury may support a charge on diminished earning capacity if competent evidence establishes that the injury has not resolved itself and that a regular pattern of symptoms may occur in the future.

B. Effect on Employment

In addition to being “permanent” in nature, a plaintiff seeking to establish a diminished earning capacity claim must prove that the permanent injury has some effect on employment prospects. This underlying point is best illustrated by the case of Kearns vs. Clark, 493 A.2d 1358 (1985). In Kearns the plaintiff housewife suffered the functional loss of one of her kidneys — undoubtedly a permanent condition — but she was denied a charge on diminished earning capacity because there was no indication that the injury would adversely impact upon her employability. The court explained its rationale as follows:

“..[I]n order for a jury to be permitted to consider a future loss of earning power, it is necessary that there be competent evidence of the likelihood that disability will continue in the future. Evidence that permanent injury has been sustained is not equivalent to evidence that future earning capacity has been impaired. (Citation omitted.) There must be some evidence from which a jury can reasonably infer that earning power will probably be reduced or limited in the future.” Kearns, supra, at p. 1364.

Hence, in addition to proving the permanence of the injury, a plaintiff seeking a charge on diminished earning capacity must establish some effect on future earning ability.

To appreciate the broad interpretation of the “effect on employment” requirement, let us refer back to the original explanation of the term earning capacity. As noted in the Introduction, this term refers to the general “economic horizon” of any individual given his particular education, training, skills, etc. By definition, therefore, the concept is concerned primarily with the effect an injury may have on one’s future rather than one’s past. As such, one of the fundamental principles to have emerged in this area of the law is that a plaintiff may be entitled to a charge on lost earning capacity even though he has suffered no actual wage loss as of the time of trial. The rationale for this principle was best explained by Justice Musmanno in Bochar v. J.B. Martin Motors, 97 A.2d 813 (1953), in these terms:

“(A) tortfeasor is not entitled to a reduction in his financial responsibility because, through fortuitous circumstances or unusual application on the part of the injured person, his wages following the accident are as high or even higher than they were prior to the accident …. The office worker who loses a leg has obviously had his earning ability impaired even though he can still sit at a desk and punch a comptometer as vigorously as before. It is not the status of the immediate present which determines capacity for remunerative employment. Where permanent injury is involved, the whole span of life must be considered. Has the economic horizon of the disabled person been shortened because of the injury sustained as a result of the tortfeasor’s negligence? That is the test. And it is no answer to that test to say that there are just as many dollars in the patient’s pay envelope now as prior to his accident.” Bochar, supra, at p. 815.

Throughout the years this principle has been consistently reaffirmed by our appellate courts. See, for example, City of Philadelphia vs. Philadelphia Transportation Company, 162 A.2d 222 (1960) [plaintiff police officer who had sustained a leg fracture but was back to work earning regular wage is entitled to charge on diminished earning capacity because testimony established he was unable to run as he could before the accident; and, as the court noted, “A policeman who is unable to move rapidly on his feet certainly has had his earning power impaired”]; Martin vs. Philadelphia Suburban Transportation Company, 257 A.2d 535 (1969) [charge on diminished earning capacity is affirmed where plaintiff, who had sustained a back injury but had not experienced any present wage loss, would be limited to sedentary work in the future]; and Mathis v. United Eng. and Constructors, 554 A.2d 96 (1989) [union laborer who hurts self in fall but returns to regular job at 13.60 per hour is still entitled to charge on diminished earning capacity since it was unlikely he could secure another heavy laboring job if he lost his present position].

Thus, while proof of diminished earning capacity requires the showing of some effect on one’s economic horizon a plaintiff need not establi
sh a present effect; rather, it is enough if there is a reasonable basis to conclude that there may be a future effect. (While the showing of a future effect is permissible, the more typical case involves a plaintiff who shows present impact on earnings ability.)

In proving present effect the plaintiff may establish his inability to do a very specific job or he may establish his disability from a more generalized, less specific class of jobs. For example, in the following cases, the plaintiff received a charge on diminished earning capacity by establishing that there was a very specific job or task which he could not perform: plaintiff with fractured finger proves inability to perform as symphony flutist, Swartley; plaintiff with permanent leg injury establishes inability to do former job as printing press operator, Fish; plaintiff suffering from traumatic cervical syndrome shows inability to perform as a beautician, Lewis; plaintiff proves injury that prevents her from performing lifting and moving required of practical nurse, Gary; plaintiff with severe upper body burns establishes inability to return to former occupation as plumber, O’Malley.

On the other hand, diminished earning capacity charges have been given where the plaintiff, rather than establishing disability from a particular occupation, proves an inability to do a general type of work or activity: plaintiff with neck and back injuries establishes inability to do “heavy work,” Janson; plaintiff with back injuries is deemed to be disabled from “strenuous work,” Martin.

In short, a plaintiff seeking a charge on diminished earning capacity may prove his present inability to do a very specific job; or, in the alternative, he may merely prove his disability from a general class or type of work.

In considering the effect of an injury it is worthwhile to note what evidence a plaintiff need not introduce in order to get a charge on diminished earning capacity. For example, Swartley suggests that a plaintiff, once having shown his inability to perform his former occupation, need not establish during his case-in-chief those occupations which he can pursue, i.e., his residual earning capacity. The defendant is free to offer evidence of residual capacity in its case, however. In that regard one may note Cree v. Horn, 539 A.2d 446 (1988) in which the defendant, seeking to rebut plaintiff’s contention that a back injury prevented her from working as an LPN, introduced the testimony of a vocational specialist concerning the availability of various jobs in the healthcare field.

II. THE NECESSITY OF EXPERT TESTIMONY

If you were to ask whether expert testimony is necessary to support a claim for diminished earning capacity, most personal injury lawyers would instinctively answer “yes.”

The fact is, however, that while expert testimony appears to be mandatory on some issues, a significant portion of the diminished earning capacity case can be based solely on lay testimony. In order to appreciate exactly when expert testimony is required and when lay testimony is sufficient, it is useful to refer back to the elements of the claim as explained in Part I and note which of them required an expert foundation.

A. The Physician

As discussed previously, the initial requirement in the diminished earning capacity claim is proof of the “permanence” of the injury. Permanence was defined to include some constant, visible loss, or a less obvious injury which nevertheless will produce persistent symptoms into the future. A review of the relevant cases indicates that expert medical testimony will generally be required except where an injury akin to loss of a limb is involved. In any of the cases involving less “obvious” injuries (i.e., bone fractures, soft tissue injuries, etc.), a physician invariably testified that symptoms would persist into the future. This distinction between obvious and non-obvious injuries is understandable. By their very nature, obvious injuries such as loss of a limb are perpetual and their permanence is easily comprehended by a lay person. On the other hand, a typical juror would not normally know what, if any, symptoms of a soft tissue injury will persist into the future. Hence, in most cases expert medical testimony will be necessary on the “permanence” element.

B. The Vocational Specialist

As far as the other basic element in the diminished earning capacity case is concerned — the “effect on employment” — a review of the cases suggests (perhaps surprisingly) that lay testimony is generally sufficient to support this aspect of the claim. For example, one of the most common ways of proving “effect” is for the plaintiff or a co-worker to show that the injury prevents plaintiff from doing his present occupation. See Swartley, (Plaintiff and fellow musician testify that plaintiff’s finger injury prevents her from playing the flute); Fish, (Plaintiff testifies that leg injuries and facial disfigurement prevent him from doing former occupation as printing press operator); Gary, (Plaintiff and two co-workers testify that soft tissue injury prevents her from returning to work as practical nurse); Lewis, (Plaintiff suffering traumatic cervical syndrome testifies she is unable to pursue part-time work as beautician).

While expert testimony is apparently not required to prove “effect on employment,” there are instances where the plaintiff’s treating physician is used to establish disability from current employment. See, for example, Janson, (Doctor testifies that neck and back injury will prevent plaintiff from doing “heavy work.”); Christides vs. Little, 418 A.2d 438 (1980) (Physician testifies that various traumatic and internal injuries prevent plaintiff, himself a physician, from performing orthopedic surgery).

Once a plaintiff has established disability from his present occupation, the question then normally becomes what can the plaintiff do, i.e., what is the residual earning capacity. As noted previously, Swartley, supra, indicates that, while expert testimony is admissible on this issue (presumably from a vocational specialist), it is not required.

Again, however, the fact that expert testimony is not required does not mean that it has not been employed in the past. On the contrary, vocational experts have often been used to testify as to what jobs remain in the economy which the injured plaintiff might perform. See, for example, McKnight; Mattox; and O’Malley.

C. The Economist

The final stage in presenting the diminished earning capacity claim usually involves the quantification of the loss, i.e., a determination of the amount of earnings which plaintiff will likely lose in the future as a result of his injury. While one’s initial reaction might once again suggest that expert testimony is required on this point, the case law suggests otherwise. Of all the cases cited in this piece, only in McKnight, Mattox, O’Malley and Mathis was an economist (or in some instances a vocational specialist) used to put an actual dollar figure on the plaintiff’s loss. In the remaining cases no mention of such testimony is made.

The court’s willingness to let cases go to the jury without expert economic testimony is no doubt a reflection of the general principle that, while damages may not be speculative in nature, they need not be proven with the certainty provided by a mathematical formula. In that regard, the Superior Court observed in Fish:

“A claim for lost future earning capacity may be submitted to the jury on evidence of the nature of plaintiff’s occupation and estimated earnings before the accident, his age, and his injuries and that the injuries are permanent. See Gary vs. Mankamyer, 485 Pa. 525, 527-29, 403 A.2d 87,89 (1979)….Here, appellee offered evidence tending to show that the injury to his knees was permanent (N.T. 69), and that as a result, he could no longer perform his job as a print press operator. (N.T. 26-27; 69-72). Either party is entitled, however, to introduce expert or other
evidence to establish or refute the actual expected future earning capacity of the particular plaintiff, but is not required to do so. Kackowski vs. Bolubasz, supra 491 Pa. at 579, 421 A.2d at 1036.”

It appears, therefore, that plaintiff may lay a sufficient foundation to quantify his loss merely by testifying to his past earnings history and perhaps the expected rate of pay in jobs or positions to which he aspires. (Recall, for example, that in Swartley the plaintiff offered lay testimony on the rate of pay for a symphony flutist, a position she had hoped to assume.) The guiding rule in laying that foundation seems to be as follows: so long as the evidence provides a sufficient basis for the jury to render an informed verdict, the court will not insist that the calculation bear the imprimatur of an economist or similar expert.

III. CONCLUSION

To obtain a charge on diminished earning capacity a plaintiff must prove that he has: a) a permanent injury which has b) some adverse effect on his employability. The permanence may be as obvious as the loss of a limb or as subtle as recurrent episodes of pain from a soft tissue injury. The effect on plaintiff’s employment prospects need not be a present one. In other words, the claim for diminished earning capacity can be supported even though no actual economic loss has occurred as of the time of trial. In proving an injury’s effect on his employability (either present or future), plaintiff may establish disability from a particular job or a general class of work. Once having established his disability from certain work the plaintiff is not compelled to produce evidence of his residual earning capacity.

As to the necessity of expert testimony, the cases suggest that the only issue on which such testimony is mandatory is the “permanence” of the non-obvious injury. While expert testimony is certainly relevant and welcome on the other typical issues that arise in these cases (e.g., the plaintiff’s disability from his present occupation; the remaining jobs which the plaintiff can do; the quantification of the loss sustained; etc.), it is not required that such evidence be offered. Thus, once the plaintiff has a physician state that his injury is permanent, the balance of the foundation for the diminished earning capacity charge can usually be provided by the plaintiff himself, a co-worker, or any other person who provides a reasonable basis from which a jury might render a verdict.

In closing, however, a word of caution is appropriate: the fact that expert testimony is not always necessary does not mean that counsel should not consider using it. While retaining an expert can involve an investment of time and money, it arguably provides an added measure of credibility to plaintiff’s claim. Therefore, in any particular case it is the lawyer’s task to weigh the cost of procuring expert testimony against the likelihood that it will improve his case.

APPENDIX

1. Christides v. Little, 418 A.2d 438 (1980). Orthopedic surgeon injured in an automobile accident suffered various traumatic and internal injuries which prevented him from doing surgery in the future. At the time of the trial the plaintiff was 63 years old. During the year immediately preceding the accident, the plaintiff earned $80,000. Despite the fact that he could not perform surgery, his income went up steadily each year after the auto accident.

Nevertheless, the court said that a claim for diminished earning capacity was appropriate. The controverted testimony was that the inability to do surgery caused the plaintiff to take on additional work doing evaluations and work-ups, and that the inability to do surgery cost him $20,000 in annual income. The court held that because a person makes more money after an accident than before it, such a person is not eliminated from filing a claim for diminished earning capacity.

2. City of Philadelphia v. Philadelphia Transportation Company, 162 A.2d 222 (1960). Police officer who suffers broken leg in accident has claim for diminished earning capacity. The officer himself testifies that he is not able to run as he could before and that his leg gets sore. Even though he was still employed as a police officer and was making more money, the court indicates that this lay testimony is enough to get a charge on diminished earning capacity.

3. Cree v. Horn, 539 A.2d 446 (1988). Two sisters were involved in an auto accident which caused cervical and lumbar sprains. A few days after the accident, both sisters began a schooling program to be trained as licensed practical nurses. Approximately one year later, they graduated and commenced working on a full-time basis as LPN’s. Both subsequently left their jobs claiming that their accident-related injuries prevented them from performing the normal chores of an LPN. The defense offered testimony showing that there were other reasons, both psychological and personal, as to why they left their employment. Plaintiffs’ treating physician indicated they would be able to return to full-time work as LPN’s. On that basis, a charge on diminished earning capacity was given, but the jury verdict was relatively small. In the course of the case, the defendant introduced testimony from a rehabilitation specialist as to the availability of various jobs in the healthcare field. The court permitted such testimony since the specialist’s testimony was based on personal knowledge of the relevant job market.

4. Fish v. Gosnell, 463 A.2d 1042 (1983). The plaintiff was injured in an auto accident and suffered a 30 percent disability of his legs and permanent disfigurement of the right side of his face. As a result of these injuries, he testified that he could no longer do his job as a printing press operator.

In supporting a claim for diminished earning capacity, the court stated “A claim for lost future earning capacity may be submitted to the jury on evidence of the nature of plaintiff’s occupation, and estimated earnings before the accident, his age, and his injuries and that the injuries are permanent.”

Significantly, the only testimony was from the doctor that his injuries were permanent, and from the plaintiff that he could not do his former job. There was no vocational expert testimony. In that regard, the court merely said that “either party is entitled to introduce expert or other evidence to establish or refute the actual expected future earning capacity of the particular plaintiff, but is not required to do so.”

5. Gary v. Mankamyer, 403 A.2d 87 (1979). A practical nurse is entitled to a charge on total future diminished earning capacity where the evidence from two of her co­workers was that after her injury she was unable to perform some of the essential duties of her job, namely, lifting and moving patients. One of the nurses also testified that the plaintiff would be unable to get a job if she could not move and lift patients. A hospital administrator where plaintiff worked testified to the same thing and also said that appellant’s continued employment with his hospital was dependent upon co-worker’s “covering” for her.

The court stated “It is well established that the fact and the extent of the impairment are jury questions, and that no expert testimony is required in this jurisdiction to show loss of earning capacity, but where expert testimony is proffered and relevant it is admissible.”

6. Janson v. Hughes, 455 A.2d 670 (1983). The plaintiff, a tenth grade student, was rear-ended in an automobile accident. Two doctors testified that he had a neck and back injury and that the symptoms were permanent and that he would have flare-ups from time to time. As a result, he would be unable to do heavy work such as lifting. They did not specify particular jobs he could not do.

The court said the evidence was sufficient to go to the jury because the doctors said the damage was permanent and because they said he could not do heavy work. They rejected a defense argument that the physicians had to exclude specific types of jobs.

7. Kearns v. Clark, 493 A.2d 1358 (1985). A hou
sewife, after a hysterectomy, developed a blocked ureter which led to the disease and death of her left kidney. The court rejected a claim of diminished earning capacity saying that even though her medical condition was permanent, there was no medical or lay testimony that this impacted upon her earning ability. The court recognized that a plaintiff need not translate their loss into specific monetary amounts, but that they must prove that their ability to perform the duties of employment has been impaired.

This court is suggesting that they need a doctor or lay witness to say that the loss of the kidney will prevent her from doing certain types of work.

8. Lewis v. Pruitt, 487 A.2d 16 (1985). The female plaintiff, who worked as a bundle work binder at a dress plant, suffered a traumatic cervical syndrome in an auto accident. She had previously worked as a beautician.

At trial, two hair salon operators testified to earnings plaintiff could receive as a beautician. The defendant objected because the plaintiff had not worked as a beautician for approximately 16 years and there was no evidence of any intention to return to work as a beautician.

The trial court disagreed, noting that while working at the dress plant she continued to do hair for friends. The court rejected the defense argument that a definite plan to return to a given line of work is a prerequisite to the introduction of evidence of earnings in that field. Rather, the court said it was sufficient that plaintiff presented evidence of a permanent neck injury which reduced her ability to lift anything and bend thereby preventing her from working at certain jobs.

Apparently, the only testimony here on the effect of her injury came from the plaintiff herself. She testified that she returned to work at the dress plant but had to be laid off because of her inability to repeatedly bend and lift. She also testified that she was physically unable to resume work as a beautician.

9. Martin v. Philadelphia Suburban Transportation Company, 257 A.2d 535 (1969). Manager of paint store injured in motor vehicle accident suffers back injury. Medical evidence was that he could not longer do strenuous work. He had previously done strenuous work in the paint store as the “third man.” The court said even though he was not making more money as a manager, it was proper for the jury to award $10,000 in diminished earning capacity, considering the fact that he was only a high school graduate. The jury could properly consider his entire future and is not bound by the fact that he made more money after the injury than before it.

10. Mathis v. United Engineers and Constructors Inc., 554 A.2d 96 (1989). The plaintiff, who was employed as a union laborer, suffered serious injuries as a result of a work-related fall. Prior to the accident, the plaintiff’s job duties required him to do strenuous manual labor including lifting of heavy objects. After the accident, he returned to his regular employment, but his doctor testified that the plaintiff could only perform light duty as a result of a back injury. Plaintiff offered the testimony of a vocational expert to the effect that, in light of the limitation restricting the plaintiff to light duty, the value of the plaintiff’s services in the job market had declined from the union rate of $13.60 an hour. The appellate court affirmed the admission of such testimony (Even though the plaintiff had returned to his regular work, and therefore was continuing to earn his wage of $13.60 an hour.) on the ground that the jury could conclude that the limitation, while having no present impact on the plaintiff’s employment, could have a future impact if he were to lose his job and be forced to compete in the labor market.

11. Mattox v. City of Philadelphia, 454 A.2d 46 (1982). The plaintiff, a prison inmate, suffered an accident in which several of his toes were severed.

The plaintiff had a vocational counselor testify as to what his job prospects were now as compared to his pre-accident employment prospects. This seems to be the classic use of expert testimony to prove diminished earning capacity.

12. McKnight v. City of Philadelphia, 445 A.2d 778 (1982). A high school student loses one finger and severely injures another one in a shop class incident. Plaintiff had an employment counselor testify as to what the job prospects and salary prospects were before the injury as compared to afterwards.

This seems to be the classic use of expert testimony to prove diminished earning capacity.

13. Messer v. Beighley, 187 A.2d 168 (1963). In regard to the nature of an injury, the court draws a distinction between a “permanent” and a “chronic” injury. The court said a ‘permanent” injury signifies something fixed and enduring, not subject to change. In contrast, the term “chronic” signifies a condition which the doctor said would cause “recurrent” episodes of pain.

Although it does not directly address the issue, one may cite this case to say that a diminished earning capacity claim based merely on a “chronic” injury is not sufficient. Later cases seem to dispel that notion, however.

14. O’Malley v. Peerless Petroleum, Inc., 432 A.2d 1251 (1980). Plaintiff, an apprentice plumber, was seriously injured in an explosion. As a result of the accident, he suffered severe burns to his arms, upper body, head and ears. The evidence in the case was that his injuries were permanent and he would never be able to return to his former work was a plumber.

Defendant said that even if diminished earning capacity was proper, it should be based on the hourly rate of an apprentice plumber, not a journeyman plumber. The court disagreed, saying that the test of whether or not future advancement in his job should be a proper basis for compensation was “the sufficiency of the plaintiff’s evidence in showing his skill, likelihood of becoming a member of the profession, and availability of work in that area.” The court approved the charge based on journeymen rates.

Also, the defendant undertook cross-examination of plaintiff’s vocation expert. The vocation expert testified on direct as to the wage rates of plumbers, the availability of plumbing work and plaintiff’s post-accident work abilities. On cross, the defendant wanted to show that there were other lucrative vocations in which the plaintiff could engage. Specifically, the vocational expert was asked about whether or not, with additional training, plaintiff could become a computer programmer. The appellate court sustained this ruling, and apparently indicated that questions about progress should be limited to the plaintiff’s profession at the time of the accident and not about different professions.

15. Rose v. Hoover, 331 A.2d 878 (1974). In claim for diminished earning capacity over a certain period of time, the defendant is permitted to introduce the fact that plaintiff had a suspended driver’s license during some of that time, because a driver’s license was necessary for plaintiff to earn money as a truck driver, the only job plaintiff chose to perform.

Also, it was relevant on cross-examination of plaintiff’s psychiatrist to show that plaintiff had lied twice on motor vehicle applications since the expert said he did not think the man was a malingerer but he admitted that lying was a symptom of a malingerer.

This case seems to suggest that if there is any “dirt” on your client it may come out during a diminished earning capacity claim.

16. Sherhan v. Besteder, 500 A.2d 130 (1985). A 26 year-old plaintiff suffered a compression fracture of two thoracic vertebrae in an auto accident. In addition to the obvious orthopedic problems, the fractures also caused her to have a neurogenic bladder, i.e., loss of sensation and muscle control of her bladder. At the time of the accident she was the sole proprietor of her own drapery business. She returned to work shortly after the accident. She did, however, continue treatment over the next three years with her family doctor because of her bladder problem. During this three or four year period aft
er the accident she was also hospitalized six times and had several surgeries on her urinary tract.

The court held that the six hospitalizations and four or five surgeries “was in and of itself sufficient to prove a disruption of her business and lay the foundation for proof of the amount of loss of earnings.” (Apparently the plaintiff went on to specifically detail how her condition had affected her day-to-day work and how she was forced to sublet much of her work and curtail her activities, however, it appears that the court did not think this was necessary.)

The court said the evidence was sufficient to prove that plaintiff had sustained a loss, thus “the question then remained how the plaintiff was to prove the amount of those losses.” To that end, the court permitted the plaintiff to introduce her business tax return to show how there had been a decline in profits n her business over that four-year period. The court permitted this because it concluded that her individual efforts were so directly related to profits of the business that it would not be too speculative to permit this method of proof. The court also permitted her to introduce prior tax returns before she went into her own business as evidence of her earning capacity.

17. Sherin v. Dushac, 172 A.2d 577 (1961). Proprietor of small roofing business suffers back injury in auto accident. He is rendered disabled from further roofing work. He claims his diminished earning capacity is based on the fair market value of a laborer’s work, $2.25 an hour. The defendant wants to cross-examine and introduce evidence as to his minimal profits from his business by introducing tax returns.

Court holds that cross-examination and introduction of profits is irrelevant. Court seems to apply the general rules that profits, whether they are high or low, are not relevant since they are dependent upon so many factors in addition to the individual job performance of the owner.

18. Swartley v. Tredyffrin Easttown School District, 430 A.2d 1001 (1981). A school teacher suffered an injury to one finger on her left hand, namely, a fracture to one of the joints. She retained good to normal use of the left hand for most purposes, but she could not play the flute as she did before. She claimed as a result of this injury her ability to teach flute was compromised and her changes of getting a job with a symphony orchestra, something she always hoped for, were greatly diminished. A member of a local symphony testified that a flutist can earn a base salary of $26,500.

The court permitted the case to go to the jury on diminished earning capacity. On appeal, the defendant argued that the plaintiff did not introduce evidence was to what she could do given her disability. The court rejected the defendants arguments noting that the plaintiff could take the position that her teaching career and performing career had been injured, and it was up to the defendant to rebut that.

Significantly, it does not appear that there was any medical evidence concerning her ability to play the flute, nor was there an economist to testify at all on money damages. In essence all we have is medical evidence concerning an injury and then lay testimony on the effect of the injury.

19. Williams v. Dulaney, 480 A.2d 1080 (1984). Female plaintiff in auto accident suffers cervical sprain. At the time of the accident the plaintiff worked as a secretary. Her physician testified that her cervical sprain was “chronic” and that the normal aging process would add to this problem. He further testified that she had to avoid activities involving increased stress to the cervical spine. The vocational expert testified that plaintiff’s inability to do secretarial work reduced her earning capacity to that of minimum wage, a loss of $60,000 over her work life expectancy. This seems to be a classic case employing expert testimony. The doctor indicated that the condition was “chronic” and the vocational expert quantified the loss.

20. Mecca v. Lukasik, 530 A.2d 1334 (Superior 1987). Several high school students were killed in an automobile accident. One of the issues in the case concerned the adequacy of the basis for an economist to project diminished earning capacity for any one of these young people. In general, the objection raised by the defense was that it was too speculative to project wage loss because of the different career possibilities for a child who had not even graduated from high school. The Superior Court disagreed with the defendant and held that a economist had a sufficient basis to project lost wages for various careers. For example: in regard to a child, the evidence indicated that she had one sister who was already in medical school and another in pharmacy school; in regard to a child for whom wage loss was projected on the basis of average college earnings, there was testimony that her sister was in college, and she wanted to go to college; in regard to another child for whom wage loss was projected on the basis of the average earnings by high school graduates and average earnings by white males, there was evidence that he wanted to go to the Air Force and learn air-conditioning repair work; and in regard to a child for whom earnings were projected on his becoming an auto mechanic, there was testimony that his father was an automobile mechanic and he wanted to do likewise.