Metropolitan News-Enterprise


Monday, October 3, 2016


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Court Adopts ‘Reasonably Probable’ Standard For Plaintiff’s Future Earning Capacity


By a MetNews Staff Writer


A personal injury plaintiff’s damages for future earning capacity is limited to the amount that it is “reasonably probable” the plaintiff would have earned but for the injury, over and above whatever amount he or she is capable of earning after the injury, the Court of Appeal for this district has ruled.

The court Friday affirmed Los Angeles Superior Court Judge Charles F. Palmer’s order granting Cedars-Sinai Medical Center and Dr. Ankur Gupta a new trial on damages in a medical malpractice case. The court rejected both the plaintiff’s argument that the jury verdict for more than $1 million should stand, and the defendants’ contention that they were entitled to a JNOV reducing the recovery to $30,000 in non-economic damages. 

Donna Licudine sued over complications from a 2012 gallbladder removal operation. According to testimony, Gupta nicked a vein while inserting a tube into an incision in her abdomen, requiring more invasive surgery and eventually causing her to suffer pain and bloating as a result of adhesions, and to require use of an electronic wheelchair.

She subsequently finished her undergraduate education at USC and was accepted at Suffolk and New England law schools, as well as into a graduate program in public administration at Penn State. She accepted both the Suffolk and Penn State offers, and obtained medical deferments of her start date.

She spent the two years following graduation from USC working as an assistant rowing coach for $1,200 a month. Her internal medicine expert testified that her difficulties were likely to become permanent and would impact her career and future education.

Palmer deferred ruling on the plaintiff’s request for judicial notice of a Bureau of Labor Statistics website page, which said that “median” annual salary for lawyers was $113,500, but noted that there was a lot of competition and that more students were graduating from law school each year than there were jobs available. After the parties rested, the judge denied the request, saying the probative value was outweighed by the likelihood of confusing or misleading the jury.

Jurors found for the plaintiff against both defendants, and awarded $285,000 for past economic loss, $730,000 for loss of earning capacity, and $30,000 for past and future non-economic loss.

On the defense motions for new trial and JNOV, Palmer concluded that the award for past economic loss was supported by “virtually no evidence,” and that the award for future economic loss was “speculative and excessive,” but that the award for pain and suffering was “grossly inadequate” in the face of testimony plaintiff would have to endure “excruciating pain” every day for the rest of her life.

Justice Brian Hoffstadt, writing Thursday for Div. Two, said the trial judge did not abuse his discretion.

The justice explained that while California cases have not previously articulated a precise standard for fixing damages for loss of future earning capacity, the reasonable probability standard is appropriate because it is consistent with the standard used for calculating pre-injury earning capacity and for assessing lost profits in business cases, as well as with the principle that the amount of damages need not be calculated with absolute certainty where it is certain the plaintiff suffered damages.

The standard also avoids wholly speculative awards, and “harmonizes nearly all of the patchwork of cases that specify which careers a jury may look to in assessing a plaintiff’s earning capacity,” he wrote.

Based on that standard, Hoffstadt went on to say, the awards of past and future economic loss to Licudine cannot stand. The plaintiff, he said, did not prove it was reasonably probable that she would graduate from law school, or that she would pass the bar exam, nor did she present evidence as to how much lawyers earn.

He added, however, that it was reasonable for the judge to grant a new trial rather than a JNOV because of two unusual circumstances—the fact that the award of non-economic damages was so small the jurors might have filled out the verdict form incorrectly, and the possibility that the plaintiff might have had time to locate better evidence had the judge ruled earlier on the request for judicial notice.

Attorneys on appeal were Horvitz & Levy’s David M. Axelrad and Emily V. Cuatto, and Moore McLennan’s Raymond R. Moore and Drew N. Evans, for the defendants and Howard A. Kapp for the plaintiff.

The case is Licudine v. Cedars-Sinai Medical Center, Inc., 16 S.O.S. 4918.


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