Opinion
C.A. No. 10C-07-012RRC.
Submitted: June 1, 2011.
Decided: June 27, 2011.
On Defendants' Motion in Limine. DENIED.
Ben T. Castle, Esquire, Hudson Castle Law, LLC, Wilmington, Delaware, Attorney for Plaintiff Arnold P. Kemp.
Richard Galperin, Esquire, Morris James, LLP, Wilmington, Delaware, Attorney for Defendants Christiana Care Health Services, Inc., Ehyal, Shweicki, M.D., and Surgical and Critical Care Associates.
Dear Counsel:
INTRODUCTION
In this medical negligence case, the sole issue presented by Defendants' motion in limine is whether Plaintiff has established, at this juncture, the permanency of his injury with sufficient certainty and specificity to permit the introduction of future economic loss evidence. This case is scheduled for trial today. This Court held a status conference on June 23 to ascertain the parties' positions on the Court potentially deferring decision on the instant motion until after Plaintiff has presented his medical evidence of permanency at trial. Although Plaintiff did not object to this possibility, Defendants asserted that a pretrial decision would enable them to better anticipate their trial strategy. This Court has decided Defendants' motion prior to trial.DISCUSSION
Defendants' motion and the time for its resolution presents somewhat of a close call. Plaintiff, formerly a heavy machine equipment operator, has alleged that Defendants negligently failed to diagnose and treat an injury to the median nerve in his arm, thereby causing permanent nerve damage to his hand; however, Plaintiff's treating physician, Lee Osterman, M.D., has testified that it would be approximately one year before he could offer an opinion as to what type of employment Plaintiff might be capable of performing. At the same time, Plaintiff's economic expert, David Black, M.D., testified that Plaintiff's loss of future earning capacity calculations are predicated on the assumption that Plaintiff can not engage in any type of employment; Dr. Black testified that, to the extent Plaintiff can in fact engage in some type of gainful employment, that that would reduce the numbers that he calculated. According to Defendants, the current lack of medical evidence on the issue of whether, and to what extent, Plaintiff may perform other types of employment will result in the jury "improperly speculat[ing] regarding [Plaintiff's] loss of future or earnings or future assistance needs." Defendants contend that, given Plaintiff's lack of any cognitive impairment, he will "certainly be able to work in some capacity, other than with heavy machinery." Similarly, Defendants argue that the testimony of Ellen Barker, a life care planner retained by Plaintiff, that Plaintiff's injury will necessitate homecare services for four hours each day is too speculative, essentially for the same reasons; viz., the unresolved nature of Plaintiff's injury precludes a determination of Plaintiff's future life care needs. Consequently, Defendants move to exclude testimony of Dr. Black and Ms. Barker.
Defs.' Mot. in Limine Ex. C at 41-42.
Id. Ex. A at 21.
Id. at 3.
Id.
Plaintiff acknowledges that, while he cannot return heavy machinery operation, a vocation in which Plaintiff earned approximately $70 to $80 per hour, it is not yet clear whether he will be able to perform "menial" work on a "part-time basis." Accordingly, Plaintiff indicated that he will concede his ability to obtain such "menial" employment, and asserts that Defendants are free to develop this issue on cross-examination of Plaintiff.
Pltf.'s Resp. at 2.
Id.
Significantly, Dr. Osterman did provide some insight into Plaintiff's future recovery prospects. On cross-examination during his deposition, Dr. Osterman testified as follows:
Q. Can you say with reasonable medical probability anything about where he'll be in a couple years?
A. Yes. Okay.
Q. I can say, number one, he won't have normal sensation ever.
Q. Okay.
A. Ever, ever, ever. And so I can say that, that's an absolute. I can't say whether he'll get protective sensation or not.
Q. Okay.
A. That's the question only time will answer. I can't say whether he will get that severe neuroma pain back again; again, only time will answer that question. So the only thing I can really tell you is he won't get normal. How about with regard to the functional use of his hand, his fingers and fist making, can you say anything about that now, the probability-
A. Not now. Because part of that depends on whether that neuroma comes back. And as I said, we'll get a better idea of that at three, between three and six months than we [have] now.
Q. If the neuroma doesn't come back within the first three to six month period, is that an indication that it won't come back?
A. Yes.
* * *
Q. At that time, minimum of a year or longer, if necessary, would you then be in a position to talk about what kind of work function he would be able to do?
A. I'd have a pretty good idea, I think. Well, we talked about two years for maximum regeneration. It's not a magical thing like you don't feel anything and then suddenly in two years say it's there kind of thing. So you have a time line. You have a time line over the 12 months to kind of get a sense where things are going. As I said, if the neuroma is going to be terrible like it was pre-op, it's going to be terrible by a year.
Dr. Osterman further testified:
Q. Arnold Kemp all his life has worked as a heavy equipment operator: bulldozers, front end loaders. He's constantly-was constantly using heavy vibrating equipment. Given his injury and what's happened to him, do you foresee a time when he'll be able to return to that type of work?
A. No, not to the vibrating stuff.
Q. And is that an opinion you hold to a reasonable medical certainty?
A. It is. With nerve injuries of significance, one thing that we don't want patients to do is use heavy vibratory equipment: jackhammers, saws, power saws.
Id. at 40.
Thus, at bottom, this case presents a situation in which Plaintiff has established that will be unable to return to his prior vocation, but the extent to which he will be capable of engaging in alternative employment is uncertain. In turn, the extent to which, if any, his loss of future earning capacity may be offset cannot be precisely calculated.
The seminal Delaware case discussing loss of future earning capacity is Henne v. Balick. In Henne, the Court stated:
51 Del. 369 (Del. 1958).
The law does not permit a recovery of damages which is merely speculative or conjectural. As a general rule, it refuses to allow a plaintiff damages relating to the future consequences of a tortious injury unless the proofs establish with reasonable probability the nature and extent of those consequences. There must be some reasonable basis upon which a jury may estimate with a fair degree of certainty the probable loss which plaintiff will sustain in order to enable it to make an intelligent determination of the extent of this loss. The burden is upon the plaintiff to furnish such proof. If he fails in this respect, the jury cannot supply the omission by speculation or conjecture. The fact that there is some uncertainty as to plaintiff's damage or the fact that the damage is very difficult to measure will not preclude a jury from determining its value. But this does not mean that there need be no proof at all as to plaintiff's earning capacity. Plaintiff must at least offer some evidence of loss of earnings in the future as a result of his permanent injury and, if possible, the nature and extent of his loss.
We do not agree with the contention of plaintiff that the mere showing of permanent injuries, such as plaintiff sustained in this case, is, of itself, under the circumstances of this case, sufficient evidence of the extent of the impairment of plaintiff's future earning capacity. To support a finding of a specific sum as damages there should generally be other evidence than that which merely shows the nature of plaintiff's injuries and his vocation. Viewing the record in the light most favorable to plaintiff, we feel that plaintiff has failed to produce any evidence showing his future loss of earnings, or any other evidence from which such a finding by a jury would naturally flow. While, of course, the amount of plaintiff's loss as to future earnings could not have been fixed with the same degree of certainty as was possible in the case of past earnings, nevertheless, some tangible evidence relating to the extent of plaintiff's loss of future earnings should and probably could have been produced.
Id. at 396 (citations omitted).
As the emphasized language discloses, this determination is inherently fact-specific, to be made in light of the nature of the plaintiff's injury and the claimed future economic loss.
See also RESTATEMENT (SECOND) OF TORTS § 924 (1979) cmt. d ("In determining [the plaintiff's loss of impairment of earning capacity], there are considered the type of work that plaintiff has done and the type of work that, in view of his physical condition, education, experience and age, he would have been doing and will be likely to do in the future during the working period of his life, together with all other matters reasonably relevant."); RESTATEMENT (SECOND) OF TORTS § 912 (1979) ("One to whom another has tortiously caused harm is entitled to compensatory damages for the harm if, but only if, he establishes by proof the extent of the harm and the amount of money representing adequate compensation with as much certainty as the nature of the tort and the circumstances permit.") (emphasis added); Annotation, Sufficiency of Evidence, in Personal Injury Action, to Prove Impairment of Earning Capacity and to Warrant Instructions to the Jury Thereon, 18 A.L.R.3d 88, § 2(a) (1968) ("Although the evidence need not show conclusively or with absolute certainty that earning capacity has been impaired, mere conjecture or speculation does not warrant an award of damages therefor in personal injury actions. All damages, however, are subject to some uncertainties and contingencies, especially those that seek to compensate for future injuries.") (citations omitted).
In Giles v. Nationwide Insurance Company, this Court addressed the issue of the degree of certainty required to establish damages for loss of earning capacity. Although Giles arose under the distinguishable factual backdrop of uncertainty in the plaintiff's future employment prospects, rather than uncertainty in the plaintiff's eventual maximum medical improvement, its reasoning is illustrative:
2003 WL 1580604 (Del. Super. Ct. 2003).
In the case at bar, [the plaintiff] was making over $60,000 a year as a master mechanic. [The plaintiff] was employed at the time of the accident; however, he admits that shortly after the accident his employment was going to end. Plaintiff is prepared to offer testimony that he had firm plans to open up his own business, and that there were plans in place to generate a clientele. Furthermore, Plaintiffs are prepared to present testimony that [the plaintiff's] current employer would have continued [the plaintiff's] employment if he had so desired.
The claims for future lost wages is a matter for the jury to determine. There appears to be enough evidence if presented to meet the requirement under Henne that Plaintiffs will at least offer some evidence of loss of earnings in the future as a result of his permanent injury. Henne specifically states "The fact that there is some uncertainty as to plaintiff's damage or the fact that the damage is very difficult to measure will not preclude a jury from determining its value." The Plaintiff may present evidence of his loss of future income, and Defendant may present evidence to the contrary. If for some reason at the end of trial Plaintiffs have not meet their burden with respect to [the plaintiff's] future earnings, then Defendant can request that the jury not be instructed on this point.
Id. at *3 (emphasis added) (citations omitted).
Finally, this Court finds the Supreme Court's holding in Jardel v. Hughes to be most apposite. In Jardel, the plaintiff was abducted while leaving her place of employment at a shopping mall; after abducting the plaintiff, her assailants proceeded to assault and rape her. In the plaintiff's tort action against the owner of the shopping mall, plaintiff claimed, inter alia, a loss of future earning capacity. At the time of the incident, the plaintiff was a high school graduate; during her rehabilitation therapy for injuries sustained during the attack, the plaintiff formed the intention of pursuing a nursing career. However, the residual effects of her injuries, including depression, recurrent nightmares, memory loss, and permanent double vision, impeded her ability to pursue this career path; further, one of plaintiff's treating psychiatrists testified that it was uncertain if the plaintiff could be employed in the nursing profession given the detrimental effect of her injuries on her ability to form personal relationships or deal with stressful situations. Indeed, this treating psychiatrist testified that the plaintiff's disabilities would prevent her from succeeding in "all but the most ministerial occupations," such as retail sales, and that plaintiff was not suited for the medical profession. Notwithstanding the uncertain nature of what occupations the plaintiff might ultimately be capable of successfully maintaining, the Court held that loss of earning capacity damages were properly recoverable:
523 A.2d 518 (Del. 1987).
Id. at 521-22.
Id. at 532.
Id.
Id.
Id.
[T]here must be evidence presented by persons qualified to give an informed opinion, that the claimed injuries will interfere with the ability of the plaintiff to pursue a specific occupation or profession. The extent of that loss or interference is a matter of argument and thus within the area of jury inference under appropriate instruction.
We conclude that under the decisional standards noted above, a sufficient evidential basis was presented on plaintiff's behalf in this case to warrant submission to the jury of her claim for future loss of earning capacity. Plaintiff's physical and emotional disability were well established by the time of trial and fully substantiated by her treating physician. Plaintiff's career aspirations were the result of her own highly subjective physical and emotional experiences and, to a significant degree, perhaps unrealistic, as [the plaintiff's treating psychiatrist] indicated. We cannot say that the basis for discounting plaintiff's idealistic aspirations was so speculative and conjectural as to foreclose the submission of this issue as a proper element of damage. Accordingly, the trial court did not err in submitting this damage issue to the jury.
Id. (emphasis added).
Similarly, in the instant case, Plaintiff has proffered testimony from Dr. Osterman that his injuries will interfere with his ability to "pursue a specific occupation;" Dr. Osterman testified, in no uncertain terms, that Plaintiff cannot continue with his longtime vocation of heavy machinery operation. Likewise, in Jardel, the Court held that loss of earning capacity damages were recoverable where the plaintiff merely formed an aspiration to pursue a specific skilled profession, but her residual injuries seemed to foreclose her from all but "ministerial" occupations. Here, rather than being "subjective" and "perhaps unrealistic," Plaintiff's longtime employment in his chosen vocation is clearly substantiated and undisputed; moreover, Plaintiff has conceded that he can perform "menial" employment. Thus, just as in Jardel, this Court will not "discount[]" Plaintiff's desire to have continued engaging in his chosen vocation. The extent to which this loss will be offset by Plaintiff's conceded ability to perform a "menial" occupation, or, indeed, the possibility that there are suitable supervisory or advisory roles within Plaintiff's area of experience is "a matter of argument and thus within the area of jury inference under appropriate instruction."
Jardel, 523 A.2d at 532.
The Court recognizes that this case presents a difficult evidentiary situation for both Plaintiff and Defendants. Due to the alleged medical negligence, Plaintiff is afflicted with an injury that, by its nature, cannot be fully defined at this juncture. Given this reality, Plaintiff has presented evidence of his loss of earning capacity "with as much certainty as the nature of the tort and the circumstances permit." At the same time, this uncertainty renders it inherently difficult for Defendants to quantify Plaintiff's future earning capacity. Nonetheless, Plaintiff has produced expert testimony, to a reasonable degree of medical certainty, that he is permanently foreclosed from returning to his chosen vocation. Under the foregoing decisional law, this is sufficient for the submission of the issue to the jury. Of course, at a minimum, Defendant may now invoke Plaintiff's concession that he can perform "menial" employment, together with any other reasonable inferences elicited on cross-examination, with respect to the existence of supervisory or consultancy positions within Plaintiff's field of employment, and whether any such positions would impose the same or similar physical demands as the "menial" positions that Plaintiff acknowledges he can maintain.
At pretrial conference, this Court provided Plaintiff with the opportunity to continue the trial until such time as the extent of Plaintiff's injuries might be more definitely ascertained. However, due to the anticipated length of time that this would require and Plaintiff's apparent current financial difficulties, Plaintiff declined.
RESTATEMENT (SECOND) OF TORTS § 912 (1979).
See supra note 9.
See supra note 7.
For much the same reasons, Ms. Barker, the life care planner, may testify as to the homemaker services Plaintiff will require. Dr. Osterman testified that Plaintiff may never engage in tasks that are "vibratory" and that Plaintiff will never have "normal sensation" again. Thus, Plaintiff may argue all reasonable inferences with respect to the impact on such impairment on the ability to perform household tasks. At the same time, Defendants may again rebut Plaintiff's contentions via analogy to the "menial" tasks that Plaintiff concedes he can perform; Defendants may argue that Plaintiff's undisputed ability to perform "menial" tasks is transferable to certain household tasks enumerated by Ms. Barker. This is similarly "a matter of argument and thus within the area of jury inference under appropriate instruction."
See supra notes 8-9.
Jardel, 523 A.2d at 532.
Accordingly, for the reasons stated above, Defendants' motion in limine is DENIED.
IT IS SO ORDERED.