Challenging the Economist's Million Dollar in a Wrongful Death Action

'Denise M. Hasbrook

In Ohio, relatives of a deceased minor may bring an action for wrongful death under Ohio Revised Code Section 2125.02(A)(I). The categories of allowable damages are specifically enumerated in the wrongful death statute. However, it is difficult for plaintiffs to tactfully present a specific number to the jury under most of these categories because "mental anguish" and "loss of society and companionship" are not easily quantified. Likewise, the cost of reasonable funeral and burial expenses are not large expenses. With most of the damages being intangible, the plaintiff's attorney faces the dilemma of how to suggest to a jury that the minor's case is worth several million instead of several thousand dollars. Hence, the expert economist becomes a very important part of the plaintiff's case.

In Gallimore v. Children's Hospital Medical Center (1993), 67 Ohio St.3d 244, the Supreme Court ruled that parents may recover the loss of support from the expected earning capacity of a deceased minor child. The law even presumes some level of pecuniary loss to parents entitled to the services and earnings of their child. Terveer v. Baschnagel (1982), 3 Ohio App 3d 3 12. However, pecuniary loss is not an exact science for a minor. It is instead dependent upon factors such as age, sex, the physical and mental condition of the child as well as the position in life, occupation and physical condition of the parents. Terveer, 3 Ohio App 3d at 313.

All of this means that the amount of pecuniary loss in a wrongful death action is dependent upon the ability of the plaintiff to lay the proper foundation for the award. The plaintiff's expert economist attempts to fill this role by testifying about the reasonably expected earning capacity of the minor through his or her life expectancy. After applying a nominal interest discount rate or a net discount rate against base earnings over the life expectancy of the young decedent, the expert normally reaches an opinion of over $1 million in lost earning capacity for the deceased minor.

It is important to vehemently challenge the testimony of the proposed expert economist from the defense perspective. One option is to attack the opinion on the basis that it is speculative. After all, the economist does not know how long the child would have survived, the level of education that the child might receive, his/her future rate of pay or the child's rate of eventual consumption. Yet, these arguments are rarely any more persuasive for a minor then they are for cases of adult loss.
The better alternative in cases of a minor or an emancipated child with no dependents is to challenge the expert report on the basis of relevancy. Ohio Revised Code Section 2125.02 (B)(1) allows damages for "loss of support from the reasonably expected earning capacity of the decedent." Thus, in order to be relevant under Ohio Rule of Evidence 402, the expert's opinion must not only set forth the reasonably expected earning capacity of the child but it must also be linked to some evidence of loss of support" to the parents of the minor. When reviewing the expert's opinion, the court must ask "earning capacity to whom?" If the parents were not in a position to realize the child's lost earning capacity, then the testimony of the expert witness as to how much the decedent would have earned in his or her lifetime is simply not relevant.

One case. Howard v. Siedler (1996). 116 Ohio App.3d 800, demonstrated how such a foundation for loss of support can be laid. In Howard, the defendants submitted a motion in 1imine arguing that the economist's evidence for future earnings of the minor decedent could not be brought before the jury because the decedent did not have a legal obligation to support his parents or siblings at the time of his death. Howard. 116 Ohio App.3d at 807. The court allowed the evidence in Howard because the plaintiffs submitted evidence that the decedents older, emancipated sister provided financial support to her mother. It was held that such evidence laid a foundation for the trier of fact to determine whether the decedent would have also provided support to his mother in his adulthood.

The court in Terveer v. I3aschnagel (1982), 3 Ohio App.3d 3 12, was faced with a situation in which expert economist testimony was offered folloving the death of a 22-year-old dental hygienist. While this case did not involve a minor, it is analogous because the decedent did not have any dependents. In deciding whether the economist could support the parent's wrongful death claim, the Court said, [T]he value of the services is to be estimated on the basis of what children in the same condition and station of life and of like capability are ordinarily worth." Terveer, 3 Ohio App. at 3 13. The economist testimony was allowed because there was specific proof in Terveer of current financial support by the decedent. The testimony in that case indicated that the emancipated minor shared living expenses with her sister and helped another sister with her schoolwork. She also cut her brother's hair, assisted her parents with their rental property and, as a dental assistant, cleaned their teeth.

There is often no such showing of financial support in a case involving a minor and therefore no adequate foundation for the economist's testimony. If a foundation cannot be laid that the decedent provided any financial support to the parents, it certainly cannot be demonstrated that the decedent would provide support equal to the entire amount of earnings over a lifetime. Indeed, very few children return all of their lifetime earnings to the parents. Instead, children are more likely to marry, buy a marital home and consume their earnings on themselves and their dependent children - not their parents.
The practitioner met with an expert economist who provides a multimillion-dollar lost earning capacity calculation for a minor should attack the expert opinion before trial through a motion in 1imine. The factors set forth in Terveer should be carefully developed through discovery. If the groundwork is laid, it can be pointed out to the court that there is no evidence that tends to show that the parents received financial aid from the deceased during his/her lifetime or that they would have continued to receive such aid had the child lived. To that end, these specific facts should be established through discovery in anticipation of the motion in limine:

1. The parents supported the child instead of the child supporting the parents.
2. No siblings provided support to the parents.
3. The parents fully expected that one day the child would marry and raise his or her own family who would consume the earnings.
4. The parents have saved for their own retirement and future health needs.
5. The assets held by the child were minimal.
6. The parents are healthy, working people.

In addition, the following interrogatory questions can be used to establish that there is no basis for support:

1. What is the approximate percentage of the decedent's annual income which he/she allocated to his/her own needs and comforts in the two years immediately prior to his/her death?
2. Did the decedent contribute to the support of any person?
3. If the decedent contributed to the support of any person, please state the name, address and relationship to the decedent of such person and the total amount contributed per year for the last five years of the decedent's"

If none of these answers reveal a foundation for support to the beneficiaries, the economist's testimony should not be permitted.

Finally, the defendant should consider retaining its own economist in case it is not successful on a motion in limine. The defendant's economist should explain to the jury that the benefit in dollars to the estate is the support that the parents would have received from the child. The expert should explain that he or she does not concur with the plaintiff's economist that the proper calculation is the lifelong lost earnings of the child. This is because the earnings would have been consumed by the child's spouse and family. If a recovery is proper at all. it is the amount of benefits that would transfer, if any, to the parents upon their old age. Such amount will be much smaller than the figure set forth by plaintiff's expert.