In Andler v. Clear Channel Broadcasting, Inc., the Sixth Circuit held yesterday that lower earnings in the two years prior to her injury were not determinative of the amount the plaintiff would earn in the future. The plaintiff was injured after stepping into a hole in a campground, and claimed damages for a loss of future earning capacity against the campground’s owner. A jury awarded her $200,000, but that award was reversed on appeal on other grounds. At the second trial, the district court excluded the plaintiff’s expert testimony about loss of earning capacity as overly speculative, and the jury awarded just $10,000.
The Sixth Circuit reversed again, holding that the expert testimony was not unreasonably speculative. The expert based his future earnings calculations on average salary that was higher than the plaintiff’s actual pre-injury salary because she had not been working full-time prior to her injury. The panel found this was reasonable because she was temporarily working at the lower-paid job to be close to her young children, and planned to change jobs when her children were older. She also had training for full time jobs that paid much better. The Court concluded that the “factual basis” for the expert’s pre-injury earning capacity calculation “may not be particularly strong, but ‘it is not proper for the Court to exclude expert testimony ‘merely because the factual bases for an expert’s opinion are weak.’”
We have previously covered the recent trend in the Sixth Circuit to limit speculative expert testimony (for example, see here, here, here, and here). This fact-driven case does not reverse that trend, but serves as a reminder that the evaluation of expert opinion is often case-specific.
