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Geoff Trachtenberg
Geoff Trachtenberg
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Arizona Court of Appeals Describes the Quantum of Evidence Needed to Prove Lost Earning Capacity and Addresses Damages for the "Increased Risk" of Harm

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New case from Division One, Felder v. Physiotherapy Assoc., that has some good stuff in it concerning lost earning capacity and anxiety over the “increased risk” of harm.

The first and main issue in the case concerns the quantum of evidence needed to prove lost earning capacity. Although the standard is “reasonable certainty” in predicting the future in such cases, the Court “conclude[d] that when determining what constitutes ‘reasonable certainty’ as to the amount of damages in a personal injury action, the key consideration must be what is ‘reasonable’ under the circumstances of the particular case.”

So, what does this “case-by-case” rule mean? Read on. The Court explained:

Some cases will simply not be conducive to a high degree of certainty because the future itself is uncertain. This does not, however, deprive an injured plaintiff of a remedy. A plaintiff may still claim damages in an amount supported by the best evidence available and the essential consideration is that “the jury must be guided by some rational standard.”

This is helpful because it basically says, “look, we understand that predicting the future is always going to be somewhat speculative, but as long as there is some ‘rational standard’ that governs such a forecast, we will leave it to the jury to make the final determination.” Since defense counsel are typically very persistent in claiming that such calculations are “speculative” and, therefore, worthless, this case ensures that at least Judges will be better equipped to deal with these kinds of arguments.

The second significant issue in the case concerned whether the plaintiff was allowed to seek damages for “anxiety” over his “less than 1% chance of neovascularization.” This may seem inconsequential at first blush, but this is the cutting edge of tort law – i.e., the ability to recover due to the “increased risk” of an injury.

Our case law has not really addressed this issue very well and there is a case, DeStories v. City of Phoenix, 154 Ariz. 604, 605, 744 P.2d 705, 706 (App. 1987), in which the plaintiff sought to recover damages for emotional harm absent any physical injury, based on plaintiff’s “increased risk” of contracting asbestosis or lung cancer. The plaintiff was not allowed to recover for the “increased risk” in that case.

The Felder court distinguished the DeStories case because, while there was serious physical harm to Mr. Felder, there was “no physical injury” in the DeStories case. While I like the outcome, this is intellectually disingenuous in my view since the “serious physical harm” was beside the point. The point was that, while Mr. Felder had a “increased risk” of neovascularization, he did not have any neovascularization. Great result, but I wish they had simply overruled or modified DeStories instead of pretend it was truly distinguishable.

[Incidently, there is another case on the books, Monaco v. HealthPartners, which distinguishes DeStories and holds that fear of future cancer is compensable.]