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Presenting A Future Loss of Earning Capacity Claim (Future Wage Loss) May 19, 2010

Posted by Attorney Jonathan Groth in FAQ Personal Injury, Personal Injury Law, Wisconsin Auto Accidents.

Some discussion has been had among plaintiff’s attorneys regarding the need for an economist for a claim for future loss of earning capacity (i.e. future wage loss).  Also, because there is a Wisconsin Jury Instruction dicussing reducing a future loss of earning capacity claim to present value there is a debate as to which side has the burden to present evidence regarding interest and inflation rates.

The Wisconsin Court of Appeals has settled this argument.  With Wingad a plaintiff should not need to have an economist testify.  Is it a better practice to have an economist on your side?  If the case is one where it is necessary than your attorney should make the call to an economist. 

I’d recommend that you read Wingad.  Ultimately, it is the defendant’s burden so please don’t forget this.   Let’s not make their job any easier.

We therefore hold the following procedures should apply. The plaintiff, of course, has the ultimate burden of proof upon the quantum of damages. A plaintiff establishes a prima facie case for recovery of future lost earnings by presenting evidence of, for example, projected wage loss, fringe benefits to be lost in the future and life expectancy. A defendant seeking reduction to present value of a sum awarded for loss of future earnings has the burden of going forward with evidence to enable the fact finder to make a rational decision on the award. The defendant benefits from the trial court’s instruction on present value. The reason for such an instruction on present value is obvious. When a jury *453 verdict is based upon the deprivation of future benefits, it will provide more than reasonable compensation if it is formed by merely totaling the loss of future benefits without taking into account the earning power of the money awarded. It is self-evident that a given sum of money now is worth more than an equivalent sum of money payable in the future. We recognize that the calculation of present value may be a difficult computation for the average juror. Therefore, the trial court may allow the defendant to meet this burden on present value by admitting testimony of expert witnesses, or by receiving in evidence the standard interest and annuity tables in which present values are calculated at various rates of interest and for various periods covering the ordinary life expectancies.

Wingad v John Deere & Co, 187 Wis. 2d 441, 523 NW 2d 274


1. joe - May 20, 2010

Do you absolutely need a voacational expert.??

jonpgroth - May 21, 2010


I think the safe bet is to have a vocational expert. I’m sure you are aware of the Reinke decision and the Hoeft decision that seem to say no vocational expert is needed. But, check out “Law of Damages in Wisconsin” which states that “in the context of a discussion of the admissibility of a vocational expert’s testimony, however, one court noted that an award for loss of earning capacity must be supported by expert testimony.” That case is Brain v. Mann, 129 Wis.2d 447, 458 (Ct.App. 1986).

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