I was writing a report and came across these Model Jury Instructions from the MA Superior Court. Of course these are areas we all cover in our analysis but it always nice to see them succinctly outlined and to consider what the jury was instructed prior to our testimony and/or review of our report. These are model MA Jury instructions but pretty universal:
(5) Lost Earning Capacity You should also award damages for any lost earning capacity resulting from DFT's negligence. Earning capacity is simply the ability to earn money. People can have an earning capacity whether they are employed, working at home, or retired, and even if they never worked a day in their life. If PLF had earning capacity before the incident, and lost the necessary physical or mental ability to earn money at the same level for some time because of DFT's negligence, then s/he is entitled to damages for lost earning capacity during that period. You must consider PLF's own earning capacity, not that of an average person in his/her position. Earning capacity varies by person depending on a number of factors, including:
o What did PLF do until the incident, including his/her occupation?
o What did PLF earn before and after the injury?
o What were PLF's education, capacity, training, experience, health and habits?
o What talents, skills, intelligence, and motivation did PLF have?; and
o What were PLF's interests?
You may not, however, consider anything that is only possible or speculative. Rather, you must decide what is reasonably likely. <employer payments,="" if="" applicable=""> Even if a person does not lose wages because his/her employer continues his/her pay voluntarily, or as compensation for disability, s/he may nevertheless recover damages for impairment of earning capacity. It is not relevant whether PLF received disability payments. If necessary, someone else will consider those matters, perhaps with information that is not even in evidence here. It would be unfair for you to speculate about such matters. A person may have an earning capacity that exceeds his/her wages in the job that s/he had before or at the time of the incident. Evidence of wages paid is only one factor in your determination of diminution of earning capacity. </employer>
<employer payments,="" if="" applicable="">(6) Out of Pocket Costs Finally, if DFT's negligence has caused PLF to incur any [property damage] [out of pocket] costs, you should award PLF an amount to compensate him/her for [the reasonable and necessary costs s/he incurred] [the fair market value of the damaged property] [the loss of fair market value of the damaged [property]. - 5 - </employer>
<employer payments,="" if="" applicable="">(7) Future Damages If PLF has proven [with reasonable medical probability] that, more likely than not, in the future, s/he will experience any [pain and suffering, medical expenses, lost earning capacity, out-of-pocket expenses or property damage] because of DFT's negligence, you should award damages for that future harm. [If you find that PLF will suffer damages throughout his/her lifetime, you may consider life expectancy tables in evidence, to determine how long s/he will live.] There will be no future trial to evaluate any future damages that PLF may have. You must keep in mind that any judgment in this case will be paid in a lump sum and may be invested and earn money. Therefore, if you award future damages, you must reduce that portion of the damages to its present value as of [year], when PLF filed this case. Of course, you do not award any damages for earnings in any year after PLF would have retired or lost any earning capacity even if the incident had not occurred. </employer>
<employer payments,="" if="" applicable="">(8) Mitigation of Damages In addition, PLF had the duty to take all reasonable steps to reduce the damages s/he incurred as a result of his/her injuries. On this issue [- called mitigation of damages -] it is DFT, not PLF, who has the burden to prove that, more likely than not, PLF could have prevented some of his/her damages by reasonable measures. PLF may not recover damages that s/he reasonably could have avoided. This rule applies to all types of damages in this case, including [medical expenses, pain and suffering, and lost earning capacity]. If you find that, by reasonable efforts, PLF could have prevented some amount of the damages, then you must not include that amount in your damages award. </employer>
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Amy Vercillo
Rehabilitation and Re-Employment
Boston, MA
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