Posted on: 5/10/2012
Ronald E. Joseph, Landman Corsi Ballaine
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On several occasions, I have been asked by attorneys either during a trial, or a few weeks before commencement of a trial, for advice on cross-examining plaintiff's economist.1 Although it is possible to prepare for cross-examination of an economist during or shortly before trial, the better practice is to begin anticipating the issues which plaintiff's economist will address in your initial discovery demands.
If a plaintiff who is employed claims significant personal injuries, they will seek to recover past lost wages and benefits. They will also undoubtedly claim either that they cannot continue to work or that they cannot continue in their prior employment, and thus their future wages and benefits are substantially reduced.
Plaintiff's economist will rely upon several assumptions in support of their theories concerning past and future lost wages and benefits. If you confront plaintiff's economist with evidence which is contrary to their assumptions, you may be able to discredit much of their testimony. Economists typically make assumptions concerning plaintiff's past work history and wage history; plaintiff's ability to continue in the work force; the ability of plaintiff's chosen industry to employ a full labor force; and plaintiff's anticipated retirement age if he/she had not been injured. This article will address cross-examination of a plaintiff's expert economist on plaintiff's ability and opportunity to work full time had they not been injured, plaintiff's ability to return to work and contributions to union funds that do not inure to the benefit of the injured plaintiff.
It would be impossible to address the nuances of each jurisdiction, industry and case in one article, and you should not tether yourself to the following suggestions. Instead, use them as a springboard for analyzing your case. In other words, be creative.
Theory That an Injured Plaintiff Would Have Worked an Entire Year
When considering whether an injured plaintiff would have worked full time had they not been injured, the defense attorney should review plaintiff's work history. To determine plaintiff's past employment and wage history, you should obtain personnel files, including wage and benefit histories and disciplinary materials from previous employers. In some industries, such as construction, workers have had multiple employers, and the defense attorney should obtain wage and benefit information from plaintiff's union local.2
Plaintiff's economist may calculate plaintiff's lost wages based upon the assumption that plaintiff would have worked full time for 52 weeks per year (with paid vacations). When you obtain employment files, they often contain little more than the employee's wage history. The defense attorney should carefully review that wage history for gaps in payment periods. At first blush, the economist's misstatement of vacation benefits may seem trivial. But, if the economist's incorrect assumptions concerning vacations are taken to their logical conclusion, they can lead to a substantial overstatement of future benefits. If Plaintiff's economist has overstated plaintiff's vacation benefits, you might consider pursuing this line of questioning early in your cross-examination. It will be an easy concept for the jurors to grasp, and they could conclude early during your cross-examination that plaintiff's economist is overreaching.
In some industries, where people have multiple employers, the employers make contributions to a vacation fund, rather than provide the employees with paid vacations. Some plaintiffs' economists will attempt to "double dip" by assuming that the plaintiff would have worked an entire year and also collected paid vacation benefits through the union vacation fund. The defense attorney should analyze the plaintiff's work history to determine the amount of vacation they previously took and confront plaintiff's economist with that data. The plaintiff's economist may also attempt to double dip by (a) agreeing that plaintiff could work in another, less strenuous industry, and (b) still attempt to claim the vacation fund as a lost benefit. You need to confront plaintiff's economist with the concept that employees in other industries often receive paid vacations and ask the economist to recalculate the lost wages and benefits by subtracting employer contributions to the vacation fund.
Plaintiffs' economists frequently attempt to gloss over downturns in the economy by claiming that they are looking at the long term picture. Some unions have imposed furloughs on their workers. For example, in 2011, at least one union local in New York City imposed 14 week furloughs on all of their members.3 You should obtain information concerning furloughs from the union; plaintiff's employer; plaintiff's co-workers who testify at depositions; and plaintiff in his/her deposition.4 You should also subpoena the plaintiff's union for the total number of active members in the local and the total number of days each active member worked for the past 3-5 years. This may help establish, even in the absence of furloughs, that there are not enough jobs for all of the union members.
The defense attorney may be able to impeach plaintiff's economist with their own prior testimony and/or predictions concerning the economy and plaintiff's chosen industry. Shortly after learning the economist's identity, you should obtain the economist's prior testimonial history from DRI, IDEX, Verdict Search,5 your own expert bank and in some cases, your own client or insurance company.6
The defense attorney can compare the expert's prior testimony and written predictions concerning the economy and plaintiff's chosen industry with: a) the statistics obtained from the union concerning full employment and furloughs; and b) published government statistics. If you do not have such statistics in your arsenal and instead attempt to rely on the general perception that the economy has slowed, you risk the possibility that plaintiff's economist will testify, in response to your questions, that members of plaintiff's union are actually still in high demand.
Plaintiff's Ability to Return to Work
You should not be shy about asking plaintiff's economist to make calculations while they are on the witness stand. Of course, you should make those calculations yourself before you enter the courtroom. For example, if you have video surveillance showing plaintiff actively engaged in strenuous activities, you should consider asking plaintiff's economist to assume that plaintiff was actually capable of returning to work on one or
more of the dates that plaintiff was engaged in these activities. If you retain a medical expert who examines plaintiff and determines that they are not disabled from working, you may consider asking plaintiff's economist to calculate plaintiff's lost wages as of the date of that medical examination.
Contributions to Union Funds That Would Not Inure to the Benefit of the Plaintiff
Pursuant to union contracts, employers are often required to make contributions, based upon the number of hours worked, towards a union's training program and/or other administrative expenses which would not inure to the benefit of a worker once they left that union. If plaintiff, as a result of their accident, is no longer employed in a union job, they would not benefit from contributions to the union training fund or other administrative functions. You should ascertain that plaintiff's economist has not included these types of employer contributions in their calculations of lost benefits.
Conclusion
Hopefully, you find some of these suggestions helpful and thought provoking. Please look for future articles in which I will address topics such as pension benefits, Social Security benefits and discounting income streams.
Ron Joseph has over 26 years of experience during which time he has tried over 60 cases in the state and federal courts of New York and Pennsylvania and other jurisdictions. Ron has also represented clients before the Securities and Exchange Commission, Internal Revenue Service and state professional disciplinary authorities. Clients frequently turn to Ron when they are faced with high exposure and high profile cases. He has counseled and represented clients in many areas of the law including those involving general negligence, civil rights, construction accidents, Federal Employers' Liability Act, mass tort, products liability, predatory lending and professional liability. Ron began his career as an Assistant District Attorney in Kings County where he went on to serve as a Supervising Assistant District Attorney of its Narcotics Bureau. He can be reached at rjoseph@lcbf.com.
[1] In New York State Courts, parties are permitted to disclose their expert reports one month before trial, and New York practice does not provide for interrogatories or depositions of the experts.
[2] In industries, such as construction, where the union local trains the employees, the defense attorney should also consider obtaining plaintiff's training records and the union's training materials. In cases not involving strict liability, these materials could be useful in establishing plaintiff's comparative negligence.
[3] This particular union has been imposing furloughs on its members for several years.
[4] If plaintiff, at their deposition, either incorrectly denies that workers are being furloughed or knowledge of workers being furloughed, you can use this testimony for impeachment at trial.
[5] These entities may only have the names of cases in which the expert testified, and your staff may have to spend considerable time obtaining expert transcripts. Additionally, you will probably need to spend several hours reviewing the transcripts just to obtain a few valuable nuggets for cross-examination. Therefore, you should leave yourself ample time for this preparation.
[6] Some insurance companies and large self-insured companies have created their own expert banks, and you should determine whether they have transcripts of the expert's prior testimony.