Cowley v. Sunset Yacht Charters, Inc.
Filing
88
ORDER denying 52 Motion in Limine. Signed by Judge James I. Cohn on 7/22/2011. (awe)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 10-61928-CIV-COHN/SELTZER
WILLIAM T.F. COWLEY,
Plaintiff,
v.
SUNSET YACHT CHARTERS, INC.,
Defendant.
______________________________/
ORDER DENYING MOTION IN LIMINE [DE 52]
THIS CAUSE is before the Court on Defendant Sunset Yacht Charters, Inc.’s
Motion in Limine to Preclude Testimony of Plaintiff’s Future Lost Income [DE 52]. The
Court has considered the motion, Plaintiff William T.F. Cowley’s Response [DE 74], and
the record in this case, and is otherwise advised in the premises.
Defendant seeks to preclude Plaintiff from offering evidence of his future lost
income at trial on the basis that Plaintiff cannot present sufficient evidence for a future
lost income calculation. Courts require “more than speculative opinion when
determining damages for prospective earnings loss.” Benjamin v. Peter’s Farm Condo.
Owners Ass’n, 820 F.2d 640, 642 (3d Cir. 1987). Thus, “[t]o support a future earning
loss calculation, a plaintiff must present an evidentiary basis with proper foundation and
sufficient factual predicates.” Evans v. BV Shipping Co. Lombok Strait, Case No. 093139, 2009 WL 3233524, at *2 (D.N.J. Oct. 5, 2009) (citations and quotations omitted).
“Although mathematical exactness is not required, testimony of post-injury earning
capacity must be based upon the proper factual foundation.” Id.
Defendant argues that Plaintiff cannot provide an objective assessment of his
future earnings capacity because he has not identified a vocational rehabilitation expert
or an economist. Yet, a vocational expert or economist is not an absolute prerequisite
to prove a loss of future earning capacity. Barocco v. Ennis Inc. of Co., Case No. No.
Civ.A.02-1450, 2003 WL 1342973, at *2 (E.D. La. March 19, 2003) aff’d,100 Fed. App’x
965 (5th Cir. 2004). “Depending on the quality of the evidence given by the plaintiff and
[his] physician concerning plaintiff's injury and degree of impairment, prior work history,
current work restrictions and post-injury employment efforts, plaintiff could create a jury
issue on loss of earning capacity without a vocational rehab expert.” Id.
Plaintiff’s evidence regarding future lost income will be based not only on his own
testimony but also on his treating physicians’ testimony. DE 74 at 1. Plaintiff states
that his “treating physicians will establish that Plaintiff was a healthy 60 year old at the
time of his injury and will also establish that the injury suffered aboard the vessel has
debilitated the Plaintiff from pursuing any gainful employment for the remainder of his
working-life. The testimony will establish that, but for the injury, the Plaintiff could have
continued to work in a ship captain capacity until he retired, i.e. the physician will opine
that Plaintiff cannot return to gainful work in any capacity whatsoever.” Id. at 3.
In support of its motion, Defendant compares this case to Evans, where the court
refused to permit an award of future lost income because the award would be
speculative. Evans, 2009 WL 3233524, at *2. However, in Evans, the plaintiff’s doctor
only testified regarding plaintiff’s hand injury, but plaintiff sought an award based on
other injuries he had sustained as well. The court precluded the plaintiff from testifying
regarding his other injuries because there was no doctor to provide a foundation for the
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testimony. In contrast, here, Plaintiff represents that his physicians will testify regarding
his entire condition. In essence, Plaintiff’s physicians will provide the “proper foundation
and sufficient factual predicates” that were lacking in Evans. Therefore, the Court will
not exclude the evidence of Plaintiff’s future lost income at trial. Accordingly, it is
hereby
ORDERED AND ADJUDGED that Defendant Sunset Yacht Charters, Inc.’s
Motion in Limine to Preclude Testimony of Plaintiff’s Future Lost Income [DE 52] is
DENIED.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, this 22nd day of July, 2011.
Copies provided to:
Counsel of record via CM/ECF
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