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Loss of Future Earning Capacity Damages Must be Proven with Reasonable Degree of Certainty

Loss of future earning capacity can be a difficult damage to recover because of what is seen as the inherent speculativeness of this damages category.  Economic damages need to be proven with a reasonable degree of certainty and this can become challenging when dealing loss of future earning capacity damages, especially if the person has no earning capacity or no earning capacity in the area they are claiming they lost future earnings.   Importantly, how do you establish with a reasonable degree of certainty the diminished earning capacity and, then, what that figure should be?

This difficulty be seen in a recent whistleblower case, Dr. Chaudhry v. Adventist Health System Sunbelt, Inc., 45 Fla.L.Weekly D2443b (Fla. 5th DCA 2020), where the appellate court affirmed the trial court’s order setting aside $1.5 million for such loss of future earning capacity damages.  This is a good case to consider if dealing with loss of future earning capacity damages to see the court’s analysis and perhaps the best way to sure up an expert opinion with more objective testimony / evidence serving as the foundation for this damages category.

In this case, a surgeon involved in a transplant program at a hospital was fired after threatening to report issues, which had the effect of costing millions to the program.  The surgeon was unable to obtain desirable, full-time employment until shortly before trial where he obtained a job at a Kentucky hospital for $200,000 more than he was getting paid at the Florida hospital.   The surgeon sued under Florida’s Private Whistleblower Act and put on evidence of loss of future earning capacity damages with an expert. The expert relied on sources showing salaries of surgeons but those sources revealed a lower figure for the type of transplant surgery the surgeon performed. The expert also relied on anecdotal evidence of other transplant surgeons performing the same type of surgery and the fact that it was unlikely the surgeon would find future employment performing the same transplants due to the lapse in performing these surgeries. The expert compared the surgeon’s salary with hypothetical salaries that he could have earned performing transplant surgeries.  As mentioned, the appellate court affirmed the trial court setting aside the jury’s award of $1.5 million for loss of future earning capacity.  In doing so, the appellate court explained the purpose of loss of future earning capacity damages and, noteworthy, why the award of such damages were speculative:

The purpose of [a loss of future earning capacity] award is to ‘compensate a plaintiff for loss of capacity to earn income as opposed to actual loss of future earnings.’ Volusia Cnty. v. Joynt, 179 So. 3d 448, 450 (Fla. 5th DCA 2015) (quoting W.R. Grace & Co.-Conn. v. Pyke, 661 So. 2d 1301, 1302 (Fla. 3d DCA 1995)); see also Auto Club Ins. of Fla. v. Babin, 204 So. 3d 561, 564 (Fla. 5th DCA 2016) (“The amount of an award for loss of future earning capacity should be measured by the plaintiff’s diminished ability to earn income in the future, rather than the plaintiff’s actual loss of future earnings.”). “The Florida Supreme Court has cautioned that a plaintiff may recover damages for loss of earning capacity only ‘when such damages are established with reasonable certainty.’ ” Rasinski v. McCoy, 227 So. 3d 201, 204 (Fla. 5th DCA 2017) (quoting Auto-Owners Ins. v. Tompkins, 651 So. 2d 89, 91 (Fla. 1995)). While the fact that a plaintiff is making as much or more than he was making prior to an injury does not preclude him from asking for an instruction on loss of future earning capacity, “it certainly makes it more difficult” to show economic loss. Joynt, 179 So. 3d at 451-52 (first citing W.R. Grace & Co.-Conn., 661 So. 2d at 1303; and then citing Long v. Publix Super Mkts., Inc., 458 So. 2d 393, 394 (Fla. 1st DCA 1984)).


In order to prove a loss of future earning capacity, [the expert] had to assume that but for his termination, [the surgeon] would have been compensated at the same rate as surgeons who were in the top ten percent earning strata of their specialties or who had obtained positions as director or chief of a heart-lung transplant program or institute. There was no competent substantial evidence to support [the expert’s] assumptions because [the surgeon] had no such earnings history, no such demonstrated competency, he had never held any such leadership positions, and those few very high paying positions went to more senior surgeons.

Dr. Chaudry, supra. 


Please contact David Adelstein at [email protected] or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.


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