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...

29 September

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Appealing Correct Measure of Damages

Posted by David Adelstein

in Appeal, Evidence

In an earlier article, I wrote how economic damages MUST be supported by substantial competent evidence. In a recent case, Levy v. Ben-Shmuel, 43 Fla.L.Weekly D2229a (Fla. 3d DCA 2018), a plaintiff, after a bench trial, recovered a judgment against a defendant that included money damages associated with a claim for conversion. During trial, and after the plaintiff’s case-in-chief, the defendant moved for an involuntary dismissal arguing the plaintiff failed to meet its burden in establishing the correct measure of damages at trial. On appeal, the plaintiff ultimately conceded that he did not establish the correct measure of damages. The issue...