Prior Bad Acts Relevant to Damages and Future-Earnings Calculation

Plaintiff suffered serious on-the-job injuries when he fell from a cylindrical cell tower.   Thereafter, Plaintiff and his wife sued Plaintiff’s employer, as well as other companies involved in Plaintiff’ work on the day he fell.  After a trial, the jury returned a verdict that Plaintiff had not established the facts necessary to recover under the Jones Act, despite incurring nearly eleven million dollars in actual damages. 

On appeal to the United States Court of Appeals, Sixth Circuit, Plaintiff complained about the admission of an expert report which contained unflattering facts about Plaintiff’s past, including “extensive prior alcohol, methamphetamine, cocaine, and marijuana use; a failure to pay child support and termination of his parental rights; numerous arrests for alcohol intoxication, convictions for trafficking methamphetamine, driving while impaired, possession of marijuana, and failure to appear in court; and physical abuse leading to hospitalization.” 

The Sixth Circuit was satisfied that the expert’s opinion was properly admitted.  The expert,who has a thirty-year career addressing brain-trauma victims, reviewed Plaintiff’s medical records and conducted a two-day examination and interview.  Further, the court found the opinion relevant for purposes of a damages calculation:

The Clarks’ contention that the district court abused its discretion in finding [the expert’s] testimony ‘relevant to the task at hand’ is also meritless.  The Clarks argue that his prior substance abuse, physical injury, convictions and jail time, and failure to pay child support had no bearing on the task before the court–determining liability for his fall–and should have been excluded because it was irrelevant and used exclusively to inflame the jury.  While these facts may not be pertinent to the apportionment of negligence, they are relevant to the damages calculation.  The substance abuse and physical injury testimony, while unfavorable to Clark, was relevant to determining the amount of Clark’s impairment attributable to the fall.  Additionally, Clark’s criminal history and failure to pay child support were relevant to the jury’s future-earnings calculation.  In fact, the Clarks opened the door for this testimony when they presented an economics expert’s opinion predicting a robust future earnings capacity despite Clark’s previously spotty employment record.  This expert attributed the recent birth of Clark’s child as a basis for concluding that his future earnings would be more predictable and reliable, as Clark now had new familial obligations.  This projection, however, failed to take into consideration a major reason for Clark’s checkered employment record–his time spent incarcerated–and ignored Clark’s history of nonsupport of a first child.  The defendants’ introduction of Clark’s criminal history and failure to pay child support were relevant to the future-earnings calculation and to rebut the Clarks’ economic expert’s opinion.

Clark v. W & M Kraft, Inc., No. 07-4272, 07-4314, 2012 WL 616627, slip op. (6th Cir. Feb. 27, 2012).