Computing Economic Damages in Florida Wrongful Death and Personal Injury Cases
In Florida, economic damages, such as lost earnings, support, and services and medical and funeral expenses, are uncapped in wrongful death and personal injury cases. Quite the opposite, the Florida Legislature has attempted to limit noneconomic damages, such as damages for pain and suffering, in medical malpractice cases through several statutes. For example, tort reforms passed in 2003 limited noneconomic damages at $500,000 per plaintiff ($1 million when involving a death) in most medical malpractice cases involving a practitioner, with other limits for different cases.1 Florida courts have responded by ruling some of these limits to be unconstitutional.2
Uncapped economic damages seem uncontested in Florida for the foreseeable future. However, the contest for tort reform regarding noneconomic damages may continue. At the end of 2016, Florida Governor Rick Scott replaced one opponent of tort reform on the Florida Supreme Court with a potential advocate.3 Scott has indicated he will replace three other Florida Supreme Court justices, who tend to be tort reform opponents, upon their retirements in January 2019, as his second term as governor expires.4 This potentially makes economic damages more important in Florida wrongful death and personal injury cases, since they are more likely to remain uncapped.
This article reviews the guidance and requirements Florida statutes and caselaw provide for calculating economic damages in wrongful death and personal injury trials.5 Ten important elements in these calculations are considered. Attorneys frequently hire economists as experts to assist with the computations. This article also reviews the methods and data economists typically use and whether they are permissible in Florida.
Florida’s Wrongful Death Act awards economic damages from lost earnings through two elements: lost net accumulations to the decedent’s estate and lost support to the decedent’s survivors.6 Double recoveries are not permissible, so any award for lost earnings through support to survivors must be deducted from an award for lost net accumulations to the estate.7 Only the portion of lost earnings that would have been saved and retained by the estate by the end of the decedent’s expected life expectancy is recoverable as lost net accumulations.8 Passive income and interest on investments that continue after death are not included as lost net accumulations to the estate because they continue to accrue.9 Factors juries may consider when evaluating losses from these elements include the decedent’s “skills, age, health, earnings and propensity to save.”10 Beneficiaries of the estate’s net accumulations may include the decedent’s spouse and lineal descendants and, if the decedent was not a minor (which is less than 25 years of age in Florida11), the decedent’s parents.12 ost support to survivors may be monetary or in-kind contributions. Survivors are defined to include spouses, children, and parents (and some other dependents).13 The fact-finder may consider the period of time in which a child is a minor when awarding damages for lost parental support in wrongful death cases.14
Similarly, lost earnings are also recoverable as economic damages in Florida personal injury cases. The appropriate measure of lost earnings is lost earnings capacity — the ability to earn — rather than actual earnings.15 This allows those who are not in the labor force or who provide unpaid work ( e.g. , for a family member) at the time of the injury to recover damages from lost earnings.16 Both past and future lost earnings are recoverable.17 Factors to consider include the plaintiff’s “age, health, habits, occupation, surroundings, and earnings before and after the injury.”18 In Florida, the appropriate test to determine whether the loss of future earnings capacity is recoverable is whether the measure of lost earnings capacity is shown with reasonable certainty.19
In practice, courts and economists in Florida cases have based lost earnings on an average of the decedent’s actual annual earnings in the years prior to the death,20 often using information from tax returns,21 and on average earnings for workers with particular levels of education (such as a college degree)22 and for particular occupations ( e.g. , an administrative assistant).23 Occupation-specific average earnings are available from the Bureau of Labor Statistics in their report, “Occupational Employment Statistics,” for each state and for each metropolitan and nonmetropolitan area.24 Average earnings by age and education level are available in the U.S. Census Bureau’s personal income tables, based on data from the current population survey.25 For partial injuries, economists have measured lost earnings capacity as the difference in earnings capacity with and without (or before and after) the injury.26
Many economists include the value of employment benefits in calculations of economic losses, along with lost wage and salary earnings, because both represent compensation for labor market work. Common employment benefits include various types of insurance benefits ( e.g., health or dental insurance), retirement benefits (pensions or employer contributions to a retirement account), and benefits that are mandated by the government ( e.g., several types of Social Security benefits and Medicare/Medicaid).
Florida’s Wrongful Death Act only mentions one employment benefit explicitly: The value of pension benefits is included in lost net accumulations.27 Nevertheless, economists have included the value of employment benefits in their calculations of economic damages in Florida wrongful death28 and personal injury29 cases. Economists have also specifically included as damages the value of retirement and pension income, which is a deferred benefit from employment.30
The pecuniary value of an individual’s employment benefits could be based on the amount actually paid by the employer to provide them. This amount may be different from the cost the individual (or their survivors) would incur to replace them in the market due to group rates and tax deductibility. Market quotes could be used to identify the replacement cost for some benefits, such as health insurance. Alternatively, economists may identify the value of lost fringe benefits using national or occupation-specific averages. The Bureau of Labor Statistics regularly provides information on the cost of employment benefits in their report, “Employer Costs for Employee Compensation.”31 This is provided separately for civilian, private-industry, and state and local government workers and for workers by occupation. Currently, the average cost of worker employment benefits for employers is an amount equal to about 25 percent of wages for private-sector workers (which is 20 percent of total compensation) and approximately 40 percent of wages for public-sector (government) workers.32 Unique to Florida, some state employees are eligible for the Deferred Retirement Option Program (DROP).
Florida’s Wrongful Death Act lists the decedent’s services as a recoverable source of loss to survivors (but not the estate).33 These services may include tasks the decedent had provided around the home, such as “ironing, washing dishes, washing clothes, cleaning the house, cleaning the bathrooms, toilets, [and] mopping,”34 but they may also include unpaid services provided to a survivor’s business.35 T he survivors do not need to have hired someone to replace the lost services to recover their loss.36 The value of lost services has also been recovered in Florida personal injury cases.37 Lost services have been recovered by parents for the services a child would have provided while a minor in Florida wrongful death and personal injury cases,38 although it may be required to show the child had significant income-producing potential.39 Other courts have ruled that a parent’s value of a decedent minor’s lost services is completely offset by the expenditures required for the child’s consumption.40
Economists have included the value of lost services in their calculations of economic damages in Florida wrongful death and personal injury cases.41 Courts in Florida torts have indicated that the replacement cost of the services to the survivors is the relevant measure of this damages element.42 In turn, economists have based this value on the number of hours that the decedent had spent providing household services ( e.g. , seven hours per week)43 and the replacement cost of those services, represented by an hourly rate ( e.g. , a wage rate of $10 per hour).44
Information on time that would have been spent providing household services by the injured party may be unavailable. When this is the case, many economists project the value of household services using information provided in Expectancy Data’s Dollar Value of the Day (DVD), which is a periodic publication.45 The DVD provides tables summarizing the average amount of time spent in various activities and the pecuniary value of that time for over 200 respondent groups characterized by gender, age, marital status, number and age of household children, and employment status, among other characteristics. The statistics in these tables are computed from 1) the amounts of time spent on various activities reported by respondents in the American Time Use Survey, conducted by the U.S. Bureau of Labor Statistics; and 2) corresponding average occupation and industry wages, as reported by the U.S. Bureau of Labor Statistics’ Occupational Employment Statistics.46
Earnings typically increase over time with price inflation to maintain purchasing power and with technological advances as workers become more productive.47 Earnings also increase over a career as workers gain experience and skills and become more productive. Florida statutes do not address wage growth, but courts in Florida wrongful death and personal injury cases have allowed future damages to include earnings growth.48 The net accumulations of a decedent’s estate49 and support to a decedent’s survivors50 have been permitted to grow also with the rate of inflation.
Economists may use an individual’s past rates of earnings increases to project future earnings growth. However, when sufficient information on an individual’s past earnings is not available, economists may predict future earnings increases using historical growth rates experienced by all or part of the labor force. The Bureau of Labor Statistics provides this kind of information regularly in two reports, “Employment and Earnings” and the “Employment Cost Index.”51 I n addition, analysts forecast earnings growth rates for several federal agencies (the Congressional Budget Office, the Social Security Advisory Board, and the Economic Report of the President), and these forecasts are publicly available.52
Economists have included earnings growth in their damages calculations in Florida wrongful death53 and personal injury54 cases. For example, in one case, the economist projected earnings to grow 12.5 percent per year.55 I n Florida cases, economists have based wage growth on the average rate of earnings growth for the broader U.S. economy56 and inflation rates on historical trends.57 Since the rate of wage growth includes the rate of price inflation, along with the effects of productivity gains, it will normally be higher than the inflation rate. For example, in Delta Air Lines, Inc. v. Ageloff, 552 So. 2d 1089, 1090 (Fla. 1989), an economist used a (nominal) wage growth rate of 10 percent, of which 6.5 percent was due to price inflation, and 3.5 percent was “real” wage growth due to productivity increases.
Worklife and Life Expectancies
Economic damages from lost net accumulations in Florida wrongful death cases should be measured as of the end of the decedent’s life expectancy.58 Damages from lost support and services in Florida wrongful death cases may be based on the joint life expectancies of the decedent and the survivors.59 Similarly, in Florida personal injury cases, lost earnings capacity should be considered over the injured plaintiff’s remaining life expectancy. The appropriate measure to use is the pre-injury life expectancy, undiminished by the injury.60 Florida allows factors in addition to mortality tables to be used in determining these life expectancies.61
In practice, most economists in Florida cases measure damages from lost earnings over the remaining worklife expectancy, rather than the remaining life expectancy.62 The remaining worklife expectancy is shorter. In their calculations, many economists in Florida wrongful death and personal injury cases have used common retirement ages, such as 62, 65, or 70.63 The Social Security Normal Retirement Age — the age at which one can retire and receive full retirement benefits without penalty — ranges from 65 to 67, depending on date of birth.
In other cases, economists in Florida cases have based their testimony (and courts have subsequently based their awards) on projections in worklife tables.64 Worklife tables are published by researchers who have projected worklife expectancies using federal government data, accounting for the probability of living, having the ability to work ( e.g. , not being disabled), and being willing to work (e.g. , not voluntarily leaving the labor force).65 These researchers typically provide projections separately by age, gender, race, and education for individuals currently in and not in the labor force. In other Florida cases, economists have used the “LPE” method, in which the losses are adjusted for each year in the analysis for the annual probability that the injured party would have been living (L), participating in the labor force (P), and employed (E).66 The forensic economist will often tailor the probabilities used for the L, P, and E factors for the individual’s gender, race, age, and education. Where warranted, economists should consider the joint life expectancies of the decedent and their survivors.67
Economists often assume injured plaintiffs mitigate damages from lost earnings by returning to work when possible. In their calculations, economists may project lost future earnings capacity by subtracting projected earnings with the injury, if any, from what projected earnings would have been without the injury. This approach is likely permissible in Florida.
The presence of a permanent injury is an important factor in awarding economic damages for lost future earnings capacity.68 However, a permanent injury is not necessarily required to recover lost future earnings.69 Future economic damages have been awarded in Florida personal injury cases when earnings capacity is diminished but not eliminated.70 In fact, it may be possible for an injured plaintiff to be awarded damages for lost earnings capacity when earning the same amount or more after the injury.71 Nevertheless, it is unlikely that all future economic damages are recoverable over the plaintiff’s remaining life expectancy when an injury is not permanent — indicating the economist should indeed deduct a plaintiff’s remaining earnings capacity with the injury from the losses.72
In Florida wrongful death cases, the remarriage of a surviving spouse cannot be used as mitigation to reduce damages.73 Similarly, benefits and support a surviving child might receive from another family member ( e.g. , an aunt or uncle) after the death of a parent also cannot be used as mitigation to reduce damages.74 In general, Florida prohibits testimony regarding the wealth or poverty of the plaintiff and defendant.75
Abrogating common law, Florida’s collateral source rule requires certain payments and benefits from sources other than the tortfeasor (e.g. , from an insurance policy) to be deducted from the economic losses,76 to prevent windfalls ( e.g., double recovery) for plaintiffs.77 However, quite a few exceptions apply. Any amount paid by the plaintiff (or the plaintiff’s family) to obtain the collateral benefit should be offset from the value of the collateral benefit that is deducted from the damages.78 Benefits for which subrogation rights and reimbursement requirements exist are excluded.79 Benefits from government sources, such as Medicare, Medicaid, and Social Security, also should not be deducted from the losses.80 This is because they are deemed not free, not unearned, and speculative.81 Other benefits and payments excluded from Florida’s collateral source rule include unemployment compensation,82 uninsured motorist benefits,83 and life insurance payments.84 Florida’s collateral source rule also addresses evidence: evidence of collateral benefits is inadmissible because it might mislead the jury on liability ( e.g. , is prejudicial) and on damages ( e.g. , to believe the plaintiff has already been adequately compensated).85 The court is to make the appropriate collateral source deductions after the trial.86
Personal Consumption Expenditures
Florida’s Wrongful Death Act requires the decedent’s personal consumption expenditures to be deducted from lost net accumulations to the estate (and, by inference, from lost support).87 The expenditures deducted are to be the decedent’s actual consumption expenditures, rather than an amount for personal maintenance to keep the decedent in health to continue working, as is specified in some other states. There may be no damages for net accumulations when the decedent’s earnings were completely exhausted on living expenses — when the decedent had no propensity to save.88
Economists may attempt to deduct an amount for personal consumption based on records of what the decedent had actually been spending on his or her living expenses. This information is frequently obtained from bank or credit card statements. However, it is often the case that historical information on a decedent’s living expenditures is unavailable, incomplete, or inaccurate. In practice, many courts and economists in Florida cases have approximated consumption expenditures as a percentage of earnings ( e.g. , 10 percent or 30 percent of earnings),89 based on computations from consumer expenditure survey data collected by the Bureau of Labor Statistics on household expenditures.90 This information is periodically published in economics journals and allows the economist to approximate the percent of total household income the decedent would have consumed, adjusting for the decedent’s gender, household size, and household income.91
It is important to adjust for household size because individuals consume a smaller portion of household income in larger households and some household consumption ( e.g. , the use of a refrigerator) is common to all household members. It is important to adjust for household income because the propensity to consume (but not the level of consumption) decreases with income. These percentages are based on total household income rather than on the decedent’s earnings because a decedent may have spent more on his or her own consumption than he or she earned, using income from other sources.92
Florida requires future losses to be discounted to present value in wrongful death and personal injury cases.93 This rule exists so that an award for damages “can be reinvested by the survivors, with the intention that when the estimated natural death of the decedent occurs the estate will equal what it would have been worth had he not died.”94 However, Florida’s statutes do not specify the method or rate to use.
In one Florida wrongful death case, the court declined to adopt a specific method for discounting to present value.95 That court discussed three methods, which presumably remain acceptable. The first method is the “case-by-case” method, when the rate used to project future wage growth and the interest rate used for present value discounting are identified and included independently. The second is the “below-market-discount” method, when the wage growth rate and the discount rate are both identified excluding inflation, so that these adjustments are made in the calculations using real values with inflation offset. The third method is the “total offset” method, when the rate of wage growth is assumed to be exactly equal to the interest rate used for discounting, resulting in no adjustments for either because the two cancel each other out. In Florida wrongful death and personal injury cases, economists have used the case-by-case method with nominal discount rates based on current long-term U.S. Treasury bonds,96 the below-market-discount method,97 the total offset method,98 and net-discount rates (when the earnings growth rate is subtracted from the nominal discount rate but the two do not completely cancel each other out) with real discount rates based on historical average earnings growth and long-term U.S. Treasury bonds.99
Rates of return are higher on riskier investments ( e.g. , stocks) than on less risky assets ( e.g. , bonds), all else equal, to compensate the investor for assuming greater risk. Many forensic economists100 but not all101 intend for those with losses to bear no risk to attain a sufficiently high rate of return to be made whole from a lump-sum payment made in the present. In turn, most economists intend to discount using the risk-free rate of return, so that those with losses are not penalized by incurring risk. Many forensic economists believe that the investment closest to being risk-free is a U.S. Treasury security, and so will use as their discount rate the rate on a three-month Treasury bill, a 10-year Treasury note, or a 30-year Treasury bond or the rates on a mix of treasuries.
Economists may base their discount rate on historical averages, current rates, or forecasted future rates. Historical averages may be made over the past 20 or 30 years or over a past period whose length mirrors the period into the future over which losses are projected. Current rates represent the rates at which a lump-sum payment could be invested today, but current rates may not accurately reflect future rates.102 Forecasted future rates are inevitably based on historical rates and are provided by economists for the Social Security Advisory Board, the Congressional Budget Office, and the Economic Report of the President.103
The discounting method an economist uses may substantially affect the amount of the economic losses. Many economists seem to agree that the discount rate is larger than the wage growth rate. For example, in periodic surveys, forensic economists report using discount rates that, on average, are at least one percentage point higher than the wage growth rates they use.104 I f so, then the total offset method will produce the largest present value for the losses because there would be no actual net discounting, and the case-by-case and below-market discount methods will result in smaller values, all else equal. Nevertheless, Florida courts have not found it to be an error for the present value of economic damages to equal the future economic value.105 One advantage of assuming these rates cancel each other out for a jury is its simplicity.
Just as future economic losses are adjusted downward to their present value to account for interest, economists may adjust past losses upward to account for interest that the injured party could have earned in wrongful death and personal injury cases. This is unlikely to be permissible in Florida. Florida awards prejudgment interest on compensatory damages in contract cases at the statutory rate from the date of the loss106 but not generally in wrongful death and personal injury cases because the amount of the damages is at the jury’s discretion ( e.g., is too speculative) and is unliquidated at the time of the trial.107 A limited exception when prejudgment interest may be awarded in personal injury and wrongful death cases for actual “out-of-pocket” costs,108 such as medical and funeral expenses, likely does not apply to lost net accumulations, loss of support, and lost earnings capacity.109 Relatedly, post-judgment interest in injury cases is awarded from the time the judgment is entered until it is paid.110
Somewhat differently, Florida’s Wrongful Death Act specifically references “interest” as part of its award for lost support (to survivors) and as part of its award for lost net accumulations to the decedent’s estate.111 This refers to awarding interest on the future savings the decedent would have had from earnings absent the death; however, interest is not to be awarded on the decedent’s past savings, since passive income accrues even after death and investment income is excluded from lost net accumulations awards.112 When applicable, prejudgment interest could be a significant amount. For example, prejudgment interest on a $1 million verdict entered two years after an incident, when compounded continuously at five percent, would equal over $105,000.
Awards for economic damages in wrongful death and personal injury cases will not be subject to taxes, but a decedent’s or injured plaintiff’s earnings would have been.113 In Florida, the taxes that likely would have been paid by the decedent are to be deducted from lost net accumulations to the estate when calculating economic losses.114 Economists have done so in Florida wrongful death cases,115 although the projected tax rates used have varied ( e.g., 3 percent116 and 25 percent117 of earnings). In Florida torts, courts are allowed but are not required to instruct juries that awards for economic damages will not be subject to federal income taxes.118 Such an instruction is discretionary in Florida.119 It seems taxes should not be deducted from economic damages for lost earnings capacity in Florida personal injury cases,120 but economists have done so.121
Florida does not require testimony from an economist to recover economic damages, though economists may be of assistance, particularly when the economic damages result from complex calculations. In the absence of an economics expert, Florida courts have overturned awards for economic damages (or remanded for further proceedings) when plaintiffs have not provided juries with sufficient information to calculate the present value of the losses122 and when plaintiffs have provided insufficient information for juries to calculate the amount of lost earnings capacity.123 Judges have encouraged counsel to provide as much evidence and specificity for damages as for liability to produce better-informed awards from the fact-finder.124
This article summarizes the stipulations and guidance provided by Florida statutes and caselaw for 10 important elements that economists typically address in their damages calculations. It is important for economists and attorneys to understand the methods and techniques that are permissible in Florida to avoid mistakes. This article explains that economic damages would likely be overestimated if personal consumption expenditures and taxes are not deducted in wrongful death cases, future losses are not discounted to present value, and prejudgment interest is added. Just the opposite, economic damages would likely be underestimated if the value of lost fringe benefits, the value of lost household services, and wage growth are not included or if economic damages from injuries to children, parents, and those not in the labor force (such as homemakers) are ignored. Appropriately addressing the damages elements summarized in this article will help ensure those injured or their survivors are made whole.
1 Fla. Stat. §766.118 (2011).
2 The $1 million cap in wrongful death medical malpractice cases was ruled unconstitutional by the Florida Supreme Court in March 2014 ( Estate of McCall v. United States, 134 So. 3d 894 (Fla. 2014)), and the corresponding cap in personal injury cases was ruled unconstitutional about a year later ( North Broward Hospital v. Kalitan, 174 So. 3d 403 (Fla. 4th DCA 2015)).
3 W.J. Kennedy, Legal Reform Advocates Not Optimistic in Advance of Med Mal Ruling at Florida Supreme Court, Florida Record
(Dec. 21, 2016), available at http://flarecord.com/stories/511060794-legal-reform-advocates-not-optimistic-in-advance-of-med-mal-ruling-at-florida-supreme-court.
4 Lloyd Dunkelberger, Rick Scott Taps Conservative Lawson for Florida Supreme Court, Orlando Weekly/New Service of Florida, Dec. 18, 2016, available at http://www.orlandoweekly.com/Blogs/archives/2016/12/18/rick-scott-taps-conservative-lawson-for-florida-supreme-court#.
5 Voluntary binding arbitration is also available in Florida medical malpractice matters. Fla. Stat. §76 6.207 (1997).
6 Fla. Stat. §768.21 (2003).
7 Fla. Stat. §768.18 (2003).
9 Fla. Stat. §768.18 (2003); Wilcox v. Leverock, 548 So. 2d 1116, 1117 (Fla. 1989).
10 Citrus County v. McQuillin, 840 So. 2d 343, 346 (Fla. 5th DCA 2003).
11 Fla. Stat. §768.18 (2003).
12 Weimer v. Wolf, 641 So. 2d 480, 481 (Fla. 2d DCA 1994); Grayson v. United States, 748 F. Supp. 854, 863 (S.D. Fla. 1990); Vildibill v. Johnson, 492 So. 2d 1047, 1048 (Fla. 1986).
13 Fla. Stat. §768.18 (2003).
14 Fla. Stat. §768.21 (2003); Estate of McCall v. United States, 663 F. Supp. 2d 1276, 1291 (N.D. Fla. 2009); BellSouth Telecomms., Inc. v. Meeks, 863 So. 2d 287, 291 (Fla. 2003).
15 Pruitt v. Perez-Gervert, 41 So. 3d 286, 289 (Fla. 2d DCA 2010); Truelove v. Blount, 954 So. 2d 1284, 1288 (Fla. 2d DCA 2007); W.R. Grace & Co.-Conn. v. Pyke, 661 So. 2d 1301, 1303 (Fla. 3d DCA 1995).
16 McElhaney v. Uebrich, 699 So. 2d 1033, 1035 (Fla. 4th DCA 1997).
17 Id. at 1035.
18 W.R. Grace & Co.-Conn., 661 So. 2d at 1302; Atlantic Coast Line R.R. v. Ganey, 125 So. 2d 576 (Fla. 3d DCA 1960).
19 Truelove v. Blount, 954 So. 2d at 1288; Auto-Owners Ins. Co. v. Tompkins, 651 So. 2d 89, 91 (Fla. 1995).
20 Colbert v. U.S., 2014 WL 11353232 at *17 (M.D. Fla. 2014); Hiatt v. United States, 910 F.2d 737, 743 (11th Cir. 1990).
21 Subaqueous Servs., Inc. v. Corbin, 25 So. 3d 1260, 1264 (Fla. 1st DCA 2010); Delta Air Lines, Inc. v. Ageloff, 552 So. 2d 1089, 1090 (Fla. 1989).
22 Kearney v. Auto-Owners Ins. Co., 2007 WL 3231780 at *2 (M.D. Fla. 2007).
23 McElhaney, 699 So. 2d at 1035.
24 U.S. Bureau of Labor Statistics, Occupational Employment Statistics (2017), available at http://www.bls.gov/oes/tables.htm.
25 U.S. Census Bureau, Personal Income Tables (2017), http://www.census.gov/data/tables/time-series/demo/income-poverty/cps-pinc.html.
26 Subaqueous Servs., Inc., 25 So. 3d at 1264.
27 Fla. Stat. §768.18 (2003).
28 Grayson, 748 F. Supp. at 863.
29 Samuels, 29 So. 3d at 1195.
30 Russo v. Lorenzo, 67 So. 3d 1165, 1167 (Fla. 4th DCA 2011).
31 U.S. Bureau of Labor Statistics, News Release, U.S. Department of Labor, Employer Costs for Employee Compensation (Sept. 2016), available at https://www.bls.gov/news.release/pdf/ecec.pdf.
33 Fla. Stat. §768.21 (2003); Fla. Crushed Stone Co. v. Johnson, 546 So. 2d 1102, 1103 (Fla. 5th DCA 1989).
34 Burch v. U.S., 2006 WL 4876954 at *17 (M.D. Fla. 2006).
35 Rumsey v. Manning, 335 So. 2d 25, 26 (Fla. 2d DCA 1976).
36 Smyer v. Gaines, 332 So. 2d 655, 660 (Fla. 1st DCA 1976).
37 Colbert, WL 11353232 at *16; Terry v. U.S., 2008 WL 619317 at *7 (M.D. Fla. 2008); Burch, WL 4876954 at *17; Miami Transit Co. v. Scott, 58 So. 2d 542, 544 (Fla. 1952).
38 Cruz v. Broward County Sch. Bd., 800 So. 2d 213, 216 (Fla. 2001); Rice v. Brown, 645 So. 2d 1020, 1021 (Fla. 2d DCA 1994); Roberts v. Holloway, 581 So. 2d 619, 620 (Fla. 4th DCA 1991).
39 U.S. v. Dempsey, 635 So. 2d 961, 965 (Fla. 1994); Brown v. Seebach, 763 F. Supp. 574, 583 (S.D. Fla. 1991).
40 Grayson, 748 F. Supp. at 862; Williams v. United States, 681 F. Supp. 763, 764 (N.D. Fla. 1988).
41 Colbert, WL 11353232 at *15.
42 Rice, 645 So. 2d 1022; Grayson, 748 F. Supp. at 863.
43 Fla. Crushed Stone Co., 546 So. 2d at 1104.
44 Colbert, WL 11353232 at *15.
45 Expectancy Data, The Dollar Value of a Day: 2014 Dollar Valuation (2015).
46 U.S. Bureau of Labor Statistics, American Time Use Survey — 2015 Results, Washington, D.C. (2016), http://www.bls.gov/news.release/pdf/atus.pdf ; U.S. Bureau of Labor Statistics, News Release, U.S. Department of Labor, Employer Costs for Employee Compensation (Sept. 2016), available at https://www.bls.gov/news.release/pdf/ecec.pdf.
47 Ageloff v. Delta Airlines, 860 F.2d 379, 382 (11th Cir. 1988).
48 Zinn v. U.S., 835 F. Supp. 2d 1280, 1309 (S.D. Fla. 2011); Delta Airlines, 552 So. 2d at 1090.
49 Griesemer v. Prathers, Inc., 413 So. 2d 68, 69 (Fla. 2d DCA 1982).
50 Bould v. Touchette, 349 So. 2d 1181, 1185 (Fla. 1977); Seaboard Coast Line R.R. Co. v. Garrison, 336 So. 2d 423, 424 (Fla. 2d DCA 1976).
51 U.S. Bureau of Labor Statistics, Employment & Earnings Online (2017), http://www.bls.gov/opub/ee/ ; U.S. Bureau of Labor Statistics, Employment Cost Index (2017), http://www.bls.gov/news.release/eci.toc.htm.
52 Social Security Administration, Social Security Trustees Report, 2016 OASDI Trustees Report, Economic Assumptions and Methods, Tables V.B1 and V.B2 (2016).
53 Zinn, 835 F. Supp. 2d at 1304; Delta Airlines, 552 So. 2d at 1090.
54 Kearney, WL 3231780 at *2.
55 Hiatt, 910 F.2d at 743.
56 Subaqueous Servs., 25 So. 3d at 1264.
57 Seaboard Coast Line R.R. Co., 336 So. 2d at 424.
58 Fla. Stat. §76 8.18 (2003); Delta Airlines, 552 So. 2d at 1092.
59 Fla. Stat. §768.21 (2003); McQueen v. Jersani, 909 So. 2d 491, 493 (Fla. 5th DCA 2005).
60 Estrada v. Mercy Hosp., Inc., 121 So. 3d 51, 54 (Fla. 3d DCA 2013).
61 Estate of McCall v. United States, 663 F. Supp. 2d at 1292; McQueen v. Jersani, 909 So. 2d at 496; Miami Transit Co. v. Scott, 58 So. 2d at 544.
62 Kearney, WL 3231780 at *2; McElhaney, 699 So. 2d at 1035; Higgins v. Kinnebrew Motors, Inc., 547 F.2d 1223, 1225 (5th Cir. 1977).
63 Zinn, 835 F. Supp. 2d at 1301; Griesemer, 413 So. 2d at 68; Higgins, 547 F.2d at 1225.
64 Hiatt, 910 F.2d at 743.
65 Gary R. Skoog, James E. Ciecka & Kurt V. Krueger, The Markov Process Model of Labor Force Activity: Extended Tables of Central Tendency, Shape, Percentile Points, and Bootstrap Standard Errors, 22 (2) J. of Forensic Economics 165-229 (2011).
66 Gearding v. Bombardier Inc., 2003 WL 26101191 at *1 (M.D. Fla. 2003).
67 Grayson, 748 F. Supp. at 863.
68 Auto-Owners Ins. Co., 651 So. 2d at 91.
69 Id.; Ketchen v. Dunn, 619 So. 2d 1010, 1013 (Fla. 2d DCA 1993); Smey, 608 So. 2d at 887.
70 Hamilton v. Melbourne Sand Transport, Inc., 687 So. 2d 27, 28 (Fla. 5th DCA 1997).
71 Volusia v. Joynt, 179 So. 3d 448, 451 (Fla. 5th DCA 2015); Truelove, 954 So. 2d at 1288; Hatfield v. Wells Bros., Inc., 378 So. 2d 33, 34 (Fla. 2d DCA 1979); Allstate Ins. Co. v. Shilling, 374 So. 2d 611, 613 (Fla. 4th DCA 1979).
72 Owen v. Morrisey, 793 So. 2d 1018, 1022 (Fla. 4th DCA 2001).
73 Smyer, 332 So. 2d at 659.
74 Cardona v. Gutierrez, 562 So. 2d 766, 769 (Fla. 4th DCA 1990).
75 Hurtado v. Desouza, 166 So. 3d 831, 835 (Fla. 4th DCA 2015); Samuels, 29 So. 3d at 1194.
76 F la. Stat. §768.76 (1999).
77 Joerg v. State Farm Mut. Auto. Ins. Co., 176 So. 3d 1247, 1249 (Fla. 2015); Goble v. Frohman, 901 So. 2d 830, 832 (Fla. 2005).
78 Fla. Stat. §768.76 (1999).
79 Id.; Joerg v. State Farm Mut. Auto. Ins. Co., 176 So. 3d at 1249.
82 Hurtado v. Desouza, 166 So. 3d at 836.
83 Progressive Select Ins. Co., v. Steeves, 2015 WL 12778341 at *2 (M.D. Fla. 2015).
84 Fla. Stat. §768.76 (1999); Russo v. Lorenzo, 67 So. 3d at 1167.
85 Joerg, 176 So. 3d at 1249; Sheffield v. Superior Ins. Co., 800 So. 2d 197, 200 (Fla. 2001); Gormley v. GTE Prods, Corp., 587 So. 2d 455, 457 (Fla. 1991).
86 Gormley, 587 So. 2d at 457.
87 Fla. Stat. §768.18 (2003); Wilcox, 548 So. 2d at 1117.
88 Citrus County, 840 So. 2d at 346.
89 Colbert, WL 11353232 at *15; Zinn, 835 F. Supp. 2d at 1309; Hiatt, 910 F.2d at 743.
90 Higgins, 547 F.2d at 1225.
91 Michael R. Ruble, Robert T. Patton & David M. Nelson, Patton-Nelson Personal Consumption Tables 2005-2006, 20 (3) J. of Forensic Economics 217-225 (2009).
92 Michael L. Brookshire & Frank L. Slesnick, Self-Consumption in Wrongful Death Cases: Decedent or Family Income?, 21 (1) J. of Forensic Economics 35-53 (2009).
93 Fla. Stat. §768.21 (2003); Florida Standard Jury Instruction 6.10; Nationwide Mut. Fire Ins. Co. v. Darragh, 95 So. 3d 897, 898 (Fla. 5th DCA 2012); W.R. Grace & Co.-Conn., 661 So. 2d at 1302; Seaboard Coast Line Railroad Company v. Burdi, 427 So. 2d 1048, 1050 (Fla. 3d DCA 1983); Seaboard Coast Line R.R. Co., 336 So. 2d at 425. In medical malpractice cases, juries are to itemize future economic losses and the number of years over which they occur, and then the court reduces to present value ( Fla. Stat. §768.77 (2003)).
94 Delta Airlines, 552 So. 2d at 1092.
96 Ageloff v. Delta Airlines, 860 F.2d at 384.
98 Plazza v. Patio Concrete Inc., 567 So. 2d 908, 909 (Fla. 2d DCA 1990).
99 Colbert, WL 11353232 at *15.
100 Gary R. Albrecht, The Need to Use Risk Free Discount Rates: A Comment, 7(1) J. of Legal Economics 92-95 (1997); Roy F. Gilbert, Forensic Discount Rates, 1(3) J. of Legal Economics 40-53 (1991).
101 Charles H. Breeden & Brian Brush, The Plaintiff as Victim and Investor: Prudent Investing and the Calculation of Economic Damages, 14(3) J. of Legal Economics 15-41 (2008).
102 Joseph I. Rosenberg & Rick R. Gaskins, Damage Awards Using Intermediate Term Government Bond Funds vs. U.S. Treasuries Ladder: Tradeoffs in Theory and Practice, 23(1) J. of Forensic Economics 1-31 (2012).
103 Social Security Administration, Social Security Trustees Report, 2016 OASDI Trustees Report (2016).
104 Michael R. Luthy, Michael L. Brookshire, David Rosenbaum, David Schap & Frank L. Slesnick, A 2015 Survey of Forensic Economists: Their Methods, Estimates, and Perspectives, 26(1) J. of Forensic Economics 53-83 (2015).
105 Waxman v. Truman, 792 So. 2d 657, 659 (Fla. 4th DCA 2001); Burgess v. Mid-Florida Serv., 609 So. 2d 637, 638 (Fla. 4th DCA 1992).
106 Argonaut Ins. Co. v. May Plumbing Co., 474 So. 2d 212, 214 (Fla. 1985).
107 Amerace Corp. v. Stallings, 823 So. 2d 110, 112 (Fla. 2002); Brown, 763 F. Supp. at 584; Leenen v. Ruttgers Ocean Beach Lodge, Ltd., 662 F. Supp. 240, 242 (S.D. Fla. 1987).
108 Alvarado v. Rice, 614 So. 2d 498, 499 (Fla. 1993).
109 In re Air Crash, 1998 WL 1770591 at *3 (S.D. Fla. 1998).
110 Amerace Corp., 823 So. 2d at 114; Easkold v. Rhodes, 632 So. 2d 146, 147 (Fla. 1st DCA 1994).
111 Fla. Stat. §768.21 (2003).
112 Delta Airlines, 552 So. 2d at 1091.
113 Estate of McCall, 663 F. Supp. 2d at 1300.
114 Fla. Stat. §768.18 (2003).
115 Colbert, WL 11353232 at *15; Griesemer, 413 So. 2d at 69.
116 Colbert, WL 11353232 at *15.
117 Zinn v. U.S., 835 F. Supp. 2d at 1310.
118 Ageloff, 860 F.2d at 390; Good Samaritan Hosp. Assoc., Inc., v. Saylor, 495 So. 2d 782, 783 (Fla. App. 1986); Gray Drugfair, Inc. v. Heller, 478 So. 2d 1159, 1159 (Fla. 3d DCA 1985); Poirier v. Shireman, 129 So. 2d 439, 442 (Fla. 2d DCA 1961).
120 Kearney, WL 3231780 at *3; Poirier, 129 So. 2d at 442.
121 Kearney, WL 3231780 at *3.
122 W.R. Grace & Co.-Conn., 661 So. 2d at 1304.
123 Pruitt, 41 So. 3d at 289; Truelove, 954 So. 2d at 1289.
124 Terry, WL 619317 at *2.
Charles L. Baum II earned a Ph.D. in economics from the University of North Carolina in Chapel Hill, N.C. He is a professor of economics and serves as an economics expert in litigation throughout the southeast. He spends time in Tennessee and Florida.