On May 16, 2003, nine divers made the second dive of the day near the Cocos Islands. The site lay about 300 miles off the coast of Costa Rica. The divers were passengers on a ten-day cruise aboard the OKEANOS AGGRESSOR. Several allegedly cut the dive short because of turbulent conditions. Fifty minutes in, seven of the nine were back on the skiff. Israel Ostrowiecki and Bruce Rubin were not.
The skiff searched for 45 minutes. The vessel called off its search at about 2:00 a.m. the next day. Both men disappeared at sea.
Ostrowiecki's family sued. Each side retained an economist to measure what his death cost the family.
That is the work of forensic economics. These experts measure financial loss for a court. They project lost earnings, lost family support, and the cost of future care. They then reduce those future sums to a present value. Courts hear from them because a jury must turn an injury or a death into a number. That number depends on wages, work life, growth rates, and interest rates.
This article reviews five rulings, from 1989 to 2025, in which courts admitted an economist's testimony over a challenge.
Where Forensic Economists Appear in Litigation
The five cases began in very different places. One started in a grocery store aisle in Henrico County, Virginia. One followed a car crash in Nevada. One arose when a cable snapped on a rowing machine at an Arizona gym. One concerned two divers lost at sea. The fifth was brought by parents on behalf of a child identified in the record as Z.H.
The economists did not address fault. In the Arizona case, the parties had stipulated that the cable failed because of the Defendant's acts or omissions. Only causation and damages remained for trial.
They estimated what a person would have earned over a working life and how much of that was lost. They valued household services a person could no longer perform. They calculated lost family support and the cost of future care. In the Nevada case, the economist also valued the loss of enjoyment of life, known as hedonic damages.
The inputs were familiar: past earnings, work-life expectancy, wage growth, and a discount rate. The data came from sources such as Census Bureau income figures, the Consumer Price Index, and U.S. Treasury yields.
The challenges followed a pattern too. Defendants argued that an economist was offering views that belonged to a physician or a vocational expert. They argued that a plaintiff's work history was too thin to support a projection. They attacked specific choices, such as the years of data behind a growth rate. In two cases, Defendants also argued that the testimony would mislead the jury.
Plaintiffs brought challenges as well. In the dive case, they argued that the defense economist left out losses they claimed. They also faulted his reliance on tax returns.
The Rulings
Clark v. Chapman: An Economist's Figures on a Thin Work History
Clark v. Chapman, Supreme Court of Virginia, Record No. 881017, decided November 10, 1989.
On April 7, 1986, Dorothy Ann Chapman was shopping at a Winn-Dixie grocery store in Henrico County, Virginia. A store employee, John Clark, pushed a loaded produce cart into her left hand. Chapman sued Clark and his employer. A jury returned a $290,000 verdict for her, and Clark appealed.
Her orthopedic surgeon testified that she had a 30 percent permanent disability in the use of her left arm. After the injury, she worked six weeks in a hotel laundry room and stopped because of pain.
Plaintiff's economist calculated two figures. For lost income before trial, he multiplied the days she would have worked by the minimum wage. That produced $11,246. He subtracted $730 she had earned since, for a total of $10,516.
For future income, he reviewed reports from three of her health care providers and information from her rehabilitation expert. He assumed 40 hours a week at the minimum wage of $3.35 an hour. He used a remaining work life of a little over 11 years. He trimmed the weekly figure by 3.6 percent. That was the gap between average annual wage growth of 4.7 percent and a discount rate of 8.3 percent.
He then cut another 13 percent. The rehabilitation expert had testified that Chapman could still compete for about 13 of every 100 jobs. His future loss came to $44,710.
Clark argued that Chapman's work history was so sketchy that any calculation was speculation. He argued that she might have left the hotel job anyway. He also argued that the future figure rested on assumptions with no basis in fact.
The Court rejected each argument. On the pre-trial figure, it called Clark's position nothing more than his view of the evidence. Chapman had testified that she would not have left the job but for her injury. That conflict was for the jury.
On the future figure, the Court found that the economist "took the jury step by step through his calculations, informing the jury at each stage of the data on which he relied." It held that the record supported the testimony.
Clark also argued that the economist ignored the prospect of rehabilitation counseling. The Court did not consider that point, because Clark had not raised it at trial.
Clark argued that $55,226 of the $63,475.89 in special damages rested on the economist's testimony. The Court held that the lost-income component was properly before the jury. It found that the verdict did not shock its conscience and affirmed the judgment.
Two of the seven justices dissented. They would have held the testimony too speculative because of Chapman's sparse work history.
Ostrowiecki v. Aggressor Fleet: A Defense Economist's Choices Went to Weight
Ostrowiecki v. Aggressor Fleet, Ltd., U.S. District Court for the Eastern District of Louisiana, Civil Action No. 07-6598, decided August 5, 2008.
Israel Ostrowiecki's family filed suit on November 5, 2003, in Orleans Parish Civil District Court. They sued several Aggressor companies, the vessel's owner, and others. They alleged negligence, breach of contract, and misrepresentation. In 2007, they added an alternative claim under the Death on the High Seas Act.
Defendants retained a consulting economist to calculate the family's loss. The ruling does not describe his credentials. He calculated loss of support. He valued the annual compensation and benefits the family drew from Ostrowiecki's company at $13,644. Defendants said that figure came from his income tax returns. He did not calculate a loss of inheritance.
Plaintiffs moved to exclude him. They argued that he should have calculated lost inheritance. They said he wrongly assumed that Ostrowiecki's minor daughter lived with him full time. They said he ignored evidence that the company subsidized Ostrowiecki. They also faulted him for leaving out a loss from the sale of half the company.
The Court denied the motion. On inheritance, the economist had explained his reasons. Ostrowiecki left no will, his income information was unclear, and his personal share of company earnings was hard to separate. The Court found that Plaintiffs had not shown this reasoning was unsound.
On support, Defendants conceded the residence error but argued that it raised the loss figure. The economist had also admitted that he did not know of Ostrowiecki's child support payments. The Court said the accuracy of his figures may be at issue. Those points could be tested through vigorous cross-examination.
On the tax returns, Defendants said economists typically treat them as the most reliable documentation of income. The Court held that the choice of documents goes to the credence of the testimony. It added that "an expert's refusal to rely upon unsubstantiated testimony or corporate income and spending patterns does not render his opinion unreliable or unsound."
On the sale of the company, the Court found that the report had addressed the issue and dismissed it as irrelevant. The report, it said, "merely expresses a different opinion, supported by an alternative economic model."
The economist was cleared to testify. In the same order, the Court also denied Defendants' motion to exclude Plaintiffs' economist. It held that questions about the basis of her opinions went to their credibility.
Hutchens v. Abbott Laboratories: Earnings for a Child Who Had Never Worked
Hutchens v. Abbott Laboratories, Inc., U.S. District Court for the Northern District of Ohio, Case No. 1:14CV176, decided December 22, 2016.
Kevin and Christin Hutchens sued Abbott Laboratories, Inc. and AbbVie, Inc., individually and on behalf of their child, Z.H. Plaintiffs planned to call an economist on Z.H.'s lost earning capacity and future medical costs.
Z.H. had never worked, so the economist built three projections based on education. With a four-year degree, the loss was $7,800,809 working to age 67. To his statistical work-life expectancy, it was $6,431,118. With some college, the figures were $4,771,592 and $3,707,654. With a high school diploma, they were $3,279,067 and $2,525,823.
He put the present value of future care at $6,844,476, using a life care plan from another of Plaintiffs' experts.
He used Census Bureau income data for 2003 through 2013 to set growth rates and project base incomes for 2015. After 2015, he applied assumed growth rates. Plaintiffs said these ran from 1 to 2 percent, depending on education. For the discount rate, he used the real yield curve for U.S. Treasury Bills on January 21, 2015. For future care, he used the Consumer Price Index and a higher growth rate for medical items.
Defendants moved to exclude both opinions as speculative and arbitrary. At deposition, he had called his choice of the 2003 to 2013 period arbitrary. Defendants argued that his 2 percent growth rate rested only on his own experience. They called a single day's Treasury yields arbitrary. They said he never explained his growth rates for future care.
The Court denied the motion. It started from the nature of the claim: "there must, by necessity, be some speculation when attempting to calculate loss of earning capacity for someone who has never worked." It relied on Scanlan v. Sunbeam Products, a 2015 federal ruling from Kentucky that admitted statistical projections for a young child.
On the time period, the Court accepted his explanation. He had used the most recent ten years of data. He testified that data from the 1950s and 1970s was less relevant. The Court found that the Census statistics gave a solid basis for the opinion. Defendants could cross-examine him on the choice.
On the growth rate, the Court found support in his experience and the economic studies he consulted. He had explained that incomes rise in steps with age and that earnings curves shift upward over time.
The Court also held that Treasury yields from one date were a reliable basis for the discount rate. No party argued that using Treasury Bills was itself improper. The choice of a single date was for cross-examination.
On future care, the Court found that he relied on accepted data and explained his figures.
Lemperle v. Avis Rent-A-Car Systems: Hedonic Damages Reached the Jury
Lemperle v. Avis Rent-A-Car Systems, U.S. District Court for the District of Nevada, Case No. 2:18-CV-202 JCM (DJA), decided January 2, 2020.
Rebecca Lemperle alleged that a driver, Vincent Tjota, crashed into her on April 30, 2016. He disputed liability and argued that she was speeding. She alleged injuries to her shoulders, back, and other parts of her body that may be permanent. She sued for negligence and negligence per se.
Plaintiff's economist offered four opinions. He addressed lost wages and benefits, lost household services, and future life care costs. He also valued the reduction in the value of her life, known as hedonic damages.
Tjota moved to strike the testimony. He focused on household services, future wage loss, and hedonic damages. He argued that the method was speculative and unreliable, that it would mislead the jury, and that it was unfairly prejudicial.
Tjota did not dispute the economist's qualifications. The Court noted that his work had been published in peer-reviewed academic journals. His theories appear in textbooks relied on by universities across the country. The Court acknowledged that some economists disagree with his conclusions. It still found that his method "has a strong following in the field."
The parties agreed that Nevada law allows hedonic damages. The Court quoted the Nevada Supreme Court's 2004 decision in Banks v. Sunrise Hospital. Banks described a split over whether experts may value hedonic loss. The Nevada court had sided with the jurisdictions that allow it.
The Court denied the motion. It held that Tjota's objections went to weight, not admissibility. He could cross-examine the economist on his method and on how he applied the facts. The jury could accept or reject the conclusions.
The Court found the hedonic testimony helpful. Without it, the Court reasoned, "the jury's award of hedonic damages would likely be arbitrary." Economists differ on how to value a human life. The Court found, however, that the willingness-to-pay approach is widely used by economists to value everyday risks.
Fayad v. Life Time: An Economist Who Assumed the Impairment
Fayad v. Life Time Inc., U.S. District Court for the District of Arizona, No. CV-22-01352-PHX-SPL, decided January 24, 2025.
On February 18, 2021, Wissam Fayad was using a seated row machine at a Life Time gym in Gilbert, Arizona. He alleged that the cable snapped and that he fell backward, striking his head and neck. He and his wife sued for strict products liability and negligence.
The parties later stipulated that the cable failed because of Life Time's acts or omissions. Life Time disputed the extent of the injuries. It denied that Plaintiffs suffered any economic damages.
Plaintiffs' economist was to testify on Dr. Fayad's lost earning capacity as Director of Life Care Centers of America. His opinion assumed that Dr. Fayad could no longer work in that role. His reports identified his information and assumptions and explained his calculations. He revised them as discovery went on.
Life Time moved to exclude him. It argued that a medical doctor, compensation expert, or vocational expert was needed, not an economist. It argued that he lacked information on Dr. Fayad's impairment. It said his assumptions ignored Dr. Fayad's work history, capabilities, and efforts to mitigate. It also argued under Rule 403 that the testimony would mislead the jury.
After the final pretrial conference on November 21, 2024, the Court asked for supplemental briefing on his qualifications. It then denied the motion.
The Court found him qualified. He held several advanced degrees in mathematics and finance. He had significant work experience in economics, finance, and mathematics. His work on economic damages in personal injury cases had appeared in the Journal of Forensic Economics. The same Court had accepted his testimony on similar issues before.
It also found his method reliable and generally accepted in the field. It rejected the argument that he needed medical or vocational credentials. He was not expected to testify on whether Dr. Fayad could physically return to work. The Court noted that opinions based on data provided by others are admissible. Questions about mitigation went to weight.
On Rule 403, the Court noted that Life Time could cross-examine him and planned to call its own economist. With both experts before the jury, it found "the risk of unfair prejudice or misleading the jury is slim."
What the Rulings Have in Common
In Fayad and Lemperle, the courts looked at what the economist had published. The Fayad Court cited advanced degrees, a journal article, and prior acceptance by the same Court. In Lemperle, qualifications were undisputed, and the Court pointed to peer-reviewed work and textbook use.
The courts accepted the standard structure of an economic loss analysis. Each economist started from an earnings base or a cost. He projected it over a work life or a lifetime, applied a growth rate, and discounted the result to present value.
Explaining each step mattered. The Clark Court relied on the economist walking the jury through his figures and data. In Fayad, the reports identified their assumptions. In Hutchens, the economist gave reasons for his data window, even after calling it arbitrary.
Several courts let an economist calculate a loss on a premise the jury may or may not adopt. The Fayad economist assumed that Dr. Fayad could no longer work in his role. The Hutchens economist offered three education scenarios. The Clark economist tied his reduction to the rehabilitation expert's job figures. In each, the premise came from other evidence or was left open.
Every court sent disputes over specific inputs to cross-examination. In Hutchens, that meant the data window and the single-day yield. In Ostrowiecki, it meant the missing child support and the tax returns. In Fayad, it meant mitigation. In Clark, whether the plaintiff would have kept her job was for the jury.
The courts also asked whether the testimony would help the jury. In Lemperle, the Court found that a hedonic award would likely be arbitrary without it. In Hutchens, the Court warned that excluding such projections would prejudice the most vulnerable plaintiffs.
Practical Points for Attorneys
The line between economics and medicine came up directly in Fayad. The economist did not say that Dr. Fayad was impaired. He assumed it and valued the result, and the Court found no need for medical credentials. The medical premise then has to come from other evidence. In Clark, it came from the orthopedic surgeon and the rehabilitation expert.
A thin work history did not defeat the testimony in these rulings. Clark admitted figures for a plaintiff with a sparse record. Hutchens admitted figures for a child with none. Both rulings turned on whether the economist explained each step and tied it to data. The Clark dissent shows that the same facts can draw a different view.
Data choices are best explained before the motion is filed. In Hutchens, the economist called his time period arbitrary at deposition. The motion still failed, because he also gave a reason for using the most recent data.
For the opposing side, these rulings show where a challenge tends to land. Missing documents, a contested income source, and mitigation were all sent to cross-examination. In Fayad, the Court also noted that the Defendant planned to call its own economist.
Hedonic damages depend on state law. In Lemperle, both sides agreed that Nevada allows them. The Lemperle Court also noted that denying a motion in limine does not necessarily mean all of the evidence comes in.
Objections need to be preserved. In Clark, the Court would not consider an argument that Clark raised for the first time on appeal.
Final Notes
The five rulings span 1989 to 2025. Four involved economists retained by plaintiffs, in claims over an injured hand, a car crash, a gym injury, and a child's lost earning capacity. One involved a defense economist in a death at sea.
In each, the opposing side attacked an assumption, a data choice, or a credential. In each, the Court let the economist testify. The Virginia verdict stood on appeal. The other four rulings sent the economist's figures, and the disputes over them, toward trial.
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