A Limitation on Future Lost Wage Claims
By: Jamí L. Lacour
In Barto v. Shore Const., L.L.C., 801 F. 3d 465 (U.S. App. 5 Cir. 2015), the United States Court of Appeals for the Fifth Circuit recently held that damages for future lost wages are to be calculated based upon a statistical work-life expectancy age. A deviation from the statistical standard is allowed only where plaintiff-specific evidence is offered to prove that the plaintiff is likely to both live and work longer than this statistical average by virtue of the plaintiff’s health, life plans, occupation or other factors. The Barto ruling was applied by the Fifth Circuit in Deperrodil v. Bozovic Marine, Inc. 842 F.3d 352 (5th Cir. 2016), wherein expert testimony was used to establish that the plaintiff did not merely desire to work past the statistical work-life expectancy age, but it was “very reasonable” that the plaintiff would exceed the average work-life expectancy by three years based upon his work history, earning records, medical history, recommendation for future medical treatment, and a specific agreement Plaintiff has with his wife to work until the age of 75. In Deperrodil, the plaintiff was of an advanced age at the time of his injury and only proposed a minimal deviation from the standard age to a specific and defined age, which he would soon attain. Based upon the facts of these two cases, it appears that a younger plaintiff faces a heavier burden to prove that he is likely to both live and work past the statistical average, warranting a deviation. Future applications of Barto will further define the parameters within which a deviation from the statistical work-life expectancy is permitted.
Barto v. Shore Const., L.L.C., 801 F. 3d 465 (U.S. App. 5 Cir. 2015)
Deperrodil v. Bozovic Marine, Inc. 842 F.3d 352 (5th Cir. 2016)
Davidson Meaux is providing this legal update for informational purposes only. This article should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. You should consult your own attorney concerning your particular situation and any specific legal questions you may have.