The Global Damages Review: USA


The US legal system is made up of a network of at least 50 different state jurisdictions and a complex federal court system, itself with numerous different jurisdictions. As a result, approaches to compensatory damages will vary from jurisdiction to jurisdiction (and sometimes from court to court). Nevertheless, certain core principles arise across jurisdictions, which apply generally across cases.

Very generally, the goal of compensatory damages is to 'compensate' the plaintiff for a legally recognised loss caused by the defendant. Key to that compensation is that although the law will make best efforts to compensate the plaintiff entirely for his or her loss, the plaintiff should not be permitted to recover damages in excess of their loss, known as windfall damages. In determining the scope and amount of a proper compensatory damages award, courts take into consideration evidence submitted by the parties, including expert evidence in more complicated cases. And in many cases, if a plaintiff fails to clearly establish a definable injury, his or her cause of action will be dismissed in its entirety.

Other types of damages are available in US courts, such as restitution damages, equitable damages or punitive damages, dependent upon the given case. For the purposes of this chapter we have focused our discussion on general principles of law applied across the United States federal court system regarding compensatory damages. Where we have referenced law or principles arising from other jurisdictions – for example, certain noteworthy principles applied in specific state jurisdictions – we have indicated the distinction.

Quantification of financial loss

i Introduction

In the United States, the general goal of compensatory damages is 'to restore the injured party, to the extent possible, to the position that would have been occupied had the wrong not occurred'.2 In aiming to achieve that goal, different sets of circumstances necessitate unique approaches. Calculations often need to be made about the value of property, medical expenses, lost sales and lost wages. Even more complicated are the calculations necessary to compensate a plaintiff for lost future earnings, either as wages for an individual or sales for a business, or for future pain and suffering caused by a tortious injury. These varying types of damages can be demonstrated through a corresponding variety of evidence, with the court system striving to achieve the goal of placing a plaintiff in the position he or she was in or would have been in but for the defendant's wrongful conduct.

ii Evidence

Evidence for proving damages in the United States can come in the form of records, documents and testimony from witnesses and experts.3 The law of evidence is complex but it is worth noting here that in business disputes, most reliable commercial records will be admissible. In some straightforward cases, damages are 'within the common sense of the jury and do not require expert testimony'.4 For example, when assessing damages in a breach of contract case, accurate records could prove with reasonable certainty any financial loss resulting from the breach. Additionally, the plaintiff could testify about any expenses that were incurred because of the breach. In more complicated cases, however, experts may be necessary to testify about calculations derived from the evidence or other factors relevant to a damages evaluation, including, for example, relevant industry norms regarding lost wages, complicated financial projections and economics, or the value of damaged or destroyed property. These types of expert testimony evidence will be discussed further in Section III.

iii Date of assessment

The date from which damages are assessed can vary based on the type of case. In a contract case, damages are assessed from the date of breach.5 In a tort case, damages are assessed from the date of the incident giving rise to the claim (i.e., the date of the injury). That date of injury can often be different from the date of the defendant's conduct giving rise to that injury.6 For example, if a defendant is found liable for a danger to his or her property, such as a dangerous hazard at their place of business, the date of assessment would not be when the defendant caused or allowed the hazard to exist, but when the plaintiff was injured by the hazard. These dates could be days, months or even many years apart.

iv Financial projections

Financial projections become relevant when calculating damages that have not yet been incurred, but with reasonable certainty will be incurred in the future as a result of the defendant's conduct.7 For example, in contract cases, one category of damages can be the future loss of earnings or sales caused by the defendant's breach of contract. Tort cases can also involve damages constituting future loss of earnings or future pain and suffering arising from a defendant's tortious conduct. As previously discussed, these types of prospective damages typically would be demonstrated by expert witnesses who are familiar with typical sales of a business of that size in that industry, typical wage growth of someone of the plaintiff's education and skill level in their industry and geographical location, or relevant medical knowledge.8 These projections often are necessary to assist a jury in understanding the full scope of a plaintiff's damages to put the plaintiff in the position they would have been in but for the defendant's conduct. A significant limitation on projected damages is that they must be grounded in the facts and not speculative.

v Assumptions

Assumptions are rarely made in damages calculations in United States courts, regardless of the specific jurisdiction, because in most circumstances, damages must be proven as an essential element of the prima facie tort or breach of contract claim. That being said, sometimes assumptions have to be made in certain cases, such as where expert testimony is necessary to calculate future earnings. An example would be that if a plaintiff was physically injured and could no longer work in his or her prior employment, an assumption would be that he or she would have earned as much as someone of his or her education and skill in that area over an average-length career.9 This very well may not have been the case, but it is an assumption that courts and experts often make to try to put the plaintiff in the appropriate position as accurately as possible.10 Again, such assumptions must be grounded in statistics and reliable evidence and not speculative.

vi Discount rates

In cases involving future economic damages such as lost wages or profits, where the award will be given in a lump sum, calculations must discount the amounts to present value.11 The discount rate is typically some safe form of investment to properly account for the added time value of the award.12 For example, if a business proves it lost future profits over 10 years, its award will be worth its present value, plus its investment over 10 years in a low-risk income-producing bond, bank account or similar vehicle. Because the profits would have come slowly over those 10 years, the lump sum award would need to be discounted by the likely investment returns the plaintiff will (or could) make if awarded the entire lump sum immediately. This all follows from the goal of putting the plaintiff in the position he or she would have been in but for the defendant's conduct – no better, no worse.

vii Currency conversion

Courts in the United States generally award judgments in US dollars and ignore fluctuations in the value of the dollar over the course of time from the injury until the judgment. When plaintiffs allege damages in a foreign currency, many jurisdictions (20 states) have adopted the provisions of the Uniform Foreign-Money Claims Act. For example, Chapter 2337 of the Ohio Revised Code details the definitions under the Uniform Foreign-Money Claims Act, as well as when it is to be applied.13 The Act provides that awards given in foreign currency will be converted at a bank-offered rate on the day the award is paid to the plaintiff or to the official designated to enforce the judgment.14

viii Interest on damages

Pre-judgment and post-judgment interest on damages can vary greatly based on the cause of action and the forum. For example, under the Civil Rights Act of 1964, interest on backpay is statutorily excluded from being awarded.15 But under common law, pre-judgment interest was generally only allowed for liquidated damages or damages that were 'relatively certain and ascertainable by reference to established market values'.16 Different local jurisdictions are also able to implement specific rules; for example, in the state of Pennsylvania, interest is not allowed to be a part of a damages award for personal injuries.17 In New York, pre- and post-judgment interest is awarded as-of-right in many cases.18

ix Costs

Costs, or out-of-pocket damages, may be awarded along with other compensatory damages in certain circumstances. In breach of contract cases, awardable costs might include expenditure the plaintiff made in reliance on the defendant's agreement under the contract.19 In tort cases, awardable costs might be expenditure the plaintiff had to make as a result of the defendant's tortious conduct, such as the costs of medical bills or for replacing damaged or destroyed property. Costs might be discounted by mitigation principles, but they are awarded nevertheless. However, under the 'American Rule', attorneys' fees are generally not awarded to the prevailing party in litigation absent an express statutory or contractual fee-shifting provision.20 This is a major distinction from many other jurisdictions.

x Tax

In the United States, compensatory damages awarded for physical injury or physical sickness are not included as taxable income.21 Purely economic damages or those stemming from claims involving emotional distress, however, are included as ordinary taxable income.22 Additionally, interest on any award, awards for lost wages or profits, awards for emotional distress, and attorney fees and costs are all taxable as ordinary income.23 Generally, the US taxing authorities will 'look through' the litigation to determine whether the underlying claim relates to what would ordinarily be taxable income. To take a simple example, an award of lost income is generally taxable because, had the income been paid when due, it would have been taxable.

Expert evidence

i Introduction

In United States federal courts,24 the admission of expert evidence regarding all matters, including damages, is governed by the Federal Rules of Evidence. Only properly qualified experts may provide evidence on an issue in a case,25 and the rules specifically allow experts to give opinions on ultimate issues in a case, including damages.26 Very generally, courts act as gatekeepers and allow expert testimony where it is reliable and would assist the trier of fact (including a petit jury) in determining an issue in the case, including the calculation of appropriate damages.

ii The role of expert evidence in the calculation of damages

As discussed above, experts are often called upon in cases to evaluate and give opinions on the damages caused by a defendant's wrongful conduct. Often, the evaluation of relevant economic, scientific or medical issues is required to project an individual's lost future earnings, calculate a company's lost profits, determine the diminished value of a business enterprise, or calculate future pain and suffering attendant to a past injury. Over the last few decades, United States courts have encouraged the presentation of expert testimony on these (and other) issues, principally in an effort to make the job of the fact-finder easier and more dependable.27

iii The court's role excluding and managing expert evidence

Prior to the introduction of expert evidence, the court must first make threshold determinations on the expert's qualifications and the relevance of the expert's testimony to the issues in the case. Federal Rule of Evidence 702, which governs expert testimony, provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Interpreting this Rule, a series of cases from the Supreme Court of the United States govern courts' role as 'gatekeepers' to ensure that any and all expert testimony 'is not only relevant, but reliable'.28

The seminal case, Daubert v. Merrel Dow Pharmaceuticals, Inc articulated a two-prong test to assist trial judges in evaluating the admissibility of expert testimony. Daubert held that, first, '[t]he subject of an expert's testimony must be “scientific knowledge”', which ensures 'evidentiary reliability', explaining:

[t]he adjective 'scientific' implies a grounding in the methods and procedures of science. Similarly, the word 'knowledge' connotes more than subjective belief or unsupported speculation. The term applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds. Of course, it would be unreasonable to conclude that the subject of scientific testimony must be 'known' to a certainty; arguably, there are no certainties in science. But, in order to qualify as 'scientific knowledge,' an inference or assertion must be derived by the scientific method. Proposed testimony must be supported by appropriate validation – i.e., 'good grounds,' based on what is known.29

Daubert's second prong requires that the expert evidence or testimony 'assist the trier of fact to understand the evidence or to determine a fact in issue', essentially a relevancy test.30 Expert evidence or testimony that 'does not relate to any issue in the case is not relevant and, ergo, non-helpful'.31

Thus, under Daubert, a court faced with a proffer of expert evidence or testimony 'must determine at the outset . . . whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue'.32 The Supreme Court identified several factors that 'will bear on the inquiry', including whether an expert's methodology 'can be (and has been tested)' or 'subjected to peer review and publication'; 'the known or potential rate of error'; and the 'general acceptance' of the expert's methodology.33 The Supreme Court cautioned, though, that the inquiry is a 'flexible one', focused 'solely on principles and methodology, not on the conclusions that they generate'.34

Since Daubert, the Supreme Court of the United States has stated clearly, in Kumho Tire Co. v. Carmichael,35 that Daubert's 'general holding – setting forth the trial judge's 'gatekeeping' obligation – applies not only to testimony based on 'scientific' knowledge, but also to testimony based on 'technical' and 'other specialized' knowledge'.36 This includes expert testimony on damages.

Two cases are demonstrative of how the Daubert standard applies to experts asked to proffer opinions on damages. In Zenith Electronics Corp v. WH-TV Broadcasting Corp,37 WH-TV, a digital television company based in Puerto Rico, was sued by Zenith Electronics Company to collect unpaid bills for television set-top cable boxes Zenith sold to WH-TV. WH-TV filed a counterclaim, seeking to recover lost profits caused by certain alleged defects in the cable boxes it purchased from Zenith. In support of its counterclaim, WH-TV proposed to rely on the testimony of an expert that its business 'would have grown rapidly, and its profits ballooned', if Zenith's boxes has been able to perform as promised.38 On appeal, the federal appellate court affirmed the trial court's exclusion of the expert's testimony, finding the expert had failed to gather all the relevant facts and had failed to apply reliable principles and methods. Specifically, the court took issue with the expert's 'failure to look outside San Juan, even for a reality check', in collecting data for his projection; and found the expert's reliance on his own 'expertise', 'awareness' and 'industry expertise', as opposed to a specific methodology, rendered his testimony unreliable.39 Key to the court's decision was the recognition that even 'social science has tools to isolate the effects of multiple variables'.40 Because WH-TV's expert made no reference to such an 'empirical toolkit', his opinion on damages was unreliable and inadmissible at trial.41 In contrast, in Synergetics, Inc v. Hurst,42 another federal appellate court acknowledged that although the relevant methodology for calculating damages may vary, 'so long as the methods employed [by the expert] are scientifically valid', the mere disagreement that another method should be used does not warrant exclusion of the expert testimony.43 Rather, the proper way to challenge the expert's assumptions and methodologies is through cross-examination and the opposing party presenting its own expert witness as to damages.44

iv Independence of experts

Owing to the adversarial nature of the legal process in the United States, experts are chosen, prepared and paid by the litigants whom their opinions support. As a result, a question of the independence of experts (most commonly focused on their financial interest for providing the relevant opinion) is common in most litigation in which an expert opinion is necessary. For example, Judge Posner (a well-respected US jurist) has observed that '[m]any experts are willing for a generous (and sometimes for a modest) fee to bend their science in the direction from which their fee is coming'.45

To address this issue, some scholars and judges have advocated for an increased use of Federal Rule of Evidence 706, which explicitly confers on federal judges the authority to appoint experts on their own.46

v Challenging experts' credentials

Challenges to a party's expert witness are done through motions to disqualify the expert or exclude his or her testimony. Experts must offer opinions only on those issues actually within their expertise.47 Mere exposure to an area does not make one a qualified expert, and courts have excluded experts where their testimony did not arise from the experts' true areas of expertise.48 That said, standards for qualifying experts are liberal and depend on the relevant field.49

vi Novel science and methods

Prior to the Daubert decision, the admission of expert evidence regarding novel science and methods was governed by the 'general acceptance' test articulated seventy years prior in Frye v. United States.50 In determining the admissibility of evidence derived from a 'crude precursor to the polygraph machine',51 the Frye court explained:

[j]ust when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.52

In Frye, because the technology at issue had 'not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made', the evidence was excluded.53

As recognised in Daubert, Frye's 'general acceptance' test for novel science or methods was superseded by the Federal Rules of Evidence governing expert evidence and Daubert itself.54 But many other jurisdictions within the United States still use some version of the Frye standard.

vii Oral and written submissions

Expert evidence can be in the form of oral or written submissions to the court. Typically, an expert will submit evidence prior to trial in the form of a written expert opinion. That expert opinion will contain not only the articulation of the substance of the expert's opinion, but also the expert's qualifications to give that opinion and the facts referenced and methodology used to reach the conclusions contained in the expert's substantive opinion. Should the case go to trial, the expert will then give oral testimony before the fact finder, and be subject to cross-examination by counsel for the opposing party.

Recent case law

i Safe to Work Act (proposed legislation)

The facts

In July 2020, a bill was introduced to the US Senate to potentially join other major legislative actions taken in response to the global pandemic covid-19.55 The stated goal of the proposed legislation is to 'lessen the burdens on interstate commerce by discouraging insubstantial lawsuits relating to covid-19'.56 It is important to note that the legislation has not passed or been signed into law, but it remains an important development worth taking note of. Specifically, the bill caps punitive damages at the amount of compensatory damages.57

The significance

The significance of this legislation, were it to pass, is plainly that covid-19-based workplace lawsuits would have a strict cap on total damages. Legislative caps are not uncommon in the US. For example, the combined total of compensatory and punitive damages in claims under the American Disabilities Act and Civil Rights Act are capped based on the size of the employer.58 That cap too similarly aims to protect businesses by enforcing a ceiling on damages.

ii Rieger v. Giant Eagle, Inc

The facts of the case

In 2003, the Supreme Court offered some guidance on the constitutional limitations of damages awards. The Court stated, '[w]hen compensatory damages are substantial, then a lesser ratio, perhaps only equal to compensatory damages, can reach the outermost limit of the due process guarantee'.59 This 1:1 ratio was reiterated by the Supreme Court in the 2008 State Farm case.60 However, in Rieger v. Giant Eagle, an Ohio appellate court resolved a challenge to an Ohio statute that limited punitive damages to a 2:1 ratio.61 The case involved a jury award of US$121,000 in compensatory damages and US$1,198,000 in punitive damages.62 The trial court initially applied the Ohio statute, limiting the award to the 2:1 ratio, and the plaintiff argued the Ohio statute was unconstitutional as applied.63 The trial court agreed with the plaintiff, saying that the original award was not excessive and was within the confines of the purpose of punitive damages – to deter and punish.64 On appeal, the court overruled that decision, stated that the statute was constitutional and reinstated the modified 2:1 ratio award.65

The decision

Although the Ohio Court of Appeals cited State Farm, it nonetheless found that the Ohio statute's 2:1 ratio fell within what was permitted.66 The lower court had found the 2:1 ratio too restrictive in ruling it was unconstitutional (per the Ohio state constitution), and the Supreme Court's guidance in State Farm indicated that the Ohio 2:1 statutory ratio was too high. This area of the law will no doubt continue to develop.

The significance of the decision

In the United States, punitive damages go beyond mere compensation and are designed to punish the defendant for his or her tortious behaviour, and to discourage similar behaviour by others.67 The appropriate limiting ratio of punitive to compensatory damages is an area that has received much attention and continues to develop. This recent case suggests that lower courts are declining to follow, or working around, the Supreme Court's previously stated guidance.

iii Tax Cuts and Jobs Act

The facts

In 2019, the United States significantly modified its tax code when Congress passed the Tax Cuts and Jobs Act (the Act). Part of the Act reduced the number of itemised deductions (i.e., certain expenditures that could be used to lower a person's taxable income) available to taxpayers, including certain deductions taxpayers could take involving damages awards in litigation.

Since the Supreme Court's decision in Commissioner of Internal Revenue v. Banks,68 taxpayers are required to pay federal income tax on 100 per cent of all taxable damages awards,69 regardless of any contingency fees those taxpayers had to pay to their attorneys. Nevertheless, prior to the passage of the Act, taxpayers could take as a miscellaneous deduction the full amount of that contingency fee, essentially rendering that percentage of the damages award non-taxable income.

The significance

Under the recent law, taxpayers are no longer permitted to take this type of a deduction for contingency or other attorneys' fees in 2018 and beyond.70 For example, if an individual is awarded, as compensatory damages, US$100,000 in taxable damages in an applicable case, and that same individual agreed to a contingency fee with his or her attorney, which granted the attorney 40 per cent of any damages award as compensation, the individual would walk away with US$60,000 from the damages award after paying his or her attorney US$40,000 of that same award. Prior to the Act taking effect, that individual could take a deduction for that US$40,000 contingency fee, and only pay federal income taxes on the US$60,000 he or she actually received from the damages award. But under the new Act, the individual likely will have to pay income tax on the full US$100,000 damages award, regardless of how much of that award he or she was required to pay to his or her attorney.

Note, however, that the Act still is very new, and courts, regulators and businesses around the country are coping with the challenges associated with understanding, implementing and enforcing a major change in the tax code. This particular consequence for those recovering damages represents merely one way in which the law will be impacting plaintiffs in coming years. The law has drastically impacted the recoveries of some individuals, to the point of resulting in a loss of money.71 Some plaintiffs have begun to aggressively plan around this potential unjust landmine or construct settlement agreements to avoid receiving gross income on their legal fees.72

iv Aref v. Lynch

The facts of the case

Yassin Aref, Kifah Jayyousi and Daniel McGowan (appellants) were three federal prisoners who spent several years in specially designated communication management units (CMUs).73 Such a classification curtails family visits and communications with the outside world.74 Appellants argued that their designation to CMUs violated their due process rights and sought damages under the Prison Litigation Reform Act (PLRA) for a variety of injuries allegedly arising out of their confinement in CMUs, including 'loss of educational opportunity in the form of release preparation programming, reputational harm, violation of their First Amendment rights, and lasting harm to their familial relationships'.75

The decision

The court was faced with an issue of first impression for the DC Circuit: 'whether injuries that are allegedly neither mental nor emotional are compensable under the PLRA without a prior showing of physical injury'.76 The PLRA's 'Limitation on Recovery' provision states: 'No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a proper showing of physical injury.'77 The court addressed the circuit split over the applicability of Section 1997e(e) to claims, such as those at hand, which involve a constitutional violation but no physical injury.78 A majority of courts have held that Section 1997e(e) 'precludes compensatory damages for any claim that does not include physical harm'.79 These courts focus on the type of injury asserted and imply that 'a constitutional violation, absent physical harm, is necessarily a type of mental or emotional injury'.80 Other courts have taken the opposite approach, arguing that alleged constitutional violations are a type of intangible harm fully discernible from mental or emotional injury.81 The court concluded that the narrower reading of the PLRA, where a prisoner may recover compensatory damages under the PLRA if he or she can show an actual injury, separate from mental or emotional harm, was the proper one.82 Ultimately, although the court held that the appellants' claims constituted claims for actual though intangible harms that are neither mental nor emotional, they failed because the prison official was entitled to qualified immunity.83

The significance of the decision

Aref v. Lynch84 discusses the federal circuit split over the meaning of Section 1997e(e), specifically with regard to whether prisoners can sue for damages for constitutional violations absent a physical injury. Both sides of the circuit split have ultimately concluded that a prisoner's claim must be divided, either by the injury alleged or relief sought.85 Prior to the passage of the PLRA, plaintiffs bringing Section 1983 claims were required to show 'actual' injuries to recover compensatory damages.86 The PLRA shifted the requirement from an actual injury to a physical injury.87 This is a more restrictive requirement than for litigants outside prison who are able to recover for actual damages resulting from constitutional violations.88 As a result: 'Barring prisoners from compensatory damages means that prisoners . . . are not permitted to prove the actual harm that others are permitted to prove'.89

v Maverick Transportation v. US Dept of Labor

The facts of the case

In October 2003, Maverick, a trucking company, hired Albert Brian Canter as a commercial vehicle driver.90 Following his involvement in an accident, which resulted in the death of a motorist, Canter chose to resign from Maverick.91 Upon delivering his resignation, Canter was directed to drive the truck involved in the accident an additional 200 to 250 miles to Maverick's yard to return it.92 Canter refused to drive the truck because it had defects in violation of various federal safety regulations as a result of the accident.93 The truck had a chafing brake hose and leaked steering fluid, which are conditions that substantially increased the likelihood of a catastrophic failure of the service brakes.94 After Canter resigned, Maverick's fleet manager, Robert Roberson, spoke with Maverick officials about placing an 'abandonment notation' in Canter's Drive-A-Check (DAC) report.95 Such a designation negatively impacts a driver's ability to be hired, with some employers outwardly refusing to hire drivers who have an abandonment notation.96 Soon after, Canter began experiencing difficulty finding work and discovered sometime in July or August 2008 the abandonment notation in his DAC report. On 16 December 2008, Canter filed a Surface Transportation Assistance Act (STAA) complaint against Maverick, alleging retaliation.97 An administrative law judge (ALJ) held that Maverick had unlawfully retaliated against Canter.98 This decision was affirmed by the Department of Labor Administrative Review Board (ARB).99 Maverick petitioned for review, arguing that the ARB erred in, among other reasons, affirming the damages awarded by the ALJ.100 The ALJ awarded Canter US$75,000 as compensatory damages for his emotional distress.101 Maverick argued that the only evidence Canter offered of his depression was his own testimony, and most STAA cases without medical evidence result in modest awards.102

The decision

The Eighth Circuit affirmed the ALJ's award of US$75,000 as compensatory damages for Canter's emotional distress.103 The Court held that: 'A plaintiff's own testimony can be sufficient for a finding of emotional distress, and medical evidence is not necessary.'104 It also noted that the ARB makes compensatory damages awards based on the awards made in cases involving similar injuries.105 Finding that the ARB has made similar awards in other cases, the Court affirmed.106

The significance of the decision

Most of the whistleblower retaliation statutes adjudicated at the US Department of Labor, including the Sarbanes-Oxley Act whistleblower provision, authorise compensatory damages. However, the Eighth Circuit's decision, among other decisions, indicates that a whistleblower can obtain substantial compensatory damages based solely on his or her own testimony.


1 Gary J Mennitt is a partner, and Ryan M Moore and Amy M ElSayed are associates at Dechert LLP.

2 In re Methyl Tertiary Butyl Ether (MTBE) Products Liability Litigation, 643 F Supp 2d 446, 455 (SDNY 2009); See also Cooper Indus. v. Leatherman Tool Group, Inc., 532 U.S. 424, 432 (2001) (stating that compensatory damages are 'intended to redress the concrete loss that the plaintiff has suffered by reason of a defendant's wrongful conduct').

3 See Stearns' Properties v. Trans-World Holding Corp, 492 F Supp. 238, 242–45 (D Nev 1980) (discussing evidence for proving damages).

4 See Cummings v. Standard Register Co, 265 F3d 56, 67 (1st Cir 2001) (discussing determinations of front pay damages under Massachusetts law).

5 First Federal Lincoln Bank v. US, 518 F3d 1308, 1316 (Fed Cir. 2008).

6 See Culver v. Slater Boat Co, 722 F2d 114, 117 (5th Cir 1983) (calculating damages from the time of injury).

7 See Barnes v. U.S., 685 F2d 66, 70 (1982) ('[W]e must remember that the ultimate total damage figure awarded is the sum of a series of predictions, none of which involves mathematical certainty, and that it is the reasonableness of the ultimate figure that is really the issue . . . .') (quoting United States v. Furumizo, 381 F2d 965, 970 (9th Cir, 1967)).

8 See Energy Capital Corp v. US, 302 F.3d 1314, 1330–34 (Fed Cir 2002) (discussing expert testimony in calculating loss of future profits); Jones & Laughlin Steel Corp v. Pfeifer, 462 US 523, 533 (1983) (discussing assumptions in calculating loss of future wages); Norcia v. Dieber's Castle Tavern, Ltd, 980 F Supp 2d 492, 505 (SDNY 2013) (discussing the use of actuarial tables to project life span in calculating compensation for pain and suffering under New York law).

9 See Jones & Laughlin Steel Corp v. Pfeifer, 462 US 523, 533 (1983) (noting that '[i]n calculating damages, it is assumed that if the injured party had not been disabled, he would have continued to work, and to receive wages at periodic intervals until retirement' (emphasis added))

10 See id. at 533–34. ('The lost [wage] stream's length cannot be known with certainty . . . Given the complexity of trying to make an exact calculation, litigants frequently follow the relatively simple course of assuming that the worker would have continued to work up until a specific date certain. In this case, for example, both parties agreed that the petitioner would have continued to work until age 65 (12.5 more years) if he had not been injured.')

11 State of Kan. v. State of Colo., No. 105, 2000 WL 34508307, at *18 (U.S. Aug. 31, 2000) ('The purpose of discounting future damages to a present value is to allow a court to award damages as a lump sum rather than ordering a defendant to pay damages as they occur') (citing Jones & Laughlin Steel Corp v. Pfeifer, 462 US 523, 536-37 (1983)).

12 Dunn, R L & Harry, E P, 'Modeling and Discounting Future Damages', Journal of Accountancy (2002).

13 23 Ohio Rev Code Section 2337.

14 Uniform Foreign Money-Judgments Claims Act, 13 ULA 23 (1989).

15 42 USC Section 1981a(b)(2) ('Compensatory damages awarded under this section shall not include backpay, interest on backpay . . .').

16 See General Motors Corp v. Devex Corp, 461 US 648, 652 n5 (1983); Rau v. Apple-Rio Management Co, 85 F Supp 2d 1344, 1349 (N D Ga 1999), aff'd, 251 F3d 161 (11th Cir 2001).

17 W D Rubright Co v. International Harvester Co, 358 F Supp 1388, 1395 (W D Pa 1973).

18 NY CPLR Subsection 5001, 5002 (2018); see Mahoney v. Brockbank, 35 N.Y.S.3.d 459, 460 (2d Dep't 2016) (discussing that under New York law, the right to interest on damages is created by statute and explaining that the 'rationale for awarding interest on damages' is to award Plaintiff the 'cost of having the use of another person's money for a specified period.').

19 See Energy Northwest v. US, 641 F3d 1300, 1309 (Fed Cir 2011) (noting that '[a] plaintiff is entitled to recover costs that were caused by the defendant's breach . . . so long as the cumulative result is a reasonable certainty that the awarded costs were actually caused by the breach').

20 See Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 247-254 (1975) (outlining the history of the American Rule, noting that '[i]n the United States, the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys' fee from the loser').

21 Publication 525, 'Taxable and Nontaxable Income', Internal Revenue Service, p. 19 (2017).

22 id. at 29; see infra note 54.

23 id.

24 Because of the variation of treatment of expert witnesses and their ability to testify as to damages in a given case among United States jurisdictions, we focus our discussion on the rules applicable to cases in United States federal courts. Note, however, that even within the federal system, treatment may vary across federal courts in different jurisdictions. Nonetheless, as discussed in Section I, we have framed the discussion around core principles generally uniform across jurisdictions.

25 See Federal Rule of Evidence 702.

26 See Federal Rule of Evidence 704.

27 4 J Weinstein & M Berger, Weinstein's Federal Evidence, Section 703.03[1] (2d ed 2006) (economics experts may 'assist the trier of fact to understand the facts already in the record, even if all it does is put those facts into context').

28 Daubert v. Merrel Dow Pharma, Inc, 509 US 579, 589 (1993); see also Swierczynski v. Arnold Foods Co, Inc., 265 F.Supp.2d 802, 811 (E.D. Mich. 2003) (determining that an expert's use of historical performance was a 'sufficiently reasonable basis for the computation of lost profits' but rejecting the admission of expert analysis of lost equity interest because it was based on market comparisons which were not based on 'sufficient facts or data' to satisfy Rule 702's reliability requirement).

29 Daubert, 509 U.S. at 589–90.

30 id. at 591.

31 ibid.

32 id. at 592.

33 id. at 592–94.

34 id. at 594–95.

35 526 US 137 (1999).

36 Kumho Tire Co, 526 US at 141.

37 395 F3d 416 (7th Cir 2005) (Easterbrook, J).

38 Zenith Elec Corp, 395 F3d at 417–18.

39 id. at 418–19.

40 id. at 419.

41 ibid. Note, however, that an opinion based on experience alone is not per se disqualifying. In certain fields, experience is the predominant basis for reliable expert testimony, as long as the expert is able to testify as to the methodology used to come to the relevant conclusion. See, e.g., United States v. Jones, 107 F3d 1147 (6th Cir 1997) (handwriting expert with years of practical experience and extensive training who explained methodology in detail); Tassin v. Sears Roebuck, 946 F Supp 1241, 1248 (MD La 1996) (engineer's testimony can be admissible as expert opinion where 'based on facts, a reasonable investigation, and traditional technical/mechanical expertise', and the expert 'provides a reasonable link between the information and procedures he uses and the conclusions he reaches').

42 477 F3d 949 (8th Cir 2007).

43 Synergetics, Inc, 477 F3d at 956.

44 ibid.

45 Indianapolis Colts, Inc v. Metro Balt Football Club Ltd P'ship, 34 F3d 410, 415 (7th Cir 1994).

46 See, e.g., J Gregory Sidak, Court-Appointed Neutral Economic Experts, 9(2) J of Competition Law & Econ 359 (2013).

47 See, e.g., Smith v. Hobart Mfg Co, 185 F Supp 751, 756 (ED Pa 1960) ('something more than the self-serving statement of the expert should be required to qualify him').

48 See, e.g., United States v. Kelly, 6 F Supp 2d 1168, 1184 (D Kan 1998) (disqualifying expert because, inter alia, 'the court's impression is that [the expert's] qualifications are largely a matter provable only through his own opinion of himself'); Diaz v. Jonson Matthey, Inc, 893 F Supp 358, 363 (DNJ 1995) (excluding expert's testimony where expert was not qualified in relevant subject area and based his 'expertise' on reading articles on the subject matter prior to giving opinion).

49 See, e.g., Santos v. Posadas de PR Assocs, Inc, 452 F3d 59, 63-64 (1st Cir 2006) (holding that a mechanical engineer with no expertise in the construction or design of pools was an expert qualified to opine on dangerous conditions of a pool which led to Plaintiff's fall because of expert's experience in dealing with friction and the application of friction and his previous professional analysis of over 2,000 slip-and-fall incidents); Cedar Lodge Plantation, L.L.C. v. CSHV Fairway View I, L.L.C., 753 F. App'x 191, 195 (5th Cir. 2018) (finding that the district court erred in excluding an expert's testimony because 'an expert witness is not strictly confined to his area of practice, but may testify concerning related applications') (citing United States v. Wen Chyu Liu, 716 F.3d 159, 168-69 (5th Cir. 2013)).

50 54 App DC 46, 472, 293 F 1013, 1014 (1923).

51 Daubert, 509 US at 585.

52 Frye, 54 App DC at 47, 293 F at 1014.

53 ibid.

54 Daubert, 509 US at 587.

55 Safe to Work Act of 2020, S. 4317, 116th Cong. §2 (2020).

56 id.

57 See id.

58 42 U.S.C. § 1981a(b).

59 State Farm Mut Auto Ins Co v. Campbell, 538 US 408, 425 (2003).

60 See Exxon Shipping Co v. Baker, 554 US 471, 514-15 (2008).

61 Rieger v. Giant Eagle, Inc, 103 NE 3d 851 (Ohio Ct App 2018).

62 id. at 854.

63 id. at 855–56.

64 id. at 856.

65 id. at 861.

66 id. at 859–60.

67 See Morgan v. Woessner, 997 F.2d 1244, 1256 (9th Cir. 1993) (finding jury instructions which described the role of punitive damages as damages 'not to compensate the plaintiff, but punish the defendant and deter the defendant and others from such conduct in the future' to be adequate).

68 See Commissioner of Internal Revenue v. Banks, 543 US 426 (2005).

69 See supra at note 18, p. 19; 29 for discussion of taxable versus non-taxable damages awards.

70 Tax Cuts and Jobs Act, Pub L No. 115-97, Section 11045 (2017).

71 See Spina v. Forest Preserve District of Cook County, 207 F. Supp. 2d 764 (N.D. Ill. 2002), as reported in 2002 National Taxpayer Advocate Report to Congress, at 166; see also Adam Liptak, Tax Bill Exceeds Award to Officer in Sex Bias Case, N.Y. Times, Aug. 11, 2002, at 18.

72 Wood, R., American Bar Association, 'New Taxes on Plaintiff Gross Recoveries, Not Net After Legal Fees' (Nov. 7, 2019) (noting that certain legal fees remain deductible, including legal fees associated with civil rights, employment, disability and housing discrimination cases).

73 Aref v. Lynch, 833 F3d 242, 246-48 (DC Cir 2016).

74 id. at 246.

75 id. at 262.

76 ibid.

77 42 USC Section 1997e(e).

78 Lynch, 833 F3d at 262.

79 id.

80 id. at 263.

81 ibid.

82 id. at 263–66.

83 id. at 269.

84 833 F3d 242 (DC Cir 2016).

85 Eleanor M Levine, 'Compensatory Damages Are Not for Everyone: Section 1997e(e) of the Prison Litigation Reform Act and the Overlooked Amendment', 92 Notre Dame Law Review.

86 ibid.

87 ibid.

88 ibid.

89 ibid.

90 Maverick Transp, LLC v. US Dep't of Labor, 739 F3d 1149, 1151 (8th Cir 2014).

91 ibid.

92 ibid.

93 ibid.

94 ibid.

95 id. at 1152.

96 ibid.

97 ibid.

98 ibid.

99 id. at 1153.

100 ibid.

101 id. at 1157.

102 ibid.

103 id. at 1158.

104 id. at 1157.

105 ibid.

106 id. at 1158.

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