In a civil action for personal injuries in Virginia, the plaintiff has the burden of proving his damages with reasonable certainty. Similarly, when a parent brings a claim on behalf of his minor child for injuries suffered by the child, the parent has the burden of proving those damages. One such claim available to a parent of an injured child is the claim of lost future earnings or for diminution of earning capacity of the child. For more than two decades, parents have found this to be a difficult claim to prove given the need to get over the “reasonable certainty” hurdle, especially when their children had neither work histories nor professional skills to offer as proof. For example, a mother of a two-year-old girl would need to prove “with reasonable certainty” the earning capacity that her child would have had enjoyed had it not been for her brain injury. As one can imagine, such a hurdle seems impossible.
Recently, however, a federal district court in Virginia ruled that such a hurdle is surmountable. In the very recent case of
Musick v. Dorel Juvenile Group, Inc., a family sued on behalf of their five-year-old daughter who suffered a traumatic brain injury in a motor vehicle accident. When considering the lost income capacity aspect of the claim, the judge acknowledged the seemingly speculative nature of such claims. He, then, noted that Virginia allows such a claim if the evidence provided relates to facts and circumstances personal to plaintiff rather than a reference to averages and statistics. The experts who testified on behalf of the family, according to the judge, were able to adequately personalize the claims. While it remains to be seen if a jury will be as convinced as the judge that the present value of the five-year-old’s lost earning capacity ranges from $576,000 to $1,195,074, the young girl’s family has surpassed a giant hurdle in the case.