LAW 862: FORENSIC ECONOMICS: DAMAGES
Professor Ralph J. Brown, Emeritus Professor of Economics
Phone: 624-9500
Email: rbrown@usd.edu
Time: 10:00 AM Tuesday
Final Test:
Room: ULS 103
Office Hours: 11:00 Tuesday
Textbook: There is no single text for the course. I will hand out a series of materials on the first day of class. Much of the materials will be based on cases for which I will provide the cite and leave it to you to acquire. Several law review articles will also be required. Also several forensic economic journal articles will be required for which I will provide a pdf copy online.
Web Page: University: www.usd.edu/~rbrown
Business: www.ralphbrownphd.com
PURPOSE OF THIS COURSE
This is a course in forensic economics. The specific topic that will be extensively studied in this course is the economics of wrongful death and personal injury litigation. Other topics that come under the framework of forensic economics, but will not examined in this course include wrongful discharge, loss of business profits, business valuation, anti-trust, discrimination, and marital dissolution. These topics are subjects for another course. It is not my intent to make a forensic economist out of you. We already have enough of these. Rather the intent is to educate the law student so as they can best use the services of the forensic economist or how do deal with an economist when you find them working for the opposition. The student will become familiar with the basic economic principles involved in the evaluation of the damages that result from personal injury and wrongful death. Both South Dakota, 8th Circuit, and US Supreme court cases will be examined as they relate to the issues. South Dakota Jury Pattern Instructions will also be reviewed.
Your professor has had extensive experience, both good and bad, in the area of personal injury and wrongful death litigation as an expert witness. Your professor has worked in this area for 36 years and has testified in hundreds of cases and prepared thousands of expert reports. The course will be in a discussion mode and the student is encouraged to actively participate. You are encouraged to express your ideas, opinions and challenge your professor. We will have guest lecturers including prominent attorneys and vocational experts. Your professor is not trained as a lawyer but rather as an economist. So while I am familiar with most relevant cases in this area you can help your professor better understand the subtleties of the law in this regard. I look forward to this course and your participation will make the difference in how useful this course is to you in the future practice of law.
COURSE REQUIREMENTS
Attendance Policy: Attendance is required. Truancy will lead to dismissal from the course.
Grading: Class participation 40%, Case Law Project 10%, Final Test 50%.
Class Participation: I try not to lecture too much in this course and encourage student participation. In fact, your grade depends on your active involvement in the course. One thing I am going try to do is to arrange a mock trial where you will get practice in direct examination and cross-examination of the economist.
Case Law Project: Tom Ireland, a well-known forensic economist, maintains Forensic Economics web site at the University of Missouri - St. Louis. Of particular interest to us is his listing court decisions regarding forensic economics. On this website he lists cases from the United States Supreme Court, the Federal Circuits, and each of the 50 states. This list is a work in progress and it depends on the submission of these cases by forensic economists and attorneys. The 8th Circuit and South Dakota list of cases is pretty thin. There are many cases that could be reported, particularly in South Dakota. What we will do in this course is make a concerted effort to add to this list. You will organize into teams of two and start researching and writing up new cases to be added to the list. So as not to have duplicative reporting each team will send me and the class a cite of the case they plan to report. I will accept these cases in the order in which we receive your choice. We will operate iteratively one case at a time until all teams have a case and then we will start over again. I will announce the opening date at which you can start making your case choice. We operate in an iterative process until we run out of cases. If you have an interest you could report on surrounding states such as Iowa, Nebraska, North Dakota, or Minnesota as well. http://www.umsl.edu/divisions/artscience/economics/ForensicEconomics/CasesFE.html
COURSE OUTLINE
We will follow this outline. Also, see my PowerPoints attached.
I. Expert Witnesses - Their role in the court.
A. Rule 702.
B. SDCL 19-15.
C. Martino v. Park Jefferson Racing Association, Klug v. Keller.
II. Loss Standards
A. Loss to Survivors.
B. Loss to Estate.
C. State Statutes - SD, IA, MN, NE, ND, MT, WY.
III. Elements of Damages
A. Worklife and life expectancy.
B. Earning capacity loss - personal injury and wrongful death.
SD Law Review article RJB and DAJ
Stormo v. Strong, Small v. McKennan Hospital
1. Personal injury - vocational rehabilitation counselor.
Garland v. Rossknecht, Marnette v Morgan
2. Growth in earnings.
3. Time value of money - present value. Jones & Laughlin Steel v. Pfeifer,
a. Nominal method.
b. Real method.
c. Offset method. Flagtwet v. Smith,
C. Fringe benefit loss.
D. Household services loss.
E. Treatment of income taxes. Dehn v. Prouty, Erickson v. USA
E. Medical care costs - Life care plans.
F. Personal consumption - wrongful death.
G. Collateral source.
H. Special cases.
1. Farmers Byre v. Wieczorek
Litigation Economics Review article on Loss of Earning Capacity in case of
farmer see: http://nafe.net/LER/l1_1_1.pdf
2. Self-employed.
3. Retired.
4. Children.
5. Medical malpractice. Knowles v. USA
6. Hedonic damages.
I. Testimony and cross-examination - Trials of an Expert Witness, Sample Testimony.
Freedom
in learning.
Students are responsible for learning the content of any course of study in
which they are enrolled. Under Board of Regents and University policy, student
academic performance shall be evaluated solely on an academic basis and students
should be free to take reasoned exception to the data or views offered in any
course of study. Students who believe that an academic evaluation is unrelated
to academic standards but is related instead to judgment of their personal
opinion or conduct should contact the dean of the college which offers the class
to initiate a review of the evaluation.
Disability
services. Any
student who feels s/he may need academic accommodations or access accommodations
based on the impact of a documented disability should contact and register with
Disability Services during the first week of class. Disability Services is the
official office to assist students through the process of disability
verification and coordination of appropriate and reasonable accommodations. Law
students currently registered with Disability Services must obtain a new
accommodation memo each fall semester.
If
you have a disability for which you are or may be requesting an accommodation,
you are encouraged to contact Associate Dean Tom Sorensen,
Tom.Sorensen@usd.edu,
and Ernetta L. Fox, Director of Disability Services, Service Center room
119, (605) 677-6389, dservices@usd.edu,
as early as possible in the semester. For more information, see www.usd.edu/ds.
Dishonesty.
No
credit can be given for a dishonest assignment. At the discretion of the
instructor, a student caught engaging in any form of academic dishonesty may be:
a.
Given a zero for that assignment.
b.
Allowed to rewrite and resubmit the assignment for credit.
c.
Assigned a reduced grade for the course.
d.
Dropped from the course.
e.
Failed in the course.
Law
students are obligated to comply with the