CACI 3903D Lost Earning Capacity (Economic Damage)

New September 2003; Revised April 2004, April 2008, May 2017, November 2020

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This instruction is not intended for use in employment cases.

Use this instruction along with CACI No. 3906, Lost Earnings and Lost Earning Capacity—Jurors Not to Reduce Damages on Basis of Race, Ethnicity, or Gender (Economic Damage).

If lost profits are asserted as an element of damages, see CACI No. 3903N, Lost Profits (Economic Damage).

If there is a claim for both lost future earnings and lost earning capacity, give also CACI No. 3903C, Past and Future Lost Earnings (Economic Damage). The verdict form should ensure that the same loss is not computed under both standards.

In the last paragraph, include the bracketed sentence if the plaintiff is of sufficient age that reasonable probabilities can be projected about career opportunities.

•Estimations, Measures, or Calculations of Past, Present, or Future Damages. Civil Code section 3361.

•“Before [lost earning capacity] damages may be awarded, a jury must (1) find the injury that the plaintiff sustained will result in a loss of earning capacity, and (2) assign a value to that loss by comparing what the plaintiff could have earned without the injury to what she can still earn with the injury.” (Licudine v. Cedars-Sinai Medical Center (2016) 3 Cal.App.5th 881, 887 [208 Cal.Rptr.3d 170].)

•“Loss of earning power is an element of general damages which can be inferred from the nature of the injury, without proof of actual earnings or income either before or after the injury, and damages in this respect are awarded for the loss of ability thereafter to earn money.” (Connolly v. Pre-Mixed Concrete Co. (1957) 49 Cal.2d 483, 489 [319 P.2d 343].)

•“Because these damages turn on the plaintiff’s earning capacity, the focus is ‘not [on] what the plaintiff would have earned in the future[,] but [on] what she could have earned.’ Consequently, proof of the plaintiff’s prior earnings, while relevant to demonstrate earning capacity, is not a prerequisite to the award of these damages, nor a cap on the amount of those damages. Indeed, proof that the plaintiff had any prior earnings is not required because the ‘vicissitudes of life might call upon [the plaintiff] to make avail of her capacity to work,’ even if she had not done so previously.” (Licudine, supra, 3 Cal.App.5th at pp. 893–894, internal citations omitted.)

•“Such damages are ‘… awarded for the purpose of compensating the plaintiff for injury suffered, i.e., restoring … [her] as nearly as possible to … [her] former position, or giving … [her] some pecuniary equivalent.’ Impairment of the capacity or power to work is an injury separate from the actual loss of earnings.” (Hilliard v. A. H. Robins Co. (1983) 148 Cal.App.3d 374, 412 [196 Cal.Rptr. 117], original italics, internal citations omitted.)

•“[T]he jury must fix a plaintiff’s future earning capacity based on what it is ‘reasonably probable’ she could have earned.” (Licudine, supra, 3 Cal.App.5th at p. 887.)

•“A plaintiff’s earning capacity without her injury is a function of two variables—the career(s) the plaintiff could have pursued and the salaries attendant to such career(s).” (Licudine, supra, 3 Cal.App.5th at p. 894.)

•“How is the jury to assess what career(s) are available to the plaintiff? Is the sky the limit? In other words, can a plaintiff urge the jury to peg her earning capacity to the salary of a world-class athlete, neuroscientist, or best-selling author just by testifying that is what she wanted to do? Or must the jury instead determine a plaintiff’s earning capacity by reference to the career choices the plaintiff stood a realistic chance of accomplishing? We conclude some modicum of scrutiny by the trier of fact is warranted, and hold that the jury must look to the earning capacity of the career choices that the plaintiff had a reasonable probability of achieving.” (Licudine, supra, 3 Cal.App.5th at p. 894.)

•“Once the jury has determined which career options are reasonably probable for the plaintiff to achieve, how is the jury to value the earning capacity of those careers? Precedent suggests three methods: (1) by the testimony of an expert witness; (2) by the testimony of lay witnesses, including the plaintiff; or (3) by proof of the plaintiff’s prior earnings in that same career. As these options suggest, expert testimony is not always required.” (Licudine, supra, 3 Cal.App.5th at p. 897.)

•“[E]xpert testimony is not vital to a claim for loss of earning capacity.” (Lewis v. Ukran (2019) 36 Cal.App.5th 886, 893 [248 Cal.Rptr.3d 839].)

•“A trier of fact may draw the inference that the plaintiff has suffered a loss of earning capacity from the nature of the injury, but it is not required to draw that inference.” (Martinez v. State Dept. of Health Care Services (2017) 19 Cal.App.5th 370, 374 [227 Cal.Rptr.3d 483].)

•“ ‘Under the prevailing American rule, a tort victim suing for damages for permanent injuries is permitted to base his recovery “on his prospective earnings for the balance of his life expectancy at the time of his injury undiminished by any shortening of that expectancy as a result of the injury.” ’ ” (Fein v. Permanente Medical Group (1985) 38 Cal.3d 137, 153 [211 Cal.Rptr. 368, 695 P.2d 665], internal citations omitted.)

•“[T]he majority view is that no deduction is made for the injured party’s expected living expenses during the lost years.” (Overly v. Ingalls Shipbuilding, Inc. (1999) 74 Cal.App.4th 164, 175 [87 Cal.Rptr.2d 626], internal citations omitted.)