A Trend Towards Facts and Away From Statistics When Evaluating Future Earning Capacity Claims
While the origin of this fabled quote is in doubt, we know Mark Twain was right about one thing: people manipulate statistics. One tool frequently used to manipulate statistics in litigation is the Gamboa-Gibson Work Life Expectancy Tables. Fortunately for defendants, courts are increasingly seeing these tables for what they are: unreliable tools developed for litigation and not used by statisticians outside the courtroom. For example, the Circuit Court for Baltimore City recently precluded a damages expert from relying upon these tables as they were not based on a reliable scientific methodology.
The Gamboa-Gibson tables, developed by David Gibson and Anthony Gamboa, purport to “adjust” United States Census Bureau statistics regarding how long Americans can be expected to work despite particular disabilities. The tables operate on the assumption—not always valid–that individuals with disabilities won’t work as long as individuals without disabilities.
By reducing their supposed work life expectancy, personal injury litigants claiming either a loss of earning capacity or lost future wages can argue for increased economic losses as a result of disability. Forensic economists rely upon work life expectancy as a basis for calculating economic loss. Thus, the Gamboa-Gibson tables can significantly affect the size of the claimed economic damages.
For years, plaintiffs have touted the Gamboa-Gibson tables as “the only source that provides worklife expectancy statistics adjusted for disability as defined by the U.S. Census Bureau” and “provide the number of years that a person is expected to be alive and actively employed.” Yet, their reliability is suspect. Economists and courts recognize the tables use flawed data and flawed methodology. These myriad flaws include:
- The tables were created for litigation purposes
- The methodology used has not and cannot be tested
- The methodology used is not generally accepted
- There is no known error rate for the data in the tables
- The underlying survey data are unreliable
- The tables’ conclusions are too general and not individualized
Put simply, the survey data on which the tables are based were not designed to support the conclusions drawn by the authors. They are not specific to specific types of disabilities. And, when considering the effect of disability on individuals’ ability to work in the future, detailed facts about individuals and their disabilities are far more accurate.
Because of these flaws, defense counsel would be wise to consider attacking the admissibility of any economic loss report which relies upon the Gamboa-Gibson tables. Indeed, federal and state courts applying the Daubert, Frye/general acceptance or other standards have excluded economic loss reports and testimony which rely upon the tables. As Thomas Ireland, a leading critic of the tables has stated, the tables are bad science.
Most recently, a defense team that included Goodell, DeVries attorneys Tom Cullen and Gus Themelis convinced Judge Steven Sfekas of the Circuit Court for Baltimore City that a plaintiff’s economist could not rely upon the tables as a basis for his economic loss projections. Stevenson v S&S Partnership, et al. (Cir. Ct. Balt. Cty., Case No. 24-C-11-00008722). Like other courts before him, Judge Sfekas found the data on which the tables relied to be unreliable. Other courts are likely to follow.
In light of the foregoing, in cases in which work life expectancy is an issue, defense counsel should counter with strong factual and expert testimony based on individual plaintiffs’ particularized medical and vocational rehabilitation evidence and be prepared to attack the basis of the claimant’s economic loss claim. Evidence such as family history, personal history, education records, criminal records and financial records, especially in the hands of competent medical and vocational experts, can provide valuable pre- and post-injury evidence, of the extent to which a claimed disability affects future work life expectancy, if at all.