25.9 V. Strategy Issues

JurisdictionNew York

V. Strategy Issues

Other preservation issues might be described as strategy issues. One such issue, for example, is the question of whether the defense should call its own economic expert. Although defense counsel may be inclined to view such a move as a concession of damages, in many jurisdictions, including California, it is common for defendant to call an economist. Any prejudice inherent in the fact that the defense has called an economist can probably be dissipated by appropriate comments in summation or an instruction from the trial court that the defendant’s calling an economist is not a concession that damages should be awarded.

Defense counsel should not make the mistake of thinking that by cross-examining plaintiff’s economist they can accomplish the same result as by calling their own economic expert. An economist’s figures rarely will change radically on cross-examination. At the appellate level, if the only evidence in the record is from plaintiff’s economist and the jury’s awards for pecuniary loss correspond to the economist’s testimony, appellate counsel will have a difficult time prevailing on an argument that the verdict is excessive.

In Kavanaugh v. Nussbaum,687 for example, the Appellate Division affirmed an award of lost earnings to a neurologically impaired infant based on the plaintiff’s economist’s testimony, where the “defendants adduced no evidence as to what [the infant] might have earned over the course of his lifetime in a vocational setting.”688 Additionally, in Altman v. Alpha Obstetrics & Gynecology, P.C.,689 the court affirmed a $3 million award for lifetime lost earnings for an infant plaintiff “[b]ased upon the testimony of the plaintiffs’ economist and the [defendant’s] failure to rebut that testimony.”690 Similarly, in Reed v. City of New York,691 the court repeatedly emphasized that plaintiff’s evidence was uncontroverted “due to defendant’s utter failure to present any expert testimony or semblance of a defense as to damages.”692

Some economists are forensic economists who, instead of simply “crunching the numbers” a little differently by using a more modest inflationary factor, actually delve into the socioeconomics of the plaintiff’s job. A forensic economist might show, for example, that the business plaintiff intended to enter likely would have failed.

In Stringile v. Rothman,693 plaintiff recovered a judgment of $2 million for wrongful death, based on the supposed profits of a Ford dealership that the decedent was about to open at the time of his death. The Appellate Division reversed and ordered a new trial on the ground that evidence of the future profits was too speculative. At the retrial, defendant called a forensic economist who did a detailed study...

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