with whom
RONEY and GEE, Circuit Judges, join, dissenting:Seven years ago Johnson v. Penrod Drilling Company told litigants, lawyers and *314trial judges in this circuit that simplicity and efficiency of trial procedures and instructions were the path to justice in jury trials of future damage eases. This court en banc said predictions as to inflation rates and income tax effects were too contingent, too variable, and too speculative for jury consideration. In Liepelt, the Supreme Court required that juries be told to consider the effect of present income tax laws on future damages. Today’s decision goes much further. It puts back in these trials the pre-1975 debates which had developed between economics experts and the prolix instructions on the use of complex formulae they generated. Because these trappings only serve to suppress the common sense assessment of damages by lay jurors, I respectfully dissent.
Penrod held that to attain simplicity and efficiency future earnings were to be reduced to present value by the use of the “interest rate prevailing at the time and place of trial.” The majority sees this as deducting an inflationary increment that unfairly penalizes the damaged party. It would eliminate the perceived inequity by adding a balancing inflationary factor to future damages. Judge Johnson’s dissent, on the other hand, would solve this problem by eliminating the discount. The majority’s remedy compounds the speculative and complicates trial procedures.1 Its professed goal of formulating “a simple principle” is lost in a fog of words and figures. The remedy of Judge Johnson’s dissent, though clear and uncluttered, always deprives the damaging party of more than the cost of the wrong. I respectfully assert Penrod presents no “inequity” or “problem” and remains a better solution than either.
What is overlooked or misunderstood in casting Penrod aside is that its use of the prevailing interest rate at the time and place of trial to discount present awards of future dollars works in terms of marketplace realities. No one wins. No one loses. No one speculates. Under Penrod the plaintiff’s future losses are based on fact, not speculation. The prevailing interest rate is not only simple to prove, but, because it is real and current, it is also available to the plaintiff for the investment of the funds he has received. The majority’s speculation that it is not available is just that — speculation. Whatever factors (inflation, money supply and the like) that make the rate high or low for discount purposes are available for investment purposes. If it is not so, then the rate is not the true prevailing rate.
Even the recent history of this young nation reveals that economic cycles come and go — oft times with dramatic, unpredicted swiftness. Most economic alchemists claim they can refine a “real” or “true” rate of interest from the base figures. The trouble is they don’t agree on its amount. Penrod did not require a search for this rare value because it would lead into a maze of expert opinion and instruction as confounding as the search the majority requires.
It is said that death and taxes are the only things certain in this world. They are bound to soon be joined by confusing jury instructions because, as the law develops, more and more judges are able to convince themselves that more and more words can clarify the obscure and simplify the complex. As Judge Johnson’s dissent aptly demonstrates, the majority opinion is autogenous proof this is not so. Penrod’s rule is not perfect, but I insist it is the fairest workable way to justice in these cases.
Trial courts have taken Penrod further than it was intended to go by denying plaintiffs the right to prove and recover predictable future wage increases for merit, productivity or longevity. I agree this should be corrected in this case. I respectfully dissent from the remainder of today’s mandate.
. Judge Hill’s concurring-dissenting proposal that we adopt the Second Circuit’s Feldman rule would operate in the same way. See the 37-page district court opinion with its four full-page tabular appendix exhibits, 382 F.Supp. 1271, which makes this clear.