Woods v. Andersen

Smith, Judge,

dissenting.

This court should not countenance the admission into evidence of testimony which amounts to pure conjecture. I therefore dissent from Division 4 of the majority opinion and would reverse the judgment of the trial court.

Appellee’s expert offered the following opinions as to the present cash value of the amount of money the deceased would have earned during the "working period” of her lifetime, between and including the ages of 18 and 65, had she not died prematurely: (1) Assuming she received a high school education and stayed single, the value would be $398,206; (2) Assuming she received a college education and remained single, the value would be *500$567,042; (3) Assuming she received a high school education and married, the value would be $493,769; (4) Assuming she received a college education and married, the value would be $587,625. On cross examination the expert testified that, in order to formulate the opinions he gave, he used a basic, average wage of an 18-year-old female in the mid-1970’s and inflated it by a multiplier of .05 per year in order to calculate the deceased’s supposed wage on her entering the labor force in 1987, when she would have reached the age of 18. The expert then utilized a basic, average wage for a 19-year-old female in the mid-1970’s and inflated that figure by the multiplier of .05 per year in order to calculate the deceased’s wage at age 19, in 1988. The expert extrapolated as stated for each year the deceased would have been in the labor force, until he reached the year 2034, when she would have been 65 years old. He then added together the acquired, annual wages in order to arrive at the deceased’s economic value in a normal lifespan. The expert reached the different opinions set out above by following this procedure including as a basic premise the assumption that inflation, or wage increases, would continue at a rate of 5% annually from the mid-1970’s until 2034. By using that premise the expert testified as to his conclusion, for example, that, in the year 2033, when the deceased would have been 64, she would have earned $135,000 had she received only a high school education. This salary, of course, stands in sharp contrast to the $9,167 average salary a high-school-educated woman of today earns in her sixty-fourth year.

Should the trial court have granted appellants’ motion to strike the expert’s testimony because it incorporated as a basic premise thereof the annual inflation multiplier (also known as a "wage rise factor”)? I answer affirmatively. Notwithstanding the majority’s conclusion to the contrary, Henry Grady Hotel Corp. v. Watts, 119 Ga. App. 251 (4) (167 SE2d 205) (1969), is inapposite and the question is one of first impression in Georgia. The court in Henry Grady Hotel summarizéd the expert witness’ testimony, which it found admissible, as follows: "based on 1959 figures, a high school graduate entering upon his lifework at age 18 could reasonably be *501expected to receive lifetime earnings of $254,000; figuring the lifetime earnings at no more than minimum wage the figure would amount to $154,086; based on a present 3 1/2% annual wage increase factor the figure would be $560,000, and without wage rise factors but with a college education it would amount to $583,364. Such figures reduced to present cash values were in a range between 1/3 and 1/2 of the gross amounts.” Id., p. 256. The factor distinguishing that case from the one at hand is that, there, no objection was raised as to "the accuracy of the facts to which he [the expert] testified.” Id., p. 257. Here, the appellants moved to strike the expert testimony because the factual assumption as to inflation was "too speculative.”1 Neither is Grunenthal v. Long Island R. Co., 393 U. S. 156, 89 SC 331 (1968), applicable, as the Supreme Court there dealt only with the issue of the sufficiency of the evidence to support an award.

I find persuasive the reasoning of Bach v. PennCentral Transportation Co., 502 F2d 1117 (6th Cir., 1974), which held, at p. 1122: "In recent history inflation has been so persistent that it is difficult to conceive that the purchasing power of the dollar might remain constant through the year 2000. On the other hand, the predictive abilities of economists have not advanced so far that they can forecast with any certainty the existence and rate of inflation for the next thirty years. Limited use of economists and other experts may be appropriate in some cases to show that raises in income or promotions would most probably occur. [Cit.] Yet testimony on the exact income that the decedent would have received through the year 2002 is so speculative, in our view, that it is inadmissible.” See also Riha v. Jasper Blackburn Corp., 516 F2d 840 (8th Cir., (1975)). The opinion testimony, based on a particular and continuing rate of wage inflation and setting out the exact income the decedent would have earned in a particular year and the total she would have earned in her lifetime, amounted to speculation and should not have been admitted. Douglas *502v. Herringdine, 117 Ga. App.72(3) (159 SE2d 711) (1967). As the Fifth Circuit Court of Appeals recently noted, "We . . . cannot so surely discern the shadow of inflation as a coming event as to warrant requiring its inclusion in a present rule for calculating future damages. The worsening of inflation might as readily foretell a recession or a depression as its continuity. Strong governmental counter-measures have been proposed and their efficacy is still unknown. Then too, if future inflation does cause higher wages, then experience predictably demonstrates that higher interest rates on investments which have always accompanied inflation will also occur and this factor will mitigate the failure to include an inflationary surcharge in wage rate calculations.” Johnson v. Penrod Drilling, 510 F2d 234, 236 (5th Cir., 1975). I would not hold that evidence as to general economic trends is inadmissible, however, but only that an expert should not be allowed to testify as to the specific salary figures he has calculated by using an annual inflation multiplier or wage increase factor.

I am authorized to state that Chief Judge Bell joins in this dissent. Judge Webb and Judge Birdsong join specially in this dissent.

Furthermore, Henry Grady Hotel, is a nonbinding, two-judge decision.