United States District Court, W.D. Arkansas, Texarkana Division
O. HICKEY, CHIEF UNITED STATES DISTRICT JUDGE
the Court is Defendant Elmer Enrique Ventura's Motion to
Exclude Evidence and Argument of Lost Profits and Past Lost
Earning Capacity. ECF No. 106. Plaintiff Marqchello Jordan
has filed a response. ECF No. 113. The Court finds the matter
ripe for consideration.
case arises from an automobile accident that occurred on May
6, 2015, on I-30 near Prescott, Arkansas. Jordan and Ventura
are both tractor-trailer drivers. Jordan claims that Ventura
entered into Jordan's travel lane and pushed his
tractor-trailer into another, disabled tractor-trailer parked
on the side of the interstate. Jordan alleges that he
suffered injuries as a result of the accident.
trial, Jordan intends to offer the expert testimony of Ralph
Scott, an economist. In his report, Scott states that he has
calculated the “lost earning capacity suffered by
Marqchello Jordan . . . resulting from his injury sustained
on May 5, 2015.” ECF No. 113-11. Scott does not state
in his report that he calculated past or future lost profits
or earnings. Ventura asserts that any evidence or argument of
past or future lost profits or earnings should be excluded
because Jordan cannot provide the requisite proof. Further,
Ventura argues that any evidence or argument of past lost
earning capacity should be excluded because this is not a
recoverable element of damage under Arkansas law.
Past and Future Lost Profits or Earnings
injured party is entitled to recover any lost earnings up to
the time of trial as well as the present value of any
earnings reasonably certain to be lost in the future.
Arkansas Model Jury Instructions-Civil, AMI 2206 (2018 ed.).
An independent business owner may recover only net profits
lost, when proved with reasonable certainty. Ishie v.
Kelley, 302 Ark. 112, 114, 788 S.W.2d 225, 226 (1990).
“[A] plaintiff must present a reasonably complete set
of figures and not leave the jury to speculate.”
Id. When “the only figures provided are gross
amounts rather than net, with no basis from which a jury
could reasonably infer the approximate net earnings of the
plaintiff, any resulting verdict is based on
is an owner-operator of a tractor-trailer and has provided
Ventura his Form 1099 for 2014 and 2015 to show his
non-employee compensation. Jordan testified in his deposition
that he does not know whether the amount of compensation
shown on the 1099s is before or after expenses are taken out.
Jordan has stated that he does not know his net business
income for either of those years and does not have
documentation of his net business income in 2014 or 2015.
Scott also has no documentation of Jordan's past earnings
and admits that the 1099s do not show what Jordan actually
earned. Scott does not provide any opinion in his expert
report regarding Jordan's past or future lost profits.
Instead, Scott offers opinions only as to Jordan's lost
earning capacity.Because Scott offers no opinion as to
Jordan's past or future lost profits, the Court will not
allow Scott to testify as to these elements of damages.
only evidence the Court is aware of regarding any past or
future lost profits are the 1099s that Jordan provided to
defense counsel. Because these documents do not reflect
Jordan's net profits, there is potential for confusion if
these documents or other documents purporting to reflect
Jordan's net profits are shown to the jury. Thus, counsel
is directed to approach the bench before introducing any
evidence of Jordan's past or future lost profits.
Past Lost Earning Capacity
of earnings and loss of earning capacity are two separate
elements of damages.” Arthur v. Zearley, 337
Ark. 125, 143, 992 S.W.2d 67, 77 (1999). “Loss of
earning capacity is the loss of the ability to earn in the
future.” Id. In his report, Scott provides a
base rate of income that Jordan would have earned but for
this accident. Scott uses the national average for earnings
of truck drivers to determine what Jordan would have earned
but for this accident and provides a calculation for
Jordan's past “lost earning capacity” instead
of lost earnings. However, past lost earning capacity is not
a recoverable element of damage under Arkansas law.
Accordingly, the Court will not allow Scott to testify as to
any past “lost earning capacity.”
reasons stated above, the Court finds that Ventura's
motion (ECF No. 106) should be and hereby is
IS SO ORDERED