supreme court in between this court's two color decisions call for want to call or two but the us supreme court said in in in five which is really important right now to talk about the past lost wages and calculating damages it is assumed that if the injured party had not been disabled he would have continued to work simple process simple simple proposition it's assumed it would continue to work but for the disability so what we have here we have a case where we have and ultimately there was a little bit dispute when he needed the surgery or not but the surgery was done but what's undisputed from all three of these number of doctors is clinton had to say will and will never go back to my time employment back close to the money he was earning at the time that he was injured so let's talk about the money search in the time he was injured schedule was twenty eight days on fourteen days off so for twenty eight days claim to go out to work and get two hundred ten dollars a day and guess what he had no expensive provided meals had a place to live he came off that he kept all then when to go home pay for his his family and his young son he was raising as a single father actually so plan a search on july twenty seventh after ten and a half months of going through this routine ten and half months in the beginning he would go some different vessels they would call he get off his boat they needed somebody another boat he'd jump on that boat to pick up the work because you want to prove that he could do this job you want to prove this company was able to do it and he did he would go from his boat pick up another boat you don't know the book finally after about five or six months he fell into a routine on the bell so that he was injured on looking for kept on the plane so what's good for the company was good for clinton getting to this twenty eight fourteen rotation so the company knows they have a qualified able body seamen who can do the work who will show up every fourteen days after he gets off and he will be working with captain looking at they they get a rotation where they are usually lined up with their work and for it with each other clinton got into that routine and was ten and a half months later after he first got hired was when the accident happened ten and a half months he was one hitch away one twenty a day or two away from making his first anniversary with his company making two hundred ten dollars a day so he's injured he goes to the company doctor he disables him says get checked out because an m talk to try to get clint back to where he's not he'll he's not able to go back to work at least they were able to do says pain level to where he can function in life one hundred seventy seven thousand dollars in medical bills in this case undisputed nobody saying this man's going back to work in the time ensuring that this jury decided even three years after his accident he's entitled to zero past lost wages zero wages they gave them zero none of that he would have been back up to fourteen days for another twenty a day hit he couldn't go back according to the company doctor who kept him off the boat under speed so we go t another twenty two we go through all those rotations until we could have been a trial this where we go back to the assumption from pfeiffer that he would have continued to work but for the disability from testifying especially captain the peanut was his direct supervisor who he worked with the most said yes but for the injuries he would still be working for this company undisputed nobody has contested that fact captain adams agreed with  fact of testimony from the two captains this man would still be working undisputed so for the time of the injury to the time of trial and these men testified at trial but for this accident and injuries disability anything for past lost wages so now we get to going forward and we feel that the award for future of wages is also clear bonuses it's grossly undercuts what this man is entitled to and the reason is and what the argument makes down to is what is the terminations of the wages used for the calculation and to call the a floor for different facts and look at the second one is what's the starting point for the lost wages w clearly says if you start with the wages at the time of the injury and we assume that they would continue working at those wages but for the accident  the time of the injury and it begins there and then what you do next to this amount other income incidental to work such as fringe benefits should be added or were clearly says call for based on the  before i got hurt might have been five thousand a year that he worked he made forty eight thousand dollars and judge fallon said taking on the court's precedent said i'm a awarding damn just based on the forty eight thousand dollars the fence or which exactly what has to be done in this case clinic law it's clearly established that he had at the time of his injury it was up to ten and a half months when what he said a year three more hitches he's at the pub to break mark m and they came up with the average over the years eighteen thousand dollars a year should be that the beginning point of what of the number that mr mcgraw should use of point that is that is a starting point that is not allowed by this court's precedent but i will talk about two cases that they can possibly argue may change that because what the court this court has done is well what about the case if at the time of the entering there's inconsistent earnings or there's some evidence that the defense could put on or some evidence in the trial of the shows that this person may not actually be able to earn the amount of money for that one year period of time whatever period of time we're talking about at the time of the injury it's kind of an undefined period of time but for our case we know it's to not have months plus to form a team as was fourteen months so the rate parker drilling offshore is this court case where they said there can be an exception they talk about it begins at the grocery at the time the injury but the the exception i believe is called out as when earnings data was inconsistent that's the language that is in parker but what the evidence wasn't parker is campbell the worker the plaintiff campbell's own expert acknowledged that campbell was not a forty eight hours a week worker but any stretch of imagination he called out an exception campbell fell to the exception deference is afforded a jury in resolving issues that are contested at trial in this case the parties agreed upon a jury from the local community and those jurors took time out of their lives to listen to the evidence of the course of four days after hearing the evidence the jury returned a verdict awarding the appellant mr clinton the mcgraw three hundred twenty five thousand dollars one hundred thousand of which were for lost wages unsatisfied with the jury's verdict mcgraw appealed to this court in a search in search of even more money is not the first one to get to be dissatisfied with a jury verdict and he will not be the last however we submit in this case that mr mccraw cannot meet his very high burden of showing that the jury had no reasonable basis for the verdict to chose now at the outset i mention the fundamental question presented here which is how much deference to we give jury that question doesn't need to be answered today because this court has already answered it but the words that have been used describe the latitude afforded the jury include gr wide vast and so on mr mcgraw may disagree with the verdict and in fact the distinguish jurist on this panel may feel that they would rule a different way but that's not the test the test is is there a reason basis in the evidence for the jury's verdict in this case the jury awarded mr mcgraw one hundred thousand dollars in total lost wages that figure is within the range presented by the parties expert econom there's clearly no manifest injustice in this award and more importantly whether the court takes a holistic view of the total lost wages awarded or breaks it down into awards for past lost wages if you lost w jury had a reasonable basis for the the award rendered based on the evidence and testimony at trial i'd like to discuss three key issues today first i have to address mcgraw's assertion that the methodology employed by you know that tugs expert economist was incorrect as a matter of law i say as a matter of law because mr mcgraw made no objection to the economists testimony a trial and filed no motion eliminate to exclude or limit his testimony accordingly this is not an evidentiary issue or a view of the decision of a decision made by the district judge instead mcgraw argues that by law the defense economist methods were inappropriate despite that method being endorsed by numerous courts including this second i'll address the evidence supporting the jury's decision to award zero dollars and pass lost wages that evidence centers around mcgraw's that mr ross dishonesty when he applied for work it you know it tugs and is perceived ability to obtain some type of game f employment after the accident third just the evidence supporting the award of one hundred thousand dollars in future lost wages this one is rather straightforward as the figure awarded was clearly within the range of possible awards presented by the part firmed by this and other courts we cited to a number of cases in both our principle in reply briefs in which the method of using an average annual income was indorsed and more specifically the calculations of dr boudreau sell for indoors or furthe court to the parker drilling case which is this court's decision in two thousand and nine which did accept the use of a average annual income when the plaintiff's earning history was inconsistent as d explained at the trial this matter the method of using an average annual income to derive the wage base is particularly appropriate when the way to get has an inconsistent earnings history which is exactly the situation presented in this case on pages six and seven of our reply brief we provided the court with a chart of mr mcgraw's earning history as you can see from the chart mr mcgraw was not historically high wage earner and his income fluctuated dramatically this is exactly why dr due to use the average income from the three years preceding the act and proceeding the accident to calculate mr morales lost wages faced with the evidence of his sporadic work as tree even mr mcgraw himself could not support his own economist wage base of fifty one thousand dollars stand that he could not couldn't quote say what was realistic or not about close quote if mr kroll himself could not support his economist wage case how could the jared ever lived the fact is that given mcgraw's earning history the more realistic earnings base was the roughly eighteen thousand dollars calculated by dr who drew was actually low closer to one thousand thousand leave it was roughly eighteen thousand eight hundred this average includes the money t admitted that his social purity earned record shows that over the course of the last ten years he'd worked for thirteen different employers mr mcgraw was not the type of worker that one could expect to stay on the job for more than a year based  players earnings history is inconsistent now in park and parker drilling the issue was whether the plaintiff was a quote forty hour a week guy in this case the question was was mr  year at the same employer type so a slight factual distinguishing still wishing features there but the point is that in both cases the plaintiff had a very inconsistent in history and therefore the method of using an average annual but it is not in there to do to require an economist to only focus on what the plaintiff was earning at the moment of injury would also require the economist to ignore the reality presented by the facts the case i want to emphasize that dr boudreau has testimony is expert opinion and the expert is allowed to rely upon any methodology that is generally accepted in his field of expertise that's exactly what dr boudreau did in this case income when calculating lost wages and instead must always use the income being earned on the day of the accident that's not the law as multiple courts including this would have found the method of using an average to be appropriate in circumstances such as that was in this excluded from testifying due to his use of a multi year average converse way we've cited the court to several cases in which the use of an average was approved of including this court's ruling in parker drill require that all economists base their loss calculations solely upon what the plaintiff was already of the moment of injury in this case the cross proposed earnings basis fifty one thousand dollars more than twice what he had ever earned during a single year in his boudreau and then a party cannot sit idle the trial while an expert gives testimony that he believes is contrary to law and then appeal the fact that such testimony was given or that the jury rely point in this case i'd take it like many and each becomes exclaims their new method of deriving their calculations and jerry was free to agree with one and not the other or disagree with other really with charts and other visuals describe their methodology and their calculations but mr mcgraw on cross examination we asked him a lot of questions about his work history and earnings history so the jury was well aware of his i'd like to get to mike my second point which is the evidence supporting the jury's decision to decline any award of past lost wages the jury was presented with two pieces of key evidence upon which they could mccraw had disqualified himself from working at you know the tubs by lying on his employment application but this evidence and testimony provided a basis upon which the jury could conclude that mr mcgraw suffered no past wage losses or as a result of the accident  mitch hedberg the owner of the minutes hugs provided under budget testimony is that mcgraw disqualified himself from employment you know to tell a lot about his criminal history on his employment application mr and more to explain that lucky he believes in second chances he has hired people that have criminal histories but the unique circumstances of working on in close quarters with its own boat require that the crew members trust each other and that everyone on that boat be trustworthy and if mr when he was discovered that did been dishonest when applying for work that disqualified him from further employment you know it tugs and the jury was reasonable in deciding we're not going to not not going to reward law is to place the plaintiff in the same position he was before the tort was committed in this case mr old is not entitled to earn income from you know to tell it before the incident because he lied on his employment application by not awarding past lost wages the jury put him back as that position the second key piece of evidence supporting the jury's decision on past lost wages with surveillance video taken mcgraw both the four and after his surgery and each video mcgraw seen moving about with no apparent difficulty which lea job to replace the roughly eighteen nineteen thousand dollars that was his average income in the years before the accident mr crow was not an invalid and no doctor testified that he was totally disabled that term totally disabled was used i used the term only to say he was the doctor ordered him not to go back to work on the tugboat but he was not precluded from earning some type of income the leave case cited in our principle brief makes clear ward because it was based upon other evidence presented at trial in that case the evidence was that the plaintiff might be able to return to work and that he was attending college and therefore might be able to earn even more money than he was before the accident  important line from the leaf case was quote we do not require that a jury is awarded fall within the estimates given by expert testimony close quote we also some of the coatings case in our principle brief in which this court affirmed a lost wages case with regard regard to future lost wages the award of one hundred thousand dollars was within the range presented by the parties congress dr boudreau explained that mr mcgraw could go back to work  i want to quickly address the reference in the argument made by mr mcgraw that the jury somehow was confused by the reference to maintenance paid after the accident as it's required to do and of the law united s of maintenance paid therefore if there was any jury confusion it was due to mr mcgraw's own evidence or at least evidence presented jointly by the parties by way of stipulation  the defense counsel mentioned the amount of made in spain in closing arguments but if you review the record during the sidebar regarding the stipulation of defense counsel made very clear that he was going to state that amount during closing arguments and that included an award for past lost wages there was never a suggestion by any witness by any lawyer or by the judge that any deduction should be made for the maintenance paid the argument that the jury was confused and reduced the amount of past lost wages because they thought he had been paid maintenance is simply speculation there's no evidence in the record to support that proposition i'd like to close by saying this in our system of justice you bring your disputes before court you pick a jury of your peers and you put on your evidence after that you live with the results absent some grave error committed t this case which they have not addressed in their briefs or their argument martinez all they want to do is say that because he had a history before he went to work at his company that we have to average his wages the court dealt with this  only dealt with this in martina's they have not addressed it they've not distinguished one genus they have not distinguished the undisputed facts a ten and a half months of service to this company have to be qualified earning the money they've got nothing to say why did this ma get his last wages from the time he was off and there's no evidence in this record a support to see over the past lost wages you didn't move the new trial on muni ground below correct there was no motion fun new that he had this earning capacity that he was only actually wages fifty one thousand dollars at the time he got hurt and even if we look at after he was healed for future wages the best he could do was eighteen thousand dollars a year that's over thirty thousand dollars a year difference so why is one hundred thousand dollars not appropriate because it's already been a year and a half since then i putting aside the line on campus cation piece which to me it's big polluted but what do i know but what do you do it videos what do you do with the videos do the videos serve this love oh what could the jury him done with the videos what the jury cannot do with the videos and say this man could go back to work in the maritime industry because of those videos the reasons under but in evidence it seems to be ok still councilors who said what can this man do after his injury and that's where the eighteen thousand dollars comes from that's the best that he can do according to the defense ok so counselor your honor so we have a difference of fifty one thousand which is not been rebutted his earnings that he was had at the time and the best he can do even going to the defense counsel are of eighteen thousand that's thirty thousand year it's already been over a year and a half the forty five thousand dollars into his future wages he only got one hundred thousand with a twenty one year work life expectancy one hundred thousand dollars is holy and adequate and back to the surveillance judge stewart he can't go to a job play and say look i've got this surveillance from when i was i'm i'm i'm not saying i'm bi i just wanted to hear i just wanted you to address it that is all of this it was a much i think because it's in the brief and they are grieving as you know and even even the the employment application you know when the employer thought about employment applications i asked if it's in the record when it does come up thursday before trial because the defense lawyer thought it out it wasn't at the time it's more conformed it wasn't a three years afterwards when you think i think the thursday before the trial nobody pulls his application to out of the files when you're working for when you're making money for him when you're showing up regularly for your work you're part of that economic team that makes this guy a lot of money going to go back to those files this is something i came up previously tried case with the case will be made along with the others that we've heard today as well as you know not all the argot and it'll be submitted will decide that said the panel stand in recess until nine am tomor