Motion for Rehearing Denied As Moot; Majority and Dissenting Opinions of 

June 26, 2018, Withdrawn; Reversed and Remanded and Substitute Majority 

and Dissenting Opinions filed October 30, 2018.

In The 

Fourteenth Court of Appeals 

NO. 14-16-00511-CV

WESLEY FREDIEU, Appellant 

V.

W&T OFFSHORE, INC., Appellee 

On Appeal from the 269th District Court 

Harris County, Texas 

Trial Court Cause No. 2013-06933 

S U B S T I T U T E D I S S E N T I N G O P I N I O N 1

The majority concludes that legally and factually sufficient evidence supports 

the jury’s award for future lost earning capacity. I respectfully disagree. 

 

1

 Today the court denies W&T Offshore Inc.’s motion for rehearing as moot and issues a Substitute 

Majority Opinion. The Dissenting Opinion issued in this case on June 26, 2018, is withdrawn. 
2

Insufficient Evidence of Future Lost Earning Capacity 

Appellee W&T Offshore, Inc. challenges by cross-point the legal and factual 

sufficiency of the evidence supporting the jury’s $950,000 award for appellant 

Wesley Fredieu’s future lost earning capacity. This court should sustain the 

challenge. 

More than seven decades ago, in McIver v. Gloria,

2

 the Supreme Court of 

Texas recognized the inherent uncertainty in determining future lost earning 

capacity. Though Texas law leaves the determination to the jury’s sound judgment 

and discretion, the law also imposes important boundaries on the jury’s decisionmaking. First, the law requires the jury’s verdict to be an intelligent judgment, based 

upon available facts.3

 Second, the law requires the verdict to be rooted in the 

“peculiar facts” and the damages to be “proved with that degree of certainty of which 

the case is susceptible.”4

 Third, the verdict cannot be the product of “mere 

conjecture.”5 The degree of certainty the law requires varies from case to case. 6 

Courts are called to assess the degree of certainty appropriate to the case at hand and 

to insist on proof that meets the standard.7 

To assess the jury’s determination of Fredieu’s future lost earning capacity, 

we examine Fredieu’s capacity to earn a livelihood before the injury and the extent 

to which the injury impaired that capacity.8 Fredieu’s future earning capacity is best 

 

2

169 S.W.2d 710, 712 (Tex. 1943).

3

Id. 

4

Id.

5

Id.

6

Id.

7

Id. 

8

See Scott’s Marina at Lake Grapevine Ltd. v. Brown, 365 S.W.3d 146, 159 (Tex. App.—Amarillo 

2012, pet. denied).
3

shown by comparing his actual earnings before and after his injury.9 Nonetheless, 

the jury may base its finding of lost earning capacity on Fredieu’s earning capacity 

before and after the injury.10 

The jury found that $950,000 would fairly and reasonably compensate Fredieu 

for the loss of earning capacity that, in reasonable probability, Fredieu will sustain 

in the future, that resulted from the occurrence in question. This court must decide 

whether the trial evidence is legally and factually sufficient to support the jury’s 

finding of this amount of damages. 

Actual Earnings Before and After Injury 

Fredieu returned to work full time after his injured arm healed, earning a 

higher hourly wage post-injury than he earned pre-injury. The majority suggests 

that Fredieu’s higher earnings from his post-injury employment at Berry Brothers 

may not reflect his true earning capacity. The reason, says the majority, is that 

Fredieu someday might lose the current, higher-paying job and, if that happens, 

Fredieu might not be able to replace it with a similar-paying job. Though this 

reasoning forms the undercurrent of the majority’s analysis, it has no factual support 

in the evidence. 

The record contains no testimony that would support the majority’s factual 

premise that because Fredieu found the Berry Brothers job through family members, 

he could not replace the job in the marketplace or find a Berry Brothers-like position 

that allows him to make the same wages while performing light-duty functions. No 

expert testified that similar jobs do not exist or that due to Fredieu’s particular 

circumstances, Fredieu would not be able to land such a position. Fredieu offered 

 

9

See McIver, 169 S.W.2d at 712.

10 See Bonney v. San Antonio Transit Co., 325 S.W.2d 117, 121 (Tex. 1959); Crown Plumbing, 

Inc. v. Petrozak, 751 S.W.2d 936, 939 (Tex. App.—Houston [14th Dist.] 1988, writ denied). 
4

no explanation for the lack of such evidence. Though Fredieu offered his own 

testimony that he was unaware of another such job, that evidence does not meet the 

legal standard and so amounts to no evidence. Because our record contains no 

testimony that Fredieu could not find a similar job if he lost his employment with 

Berry Brothers, any loss-of-future-earning-capacity determination based on this 

assumption amounts to mere conjecture and is not an intelligent judgment rooted in 

the peculiar facts of the case.

11

 The record contains no evidence showing that 

Fredieu’s earning capacity at the time of trial would not represent his future earning 

capacity. 

The Expert’s Testimony 

 Significantly, Fredieu’s expert witness, economist Kenneth McCoin, Ph.D. 

did not offer any opinion on Fredieu’s lost earning capacity. Rather, McCoin 

testified as an economist to calculate the time-value of money, the probable number 

of years that Fredieu would work in the future, and other figures used in calculating 

lost earning capacity. 

 McCoin performed two calculations, but he said his calculations were just a 

“tool” or a “starting point.” McCoin did not testify as to what Fredieu’s average 

income would be over the remaining years of Fredieu’s estimated work life; instead, 

McCoin said he was giving the jury a tool to calculate damages based on the jury’s 

determination of what Fredieu would earn in the future, presumably based on other 

trial evidence. Thus, McCoin’s testimony alone would not allow a reasonable 

factfinder to find Fredieu’s future lost earning capacity. Though McCoin’s 

testimony, if combined with trial evidence showing that Fredieu cannot reasonably 

expect to hold a job paying more than $8.65 per hour, would allow a reasonable 

 

11 See McIver, 169 S.W.2d at 712.
5

factfinder to set Fredieu’s future lost earning capacity at $950,000, neither the 

majority nor Fredieu cite to trial evidence showing that Fredieu cannot reasonably 

expect to hold a job paying more than $8.65 per hour. And, the trial evidence that 

Fredieu currently earns $23 per hour certainly does not support this proposition. 

Citing authority stating that the best gauge of lost earning capacity is the delta 

between pre-injury earnings and post-injury earnings, W&T emphasizes that 

Fredieu’s post-injury hourly wage ($23) greatly exceeds his pre-injury hourly wage

($16).

12

 Under binding precedent, that fact should drive the analysis.13 

Rather than presenting a calculation of Fredieu’s future earning capacity 

based on the here and now, as the supreme court instructed in McIver,

14 McCoin 

performed his future-earning-capacity calculations using the wage from a lowerpaying job Fredieu had three years before trial, coupled with the unsubstantiated 

assumption that if Fredieu were to lose his Berry Brothers job, he could not find a 

comparable one with comparable pay. But, even taking the unsubstantiated 

assumption as true and even using the pre-injury job data rather than the current job 

data, neither McCoin’s calculations nor the jury’s award find support in the record 

evidence. 

McCoin’s calculation produced the number $1,035,424 for Fredieu’s future 

lost earning capacity. This amount is the difference between what the majority calls

“a pre-injury future earning capacity of $1,611,954” and a “post-injury future 

earning capacity of $576,530.” This terminology suggests that the $1,035,424 

amount covers lost earning capacity from the date of injury forward, and thus it is 

 

12 See Strauss v. Continental Airlines, Inc., 67 S.W.3d 428, 436 (Tex. App.—Houston [14th Dist.] 

2002, no pet.) (citing the McIver legal standard).

13 See McIver, 169 S.W.2d at 712. 

14 See id. 
6

the sum of past lost earning capacity (from injury through trial) and future lost 

earning capacity (from trial forward). But, McCoin’s testimony does not address the 

dollar amount for Fredieu’s future lost earning capacity—the loss of earning 

capacity that, in reasonable probability, Fredieu would sustain in the future. 

 At the time of the accident Fredieu was earning $16 per hour. At the time of 

trial—the starting point for calculating future lost earning capacity—Fredieu was 

earning $23 per hour, according to Fredieu’s own, undisputed testimony. McIver

teaches that current earning capacity stands as the best indicator of future earning 

capacity,15 yet, as noted, instead of using this key metric, McCoin’s calculation of 

Fredieu’s future earning capacity uses earnings data that predated Fredieu’s current 

employment and fell far below Fredieu’s post-injury earnings — an approach at odds 

with the authority W&T cites. Despite the flaws in this approach, the majority relies 

on McCoin’s testimony to find the trial evidence legally and factually sufficient to 

support the jury’s award of $950,000 for future lost earning capacity. 

McCoin first calculated Fredieu’s future lost earning capacity in 2012, before 

Berry Brothers hired Fredieu in 2014. At trial, McCoin performed a second 

calculation, in which he purported to account for Fredieu’s earnings from his postinjury job with Berry Brothers. Under the unambiguous language of the jury charge, 

future lost earning capacity is measured from the time of trial forward. But, McCoin 

did not provide evidence of future lost earning capacity using that period.

The majority concludes that McCoin’s expert testimony “established a range 

for Fredieu’s future lost earning capacity between $665,424 on the low side and 

$1,035,424 on the high side.” It did not. First, McCoin did not testify that Fredieu 

suffered a lost earning capacity in any amount. Rather, McCoin performed 

 

15 See id.
7

calculations purporting to show what the lost earning capacity would be (1) if the 

jury found that Fredieu would average $8.65 per hour in his future work and (2) if 

the jury found that Fredieu would average $20 per hour in his future work.16 Second, 

McCoin did not perform the time-of-trial-forward calculation because he calculated 

lost earning capacity based on a trial date two and one-half years before the actual 

trial date. So, McCoin’s analysis mixed apples and oranges. Still, the majority 

reasons that the “jury’s $950,000 award falls within the range of expert testimony.” 

As demonstrated below, the jury’s award does not represent a permissible exercise 

of discretion based on the record evidence.17

McCoin estimated Fredieu’s remaining work life at 35.8 years, but McCoin 

made that estimate 2.5 years before trial. So, at trial, the remaining-work life years 

were 2.5 years fewer than McCoin’s calculation reflected. At trial, Fredieu had only 

33.3 remaining work-life years, representing 93% of the estimated work life McCoin 

used for his calculations (33.3/35.8=93%). Presuming that Fredieu earned $8.65 per 

hour for the rest of his working years, McCoin calculated Fredieu’s future lost 

earning capacity from 2.5 years before trial to be $1,035,424. Thus, McCoin’s 

testimony shows that if Fredieu were to earn $8.65 per hour for the rest of his work 

life (the next 33.3 years), Fredieu’s future lost earning capacity would be $963,117 

(93% x $1,035,424=$963,117), which is effectively what the jury found ($950,000). 

 

16 The majority states several times that McCoin based his second calculation on Fredieu’s “postinjury wages.” See ante at 42. As the majority acknowledges, McCoin based his second calculation 

on a wage of $20 per hour, which Fredieu earned for only two months before Berry Brothers 

increased his wage to $23 per hour. The record shows that Berry Brothers has been paying Fredieu 

$23 per hour since April 2014. Fredieu’s wage at the time of trial (when McCoin performed his 

second calculation) was $23 per hour.

17 The majority notes that McCoin estimated an “effective wage” of $28,756 per year based on 

Fredieu’s job at Berry Brothers, but the majority fails to mention that McCoin calculated this wage 

on the premise that Fredieu was earning $20 per hour rather than the $23 per hour that Fredieu was

earning at the time of trial.
8

 Importantly, McCoin testified that he does not know what Fredieu will earn 

in the future, and McCoin did not opine that any number represented Fredieu’s future 

lost earning capacity. At the time of trial, Fredieu was earning $23 per hour. 

Presuming that Fredieu would earn only $20 per hour for the rest of his work life, 

McCoin calculated that Fredieu’s earning capacity going forward would be 

$946,530. Subtracting this number from 93% of $1,611,954 ($1,515,237) yields the 

future lost earning capacity based on Fredieu earning $20 per hour: $1,515,237 – 

$946,530=$568,706. So, even if the calculation is based on $20 per hour rather than 

the best indicator — Fredieu’s current, time-of-trial wage of $23 per hour — the 

future lost earning capacity is nearly $400,000 less than what the jury found. 

McCoin’s 2012 calculation fails to account for Fredieu’s current earnings 

level from his post-injury employment at Berry Brothers. Because this defect skews 

the calculation, any jury finding based on this calculation would not be an intelligent 

judgment based on the peculiar facts of the case.18

 In addition, the trial evidence 

would not allow a reasonable factfinder to find a reasonable probability that Fredieu 

will earn $8.65 per hour for the rest of his work life. 

In 1973, the Sixth Court of Appeals stated in Springer v. Baggs that “[o]ur

courts have consistently upheld judgments for reduced earning capacity, even 

though the plaintiff was making as much or even more money after the injury than 

before, where it was shown that pain, weakness, diminished functional ability, or the 

like indicated that plaintiff’s capacity to get and hold a job, or his capacity for 

duration, consistency or efficiency of work was impaired.”19

 The Springer case did 

not involve a plaintiff who made the same or more money after the injury than 

 

18 See McIver, 169 S.W.2d at 712. 

19 Springer v. Baggs, 500 S.W.2d 541, 544–45 (Tex. Civ. App.—Texarkana 1973, writ ref’d n.r.e.). 
9

before.20 Since 1973, this court twice has quoted this statement from Springer, but 

in neither case did the plaintiff make the same or more money after the injury than 

before.21 

The majority cites Plainview Motels, Inc. v. Reynolds, a case in which the trial 

evidence showed that the plaintiff-dentist earned more money in the year after the 

accident than he had earned in any prior year.22 But, evidence at trial also showed 

that the plaintiff earned less after the year following the accident and that the plaintiff 

was earning substantially less at the time of trial than he would have been capable 

of earning but for the injury he sustained in the accident.23

 The majority has not 

cited any case in which the plaintiff was earning more at the time of trial than the 

plaintiff was earning at the time of injury. The time-of-trial earning capacity is the 

metric that matters most.

Considering the trial evidence in the light most favorable to the challenged 

finding, indulging every reasonable inference that would support the finding, 

crediting favorable evidence if a reasonable factfinder could, and disregarding 

contrary evidence unless a reasonable factfinder could not, the trial evidence would 

not enable reasonable and fair-minded people to find that $950,000 would fairly and 

reasonably compensate Fredieu for the loss of earning capacity that, in reasonable 

probability, Fredieu will sustain in the future, that resulted from the occurrence in 

question.24

 Thus, the trial evidence is legally insufficient to support the jury’s 

 

20 See id. at 544–45. 

21 See Metropolitan Life Ins. Co. v. Haney, 987 S.W.2d 236, 244–45 (Tex. App.—Houston [14th 

Dist.] 1999, pet. denied); Tri-State Motor Transit Co. v. Nicar, 765 S.W.2d 486, 492–93 (Tex. 

App.—Houston [14th Dist.] 1989, no writ). The majority quotes this court’s quotation of Springer 

in the Tri-State Motor Transit case. See ante at 36 & 40.

22 See Plainview Motels, Inc. v. Reynolds, 127 S.W.3d 21, 38 (Tex. App.—Tyler 2003, pet. denied). 

23 See Plainview Motels, Inc., 127 S.W.3d at 36–38.

24 See City of Keller v. Wilson, 168 S.W.3d 802, 823, 827 (Tex. 2005) (articulating the general 

standard of review for legal-sufficiency challenges); Mid-Century Ins. Co. of Tex. v. McLain, No. 
10

finding of $950,000 in future lost earning capacity.25 In the alternative, even if the 

evidence were legally sufficient, examining the entire record, considering both the 

evidence in favor of, and contrary to, the challenged finding and considering and 

weighing all the evidence, the jury’s finding of $950,000 in future lost earning 

capacity is so contrary to the overwhelming weight of the evidence as to be clearly 

wrong and unjust.26

Conclusion 

The Supreme Court of Texas says the best indicator of future earning capacity 

is current earning capacity. Yet, Fredieu’s expert McCoin did not base his 

calculation on Fredieu’s current earning capacity. No evidence shows that Fredieu 

lacks capacity to get and hold a job, and no evidence shows impairment of Fredieu’s 

capacity to continue in his current job. In addition, the trial evidence would not 

allow a reasonable factfinder to find a reasonable probability that Fredieu will earn 

$8.65 per hour for the rest of his work life, and absent such evidence, McCoin’s 

testimony does not suffice to sustain the jury’s award of damages for future lost 

 

11-08-00097-CV, 2010 WL 851407, at *3–5 (Tex. App.—Eastland Mar. 11, 2010, no pet.) (mem. 

op.) (holding that the trial evidence was legally insufficient to support a finding of the amount of 

future lost earning capacity found by the jury); Strauss, 67 S.W.3d at 434–35 (applying general 

standard of review for legal-sufficiency challenges to attack on jury’s lost-earning-capacity 

finding).

25 See City of Keller, 168 S.W.3d at 823, 827; Mid-Century Ins. Co. of Tex., 2010 WL 851407, at 

*3–5; Strauss, 67 S.W.3d at 434–35.

26 See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406–07 (Tex. 1998) (articulating the 

general standard of review for factual-sufficiency challenges); Mid-Century Ins. Co. of Tex., 2010 

WL 851407, at *3–5 (concluding that the trial evidence was factually insufficient to support a 

finding of the amount of future lost earning capacity found by the jury); Border Apparel-East, Inc. 

v. Guardian, 868 S.W.2d 894, 899 (Tex. App.—Corpus Christi 1993, no writ); (holding that the 

trial evidence was factually insufficient to support a finding of the amount of future lost earning 

capacity found by the jury); Loyd Electric Company, Inc. v. Millett, 767 S.W.2d 476, 483–84 (Tex. 

App.—San Antonio (Tex. App.-San Antonio 1989, no writ) (holding that the trial evidence was 

factually insufficient to support a finding of the amount of future lost earning capacity found by 

the jury). 
11

earning capacity. Even assuming the jury credited McCoin’s testimony, the 

evidence is legally insufficient, and, in the alternative, factually insufficient, to 

support the jury’s award of $950,000. This court should sustain W&T Offshore’s 

cross-point. 

 /s/ Kem Thompson Frost 

 Chief Justice 

Panel consists of Chief Justice Frost and Justices Boyce and Jewell (Boyce, J., 

majority).