Plaintiff Recovers Lost Earnings Despite His Expert’s Failure To State Plaintiff Can’t Work

 In Abrahamsen v JMK Bldg. Corp., the plaintiff, a carpenter, was injured when he fell through an opening in the floor that had been covered by a piece of unsecured plywood. After the close of evidence, the trial court denied the plaintiff’s request to charge the jury as to past and future lost earnings on the ground that the plaintiff had not produced expert testimony opining that the plaintiff could no longer work because of his injuries. The plaintiff had conceded that he had not looked for work since the accident. However, the Appellate Division held that the trial court erred and ordered a new trial on damages. In finding that the plaintiff set forth sufficient evidence to warrant a jury charge regarding lost earnings, the court emphasized that the plaintiff met this burden with his testimony that he couldn’t work; a  psychologist’s testimony that the plaintiff was “effectively unemployable” as a result of his injuries and his learning disability; the testimony of the plaintiff’s orthopedic surgeon that the plaintiff’s injury was permanent and his prognosis was poor,;and the parties’ medical experts agreed that the plaintiff was physically unable to work as a carpenter as a result of the subject accident.

Thanks to Bill Kirrane for his contribution to this post.