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Horvitz & Levy is a solutions-based firm focused on appellate success. We are distinguished by our commitment to responsive service and on-going innovation in the areas of civil appellate litigation, amicus curiae support, and trial strategy consultation.

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In this medical malpractice case against Cedars-Sinai Medical Center, the California Court of Appeal clarified the standards for recovery of economic damages based on lost earning capacity. 

The plaintiff, who was a college senior at the time of her injury, testified she wanted to be a lawyer and had been admitted to a few law schools, but that her matriculation to law school was delayed by her injuries. Based on this testimony, the jury awarded her approximately $1 million in lost earning capacity as an attorney.  The trial court denied Cedars’ motion for judgment notwithstanding the verdict, but granted a new trial on damages.  Horvitz & Levy represented Cedars on appeal from the judgment.

Although the California Court of Appeal (Second Appellate District, Division Two) declined to order judgment in Cedars’ favor, the court adopted our arguments that the plaintiff’s evidence did not support the jury’s verdict on damages.  In a published opinion, the court articulated the standard for evaluating whether a jury verdict for lost earning capacity is supported: the award must be based on earning capacity that it is “reasonably probable” the plaintiff could have had but for her injuries.  The plaintiff’s evidence of her law school aspirations did not meet that standard.  The court further held that the plaintiff could not prove damages for lost income as an attorney with a request for judicial notice of a Bureau of Labor Statistics report of median attorney salaries.  The report may be an “official act,” but the facts stated within the report are not admissible for their truth without appropriate foundation.