Economic Damages Experts for California Litigation

California damages are tried against specific jury instructions, disclosed on a statutory timeline and screened by a trial court that can exclude speculative opinion. Forensic Economic Services is a litigation consulting firm headquartered in downtown Los Angeles, retained as a California economic damages expert in state and federal courts. We build each model to the instruction the jury will hear and state every assumption so it can be tested.

What the CACI 3903 series asks an economist to calculate

CACI No. 3903 lists the items of economic damage, and each lettered sub-instruction defines the measure the jury may award. The economist puts a number on that measure and no broader one. Those we work to most often (each officially titled with the suffix “(Economic Damage)”):

Two details shape the model. CACI 3903C and 3903D are not intended for employment cases; wrongful discharge runs through 3903P, where the central question is how long the job would have lasted. And under CACI 3904A, Present Cash Value, future economic damages are discounted, so the discount rate is an assumption to state and support like any other.

More on medical expenses, earning capacity (and 3903D), household services, property damage, loss of use and lost profits.

Wrongful death under CACI 3921

CACI No. 3921, Wrongful Death (Death of an Adult), lists four economic items: the financial support the decedent would have contributed to the family, measured over the shorter of the decedent’s pre-death life expectancy and the plaintiff’s; the loss of gifts or benefits the plaintiff would have expected to receive; funeral and burial expenses; and the reasonable value of household services the decedent would have provided. Future economic damages are reduced to present cash value.

The measure is support to the family, not the decedent’s earnings, so the model accounts for the decedent’s own consumption and uses the correct horizon for each plaintiff. See wrongful death economic damages.

Contract damages: CACI 350 to 353

Contract claims have their own instructions: CACI No. 350, Introduction to Contract Damages; 351, Special Damages; 352, Loss of Profits—No Profits Earned; and 353, Loss of Profits—Some Profits Earned. Whether the business had earned profits decides which instruction applies and what evidence the model can rest on. As Sargon explained, an interrupted established business can generally recover lost profits from its operating history; for an unestablished business, anticipated profits are allowed where their nature and occurrence can be shown by evidence of reasonable reliability. See our guide to contract damages under CACI and commercial damages.

Sargon and how a lost-profits model is built

Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747 holds that under Evidence Code sections 801 and 802 the trial court acts as a gatekeeper to exclude speculative or irrelevant expert opinion. The court looks at principles and methodology rather than conclusions, but it may find too great an analytical gap between the data and the opinion. The excluded model projected a small company’s market share by comparing it to the largest firms in its industry, without evidence it could do what they did.

For how we build a model, that means:

• Start from the plaintiff’s own history where one exists, and tie every projection to data the report cites.
• Use comparables only where they are comparable on measurable terms, and say why.
• State, source and vary each assumption, so the court and the other side can see which ones drive the total.
• Where the record will not carry part of the claim, say so before a report is written. In one intellectual property matter, fourteen lost contracts were claimed and six could be valued.

Medical expenses after Howell

Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541 limits past medical damages to the amounts paid by the plaintiff or an insurer, or still owing at trial, not the full billed charges. That is largely a records exercise. The court stated expressly that it expressed no opinion on future medical expenses, and the pricing basis for future care remains contested case by case.

The economist’s role in future medical is narrower than often presented. The life care planner specifies the care, frequency and cost; the economist projects those costs and discounts them to present value. Where the evidence supports more than one cost basis, or the vocational expert gives two work-life scenarios, we carry each through rather than choose silently. See life care plan present value and a case study with two work-life scenarios.

Expert designation under CCP § 2034

• Demand. After the initial trial date is set, any party may demand a simultaneous exchange of expert information (§ 2034.210), no later than the 10th day after the trial date is set or 70 days before trial, whichever is closer to trial (§ 2034.220).
• Exchange date. 50 days before the initial trial date, or 20 days after service of the demand, whichever is closer to trial, unless the court orders otherwise for good cause (§ 2034.230).
• Declaration. For a retained expert, counsel’s declaration must state, among other things, the expert’s qualifications, the general substance of the expected testimony, that the expert has agreed to testify, and that the expert will be sufficiently familiar with the action to submit to a meaningful deposition (§ 2034.260).
• Supplemental list. Within 20 days after the exchange, a party may add an expert on a subject covered by an adverse party’s expert, if it had not already retained one on that subject (§ 2034.280).
• Consequences. Unreasonable noncompliance can exclude the opinion (§ 2034.300). An undesignated impeachment expert may address the falsity or nonexistence of foundational facts but not contradict the opinion (§ 2034.310).

The 20-day supplemental window is the rebuttal window, and it is short. The declaration also represents that the expert can sit for a meaningful deposition, which is why the designated expert builds the model. We do not designate one expert and hand the file to another.

Employment, wage-and-hour and PAGA exposure

The Private Attorneys General Act, Labor Code § 2698 et seq., lets aggrieved employees recover civil penalties on behalf of the state. The default penalty under § 2699 is $100 per aggrieved employee per pay period. For notices filed on or after June 19, 2024, penalties are split 65 percent to the Labor and Workforce Development Agency and 35 percent to aggrieved employees, and can be capped at 15 or 30 percent of the amount sought where the employer took reasonable compliance steps.

A PAGA or class exposure figure is a pay-period count that moves with the definition of a violation. In one matter covering 183,429 shifts, exposure moved fifty-four-fold depending on the meal-period threshold applied. In another, certification turned on whether the timekeeping data could produce a class-wide number. See wage-and-hour and PAGA damages, employment damages and our exposure estimator.

Prejudgment interest and § 998 in settlement valuation

Civil Code § 3287 allows interest on damages certain or capable of being made certain by calculation from the day the right vested, and, in the court’s discretion, on unliquidated contract damages from a date no earlier than filing. Section 3288 leaves interest to the jury on non-contract claims and in cases of oppression, fraud or malice. In personal injury cases, § 3291 adds 10 percent interest from the date of a plaintiff’s rejected Code of Civil Procedure § 998 offer that the judgment beats, and § 998 can shift postoffer costs, including expert witness costs in the court’s discretion.

Whether interest applies, and from when, is a question for counsel. In a pre-mediation valuation we show it separately, with its start date, so it can be added or removed without rebuilding the model.

Wildfire and mass-disaster litigation

California wildfire and mass-disaster litigation is a major practice for us, including Thomas, Woolsey and Camp fire matters: business destruction, displacement earnings and personal injury claims, worked individually and as claim inventories. An inventory needs one method applied identically to every claimant, so no assumption is generous in one file and strict in the next. See wildfire business destruction: a claim inventory, not a claim.

A California economic damages expert headquartered in Los Angeles

We work from one office in downtown Los Angeles, in California state and federal courts and in arbitration, and are retained by plaintiff and defense counsel nationwide. The method does not change with the side of the caption.

Start with a conflict check, party names only. If an opposing damages report has been served, send us the expert report. If you have the complaint and records, upload the case files and we will tell you what the record supports and what it does not.

Frequently asked questions

Which CACI instructions does an economist usually work to?

In personal injury, 3903A, 3903C, 3903D and 3903E, with 3904A on present cash value. In wrongful death, 3921. In wrongful discharge, 3903P. In contract, 350 to 353; in tort lost profits, 3903N.

When does a California damages expert have to be designated?

On the exchange date in the demand: 50 days before the initial trial date or 20 days after service of the demand, whichever is closer to trial, unless the court orders otherwise (CCP § 2034.230).

What does Sargon mean for a lost-profits claim?

The trial court can exclude a lost-profits opinion that rests on speculation or leaves too great an analytical gap between the data and the conclusion. The model has to be tied to the plaintiff’s own record or to comparables shown to be comparable.

Does Howell limit future medical expenses?

Howell addressed past medical expenses and stated expressly that it expressed no opinion on future medical expenses. On future care, the economist discounts the life care plan’s costs to present value and carries any alternative cost basis the evidence supports.

Can you rebut an opposing economist after the expert exchange?

Yes, within the 20-day supplemental window if you have no expert on that subject yet. We reproduce the opposing number first, find which assumption drives it, and test only what the record does not support.

Do you work outside Los Angeles?

Yes. From one office in downtown Los Angeles we work California state and federal courts, arbitrations and matters nationwide.