Most attorneys are used to proving up future medical expenses or loss of earning capacity with expert testimony or medical records. In fact if you're a plaintiff's attorney in trial you can expect the defense attorney to object to having future medical expenses or loss of earning capacity on the jury charge without some kind of expert testimony to prove that point up. However, Texas case law tends to favor this issue going to a jury with only minimal evidence.
Under Texas Law, what factors can a jury use to make an award for damages based on the Plaintiff's future impairment?
The loss of earning capacity that a plaintiff will suffer in the future is always uncertain and is left largely to the jury's sound judgment and discretion. Recovery for loss of future earning capacity does not require a showing of lost earnings by the plaintiff. In determining whether or not a person has experienced an impairment in future earning capacity a jury may consider factors such as stamina, efficiency, ability to work with pain, and the weakness and degenerative changes which naturally result from an injury and from long suffered pain. Border Apparel-E., Inc. v. Guadian, 868 S.W.2d 894, 897 (Tex. App.—El Paso 1993, no writ) (citing McIver v. Gloria, 140 Tex. 566, 169 S.W.2d 710, 712 (1943).
In Texas, courts have held that damages for loss of earning capacity do not have to be based on any specific degree of physical impairment, but can be based on a composite of all of the factors affecting earning capacity. See Tri-State Motor Transit Co. v. Nicar, 765 S.W.2d at 492. Texas follow the "reasonable probability" rule for future damages, including future medical expenses. Furr's, Inc. v. Logan, 893 S.W.2d 187, 194 (Tex. App.—El Paso 1995, no writ) (citing City of San Antonio v. Vela, 762 S.W.2d 314, 321 (Tex.App.—San Antonio 1988, writ denied); Hughett v. Dwyre, 624 S.W.2d 401, 405 (Tex.App.—Amarillo 1981, writ ref'd n.r.e.)).The jury may make its award for future medical care based upon the nature of plaintiff's injuries, medical care rendered before trial, and the plaintiff's condition at the time of trial.The plaintiff is therefore not required to establish the future medical consequences of his injury by expert testimony based on reasonable medical probability. Id. The amount awarded in personal injury cases for future damages is necessarily subject to some guesswork, and the amount of such awards is largely within the jury's discretion. There is also no requirement that plaintiff place specific dollar values on elements of damage for which no mathematical formula can be set. Logan, 893 S.W.2d at 194.