1. Did the court err in allowing the accountant to quantify Respondent’s lost income?
2. Did the court err in allowing Respondent to testify regarding his reaction to the John Doe driver leaving the scene?
This case grows out of a crash involving a Jane Doe driver who crossed into Respondent’s lane of travel and slammed into his dump truck, flipping it over and spilling tons of gravel. The dump truck was a total loss. The Jane Doe driver fled the scene and has never been identified. Respondent sued Petitioner, his uninsurer, alleging that he suffered loss to his business as a result of Jane Doe’s negligence. Respondent also sought damages for annoyance and inconvenience.
At trial, Respondent’s accountant acknowledged the “seasonality” of Respondent’s business. The accountant estimated the income Respondent lost using a “gross receipts” method and examining five years of tax returns. The accountant opined that Respondent’s losses, conservatively speaking, came to $18,428. During his case-in-chief, Respondent testified regarding his annoyance and inconvenience, including his dismay over the fact that the Jane Doe driver had fled. This theme was repeated in closing argument.
After a two day trial, the jury returned a verdict in Respondent’s favor. The jury awarded $40,000 for Respondent’s lost income and over $75,000 for Respondent’s annoyance and inconvenience. Petitioner filed post trial motions contesting the accountant’s methodology and objecting to the amount of damages awarded for lost income. Petitioner also argued that the testimony regarding Jane Doe fleeing the scene was error. The trial court entered an order remitting the damages for lost income. The remainder of Petitioner’s motions were denied. Petitioner now appeals.
Petitioner argues that both Respondent and Respondent’s account admitted that there were multiple factors affecting Respondent’s ability to obtain trucking jobs and that the accountant’s lost income figure was, to some extent, speculative. Because the accountant assumed that all Respondent’s losses after the crash were, in fact, caused by the crash, the accountant’s methodology was flawed. Petitioner also argues that annoyance and inconvenience is limited to “loss of use during the property’s repair period.” By emphasizing “Jane Doe fleeing” and Respondent’s reaction to her flight, Respondent encouraged the jury to award what amounted to emotional distress damages.
The court was not required to perform the analysis under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) because the accountant’s testimony was non-scientific. Instead, the only issue is whether the accountant met the requirements applicable to all experts under Rule 702. Was he qualified as an expert? Not only were the accountant’s qualifications stated in the record, Petitioner did not object to his qualifications. Was his testimony helpful? Accountancy is beyond the understanding of the average layman and, therefore, the accountant’s testimony assisted the jury on a “crucial” trial issue. Regarding Jane Doe, Petitioner failed to properly preserve the issue by making a contemporaneous objection. In any event, the amount of damages awarded for annoyance and inconvenience was properly supported and was not excessive.
This case does not present any novel issues. However, it will provide the Supreme Court with another opportunity to discuss the standards that must be met in order to establish the losses suffered by a small business--especially one affected by seasonality and other factors making it difficult to estimate those losses.