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Kahn v. Pony Express Courier Corp.3/14/2001
gislature used the word "verifiable" rather than "verified," the statute does not impose a particular quantum of proof for recovery of such damages. Id.
Similarly, in Tadsen v. Praegitzer Industries, Inc., 324 Or 465, 928 P2d 980 (1996), the Supreme Court considered the legal standard that governs the sufficiency of the evidence of future lost wages and benefits in a claim under ORS 659.121. The court stated:
" claim for economic damages necessarily rests on some quantum of evidence that would allow the jury to find that certain events probably would have occurred, or that certain conditions probably would have existed, had it not been for a defendant's wrongful conduct. As this court stated in Conachan v. Williams, 266 Or 45, 55, 511 P2d 392 (1973), a case dealing with a claim of lost earning capacity (quoting with approval Baxter v. Baker, 253 Or 376, 392, 454 P2d 855 (1969) (O'Connell, J., dissenting)):
"'It is obvious that plaintiff's loss both before and after trial can be approximated only and that the calculation of the loss must rest upon factors which can be employed only in terms of probabilities * * *.'"
"The lack of absolute certainty does not bar submission of a claim for [future lost pay and benefits]. Only reasonable probability is required. Expert testimony may aid the fact-finder in placing a present value on future earning losses. In doing so, an expert may testify to economic assumptions that necessarily rest on estimates and predictions of uncertain future events. Any weakness can be explored by cross-examination or contrary evidence. Wilson v. B.F. Goodrich, 292 Or 626, 631, 642 P2d 644 (1982). Whether the claimed damages were proven is a matter for the fact finder, under appropriate instructions." Id. at 472-73. See also Richmond v. Zimbrick Logging, Inc., 124 Or App 631, 636, 863 P2d 520 (1993), rev den 318 Or 459 (1994) (loss of future earnings is not rendered a "subjective loss" simply because there is "inherent speculation" in the task of assessing an individual's lost future earning capacity).
Consistent with the described standards, Tabert's daughter's loss of Tabert's services was "objectively verifiable" within the meaning of ORS 18.560(2)(a).
Finally, defendants argue that, because the definition in ORS 18.560(2)(a) of "economic damages" refers to "charges * * * incurred" for medical and related services and to "expenses * * * incurred" for substitute domestic services, economic damages includes only those losses that have been incurred by the time of trial, and not future losses such as loss of a parent's future services. Defendants are correct that the tense of a verb may be a significant indicator of the legislature's intent as to the meaning of a statute. Martin v. City of Albany, 320 Or 175, 181, 880 P2d 926 (1994). For example, in Shuler v. Distribution Trucking Co., 164 Or App 615, 994 P2d 167 (1999), rev den 330 Or 375 (2000), this court held that the verb phrase "has testified" demonstrated that the relevant statutory provision applied only to persons who had completed the act of testifying. Here, however, the verb at issue in this case is simply "incurred." That usage could as easily be shorthand for "to be incurred" as it could be shorthand for "having been incurred." We decline to hold that "loss of * * * services" must have been incurred by the time of trial.
For all of the above reasons, the trial court did not err in instructing the jury that Tabert's daughter's loss of Tabert's services was an item of economic damages.
Affirmed.
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