Supra Purple Society, The parents of a baby boy who was brain damaged at birth retained you to be their son\'s lawyer. It\'s been four years of long hours, hard work, Supra Purple Society and sleepless nights. Finally, after overcoming the multitude of obstacles facing a medical malpractice plaintiff, the day of reckoning is near. Your life care planner has evaluated the financial needs to care for the child for the rest of his life: $85 million. Your economist has reduced that figure to present cash value: $17 million. On the eve of trial, expert disclosures are exchanged. In reviewing the defendant doctor\'s disclosure, you see that she has disclosed an \"annuitist\" who will testify concerning the cost of an annuity to fund the plaintiff\'s lifetime care. A few calls to colleagues and a review of this \"expert\'s\" prior testimony lead you to believe that the annuist will opine that an annuity can be purchased for $4 Supra Purple Society million to fund the life care plan. Suddenly, the potential value of your case has suffered a fourfold decline. Now what do you do?
\"Annuitists\" are often disclosed as expert witnesses by defendants in personal injury cases. These experts, who are often no more than salespeople for a particular insurance company, attempt to offer testimony concerning the cost of an annuity to provide injured plaintiffs with an income stream to compensate them for lost earnings or support or to provide a source of income to fund future medical care. The admissibility of this type of expert testimony has not been directly ruled on by California courts1, but it would appear unlikely that the appellate courts would find such testimony admissible for the reasons discussed below. This article reviews cases, from California as well as other jurisdictions, which have addressed the issue, and suggests a strategy for crafting a motion in limine to preclude the expert testimony of annuitists.
Attack Annuitist Testimony as Irrelevant to the Issue Before the Trier of Fact
All future damages must be reduced to Supra Purple Society \"present cash value\" by the trier of fact.2 \"The present value of a gross award of future damages is that sum of money prudently invested at the time of judgment which will return, over the period the future damages are incurred, the gross amount of the award.\"3 One potential argument for the exclusion of annuitist testimony is that the cost of an annuity is not relevant to a determination of the operative issue―the present cash value of the gross amount of future damages.
The only California case that even touches on this subject is Emery v. Southern Cal. Gas Co. (1946) 72 Cal.App.2d 821, 826. In Emery, the trial court had excluded plaintiff\'s proffer of an actuary to present annuity tables in evidence as indicia of the present value of the heirs\' future loss of support in a wrongful death case. The Court of Appeal reversed, stating that the tables should have been admitted subject to an instruction that such evidence was \"not conclusive as to the amount to be awarded as damages, but is only one of several elements to be considered in determining the amount to be awarded.\"
Plaintiff\'s counsel should point out Emery involves annuity tables, which are admissible as some evidence of present cash value, but says nothing concerning the admissibility of an annuitist\'s testimony as to the cost of an annuity to fund a particular plaintiff\'s future damages. Later California decisions which discuss annuity evidence in other contexts reinforce this distinction.
