Especially in a common law at-will context (as distinguished from a

statutorally created cause of action [e.g., race discrimination]), wrongful

withdrawal of employment cases present very difficult problems for proof of

loss because of the duty to mitigate.  It would be an extraordinary

employment opportunity wrongfully withdrawn that could support a loss of

income estimation that ran to retirement and was not greatly reduced by

both actual mitigation and by the duty to mitigation not discharged.  Most

often lawyers do not pursue such cases because the damages that can most

likely be proved are unlikely to exceed litigation expenses.



      That this case got to an appellate level would tend to indicate that

hedonic values were extracted from litigation or the transitional costs

incurred switching to the job wrongfully withdrawn were substantial.



      This area of law and of forensics can be tricky.  It would make a

fine article for the Journal of Legal Economics.  :-)



<snip>

Toscano v. Greene Music, 124 Cal. App. 45th 485; 21 Cal. Rptr. 3d 732 (Cal.

App. 2004). This decision involved damages resulting from the fact that an

employee left at will employment on the basis of the promise of a job with

another employer that was not fulfilled. Economic expert Roberta Spoon

projected earnings loss damages from the date the plaintiff left prior

employment to his retirement. The court ruled that “the evidence was too

speculative to lend support to the trial court’s award of Toscano’s future

earnings from September 1, 2001 to his retirement. . . Spoon’s testimony

does not establish Toscano had a definite expectation of continued

employment with Fields for any particular period of time. Even drawing all

inferences in Toscano’s favor, it is evident her supposition was based only

on Toscano’s history of remaining with his employers until offered new

employment. However, Toscano’s intentions or practices are not relevant to

whether he could expect to remain with Fields until his retirement, where

his employment with fields was at will. . . An expert’s opinions must not

be based on speculative or conjectural data. If the expert’s opinion is not

based upon facts otherwise proved or assumes facts contrary to the proof,

it cannot rise to the dignity of substantial evidence.”

<end snip>



Michael



Professor Michael J. O'Hara, J.D., Ph.D.

Finance, Banking, & Law Department

College of Business Administration

Roskens Hall 502

University of Nebraska at Omaha

Omaha  NE  68182

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(402) 554 - 2823 voice  fax (402) 554 - 2680

http://cba.unomaha.edu/faculty/mohara/web/ohara.htm