How much easier is it to win &quot;out of pocket&quot; damages than &quot;opportunity&quot; damages in a tort case?
<p>Plaintiff is an athlete that was drafted out of college (or even high school) by a major league ball team. He has just finished working his way through the "minors" and was promoted to the major league roster (but has not played a major league game) when he is injured by the defendant, and is hospitalized. It takes $100,000 more to bring the plaintiff back to "normal" than his insurance will cover. Worse, "normal" does not mean restoring his former athletic ability (e.g. a pitcher whose fastball was formerly 100 mph now tops at 70 mph).</p>

<p>There are two types of damages. The first is out of pocket damages, which can be proved by the hospital bills, netted against the insurance payments, or what I call "hard" evidence. The second is the "opportunity" loss of what could have been a lucrative athletic career. Proving the latter might involve taking the comparing the athlete's "pedigree" to that of other, comparable players historically at a similar stage of development, and following their careers forward. In any event, it would involve all kinds of expert testimony and a few speculations, or what I call "soft" evidence.</p>

<p>Assume that there are no evidentiary issues regarding the defendant as the cause of the injury itself, only the value of the injury caused. </p>

<p>I would guess that the "out of pocket" damages would be (relatively) "easy" to prove in court, while the "opportunity loss" of an athletic career would be much harder. To what extent is this true?</p>

<h2>No easier or harder</h2>

<p>If you prove that the damage was the result of the defendant’s negligence then you are entitled to them.</p>

<p>While it’s more straightforward to establish the quantum of a liquidated claim (like the medical bills) than an unliquidated claim (like loss of future earnings) and the former is (possibly) less likely to be contested, proving entitlement is no more difficult.</p>

<p>It’s done pretty much as described, expert opinions and negotiation. If a deal can’t be reached, a court will make an assessment.</p>

united-states tort injury