I. Introduction

Since the publication of the “Economic Damages in Idaho” article (Bowles, Lewis, and Wells, 2004), there have been several developments related to the practice of forensic economics in Idaho courts. This paper provides an update to that paper and is organized around the topics of Idaho Rules 26 and Rule 702, collateral sources and prejudgment interest.

II. Rule 26 (Expert Reports)

Effective July 1, 2014, the Idaho Rules of Civil Procedure (I.R.C.P.) 26.b.4. was amended to protect expert draft reports: “Any draft disclosure or draft report prepared in anticipation of litigation by any witness disclosed under 26(b)(4)(A)(1)(i) is protected from disclosure.” The amended rule also protects attorney-expert communications:

Communications between the party's attorney and any witness required to be disclosed under 26(b)(4)(A)(1)(i), regardless of the form of the communication, is protected from disclosure, except to the extent that the communications: (i) state the amount of compensation for the expert's services; (ii) identify the facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed; or (iii) identify assumptions that the party's attorney provided and that the expert relied on in forming the opinions to be expressed.

As was the case prior to the 2014 amendments, Idaho Rule 26 continues to require that an expert designated to testify at trial provide, inter alia, a statement of all opinions to be expressed and the corresponding basis, (2) data and information considered, (3) a statement of qualifications, including a list of publications over the past ten years, and (4) a listing of cases in which the expert has provided testimony in the preceding four years. It is typical in Idaho for opposing counsel to take the deposition of designated experts.

III. Rule 702 (Expert Admissibility)

In Nield v. Pocatello Health Services (2014) the Idaho Supreme Court reiterated that Idaho Rules of Evidence (I.R.E.) 702 and 703, rather than Daubert and its progeny, constitute the appropriate standard for expert testimony:

The District Court mistakenly determined it was acting as a “gate keeper” a role associated with Daubert. It is well established that Idaho has not adopted Daubert. . . . I.R.E. 702 and 703 are the standards by which a court is to determine the admissibility of an expert's opinions. (p. 762)

I.R.E. 702 states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

I.R.E. 703 states:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.

The recent case law on I.R.E. 702 and 703 is in the context of medical malpractice and expert opinion on causation; however, this case law offers guidance on economic expert testimony on damages. In Weeks v. Eastern Idaho Health Services (2007), the Idaho Supreme Court noted that the rule for determining whether a witness is qualified is not rigid, and formal training is not necessary but that “practical experience or special knowledge must be shown.” (p. 1183) Regarding admissibility, the Court states that “Expert opinion which is speculative, conclusory, or unsubstantiated by facts in the record is of no assistance to the jury. . . and, therefore, is inadmissible as evidence.” (p. 1184)

In Coombs v. Curnow (2009) the Idaho Supreme Court noted that “expert testimony will assist the trier of fact when the reasoning or methodology underlying the opinion is scientifically sound and based upon a ‘reasonable degree of medical probability' – mere possibility is insufficient.” (p. 464) Further, the Court noted that “Admissibility. . . depends on the validity of the expert's reasoning and methodology rather than his or her ultimate conclusion. So long as the principles and methodology behind a theory are valid and reliable, the theory need not be commonly agreed upon or generally accepted.” (p. 464)

IV. Collateral Sources

Idaho Code § 6-1606 indicates that in actions involving personal injury or property damage, collateral sources are an appropriate offset to damages with the exception of (1) benefits paid under federal programs which by law must seek subrogation; (2) death benefits paid under life insurance contracts; (3) benefits paid by a service corporation organized under Chapter 34, Title 41, Idaho Code [Insurance, Hospital and Professional Service Corporations]; and (4) benefits paid which are recoverable under subrogation rights created under Idaho law or by contract. Offsets, if any, from collateral sources are determined by the court after the finder of fact has rendered an award. The two cases discussed below provide important clarifications on how the collateral source rule is applied in Idaho.

In Dyet v. McKinley (2003), the Supreme Court of Idaho addresses Medicare write-offs.¹ The Court reasoned that it was proper to treat the Medicare write-off as a collateral source and, hence, not allow evidence of the write-off to be presented to the jury but rather to allow the court to make the appropriate offset:

By treating a Medicare write-off as a collateral source, the danger of prejudice contemplated in I.R.E. 403 is avoided, and the jury will not be influenced by the existence of Medicare. At the same time, the policy of I.C. § 6-1606 contained in both the statute and the legislative history to prevent a double payment for the damages is preserved. (p. 1239)

Given this reasoning, it would appear that medical expenses paid by Workers Compensation Insurance would be treated the same way: the billed amount would be presented to the jury with the court making the offset for the write-off amount.

In Carrillo v. Boise Tire (2012), the Supreme Court of Idaho considered the issue of Social Security disability benefits and Social Security survivor benefits. The Court held that Social Security disability benefits received through the time of the trial were an appropriate offset; but, importantly, noted that the statute (I.C. § 6-1606) “limits deductible collateral source payments to those paid up until the judgement was entered.” (p. 1269) Interestingly, the Court ruled that Social Security survivors benefits are not an appropriate offset as these benefits are due to a death and the statute reads “from collateral sources as compensation for the personal injury or property damage.”

Further, Idaho has a limitation on non-economic damages. (This is related to the collateral source issue as it places restrictions on amounts recoverable.) Idaho Code § 6-1603 generally limits non-economic damages to $250,000 as adjusted for Idaho wage inflation since July 1, 2004.

V. Prejudgment Interest

As noted in Bowles, Lewis, and Wells (2004), prejudgment interest generally is not awardable in injury and death cases in Idaho. (See Van Brunt v. Stoddard, 2001.) As a practical matter, however, interest often is awarded in these cases under Idaho Code § 12-301, which allows interest on settlement offer amounts when an offer has appropriately been made and rejected:

If the court finds that such claimant has recovered an amount equal to or greater than his offer of settlement, the court shall add to the judgment, annual interest on the amount contained in such offer, computed from the date that the offer of settlement was served.

The appropriate interest rate is provided in Idaho Code § 28-22-104(2) as 5% plus the “weekly average yield on United States treasury securities as adjusted to a constant maturity of one (1) year. . . [during] the second week in June of the year in which such interest is being calculated.”

VI. Summary

The effect on experts of the 2014 amendments to Idaho Rule 26 is that draft reports and most attorney-expert communications are protected from disclosure. On the question of the admissibility of expert testimony, Idaho Rules 702 and 703 and associated case law focus on whether the testimony of the expert will assist the trier of fact and is based on sound reasoning, methodology and facts. Idaho Code and associated case law allow as an offset to damages in injury cases certain collateral sources paid as of the time judgment is entered. The most typical collateral sources that would be appropriate offsets are government benefits paid under programs that are not required to seek subrogation (e.g., Social Security disability benefits). Prejudgment interest in injury and death cases generally is not available. The important exception is that prejudgment interest is allowed on the settlement offer amount from the date a claimant's settlement offer was served if the judgment is equal to or greater than the rejected settlement offer.