§ 45.9. Calculation of damages: economic damages.
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/us/cfr/t32/s§ 45.9·A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
(a)In general. Economic damages are one component of a potential damages award. The claimant has the burden to prove the amount of economic damages by a preponderance of evidence. Estimates of future losses must be discounted to present value.
(b)Elements of economic damages in personal injury cases. Elements of economic damage are limited to the following:
(1)Past expenses, including medical, hospital, and related expenses actually incurred. These expenses do not include health care services provided or paid for by DoD or VA.
(2)Future medical, hospital, and related expenses. These expenses do not include health care goods and services for which the member is entitled to receive from, or be reimbursed for by, DoD (including TRICARE) or VA. Goods and services provided or paid for by DoD or VA are deemed sufficient to meet the claimant's needs for that particular type of good or service.
(3)Past lost earnings unrelated to compensation as a member of the uniformed services. Appropriate documentation is required.
(4)For future lost earnings:
(i)Until DoD determines that the claimant is, or is expected to be, medically rehabilitated and able to resume employment;
(ii)In cases of permanent incapacitation, until expiration of the claimant's work-life expectancy; or
(iii)In cases of death, until the expiration of the claimant's work-life expectancy, after deducting for the claimant's personal consumption.
(iv)Future lost earnings must be substantiated by appropriate documentation and claimants have an obligation to mitigate damages.
(v)In addition, loss of retirement benefits is compensable and similarly discounted after appropriate deductions. Estimates for future lost earnings and retirement benefits must be discounted to present value.
(5)Compensation when the claimant can no longer perform essential household services on his or her own behalf, including activities of daily living. This compensation does not include goods and services the member is entitled to receive from, or be reimbursed for by, DoD or VA. Goods and services provided or paid for by DoD or VA are deemed sufficient to meet the claimant's needs for that particular type of good or service.
(c)Information DoD will consider in calculating economic damages. In addition to the information submitted by the claimant, DoD may consider all relevant information in DoD records or information systems or otherwise available to DoD, including assessments from appropriate documentary sources and experts available to DoD.
(d)Disability discrimination. An injury or condition does not result in lost earnings for purposes of, and is not compensable under, this part if the lost earnings stem from disability discrimination, which may be settled and paid under other provisions of law. \[86 FR 32208, June 17, 2021, as amended at 89 FR 40381, May 10, 2024\]