Oregon’s economic damages statute, ORS 31.710(2)(a) provides that:

“Economic damages” means objectively verifiable monetary losses including but not limited to reasonable charges incurred for medical, hospital, nursing and rehabilitative services and other health care services, burial and memorial expenses, loss of income and past and future impairment of earning capacity, reasonable and necessary expenses incurred for substitute domestic services, recurring loss to an estate, damage to reputation that is economically verifiable, reasonable and necessarily incurred costs due to loss of use of property and reasonable costs incurred for repair or for replacement of damaged property, whichever is less.

Under ORS 31.710(2)(a), what is the nature and amount of proof necessary to establish economic damages?  In Kahn v Pony Express Courier Corp., 173 Or App 127, 160-61 (2001), rev den, 332 Or 518 (2001), the Oregon Court of Appeals clarified that only reasonable probability is required to prove economic damages and no particular amount of proof is necessary.  Under ORS 31.710(2)(a), the term “objectively verifiable” means only that damages are “’capable of confirmation by reference to empirical facts.’”  Kahn, 173 Or App at 160 (quoting DeVaux v. Presby, 136 Or App 456, 462 (1995)).  For instance, in a case involving the plaintiff’s loss of earning capacity, the statutory standard is met even if a plaintiff’s loss can only be approximated using probabilities to calculate the loss.  Id. at 161.

Kahn did not change the requirement that a Plaintiff’s expert express the claimed economic damages in terms of a reasonable degree of medical, economic, or other scientific probability.  Id.  But a plaintiff’s expert can prove economic damages by testifying “to economic assumptions that necessarily rest on estimates and predictions of uncertain future events.”  Id. (internal citation and quotation marks omitted).

Under OEC 703, defense counsel is entitled to, and should in many cases, exhaustively cross-examine plaintiff’s expert to ensure that the plaintiff’s damages are within a reasonable degree of probability.