Reducing Future Damages to Present Value

Does the opposing party have evidence to establish the present value of future damages?  Is that evidence even required?  Apparently this is a jurisdiction specific question.

The two competing lines of case law were summarized in Better Bldg. Maint. of the V.I., Inc. v. Lee.[1]  The set that “require the plaintiff to introduce evidence of the present value of future damages have held that the failure to produce this evidence is a failure to quantify the damages sought with the requisite certainty.”[2]  “While this reasoning initially appears in line with the well-established rule that the plaintiff bears the burden of proving her cause of action, many courts have recognized the inherent absurdity in requiring a plaintiff to actively assist the jury in reducing her own award.”[3]  As the language in the decision suggests, the Virgin Islands sided with the second set of courts.

In Nevada, the concept of present value has been discussed in a variety of cases, but I have not located authority indicating which party bears the burden of proof.  In practice, at least in Las Vegas, the plaintiff is typically the party that offers this evidence.  There may be good reason for that.  Given the lack of certainty as to who bears the burden of proof on the issue, a plaintiff who does not offer evidence concerning the present value of future damages risks having those future damages excluded from trial.  If so, the attorney risks an E&O claim, although there could be defenses to it.

[1] 60 V.I. 740 (2014).
[2] Id. at 758.
[3] Id. at 759.