To support an award of damages for lost earning capacity, a plaintiff must introduce evidence sufficient to show it is reasonably probable what her earning capacity would have been but for her tortious injury as well as what her earning capacity is with the injury.  Loss of earning capacity is a category of general damages, and the jury may, in some cases, infer the existence of lost earning capacity from the nature of the injury (such as loss of an arm or leg).  In quantifying the amount of the lost earning capacity (of an injured college senior in this case), the jury must consider careers that the plaintiff had a reasonable probability of achieving and then determine the likely income she would have received in that occupation.  When the plaintiff has already joined the workforce or has received extensive training for a particular job, the jury may consider the plaintiff’s existing career path, but when she has not yet reached that stage.  Here, plaintiff introduced insufficient evidence to show she would have become a lawyer or to show what lawyers on average earn.  Ordinarily, when there is insufficient evidence to support a jury verdict, the trial court should enter judgment notwithstanding the verdict, as the plaintiff does not get a second chance to prove her case, but here the trial court properly exercised its discretion to order a new trial instead, since the pain and suffering award was very low, suggesting that the jury had shifted some damage from that category to lost earning capacity, and because the trial court waited until late in the trial before refusing to take judicial notice of Bureau of Labor Statistics’ data on lawyer income.

California Court of Appeal, Second District, Division 2 (Hoffstadt, J.); September 29, 2016; 2016 WL 5462099