On Friday, June 5, 2020, the United States Court of Appeals for the Seventh Circuit held oral argument regarding the Government's challenge to an $8.3 million medical malpractice award, issued by District Court Judge Nancy Rosenstengal after a two-day bench trial.   

At the heart of the appeal is the Court's calculation of plaintiff's lost earning potential, which was premised on the Court's finding that — but for his injuries — the plaintiff could have commanded a salary of up to $100,000 per year. 

The Government claims that this finding was not supported by any testimony. However, the Government has to deal with a significant hurdle — its own expert agreed during cross-examination that the plaintiff could hypothetically have earned this amount.  

The Government now argues that the expert's statement was merely an admission of possibility — not preponderance.  While it remains to be seen whether any members of the panel will agree with this framing, their predicament underscores the importance properly preparing your expert for cross-examination, where a concession to a hypothetical unaccompanied by any caveats, context, or clarification can be deadly.