Bouchard v. United States (501 F. Supp. 2d 200, 2007)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

WOODCOCK, District Judge.

In Lovely v. Allstate Ins. Co., the Maine Supreme Judicial Court adopted the single injury rule: where a tortfeasor aggravates a pre-existing condition, the tortfeasor is liable for the entire damage resulting from an indivisible combined injury and the law burdens the wrongdoer, not the innocent victim, with the difficulties of apportionment. On January 19, 2003, as Richard Bouchard traveled northbound on Route 1 toward Caribou, Maine, he carried with him an unenviable set of pre-existing conditions, ranging from a history of legal and physical problems to drug abuse; however, after Dennis Harmon, a United States Border Patrol agent slammed his vehicle into Mr. Bouchard’s, Mr. Bouchard’s problems became worse. The Court concludes that the United States largely failed to sustain its burden to apportion Mr. Bou-chard’s pre-existing conditions from the resulting combination of injuries and it awards Richard Bouchard $1,100,000.00.

I. OVERVIEW OF APPLICABLE LAW

The Federal Tort Claims Act provides that the “United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances[.]” 28 U.S.C. § 2674. The plaintiff bears the burden to establish the liability of the United States “by showing that a private individual would be liable under state law — Maine law in this case — for similar conduct in the same circumstances.” Levesque v. United States, 366 F.Supp.2d 89, 94 (D.Me.2005) (quoting Clement v. United States, 772 F.Supp. 20, 26 (D.Me.1991)). In Levesque, Magistrate Judge Kravchuk of this Court addressed a law suit initiated by Lora Levesque, the mother of minor plaintiff Brandon Bouchard, who was a passenger in the Bouchard vehicle and who was injured in the accident. Id. Magistrate Judge Kravchuk concluded that Mr. Harmon was negligent and that his negligence caused personal injuries to Mr. Bou-chard’s passenger. Id. at 95.

After Mr. Bouchard initiated this law suit, he moved for summary judgment, contending that the United States was collaterally estopped from denying its negligence and upon recommendation of the magistrate judge and without objection from the United States, the Court granted Mr. Bouchard’s motion for summary judgment precluding the United States from arguing that Mr. Harmon (and hence it) was free of negligence. Pl.’s Mot. for Summ. J. (Docket # 7); Report and Recommended Decision (Docket # 18); Order on Report and Recommended Decision (Docket # 19). The Order left open the possibility that the United States could argue that Mr. Bouchard had been comparatively negligent. Order on Report and Recommended, Decision at 1.

On October 20, 2006, however, Mr. Bou-chard moved for partial summary judgment on the affirmative defenses of comparative fault/contributory negligence. PL’s Mot for Partial Summ. J. (Docket # 30). The magistrate judge again recommended that the Court grant this motion and, again, without objection from the United States, the Court affirmed the recommended decision. Report and Recommended Decision (Docket # 35); Order on Report and Recommended Decision (Docket #36). The two orders on summary judgment limited the sole remaining issue for trial to the amount of damages. Report of Final Pretrial Conference and Order (Docket #42). Lovely, as will be discussed, is critical to the determination of damages.

II. STATEMENT OF FACTS

A.Mr. Bouchard’s General Background

Richard Bouchard is a thirty-nine-year-old native of Caribou, Maine. He grew up in Caribou, was graduated from Presque Isle High School, and has lived in Aroos-took County most of his life. After his father died when Mr. Bouchard was twelve, he was raised solely by his mother, who had an anxiety disorder and problems with alcohol and prescription medications. Mr. Bouchard is married and divorced; his one son of the marriage, Brandon, was a passenger in his car at the time of the January 19, 2003 accident.

While in high school, Mr. Bouchard took courses in welding and developed an interest in the field. At the age of sixteen, he took his first job as a gofer at Soucie Sheet Metal and he eventually began to learn the trade. After graduation from high school, he obtained a Maine Department of Transportation structural welding certification. He also received on-the-job training, beginning with basic stick welding, but graduated to more technical work, including welding on high pressure boilers, which he described as highly skilled work, gas metal washing welding, and pressure parts (code) welding. Mr. Bouchard’s career has been devoted to welding for various employers, mostly in Maine and the northeast, but occasionally elsewhere and as far away as southern California.

B. Mr. Bouchard’s Professional Competence

Mr. Bouchard is a highly skilled welder. Through his various jobs, he has received considerable on-the-job training and is competent in a number of types of welding. Mr. Bouchard testified that many of the companies employ their own testing procedures for potential employees and that passing the test or tests, as the case may be, is a prerequisite to working for that company or on that particular job. In his entire career, Mr. Bouchard has never failed a welding test. The fact that many employers repeatedly hired Mr. Bouchard is further testament to his professional aptitude.

C. Mr. Bouchard’s Status Prior to January 19, 2003

1. The 1985 Motorcycle Accident and Right Ankle Injury

In 1985, when Mr. Bouchard was seventeen, he was involved in a serious motorcycle accident. He came upon a pickup truck, heading in the opposite direction. The pickup slowed down, failed to turn on its blinker and, without warning, turned left, causing Mr. Bouchard to lock the brakes on his motorcycle. His motorcycle struck the pickup truck and he was thrown back about twenty-five feet, sustaining significant injuries to his right leg. He broke his fibula and tibia and suffered injuries to his right ankle. He required a bone graft, and a plate was inserted in his ankle. Mr. Bouchard recovered well from the fracture to the lower leg, but developed degenerative arthritis in the right ankle, which has caused him ongoing pain and discomfort.

Coincidentally, Dr. John Naranja, Mr. Bouchard’s post-January 19, 2003 orthopedic surgeon, examined him on August 7, 2002 for ongoing complaints of pain and instability in the right ankle. Pl.’s Ex. 1 at 568-570. Mr. Bouchard complained that “walking will increase his pain” and that he has “instability even when he steps on a small pebble.” Id. at 568. He also complained of “some pressure in the medial aspect of his tibia secondary to some bone in that area.” Id. Dr. Naranja found that Mr. Bouchard had “evidence of a right antalgic gait” and he diagnosed “[cjhronic ankle instability with heterotopic bone ossification.” Id. at 570. He noted that Mr. Bouchard’s options included “continued non-operative course of treatment versus operative lateral ankle ligament reconstruction and excision of heterotopic ossification.” Id. He thought Mr. Bouchard’s symptoms were related both to his “ankle instability” and to his “bony fusion in the tibfib area.” Id. Mr. Bouchard told Dr. Naranja that he would check on his insurance and get back to him to possibly schedule these procedures. Id. Mr. Bou-chard did not, however, return to see Dr. Naranja before the motor vehicle accident of January 19, 2003 and the contemplated surgery on the ankle and lower leg was not performed.

2. Mr. Bouchard’s Drug Addiction

Mr. Bouchard has a long and troubled history with drug abuse. As a result of the pain from the 1985 motorcycle accident, Mr. Bouchard began using and then abusing drugs. By late 1993, Mr. Bou-chard realized he had become addicted to narcotic medication and he openly admits he has been an addict; he also acknowledges previous drug-seeking behavior. For example, on November 13, 1995, Mr. Bouchard presented to the emergency room at Eastern Maine Medical Center (EMMC), complaining of pain and seeking a shot of Demerol. Ex. 101. The ER physician, however, after reviewing his history, declined to prescribe any narcotics and told him that “he needed to be further evaluated before being given more narcotics....” Ex. 101 at 2. On November 11, 1996, Mr. Bouchard again presented to EMMC complaining of facial pain and requesting Vicodin and Lorcet. The Family Nurse Practitioner did not prescribe any narcotic medications and her secondary assessment was: “Question drug seeking behavior.” Ex. 102. Mr. Bouchard admitted that he would present to a hospital complaining of a migraine headache, receive a shot of Demerol, and then go to a second hospital, again complaining of pain and seeking medication, but without informing the second hospital of his visit to the first hospital.

Sometime in 1996 or 1997, Mr. Bouchard began intravenous drug use. He stated that, although the majority of the drugs he used in the mid to late 1990s were prescription medications, these drugs were never actually prescribed to him. Rather, he obtained them on the street. For example, Mr. Bouchard further revealed that on one of his welding trips to New Jersey, he purchased and used heroin intravenously because he did not have any pain medication. Mr. Bouchard identified 1997 as his low point. Believing that he was spiraling out of control, on November 23, 1997, he voluntarily sought help from the recovery unit at Mercy Hospital in Portland, Maine, where he remained until discharged on December 3, 1997. By the time Mr. Bouchard went to Mercy Hospital for his first detoxification, he was a long-standing user of opiates and had recently begun using methamphetamine. Mr. Bouchard confessed that his peak drug use was before his first trip to Mercy Hospital, and consisted of a gram of methamphetamine intravenously each day and ten bags of heroin intravenously each week. He recalled the decision to detoxify as difficult, but one he made on his own. Mr. Bouchard testified that he slowly got better, was feeling very good, and was able to stay clean for eight or nine months.

In the fall of 1999, Mr. Bouchard relapsed and on October 22, 1999, he elected to return to Mercy Hospital for a second detoxification, where he remained until his discharge on October 28,1999. When Mr. Bouchard returned to Mercy Hospital for his second detoxification, the primary issue was Oxycontin. At Mercy Hospital’s request, Mr. Bouchard explained his typical day as waking up, doing his morning fix, getting ready for work, using all day at work, coming home at night, finding drugs if he didn’t already have any, using at night, and going to bed. Mr. Bouchard testified that his ability to cope with his addiction varied after his second round of detoxification. When he was not working, he stated he seemed better able to stay away from drugs; however, after he returned to work, within a couple of weeks, he would be on the streets seeking drugs.

According to the medical records, Mr. Bouchard continued to struggle after he left Mercy Hospital’s program. He used drugs on and off in 2000, continually trying to stay clean. His employment suffered. He had some teeth pulled and was placed on Vicoprofen and was also placed on Oxy-codone for pain. He was again using methamphetamine intravenously and began to self-medicate with methadone he obtained from the street. Just before his 2002 admission to Acadia Hospital, he had been taking Ativan, Vicoprofen, and getting Roxicodone off the streets.

Mr. Bouchard had a third detoxification in June 2002 at Acadia Hospital in Bangor, Maine. His Caribou physician, Dr. Kor-kut, made the referral to Acadia and Mr. Bouchard presented himself there on June 18, 2002. Mr. Bouchard testified that his doctor at Acadia explained to him that his drug-seeking behavior was likely the result of his ankle injury: the more Mr. Bou-chard was on his ankle at work, stressing the previous injury, the more his mind reacted with the desire to self-medicate. His doctor at Acadia discussed with him the possibility of methadone treatment. The second day of the program he received news that there had been a big drug bust in Aroostook County; he was worried that his girlfriend might be in trouble and expressed his desire to leave. The Acadia records reflect that Mr. Bou-chard lasted only four days and discharged himself against medical advice.

There is a records gap between August 7, 2002, when Mr. Bouchard was seen by Dr. Naranja, and January 19, 2003, when the accident occurred; however, this gap is largely filled in by the testimony of Dr. David Conner, M.D. Dr. Conner is a family practitioner in Caribou, Maine and has been Mr. Bouchard’s primary care physician since October 24, 2002. Dr. Conner’s initial history on that date revealed that Mr. Bouchard’s issues included “[hjistory of hepatitis C, history of IV abuse, had an accident in 1985, and has plates in his right ankle, and having a lot of pain with that. He’d been on methadone for this. And that does seem to help him.” Def.’s Ex. 184, Trial Dep. of David Conner dated April 11, 2007 at 5 (Conner Dep.). Dr. Conner stated that the methadone had “been started in one of the pain climes.” Id. Mr. Bouchard’s prior physician, Dr. Korkut, “didn’t feel comfortable with his medication with his history” and Mr. Bou-chard had come to Dr. Conner, asking him to take over his primary care, including “continuing on this medication for him.” Id. at 6. Although Dr. Conner stated that methadone can be prescribed for both chronic pain and drug addiction, he does not “have the license to use methadone for addiction.” Id. at 8. But, he acknowledged that the methadone — which he was prescribing for chronic pain- — ’“was helping [the narcotic addiction] too.” Id.

Dr. Conner said that Mr. Bouchard’s most important medical issue on October 24, 2002 was his hepatitis C. Id. at 9. He said that people with hepatitis C “don’t do well with that long term usually.” Id. The other medical problems included addiction and chronic pain. Id. Mr. Bouchard returned to Dr. Conner on November 22, 2002 for unrelated reasons; Dr. Conner confirmed that he prescribed 15 milligrams of methadone three times per day. Id. at 13-14. The last time Dr. Conner saw Mr. Bouchard before the accident was December 30, 2002. Id. at 15. Mr. Bouchard complained of “having more pain.” Id. Dr. Conner prescribed a higher dose of methadone — 10 milligrams, 4 times per day — and started him on a non-steroidal anti-inflammatory drug (NSAID) called Arthrotec. Id.

According to Mr. Bouchard, he was employed — as required by the methadone program — full-time at Del’s Welding. Mr. Bouchard testified that he was doing fine on the methadone program in the month preceding the accident. Brandon Bou-chard corroborated this testimony, stating that his father’s drug abuse problems were the worst between 1996 and 1998. During much of that period, his mother did not allow him to see his father. Just before the accident, however, Brandon thought his father was doing pretty well.

3. Mr. Bouchard’s Employment History

Shortly after graduating from high school in 1987, Mr. Bouchard began working for Cianbro Corporation and he worked on a variety of projects during the year he was employed by Cianbro. During that year, he worked throughout the state of Maine, including Westbrook in southern Maine, Lincoln and Millinocket in north central Maine, and Fort Fairfield in northern Maine. After leaving Cianbro in October 1988, Mr. Bouchard went to work for a refrigeration contractor at Penobscot Frozen Foods in Washburn, Maine in Aroostook County. He estimated that he spent three months on the refrigeration project. At some point, Mr. Bouchard’s brother, Dwayne, finished his employment with Soucie Welding and started his own company “Bouchard Sheet Metal Welding.” Mr. Bouchard worked for his brother between late 1988 and mid-summer 1989.

Between the late summer and the fall of 1989, Mr. Bouchard worked for the Alabama-based company, BE & K Construction, at the International Paper mill in the western Maine town of Jay. He then went to Maine Energy Systems to work on a power plant in Lewiston, Maine and remained there until January or February of 1990,

Mr. Bouchard next went to work for the Holden Company. While with the Holden Company, he worked on a number of jobs, including jobs at Loring Air Force Base in Limestone, Maine, in Winterport, Maine, Logan Airport in Boston, Massachusetts, and the naval base station in Kittery, Maine. He began with Holden in the spring of 1990 and ultimately left sometime in the late summer of 1992. There was a brief lapse in his employment with the Holden Company in the late fall of 1991, after Mr. Bouchard had finished working at Logan Airport and before beginning work at the naval base in Kittery; during the interim, he went to work for Del’s Welding & Fabrication- (Del’s) in Caribou on a refrigeration job.

After leaving the Holden Company, Mr. Bouchard worked for L & M Plumbing and Heating (L & M) at McCain foods in Easton, Maine for a few weeks but then went to Zum-Nepco in Ashland, Maine, where he remained until March 1998. He then went to work at NIC in Berlin, New Hampshire on a paper mill. About a month and a half later, however, Mr. Bou-chard left the New Hampshire project for a higher paying job through G & C Enterprises (G & C) at the Air National Guard Base in Bangor, Maine. After completing the work in Bangor, Mr. Bouchard stayed on with G & C to do a project at the McGuire Air Force Base in Wrightstown, New Jersey. His work with G & C ended around February 1995.

Mr. Bouchard then returned to New Hampshire, this time to work for Structural Associates on a shutdown at the Pease Air Force Base in Newington. This job ended sometime in the fall of 1995. Also that fall, the Vice President of G & C, who had opened up a sister company, Eagle Construction, requested Mr. Bouchard’s assistance for a sixteen-day project in La-kehurst, New Jersey.

The following spring — spring of 1996— Mr. Bouchard was back in Maine working at International Paper in Jay, this time for a local company called BMW. When this work ended, in the late summer of 1996, Mr. Bouchard returned to work for L & M at McCain’s in Easton. He stayed with L & M until the spring of 1997.

Mr. Bouchard then received a call from the refrigeration company he worked for on the Penobscot Frozen Foods plant. This time, the job was in Mars Hill, Maine and it lasted until the fall of 1997. While working in Mars Hill, Mr. Bouchard twisted his ankle and was out on worker’s compensation for several weeks. Although Mr. Bouchard returned to work for BMW for a short while that winter, he ultimately decided to take some time off from welding. He had been in touch with a family Mend who did home construction and roofing and he went to work for him until the summer of 1998.

Mr. Bouchard returned to welding in the fall of 1998 when he went back to work for L & M at McCain’s foods in Easton; he remained there until the fall of 1999. In January 2000, the Saxon Group hired Mr. Bouchard to work in Veazie, Maine. He left the Saxon Group in late March 2000 and went to work for Maine Pipers, which was looking for people to maintain some power plants in California. Mr. Bouchard first worked on a shutdown of a power plant in southern California, then flew to Sunnyside, Utah and worked on a shutdown there, and then flew back to southern California to work on a power plant beside the first one. He flew back to Maine in April 2000 to work for a couple of weeks on a shutdown in Millinocket, Maine.

He then went back to work for L & M for the summer of 2000. During the fall, Mr. Bouchard worked on a water tower at the old Loring Air Force Base. While working on the water tower, Mr. Bouchard came across someone with whom he had previously worked at the Holden Company and he went to work for him for various jobs through December 2001.

Beginning in 2002, Mr. Bouchard went back to work for Del’s. He worked on a number of jobs with Del’s, including one at Mars Hill and one at McCain’s in Easton. When Del’s had a lull in its workload, Mr. Bouchard was laid off and, as a result, went back to L & M. Soon after, however, Del’s received more work and called Mr. Bouchard. He began working for Del’s again in the fall of 2002 and worked up until two days prior to the accident in 2003.

4. The Physical Demands of Welding

Mr. Bouchard testified about the physical demands of welding. Although the physical demands of a welding job depend on the circumstances of that job, Mr. Bou-chard testified to a number of welding scenarios and the corresponding physical requirements. One standard requirement is the presence of a welding machine. However, since it is impractical to move the machine for each weld, the welders frequently have to carry welding leads which run between themselves and the welding machine. The leads are copper wires with protective coating and are approximately an inch in diameter. The location of the welding machine relative to the job determines the length of the welding lead the welder is required to carry, but, often times, the welder may need to carry a hundred feet of lead with him.

Mr. Bouchard further testified that he was routinely required to climb ladders and scaffolding, and has previously been required to construct his own scaffolding. He stated that balance was critical to his job; he regularly worked at significant heights and had to walk along steel beams. He also stated that about ninety to ninety-five per cent of the time, he had to crouch or kneel to get into the proper position to perform a weld. Finally, Mr. Bouchard kept quite rigorous working hours. He explained that he worked eight hours a day at the bare minimum, and more typically, he worked a lot of overtime. Frequently, he worked seven days a week for twelve hours each day.

5. Mr. Bouchard’s Prior Criminal Record

In May 1993, Mr. Bouchard was charged with reckless conduct, later found guilty, and served seven days incarceration. In March 1995, Mr. Bouchard was charged with misdemeanor assault, found guilty, and received a suspended sixty day sentence with probation for one year. In August 1995, he was charged with violating the conditions of his probation and, in April 1996, he was found guilty and sentenced to 48 hours in jail, all suspended. In December 1995, he was charged with violating a protective order and was found guilty and fined $100.00. Also in December 1995, he committed the offense of theft by deception and paid restitution of $785.00. In February 1996, he was charged with disorderly conduct and criminal mischief and, after being found guilty in April 1996, he was incarcerated for thirty-one days and paid $160.00 in restitution. Also in February 1996, he was charged with misdemeanor assault and in April 1996, when he was sentenced for the disorderly conduct and criminal mischief, he was sentenced to a concurrent term of thirty-one days incarceration. In November, 1996, he committed the misdemeanor offense of theft of services and after being found guilty, paid a fine of $200. In April 1999, Mr. Bouchard was charged with, and in November 2000 found guilty of, felony assault. He was sentenced to one year in jail, all but sixty days suspended. He was released from prison in early 2001. His criminal record reflects these misdemean- or and felony convictions.

D. The Accident and Its Aftermath

1. The Accident

It was snowing and dark on January 19, 2003, when Mr. Bouchard and his son Brandon headed north on Route 1 in a 1991 Dodge Daytona. Mr. Bouchard was driving and Brandon was in the front passenger seat. The roads were very, very slippery and there was a lot of snow and slush. As they proceeded down a hill, Mr. Bouchard noticed headlights coming up the hill, but veering all over the place. Mr. Bouchard assumed the vehicle was out of control and then it disappeared in snow dust. When it reappeared, the vehicle was heading directly toward his car. Mr. Bou-chard tried to pull into a ditch, but the other vehicle struck his ear on the driver’s side.

Mr. Bouchard’s air bag exploded, but he could still feel the motor and dashboard coming toward him. The steering wheel broke and he was pushed toward his son in the passenger seat. After the vehicle came to rest, the dashboard had pinned his legs against the seat. Mr. Bouchard could not move and after the rescue crew came to the scene, they were forced to use the jaws of life to extract him from the vehicle.

After about fifty minutes, they removed Mr. Bouchard and began the trip by ambulance to The Aroostook Medical Center (TAMC) in Presque Isle. After a stopover at TAMC, it was determined that he had to be transferred to EMMC in Bangor and he was transported there by ambulance. Mr. Bouchard was medicated for the long ride to Bangor, and an ambulance attendant gave him periodic injections of morphine. He was admitted to EMMC and underwent surgery.

2. Treatment at EMMC

Mr. Bouchard arrived at EMMC at about 1:30 a.m. on January 20, 2003. The intake history states he was complaining of pain in both legs and in his right arm. He was transferred to the orthopedic service under the care of Dr. Richard Bower and Dr. Bower performed a closed reduction and external fixation of the right distal radius, a retrograde nailing of a fracture of the right distal femur, and an antegrade nailing of a subtrochanteric fracture of the left femur. Upon discharge on January 24, 2003, he carried the following diagnoses: (1) fracture, right distal radius; (2) fracture, right distal femur; (3) fracture, left proximal femur; and, (4) recovering narcotic addiction on methadone. Upon his discharge on January 24, 2003 to rehabilitation in Presque Isle, Dr. Bower commented that he “got off to a good start with physical therapy here” and his prognosis was “[g]ood for eventual healing.” Pl.’s Ex. 1 at 317.

3. January 24, 2003 — September 10, 2003

After Mr. Bouchard arrived back in Aroostook County, he was examined by Dr. Stephen Wood, who gave an optimistic assessment: “This unfortunate man, hopefully, will completely recover from these fractures.” Pl.’s Ex. 1 at 26. Dr. Wood recommended a course of physical therapy, which Mr. Bouchard undertook. However, Mr. Bouchard did not make satisfactory progress and, on September 10, 2003, he returned to see Dr. Naranja, the orthopedic surgeon who had seen him about a year before in response to his ankle complaints.

4. Dr. Naranja’s Treatment: September 20, 2003 to Present

When Mr. Bouchard returned to Dr. Naranja, his major complaint was restrictive motion of his right knee. His range of motion was only 10 to 30 degrees; normal is 150. Dr. Naranja thought that some of the hardware that was still in the knee should be removed and that, at the same time, it would be worthwhile trying lysis of the adhesions. Pl.’s Ex. 1 at 550. Dr. Naranja performed this operation on October 10, 2003 at the Northern Maine Medical Center (NMMC) in Fort Kent, Maine. Id. at 520-29. The surgical note reveals that Mr. Bouchard’s range of motion post-surgery had increased to 120 degrees of flexion. Id. at 520. According to Dr. Nar-anja’s notes, Mr. Bouchard continued to progress after the October 2003 surgery and by March 4, 2004, Mr. Bouchard reported that his range of motion was “much better than it was preoperatively,” but he still had “some areas in the incision that will occasionally open up.” Id. at 554. Dr. Naranja thought he had developed some bursitis of the greater trochanter and he gave him a Cortisone injection. Id. When he was seen on June 2, 2004, Dr. Naranja tested his range of motion at 120 degrees, but noted some quadriceps atrophy and ankle instability. Id. at 555. He recommended physical therapy. Id.

As of July 7, 2004, Mr. Bouchard was complaining that the rod that Dr. Bower had installed was moving around and he had stopped his physical therapy. Id. at 556. Dr. Naranja thought the rods should be removed and he scheduled another round of surgery for October 8, 2004, again at NMMC. Id. at 530-35. Notwithstanding the second surgery, by February 24, 2005, Mr. Bouchard was still in “a significant amount of pain.” Id. at 565. He was experiencing “quite a bit of crepitus with his [range of motion] and he has difficulty walking any distance.” Id. The decision was made to proceed with a total knee replacement. Id.

On April 11, 2005, Mr. Bouchard was readmitted to the NMMC for a total knee replacement. Id. at 1375. By November 2, 2005, Dr. Naranja’s physician’s assistant writes that “[e]verything seems to be going well.” Id. at 896. He recommended physical therapy. By December 14, 2005, however, Dr. Naranja writes: “The patient is doing fairly well with regard to his [range of motion], but he has quite a bit of deconditioning as is expected after his multiple surgeries. Given his chronic de-conditioning and the fact that he has a knee replacement with limited longevity, I would recommend that he be placed on a no work capacity to try and preserve the longevity of his knee.” Id. at 897. By April 19, 2006, Dr. Naranja notes that Mr. Bouchard had been swimming 3 to 5 times per week and had noted less quadriceps atrophy; he told him to “continue with his activities as tolerated....” Id. at 899.

Dr. Naranja last saw Mr. Bouchard on November 2, 2006. Id. at 1374. At that point, Mr. Bouchard was also complaining of right wrist pain, which Dr. Naranja injected with Cortisone. Id. In addition, he complained of “sloppiness” in the right knee. Id. Dr. Naranja’s physical examination of the right knee revealed “full [range of motion] and incisions are well-healed.” Id. He was concerned, however, about atrophy in his right leg and recommended some Biodex testing to compare the right and left legs.

5. Dr. Conner’s Treatment After January 19, 2003

Dr. Conner has continued to act as Mr. Bouchard’s primary care physician since January 19, 2003. After the accident, Dr. Conner increased Mr. Bouchard’s dosage of methadone from one ten milligram tablet, four times per day — or about 120 tablets per month' — to three ten milligram tablets, four times per day — or about 360 tablets per months, a three-fold increase in his methadone dosage. Conner Dep. at 60-61. By the end of 2003, Mr. Bou-chard’s methadone dosage was increased fivefold to 50 milligrams, four times per day — or about 600 tablets per month. Id. at 62. According to Dr. Conner, chronic pain was the reason for these higher dosage levels. Id. at 62. Even at these increased levels, methadone was not successful in managing Mr. Bouchard’s level of pain, and after each surgery, he “seemed to be worse.” Id. at 63, 74.

In the fall of 2006, concerned about the fact he had not improved, Dr. Conner concluded that he “needed to start finding other pain medications to treat his pain.” Id. at 16. He decided to wean him from methadone. In December 2006, Dr. Conner replaced methadone with a new drug, Suboxone, which the doctor described as a “good solution” for people like Mr. Bou-chard. Id. at 16-21. Suboxone has eliminated Mr. Bouchard’s “craving for narcotics” but it is “[n]ot treating his pain as well.” Id. at 22. Dr. Conner tried other medications to address the pain, including Cytotec, Lyrica, Cymbalta, and Amitripty-line. Id. at 22-23. When the doctor last saw Mr. Bouchard, he had just started Lyrica and he agreed that “the jury’s still out” on the effects of non-narcotic pain medications. Id. at 75. Thus far, Dr. Conner’s efforts to help Mr. Bouchard address his chronic pain have been largely unsuccessful and he testified that Mr. Bou-chard’s prognosis “doesn’t look too good at this point.” Id. at 84. He agreed that Mr. Bouchard would need “some type of medical care or treatment for managing his injuries and pain for the rest of his life.” Id.

6. Mr. Bouchard’s Current, Non-Employment Physical Abilities

In the summer of 2006, Mr. Bouchard was able to engage in some outdoor activities with friends. His activities included joining his friends while they were out camping at various locales in Maine (although he would not spend the night), attending August Fest, going to a smashup derby, visiting Portage lake, and picking raspberries and strawberries. He had also gotten into and out of boats on at least a few occasions and was able to do a little bit of fishing.

His son, however, testified to a dramatic difference between his father’s pre- and post-accident activity level. According to Brandon, his father bought him ATVs and snowmobiles when Brandon was younger and the two used to ride together a great deal; now, Mr. Bouchard does not get on a four-wheeler or snowmobile. When they are boating or fishing, something they used to do regularly, Mr. Bouchard seems uncomfortable all the time and often wants to go home early.

In terms of household maintenance, because of his father’s limitations, Brandon has assumed many of the duties his father used to do. Brandon testified that he has to cut and split wood and do all the cleaning. Similarly, Brandon stated that his father cannot sit in one place for too long, cannot drive in a car for too long — when they go on car rides they frequently have to pull over for Mr. Bouchard to get out and walk around — and that his father does not seem to trust the stability of his artificial knee and avoids ladders.

7. Mr. Bouchard’s Post Accident Drug Addiction

Mr. Bouchard’s drug-seeking behavior has continued since the accident. In July 2003, Mr. Bouchard presented at Cary Medical Center’s emergency department where he complained of an inability to sleep and withdrawal problems with methadone, told hospital personnel that he was concerned about drug enforcement agents, and then refused voluntary admission. The following month, Mr. Bouchard drove from Caribou to Bangor and went to EMMC’s emergency department complaining of pain and seeking medication. The emergency room doctors refused to prescribe any more pain medication because Mr. Bouchard admitted that his prescribing physician was refusing to give him more medication; EMMC personnel thought it prudent to follow the same course of action.

In July 2004, Mr. Bouchard went to Cary Medical Center’s emergency department. On this occasion, he was being treated after a low-speed roll-over in his ear. While Mr. Bouchard did not immediately experience any pain after exiting his car through a side window, he soon developed shoulder pain and was taken to the emergency department at that point.

On October 12, 2004, Mr. Bouchard returned to Cary Medical Center, this time to have a leg dressing changed. While he was there, although he was not experiencing any particular discomfort, Mr. Bou-chard asked the physician if he would write a prescription for pain medication. Mr. Bouchard testified that, at that time, he was thinking about getting off of methadone and would need a pain medication in lieu of methadone. On October 17, 2004, Mr. Bouchard again went to Cary Medical Center. He requested additional pain medication, but was refused as he was already taking both Percocet and methadone.

In December 2004, Mr. Bouchard presented at Cary Medical Center expressing that he had a tooth ache and asking the physician to examine his right knee. He requested, and received, a short-term prescription for oxycodone.

Finally, in December 2005, Mr. Bou-chard was found asleep in his car on the side of the road in Caribou. Mr. Bou-chard testified that he was visiting friends that night and that it was approximately a mile between his friends’ house to where his car was parked. He explained that one reason he fell asleep was because he was tired and his knee was bothering him. Additionally, he admitted he had also taken methadone for his knee, Sudafed for his sinuses, and some Benadryl.

III. TRIAL ISSUES

The parties agree generally to how the accident occurred and the medical procedures Mr. Bouchard underwent following the accident. They substantially disagree, however, on Mr. Bouchard’s earning capacity and the impact of his injuries on his earning capacity. Each party took a “tiered” approach to the presentation of expert testimony. Mr. Bouchard introduced the medical testimony of Dr. Naranja, who gave his opinion on appropriate physical restrictions for Mr. Bouchard. Next, he introduced the testimony of vocational rehabilitation counselor Jack Bopp, who expressed his opinion on Mr. Bouchard’s employment potential, given Dr. Naranja’s recommended restrictions. Finally, Mr. Bouchard introduced the testimony of economist Dr. Alan Stewart McCausland, who testified about Mr. Bouchard’s earnings potential, given Mr. Bopp’s opinion on Mr. Bouchard’s employment opportunities.

In response, the United States introduced the medical testimony of orthopedic surgeon Dr. James Bono, who gave his opinion on appropriate physical restrictions for Mr. Bouchard. Similarly, the United States introduced the testimony of vocational rehabilitation counselor Ms. Eileen Kalikow, who expressed her opinion on Mr. Bouchard’s employment potential, given the recommended physical restrictions. Although the United States did not call its own economist, it pointed out asserted flaws in Dr. McCausland’s reasoning. In addition, the United States cross-examined Mr. Bouchard extensively on his pre- and post-accident addictive behavior in an effort to demonstrate that his addictions negatively affect his earning capacity.

A. The Medical Experts

1. Dr. John Naranja

a. The Total Knee Replacement and Mr. Bouchard’s Prognosis

Dr. Naranja described the seriousness of a total knee replacement. He explained that the surgery requires opening up the knee joint, and from there, the surgeon shaves off the areas of arthritis on the three bones which comprise the knee joint — the femur, the tibia, and the patella — and replaces the joint with metal and plastic. The artificial knee differs markedly from a normal human knee joint. Patients experience a different sensation of feeling and space because there are no nerve endings on the metal and plastic. As a result, they may put more force on the knee than they would with a normal knee, which could presumably feel that it was being overexerted. In addition, an artificial knee frequently affects the surrounding muscles and atrophy is common. This often upsets the ability to balance, alters gait, and may disrupt other areas of the body because those joints or muscles compensate for the shift in muscular function.

Dr. Naranja testified that Mr. Bouchard was quite young to undergo a total knee replacement, as they are typically recommended in patients sixty-five years old or older. This is because the knee replacements have a limited longevity. Dr. Nar-anja stated that in patients sixty-five or older, the replacements last anywhere from ten to twenty years, but that the longevity significantly decreases in younger patients. He opined that this may be due to increased activity levels at a younger age, or the bones being at a different stage; he asserted that, whatever the reason, knee replacements in younger patients have a much shorter duration.

Given Mr. Bouchard’s circumstances, Dr. Naranja recommended that Mr. Bou-chard be placed on “no work” capacity to try to preserve the longevity of the knee. Dr. Naranja testified that preservation is critically important because, in the future, Mr. Bouchard may require revisions and, at some point, there may not be a sufficient amount of bone remaining to affix another knee replacement. As such, Mr. Bouchard’s options would then become limited to either a fusion of the bones or no knee at all. Dr. Naranja affirmed that the likelihood of reaching that point increases with the more activity and stress that the patient places on the knee. Dr. Naranja estimated that Mr. Bouchard would need to have his knee replaced again in ten to twelve years. Because his estimate is based on data from a significantly older age group, Dr. Naranja used the lower end of the timeline. He also stated that subsequent knee replacements would need to occur every ten years thereafter, explaining that each subsequent knee replacement has further reduced longevity.

b. Dr. Naranja’s Recommended Physical Restrictions

Largely to enhance the longevity of Mr. Bouchard’s total knee replacement, Dr. Naranja imposed substantial restrictions on his physical activity. As earlier noted, he placed him on “a no work capacity.” Pl.’s Ex. 1 at 897. In Dr. Naranja’s opinion, Mr. Bouchard may sit for up to two hours, stand or walk for up to one hour, or drive for up to two hours, all continuously and without a break. Within a full eight-hour day, Mr. Bouchard may sit for up to four hours, stand and walk for up to four hours, and drive for up to four hours, but would need to take periodic breaks.

Dr. Naranja imposed lifting restrictions on Mr. Bouchard, stating that heavy lifting would decrease the longevity of the knee. Mr. Bouchard may frequently lift up to ten and twenty pounds. If he is feeling particularly good, he may occasionally lift weights over twenty pounds. If, however, he is experiencing any general discomfort with his knee, he should refrain entirely from lifting over twenty pounds.

Mr. Bouchard should never climb or balance. Dr. Naranja explained that in addition to the stress on the knee, these activities present safety concerns since, given the absence of nerves, the sensation of balance in an artificial knee is not what it would be in a normal knee. Similarly, Dr. Naranja recommended that Mr. Bou-chard’s physical restrictions include no kneeling, lifting, crouching, squatting, or any activities that place increased force around the knee. On the other hand, Mr. Bouchard is able to engage in upper body activities, such as reaching, handling, and fingering, without restriction.

Based on his recommended physical restrictions, Dr. Naranja testified that it would not be appropriate for Mr. Bou-chard to return to his previous career as a welder. Moreover, in light of the anticipated future knee replacements, Dr. Nar-anja maintained that Mr. Bouchard would likely be disabled from the competitive work force between the age of forty-five and fifty.

On cross-examination of Dr. Naranja, the Government brought out a number of positive signs. Dr. Naranja agreed that a bone scan had showed no sign of loosening or suspected wear of the artificial knee joint and that Mr. Bouchard was maintaining a good range of motion. He was continuing with conditioning and strength work. As of April 2006, Mr. Bouchard’s flexion was zero to 120. By July 2006, the incision was well-healed and he no longer had any significant pain. The knee was stable, he was able to walk, and he was not using a brace, crutches, or a cane. Moreover, Mr. Bouchard was able to climb some stairs because he was required to do so as part of his physical therapy regime.

As a final matter, the Government noted that Dr. Naranja had recommended that Mr. Bouchard go to County Physical Therapy. Dr. Naranja was unaware, however, that Mr. Bouchard had cancelled six straight appointments with County Physical Therapy. He was further unaware that County Physical Therapy had come to the conclusion that Mr. Bouchard had potential for improvement, but that he did not have a very good understanding of what was needed to improve his physical abilities. Finally, unbeknownst to Dr. Naranja, County Physical Therapy had been unable to get in touch with Mr. Bou-chard.

2. Dr. James Bono

The United States’ medical expert was Dr. James Bono, also an orthopedic surgeon. Dr. Bono’s orthopedic practice is limited to hip and knee surgery and he has performed more than 1,600 total knee replacements over the past twelve years. To prepare Dr. Bono for trial, the United States provided him with Dr. Naranja’s medical records, Dr. Naranja’s deposition transcript, Mr. Bopp’s vocational rehabilitation report, and some notes from conversations between Dr. Naranja and Mr. Bopp. Dr. Bono testified that, in his medical opinion, the total knee replacement was medically appropriate.

Dr. Bono explained the AMA Permanent Impairment Guidelines, stating that they quantify the disability resulting from an injury. They are formulaic: they enable one to insert certain values and calculate an impairment rating based on a provided formula. Applying the Guidelines to Mr. Bouchard, Dr. Bono found that he had a thirty-seven percent lower extremity impairment of the right leg and a fifteen percent whole person impairment.

Like Dr. Naranja, Dr. Bono concluded that Mr. Bouchard should be entirely restricted from climbing, kneeling, crouching, crawling or balancing. The doctors further agreed that within the course of an eight-hour day, Mr. Bouchard should not stand or walk more than four hours without a break and that he should not drive more than four hours without a break.

Dr. Bono’s other recommended restrictions were less restrictive than Dr. Naran-ja’s by a factor of two. Mr. Bouchard should not lift anything greater than forty pounds; he should not sit more than four hours without a break; he should not stand or walk for more than two hours without a break: he should not drive for more than four hours without a break; and, within the course of an eight-hour day, he should not sit for more than eight hours at a time.

Dr. Bono testified that artificial knees last anywhere from fifteen to twenty years, depending on age, activity, weight, lifestyle, and occupation. He believed that Mr. Bouchard’s knee would last between fifteen and twenty years if he stayed within the imposed physical restrictions. He analogized the longevity of a knee replacement to the longevity of a car, saying that, either’s longevity depends on how well it is maintained. He stated that a patient has to take care of the artificial knee, not overuse it, and not overload it. As such, Dr. Bono stated that he has never — over the course of the last twelve years and over 1,600 knee replacement surgeries— recommended that a patient have no work capacity.

On cross-examination, however, Dr. Bono admitted that he had never treated, examined, or even met Mr. Bouchard. Rather, he admitted that his restrictions were consistent with those that he generally places on patients who have artificial knees and that they are not specific to Mr. Bouchard. Dr. Bono further divulged that his estimate of the knee replacement lasting between fifteen and twenty years is based on a statistical average and he agreed that it was quite uncommon for someone Mr. Bouchard’s age to have a total knee replacement. Of the over 1,600 knee replacement surgeries Dr. Bono had performed in his career, fewer than ten involved patients in their thirties. Dr. Bono acknowledged that total knee replacements on patients in their thirties represent approximately one half of one percent of the statistical pool. Finally, Dr. Bono agreed that, since Mr. Bouchard’s job as a welder required heavy lifting, he should not return to that line of work.

B. The Vocational Experts

1. Jack Bopp

Mr. Bouchard presented the expert testimony of vocational rehabilitation counsel- or, Jack Bopp, whom he retained to analyze his post-injury vocational abilities and earning capacity. Under the name of Rehabilitation Services Associates, Mr. Bopp provides counseling and consulting services in the area of disability to the legal community. Mr. Bopp has experience placing people with disabilities in jobs and has direct experience working with welders.

Mr. Bopp met with Mr. Bouchard for an initial rehabilitation interview in July 2005 and has since spoken with him by telephone on many occasions. As part of his evaluation, Mr. Bopp reviewed Mr. Bou-chard’s medical records, his social history, including his family background, criminal history, and history of drug dependency, his educational history, including his recent aptitude tests for vocational testing, and Mr. Bouchard’s entire employment history beginning when he left high school through the accident; Mr. Bopp is further aware of Mr. Bouchard’s professional qualifications, experience and certifications in welding.

More generally, Mr. Bopp familiarized himself with the physical requirements and hazards of Mr. Bouchard’s jobs. He testified that welding is a hazardous trade and one which requires significant exertion at the medium and heavy levels, as defined by the United States Department of Labor (DOL). According to DOL definitions, medium exertion means being on one’s feet for at least six of eight hours a day, lifting up to fifty pounds, and frequently lifting about twenty-five pounds. Heavy exertion means frequently lifting fifty pounds and occasionally — meaning up to one-third of the day — lifting up to one hundred pounds. Heavy exertion also includes occasional crouching, stooping, and kneeling.

Mr. Bopp reviewed the work restrictions recommended by both Dr. Naranja and Dr. Bono and, under either set of restrictions, he concluded that Mr. Bouchard has lost his physical capacity to return to welding. Mr. Bopp explained that, although Mr. Bouchard still maintains his knowledge, he is no longer employable as a welder, because he cannot meet the physical demands of the occupation. Mr. Bopp noted that the prospects for a highly skilled welder in Maine — someone like Mr. Bouchard — were quite good: demand for workers and, therefore, their wages have remained high.

Mr. Bopp’s used the REPEL methodology to arrive at his conclusions. REPEL is an acronym for the different areas a vocational rehabilitation counselor examines: R stands for Rehabilitation Plan; E stands for employability; P stands for Placeability; E stands for Earning Capacity; and L stands for Labor Force Participation.

a. The Recommended Rehabilitation Plan

Mr. Bopp strongly recommended that Mr. Bouchard be provided with vocational rehabilitation services over approximately one year. Mr. Bopp was aware that Mr. Bouchard had made an attempt to return to school, but stated that educational training was not, in his opinion, the best approach for Mr. Bouchard. He explained that Mr. Bouchard has not taken college courses or vocational-technical courses since high school and he has no familiarity with computers. The better approach, according to Mr. Bopp, would be for the vocational rehabilitation counselor to develop a rehabilitation plan to focus on getting Mr. Bouchard the best possible job he is currently able to perform and then troubleshooting any problems that develop in that job.

b. Employability

Employability refers to the kinds of jobs the individual is qualified and capable of performing. If a person is disabled, the inquiry may look to the range of potential jobs he or she may have done before the disability and compare that to the range of potential jobs he or she could compete and qualify for after the disability.

Mr. Bopp testified that the first factor is whether there are related jobs that are less physically demanding into which Mr. Bouchard could transition. Mr. Bopp concluded that Mr. Bouchard’s physical limitations precluded him from performing any related jobs. He explained that there was an important distinction between skilled and unskilled jobs: skilled jobs refer to jobs that require at least six months of education or training to perform. Mr. Bouchard’s background would undoubtedly help him acquire a job as a welding machine operator or a bench welder, for example, but those are unskilled jobs. Therefore, Mr. Bopp maintained that, while Mr. Bouchard’s background would make him more competitive for those jobs, none is going to pay him well. Mr. Bou-chard has no transferable skills for skilled jobs. That is, there are no skilled jobs for which Mr. Bouchard could meet the physical demands.

Nor does Mr. Bouchard’s education help him. At Mr. Bopp’s recommendation, Mr. Bouchard was vocationally and educationally assessed. His academic skills — math and language skills — test at the sixth grade level. His vocational aptitude, or the raw ability to learn new tasks, tested in the below average to average range.

Ultimately, Mr. Bopp concluded that Mr. Bouchard presented significant em-ployability problems, given the physical restrictions provided by Dr. Naranja. He testified that even in the best case scenario, Mr. Bouchard would be working in unskilled, low-paying jobs that, even then, would have to be modified to accommodate him. He further stated that many employers are inflexible with respect to unskilled jobs when there are potential employees able to perform the job without accommodations.

c. Placeability

Placeability refers to how competitive an individual is for the jobs he or she is qualified to perform. That is, within the subset of jobs for which one is qualified, placeability looks to the likelihood that the individual will be hired. Mr. Bopp testified that, notwithstanding legislative efforts, people with physical disabilities encounter significant obstacles becoming and staying employed. He stated that people with disabilities are unemployed at significantly higher rates than people without disabilities; the more severe the disability, the more unemployment there is; and, when employed, people with disabilities receive lower earnings than those without disabilities.

Beyond his physical limitations, Mr. Bopp stated that Mr. Bouchard’s criminal record — namely the felony conviction on his record — as well as his social history would be a placeability obstacle. He noted, however, that these same issues did not appreciably impact his placeability in welding jobs because the population of workers in the welding trade tends to have more of those factors than workers in other labor pools. Of course, Mr. Bouchard also had a skilled trade to market for highly skilled welding jobs, which tended to offset his history.

d. Earning Capacity

Earning capacity looks to the wages associated with his pre- and post-disability employability. Turning first to Mr. Bou-chard’s pre-injury earning capacity, and taking into consideration Mr. Bouchard’s psychosocial problems, Mr. Bopp concluded that Mr. Bouchard would have been able to earn $12 an hour going forward. Mr. Bopp testified that he paid particularly close attention to Mr. Bouchard’s earnings history and observed that there was considerable fluctuation in his earnings history. Although the $12 an hour figure is consistent with what Mr. Bouchard was earning at Del’s Welding immediately pri- or to the accident, Mr. Bopp noted that it still represented a rather conservative estimate because it was lower than both the average wage rate of welders in Maine — at $16 or $17 an hour — and significantly lower than Mr. Bouchard’s own median wage rate over the years he worked as a welder.

As regards Mr. Bouchard’s post-injury earning capacity, there are two scenarios: (1) if Mr. Bouchard has no work capacity, his earning capacity would be zero; and, (2) if Mr. Bouchard could secure a job within the restrictions imposed by Dr. Naranja or Dr. Bono, his earning capacity would be some positive figure. Mr. Bopp provided a list of jobs potentially suitable for Mr. Bouchard, including dishwasher, dining room and cafeteria attendant, packer, maid and housekeeping cleaner, food preparation worker, laundry and dry cleaning worker, cleaner of vehicles and equipment, stock clerk or order filler, office clerk, and welding, soldering, or production welding machine operator. However, Mr. Bopp qualified each possibility, saying that, although these jobs are in the “light exertion” range, light exertion can require standing as many as six hours in an eight-hour day, which is beyond Mr. Bouchard’s capability of only four hours of standing in an eight-hour day. Therefore, even these jobs are only potential and the employer would have to make accommodations.

e. Labor Force Participation

Labor force participation is another term for work life expectancy. The inquiry projects how long an individual will be employed in the work force and whether there will be an early separation from the work force due to a disability. Similarly, it evaluates whether there are going to be longer and/or frequent periods of unemployment because of a disability.

In Mr. Bouchard’s case, his psychosocial adjustment difficulties mean that he probably would not work as frequently as an average person of his age, gender and occupational background. Mr. Bopp posited that he would work at only about seventy-five percent of what would be expected of his demographic group. The twenty-five percent reduction in Mr. Bouchard’s work life expectancy is in addition to Mr. Bopp’s conservative estimate of Mr. Bou-chard earning $12 an hour. Mr. Bopp testified that, although there was a possibility that Mr. Bouchard could earn $15 an hour and have a normal work life expectancy, he opined that within reasonable professional certainty, $12 an hour and a twenty-five percent reduction in work life expectancy were more reliable.

To date, Mr. Bouchard has already lost four years of work life capacity. Mr. Bopp suggested that, between now and age forty-seven and a half or age forty eight, Mr. Bouchard will lose at least another two years — at the conservative end — of his work life capacity.

On cross-examination, Mr. Bopp acknowledged that there is a relationship between an individual’s earning capacity and psychosocial problems. However, he maintained that, because his estimate already accounted for Mr. Bouchard’s history of psychosocial problems, including his struggle with drug addiction, his estimate of Mr. Bouchard’s earning capacity and work life expectancy would not change even were Mr. Bouchard’s psychosocial problems to intensify. Mr. Bopp reiterated that twenty-five percent was a conservative estimate, and one based on his own understanding and experience, having worked in the past with people with drug and alcohol problems. Mr. Bopp further noted that, historically, at the height of Mr. Bouchard’s drug abuse and legal difficulties in the late 1990s, he was still earning money at a fairly high level. He explained that, although Mr. Bouchard’s history presents considerable fluctuation in both his drug dependency issues as well as his earnings history, life earning capacity must look long-term. As such, Mr. Bopp testified his estimate already took into consideration the ebb and flow of Mr. Bouchard’s highs and lows and, therefore, his estimates would remain the same even if Mr. Bouchard’s drug dependency continued or got worse.

Also on cross-examination, the United States questioned Mr. Bopp about the foundation for some of his assumptions, including any corroboration from various employers about Mr. Bouchard’s hourly earnings, the number of hours he worked, and any other fringe benefits. Other than information provided by Del’s Welding, Mr. Bopp did not have documentation from Mr. Bouchard’s employers confirming, for example, how much he made, the hourly rate, the number of hours he worked, or whether he had been given fringe benefits. Rather, he had relied on the information Mr. Bouchard provided him.

Finally, the Government explored the numbers of hours typically worked by welders in a given year. Mr. Bopp testified at trial that it is frequently between 1600 and 1800 hours each year, although some work as many as 2080. The Government pointed out both that, at his deposition, Mr. Bopp had stated that welders typically worked 1800 hours each year, and that, in the two years just prior to the accident, 2001 and 2002, Mr. Bouchard had worked only 1500 and 1000 hours per year, respectively.

2. Ms. Eileen Kalikow

In rebuttal, the United States presented the testimony of Ms. Eileen Kalikow as its vocational rehabilitation counselor. Like Mr. Bopp, Ms. Kalikow works with people with disabilities and helps them identify work they are able to perform and then to locate suitable jobs; she also helps them find work. The United St