This list includes cases in which hedonic damages was mentioned as an issue from 1985 to September 1, 2022. The list is not complete and is a work in progress that will be added to and improved over time.
1985
(1) Sherrod v. Berry, 629 F. Supp. 159 (N.D.Ill. 1985), aff’d, 827 F.2d 195 (7th Cir. 1987), vacated, 835 F.2d 1222 (7th Cir. 1987), rev’d on other grounds, 856 F.2d 802 (7th Cir. 1988). This was the first case in which Stanley V. Smith was permitted to testify about hedonic damages. U.S. District Court Judge George N. Leighton admitted and commented favorably about Smith’s testimony, but the case was ultimately reversed on other grounds.
1986
No decisions.
1987
(1) Sherrod v. Berry, 827 F.2d 195 (7th Cir. 1987), rev’d on other grounds, 835 F.2d 1222 (7th Cir. 1987). The appeal from defense included a claim that Stanley V. Smith should not have been permitted testify about hedonic damages at the trial court level in 1985. The 7th Circuit held that it was not error for Smith to be allowed to testify and that Smith’s testimony had been “invaluable” to the jury.
1988
(1) First Trust Co. v. Sheels Hardware & Sports Shop, 429 N.W.2d 5 (N.D. 1988). Loss of enjoyment of life is a component of pain and suffering.
1989
(1) Kasnia v. Brothers Aviation, 1989 U.S. Dist. LEXIS 19566 (E.D. WI 1989). This decision was reached under Michigan state law regarding hedonic damages and loss of society and relationship. Judge Robert W. Warren excluded testimony from Stanley Smith saying:
“The problem of translating the loss resulting from an accident into money damages is always a complex and often imprecise calculation.” Willinger, 241 Pa. Super. 456, 469, 362 A.2d 280, 286-87 (1976). But the Michigan courts and legislature have established guidelines to assist the jury in calculating loss compensation, and hedonic damages or damages for loss of life’s pleasures is not one of the elements of recovery in a wrongful death action under the loss of society and companionship. Accordingly, the Court GRANTS defendants’ motion in limine to preclude the introduction of any and all evidence concerning hedonic damages or damages for the loss of enjoyment of life in this trial on the ground that this evidence is irrelevant. This order precludes the plaintiff’s expert Stanley V. Smith from testifying as to his opinion concerning the value of the Kasnia’s loss of society and companionship claim.
(2) Lucy v. Washington Metropolitan Transit Authority, 1989 U.S. Dist. LEXIS 6453 (D.D.C. 1989). The court granted a defense motion to exclude hedonic damages on the ground that Maryland’s survival statute does not provide for hedonic damages.
(3) Leiker v. Gafford, 245 Kan. 325; 778 P.2d 823 (Kan. 1989). This decision held that hedonic damages cannot be recovered as a separate element of damages in Kansas, saying: “[L]oss of enjoyment of the pleasurable things in life is inextricably included within the more traditional areas of damages for disability and pain and suffering. While it is true that a person may recover from the physical pain of a permanent injury, the resultant inability to carry on one’s normal activities would appear to fall within the broad category of disability. In the majority of cases loss of enjoyment of life as a separate category of damages would result in a duplication or overlapping of damages. . . However, we also point out that evidence of loss of enjoyment of life is definitely admissible and proper for the jury’s consideration as it relates to disability and pain and suffering, and may certainly be argued by counsel to the jury. We hold that in Kansas, loss of enjoyment of life is not a separate category of nonpecuniary damages in a personal injury and that it is in error to submit a separate instruction, or provide a separate verdict form entry, on loss of enjoyment of life. However, in a proper case it is a valid subcomponent or element of pain and suffering and/or disability.” The decision also held that “Kansas generally follows the majority rule that damages are recoverable only for pain and suffering which is consciously experienced.” The decision cited Wentling v. Medical Anethesia Services, 237 Kan. 503, 507-09, 701 P.2d 939 (199); K.S.A. 1988 Supp. 60-1904 to the effect that: “There was testimony by plaintiff’s expert witness that a conservative estimate of the present value of Shawn’s anticipated lifetime earning capacity alone exceeded $1,000,000. The expert testified that the present value of the household and family care services she would have provided between the ages of 24 and 70 was $556,335. He reduced the totals by $213,303 as the estimated present value of Shawn’s lifetime personal consumption, concluding that the total pecuniary loss for earning capacity and household and family care was $1,633,055. There was sufficient evidence to support the jury verdict of $1,000,000 for pecuniary loss in the wrongful death action.”
(4) Phillips v. Eastern Maine Med. Cntr., 565 A.2d 306 (Me. 1989). Hedonic damages are not allowed for the period after death, but may be recovered for the period from injury to death.
(5) Clement v. Consol. Rail Corp., 734 F.Supp. 151 (D.N.J. 1989). Interpreting New Jersey Law, this decision held that hedonic damages are not available under New Jersey’s Wrongful Death Act, but are available under the Survival Act if an injured party survives an accident for a period of time and is conscious.
(6) Nussbaum v. Gibstein, 73 N.Y.2d 912 (1989). Hedonic damages can be discussed in a personal injury action if the injured person is not comotose. However, “Loss of enjoyment of life is not a separate element of damages deserving a distinct award but is, instead, only a factor to be considered by the jury in assessing damages for conscious pain and suffering.”
1990
(1) Birdsell v. Board of Fire and Police Commissioners of the City of Litchfield, 1990 U.S. Dist. LEXIS 14961 (C.D. IL 1990). The court granted defendant’s motion in limine to bar the hedonic damages testimony of Stan Smith, saying:
The Court agrees with the Defendants that the testimony on hedonic damages would confuse or mislead the jury and furthermore, would not be relevant. The real basis of the Court’s opinion is that this Court is not aware of any valid legal basis or authority for extending hedonic damages from death civil rights cases to this case, where it is alleged the Plaintiff was terminated from his job without due process. Simply state evidence of such damages is not relevant.
(2) Polyak v. Reus, Inc., 1990 Minn. App. LEXIS 815 (MN App. 1990). Th Minnesota Court of Appeals said:
Minnesota Courts have never recognized loss of enjoyment of life as a separate element of damages . . . There is no Minnesota authority for a specially worded instruction on loss of enjoyment of life and we decline to impose such a requirement here. . . Dr. Smith would have testified about how to calculate damages for loss of enjoyment of life. Because Polyak’s evidence consisted of his emotional reaction to the shooting and not loss of enjoyment of life, there was no foundation for Dr. Smith’s testimony. . . Therefore the trial court’s exclusion of Smith’s testimony was proper.
(3) Mapp v. Karos, 1990 U.S. Dist. LEXIS 21306 (E.D. WI 1990). Stanley V. Smith (later Stan V. Smith) was excluded from testifying about dollar values for the life of decedent in a wrongful death action as not relevant to damages allowed under the act. Smith’s calculations for loss of society and relationship were also excluded because:
[T]estimony as to an average relationship without being specific to the decedent’s relationship with her children will not assist a jury. In Wisconsin, an award for the loss of society and companionship must be based on the specifics of the relationship in question, just as the loss of enjoyment of life must be grounded in the age, health, habits, and pursuits of the injured party [in a personal injury case].
(4) Gonzales v. City Wide Insulation, 1990 U.S. Dist. Lexis 6360. U.S. District Court, interpreting Illinois law, ruled that the Illinois Wrongful Death act does not provide for the recovery of hedonic damages.
1991
(1) Fetzer v. Wood, 211 Ill.App.3d 70 (Ill.App.2 Dist. 1991). The Illinois Court of Appeals upheld a trial court decision not to admit hedonic damage testimony about loss of the enjoyment of life to be provided by Stan V. Smith. The court reasoned from the fact that expert economic testimony is not permitted with respect to pain and suffering and said:
Here, the proposed economic expert testimony would be overly speculative and would serve to invade the province of the jury, and we see no abuse of discretion in the exclusion of such evidence.
(2) Southlake Limousine and Coach, Inc. v Brock, 578 N.E.2d 677 (1991). Indiana’s 3rd District Court of Appeals ruled that the trial court decision to admit hedonic damage testimony by Stan V. Smith was improper and should not be allowed in a retrial. The court said:
Expert testimony on the value of life should not have been admissible in a wrongful death case. It could not provide a measure of the loss of love and affection to the surviving spouse nor of the loss of parental guidance and training to the surviving children. Professor Smith even testified to that effect. The most Professor Smith could do was place a value on the life of the decedent. His testimony regarding the loss felt by survivors was inadmissible speculation.
(3) Badeaux v. Rowan Companies, 1991 U.S.Dist. Lexis 13532 (E.D.La. 1991). Held that: “Damages for loss of the enjoyment of life or ‘hedonic’ damages are not recognized as a separate element of recovery in the Fifth Circuit. They are not a factor to be separately measured as an independent ground of damges,” but must be included as part of pain and suffering. Testimony of Melville Wolfson was not permitted.
(4) Bailey v. Rose Care Ctr., 817 S.W.2d 412 (Ark. 1991). Hedonic damages were not allowed under the state death statute. This was before a new state law in 2001 that established the right of an estate to sue for “loss of life.”
(5) Mercado v. Ahmed, 756 F. Supp. 1097 (N.D. IL 1991). This order of Judge James B. Zagel excluded testimony of Stan V. Smith regarding an injured child’s loss of enjoyment of life (hedonic damages). In reaching his decision to exclude the testimony of Smith, Judge Zagel discussed said:
This kind of evidence is well described in T. Miller, Willingness to Pay Comes of Age: Will the System Survive, 83 Nw. U.L. Rev. 876 (1989). In brief, Miller notes that economists are researching the “ways to measure the value that individuals place upon reducing the risk of dying” by examining the markets. Id. at 878-79. They examine “what people actually pay — in dollars, time discomfort, and inconvenience — for small reductions in health and safety risks.” Id. at 879. Of particular significance, economists have estimated the values people place on risk reduction based on the following factors: 1) the extra wages employers pay to induce people to take risky jobs; 2) the demand and price for products — such as safer cars, smoke detectors, houses in polluted areas, and life insurance — that enhance health and safety; 3) the tradeoffs people make among time, money, comfort, and safety — in studies involving pedestrian tunnel use, safety belt use, speed choice, and drivers’ travel time; and 4) surveys that ask people about their willingness to invest money to enhance their health or safety. Id. at 880-81.
However, there is no basic agreement among economists as to what elements ought to go into the life valuation. There is no unanimity on which studies ought to be considered. There is a lack of reliability. In fact, Smith was prepared to testify based on seventy or eighty studies; Miller relies on twenty-nine; in Sherrod v. Berry, 629 F. Supp. 159, 163 (N.D. Ill. 1985), Smith testified on the basis of fifteen studies. Smith acknowledged that more studies could be done on the willingness-to-pay issue. In particular Smith noted that further studies will focus on a set of consumers to uncover when these consumers make or do not make choices for safety, and these results may help establish validity. The fact that the bottom lines of most studies (between less than $100,000 to more than $2,000,000) arguably do not wind up very far apart (by some definitions of “very far”) may be coincidence and not the result of the application of a scientific method.
Survey of attitudes and views of others as a basis for concluding something is true is not necessarily wrong. Some science as it comes into court is the result of consensus by practitioners of some area of expertise that a certain law of nature is correct. What is wrong here is not that the evidence is founded on consensus or agreement, it is that the consensus is that of persons who are no more expert than are the jurors on the value of the lost pleasure of life. Even if reliable and valid, the evidence may fail to “assist the trier of fact to understand the evidence or determine a fact in issue” in a way more meaningful than would occur if the jury asked a group of wise courtroom bystanders for their opinions.
(6) Brown v. Seebach, 763 F.Supp. 574 (S.D. Fla.1991). U.S.District Court, interpeting Florida law, held that hedonic damages are not available under the Florida Wrongful Death Act.
(7) Frye v. Akron, 759 F. Supp. 1320 (N.D. Ind. 1991). This decision held that plaintiffs in a Section § 1983 action involving a wrongful death “may properly claim as an element of damages the decedent’s loss of enjoyment of life.” However, the court held that Indiana law applied to claims by the decedent child’s surviving parents for their own pain and suffering occurring as the result of their child’s wrongful death. Section § 1983 did not apply to the decedent’s parents because they were not claiming that their own constitutional rights were violated. The Indiana Wrongful Death Act did not allow recovery for the pain and suffering of the parents resulting from the death of the child. There was no discussion in this decision about whether an economist could testify about the hedonic damages of the decedent.
(8) Heffelinger v. Baggenstos, M.D., 1991 Mont. Dist. LEXIS 5 (Mont. Dist 1991). A motion to dismiss granted on grounds that the Montana Wrongful Death statute does not permit recovery by a decedent for loss of enjoyment of life, nor does it allow recovery for loss of a survivor’s ability to enjoy life because of the death of a decedent.
(9) Pittman v. Thorndike, 762 F.Supp. 870 ( D. Nev. 1991) This federal district case, interpreting Nevada law, precluded an award of hedonic damages under the Nevada Wrongful Death Act. The Pittman Court held that damages in a wrongful death are limited to damages mentioned in the wrongful death statute. The Court also held that the only possible element of damages in the wrongful death statute that could conceivably be interpreted to allow hedonic damages for a decedent was the provision for recovery for pain and suffering. The court said: “Pain and suffering, to be compensable in a Nevada wrongful death action, must be consciously experienced. Thus, under the provision for pain and suffering, plaintiffs can only recover for that part of the decedent’s “loss of the hedonic value of human life,” that was consciously experienced before death. Furthermore, as the list of recoverable damages is exclusive, and pain and suffering is the only term that could encompass this loss, plaintiffs cannot recover for any other part of the loss.”
(10) Eyoma v. Falco, 247 N.J. Super. 435 (App. Div 1991). Hedonic damages are not available under New Jersey’s Wrongful Death Act, but are available under the Survival Act if an injured party survives an accident for a period of time and is conscious.
1992
(1) Johnson v. Inland Steel Company, 140 F.R.D. 367 (N.D.Ill. 1992). Interpreting both Indiana and federal standards for wrongful death damages by a two magistrate judge panel, the court said:
We find that any evidence relating to loss sustained by survivors such as ‘hedonic damages,’ going beyond pecuniary loss are appropriate matters for inclusion in this law suit. Since these matters are appropriate, expert testimony by qualified individuals would certainly be allowed into evidence. Moreover, taking into account that hedonic value of human life is difficult to measure, expert testimony becomes exceedingly important and may be of particular use to the trier of fact in this case. Sherrod v. Berry, 827 F.2d 195 (7th Cir. 1987). Accordingly Inland’s motions seeking to bar expert testimony as to damages for decedent’s loss of quality of life, and for the value of decedent’s services are, DENIED.
(2) Bramlette v. Hyundai Motor Company, 1992 U.S. Dist. LEXIS 13080 (N.D.Ill. 1992). Judge Zagel’s decision in Mercado v. Ahmed, 756 F. Supp. 1097 (N.D. IL 1991) was cited in excluding the testimony of Dr. Stan V. Smith in this wrongful death action under Illinois law.
(3) Buckhalter v. Burlington N. R.R. (N.D. MS 1992). The Court excluded hedonic damages testimony by Dr. Stan V. Smith, saying:
The record suggests that Smith, in addition to offering testimony on hedonic damages or damages for the loss of enjoyment of life, also intended to offer damages relating to “loss of relationship. Damages for loss of companionship and society of the decedent are allowable under Mississippi law. Nevertheless, the court, in reviewing Smith’s proposals, [footnote omitted] finds that the facts and figures offered by Smith are largely speculative and may unduly prejudice a jury. While the figures offered in Smith’s tables are one person’s way of attaching a quantitative figure to a qualitative value, the jury, composed of laypersons who presumably value their own life and loved ones, is equally equipped to place a quantitative value on decedent’s companionship, affection and society should the case call for such a determination. See generally In Re Air Crash Disaster at New Orleans, La., 795 F.2d 1230, 1233 (5th Cir. 1986) (“the trial judge ought to insist that a proffered expert bring to the jury more than the lawyer can offer in argument”). For all of these reasons, the testimony of Smith will be excluded in its entirety.
(4) Moore v. Kroger Co. 800 F. Supp. 429 (N.D. MS 1992). The Court postponed making a decision about whether to allow hedonic damage testimony by Dr. Stan V. Smith in a wrongful death action. The Court said:
Having held that hedonic damages are not recoverable as a separate form of damages, the court nevertheless declines to limit the testimony of [Stan V.] Smith, Moore’s proposed expert on such damages, until the substance of his testimony can be more fully explored at trial. In the past, the undersigned has rejected speculative figures that attempt to quantify an injured person’s emotions when a jury of lay persons is equally equipped to make the determination. . . .The possibility exists that he may testify on matters helpful to the trier of fact in traditionally recognized areas. Accordingly, Smith’s testimony will be considered at trial for its evidentiary value, helpfulness and prejudicial effect under Federal Rules of Evidence 702, 703 and 403. If confusing, unhelpful or prejudicial, it will be excluded.
(5) In Re Korean Airlines Disaster of September 1, 1983, 807 F.Supp. 1073 (S.D.N.Y.1992). This decision interprets the relevance of the terms of the Warsaw Convention, ruling that hedonic damage claims do not survive in a death action. Lost earnings may not be recovered for a decedent but may be considered in determining lost financial support or loss of inheritance.
(6 ) Sterner v. Wesley College, Inc., 747 F.Supp. 263 (D.De.1990). Rejected hedonic damage testimony by Stan V. Smith.
(7) Augustin v. Hyatt Regency of New Orleans, 1992 U.S.Dist. Lexis 1061 (E.D.La. 1992). Melville Wolfson was not permitted to present hedonic damage testimony based on an interpretation of Louisiana law.
(8 ) Craft v. Matlack, Inc., 1992 U.S.Dist. Lexis 7978 (E.D.La. 1992). Rejected hedonic damage testimony by Melville Wolfson based on 5th Circuit rules.
(9 ) Johnson v. Inland Steel Company, 140 F.R.D. 367 (N.D.Ill. 1992). Interpreting both Indiana and federal standards for wrongful death damages by a two magistrate judge panel, the court said: “We find that any evidence relating to loss sustained by survivors such as ‘hedonic damages,’ going beyond pecuniary loss are appropriate matters for inclusion in this law suit. Since these matters are appropriate, expert testimony by qualified individuals would certainly be allowed into evidence. Moreover, taking into account that hedonic value of human life is difficult to measure, expert testimony becomes exceedingly important and may be of particular use to the trier of fact in this case. Sherrod v. Berry, 827 F.2d 195 (7th Cir. 1987). Accordingly Inland’s motions seeking to bar expert testimony as to damages for decedent’s loss of quality of life, and for the value of decedent’s services are, DENIED.”
(10) Mister v. Illinois C. G. R. Co., 790 F. Supp. 1411 (S.D. Ill. 1992). This case was brought as a class action under Title VII of the Civil Rights Act of 1964. The class was allowed to recover back pay and for emotional distress, but not hedonic damages. The court said: “In this case. . . the only hedonic loss is caused by the lack of a job. The back pay award fully compensates the class for any hedonic damage. Once the class is awarded back pay, the past lost ability to enjoy life is fully restored, since the class has received the object which caused the deprivation. For example, a plaintiff who has lost an arm may have a claim for hedonic damages. However, if the arm is restored to him, his claim for hedonic damages would disappear, since he could no longer claim that he cannot enjoy the more subjective pleasures of life to the fullest. Similarly here, the plaintiff class has been made whole by an award of back pay. To allow hedonic damages on top of back pay would be equivalent to double recovery.”
(11) Foster v. Trafalgar House of Oil and Gas, 603 So.2d 284 (La.App.2 Cir. 1992). Ruled that “any evidence, including expert testimony, that attempts to quantify or assign a specific monetary value for alleged loss of the pleasure of life is inadmissible.” Luvonia Casperson was not permitted to testify about hedonic damges, but was permitted to testify about other damage categories.
(12) Fantozzi v. Sandusky Cement, 64 Ohio St. 3d 601 (1992). Ohio Supreme Court recognized a right to recover for “loss of the ability to perform life’s usual functions” (similar to hedonic damages) in a personal injury case.
(13) Ramos v. Kuzas, 65 Ohio st.3d 42 (1992). A newborn infant had not had time to develop the ability to have hedonic damage losses.
(14) Augustin v. Hyatt Regency of New Orleans, 1992 U.S. Dist. LEXIS 1061; 1992 WL 21823 (E.D. LA 1992). Economic expert Melville Wolfson was prohibited from testifying regarding his calculations on the value of the loss of enjoyment of life.
1993
(1) Doe v. TAG, Inc., 1993 U.S. Dist LEXIS 16356 (N.D. Ill. 1993). In one of the first decisions regarding hedonic damages after the Daubert decision the Court said:
In this case, the plaintiffs intend to introduce [Stan] Smith’s testimony to establish — through economic principles — the value of Doe’s future loss of enjoyment of life. There is no binding Seventh Circuit precedent suggesting that such economic testimony is sufficiently reliable to be admissible . . .The court therefore follows the well-reasoned opinion of Mercado v. Ahmed, 756 F. Supp. 1097 (N.D. Ill. 1991). . . Because Smith’s testimony would not assist the trier of fact in reaching its decision, his testimony is irrelevant — and must be excluded.
(2) Patch v. Glover, 618 N.E.2d (Ill.App.1 Dist. 1993). An Illinois Court of Appeals upheld a trial court decision not to admit hedonic damage testimony about loss of society Stan V. Smith. The court said:
The type of evidence Smith offered would, out of necessity, provoke an extended line of inquiry into Patch’s relationships with family members and friends, who are not entitled to recover under the [wrongful death] act, so that their loss of society could be factored out of the gross value of the loss of society. All of which would serve no purpose other than to distract the jury from its real task which is to apply their common sense to assess the value of society lost by the plaintiff and the children. Moreover, Smith’s testimony on this issue would mislead the jury into believing the false notion that the distinct and personal relationship that one has with his wife and children has commercial value which can be determined by a comparison to the value that society places on the non-monetary contributions of the statistically average person. It is our belief that the type of evidence that plaintiff sought to introduce through Smit, h’s testimony would be the antithesis of a reasonable and practical consideration of the fair and just compensation for the loss of society suffered by the spouse and next of kin of a decedent under the peculiar facts of any given case.
(3) Laing v. American Honda Motor Co., 628 So. 2d 196 (LA App. 1993). Citing Foster v. Trafalgar House of Oil and Gas, 603 So.2d 284 (1993) which had been decided during or after Laing, the Court said that the trial court’s admission of testimony by Dr. Stan V. Smith might have been in error, but:
The jury did not award the $ 2,200,000 figure calculated by Dr. Smith as the loss of enjoyment of life suffered by Tommy Laing, but made an award of $ 1,350,000 for Laing’s loss of enjoyment of life and mental anguish. (Emphasis added). Honda cross-examined Dr. Smith extensively and presented their own expert in economics, Dr. Jerome Staller, on the issue of hedonic damages. Regardless of whether Dr. Smith’s testimony should have been allowed, there is ample evidence in the record to support the jury’s award of $ 1,350,000 to Laing for loss of enjoyment of life and mental anguish.
The economic expert presenting hedonic damages testimony in Foster was Dr. Luvonia Casperson, not Dr. Smith.
(4) Livingston v. United States, 817 F.Supp. 601 (E.D.N.C. 1993). Rejected hedonic damage testimony by Gary Albrecht.
(5) Wanke v. Lynn’s Transportation Company, 836 F.Supp. 587 (N.D.Ind 1993). The court ruled that the defendant had not shown that the hurdles to preventing the hedonic damage testimony by Dr. James Bernard were insurmountable. The decision went on to say, however, that the hurdles the plaintiff had to showing that Dr. Bernard was an expert in the area of the economic value of love and affection were “unlikely” to be overcome. The court also made the memorable remark earlier: “That Dr. Bernard is an economist does not entitle him to state an opinion on every conceivable issue of economics.”
(6) Liston v. The University of West Virginia Board of Trustees, 190 W. Va. 410; 438 S.E.2d 590 (W.Va 1993). The West Virginia Supreme Court held: (1) “Where a plaintiff wishes to quantify the loss of earning capacity by placing a monetary value on it, there must be established through expert testimony the existence of a permanent injury, its vocational effect on the plaintiff’s work capacity, and an economic calculation of its monetary loss over the plaintiff’s work-life expectancy reduced to present day value;” and, (2) That an economist, “Mr. Selby,” should not have been permitted to testify about the loss of enjoyment of life, citing Wilt v. Burracker, 443 S.E.2d 196 (1993).
(7) Wilt v. Burracker, 443 S.E.2d 196 (W.VA. 1993). Hedonic damage testimony ruled inadmissible in West Virginia. Michael Brookshire was not permitted to testify about hedonic damages.
1994
(1) Sullivan v. United States Gypsum Company, 862 F. Supp. 317 (D.Kan. 1994). This decision excluded the testimony of Stan V. Smith in a wrongful death action based on Kansas Law. Federal District Judge John W. Lungstrum said:
This court’s concern is that the willingness-to-pay studies upon which Mr. Smith’s calculations are based have no apparent relevance to the particular loss of enjoyment of life suffered by a plaintiff due to an injury or death. The studies relied on by Mr. Smith do not use methodology designed to calculate the loss of enjoyment of life, yet are nonetheless extrapolated by Mr. Smith into what he claims to be valid data for calculating damages for both Mr. and Mrs. Sullivan’s loss of enjoyment of life. Mr. and Mrs. Sullivan suffered totally distinct and different damages (Mrs. Sullivan died, Mr. Sullivan faces living without the support and companionship of his wife), yet, under Mr. Smith’s analysis their damages are identical, save only an adjustment for differing the expectancy. The court finds that the proffered testimony of Mr. Smith simply fails in any real terms to provide a measure of the loss and affection to Mr. Sullivan due to his wife’s death. The court does not believe that the distinct and personal relationship that Mr. Sullivan enjoyed with his wife has commercial value which can be determined by a comparison to the alleged value that society places on the contributions of a statistically average person.
(2) Longman v. Allstate Ins. Co., 635 So.2d 343 (La. App. 4 Cir. 1994). The Lousiana Court of Appeals, citing Foster v. Trafalgar House of Oil and Gas, 603 So.2d 284 (1993), affirmed the decision of the trial court judge to exclude the hedonic damages testimony of Dr. Stan V. Smith in a personal injury case, saying: The statement by the trial judge indicates that the trial judge primarily based his decision excluding the testimony of Stan Smith on the facts that 1) the proffered evidence would not assist the jury in determining how to compensate the plaintiff for his general damages and 2) the plaintiff was capable of explaining how his injuries hadaffected his lifestyle. Having reviewed the proffered testimony we agree with the trial court’s finding that the proffered evidence would not have assisted the jury in determining the value of the plaintiff’s loss of enjoyment of life as a result of his injuries. Additionally, having reviewed the testimony of the plaintiff, we find that the plaintiff was extremely capable of explaining how his life had been affected by this accident. For these reasons, we find that the trial court did not abuse its discretion when it refused to allow Stan Smith to testify.
(3 ) Trabucco v. Hilton Hotels Corporation, 1994 WL 419846 (E.D.LA). Granted motion in limine to preclude hedonic damage testimony by Melville Z. Wolfson.
(4) Hein v. Merck & Co., Inc., 868 F.Supp. 230 (M.D.Tenn. 1994). This decision granted a motion in limine to bar hedonic damages testimony by Dr. Richard Palfin. The decision quoted Palfin’s report at length, indicating that Palfin had stated the opinion that the reasonable range for the value of an average person’s enjoyment of life was between $2,079,377 and $4,158,753, with a midpoint at $3,119,065. Since this was a personal injury and Birgit Hein was still alive, Palfin opined that the jury should chose a percentage reduction in the midpoint value of life and gave examples for reductions of 25% and 15%. Judge Wiseman used Daubert criteria to evaluate Palfin’s report of hedonic damages, saying:
First, the court must determine whether Dr. Palfin’s theories have been or can be tested. Many of the predictions or assumptions of economists in damages testimony can be validated in retrospect, if not otherwise. For instance, predicted rates of inflation, predicted salary escalations, average life expectancies, average work life expectancies, average interest rates can all be looked at years down the line to determine if we were correct in allowing expert estimates of economic loss. Such an evaluation after time is a comforting response to the criticism that courts’ decisions to accept or exclude novel scientific evidence may be ‘behind the curve’ or may have a dampening effect on scientific development. No such retrospective validation is possible in Dr. Palfin’s thesis of the valuation of hedonic damages. Speculative assumptions remain speculation.”
Judge Wiseman went on to look at the entirety of the Value of Life literature and criticisms of the use of that literature, particularly in Parker Cashdollar and Marsha Cope Huie, “Reliability and Validity of Hedonic Damage Testimony: Judicial Logic about Economic Science in Merrell Dow and Mercado, 3-DEC J. Legal Econ 57, 67 (1993). Judge Wiseman said: “Even at my somewhat advanced age, I’m not ready or willing to put a price on my continued existence. Honest answers to hypothetical questions of this kind are not possible. This methodology is subject to criticism for being based on unreliable, untrustworthy hearsay. It fails the common sense test, as well.”
(5) Montalvo v. Lapez, 884 P.2d 345 (Hawaii 1994). The Supreme Court of Hawaii ruled that hedonic damages in a personal injury are recoverable, but used Hawaii’s Rule 702 to reject expert testimony by Louis Rose about hedonic damages based on the willingness-to-pay methodology.
(6) Bell v. Montana Rail Link, 1994 Mont. Dist. LEXIS 613. (Mt. Dist. 1994). Hedonic damages cannot be recovered in a Wrongful Death Action.
(7) Hayhurst v. Timberlake, 1994 U.S. Dist. LEXIS 18428 (D.N.H.1994). Claim for hedonic damages separate from compensatory damages was denied.
(8) Romero v. Byers, 872 P.2d 840 (N.M. 1994). This decision in a consolidated case held that New Mexico would henceforth recognize a claim for spousal consortium and household services in a wrongful death action. It also held that a claim could be made in a wrongful death action for “loss of the value of life itself.” The Court said: “We hold that the value of life itself is compensable under our Act. Whether or not expert testimony is admitted for the purpose of providing that value is a matter best left to the rules of evidence of the applicable court.” The Court held that task before a jury is to award “fair and just damages” taking into account both pecuniary and nonpecuniary damages suffered by the decedent, defining non pecuniary damages as follows: “There are two aspects of nonpecuniary damages that make up ‘fair and just’ compensation. Pain and suffering devolves from (1) that which the victim must newly endure and (2) that which the victim may no longer enjoy. The language of the Act clearly contemplates damages that encompass more than the pecuniary loss to th beneficiaries because of the loss to the deceased. In our opinion, the Act goes beyond the loss of decedent’s wages, and encompasses all damages that are fair and just.” The Court also specifically said with respect to the loss of guidance and counsel that a decedent might have provided to minor children: “Loss of guidance and counseling may be considered by a jury in fixing pecuniary loss to the survivors. The jury should be allowed to assess this loss as part of the value of the decedent’s life.”
(9) Spencer v. A-1 Crane Service, Inc., 880 S.W.2d 938 (Tenn. 1994). Hedonic damages are not recoverable in a death case.
1995
(1) Ayers v. Robinson, 887 F. Supp. 1049 (N.D.Ill. 1995). This decision rejected hedonic damage testimony by Stan V. Smith. It quoted extensively from Brookshire and Smith, Economic/Hedonic Damages (1990) and extensively evaluated Ted Miller’s “The Plausible Range for the Value of Life–Red Herrings among the Mackerel,” Journal of Forensic Economics, 1990, 3(3) in performing a Daubert test of the admissibility of Stan Smith’s version of hedonic damages testimony. The Daubert analysis considered Smith’s proffered testimony on the basis of five factors: (1) benchmark, (2) adjustments, (3) pedigree, (4) empirical data and (5) underlying assumptions. The decision pointed out that the $3.5 million “central tendency” benchmark was based on results “rang[ing] from the high several hundred thousands well into several millions.” The Court said:
In sum, neither the $3.5 million or the $2.5 million benchmark rests upon any scientific method or procedure, so that testimony regarding either one is inadmissible under the scientific knowledge prong of Rule 702.” . . .[T]he low probative value of such testimony (ill fitting data) is substantially outweighed by the danger of unfair prejudice (a false appearance of tailoring to the individual case). . . Unfortunately for Stan Smith, the surname Smith seems to be about the only thing they have in common. . . [I]t is franky bogus to massage numbers [from the Value of Life literature], as both Hedonic Damages [Brookshire and Smith] and Plausible Result [Miller] have done, to create a deceptive appearance of precision rather than the true picture of an enormous spread in ‘value,’
The Court also criticized the underlying assumptions of the “willingness to pay” model.
(2) Adams v. Miller, 908 S.W.2d 112 (1995). Kentucky is a state in which losses in a wrongful death action are losses to the estate, not to survivors. The Kentucky Supreme Court in Adams cited the standard as in Louisville and N. R. Co. v. Eakins’ Adm’r, 103 Ky. 465, 530 (1898) as follows: “The damages recoverable in [a] wrongful death action have been clearly defined and limited almost from its inception. The damages are such sum as will fairly and reasonably compensate the decedent’s estate for the destruction of the decedent’s earning power and do not include the affliction which has overcome the family by reason of the wrongful death (emphasis in original).” On that basis, the Adams court held that loss of parental consortium is nor recoverable in a wrongful death action. The Adams court also held that:
This court recognizes that there is measurable value to one’s life other than his or her earning capacity. However, this value is already recoverable in the recognized category of mental suffering. There is no need to allow for the recoupment of hedonic damages as a separate category of loss.
The Court cited Economic/Hedonic Damages (1990) by Michael Brookshire and Stan V. Smith for its definition of hedonic damages.
(3) Anderson v. Nebraska Department of Social Services, 538 N.W.2d 732 (Neb. 1995). The trial court decision was reversed and remanded in part because the trial court judge had admitted the hedonic damages testimony of Dr. Stan V. Smith in a personal injury action. The dissent by C. J. White argued that the error in admitting the testimony of Dr. Smith was harmless. He agreed that it was in error to admit Smith but found that error harmless on the basis that:
Any error in admitting Stan Smith’s testimony is harmless. Smith’s methodology is by his own concession unorthodox. The Nebraska Department of Social Services (DSS) points out in its brief that not only is Smith one of the few alleged experts on hedonic damages, but in fact most of the reported decisions on this subject involve Smith and the much-debated value of his opinions. Smith’s analysis applies a quasi-scientific spin to what may seem like a simple issue, which may not be the best method of gauging the value of enjoyment of life. Nevertheless, the receipt of Smith’s testimony in this case hardly cries out for a remand. At trial, Smith testified that Bridgette Anderson suffered a loss of enjoyment of life in an amount between $ 2,442,000 and $ 2,817,000; the trial judge awarded $ 300,000 in hedonic damages. Smith testified that Candy Anderson suffered losses valued between $ 1,950,000 and $ 2,127,000; the trial judge awarded $ 25,000. The trial judge stated in his written judgment that the court was not bound by Smith’s calculations, noting that Smith’s testimony was no more helpful than the testimony of a physician who stated that an injured person suffers pain more greatly than does the general public.
(4) Talle v. Nebraska Department of Social Services, 541 N.W.2d 30 (Neb. 1995). The Nebraska Supreme Court reversed and remanded the trial court decision in part because the trial court judge allowed Dr. Stan V. Smith to testify about hedonic damages in this personal injury action. The Court said:
The department’s final claim is that the district court erred in receiving the testimony of Stan Smith, an economist who established a formula for calculating the value of lost enjoyment of life. Smith is the same economist whose testimony on the value of lost enjoyment of life was held inadmissible in Anderson/Couvillon. In that case, we held that the three models on which Smith bases his formula for calculating the value of lost enjoyment of life were flawed in one way or another and that his testimony failed to satisfy Neb. Evid. R. 702, Neb. Rev. Stat. § 27-702 (Reissue 1989). As his testimony and the models on which he bases his formula were substantially the same in this case as they were in Anderson/Couvillon, the district court erred in admitting his testimony.
(5) Estate of Sinthasomphone v. City of Milwaukee, 878 F.Supp. 147 (E.D. WI 1995). This decision rejected hedonic damage testimony by Stan V. Smith for the following reason:.
The problem with Mr. Smith’s testimony is that he is attempting to quantify something which cannot truly be determined: what is the value of a human life? He rests his determination on a number of studies which are in themselves grounded in the science of economics–which, in the first place, is not quite like physics. Does this mean that his testimony will not assist the jury or will mislead them? I am not, at this point, convinced of that. His testimony may conceivably be useful for the jury to have some starting point in their attempt to place a value on life. On the other hand, his testimony may be the kind of “junk” that should not be heard in court of law. At trial, after a short offer of proof as to the nature of the testimony, I will make a final decision on whether this evidence can be presented. The plaintiffs may not make any reference to it in opening statement.
(6) Chustz v. J.B. Hunt Trans., 659 So. 2d 784 (LA App. 1995). The Court’s entire opinion was:
WRIT GRANTED. The trial court’s ruling allowing Dr. Stan Smith to testify regarding “hedonic damages” is vacated and relators’ motion to exclude the testimony of Dr. Smith regarding “hedonic damages” hereby is granted. Foster v. Trafalgar Oil and Gas, 603 So. 2d 284 (La. App. 2d Cir. 1992).
(7) United States v. Starzepyzel, 880 F.Supp. 1027 (S.D. N.Y.1995). Accepted testimony by document examiner. Said: “Yet, as distinguished from such discredited ventures as hedonic damage expertise, clinical ecology, trauma-cancer expertise or the Benedictin plaintiffs’ statistical machinations, forensic document examination does involve true expertise, which may prove helpful to a fact finder.”
(8 ) Pomella v. Regency Coach Lines, 899 F.Supp. 335 (E.D. Mich. 1995). Cites Ayers v. Robinson in rejecting an “eyeballing” selection of a value with a range. The Pomella Court cited Ayers as saying that: “(Court would not accept choosing a midpoint value of $3.5 million as a “benchmark” measure of hedonic, or pleasure, value of life for the statistically average life, the true value of which was estimated to lie somewhere between $500,000 and $9,000,000.) As in that case, the data on which plaintiff relies ‘goes to one thing’ (friction on snow-covered pavement) while a jury would need information of a very different sort (the abilty to stop on I-94’s uneven and potentially icy pavement).”
( 9) Westcott v. Crinklaw, 133 F.3d 658 (8th Cir. 1998). The district court interpreting Nebraska law had refused to instruct the jury that Arden Westcott’s estate could be awarded hedonic damages, relying on Anderson v. Nebraska Dep’t of Social Services, 248 Neb. 651, 538 N.W.2d 732 (Neb. 1995). Westcott argued that the application of Anderson was in error because Anderson was not a wrongful death case. The 8th Circuit held that the trial court was correct in its interpretation that Nebraska law prohibits treating loss of enjoyment of life as a separate category of nonpecuniary damages.
(10 ) Sullivan v. United States Gypsum Company, 862 F. Supp. 317 (D.Kan. 1994). Rejected hedonic damage testimony by Stan V. Smith.
(11) Schuman v. Missouri Highway and Transportation Commission, 912 S.W.2d 548 (1995). Admission of hedonic damage testimony by John O. Ward did not constiute reversible error because jury was not swayed by testimony. Dicta predicts that Missouri Supreme Court will reject hedonic damages testimony.
(12) Sena v. New Mexico State Police, 119 N.M. 471 (N.M.App. 1995). New Mexico Court of Appeals held that economic testimony about lost enjoyment of life in a personal injury could be admitted at the discretion of a trial court judge. The Court said: “Consistent with the rule in Romero, we think it is clear that New Mexico permits proof of nonpecuniary damages resulting from the loss of enjoyment of life in tort actions involving permanent injuries. Romero, 117 N.M. at 428; 872 P.2d at 846; see also Hoskie v. United States, 666 F.2d 1353 (10th Cir. 1981). Similarly, we conclude that where an expert witness has been properly qualified, it is not improper for the trial court to permit an economist to testify regarding his or her opinion concerning the economic value of a plaintiff’s loss of enjoyment of life,” noting that a “trial court has wide discretion in determining whether witness is qualified to give expert testimony.”
1996
(1) Kurncz v. Honda Motor Company, Ltd., et al., 166 F.R.D. 386; 1996 U.S.Dist. Lexis 6132 (W.D.Mich.1996). A motion in limine was granted to preclude the hedonic damage testimony of Stan V. Smith. The decision of Chief Judge Richard Alan Enslen extensively cited Ayers v. Robinson, 887 F. Supp. 1049 (N.D.Ill. 1995) and other legal decisions excluding hedonic damages, and said in this personal injury case that:
The loss or denial of hedonic, or enjoyment of life, values is compensable under Michigan law. The Court will so instruct the jury. But, the Court concludes that the balance of the applicable factors weigh against finding Mr. Smith’s “willingness to pay” testimony is reliable and helpful within the meaning of Daubert and Fed. R. Evid. 702. While it may be sufficient science for passing regulations, It is poor science for the courtroom. Even if the evidence were not to be analyzed under Rule 702, it would fail Rule 403.
(2) McGuire v. City of Santa Fe, 954 F.Supp. 230 (D.N.M. 1996). This order of Judge Bruce D. Black granted defendant’s motion in limine to bar the testimony of Dr. Patricia Murphy, a psychologist, and Dr. John Myers, an economist on hedonic damages in a wrongful termination case. At a Daubert hearing, Dr. Murphy did not testify, but the Court said: “Dr. Myers testified that Dr. Murphy interviewed Plaintiff to determine the extent of Plaintiff’s lost enjoyment of life. Dr. Murphy than applied the data she collected from her interview to her Lost Pleasure of Life Scale and arrived at a percentage value of Plaintiff’s lost enjoyment of life. Dr. Myers testified that it was Dr. Murphy’s role to ‘determine the part of the enjoyment of life that has been lost,’ while it was his role to address what the monetary value of the lost enjoyment is worth.” Dr. Myers testified that the value of a human life varied f rom $928,000 to $18,464,000, and that the reduction in the value of Plaintiff’s enjoyment of life caused by Defendant’s alleged harassment and termination was between $1,430,000 and $2,300,000. Judge Black subjected this method to Daubert tests. He pointed out that neither of the experts had suggested any widely suggested standards for uniformly measuring the value of lost pleasure. The Court also pointed out that the foundations for such analysis had been assailed as lacking any verifiable basis by respected economists, including W. Kip Viscusi, Ted Miller and Thomas Havrilesky, citing papers by those authors in the Journal of Forensic Economics. The Court pointed out that Dr. Murphy’s “Lost Pleasure of Life Scale” had no known error rate. He finally determined by reference to a number of articles that the theory underlying the hedonic damage calculations had not been “generally accepted. The Court also noted that: “Permitting ‘expert’ testimony on hedonic damages would seem particularly inappropriate in a wrongful termination suit like that at bar.”
(3) Garcia v. Superior Court of Los Angeles County, 42 Cal. App.4th 177 (1996). This decision held that the testimony of Stan V. Smith was not admissible because hedonic damages are not allowed under the California survival action and therefore also not available under Section 1983 of the federal Civil Rights Act.
(4) Odland v. Lewis, 1996 Mont. Dist. LEXIS 635 (Mt. Dist. 1996). “Defendant’s Motion in Limine precluding Plaintiff from introducing expert opinion to prove the extent and monetary value of his so-called ‘hedonic’ damages relating to the loss of pleasures of life is Granted.”
(5) Tinch v. City of Dayton, 1996 U.S. App. LEXIS 5716, 1996 WL 77445 (1996). Interpreting Ohio Law, the 6th Circuit Federal Court of Appeals held that post-death hedonic damages are inadmissible as a compensable element of damages in a survival action under Ohio law.
1997
(1) Crespo v. City of Chicago, 1997 U.S. Dist. LEXIS 12820 (N.D. IL 1997). U. S. District Court Judge Charles P. Kocoras Rejected hedonic damage testimony by Stan V. Smith, saying:
[L]ike Judge Shadur, we are unconvinced that the [hedonic damage] theory is helpful to the jury. We presently are of the opinion that the jury is able to decide for itself, without the assistance of an economics expert, the value that our society places on a human life. Therefore, we will presently grant the motion to bar the testimony on hedonic damages. The plaintiffs have argued that they should be allowed to make an offer of proof at trial on the issue of hedonic damages. We will allow them to do so, and to move that we reconsider this decision at that time.
(2) Smith v. Ingersoll-Rand, 1997 U.S. Dist. LEXIS 23443 (D.N.M. 1997); aff’d 214 F.3d 1235 (2000). The Court said that Stan V. Smith was correctly admitted to explain the concept of hedonic damages based on New Mexico law, but without providing specific calculations for the plaintiff.
(3) Brereton v. United States, 973 F. Supp. 752 (E.D. MI 1997). Dr. Stan V. Smith was excluded from testifying about hedonic damages in a wrongful death action governed by Michigan law. The Court said:
Plaintiffs seek to admit Mr. Smith’s testimony to assist the factfinder in placing a value upon the survivors’ loss of society and companionship caused by the death of Albert Brereton. Mr. Smith has calculated the value of Albert Brereton’s life based upon his expected life-span, a statistical individual’s willingness to pay for safety, to endure on-the-job safety risks, and the costs of government health and safety regulations. See Stan V. Smith letter to Robert G. Lewendowski, dated Dec. 19, 1996; Government’s supplemental brief at exh. A. Mr. Smith asserts that this value of life –or the value of preserving the ability to live a normal life– “is also a measure of the value placed on the loss of relationship or society and companionship.” Id. Thus, not only is the statistically-calculated value of life a measure of hedonic value to an individual, it also is an estimate of the value of that individual’s relationship to his survivors. Id. at 3. I find, however, that even if one were to accept Mr. Smith’s testimony as producing a scientifically reliable value of the decedent’s life, the conclusion that this same figure provides a value of that person’s relationship to his or her survivors is unfounded.
(4) Saffrani v. TheWerner Company, 1997 U.S. Dist. LEXIS 18589 (S.D.N.Y. 1997). In admitting expert testimony by a mechanical engineer, the decision cited United States v. Starzepyzel, 880 F.Supp. 1027 (1995), quoting that decision : “Yet, as distinguished from such discredited ventures as hedonic damage expertise, clinical ecology, trauma-cancer expertise or the Benedictin plaintiffs’ statistical machinations, forensic document examination does involve true expertise, which may prove helpful to a fact finder.”
(5) Faciane v. Rhodes, 1997 U.S.Dist. Lexis 17361 (E.D.La. 1997). Melville Wolfson was not permitted to testify about hedonic damages.
(6) Scharrel v. Wal-Mart Stores, Inc, 949 P.2d 89 (CO. App. 1997). Cert. denied by Colo. Supreme Court. Hedonic damage testimony by Stan V. Smith was improperly admitted at the trial court level.
7) Mistich v. Volkswagen of Germany, Inc., 698 So.2d 47 (1997). This case was remanded by the Louisiana Supreme Court, 666 So.2d 1073 (La. 1996), reversing an award to the estate of the decedent for the decedent’s loss of enjoyment of life based on testimony of Melville Wolfson.
(8) Alexander v. Whitman, 114 F.3d 1392 (3rd Cir. 1997). Interpreting New Jersey law, recovery is allowed in personal injury for hedonic damages, but the injured person must be conscious.
(9) Pick v. American Medical Sys., 1997 U.S. Dist. LEXIS 3588; 1997 WL 149985 (E.D. LA 1997). Economic expert Melville Wolfson was prohibited from testifying about the hedonic damages of the decedent under Rules 702 and 403 of the Federal Rules of Civil Procedure.
1998
(1) Loth v. Truck-a-way Corporation, 60 Cal. App. 4th 757 (CA App.1998). This decision held that the hedonic damages testimony of Stan V. Smith was not admissible because:
A plaintiff’s loss of enjoyment of life is not ‘a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact[.]’ No amount of expert testimony on the value of life could possibly help a jury decide that difficult question. A life is not a stock, car, home, or other such item bought and sold in some marketplace. Smith’s impersonal method of valuing life assumes that for the most part, all lives have the same basic value. That has democratic appeal, but Smith used no democratic process in reaching that conclusion or selecting which benchmark figures to consider in setting the baseline figure. There is no statute Smith could have turned to for guidance. Our legislature has not decreed that all injured plaintiffs of the same age and with the same degree of disability should recover the same hedonic damages; nor has it assigned set values in referring to the amounts of jury verdicts in other cases. (Citations omitted). Because counsel may not ask the jury to give the same amount of damages in another case, it would be inconsistent to permit an expert witness to do so.
(2) Lewis v. Alfa Laval Separation, 128 Ohio App. 3d 200; 714 N.E.2d 426 (OH App. 1998). This decision affirmed the trial court’s decision to allow the hedonic damages testimony of Dr. Michael Bookshire as falling within the “shaky but admissible” prong of Daubert v. Merrell Dow Phamaceuticals (1993). Dr. Stan Smith was mentioned in the decision in reference to his co-authorship with Dr. Brookshire of Economic/Hedonic Damages: The Practice Book for Plaintiff and Defense Attorneys (1990) and in the context of similarities between method used for hedonic damages testimony by Drs. Brookshire and Smith. Judges on the Ohio Court of Appeals indicated that they would not have admitted hedonic damages testimony by Dr. Brookshire.
(3) City of Hobbs v. Hartford Fire Insurance Company, 162 F.3d 576 (10th Cir. 1998). References an hedonic damages report by Brian McDonald being called “bullshit” by defense counsel. The issues, however related to whether an insurance company had bargained in good faith.
(4) Ozaki v. Association of Apartment Owners of Discovery Bay, 954 P.2d 652 (1998). Louis Rose had projected future lost earnings, but had not been allowed to testify. This Intermediate Court of Appeals decision reversed the trial court and allow admission of that testimony. Under the Hawaii survival action, evidence of lost enjoyment of life should have been admitted. Expert testimony on loss of the enjoyment of life was not at issue. Dr. Rose had not provided such testimony in this case.
(5) Upchurch v. Rotenberry, 1998 Miss. LEXIS 524 (1998). Hedonic damages testimony in a death case was not allowable in a wrongful death action.
(6) Westcott v. Crinklaw, 133 F.3d 658 (8th Cir, 1998). Relying on Anderson v. Nebraska Dep’t of Social Services, 248 Neb 651, 538 N.W.2d 732, 739-41 (Neb. 1995), the 8th Circuit held that Nebraska law does not allow a separate instruction on hedonic damages. That case said that hedonic damages are not a distinct category of damages but are merely a component of pain and suffering and of disability.
1999
(1) K.M. Leising, Inc.et al. v. Butler, 1999 Miss.App. Lexis 591 (1999). The majority ruled as follows:
Stan Smith, the hedonic damages expert, did not testify as to any precise damage figures. Instead, he testified concerning the methodology used by economists in the field of hedonics and showed how the methodology may be used by a fact-finder in attempting to assess loss of enjoyment of life damages. For example, he testified that if the fact-finder, using the methodology discussed, determined in this case that Butler had a 50% loss of enjoyment of life, the amount of damages would be $ 683,203 or if the fact-finder determined that Butler had a 66% loss of enjoyment of life, the amount of damages would be $ 910,932, and a 57% loss of enjoyment of life, the amount of damages would be $ 778,851. He was careful to state that he could not say and was not saying what percentage of loss of enjoyment of life Butler had suffered. He also made clear that the figures were just illustrative.
From the dissent of C. J. McMillan:
As I understand the majority’s view, there is no real dispute that Smith’s evidence ought to have been excluded. The majority simply takes the position that the error in admitting Smith’s testimony was harmless. . . I cannot agree that Smith’s testimony can be brushed aside as harmless evidentiary clutter in the record of an otherwise acceptable trial.
(2) Saia v. Sears Roebuck and Co., 47 F.Supp. 2d 141 (D. MA.1999). Hedonic damages testimony by Stan V. Smith was not allowed. The Court said: In support of its opposition to Defendants’ motion in limine, Plaintiffs point to a significant number of cases in which Dr. Smith claims to have testified with respect to “intangible damages.” (See Pl. Mem. (Docket No. 41) at Exh. 2.) But numbers do not an argument make. Cf. Joiner, 522 U.S. at 146 (“nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.”). As a review of the published case law reveals, quite a number of federal decisions have rejected such expert testimony, in particular Dr. Smith’s testimony. The court’s own Daubert/Kumho analysis of the present record — detailed below — convinces the court that Dr. Smith’s proffered testimony in the instant matter should not get to the jury. The cases specifically cited by Plaintiffs in counterpoint do not convince the court otherwise.
(3) McBride v. Pinkerton’s, Inc., 1999 Mich. App. LEXIS 1198 (1999). Defense did not properly preserve hedonic damages issue for appeal and the Michigan court did not formally address this issue on appeal, but added dicta to citing a number of federal district decisions in Michigan rejecting hedonic damages testimony to suggest that it is Michigan law that expert testimony on hedonic damages is inadmissible.
(4) Artuso v. State of Montana, 1999 Mont. Dist. LEXIS 1119 (Mt. Dist. 1999). Hedonic damages may not be recovered in a Montana survival action.
(5) Hunt v. K-Mart, 981 P.2d 275 (MT 1999). The defense appealed on the basis that Drs. Velin and Vinso should not have been permitted by the trial court to offer hedonic damages testimony. The defense did not lodge objection to the proposed testimony until the second day of trial. At the hearing, the judge asked both parties if either party was aware of any appellate decisions regarding expert testimony. Plaintiff counsel responded that there have been decisions in other states that have gone both ways. Plaintiff counsel “argued that the article relied on by the experts in this case had been published by the National Association of Clinical Economists (sic) and that both experts (a psychologist provided percentages of life enjoyment that had been lost) were qualified with regard to that portion of the evidence related to their respective fields of expertise. . . K-Mart did not cite any legal authority to the District Court in support of its position that this kind of testimony is not allowable in the courts of Montana or elsewhere and, when asked whether it was aware of any professional articles attacking the approach used by Drs. Velin and Vinso, K-Mart responded, ‘Nothing that directly attacks it; no, Judge.’” The Montana Supreme Court concluded that “the District Court did not abuse its discretion in allowing expert testimony regarding Norma’s hedonic damages due to the lack of a timely and specific objection to the introduction of this evidence at trial.”
(6) Marcotte v. Timberlane/Hamstead Sch. Dist, 733 A.2d 394 (1999). “The trial court was correct in not permitting economic testimony to be used in cumputing loss of life damages.” These damages “are too subjective to lend themselves to such exactness.”
(7) Thomas v. Ford Motor Company, 1999 U.S.Dist Lexis 17702, Interpreting New Jersey Law, this decision held that hedonic damages are not available under New Jersey’s Wrongful Death Act, but are available under the Survival Act if an injured party survives an accident for a period of time and is conscious.
(8) Abbott v. Jarrett Reclamation Services, Inc., 132 Ohio App. 3d 729 (Ohio App. 1999). This decision in a wrongful death action upheld a trial court decision to exclude the testimony of an unnamed economics about hedonic damages.
(9) Watkins v. Cleveland Clinic Found., 130 Ohio App. 3d 262; 719 N.E.2d 1052 (Ohio App. 1999). Plaintiff in a persistive vegetative state could not recover hedonic damages because of lack of conscious ability to experience those losses. This decision also indicates that annuity evidence can be presented under Ohio’s Revised Code.
(10) Cheromiah v. United States, 1999 U.S. Dist. LEXIS 25363 (D. NM 1999). William Patterson , III, was permitted to provide per diem hedonic damages testimony by U.S. District Judge Martha Vazquez, who said:
Plaintiffs retained William Patterson, III, an economist, to testify regarding hedonic damages. Mr. Patterson will not testify as to the value of Michael Cheromiah’s life. Rather, he will provide a multiplier that takes into account Mr. Cheromiah’s life expectancy, the growth rate per year, and the present value of whatever yearly figure the Court chooses (should the Court find that Plaintiffs have prevailed on liability). Mr. Patterson starts with a figure of $10,000 per year because he believes that this number provides a “good multiple.” . . . He then figures in the decedent’s life expectancy and the growth rate and then discounts back to present value. . .The Court can then apply its own finding as to the value of Mr. Cheromiah’s life to the figure provided by Mr. Patterson rather than having to figure out the present value and life expectancy calculations itself. . .
Mr. Patterson’s proposed testimony, then, is very different than the hedonic damages testimony that has not been accepted by courts including this one. See, e.g., Smith v. Ingersoll-Rand Co., 94cv1083 MV/DJS, Memorandum Opinion and Order filed Nov. 17, 1997; McGuire v. City of Santa Fe 954 F. Supp. 230, 231 (D. N.M. 1996); Mercado v. Ahmed, 974 F.2d 863 (7th Cir. 1992). In each of these cases, the expert intended to rely on studies and other government analyses to put a dollar figure on the value of the plaintiff’s/decedent’s enjoyment of life. See Smith, slip op. at 2 (expert would “offer the jury a valuation of [plaintiffs’] loss of enjoyment of life”); McGuire, 954 F. Supp. at 232 (one expert “arrived at a percentage value of Plaintiff’s lost enjoyment of life,” and the other expert “address[ed] what the monetary value of the lost enjoyment is worth.”). In each of these cases, the courts rejected the testimony because they found that the studies quantifying the value of lost enjoyment of life were widely disparate and not generally accepted. See, e.g., McGuire, 954 F. Supp. at 232-33 (applying Daubert factors).
2000
(1) Smith v. Ingersoll-Rand, 214 F.3d 1235 (2000). The 10th Circuit described the trial court decision in detail in affirming the trial court decision to allow Stan V. Smith to explain the concept of hedonic damages, but without providing specific calculations for the plaintiff. The 10th Circuit indicated that the trial court had been in error in assuming that Daubert v. Merrell Dow Pharmaceutical, Inc., 509 U.S. 579 (1993) did not apply to Smith’s testimony, but that this was not reversible error because Smith had not provided specific numbers in explaining the conceptual meaning of hedonic damages. The 10th Circuit said:
The concept of hedonic damages is premised on what we take to be the rather noncontroversial assumption that the value of an individual’s life exceeds the sum of that individual’s economic productivity. In other words, one’s life is worth more than what one is compensated for one’s work. The assumption that life is worth more than the sum of economic productivity leads to the equally noncontroversial conclusion that compensatory awards based solely on lost earnings will under-compensate tort victims. The theory of hedonic damages becomes highly controversial when one attempts to monetize that portion of the value of life which is not captured by measures of economic productivity. Attempts to quantify the value of human life have met considerable criticism in the literature of economics as well as in the federal court system. Troubled by the disparity of results in published value-of-life studies and skeptical of their underlying methodology, the federal courts which have considered expert testimony on hedonic damages in wake of Daubert have unanimously held quantifications of such damages inadmissible. . . Here, Stan Smith only testified to the definition of loss of enjoyment of life, which he described as ‘an estimate of the value of a person’s being for enjoyment of life as opposed to the value of a person’s doing or their economic productive capacity, whether it’s in the marketplace, in the business, or in the household as a service.’ . . As the district court correctly noted, New Mexico state law permits both recover of hedonic damages and allows ‘an economist to testify regarding his or her opinion concerning the economic value of a plaintiff’s loss of enjoyment of life. . . The district court also made an appropriate decision regarding reliability, excluding the quantification which has troubled both courts and academics, but allowing an explanation adequate to insure the jury did not ignore a component of damages allowable under state law.
(2) Bennett v. Lembo, 761 A.2d 494 (2000). New Hampshire’s Supreme Court ruled that hedonic damages can be recovered in a personal injury with a permanent impairment. Whether expert testimony would be allowed based on willingness-to-pay literature was not addressed.
2001
(1) Christofferson v. City of Great Falls, 2001 ML 2326; 2001 Mont. Dist. LEXIS 3560. (Mont. Dist. 2001). This is an order of Judge Kenneth Neill granting a motion in limine barring the hedonic damages testimony of Dr. Stan V. Smith after a Daubert hearing, with specific considerations of: (A) Testability; (B) Peer Review; (C) Potential Rate of Error; and (D) Degree of Acceptance. Under “Incontestability,”the Court said:
Dr. Ireland testified that the methodology could not be tested. Dr. Smith admitted only that the underlying studies . . .could or had been tested. Dr. Ireland further pointed out that while many of the predictions of economists in damages testimony can be validated in retrospect if not otherwise (for example, predicted rates of inflation, salary escalations, etc.), no such retrospective validation is possible with hedonic damages.
Under “Peer Review,” the Court said: “Publication . . . does not equate to peer review.” Under “Potential Rate of Error,” the Court cited Hein v. Merck & Co, 868 F. Supp. 230 (M.D. Tenn. 1994) in saying that “Expert valuation in hedonic damages has been roundly criticized for the wide variation reached by various experts in calculating values of an anonymous life, from for example $100,000 to $12,000.” Under “Degree of Acceptance,” the Court said:
Dr. Ireland cites to a 1999 survey of forensic economists in which only 25% indicated they were willing to consider presenting hedonic damage testimony and 75% would not. . . Certainly a cottage industry has sprung up around this theory of hedonic damages in which numerous forensic economists are willing to come forward and testify for one side or the other. Any time there is a market for a particular type of expert testimony as there clearly is here, one should lnot be surprised that there will be experts ready to avail themselves of that market. A review of the cases and literature cited in the cases reveals that there is anything but a professional consensus that Dr. Smith’s theory is valid.
The Court also concluded that hedonic damages testimony failed a separate “relevance” test based on the fact that purchases of smoke detectors were not relevant to measure the quality of someone’s life.
(2) Kansas City Southern Railway Company, Inc. v. Johnson, 798 So.2d 374 (MS 2001). The trial court judge had admitted the hedonic damages testimony of Stan V. Smith. This decision held that hedonic damage testimony in a personal injury case could be admitted at the discretion of the trial court judge and affirmed the trial court. This decision was later rendered obsolete by passage of legislation to specifically preclude hedonic damages testimony by an economic expert.
(3) Ogden v. J.M. Steel, 31 P.3d 806 (AZ App. 2001). Hedonic damages are a separate element of damages from pain and suffering. No issue was raised about whether expert testimony about hedonic damages was allowable.
(4) Boan v. Blackwell, 343 S.C. 498 (S.C. 2001). Hedonic damages are a separate element of damages from pain and suffering. No issue was raised about whether expert testimony about hedonic damages was allowable.
(5) Abadie v. Metro. Life Ins. Co., 804 So. 2d 11 (LA App. 2001) The Court of Appeals held that it was in error for the trial court to have admitted the hedonic damages testimony of economic expert Dr. Melville Wolfson, but that the trial court had neutralized that error and this was not grounds for reversal of the trial court decision. The Court said:
Defendants objected to any testimony from Dr. Wolfson on this issue and a Daubert hearing was held. Dr. Wolfson testified that the method he used to calculate loss of enjoyment of life assumes earning capacity as a unit of measurement and the value of leisure time as determined by that earning capacity. He agreed that the economic testimony had a very limited function, that the determination rests with the fact finder, and that this was but one component of the damages. Dr. Wolfson admitted that his methodology is unique and he has not published any material on the matter. The trial court first admitted the testimony, and Dr. Wolfson valued this portion of damages at $ 1,228,565.00. The court later determined it had committed [Pg 19] error and instructed the jury to disregard this testimony. We agree with the statement in Foster v. Trafalgar House Oil & Gas, 603 So. 2d 284, (La. App. 2nd Cir. 1992), that economic theories which attempt to extrapolate the “value” of human life from various studies of wages, costs, etc., have no place in the calculation of general damages. See also Mistich v. Volkswagen of Germany, Inc. 94-0226 (La. App. 4th Cir. 6/25/97), 698 So. 2d 47,wherein the court determined to reject the testimony of Dr. Wolfson on this same issue: ” Hedonic damages] refers to damages for loss of enjoyment of life. They are included in the concept of general damages because, like pain and suffering, they cannot be quantified with any degree of “pecuniary exactitude” or measured definitely in terms of money.” Id, at 51. We agree that it was error for the court to permit that testimony.
2002
(1) Buxbaum v. Trustees of Indiana University, 2002 ML 2937; 2002 Mont. Dist. LEXIS 3141 (Mt Dist. 2002). A motion to exclude the testimony of Stan Smith on hedonic damages was granted.
(2) Davis v. Rocor International, 226 F.Supp.2d 839 (S.D.Miss. 2002). A Daubert standard was applied to the proffered expert testimony of Dr. Stan Smith in several areas. The hedonic damages testimony of Stan Smith was rejected on the grounds of not assisting the trier of fact to understand or determine an issue in this case. The loss of society testimony of Stan Smith was rejected on the basis of lack of evidence showing loss of society based on percentages in this personal injury action and on the basis that Smith, as an economist, has not been shown to be qualified as an expert with respect to relationship values. The loss of household services testimony of Stan Smith, projected on the basis of 40 percent, was rejected because there was no showing that Smith, as an economist, is independently qualified to make that determination and that Plaintiffs had not shown that Smith’s opinion would assist the trier of fact in understanding the evidence presented at trial.
(3) Anderson v. Hale, 2002 U.S. Dist. LEXIS 28281 (W.D. Ok. 2002). This decision excluded the hedonic damages testimony of Dr. James Horrell, but allowed Horrell to testify about earning capacity and lost services. Plaintiffs had relied upon the decision in Smith v. Ingersoll-Rand, 214 F.3d 1235 (10th Cir. 2000) in arguing that Horrell’s testimony was admissible. The Court held that Smith v. Ingersoll-Rand was not relevant because that decision involved issues in New Mexico law that were not relevant in Oklahoma. The Court said:
In Smith v. Ingersoll-Rand, the district court was called upon to rule on the admissibility of the proposed expert testimony of Stan Smith, the reputed father of the theory of hedonic damages. The district court excluded Smith’s testimony purporting to quantify hedonic damages but did allow Mr. Smith to testify “about the meaning of hedonic damages.” Smith, at 1244. It is unmistakably clear from the Tenth Circuit’s opinion, affirming the judgment of the district court, that the indispensable predicate for the admission of Stan Smith’s testimony about the meaning of hedonic damages was that “hedonic damages are explicitly allowed under New Mexico law . . . .” Id.
(4) Dubose v. City of San Diego, 2002 U.S. Dist. LEXIS 28297 (S.D. Ca. 2002). Judge James Lornenz granted defendant’s motion in limine to exclude the hedonic damages testimony of economic expert Robert Johnson, applying federal Daubert-Kumho standards and precedents rather than California precedents.
(5) Choctaw v. Hailey, 2002 Miss. Lexis 181 (2002). Loss of the enjoyment of life was declared recoverable in a wrongful death action. A subsequent act of the Mississippi precluded hedonic damages in a death case and precluded an expert witness from testifying about hedonic damages in a personal injury action.
(6) Dorrough v. Wilkes, 817 So. 2d 567 (MS 2002). This decision predates Mississippi tort reform legislation precluding hedonic damages in a death case and holding that there can be no expert opinion about hedonic damages. The Court held that hedonic damages were allowable in a death case if pain and suffering was lengthy before death as in the Dorrough case, but struck the hedonic damages testimony of Robert Johnson after Johnson’s testimony. The jury was told they could award hedonic damages, but should ignore report Robert Johnson’s testimony in arriving at its award.
(7) Wisseman v. City of Cut Bank, 2001 ML 5022; 2001 Mont. Dist. LEXIS 2734 (Mt. Dist. 2001). A motion to exclude the testimony of Robert Velin on hedonic damages was granted.
(8) Couch v. Astec Industries, Inc., 2002 NMCA 84 (New Mexico Court of Appeals 2002). This decision reconfirms that a trial court judge can admit testimony by an economic expert about hedonic damages in a personal injury case in New Mexico. Brian McDonald had testified at the trial court level that the value of a statistical life lies between $500,000 and $11 million, with $3 million as the average. McDonald testified that this figure represented “the value of an entire life from cradle to grave and included earnings as well as intangible enjoyment.” McDonald declined to specify a percentage of a whole life that the plaintiff lost because of his injuries. The defense appealed on the basis that failure to specify a percentage rendered his testimony unhelpful to a jury. The Court of Appeals responded: “We disagree. McDonald’s testimony regarding a statistical life gave the jury a range of monetary values that likely proved helpful in evaluating Plaintiff’s claim. He also provided concrete guidance to the jury in determining a percentage of the monetary value that might reasonably compensate plaintiff. . .[I]f McDonald had complied and offered a specific value for Plaintiff’s hedonic damages claim, he would have intruded improperly into the fact finder’s domain.” The court cited Smith v. Ingersoll-Rand Co, 214 F.3d 1235 (10th Cir. 2000) as indicating that the role of an economic expert regarding hedonic damages in New Mexico was one of explaining the general concept of hedonic damages and the nature of the statistical studies in the value of life literature.
(9) McGarry v. Horlacker, M.D., 2002 Ohio 3161 (Ohio App. 2002). The Ohio Court of Appeals upheld a trial court refusal to admit the hedonic damages testimony of John Burke, an economist. The trial court judge conducted a Daubert hearing to determine the admissibility of his hedonic damage testimony in a personal injury case. Burke was allowed to testify about McGarry’s lost earning capacity and the value of her services as a homemaker. The trial court judge was quoted as having said: “Now, I am aware that under Daubert there are areas of science that are shaky but admissible that can be introduced, but I just don’t think this is in the shaky but admissible category. It may obtain that with more study in the near future, but I just don’t believe it is there now.” The Court of Appeals emphasized that “Burke attempted to assign a monetary value to a random American woman’s qualitative enjoyment of life at McGarry’s age. He admitted that, because his calculations were based on a random American, his method would assign the same hedonic damages to a woman who had been sentenced to life in prison as to a woman living a normal, healthy life with her family.”
(10) Gradia v. Tanner, 2002 U.S. Dist. LEXIS 28446 (D. N.M. 2002). U.S. Magistrate Judge William Deaton granted a motion to limit the hedonic damages testimony of Dr. Allen Parkman, as follows:
This matter comes before the Court upon Defendants’ Motion in Limine to Exclude the Testimony of Dr. Allen Parkman Regarding Loss of Value of Life or Hedonic Damages [docket no. 27]. In responding to Defendants’ motion, Plaintiff relies in part on Smith v. Ingersoll-Rand Co., 1997 U.S. Dist. LEXIS 23443, which is attached to his response. In Smith, Judge Vazquez found that the economic studies which purportedly would allow valuation of hedonic damages by an expert would fall into the category of social science and would not require a Daubert analysis of the proposed testimony since the proper analysis would be under Fed. R. Evid. 702. Judge Vazquez went on to find that the use of the economist’s testimony for purposes of placing a value on hedonic damages would not be reliable and that it would be unhelpful and confusing to the jury; therefore, Judge Vazquez did not allow the economist to place a value on the hedonic damages suffered by the Smiths. However, Judge Vazquez did allow the expert in her case to give testimony explaining hedonic damages. I agree with the approach and logic taken by Judge Vazquez in the Smith case. While I will not allow the expert in this cause, Dr. Allen Parkman, an economist, to testify regarding the value of the hedonic damages suffered by Plaintiff’s deceased, I will allow him to explain the nature of hedonic damages. Also, Dr. Parkman may give his opinion as to the economic loss to the estate caused by the death of Jay Gradia.
2003
(1) Wilson v. Sundstrand Corporation, 2003 U.S. Dist. LEXIS 4 (N.D. IL 2003). This order denied a defense motion to strike the testimony of Dr. Stan V. Smith on behalf of the plaintiffs. The action was a 1929 Warsaw Convention action involving an airplane crash in Indonesia that had killed 26 passengers, none of whom was American. By the deadline for expert reports, Smith had provided a full report for only one of the 26 decedents, none of whom was an American. The primarily basis for the motion to exclude Smith’s testimony was the failure of the plaintiffs to provide full reports by the disclosure deadline. Smith calculations included a variety of damage elements, including loss of enjoyment of life (hedonic damages). Judge Kennelly held that this was inadequate and that complete reports should be filed for all decedents. Judge Kennelly sanctioned plaintiff attorneys with a fine and set the trial date further in the future, but did not exclude Smith on that basis. Judge Kennelly said:
Smith’s original report regarding one of the deceased passengers adequately explained Smith’s opinions, the basis for those opinions, and his reasoning, and plaintiffs state without contradiction that the supplemental reports for the other twenty-five follow a similar format. The apparent flaws exposed by Sunstrand may provide ample ammunition for cross examination of Smith, and they conceivably provide a basis for challenging some or all of his testimony via a motion in limine, but they are not of sufficient magnitude to warrant striking the original or supplemental reports or barring Smith from testifying at trial.
(2) Myers v. Williams Mfg., 2003 U.S. Dist. LEXIS 29102 (D. N.M. 2003). This order was partly in response to a defense motions in limine to exclude the hedonic damages testimony of Dr. Brian McDonald. Federal District Judge William P. Johnson said:
The parties have not provided the Court with a copy of Dr. McDonald’s report or with the specific testimony that is being challenged. Dr. McDonald will not be allowed to testify as to “his valuation that Plaintiff has suffered a loss of $10,000.00 per year in purely hedonic damages.” To that extent, Defendant’s Motion in Limine will be granted. However, the Court is unable to properly perform its gatekeeping function under Rule 702 without the expert’s report. Therefore, the Court will defer ruling on the admissibility of the remainder of Dr. McDonald’s hedonic damages testimony until it has had an opportunity to review his report and consider oral argument of counsel. The Court will then determine whether Fed. R. Evid. 403 and 703 are appropriate bases for excluding Dr. McDonald’s testimony on hedonic damages.
Judge Johnson also said in a footnote:
Defendant has provided a copy of a report by its own economist, Dr. George Rhodes, whose opinion is that an economist “does not bring reliable or valid scientific testimony or specialized knowledge to a trier of fact with respect to placing dollar values on human lives or on the enjoyment of value to a human life or the enjoyment of it with validity or reliability.” Def. Ex. A at 2. Dr. Rhodes attacks certain portions of Dr. McDonald’s report, but without the report the Court cannot assess adequately the factors it must consider.
2004
(1) Durham v. Marberry, 356 Ark. 481; 156 S.W.3d 242 (Ark. 2004). The Arkansas Supreme Court held that a 2001 Arkansas survival action Ark. Code Ann. § 16-62-101 (Supp. 2003) created a new element of damages in circumstances of wrongful death called “loss of life” and that an injured plaintiff did not have to have survived beyond the fatal injury to have the right to recover this loss element. The Court indicated that “loss of life” and “loss of enjoyment of life” are different elements even though “both are hedonic.” Regarding economic experts, the court said:
Though the appellants do not argue this point on appeal, the appellees have noted that the appellants retained an economist to provide expert testimony about loss-of-life damages. This expert testimony was the subject of a motion in limine filed by the appellees, requesting that the expert testimony be excluded. However, the trial court did not reach the issue of the motion in limine because it granted summary judgment on the claim for loss-of-life damages. In a case decided three decades ago by this court, we determined that there is no hard and fast rule to determine compensatory damages for non-pecuniary losses:
No rule has been established – and in the nature of things none can be – for determining what compensation should be paid for loss of life, for pain and suffering, for loss or decrease of earning power, for mental anguish accompanied by physical injury, for loss of companionship, and for the various elements entering into damage actions.
While we do agree with the appellees that the determination of damages is within the purview of the jury, without a trial court ruling or order before us on the issue of expert testimony, this issue is not ripe for consideration.
[Although not named in the decision, Stan V. Smith was the plaintiff expert proffering value-of-life damages and Thomas R. Ireland was the defense expert opposing such testimony.]
(2) Hendrickson v. State of Montana, 2004 MT 20; 319 Mont. 307; 84 P.3d 38 (Montana 2004). “Damages for loss of ability to pursue an established course of life compensate for impairment of the ability to pursue one’s chosen pursuits in life, calculated separately from the loss of earning capacity. . . a claim for the loss of ability to pursue an established course of life need not be premised on a physical limitation.”
(3) Banks v. Sunrise Hospital, 102 P.3d 52; 2004 Nev. LEXIS 121 (Nevada 2004). This decision held that the trial court was not in error for admitting the hedonic damages testimony of Robert Johnson that Banks’ hedonic loss from being in a persistent vegetative state fell between $2.5 million and $8.7 million based on consumer purchase and wage-risk studies in the value of life literature. The court said: “Johnson’s methodology for the valuation of hedonic damages assisted the jury to understand the amount of damages that would compensate James for the loss of his enjoyment of life. Johnson’s valuation theories were matters within the scope of his specialized knowledge concerning the monetary value of intangibles. Moreover, the probative value of Johnson’s testimony was not substantially outweighed by the danger of unfair prejudice. Therefore, the district court properly exercised its discretion in qualifying Johnson as an expert and permitting him to testify concerning hedonic damages. We observe that Sunrise had the ability to use traditional methods of disputing Johnson’s testimony, such as presenting witnesses on its behalf to persuade the jury that Johnson’s methods were inaccurate or unreliable. The jury was then free to determine whether Johnson’s valuation theories were credible and to weigh his testimony accordingly.”
2005
(1) Dorn v. Burlington Northern Santa Fe Railroad Company, 2005 U.S. App. 1887 (9th Cir. 2005). This was an appeal of a wrongful death decision under Montana law, not an FELA action. The trial court judge had permitted Stan V. Smith to present hedonic damages testimony, but had not allowed Thomas R. Ireland to testify in opposition to the validity of hedonic damages testimony. As one a number of errors that resulted in a reversal of the trial court decision, the 9th Circuit held that it was in error for the trial court not to have admitted Ireland’s testimony. The 9th Circuit evaluated Montana’s position on hedonic damages and the admissibility of expert testimony on hedonic damages as ambiguous and therefore did not hold that the admission of Smith’s hedonic damages testimony was reversible error. It did, however, express concerns about the validity of that testimony.
(2) Sheck v. Dalcorso, 2005 N.J. Super. Unpub. LEXIS 178; 2005 WL 3543177 (N.J. Super. 2005). The New Jersey Superior court remanded the decision to the trial court on other grounds, but required that the trial court judge conduct an N.J.R.E.104 hearing regarding whether the hedonic damages testimony was admissible. Smith had been excluded from testifying at the original trial. The Superior Court provided lists of decisions favoring and opposing hedonic damages testimony as part of its decision.
(3) Bolden v. AMTRAK, 2005 U.S. Dist. LEXIS 52805 (E.D. LA 2005). In response to defendant’s motion in limine in a wrongful death action, Dr. Stan V. Smith was excluded from testifying about loss of enjoyment of life, loss of household services, and loss of society and relationship. Smith’s excluded testimony for loss of household services included ordinary household services, advice and counsel services, and companionship services.
(4) Lewis v. City of Chicago, 2005 U.S. Dist. LEXIS 63709; 2005 WL 8178978 (N.D. IL 2005). The court said:
The individual defendants move to bar or limit Lewis’ expert economist, Stan Smith, from testifying regarding losses attributable to: (a) lost wages and employee benefits, (b) replacement services, such as advice, counsel, guidance and instruction, (c) enjoyment of life, and (d) society or relationship . . .Lewis concedes the motion with respect to Smith’s opinions about loss of advice, counsel, guidance and instruction, loss of accompaniment services, loss of value of life, and loss of society or relationship. . . . Lewis’ concession is not surprising given the number of courts that have excluded testimony in these categories. See, e.g., Mercado v. Ahmed, 974 F.2d 863 (7th Cir. 1992); Ayers v. Robinson, 887 F. Supp. 1049 (N.D. Ill. 1995) Doe v. Tag, Inc., 1993 U.S. Dist. LEXIS 16356, at *7-9 (N.D. Ill. Nov. 16, 1993); Saia v. Sears Roebuck & Co., Inc., 47 F. Supp. 2d 141 (D. Mass. 1999). Accordingly, the motion in limine is granted with respect to Smith’s testimony relating to loss of advice, counsel, guidance and instruction, loss of accompaniment services, loss of value of life and loss of society or relationship.
(5) Foradori v. Captain D’s, 2005 U.S. Dist. LEXIS 47843 (N.D. MS). This decision of Judge Michael P. Mills excluded the hedonic damages testimony of G. Richard Thompson, saying:
Captain D’s motion to strike the testimony of plaintiff’s expert G. Richard Thompson, Phd, who has been called to testify regarding plaintiff’s damages, will be granted, to the extent that he seeks to offer expert testimony regarding the pecuniary value of any hedonic damages suffered by Foradori. After reviewing Dr. Thompson’s report and the methodologies used therein, the court views his hedonic damages testimony as quintessential “junk” science excluded by Daubert.. See, e.g. Davis v. ROCOR Intern., 226 F.Supp.2d 839 (S.D. Miss. 2002) (excluding hedonic damages expert testimony pursuant to Daubert). Indeed, the notion that Dr. Thompson is able to assign the precise value of $ 1,164,300 to plaintiff’s loss of enjoyment of life borders on the absurd, and the specific methodologies used by Dr. Thompson in arriving at this figure strengthen this court’s conclusion in this regard.
(6) Raigosa v. Roadtex Transp. Corp., 2005 U.S. Dist. 50001 (D. NM 2005). Dr. Everett Dillman was not permitted to provide per diem hedonic damages testimony by U.S. Magistrate Judge Richard L. Puglisi, who said:
Dr. Dillman’s report discusses “benchmark” values, estimating “hypothetical per diems of $10-$100 per day” suffered by Dorothy Raigosa for lost value of life, and by Plaintiff for loss of consortium. Defendants contend that Dr. Dillman’s opinion as to these two areas of damages should be excluded because it is speculative, unreliable and lacking in adequate basis. In support of their position, Defendants proffer the affidavit of George F. Rhodes, Jr., PhD, an economist and Professor of Economics Emeritus at Colorado State University. In his affidavit, Dr. Rhodes states, albeit in greater detail, that there is no reliable or valid scientific procedure or test which can assign a numeric value to a human life, that there is no means by which an attempt to assign such a value can be tested, that no objective criteria exist by which to value human life, that economists have no training which would permit them to place a dollar value on the existence or enjoyment of life, and that none of the procedures used by economist to place a dollar value on life is based on a properly formulated scientific hypothesis and have not been validated or generally accepted.
New Mexico permits the recovery of hedonic damages for wrongful death as well as damages for loss of consortium. Romero v. Byers, 1994-NMSC-031, 117 N.M. 422, 428, 872 P.2d 840, 846 (1994) (wrongful death); UJI 13-1810A. (loss of consortium). However, expert testimony attempting to quantify such damages invades the fact finder’s domain. Couch v. Astec Industries, Inc., 2002- NMCA 084, 132 N.M. 631, 636 53 P.3d 398, 403 (Ct. App. 2002). I am persuaded by the weight of authority that rejects expert testimony placing a dollar figure on hedonic damages, finding such testimony unreliable, untestable, failing to meet the requirement of general acceptibility and/or invading the province of the fact finder.
2006
(1) Santillan v. Schaafsma, 2006 U.S. Dist. LEXIS 108851 (C.D. IL 2006). This decision extensively cited Ayers v. Robinson, 887 F. Supp, 1049 (1995) in excluding the hedonic damages testimony of Dr. Stan V. Smith. This decision also provides a good review of decisions for and against the admission of hedonic damages testimony as of 2006.
(2) McGee v. A C and S, Inc., 933 So. 2d 770; 2006 La LEXIS 2139 (La. 2006). This decision of the Louisiana Supreme Court held in favor of allowing an award for hedonic damages as a separate category from other intangible losses such as pain and suffering. It provides a very clear discussion of the difference between “special damages” (“those which have a ‘ready market value,’such that the amount of damages may be determined with relative certainty, including medical expenses and lost wages”) and “general damages” (“general damages are inherently speculative and cannot be calculated with mathematical certainty”). The decision points out that “loss of the enjoyment of life falls within the definition of general damages because it involves the quality of a person’s life, which is inherently speculative and cannot be measured definitively in terms of money.” It offers this comparison: “Consider, for example, two boys, one athletic and the other artistic, who are both involved in an accident and suffer similar injuries. Presumably each boy should be awarded a similar quantum of damages for pain and suffering. However, the same injury may affect the boys very differently. The artist’s lifestyle was not drastically altered by the accident, as he was able to resume his artistic activities after the accident, whereas the athlete’s lifestyle is altered significantly, as he has to resign from his team and can no longer participate in athletics.” This decision involved the wrongful death of James McGee from exposure to asbestos. The court pointed out that there was no right to recover for James McGee’s loss of enjoyment of life under Louisiana’s wrongful death act, but that right existed under Louisiana’s survival action. The decision provides a clear discussion of the differences between the two acts. The right to recover for loss of enjoyment of life under the survival action was limited to the period McGee remained alive and thus suffered his loss of enjoyment of life. The decision also reviews decisions on this issue reached in a number of other states.
(3) Kemp v. Pfizer, Inc., 947 F.Supp. 1139 (E.D.Mi 1996). There is no authorization for hedonic damages in a wrongful death action in Michigan.
2007
(1) McCloud v. Goodyear Dunlop Tires N. Am., Ltd., 2007 U.S. Dist. LEXIS 1501, (C.D. IL 2007). The Court ruled:
Defendant has brought a Renewed Motion to Strike the Second Expert Report of Stan Smith – Plaintiff’s expert on the issue of hedonic damages. Plaintiff does not oppose the merits of the Motion since Plaintiff is no longer pursuing hedonic damages. Accordingly, Defendant’s Motion is GRANTED.
( 2) Mitchell v. Board of County Commissioners, 2007 U.S. Dist. LEXIS 55674 (D. N.M. 2007). This was a decision that a person who had been injured after arrest could not unilaterally withdraw his demand for a jury trial for the purpose of assessing damages so that the Court did not award damages at the current time. However, Judge Browning’s order described in some detail the damages calculations of “William Jennings Patterson, III, a forensic economist.” The order said: “Patterson has been the sole proprietor of the firm, Legal Economics, since 2000 and has been employed by the firm since 1986. . . Patterson has a bachelor’s degree in economics, and has testified as an expert in state and federal courts in New Mexico and Texas.” The order discusses details of Patterson’s calculations for “incurred and future medical expenses,” household services, and “pleasure of life.” In the latter category, Patterson testified about the value of life literature, testifying that “in calculating the present value of lost value of life, it is his practice to calculate a benchmark similar to the figures he calculated related to medical expenses and household services. . . . Patterson calculated that the present value per $10,000 per year lost is $353,254. . . . Patterson did not, however, calculate the specific value for any pleasure of life Mitchell may have lost; Patterson expressed that, in his opinion, this valuation is an issue for the finder of fact. . . Patterson also stated that he did not compute any value for Mitchell’s pain and suffering, because economists do not have a marketplace or reliable statistical study to base such calculations.”
(3) McMullin v. United States, 515 F. Supp. 2d 914 ( E.D. Ark. 2007). This is a judicial ruling in a Federal Tort Claims Act (FTCA) case involving a medical malpractice wrongful death action. An economist was apparently not involved in this case. Judge Eisele held that the Arkansas Survival Action statute applies to medical malpractice in spite of some controversy in the Arkansas Courts about whether the Arkansas Medical Malpractice Act changed this application. This meant that Judge Eisele had to make an award under Ark. Code. Ann. § 16-62-101(b), which says: “In addition to all other elements of damages provided by law, a decedent’s estate may recover for the decedent’s loss of life as an independent element of damage (as modified in 2001).” Judge Eisele reviewed the decision in Durham v. Marberry, 356 Ark, 481 (2004) which is the only appellate interpretation of the 2001 addition to the Survival Act. He found no guidance in that decision. He indicated that he had found two U.S. District Court decisions in which interpretations of this section were made. In one of the two, the judge awarded $400,000, but spoke of the vagueness of the new statutory language. In the other, the judge had permitted the testimony of Dr. Stan V. Smith, but that judge did not find Smith’s testimony “persuasive” and awarded amounts of $81,068.91 and $71,463.91. Judge Eisele also discussed a 2006 Note by Ali M. Brady, “The Measure of Life: Determining the Value of Lost Years after Durham v. Marberry,” 59 Ark. L. Rev. 125 at some length. After extensive discussion, Judge Eisele awarded $600,000 for loss-of-life damages.
(4) Harris v. United States, 2007 U.S. Dist. LEXIS 96157 (D. N.M 2007). Judge James A. Parker granted a Motion to Preclude Testimony by Plaintiff’s Economic Expert Regarding Computation of Hedonic Damages.” The precluded economic expert was Dr. Brian McDonald. Judge Parker said: “Generally, to be considered reliable, the expert’s proposed testimony must be based on more than a subjective belief or unsupported speculation. Daubert, 509 U.S. at 590. While the United States Supreme Court in Daubert, 509 U.S. at 592-594, established basic standards by which courts may assess reliability, the Court here need not reach those factors as Dr. McDonald’s description of the proposed benchmark evinces the speculative and subjective nature of that proposed benchmark.” McDonald’s report was described as follows: “Much of Dr. McDonald’s report focuses on various studies concerning the value of a statistical life studies (sic) and the valuation figures contained therein. The brief discussion of the benchmark figure ($50,000 per year for life expectancy) is intermingled with the discussion of statistical life studies despite having ‘no connection’ to them. The report contains no discussion of how Dr. McDonald generated the proposed benchmark figure or any citation to credible sources that support such a figure. As such, the basis of the benchmark figure appears largely arbitrary.” Judge Parker then cites decisions of two other judges in unreported cases as having arrived at similar conclusions with respect to Dr. McDonald’s approach.
(5) Frontier Insurance Company v. Blaty, 454 F.3d 590 (6th Cir. 2006). This decision of the 6th Circuit discusses the damages section of the Michigan Wrongful Death Act in the context of U.S.C. § 1983, a federal statute that deals with civil rights violations. There was no testimony by an economist about hedonic damages and the jury made no award for hedonic damages. Blaty, as representative of the estate of Melva Dee Parrott, a child who died from bronchitis in foster care. The 6th Circuit interpreted Michigan law as awarding hedonic damages as a part of “pain and suffering” and only “recoverable only to the extent that the decedent experienced a loss of enjoyment before dying.” The decision also held that “federal law does not require, in a section 1983 action, recovery of hedonic damages stemming from a person’s death.”
(6) Martinez v. Caterpillar, Inc., 2007 U.S. Dist. LEXIS 97414 (D.N.M. 2007). This is an order of Judge Robert Haynes Scott granting a motion in limine to bar the hedonic damages testimony of William Patterson, who offered the present value for $10,000 of lost pleasure of life over the lifetime of the plaintiff as a “benchmark” value. Judge Scott wrote that: “This type of expert opinion testimony invades the province of the jury and fails to meet the criterial for admission as expert testimony as set forth in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). . . [N]owhere in his report does Mr. Patterson explain how or why he selected this particular value. Indeed, Plaintiff ‘acknowledge[s] that [the $10,000 value] is a hypothetical figure.’ Thus, the basis of the benchmark value appears to be almost entirely arbitrary. . . [T]he Court does not understand the need to use a hypothetical ‘benchmark value’ when common mathematical equations and symbols serve the same purpose.”
2008
(1) Richman v. Burgeson, 2008 U. S. Dist. LEXIS 48349 (N.D. Ill. 2008). This was a memorandum by Judge Joan B. Gottschall ruling on a number of motions in limine, including one to exclude the hedonic damages testimony of Stan V. Smith, Ph.D. The motion with respect to Dr. Smith was granted in part and denied in part in a wrongful death case under Section § 1983 of the federal Civil Rights Act. The judge held that Dr. Smith could testify about the concept of the value of life, but could not give dollar values which, the judge held, were not sufficient reliable or helpful to a jury. Dr. Smith was permitted to opine “that ascertaining the value of life requires consideration of Jack Richman’s leadership role in his community, his love of music, and his environmental activism.”
(2) Slater v. Jelinek, 2008 U.S. Dist. LEXIS 136270 (D. NE 2008). By agreement of the parties in this case, loss of guidance services, loss of enjoyment of life and loss of society and relationship calculations of Dr. Stan V. Smith were excluded by senior judge Lyle E. Strom.
(3) One National Bank v. Pope, 372 Ark. 208; 272 S.W.3d 98 (Ark. 2008). This decision is important in in determining the meaning of Arkansas’s survival action language in Ark § 16-62-101(b) (Repl.2005), which says: “(b) In addition to all other elements of damages provided by law, a decedent’s estate may recover decedent’s loss of life as an independent element of damages.” The Court referenced its own decision in Durham v. Marberry, 356 Ark. 481 (2004) as maintaining a distinction between “loss-of-enjoyment-of-life damages” and “loss-of-life damages” as damages that are “pre-death” and damages that “only begin accruing when life is lost, at death[.]” The Court noted that in the Durham decision it had quoted Katsetos v. Nolan, 170 Conn. 637 (1976) as being instructive about how the Court viewed “loss-of-life” damages. The Court also indicated that the interpretation made in McMullin v. United States, 515 F. Supp. 2d 914 (E.D. Ark. 2007) of the Durham decision was correct in that “many types of evidence may be presented as evidence of loss-of-life damages.” The Court held that “an estate seeking loss-of-life damages pursuant to section 16-62-101(b) must present some evidence that the decedent valued his or her life from which a jury could infer and derive that value and on which it could base an award of damages.” There was no indication in the decision that the estate had tried to present an economic expert to place a dollar value on “loss-of-life” damages, nor that the Court would have felt it appropriate for the estate to have done so.
(4) Cruz v. Bridgestone/Firestone North American Tire, 2008 U.S. Dist. LEXIS 107379 (D.N.M. 2008). This order of Judge Bruce D. Black grants the part of defendants’ motion in limine to preclude the hedonic damages testimony of M. Brian McDonald and William J. Patterson in a case involving an automobile accident that killed two illegal immigrants and injured a number of others. McDonald offered testimony to the effect that the appropriate range for the value of life in the Value of Statistical Life (VSL) literature was between $5 million and $6 million, but did not offer annual values for lost life enjoyment. Patterson offered testimony that the value of life ranged from $500,000 to $11 million, with an average of about $3 million. The focus of the judge’s decision was on the applicability of the U.S. Supreme Court decision in Hoffman Plastic Compounds, Inc., v. National Labor Relations Board, 535 U.S. 137, 122 S.Ct. 1275 (2002). That decision “prohibits any use of Department of Labor statistics or statutory minimum wages for undocumented workers as it is illegal for any employer in the United States to hire or pay Plaintiffs.” Judge Black said: “Whether or not Dr. McDonald’s risk premium or Mr. Patterson’s labor versus leisure theories are valid, then, begs the question in this case. Both theories create a significant range of values. More significantly, however, both are based exclusively on wage scale and consumer choices in the United States. Several of the Plaintiffs had spent the majority of their working career employed in Mexico and were only sporadically in the United States. . . Neither Dr. McDonald nor Mr. Patterson made any attempt to acknowledge the Mexican citizenship of the Plaintiffs or the legal barriers to their earning the average American wages which are the foundation of both experts’ studies. This court finds that Daubert requires a much more tailored approach.” Judge Black went on to say, however, that he would be willing to consider testimony based on wage losses of workers “similar to Plaintiffs and which were previously disclosed in the Rule 26 reports.”
(5) Lujan v. Cooper Tire & Rubber Co., 2008 U.S. Dist. LEXIS 131028 (D. N.M. 2008). The defense moved to exclude the hedonic damages testimony of Dr. Thomas McKinnon, plaintiff’s economic expert. U.S. Magistrate Judge Robert Hayes Scott found Mckinnon unqualified, indicating that McKinnon had no specialized knowledge or training as an expert on hedonic damages and had never taken training or classes or studies in value of life issues. In addition, Judge Scott found that:
[N]othing indicates that Mr. McKinnon’s theory is testable; the studies on which he bases his testimony produce values ranging from $6.1 million to $12.9 million, suggesting very broad and flexible parameters. Although Mr. McKinnon purportedly relies on “published [i.e., peer reviewed] research” regarding the value of life, theories of hedonic damages attempting “to monetize that portion of the value of life which is not captured by measures of economic productivity” are highly controversial. . . . Neither Mr. McKinnon nor Plaintiff suggests the existence of any known or potential error rate. The controversy that exists among economists and others regarding the meaning and use of such studies does not indicate a general acceptance of such testimony in the relevant community. Applying these factors leads the Court to conclude that Mr. McKinnon’s proposed testimony is not reliable. Moreover, this Court is persuaded by the weight of authority rejecting expert testimony that attempts to quantify hedonic damages as unreliable, untestable, and failing to meet the requirement of general acceptability.
2009
(1) Garner v. United States, 2009 U.S. Dist. LEXIS 16350 (E.D. Ark. 2009). This order interpreted Tennessee law as not allowing an award for the lost enjoyment of life in a wrongful death action and therefore excluded the direct hedonic damages portion of the economic expert report of Dr. Stan V. Smith, but did not exclude his values for lost consortium, holding that Tennessee law allowed for such damages to be awarded to survivors.
(2) Lee v. Overbey, 2009 U.S. Dist. LEXIS 138766 (W.D. AR 2009). Federal Judge Robert T. Dawson had allowed Dr. Stan V. Smith to testify about loss-of-life damages and Dr. Gary Skoog had been proffered by defense as a rebuttal witness. The Plaintiff moved to exclude Skoog’s testimony. Judge Dawson interpreted Dr. Skoog’s report and deposition testimony to have argued that “it is improper to utilize loss-of-life damages as compensation in litigation.” Judge Dawson granted Plaintiff’s motion to preclude Skoog from expressing his opinions regarding whether loss-of-life damages should be recoverable under Arkansas law, but allowed Skoog to testify in opposition to the methodology used by Smith to arrive at loss-of-life damages. Note: This memorandum was apparently published the first time on LEXIS in February of 2018.
(3) Quintero v. Rodgers, 221 Ariz. 536 (AZ App. 2009). This decision held that Arizona’s survival action statute (A.R.S § 14-3110) does not allow for the estate of a decedent to recover for hedonic damages suffered by the decedent. There is no indication in the decision that an economist had attempted to quantify hedonic damages.
(4) BNSF Railway Co. v. LaFarge Southwest, Inc., Civ. No 06-1076, 2009 WL 4279849 (D.N.M. 2009). Judge M. Christina Armijo granted in part a motion in limine to exclude the reports and testimony of Brian McDonald and Allen Parkman for the plaintiff and W. Kip Viscusi for the defendant. She held that the majority rule in federal courts “is that any attempt to quantify the value of a human life is inadmissible and does not meet the relevance and reliability factors set forth in Daubert and progeny.” She said:
I construe this rule as applying to any testimony which attempts to quantify (or place a monetary value on) a particular decedent’s hedonic damages, as well as any opinion testimony which places before the jury a dollar figure or numeric formula as a so-called “benchmark figure,” “guideline,” or “range of values” to be used in calculating such damages.
Viscusi’s role in the case was to rebut testimony provided by McDonald and Parkman and Judge Armijo rules that there was no need for the jury to hear rebuttal testimony, given her ruling.
(5) Ferguson v. Valero Energy Corp., 2009 U.S. Dist. LEXIS 34888 (E.D. Pa. 2009). This is an opinion by Judge Mary A. McLaughlin interpreting Delaware’s Wrongful Death Act and Survivor’s Act as they apply to categories of damages. There is no discussion of an economic expert in the decision. The case involved the death of a single adult man who was living with, but not financially supporting his father. The father sued for damages under the Delaware Wrongful Death Act, but died before the father’s case was tried. The decedent’s two brothers then sued for damages under Delaware’s Survival Act. The court held that even though the decedent had not been supporting his father, there was sufficient evidence that the decedent had provided household services to assist his father. The estate was allowed to seek recovery for the value of household services the decedent son had provided for his deceased father. The judge also said: “Delaware courts have consistently held that the Wrongful Death Act allows the recovery of that portion of the decedent’s lost earnings that would have been saved, over and above the decedent’s spending on his maintenance, and passed on to his estate.” However, this provision applied only between the moment of injury and the moment of death, which was too brief in this case to have allowed earnings loss damages to occur. The plaintiffs had sought “any and all hedonic damages allowed for the loss of the decedent’s life and enjoyment of future life as permitted by Delaware law or as evidence of the pain and suffering and mental anguish” of the decedent. Judge McLaughlin’s discussion of hedonic damages under the Survivor’s Act relied heavily on the decision in Sterner v. Wesley College Inc., 747 F. Supp. 263 (D. Del. 1990). Under Delaware law, any claim for hedonic damages has to be as a part of pain and suffering and not as an independent category of damages “at least under circumstances like those in Sterner and here, where only a brief interval occurred between decedent’s injury and death. . . .The Court therefore predicts that if Delaware law were to allow for the recovery of hedonic damages for life’s pleasures and loss of enjoyment of life, then the Survivor’s Act would allow recovery of such damages only to the extent they were suffered for the period of time between the injury at issue and the decedent’s death.
2010
(1) Estate of Shearer v. T & W. Tool and Die Corporation, 2010 WL 2870266; 2010 U.S. Dist. LEXIS 73197 (E.D.KY 2010). The Court held that the hedonic damages testimony and loss of relationship testimony of economic expert Dr. Stan V. Smith was not admissible under Federal Rule 702 and Daubert Standards. The reason given for non-admissibility, however, was that there is no right to recover for loss of enjoyment of life or loss of relationship in a Kentucky wrongful death action. Thus, Smith’s testimony was precluded as irrelevant to the issues to be resolved in litigation. There was no assessment of the scientific merits of hedonic damages testimony.
(2) Matlock v. Greyhound Lines, Inc. 2010 U.S. Dist. LEXIS 92359 (D. Nev. 2010). The defendant argued that hedonic damages are a component of pain and suffering and are not a separate and distinct compensatory award, and that expert testimony is required to support a claim for hedonic damages. The Court said: “The Court does not agree. Hedonic damages are ‘monetary remedies awarded to compensate injured persons for their noneconomic loss of life’s pleasures or the loss of enjoyment of life.’ Banks ex rel. Banks v. Sunrise Hosp., 120 Nev. 822, 102 P.3d 52, 61–64 (2004). In Banks the Nevada Supreme Court found that expert testimony is not required, but may be utilized to assist a jury in making its determination of hedonic damages. Additionally, the Banks court found that awards for hedonic damages are typically not permitted separate and apart from pain and suffering damages. As in Banks however, the award here was not prejudicial ‘because the jury could have easily added the value of the hedonic loss to the pain and suffering award.’”
2011
(1) Smith v. Jenkins, 2011 U.S. Dist. LEXIS 47742 (D. MA 2011). In a case involving a claim of fraud, defendant’s appealed partly based on the basis that economic testimony by Stan V. Smith should not have been excluded. The court said:
Smith’s damages were based solely on the expert testimony of Dr. Stanley Smith, a forensic economist (who is not related to the plaintiff), which defendants argue should not have been admitted. It is true that Dr. Smith’s testimony was hardly a model of exactitude, and in retrospect, it perhaps should have been excluded, but it is equally true that from every appearance, the jury did not base its damages award on those portions of Dr. Smith’s relatively brief testimony that veered from the mundane into the purely speculative. (The court instructed the jury to disregard Dr. Smith’s attempt to import a wholly conjectural potential tax liability into his “willingness to pay” econometric model and refused to admit his written report in evidence). It appears rather that the jury based its far less ambitious awards against those defendants it found liable on a common-sense assessment of the impact that the ruin of Smith’s credit had (and will have) on his emotional health and future earning prospects. . . As the court is of the view that Dr. Smith’s testimony (to the extent the jury was permitted to consider it) had no pernicious influence on the damages award, it will reject this argument.
(2) Anastasion v. Credit Service of Logan, Inc., 2011 U.S. Dist. LEXIS 116271 (D. UT 2011). The Court granted a motion in limine to exclude the hedonic damages testimony of Stan V. Smith in a credit loss case involving no physical injury. The Court said:
[W]ith respect to Dr. Smith’s testimony regarding reduction in the value of Plaintiff’s life, or hedonic damages, the Court will grant Defendant’s Motion. Plaintiff argues in her Reply that this evidence should be admissible, arguing that Dr. Smith is extremely qualified, that his testimony is based on reliable economic and scientific methods, and that it has received extensive peer review and acceptance. Plaintiff further states that hedonic damages are “used by every federal regulatory agency.” However convincing these arguments may be, they do not change the fact that hedonic damages are used to approximate the loss of the value of life, and therefore are used in cases involving death or injury. As Plaintiff herself states, when “every federal regulatory agency” uses hedonic damages, it is “in analyzing the potential impact to life or limb.” Furthermore, the three Tenth Circuit cases that have mentioned hedonic damages all involve either physical injury or loss of life. As Plaintiff has not suffered the loss of life or limb, testimony regarding hedonic damages will not assist the trier of fact. Therefore, the Court will grant Defendant’s Motion with respect to this testimony. (Footnotes omitted.)
(3) Gurule v. Ford Motor Company, 2011 N. M. Unpubl. LEXIS 51 (N.M. App. 2011). The New Mexico Court of Appeals held that it was not in error for the trial court judge to have admitted the hedonic damages testimony of William Patterson. The Court said:
While we recognize that most courts have found quantifying the value of a human life, including the loss of enjoyment component, to be based on an unreliable methodology post-Daubert, we do not believe that the district court erred in finding Patterson’s testimony reliable. . . Contrary to Defendant’s characterization of Patterson’s testimony, Patterson’s testimony was mostly definitional in nature as to the types of considerations that can be taken into account when an economic value is placed on the enjoyment of a human life. He testified that economists have used several differing methods in valuing a human life, including the enjoyment component, and that application of these methods has led to a wide disparity in the dollar amounts that economists have provided as benchmarks. He then provided a very broad range of values for an individual Gurule’s age, based on present value calculations of an annual range determined by a meta-study that averaged 67 individual studies to exemplify the wide divergence between economists in determining the value of the enjoyment of life. We cannot say that the district court abused its discretion in finding that this testimony had a reliable basis. . . Patterson testified only as to the theories and techniques economists use in determining the value of a human life, and his calculations were not based on his personal perceptions on the value of enjoyment of life, but instead were based on values derived from a benchmark meta-study. As to Patterson’s qualifications, he has a bachelor’s degree in economics, has taught a variety of economic topics, has authored materials on a variety of legal-economic topics, including the valuing of life, has been an expert in court over 120 times, including testimony regarding hedonic damages, and has been retained by Defendant in other cases. Additionally, Defendant cross-examined Patterson both on his qualifications and on his testimony. A general economic background in conjunction with experience as an expert are sufficient qualifications for expert testimony on the economic theories underlying the values provided by benchmarks studies on loss of enjoyment of life and calculating the present value of a range of benchmarks. . . Based on the nature of Patterson’s testimony and his background, we cannot say that the district court abused its discretion in finding that Patterson was qualified as an expert.
(4) Rivera v. Passaic County, 2011 U.S. Dist. LEXIS 8069 (D. N.J. 2011). This decision related to whether the estate of Jesse M. Rivera could claim hedonic damages (loss of enjoyment of life) for a period of time prior to his death from hanging himself while in the general prison population. The defense argued that since Rivera attempted suicide, Rivera was obviously not enjoying his life. The District Court held that argument to be unavailable. The Court also relied upon the New Jersey decision in Eyoma v. Falco, 247 N.J.Super. 435 (1991) to hold that Rivera’s estate could claim hedonic damages during the period after hanging but before death when Rivera was comotose, but still alive, but ended when Rivera died. The final question related to when the period of hedonic damages loss began. The plaintiff wanted the period of hedonic damages to begin when Rivera was removed from suicide watch and placed in the general prison population on October 9, 2008. The District Court ruled with the defense that hedonic damages only began when Rivera hanged himself on the morning of October 13, 2008 and died seven hours later. Thus, the period of time during when the estate of Rivera was entitled to recover hedonic damages was seven hours. There was no mention of an economic expert in the decision.
(5) Chavez v. Marten Transport, LTD, 2012 U.S. Dist. LEXIS 39586 (D.N.M. 2012). Judge Martha Vázquez held that Brian McDonald “will be permitted to testify at trial as to the concept and meaning of hedonic damages, and the areas of experience that should be considered in determining those damages for Chavez, but will not be permitted to testify at trial as to the value of a statistical life, or the range of the value of a statistical life in the United States, or otherwise present the jury with a quantitative measurement of hedonic damages.”
2012
(1) Bailey v. Nyloncraft, Inc., 2012 U.S. Dist. LEXIS 122120 (E.D. MI 2012). Judge George Caram Steeh granted defendant’s Daubert motion in limine to exclude the “loss of society” testimony of Stan V. Smith, pointing out that “plaintiffs do not cite a single published opinion in which Smith’s loss of society/companionship testimony has been admitted over a Daubert challenge.” The decision reviews claims made by the plaintiffs in favor of hedonic damages testimony, including 19 affidavits from economists “that purportedly reflect a general consensus in the relevant community that evaluation of loss of society damages can be ascertained with a reasonable degree of scientific certainty.” The judge added that:
[M]any of the affidavits do not address the use of ‘value of life’ figures to calculate the value of loss of society damages, many are duplicates and some are from Stan Smith himself. These affidavits do not negate the economists’ responses in a 2009 survey in the Journal of Forensic Economics which asked economists if they would be willing to calculate hedonic damages in an injury case. Of the economists who responded, 83.6% responded because such damages ‘are far too speculative to quantify’ and ‘[t]his should be left up to the trier of fact.’
Judge Steeh concluded that: “Smith’s testimony concerning loss of society damages is inadmissible because it is irrelevant and unreliable.”
(2) Dossat v. Hoffman-La Roche, Inc., 2012 U.S. Dist. LEXIS 21002 (D. NV 2012). This is was a judicial ruling on 11 motions in limine in an employment discrimination suit, one of which was a defense motion to exclude hedonic damages testimony. The court said:
To the extent Plaintiff seeks to introduce evidence of reduction of value of life, or “hedonic” damages, such evidence is not relevant where Plaintiffs termination is not properly before the Court. Plaintiffs expert testimony is speculative and unreliable and will not be helpful to the jury. The jury would be able to make its own decision on damages if it finds intentional infliction of emotional distress. Accordingly, Defendants’ Motion in Limine No. 2 is granted.
(3) Flowers v. Lea Power Partners, 2012 U.S. Dist. LEXIS 67359 (D.N.M. 2012). Judge James Parker held that Dr. Brian McDonald could testify about the definition of hedonic damages and the components of life that may be considered in calculating hedonic damages, but may not testify about an dollar range of values attributable to a statistical life. The plaintiff had also argued that the Court should strike an affidavit by Dr. Thomas Ireland in the case of Esquibel v. John Q. Hammons, LLC, that the defendant at attached to the defendant’s motion in limine. The judge held that because the affidavit was relevant to hedonic damages, the affidavit would be considered in ruling on defendant’s motion. Judge Parker then quoted Ireland’s affidavit extensively in his decision.
(4) Fischer v. Mittal Steel USA, Inc., 2012 U.S. Dist. LEXIS 102798 (N.D. Ind 2012). From the decision: Defendant seeks to exclude evidence or argument regarding hedonic damages, which it describes as damages premised on the lack of personal enjoyment occasioned by injury. While Indiana Supreme Court has stated that a jury should not be instructed to consider the effect of the plaintiff’s injury on “the quality and enjoyment of his life,” it also observed that the phrase includes some losses that a jury should consider as part of the damage calculation. Canfield v. Sandock, 563 N.E.2d 1279, 1282 (Ind. 1990). The Court explained that a plaintiff who loves music or golf, or who can no longer lift a grandchild, should be compensated if Defendant’s negligence robbed him of such pleasures. The Court approved an instruction that the jury could consider the effect of an injury on a plaintiff’s “ability to function as a whole person.” Id. Accordingly, to the extent that Defendant seeks to exclude evidence to show that, as the result of his accident, Christopher Molnar is no longer able to participate in activities that he previously enjoyed, the motion is DENIED. However, Plaintiff should refrain from using the phrase “loss of enjoyment of life.” To that extent, the motion is GRANTED with respect to Item 8.
(5) Hinkle v. Ford Motor Company, 2012 U.S. Dist. LEXIS 127302 (E.D. KY). The Court said, in part quoting another decision, that: “‘Under Kentucky law, recovery may be made for injuries suffered during the period of time between injury and death,’ provided the injured person was conscious for part or all of the time.” This case involved the estates of three decedents, all of whom were killed in an automobile crash. The estate of Hinkle claimed loss of hedonic damages for the short period between injury and death. There was an issue of fact whether Hinkle had any period of consciousness before expiring and the estate’s claim was allowed to proceed on that basis. No economic expert was involved.
(6) Spaulding v. Tate, 2012 U.S. Dist. LEXIS 125669 (E.D. KY). This case involved the death of Judy Carol Spaulding in an automobile accident. The court said:
The Supreme Court of Kentucky has held that damages for pain and suffering are not proper for a person who remained unconscious from the time of injury until the time of death. Vitale v. Henchey, 24 S.W.3d 651, 659 (Ky. 2000). “Damages for pain and suffering may be awarded, however, if the injured person was partly conscious, had intervals of consciousness, or was conscious for a short time before death.” Id. (internal quotation marks omitted). The question, then, is whether there is a genuine issue of material fact regarding the consciousness of Mrs. Spaulding during the period between the accident and her death.
In Kentucky, even a brief period of consciousness may suffice to warrant the recovery of damages for pain and suffering.
The Court held that there was a material issue of fact about whether Ms. Spaulding had an instant of consciousness during which pain and suffering, including hedonic damages, could have occurred. No economist was involved.
(7) Lees v. Storefront Specialties and Glazing, WL 7808659 (N.M. Dist. 2012). Judge C. Shannon Bacon held that:
[Thomas R.] Ireland may not provide testimony at trial that challenges the “hedonic damages” approach to a determination of the the loss of enjoyment of life, or that the use of the “values of statistical life” studies are not scientifically reliable or valid to use in the determination of the value of life. These conclusions are contrary to the law of New Mexico. Further, Mr. Ireland may not provide testimony that is his lay person intepretation of the law. This is an improper invasion of the Court’s exclusive role in instructing the Jury on the law.
(8) Bolden v. Walsh Group, 2012 U.S. Dist. LEXIS 44351 (N.D. IL 2012). This was a putative class action filed by twelve black employees. U.S. District Judge Joan Humphrey Lefkow limited the testimony of Dr. Stan V. Smith regarding his class damages calculations and excluded Smith’s hedonic damages projections entirely, saying:
Walsh objects to Smith’s calculation of hedonic damages, which Smith describes as the damages attributable to the class members’ “loss of enjoyment of life” as a result of Walsh’s discriminatory employment practices. His method is based on a “willingness to pay” model for calculating the value of a life, which looks at consumer purchases, wage risk premiums, and regulatory cost-benefit analysis to determine a value that society places on an individual human life. (Smith Rep’t, App’x E at 1.) Smith concludes that the statistical value of a human life is $4.2 million and estimates that black Walsh employees would sustain a 10 percent loss of enjoyment of life as a result of racial discrimination. (Id. at 2.) In support, Smith cites an article that describes a conceptual approach for applying estimates of the loss of the pleasure in life (referred to as hedonic damages) in personal injury cases. See Edward P. Berla, Michael L. Brookshshire & Stan V. Smith, Hedonic Damages and Personal Injury: A Conceptual Approach, J. of Forensic Economics, Vol. 3, No. 1, pp. 1-8 (1990). As Smith admitted in his deposition, however, he is aware of no studies that apply hedonic damages in the context of a hostile work environment or otherwise discriminatory environment. (Smith Dep. at 173-74.) His estimate of a 10 percent loss in enjoyment of life is an assumption that is not subject to any scientific testing, and the estimate may vary depending upon the fact-finder’s determination of individualized damages. (Id.; Smith Rebuttal Rep’t at 18-19.) Plaintiffs have cited no case or peer-reviewed article where hedonic damages were used to determine the “loss of enjoyment of life” that results from employment discrimination. Smith’s calculation of hedonic damages will be excluded.
2013
(1) Allen v. Bank of America, 2013 U.S. Dist. LEXIS 37815 (D. Md. 2013). This case had to do with alleged bank violations of provisions of state and federal law in the provision of mortgage servicing and mortgage payment services to the Allens. Plaintiffs offered Stan Smith as an economic expert to testify about hedonic damages and loss of credit expectancy by the Allens. Judge Catherine Black granted a defense motion to exclude Smith’s testimony on hedonic damages, but reserved judgment regarding his credit expectancy calculations. She said:
BANA has moved to exclude all of the testimony of the Allens’ designated damages expert, Stan V. Smith, asserting that he is unqualified to offer his proposed expert opinions and that the opinions themselves are irrelevant and unreliable. The Allens seek to offer his testimony on two types of damages they allegedly suffered because of BANA’s actions: loss of credit expectancy and “hedonic damages” (also known as “loss of enjoyment of life”). The Allens, in turn, have moved to exclude the expert BANA seeks to offer to rebut Smith’s testimony. For the reasons set forth below, Smith’s testimony on “hedonic damages” will be excluded (as will any testimony by BANA’s expert rebutting as much), but the parties’ motions will otherwise be denied without prejudice as the relevance and reliability of their expert opinions on the Allens’ credit expectancy is an issue for trial.
BANA’s argument seeking to exclude Smith’s testimony on “hedonic damages” largely focuses on Smith’s qualifications and the reliability of his opinions on this issue. Setting aside the question of Smith’s credentials and methods, which raise significant doubts about his proposed expert opinions, the court finds that any testimony on so-called “loss of enjoyment of life” or “hedonic damages” would not “help the trier of fact to understand the evidence or determine a fact in issue” as required by Fed. R. Evid. 702(a). See, e.g., Mercado v. Ahmed, 974 F.2d 863, 870-71 (7th Cir. 1992). While the Allens are correct that they may seek “noneconomic damages” for emotional injuries they suffered because of BANA’s actions, (citations deleted) a jury is perfectly capable of determining such damages without any expert testimony (citations deleted). The court is not convinced that an expert whose opinion is based almost entirely on asking lay persons how a particular event has affected their enjoyment of life would provide any assistance to the jury in making that determination for themselves. Accordingly, BANA’s motion to exclude testimony on this topic will be granted.
(2) Case v. Town of Cicero, 2013 U.S. Dist. LEXIS 148656 (N.D. IL 2013). Item H in this memorandum concerned the admissibility of hedonic damage testimony by Stan V. Smith in this personal injury claim. Magistrate Judge Daniel G. Martin limited Smith’s testimony as follows:
Smith may explain what hedonic damages mean and the general factors that are ordinarily considered part of such damages. No dollar amount may be cited, nor may Smith propose any methodology by which the jury could calculate Nicholas’ hedonic damages. This testimony will help the jury carry out its fact-finding function to determine an appropriate amount of damages.
(3) Smith v. Dorchester Real Estate, Inc., 2013 U.S. App. LEXIS 20785 (1st Cir. 2013). In an appeal from a federal district court in Massachusetts, the 1st Circuit held that it was reversible error for the trial court to have admitted the hedonic damage and loss of credit expectancy testimony of Stan V. Smith (not the plaintiff). The 1st Circuit also remanded to the trial court a consideration of Dr. Smith’s loss of time calculations. The decision provided extensive explanation of the methods used by Smith for each of Smith’s calculations, with extensive citations of previous decisions disallowing Smith’s hedonic damages testimony. The court also rejected Smith’s method for calculating the value of lost credit expectancy as a mere possibility and unhelpful to a jury, saying: “Absent evidence to the contrary, Smith’s loss of future credit expectancy at the rate calculated by Dr. Smith was merely in the realm of possible harm. As such, it was speculative and should have been excluded.” The court went on to stress that loss of credit expectancy was a compensable harm if properly calculated.
(4) Johnson v. Redd, 2013 N.J. Super. Unpub. LEXIS 2739 (N.J. Super. 2013). This opinion provides written explanation for the granting of a defense motion to exclude the hedonic damages testimony of Dr. Stanley V. Smith in a personal injury action. Smith was permitted to testify as to the plaintiff’s lost wages and household expenses. The court cited Scheck v. Dalcorso, 2005 N.J. Super Unpub. LEXIS 178 (NJ Super 2005) as the only previous New Jersey decision with respect to hedonic damages. Smith had also been excluded in that decision. The decision reviewed the “willingness to pay” (WTP) approach in some detail as well as Smith’s method for using WTP studies and extensively cited Smith v. Dorchester Real Estate, Inc., 2013 U.S. App. LEXIS 20785 (1st. Cir. Oct. 15, 2013) in holding that Smith’s testimony did not meet the requirement of New Jersey’s Frye standard. The court also held that Smith’s “impairment ratings” of 40% and 80% were arbitrary and therefore unreliable.
(5) Carrillo v. Las Vegas Metro. Police Dep’t, 2013 U.S. Dist. LEXIS 114781 (D. NV 2013). A motion by plaintiff to reopen discovery to admit the hedonic damages testimony of Dr. Stan V. Smith was denied.
(6) Degraw v. Gualtieri, 2013 U.S. Dist LEXIS 95853 (M.D. Fla. 2013). The Court issued partial summary judgment holding that hedonic damages were not allowed under Section 1983 of the Federal Civil Rights Act (42 U.S.C. § 1983) given that hedonic damages were not allowed under the Florida Wrongful Death (F.S. § 768 16-26). (Hedonic damages are allowed under Section 1983 if allowed under state statutes.) This decision discussed and mirrored another recent decision of a federal district court in Florida in Breedlove v. Orange County Sheriff’s Office, 2012 WL 2389765 (M.D. Fla. 2012).
(7) West v. Bell Helicopter Testron, Inc., 2013 DNH 118; F.Supp. 2d 479 (D. NH 2013). The Court held that there is no recovery for “hedonic” damages, defined in this case as the loss of value of life itself cause by a shortened life expectancy, citing Ham v. Maine-New Hampshire Bridge Authority, 92 N. Y. 268, 274-76, 30 A.2d 1 (1943).
(8) Herrera v. City of Roswell, 2013 U.S. Dist. LEXIS 196366 (D. NM 2013). This order granted a defense motion to exclude testimony of Dr. Allen Parkman concerning hedonic damages in a wrongful death action, saying: “Plaintiff expert economist shall not be permitted to provide any opinions regarding any dollar values or range of values attributable to a statistical life or the life of the decedent.”
(9) Tom v. Sherman Bros. Heavy Trucking, 2013 U.S. Dist. LEXIS 192701 (D. NM 2013). This memorandum granted a defense motion to bar testimony about the dollar value of the life of the decedent in a wrongful death action. Plaintiff’s attorney was permitted to argue for a specific dollar value in closing comments. The Court, interpreting New Mexico law, said:
New Mexico permits the recovery of hedonic damages in a wrongful death case. Smith v. Ingersoll-Rand Co., 214 F.3d 1235, 1246 (10th Cir. 2000) (quoting Sena v. New Mexico State Police, 1995- NMCA 003, 119 N.M. 471, 892 P.2d 604, 611 (1995)); N.M. Uniform Civil Jury Instruction 13-1830 (allowing plaintiff in wrongful death action to recover damages for the “value of the deceased’s life apart from [his] [her] earning capacity”). Hedonic damages attempts to compensate a decedent for the portion of the value of life that is not captured by measures of economic productivity. Smith, 214 F.3d at 1245. Monetizing that portion of life, however, is highly controversial. Id. Federal courts, for example, have unanimously held quantifications of hedonic damages through expert testimony inadmissible. Id. New Mexico law is clear, however, that proof of non-pecuniary damages resulting from the loss of enjoyment of life is permitted. Sena, 119 N.M. at 478. Of course, this Court must apply the substantive law of New Mexico while adhering to the Federal Rules of Evidence. Sims v. Great American Life Ins. Co., 469 F.3d 870, 877 (10th Cir. 2006).
Just as an expert witness is precluded from quantifying hedonic damages, so too lay persons should be precluded from giving a dollar figure for the value of the deceased’s life. Such testimony is far more prejudicial than probative and invades the province of the jury. To this extent, Defendant’s motion will be granted to exclude the quantification by any witness of the value of Mr. Tom’s life.
2014
(1) Farring v. Hartford Fire Insurance Company, 2014 U.S. Dist. LEXIS 33488 (D. NV). This two page order of Judge James C. Mahan denied a defense motion limine to exclude the hedonic damages testimony of Stan V. Smith under the standards of Daubert and Kumho. No mention was made in this order of prior federal court decisions to exclude hedonic damages testimony. Judge Mahan stated that because the “willingness to pay” literature “determines conclusions through observations of large amounts of data, its reliability is not in doubt.” The judge also said that: “Dr. Smith’s work has been published in countless peer-reviewed academic journals, and that the particular theories he uses in this case are included in textbooks relied upon by numerous universities across the country. While some economists disagree with Dr. Smith’s conclusions, his methodology has a strong following in the field.” This is the first federal court decision in a case reported by LEXIS that has allowed hedonic damages testimony under a Daubert standard.
(2) Stokes v. John Deere Seeding Group, 2014 U.S. Dist. LEXIS 21725 (C.D. IL 2014). This decision of Judge Sara Darrow excluded the hedonic damages testimony of Stan Smith. Her decision extensively discussed the Value of Statistical Life (VSL) literature, the method used by Stan Smith to derive his hedonic measures from the VSL literature, and makes it clear that the judge does not consider Smith’s methodology to be reliable. She said: “There is no basis, scientific or otherwise, for asserting that the only components of life’s value are economic productivity and enjoyment.” She also cited Michael L. Brookshire, et al, “A 2009 Survey of Forensic Economists: Their Methods, Estimates, and Perspectives,” 21 J. Forensic Econ. 5 (2009) to indicate that the hedonic damage approach of Smith has not been shown to be “generally accepted within the scientific community,” indicating that 83.8% of 173 respondents would refuse to calculate loss of enjoyment of life in an injury case and 82.2% of 174 respondents would critique a calculation of hedonic damages. She pointed out that while the survey was voluntary,
[T]he overwhelming negative response must least raise strong doubts as to whether Dr. Smith’s methodology can be termed ‘generally accepted.’ For this reason and because Dr. Smith’s method relies on unfalsifiable and unsubstantiated inferences, as described, it is unreliable.
Judge Darrow went on to deny a request from the plaintiff that, should court exclude Dr. Smith’s testimony on the plaintiff’s personal hedonic damages calculations, Smith would still be permitted to “explain the concept” of hedonic damages. She said:
The only sufficient testimony Dr. Smith could provide covers matters already “obvious to the layperson” . . . A jury has no need for an expert to make the banal observation that the value of life exceeds a person’s economic productivity.
(3) Laetz v. Hyundai Motor America, 2014 WL 12768503 (W.D. MI 2014). U.S. District Judge Janet F. Neff excluded non-economic damages opinions of Dr. Stan V. Smith, plaintiff’s economic expert, saying:
Smith, as an economist, may testify concerning calculations of loss of income and the value of the decedent’s services based on Plaintiff’s testimony, but Smith may not testify regarding non-economic damages such as for the decedent’s loss of loss of life’s enjoyment (hedonic damages) or the loss of society and companionship of the decedent’s mother or daughter, which is a question for the trier of fact.
(4) Kretek v. Board of Commissioners of Luna County, 2014 U.S. Dist. LEXIS 188299 (D. N.M. 2014). In response to a defense motion in limine to exclude the hedonic damages testimony of William Patterson, Judge Gonzales said:
With respect to any testimony on hedonic damages, the majority rule in federal court is that placing a dollar amount, including the use of so-called benchmarks, on hedonic damages does not meet the relevance and reliability factors required to admit expert testimony. BNSF Ry. Co. v. Lafarge Southwest, Inc., 2009 U.S. Dist. LEXIS 132152, 2009 WL 4279849 *2 (D.N.M.). In fact, this District Court has excluded Mr. Patterson’s hedonic damages calculations in the past. See Martinez v. Caterpillar, Inc., 2007 U.S. Dist. LEXIS 97414, 2007 WL 5377515 (D.N.M.). Hence, the Court will exclude any testimony based on benchmarks.
An economics expert, however, can give “generalized testimony about the concept of hedonic damages.” BNSF Ry. Co., 2009 U.S. Dist. LEXIS 132152, 2009 WL 4279849 at *1. Moreover, Mr. Patterson can reliably testify how to generally calculate hedonic damages. That testimony would consist of telling the jury that they must (1) determine an annualized value for Mr. Aparicio’s loss of pleasure of life, (2) multiply that annualized value by the number of years Mr. Aparicio is expected to live, and (3) discount that result to present value by using an appropriate factor. Mr. Patterson’s knowledge of what hedonic damages are and how to generally calculate hedonic damages will help the jury determine hedonic damages.
Plaintiff also requests that if Mr. Patterson cannot use benchmarks in explaining hedonic damages, he should be allowed to testify as to the value of a statistical life. The district has, likewise, rejected such testimony as not relevant or reliable. See Chavez v. Marten Transp., Ltd., 2012 U.S. Dist. LEXIS 39586, 2012 WL 988008 *2 (D.N.M.) (citing Cruz v. Bridgestone/Firestone N. Am. Tire, LLC, 2008 U.S. Dist. LEXIS 107379, 2008 WL 5598439 *4 (D.N.M. 2008)). The Court will, therefore, not permit Mr. Patterson to testify about the value of a statistical life.
(5) Hart v. Corrections Corporation of America, 2014 U.S. Dist. LEXIS 197426; 2014 WL 12670796 (D. NM 2014). Federal District Court Judge M. Christina Armijo granted defense motions to limit the testimony of Dr. M. Brian McDonald in two ways but permitted McDonald to explain the general concept of hedonic damages. McDonald was precluded from offering his opinion that the reasonable range for the value of life was from $5.0 million to $6.0 million. McDonald was also precluded from offering rounded present values for a life care plan.
(6) Laetz v. Hyundai Motor America, 2014 WL 12768503 (W.D. MI 2014). U.S. District Judge Janet F. Neff excluded non-economic damages opinions of Dr. Stan V. Smith, plaintiff’s economic expert, saying:
Smith, as an economist, may testify concerning calculations of loss of income and the value of the decedent’s services based on Plaintiff’s testimony, but Smith may not testify regarding non-economic damages such as for the decedent’s loss of loss of life’s enjoyment (hedonic damages) or the loss of society and companionship of the decedent’s mother or daughter, which is a question for the trier of fact.
2015
(1) Castrillon v. St. Vincent Hospital and Health Care Ctr., 2015 U.S. Dist. LEXIS 69530 (S.D. IN 2015). This memorandum from Judge William T. Lawrence excluded the testimony of Stan V. Smith on both the Plaintiff’s hedonic damages and wage loss. With respect to hedonic damages, Judge Lawrence said:
Even assuming Dr. Smith arrives at his “value of life” number in a scientifically reliable way, reducing it by, say, 25 percent would arrive at the value of a life that has been cut short by 25 percent, not at a life that is of the same duration but 25 percent less enjoyable. In order to be useful to the jury, Dr. Smith would have had to start with the value of the enjoyment of the Plaintiff’s life but-for the events at issue in this case and then reduce that figure by the percentage of enjoyment she has lost; instead, he started with what he purports to the overall value of her life. Dr. Smith offers no explanation why he believes the value of a person’s life is the same as the value of the enjoyment of a person’s life, and, as the First Circuit held [Citing Smith v. Jenkins, 732 F.3d 51, 66 (1st Cir. 2013)], “[t]hat Dr. Smith may equate [the two] is not enough to bridge that gap.” Accordingly, Dr. Smith’s testimony regarding hedonic damages lacks a factual basis and therefore fails to satisfy Rule 702 and will not be admitted. [Footnotes removed from quotation.]
On wage loss, Smith had made speculative assumptions with respect to both the Plaintiff’s pre-injury earnings and post-injury earnings that Judge Lawrence rejected, particularly given that the Plaintiff was earning more at present than projected by Smith.
(2) State ex rel Children, Youth & Families Dep’t, 2015 N.M. App. LEXIS 67 (N.M. App. 2015). This decision is an appeal from sanctions by the Children, Youth and Families Department (CYFD) imposed as a result of “contumacious” refusal to comply orders of the district court. CYFD had made housing arrangements for two children that the district court had specifically forbidden. In determining the amount of sanctions to be imposed, the district court had allowed Stan Smith to present hedonic damages testimony. The Court of Appeals noted that Alberico/Daubert standards did not apply in New Mexico courts to “expert testimony by an economist that is based solely upon experience and training.” Thus, the Court of Appeals held that the district court did not err in not applying the Alberico/Daubert standard for scientific reliability of the economist’s testimony. The Court of Appeals, however, added that: [T]he basis of Smith’s opinions provided rich fodder for cross examination.”
(3) Passmore v. Barrett, 2015 U.S. Dist. LEXIS 66225, (N.D. IN 2015). This is the denial of a Motion to Bar Opinion Testimony from Stan Smith. Smith initially offered opinions in this wrongful death action about the decedent’s “loss of value of life; and loss of society or relationship,” which defendants argued were not permitted under Ind. Code § 34-23-1-1. The plaintiff agreed to withdraw those categories, but defendants continued to challenge Smith’s testimony on “loss of wages and employee benefits and loss of household/family housekeeping and house management services.” The Court agreed with Plaintiffs that those damages are allowed under Ind. Code § 34-23-1-1 and denied the defense motion to exclude Smith’s testimony on those damages. The Court indicated that defense could file a motion requesting an extension to retain a damages expert to counter the testimony of Smith.
(4) Crawford v. Franklin Credit Management, 2015 WL 13703301 (S.D. N.Y. 2015). This was an order of Federal District Court Judge Kimba M. Wood ruling on motions in limine filed by the defense. One of the challenged experts was Dr. Stan V. Smith, an economist. Judge Wood ruled individually on seven different damage areas: “(1) excess costs; (2) loss of equity; (3) additional interest on car loans; (4) the loss of credit expectancy; (5) the value of time spent by Linda Crawford; (6) loss of wages and employee benefits; and (7) the reduction in value of life.” Judge Wood denied defense motions to exclude Smith’s testimony on excess costs, loss of credit expectancy, and additional interest costs on car loans, but precluded Smith from testifying about loss of equity, loss of time spent, loss of wages and benefits, and reduction in value of life. Explanations were provided for each loss category. Loss of time spent was precluded because:
Smith provides no justification for which Crawford’s time should be valued at a rate similar to that which is paid to bookkeepers, clerks, secretaries and assistants, as opposed to, for instance, paralegals, human resource officers or customer service agents.
Smith’s reduction in the value of life testimony was precluded based on a number of cited decisions and a reference to Thomas R. Ireland, “The Last of Hedonic Damages: Nevada, New Mexico, and Running a Bluff, J. Legal Econ, October 2009, at 91, 92-97.
(5) Fancher v. Barrientos, 2015 U.S. Dist. LEXIS 179990 (D. NM 2015). This memorandum granted a defense motion in limine to limit the testimony of William Patterson to explaining the concept of hedonic damages without providing any dollar values. Federal District Judge James A. Parker said:
Hedonic damages are recoverable in § 1983 wrongful death cases. See Romero v. Byers, 1994-NMSC-031, 117 N.M. 422, 428, 872 P.2d 840, 846 (1994). Similarly, the Tenth Circuit has allowed an expert witness to provide “an explanation adequate to insure the jury did not ignore a component of damages allowable under state law” by offering “his interpretation of the meaning of hedonic damages” and identifying “four broad areas of human experience which he would consider in determining those damages.” See Smith v. Ingersoll-Rand Co., 214 F.3d 1235, 1246 (10th Cir. 2000). Based on this authority, Mr. Patterson will be permitted to offer generalized testimony about the concept of hedonic damages, and the Motion will be denied in part as to that aspect of Mr. Patterson’s proffered testimony.
The majority rule in federal courts, however, is that expert testimony which places a dollar figure before the jury in an attempt to quantify the value of a human life in monetary terms is inadmissible and does not meet the relevance and reliability factors set forth in Daubert and its progeny. See Smith, 214 F.3d at 1244-45; Raigosa v. Roadtex Transp. Corp., No. 04 CV 305 RLP/WDS, Doc. 60, at 4-5, 2005 U.S. Dist. LEXIS 50001 (D.N.M. Feb. 10, 2005) (unpublished). Thus, the Court will not allow Mr. Patterson to testify as to the monetary value of Mr. Dominguez’s hedonic damages, and will not permit Mr. Patterson to express any opinion testimony regarding a numeric formula such as “benchmark figure,” “guideline,” or “range of values” to be used in calculating such damages. BNSF Ry. Co. v. LaFarge Southwest, Inc., No. 06 CV 1076 MCA/LFG, 2009 U.S. Dist. LEXIS 132152, 2009 WL 4279849, *2 (D.N.M. Feb. 9, 2009) (unpublished). See also Myers v. Williams Manufacturing, Inc., No. 02 CV 157 WPJ/ACT, MEMORANDUM OPINION AND ORDER ON MOTIONS IN LIMINE (Doc. No. 151) at 7, 2003 U.S. Dist. LEXIS 29102 (Nov. 14, 2003) (precluding an economics expert from testifying about hedonic damages using a $10,000 benchmark). The underlying methodology used to arrive at the quantitative measurements of the value of human life “does not meet the relevance and reliability requirements of Daubert and its progeny and will not assist the jury, regardless of whether the figure, formula, or ‘range of values’ in question is assigned to a specific decedent, a hypothetical individual, a statistical person, or a generic benchmark or guideline.” BNSF Ry Co., 2009 U.S. Dist. LEXIS 132152, 2009 WL 4279849, *2. Accordingly, the Motion will be granted in part and all testimony from Mr. Patterson that ascribes an amount to hedonic damages, or the value of the enjoyment of life, will be excluded as unreliable and unhelpful to the jury.
2016
No decisions.
2017
(1) Smith v. Auto-Owners Insurance Company, 2017 U.S. Dist. LEXIS 115937 (D. N.M. 2017). Dr. Stan V. Smith was permitted to testify about the concept of hedonic damages, but not to provide an dollar values related to that concept. Judge Stephan M. Vidmar said:
New Mexico allows an injured party to recover hedonic damages. UJI 13-1807A NMRA. The concept of hedonic damages is premised on “the rather noncontroversial assumption that the value of an individual’s life exceeds the sum of that individual’s economic productivity.” Smith, 214 F.3d at 1244 (10th Cir. 2000). The Tenth Circuit and numerous cases from this District have excluded expert testimony on hedonic damages from an economist who attempts to testify to a specific dollar figure, benchmark figures, or a range of values to be used in calculating such damages, but have allowed testimony about the concept of hedonic damages and the broad areas of human experience the factfinder should consider in determining those damages. Id. at 1245-46; Kretek v. Bd. of Comm’rs of Luna Cty., No. 11-cv-0676 KG/GBW, 2014 U.S. Dist. LEXIS 188299, at *4 (D.N.M. Feb. 26, 2014) (unpublished); Flowers v. Lea Power Partners, LLC, No. 09-cv-0569 JAP/SMV, 2012 WL 1795081, at *4 (D.N.M. Apr. 2, 2012) (unpublished); BNSFRy. Co. v. LaFarge Sw., Inc., No. 06-cv-1076 MCA/LFG, 2009 WL 4279849, at *1 (D.N.M. Feb. 9, 2009) (unpublished). I will follow this well-established law and will allow Dr. Smith to testify about the concept of hedonic damages and the general method for calculating them within the parameters set out in the cases. However, he will not be allowed to testify as to any certain dollar amount quantifying the alleged hedonic losses. See Smith, 214 F.3d at 1245-46.
(2) Otero County Hospital Association, Inc., Quorum Health Resources, LLC, 2017 Bankr. LEXIS 2245 (United States Bankruptcy Court for the District of New Mexico, 2017). The defense moved to exclude the hedonic damages testimony of Dr. Brian McDonald in this bankruptcy case. Judge Robert H. Jacobvitz held that:
Consistent with Ingersoll-Rand, and the parties’ agreement, the Court will allow Dr. McDonald to give expert testimony regarding the concept of hedonic damages, how they differ from other types of damages, and the kinds of human experiences that the Court should consider when fixing damages for the loss of enjoyment of life. The Court will exclude any testimony regarding the amount or computation of hedonic damages. Permitted conceptual testimony regarding hedonic damages may include the following:
a) Testimony that an award for loss of enjoyment of life damages is premised on the assumption that the value of an individual’s life exceeds the sum of that person’s economic productivity, and that loss of enjoyment of life damages considers the effect of the injury on the plaintiff’s non-work activities such as leisure, hobbies, recreational activities, the ability to pursue a chosen occupation, community activities, and internal well-being;
b) Testimony about how hedonic damages can take into account decisions that involve tradeoffs between the risk of a shorter life expectancy or the prospect of a long life, on the one hand, and occupational choices or decisions on how to spend money, on the other; and how the tradeoffs relate conceptually to any hedonic damages suffered by the plaintiffs;
c) Testimony about broad areas of human experience which should be considered by the trier of fact in determining hedonic damages for a particular plaintiff, such as how the plaintiff spent leisure time and participated in recreational activities, hobbies, and community activities; and
d) Testimony regarding how hedonic damages differ from damages to compensate for pain and suffering.
Dr. McDonald is precluded from giving any testimony regarding economic research on the value of a statistical life, the value of a statistical life, or any other testimony that places a dollar figure on hedonic damages, whether in the abstract or with respect to a particular plaintiff, or that describes a numeric range or formula, benchmark figure, or guidelines for calculating hedonic damages.
2018
(1) Smith v. Auto-Owner’s Insurance Company, 2018 U.S. Dist. LEXIS 6970 (D. N.M 2018). This was an order of Federal Judge Stephan D. Vidmar that responded to a number of different motions in limine, one of which was a request to exclude “any expert testimony or evidence attempting to quantify hedonic damages.” Judge Vidmar indicated that the plaintiff made no substantive argument in opposition to this or eight other proposed exclusions and granted all nine exclusions asked for by the defendant. The real focus of this order was on testimony by medical providers, which was discussed in greater detail. There was no indication in the decision that the plaintiff had retained an economic expert to testify about hedonic damages.
(2) Rascon v. Brookins, 2018 U.S. Dist. LEXIS 2018 (D. AZ 2018). This order of Federal Judge John J. Tuchi allowed the testimony of Dr. Stan V. Smith’s calculations on loss of future earnings were admissible, but his opinons with respect to loss of life or loss of value of life in this wrongful death action were not admissible. Judge Tuchi discussed the Ninth Circuit decision of Dorn v. Burlington N. Santa Fe R.R. Co., 397 F.3d 1183, 1195 (2005) and said:
The Court agrees with the Ninth Circuit’s evaluation that Dr. Smith’s quantification of hedonic damages does not accurately project the value people place on the enjoyment of life, but rather an altered figure that could reflect many different government policy judgements. Further, even if the figure only reflected what the public spends out of its own pockets on safety devices, this spending “is probably influenced as much by advertising and marketing decisions made by profit-seeking manufacturers . . .as it is by any consideration by consumers of how much life is worth.” Smith v. Jenkins, 732 F.3d 51, 66-67 (1st Cir. 2013) (quoting Mercado, 974 F.2d at 871). The Court finds that Dr. Smith’s calculations are too speculative and unconnected to how an individual values their life and is therefore not sufficiently tied to the facts of the case and is unhelpful to the jury in determining the “loss of value of life”. Under Rule 702, Dr. Smith’s “loss of value of life” testimony is inadmissible. See, e.g., Daubert, 509 U.S. at 591 (“scientific validity for one purpose is not necessarily scientific validity for other, unrelated purposes”); Ayers v. Robinson, 887 F. Supp. 1049, 1064 (N.D. Ill. 1995) (ruling, after an extensive analysis of the methodology involved, that Dr. Smith’s testimony failed to survive Daubert analysis and was unhelpful to the jury).
(3) Starling v. Banner Health, 2018 U.S. Dist LEXIS 28747 (D. AZ 2018). This order of Federal Judge Neil V. Wake granted a defense motion to exclude the hedonic damages testimony of Dr. Stan V. Smith in this wrongful termination case, citing particularly Dorn v. Burlington N. Santa Fe R.R. Co., 397 F.3d 1183, 1195 (9th Cir. 2005) (dictum), but also Stokes v. John Deere Seeding Grp., No. 4:12-cv-04054-SLD-JAG, 2014 WL 675820, at *5 (C.D. Ill. Feb. 21, 2014) (quoting Ayers, 887 F. Supp. at 1060). Smith had assumed a 25 percent reduction in the plaintiff’s enjoyment of life about which Judge Wake said:
Moreover, the arbitrariness of the “conservative” 25 percent reduction is troubling. As before, Smith “provides no explanation or method for calculating the conservative factor based on data or theories originating from economic research, leaving the Court with no option but to conclude that the conservative value is derived through unmethodical, subjective ‘eyeballing.'” . . . Smith admits that he is conservative when approaching “matters that don’t have a high degree of specificity.” (Doc. 216-1, Ex. A at 153:2-4.) Although experts need not be certain, Smith does not point to anything justifying the manner in which he exercises this conservative discretion.
Judge Wake also responded to Smith’s claim that approximately 224 state and federal courts had admitted Smith’s hedonic damages testimony, as follows:
Starling points out that Banner did not offer a rebuttal expert opinion on Smith’s methodology. The law does not require it to offer such a witness. Starling also posits, based on Smith’s declaration, that Smith’s “hedonic damages testimony has been allowed by approximately 224 state and federal courts around the country.” (Doc. 230 at 12.) Yet Starling does not demonstrate that any of those courts discussed or considered the cases discussed above and in Banner’s briefing. He does not describe Smith’s role in those 224 cases or the testimony that Smith gave.
Banner Health also challenged Smith’s testimony about the lost earnings of the plaintiff. Smith’s testimony about front pay was excluded on the basis that front pay is an equitable remedy only to be determined after a jury’s verdict, but that Smith could testify about back pay.
(4) DiPerna v. Chicago School of Professional Psychology, 2018 U.S. App 17426 (7th Cir. 2018). One of the parts of this decision was to uphold the trial court’s decision that Stan Smith’s hedonic damages testimony would not be helpful to the jury. Jennifer DiPerna was a student pursuing a master’s degree in clinical psychology at The Chicago School of Professional Psychology (TCSPP), a private, non-profit institution. After TCSPP disciplined DiPerna for posting an image to her personal Instagram account that TCSPP considered offensive, DiPerna filed this lawsuit alleging breach of contract and negligence. Subsequently, DiPerna was dismissed from the program for plagiarism. Smith calculated DiPerna’s loss of enjoyment of life resulting from these events. The trial court granted summary judgement the defendant on all counts, including the trial court’s determination that loss of enjoyment of life damages were not available in a case of this sort.
(5) Glisson v. Correctional Medical Services, Inc., 2018 U.S. Dist. LEXIS 216420 (S.D. IN 2018). Judge Sarah Evans Barker granted a defense motion to exclude the hedonic damages testimony of Dr. Stan V. Smith. Judge Barker held that Dr. Smith had not reliably explained how he had arrived at an annual value of $131,199 per year for life enjoyment from the Value of Statistical Life literature, but also emphasized that:
[E]ven if Dr. Smith’s methods of calculation were reliable, the VSL studies on which his expert opinion depends establish only how the overall value of a life is measured in the field of economics, not how enjoyment of life is measured, which is the relevant question the jury must resolve in awarding hedonic damages.
(6) Hannibal v. TRW Vehicle Safety Sys., Inc.,2018 U.S. Dist. LEXIS 134318 WL 377500 (E.D. AR 2018). The value of life testimony of Dr. Rebecca Summary was excluded by Federal District Judge J. Leon Holmes, saying:
No court applying Arkansas law has ruled as to whether expert testimony may be admitted to assist the jury in determining loss of life damages. An overwhelming majority of courts from other jurisdictions, however, have concluded that the methodology adopted by Dr. Summary does not meet the Daubert standards and may not be admitted into evidence. Smith v. Jenkins, 732 F.3d 51, 66 (1st Cir. 2013); Kurncz v. Honda North America, Inc., 166 F.R.D. 386, 388-89 (W.D. Mich. 1996). . . (“Even assuming that Dr. [Stan V.] Smith’s formula is a reliable measure of the value of life, it was of no assistance to the jury in calculating Smith’s loss of enjoyment of life.”).
(7) Griego v. Douglas, 2018 U.S. Dist. LEXIS 26933 (D. N.M. 2018). Magistrate Judge Karen B. Molzen held that:
Plaintiff fails to provide a persuasive argument as to why this Court should depart from precedent and admit expert testimony quantifying hedonic damages. The Court expressly finds that any probative value of such quantifying testimony is substantially outweighed by a danger of unfair prejudice and misleading the jury, which collectively will be in the best position to make such an assessment. See Fed. R. Evid. 403. On the other hand, the risk of undue prejudice does not outweigh the probative value to the jury of qualitative expert testimony regarding the concept of hedonic damages and pointing out the areas to be considered in evaluating such damages. Thus, testimony by Dr. McDonald on hedonic damages will be limited to those areas only.
Judge Molzen also ruled that:
While neither party addressed this specific topic in their filings, the probative value of testimony explaining how governmental agencies use the valuation of life in the context of public policy seems substantially outweighed by the danger of confusing the issues. The trier of fact needs not know how governmental agencies use such a valuation in order to grasp its concept and apply it to the case at hand.
(8) Stachulski v. Apple New England, LLC, 2018 N.H. LEXIS 133 (N.H. 2018). This decision held that awards for hedonic damages and pain and suffering are available for cases involving injuries that are not permanent injuries. Testimony at issue was testimony of Dr. Seth Rosenbaum, who had testified at trial about the plaintiffs loss of enjoyment of life and pain and suffering caused by non-permanent injuries. The decision also reviewed case law in New Hampshire regarding hedonic damages.
(9) Millward v. Bd. of Cty. Comm’rs of Teton, 2018 U.S. Dist. LEXIS 23107 (D. WY 2018). Federal District Judge Scott W. Skavdall limited the hedonic damages testimony of Dr. Allan Parkman as follows:
[T]he Court finds that Parkman is qualified to offer expert testimony as to the concept of hedonic damages, to the extent it relates to any viable damage claim under 42 U.S.C. § 1983. He may not however offer any monetary value, specific or otherwise of Mr. Millward’s hedonic damages or express any opinion testimony regarding a numeric formula such as “benchmark figure,” guideline,” or “range of values” to be used in calculating such damages. See Fancher v. Barrientos, 2015 U.S. Dist. LEXIS 179990, 2015 WL 11142939 (July 1, 2015) (citing BNSFRy. Co. v. LaFarge Southwest, Inc., supra.)
2019
(1) Families Advocate, LLC v. Sanford Clinic N, 2019 U.S. Dist. LEXIS 60438 (D. N.D. 2019). This decision of Magistrate Judge Alice R. Senechal to recommend the exclusion of the testimony of Dr. Stan V. Smith on hedonic damages, loss of consortium, loss of guidance and counsel, and loss of accompaniment services. Judge Senechal recommend Smith’s exclusion in all of those areas. Her recommendation that Smith’s testimony be excluded includes several pages describing the opinions of Dr. David D. Jones in support of the defense motion to exclude Smith’s testimony. Judge Senechal’s recommendation to exclude Smith’s testimony was accepted by federal district Judge Timothy Brooks in Families Advocate v. Corp. V, U.S. Dist. LEXIS 56845 (D. N.D. 2019).
(2) Families Advocate v. Corp. v. Sandford Clinic N, 2019 U.S. Dist. LEXIS 56845 (D. N.D. 2019). This was an order excluding the testimony of economic expert Dr. Stan V. Smith, who had proffered testimony about loss of enjoyment of life, loss of relationship, loss of advice and counsel, and loss of accompaniment services, all of which were previously recommended for exclusion in a report of the magistrate judge. Federal Judge Timothy L. Brooks said in conclusion:
Dr. Smith’s opinions are marinated in a proprietary blend of theoretical “studies” (developed for use in other contexts), and peppered with arbitrary “benchmarks” a la ipse dixit, and, finally, tabulated with present value spreadsheets to give the illusion of forensically precise calculations in D.M.’s specific case. Beyond the illusion, the reality is more akin to hocus pocus. And this Court is certainly not alone in finding Dr. Smith’s methodologies suspect and unreliable.1Link to the text of the note Dr. Smith’s calculations are based on arbitrary figures and assumptions that are unrelated to the facts of the case. An expert’s calculations should be excluded when they are “so fundamentally unsupported that [they] can offer no assistance to the jury.” Wood v. Minn. Mining & Mfg. Co., 112 F.3d 306, 309 (8th Cir. 1997) (citations omitted).
The problem here is not so much whether Dr. Smith reviewed and incorporated facts from D.M.’s medical findings, as it is Dr. Smith’s unreliable methodology–which cannot be properly applied to the facts in this case, at least not in any meaningful or reproducible manner.
(3) Soria v. United States Bank N.A., 2019 U.S. Dist LEXIS 70068 (C.D. CA 2019). This case involved an injury to the credit of Samuel Soria because of identity theft by an employee of U.S. Bank. The plaintiff economic expert was Dr. Stan V. Smith, who projected losses of credit expectancy and the value of the lost time Soria had spent dealing with inaccurate reporting. The court excluded Smith’s testimony on loss of credit expectancy, describing Smith’s testimony as follows:
According to Dr. Smith, Soria could have borrowed as much as $60,000 in year 2016 dollars. (Dkt. 66-1 [Declaration of Dr. Stan V. Smith] Ex. 1 [Expert Report, hereinafter “Smith Rep.”] at 5.) Because Soria’s credit score declined from 735-740 to 524, however, Soria would have to pay a higher interest rate to obtain this line of credit. (Id. at 4-6.) Based on a peer-reviewed article that Dr. Smith coauthored, Dr. Smith estimated Soria would pay an increased 12 percent per year in costs as a result of his lower credit score. (Id.) The increased cost would last for seven years, the length of time a delinquency remains on a credit report. (Id.) Based on this, Dr. Smith calculated Soria’s loss of credit expectancy to be $28,252.
The Court indicated that this part of Dr. Smith’s testimony was inadmissible because Smith provided no analysis regarding how he arrived at the figure of $60,000, which was significantly in excess of Soria’s annual earnings during the previous three years. However, the Court allowed Smith’s testimony regarding Soria’s allegedly lost time, valued at $27.67 in 2017 dollars, indicating that the hourly value goes to the weight, but not the admissibility of Smith’s testimony. Smith had also calculated hedonic damages for Soria, but the plaintiff had withdrawn that claim before this decision.
(4) Knaack v. Knight Transportation Inc., 2019 U.S. Dist. LEXIS 75480; 2019 WL 1982523 (D. NV 2019).In this case, the defense had moved to exclude Dr. Stan V. Smith’s testimony about loss of family advice, counsel, guidance, instruction and training services and loss of accompaniment services. Federal Judge Larry R. Hicks denied the defense motion, saying that:
[Defendants also argue that hedonic damages (loss of relationship) should be excluded and the loss of accompaniment damages is really another way to obtain hedonic damages. In Dr. Smith’s testimony, he articulates the difference between hedonic and other household services damages and why he finds them different. However, the record shows that plaintiffs do not intend to argue for hedonic damages, nor did Dr. Smith include this opinion in his report.
Plaintiffs argue that Dr. Smith and Mr. Weiner (defendants’ expert) used a similar methodology for calculating loss of household/ family advice, counsel, guidance, instruction and training services and loss of accompaniment services, and came to similar conclusions. Finally, defendants also argue that hedonic damages (loss of relationship) should be excluded and the loss of accompaniment damages is really another way to obtain hedonic damages. In Dr. Smith’s testimony, he articulates the difference between hedonic and other household services damages and why he finds them different. However, the record shows that plaintiffs do not intend to argue for hedonic damages, nor did Dr. Smith include this opinion in his report.
(5) McKay v. City of St. Louis, 2019 U.S. Dist. LEXIS 55690; 2019 WL 1436972 (E.D. MO 2019). Regarding Dr. Stan V. Smith and “hedonic damages,” Federal District Judge John A. Ross said:
The issue of hedonic damages is derivative of any constitutional violation Plaintiff may have suffered. In light of the Court’s ruling that Defendants are entitled to summary judgment and qualified immunity, it concludes that Dr. [Stan] Smith’s testimony regarding damages is moot and that nothing in Dr. Smith’s report affects the Court’s analysis of Plaintiff’s substantive § 1983 claims.
(6) Cramer v. Equifax Info. Servs., 2019 U.S. Dist. LEXIS 161062 (E.D. MO 2019). This memorandum by Federal District Judge Charles A. Shaw excluded hedonic damages testimony by Dr. Stan V. Smith, plaintiff’s economic expert. This was a case that involved an alleged injury to the plaintiff’s credit caused by actions of Equifax Information Services under the Fair Credit Reporting Act (FRCA), but no physical injury was involved. Regarding hedonic damages, Judge Shaw said:
[E]ven if hedonic damages were appropriate in an FCRA case, plaintiff has not shown that Dr. Smith’s testimony is necessary or reliable in assisting the trier of fact to understand or determine a fact in issue in this case. See Saia v. Sears Roebuck & Co., 47 F. Supp. 2d 141, 149 (D. Mass. 1999) (expert testimony on hedonic damages, purporting to calculate injured plaintiff’s loss of enjoyment of life based on “willingness to pay” model which considered consumer behavior, wage risk premiums, and regulatory cost-benefit analysis, was unreliable whether evaluated as scientific or as “technical or other specialized” knowledge) (citing to various federal courts rejecting expert testimony on hedonic damages, in particular Dr. Smith’s); see also Allen v. Bank of Am., N.A., 933 F. Supp. 2d 716, 734 (D. Md. 2013) (“The court is not convinced that an expert whose opinion is based almost entirely on asking laypersons how a particular event has affected their enjoyment of life would provide any assistance to the jury in making that determination for themselves.”); Kurncz v. Honda N. Am., Inc., 166 F.R.D. 386, 388 (W.D. Mich. 1996) (“The willingness to pay model on the issue of calculating hedonic damages is a troubled science in the courtroom, with the vast majority of published opinions rejecting the evidence.”). For these reasons, Dr. Smith’s testimony regarding hedonic damages will be excluded.
However, Judge Shaw also ruled that Smith would be permitted to testify about loss of credit expectancy if the plaintiff was able to develop a basis for arguing that there was some tangible loss and would be able to testify about the value of plaintiff’s loss of time spent resolving her credit problems.
(7) Michon v. Campbell, 2019 U.S. Dist. LEXIS 230156 (N.D. IL 2019). The hedonic damages testimony of Dr. Stan V. Smith was excluded by Federal District Judge Harry D. Leinweber. Michon had asked the Court to adopt the “middle ground” approach taken in Richman v. Burgeson, 2008 U.S. Dist. LEXIS 48349 (N.D. Ill. June 24, 2008) of allowing Smith to testify about the general nature of hedonic damages without offering quantification. Judge Leinweber declined to do so and said:
As many, if not most, courts in this District and elsewhere have reasoned, Dr. Smith’s methodology for ascertaining hedonic damages is not scientifically reliable. This Court agrees with that point and is not inclined to allow the testimony of hedonic damages generally when the underlying methodology is unsound. Moreover, such testimony will serve only to confuse the jury. The Court thus adopts the view held by the majority of courts in this District and finds that Dr. Smith’s proffered testimony on hedonic damages fails to satisfy Rule 702 and Daubert. Accordingly, Defendants’ Motion to Exclude Expert Testimony (Dkt. No. 125) is granted.
(8) Walker v. Spina, 2019 U.S. Dist. LEXIS 5275 (D. N.M. 2019). In response to a motion in limine to exclude the hedonic damages testimony of William Patterson, Federal Judge James O. Browning, interpreting New Mexico law, allowed Patterson to explain the general concept of hedonic damages, but relying upon Smith v. Ingersoll-Rand, 214 F.3d 1235 (2000), limited Patterson’s testimony as follows:
The Court, therefore, will allow Patterson to describe hedonic damages, but not to quantify Walker’s hedonic damages, e.g., Patterson may not state that S. Walker’s “lost value of the pleasure of life is $102,707” or that she lost $10,000.00 in her value of life, or discuss his worksheet showing his calculations for such figures.(9) Lough v. BNSF, 2019 U.S. Dist. LEXIS 119122 (D. N.M. 2019). Federal Judge Judith C. Herrera limited the hedonic damages testimony of Dr. Allen Parkman by indicating that could provide no quantified values, even as benchmarks, but could testify about hedonic damages as follows:
Mr. Parkman may testify as to the four factors he utilized in valuing hedonic damages — specifically the effect that the injury had on “the ability to enjoy the occupation of your choice,” “activities of daily life,” social leisure activities,” and “internal well-being.” The Tenth Circuit permits expert testimony on these exact four “broad areas of human experience which [an expert] would consider in determining [hedonic] damages.”
(10) Murphy v. Sandoval Cty., 2019 U.S. Dist. LEXIS 229986 (D. NM 2019). This memorandum decision of U.S. District Judge Scott W. Skavdahl limited the hedonic damages testimony of Dr. M. Brian McDonald as follows:
[T]his Court will grant County Defendants’ Motion to the extent that while Dr. McDonald may discuss the concept of and factors to be considered in determining hedonic damages, he shall not attempt to place any dollar figure for or quantify hedonic damages and will limit any opinion testimony accordingly.
Dr. McDonald was permitted to testify about lost earnings without limitation.
(11) Collado v. State of New York, 396 F. Supp. 265 (S.D. NY 2019). This case involved the fatal shooting of John Collado by an undercover police officer. A jury had awarded $2.5 million for Collado’s wrongful death act. At issue was whether hedonic damages can be recovered in a Section § 1983 action under the Federal Civil Rights Act even though hedonic damages are not authorized under the New York Wrongful Death Act. Federal Circuit Judge Denny Chin, sitting by designation, held that hedonic damages could be awarded under Section § 1983, and affirmed the jury verdict of $2.5 million. Judge Chin also said:
[I]t is difficult if not impossible to put a monetary value on the loss of a life or the loss of enjoyment of life. See, e.g., Smith v. Ingersoll-Rand Co., 214 F.3d 1235,1244-46 (10th Cir. 2000) (affirming district court’s decision to allow expert to testify as to “the meaning of hedonic damages” but not to “quantify hedonic damages”)
2020
(1 ) Jennings v. Nash, 2020 U.S. Dist. LEXIS 26611 (W.D. MO 2020). Hedonic damages testimony of Stan V. Smith was excluded under the Daubert standard with citations to a number of other federal district court decisions reaching the same conclusion.
(2) Banks v. Eighth Judicial Dist. Court of Nev., 2020 Nev. App. Unpub. LEXIS 30; 2020 WL 283402 (NV App. 2020). This one-page decision denies a writ of mandamous challenging, in part, an exclusion of portions of the testimony of economic expert Stan V. Smith. In denying the write, the Court noted that:
[T]he district court’s order does not foreclose the plaintiff’s expert, Dr. Smith, from testifying at trial but only imposes certain conditions on his doing so, including that he lay a detailed foundation for his opinions.
The Plaintiff had challenged order of Susan H. Johnson in Banks v. Diaz (Case No. A-18-773248-C, Dept. No. XXII, District Court of Clark County, Nevada) dated December 4, 2019. Judge Johnson’s order had allowed Smith to testify about Banks past loss of earnings, but not to speculate about future wage loss or the value of housekeeping and home management services with having a factual basis. Smith was also precluded from testifying about Banks’ alleged loss of value of life without having a basis other than an interview from Smith’s staff and speculation that Banks had lost 20 to 40 percent of his ability to lead a normal life.
(3) Doe v. Colgate Univ., 2020 U.S. Dist. LEXIS 75989 (N.D. N.Y. 2020). In this case, a Colgate male student was accused of raping a female student and sued for damages based on the violation of his right to defend himself. Stan Smith calculated hedonic damages for the accused male. Federal Judge Frederick J. Scullin, Jr., cited a number of other decisions excluding hedonic damages calculations and excluded Smith’s proposed hedonic damages testimony.
(4) Synder v. Bank of Am., N.A., 2020 U.S. Dist. LEXIS 206437 (N.D. CA 2020). This case involved a plaintiff not obtaining a National Mortgage Settlement (NMS)-Compliant loan modification order. Dr. Stan V. Smith was excluded from testifying based on incorrect assumptions and lack of specialized knowledge about the NMS. Smith projected that the plaintiff incurred $373,235 in lost time, and between $582,563 and $1,165,124 in loss of enjoyment of life (hedonic damages). The court also cited multiple cases in which Smith’s testimony has been rejected.
(5) Wood v. Paccar, Inc., 2020 U.S. Dist. LEXIS 136846 (N.D. IA 2020). The defense moved to exclude Dr. Stan V. Smith’s testimony regarding loss of enjoyment of life (hedonic damages), household services, and loss of wages and benefits. U.S. Magistrate Judge Mark A. Roberts excluded Smith regarding hedonic damages but denied excluding Smith’s testimony regarding household services and loss of wages and benefits.
(6) Santiago v. Fischer, 2020 U.S. Dist. LEXIS 255479 (E.D. NY 2020). Federal District Judge Margo K. Brodie excluded the hedonic damages testimony of Dr. Stan V. Smith, saying:
Dr. Smith arrives at his initial value of life figure [$4.6 million in 2016] through an analysis of studies from the 1980s of “consumer behavior and purchases of safety devices,” “wage risk premiums to workers,” and “cost-benefit analyses of regulations.” (Smith Report 4.) While the Court understands that such studies are well-accepted and appropriate for use in a number of contexts, such as by government agencies or other entities conducting cost-benefit analyses, the Court finds, as other courts have, that they are not helpful in assisting a factfinder in evaluating the value of a unique human life.
Judge Brodie also cited many prior decisions excluding the hedonic damages testimony of Smith.
(7) Lessert v. BNSF Ry. Co., 476 F. Supp. 3d 926; 2020 U.S. Dist. LEXIS 139672; 2020 WL 4500218. This was a wrongful death action under the FELA. The defendant challenged the admissibility of Dr. Stan V. Smith’s testimony based on hedonic damages testimony in other cases. Judge Jeffrey Liken said;
The court begins by addressing defendant’s reliance on a number of other federal cases excluding Dr. Smith as an expert. Dr. Smith often opines on “hedonic damages” in litigation, which are damages that “attempt to compensate a victim for the loss of the pleasure of being alive[.]” Families Advocate, LLC v. Sanford Clinic N., No. 16-CV-114, 2019 U.S. Dist. LEXIS 56845, 2019 WL 1442162, at *1 (D.N.D. March 31, 2019). Quite a few federal courts have refused to permit Dr. Smith to testify concerning his method for calculating hedonic damages. Smith v. Jenkins, 732 F. 3d 51, 66 (1st Cir. 2013) (collecting cases). Here, however, plaintiff expressly disclaims any claim for hedonic damages. (Docket 194 at p. 23 n.15) (“[T]here is no claim for hedonic damages and no economic evaluation of hedonic damages is proffered by Plaintiff or Dr. Smith.”). The court therefore does not view the authority defendant cites as indicative of a uniform condemnation of Dr. Smith’s testimony in the federal courts, as its objections insinuate.
(8) Martinez v. Cont’l Tire the Ams., 2020 U.S. Dist. LEXIS 147720 (D. NM 2020). This memorandum of U.S. District Judge Kea W. Riggs limited the hedonic damages testimony of Dr. M. Brian McDonald as follows:
Dr. McDonald may testify about the definition of hedonic damages and the components of life that may be considered in considering hedonic damages but may not quantify those damages or provide a range of values attributable to a statistical life, or “benchmarks.”
McDonald was permitted to testify about lost earnings and lost household services of the plaintiff.
(9) Kuznetsov v. Long, 2020 U.S. Dist. LEXIS 251687 (D. NM 2020). U.S. Magistrate Judge Gregory T. Fouratt limited the hedonic damages testimony of M. Brian McDonald, as follows:
The Court will permit Dr. McDonald to testify about (a) the current cost of Plaintiff’s future medical care and (b) a general explanation of the components of a person’s life the jury may consider in deciding whether to award hedonic damages. The Court will not permit Dr. McDonald to testify as to any specific values of any kind, whether by way of suggestion, example, or otherwise.
(10) Estate of Smart v. Chaffee, 2020 U.S. Dist. LEXIS 241444 (D. KS 2020). This case involved the fatal shooting of Marquez Smart by police officers in Wichita, Kansas, and was brought under Section § 1983 of the Federal Civil Rights Act. At issue was whether hedonic damages could be claimed in wrongful death claim under Section § 1983 even though not authorized under the Kansas Wrongful Death Act. The Court cited a number of cases hold that hedonic damages were recoverable under Section § 1983, even though not authorized under the Kansas Wrongful Death Act. Expert testimony about hedonic damages was not addressed in this decision.
2021
(1) Balan v. Vestcor Fund Xxii, 2021 U.S. Dist. LEXIS 99532 (M.D. FL 5-26-2021), Judge Maria Morales Howard excluded the hedonic damage testimony of Dr. Stan V. Smith, saying:
Upon review of a sampling of the federal court cases on Dr. Smith’s List, the Court found none in which he provided testimony at trial before a United States District Court. Further, the Court’s independent research revealed that Dr. Smith’s testimony regarding hedonic damages has been found inadmissible by the vast majority of federal courts including some of the cases on his List. These findings and the reasoning of the courts excluding Dr. Smith’s testimony on the value of hedonic damages further support the Court’s conclusion that Dr. Smith’s testimony would not be helpful to a jury. Moreover, the Court continues to be convinced that to the extent Dr. Smith’s testimony has any probative value, it is outweighed by the risk that purported expert testimony putting a specific value on the Plaintiff’s noneconomic damages will confuse and/or mislead the jury.
(2) Moe v. Grinnell College, 2021 U.S. Dist. LEXIS 239863 (D. IA 2021). Federal District Judge Rebecca Goodgame Ebinger granted a defense motion to exclude the hedonic damages testimony of Dr. Stan V. Smith, saying: Smith’s hedonic damages calculation is not sufficiently reliable for admission at trial because the method is not testable, has not been peer reviewed, lacks governing standards, and is not generally accepted by economists. Additionally, Smith’s method to determine the percent reduction in the value of life is not based on objective indicia because it relies on self-reported percentages. Furthermore, hedonic damages are not relevant because Moe has not experienced physical injury or death. As a result, the portion of Smith’s expert report and related testimony concerning hedonic damages is inadmissible under Rule 702. The probative value of Smith’s expert report is also outweighed by the threat it poses of misleading the jury. The Court excludes the portion of Smith’s expert report concerning hedonic damages and related testimony under Rule 403.
(3) Hauck v. Wabash Nat’l Corp., 2021 U.S. Dist LEXIS 108943 (D. NM 2021). Federal District Judge Kenneth J. Gonzales excluded all testimony of Dr. Stan V. Smith regarding noneconomic damages on the basis of inappropriate behavior. Judge Gonzales said:
Ms. Hauck is prohibited from eliciting testimony from Dr. Smith regarding her entitlement to non-economic damages, including hedonic, loss of guidance, counselling, society, relationship, support, and accompaniment damages. In pertinent part, Dr. Smith’s opinion assigning a dollar-amount to Ms. Chambers’ hedonic-damage award is unreliable pursuant to Daubert and its progeny. Moreover, the Court concludes that Dr. Smith’s failure to disclose his proposed testimony regarding the “general scope of hedonic damages” is incurable and prejudicial. Therefore, Dr. Smith’s opinions quantifying a hedonic-damage award and generally explaining the concept are both properly excluded. For these reasons, the Court grants Wabash’s Motion to Exclude (Doc. 157).
(4) Crouch v. Master Woodcraft Cabinetry, LLC, 2021 U.S. Dist. LEXIS 172785 (E.D. AR 2021). Federal District Judge Kristine G. Baker excluded the value of life testimony of Dr. Ralph Scott, citing the decision in Hannibal v. TRW Vehicle Safety Sys., Inc., WL 377500 (E.D. AR 2018) by Federal Judge J. Leon Holmes excluding the proposed value of life testimony of Dr. Rebecca Summary. The Hannibal decision included discussion of the exclusion of Dr. Stan V. Smith in Smith v. Jenkins, 732 F.3d 51 (D. MA 2013). Judge Baker said:
This Court adopts the same reasoning and, therefore, excludes Dr. Scott’s proposed testimony that would present for the jury’s “consideration the value that government agencies place on the statistical value of life,” including the documents published by the United States Department of Transportation and the Environmental Protective Agency suggesting values of life (Dkt. No. 16-1, at 3).
(5) Shipley v. Hunter Warfield, Inc., 2021 U.S. Dist. LEXIS 208718 (M.D. FL 2021). Dr. Stan V. Smith calculated five types of damages suffered by the plaintiff that resulted from an inadequate investigation for the plaintiff: (1) the loss of credit expectancy; (2) additional auto-loan interest; (3) the loss of mortgage expectancy; (4) the value of time spent; and (5) the reduction in value of life (“RVL”), also known as loss of enjoyment of life or “hedonic” damages.” The defendant moved to exclude Smith’s opinion in it entirety, but focused on hedonic damages. The plaintiff did not oppose exclusion of Smith’s hedonic damages testimony and that testimony was excluded. Smith was also not permitted to testify about the value of the plaintiff’s time trying to remedy the alleged inadequate investigation, but was permitted to testify about mortgage expectancy and interest rates available without the impact of the inadequate investigation.
(6) Cardwell v. City of San Francisco, 2021 U.S. Dist. LEXIS 72358 (CA 2021). Martin Cunniff, an attorney, was held not to be qualified to testify about the lost earning capacity, lost investment returns on retirement accounts, and hedonic damages, but was permitted to testify about the present value of medical treatments needed by the plaintiff. The Court held that Cunniff had no particular credential that would make him qualified on these matters, but included an extended discussion regarding why Cunniff’s hedonic damages testimony was not admissible. Magistrate Judge Donna M. Ryu described Cunniff’s hedonic damages testimony as that:
Cunniff opines that Caldwell suffered hedonic damages because of his wrongful imprisonment in the amount of $749,400. Cunniff Expert Report at 12. Cunniff reaches this figure by examining the cost of “pay-to-stay” jails, which allow incarcerated people who can afford it to pay for a safer, cleaner facility. Id. Prices for these paid options vary by city, usually in the range of $75-$251 for California jails, but Cunniff settles on a rate of $100 per day as a “useful proxy for how much a consumer would pay to still ‘enjoy life’ while incarcerated.” Id. He states that it is a conservative price because presumably people would be willing to pay more to avoid jail altogether. Id. He calls this kind of calculation a “real world” market experiment. Id. Cunniff concludes that Caldwell’s hedonic damages are $100 per day multiplied by the 7,494 days he was wrongfully imprisoned, for a total of $749,400.
She cited a number of legal decisions excluding expert testimony on the issue of hedonic damages and indicated that courts have been particularly skeptical of “willingness-to-pay” methods for calculating hedonic damages.
(7) Herrera v. Berkley Reg’l Ins. Co., 2021 U.S. Dist. LEXIS 266; 2021 WL 24548 (D. NM 2021).In this decision, the defendant had moved to exclude the testimony of Dr. Brian McDonald, with a focus on Dr. McDonald’s calculation of Mr. Herrera’s lost earning capacity as $484,779 and loss of household services at $387,675, but also added “and he will testify about Mr. Herrera’s value of life damages.” Judge Carmen E. Garza described Dr. McDonald’s calculations for lost earning capacity and lost household services, but there was no discussion of Dr. McDonald’s testimony about value of life damages. This suggests that he defendant did not attempt to prevent Dr. McDonald’s testimony about value of life damages. Such testimony is generally permitted in New Mexico as long as no dollar values are provided in the testimony.
2022
(1) In re Am. River Transp. Co., 2022 U.S. Dist. LEXIS 1733 (E.D. LA 2022). The Court denied a defense motion under Daubert v. Merrdell-Dow Pharmaceuticals, 509 U.S. 79 (1993), to excluder the hedonic damages testimony of Dr. Stan V. Smith in boat accidents resulting in the deaths of three crewmen. Plaintiffs proffered the hedonic damages testimony of Smith, which defendants argued were not relevant to damages in a death case. The Court denied the motion because this was a bench trial and the purpose of Daubert to prevent unreliable scientific evidence from reaching a jury. The decision contained no discussion of the nature of or problems with the reliability of hedonic damages testimony.
(2) Warner v. Talos E R T L L C, 2022 U.S. Dist. LEXIS 31316 (E.D. LA 2022). This case involved the wrongful death of Walter Jackson, who had a son in a previous marriage, and was now living with a different wife. Smith had been retained on behalf of the son, but had treated Jackson, his previous wife, and their son as a family unit for purposes of calculating the following damages son: (1) wages and employee benefits, (2) household and family services, (3) value of life, and (4) society and relationship. In response to Talos’s motion, the plaintiff withdrew the third and fourth categories, but maintained (1) and (2). It appears that Smith was retained only on behalf of the son from the previous marriage and not the decedent’s current wife, but only damages for the son were being considered. Judge James D. Cain, Jr, pointed out that the decedent’s only relationship with the son was long distance telephone calls, and that decedent’s only financial contributions in support of the son were payments “somewhere” between $200 per month and $1,000 per month, and limited the loss period to age 18 for the son. Smith was otherwise allowed to testify about lost wages and lost family services.
(3) McGee v. Target Corp., 2022 U.S. Dist. LEXIS 109296 (D. NV 6-17-2022). Federal District Judge Kent J. Dawson denied a defense motion to exclude the hedonic damages testimony of Stan V. Smith, saying.
The Nevada Supreme Court has permitted economists to use various methods to arrive at their conclusions on hedonic loss, including a “willingness-to-pay method” similar to the one utilized by Smith in this case. Id. at 62-63. Smith uses his “willingness-to-pay method” but uses different data and sources to arrive at his conclusions than the expert in Banks [Banks v. Sunrise Hospital, 2004]. This difference is properly addressed on cross-examination. The Court is confident that Smith’s testimony is not substantially more prejudicial than probative and that it will not confuse the issues or mislead the jury. As stated previously, Smith’s report merely gives the jury a framework with which to determine a damages amount. Target will have the opportunity to attack Smith’s data and calculations on cross-examination, but it will be up to the jury to determine the credibility of the witness and the weight to give his report.
(4) Miller v. Juarez Cartel, 2022 U.S. Dist. LEXIS 112463 (D. N.D. 6-24-2022). This was a judicial ruling by Federal Magistrate Judge Clare R. Hochhalter in an ATA (Anti-Terrorism Act) case involving deaths and injuries to two American families by the Juarez Cartel. The defendant was not represented and there was no expectation that the defendant would pay awarded damages. The case was bench-tried and expert reports were submitted in writing. Damage opinions of economic expert Stan V. Smith for one group of plaintiffs and by J. Matthew Sims for another group of plaintiffs were reported in the decision. Smith’s opinions included loss of wages and benefits, loss of household services, loss of guidance and counsel, loss of accompaniment services, life care services of one decedent for a family member, value of life of decedents, or loss of society and relationship. Sims’s damage opinions included loss of wages and benefits, household services and care for fellow family members, and cost of vocational rehabilitation for injured minor children. Sims did not include guidance and counsel, loss of accompaniment services, value of life, or loss of relationship, but Judge Hochhalter included amounts based on Smith’s calculations for the first group of plaintiffs.