Legal Decisions Developed or Changed in 2022

January 15, 2022

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 exclude 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.

April 14, 2022

Stella v. Davis Cnty., 2022 U.S. Dist. LEXIS 45628 (D. UT 2022). Defendants requested that plaintiffs be barred from suggesting any specific value for general damages, including pain and suffering, premature loss of life, and loss of consortium. Judge Jill N. Parish discussed the fact that general damages are difficult to calculate by any methodology, citing Smith v. Ingersoll Rand, 214 F.3d 1235, 1245 (10th Cir. 2000), as follows:

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 reached in published value-of-life studies and skeptical of their underlying methodology, the federal courts which have considered expert testimony on hedonic damages in the wake of Daubert have unanimously held quantifications of such damages inadmissible.

Judge Parish did not exclude plaintiffs from providing per diem damages estimates, but with the added proviso:

[T]o the extent that Plaintiffs intend to suggest a per diem calculation predicated on a particular life expectancy to the jury, Plaintiffs must provide that calculation. Defendants are entitled to conduct discovery related to the foundation for the life expectancy calculation. Outside of the aforementioned discovery, the court sees no value to conducting discovery as to the admittedly arbitrary non-economic damages amount that Plaintiff's counsel selects to suggest to the jury.

Henkle v. Cumberland Farms, Inc., 2017 U.S. Dist. LEXIS 217367. Defendants challenged the admissibility of projections of future medical expenses by Roderick Moe, CPA. Moe had used the mirror image approach, which Judge Donald M. Middlebrooks described as follows:

In order to determine the present value of Henkle's future medical expenses, Moe multiplied Henkle's future medical expenses by a projected percentage increase in costs per year ("growth rate") for six categories of medical [care] to calculate the growth rate for each category, Moe calculated the average yearly change in medical costs for that category over the past 24 years. Moe selected the past 24 years as the relevant time frame for determining changes in medical expenses in order to "reflect the future 24 years of medical costs," which represent Henkle's life expectancy.

Judge Middlebrooks pointed out that Moe provided no indication that his method for determining growth rates by the “mirror image” approach was generally accepted or defended in any existing publication, and cited Ollis v. Knecht, 751 N.E. 825 (IN App. 2001), which had rejected a different economic expert who had also used the “mirror image” approach.

April 16, 2022

Hunter v. Town of Mocksville, 201 F. Supp. 3d 750 (M.D. NC 2016). This decision involved the wrongful discharge of three police officers, for whom a decision about front pay was being made by U.S. District Judge Thomas D. Schroeder. Judge Schroeder provided a list of factors to be considered when awarding whether to award front pay and the period of time for which front pay was to be awarded for each officer. The factors considered were:

    • The plaintiff's age

    • The length of time the plaintiff was employed by the defendant employer.

    • The likelihood the plaintiff's employment would have continued absent the discrimination.

    • The length of time it will take the plaintiff, using reasonable effort, to secure comparable employment.

    • The plaintiff's work life expectancy.

    • The length of time other employees typically held the position lost.

    • The plaintiff's status as an at-will employee.

    • The plaintiff's ability to work, including the ability to work for the defendant employer.

    • The plaintiff's subjective intention to remain in the position.

    • The plaintiff's efforts to mitigate damages.


Coterel v. Dorel Juvenile Grp., Inc., 2015 U.S. Dist. LEXIS 185451 (W.D. MO 2015). The defense had moved to exclude the testimony of Dr. Kurt V. Krueger based on Krueger’s interpretation of language in Section § 537.090 of the Missouri Wrongful Death Act stating that:

If the deceased is under the age of eighteen, there shall be a rebuttable presumption that the annual pecuniary losses suffered by reason of the death shall be calculated based on the annual income of the deceased's parents, provided that if the deceased has only one parent earning income, then the calculation shall be based on such income, but if the deceased had two parents earning income, then the calculation shall be based on the average of the two incomes.

Krueger interpreted that language to mean that the language created a separate category for awarding parents of a minor child who was wrongfully killed such that parents were entitled to an amount equal to the average earnings of the parents starting immediately and continuing for the life expectancy of both parents. The defense economic expert was unnamed, but apparently argued that the parents had suffered no loss of financial support resulting from the death of the child. Judge Steven R. Bough denied the motion to exclude Krueger, allowing both Krueger and the defense expert to testify based on their respective understandings of the meaning of § 537.090. The subsequent trial reached a defense verdict that was appealed to the 8th Circuit and affirmed, but without reference to how damages should have been calculated.

Eagen v. United States, 2022 U.S. Dist. LEXIS 40172; 2022 WL 683121 (E.D. MO 2022). Plaintiffs had retained Dr. Kurt V. Krueger as their expert in this wrongful death claim for the wrongful death of a minor child. The defense retained Dr. Rebecca Summary. The defense did not challenge the admissibility of Krueger’s testimony, but plaintiffs challenged the admissibility of the testimony of Summary. Judge Shirley Padmore Mensah denied plaintiff’s motion and held that:

[T]his Court finds that the opinions at issue here are not at odds with the Missouri wrongful death damages statute. The statute expressly states that the "presumption that the annual pecuniary losses suffered by reason of the [minor's] death shall be calculated based on the annual income of the deceased's parents" is "rebuttable." Mo. Rev. Stat. § 537.090. That plain language does not, in any way, limit the evidence either party may use to attempt to rebut the presumption, either in an upward or downward manner.

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.

May 2, 2022

Valenzuela v. City of Anaheim, 6 F. 4th 1098 (9th Cir. 2021).This decision concerned whether California’s Wrongful Death Act was consistent with Section § 1983 of the federal Civil Rights Act. At issue was whether post-death hedonic damages were required under Section § 1983. The Court cited the decision in Chaudhry v. City of Los Angeles, 751 F.3d 1096 (9th Cir. 2014) in holding that an award for post-death hedonic damages was required under the federal Civil Rights Act even though not allowed under California’s Wrongful Death Act.

Valenzuela v. City of Anaheim, 2022 U.S. App. LEXIS 8471 (9th Cir. 2022).This decision concerned whether California’s Wrongful Death Act was consistent with Section § 1983 of the federal Civil Rights Act. At issue was a three judge panel’s decisions in this Valenzuela v. City of Anaheim, 6 F.4th 2098 (2021) and in Craig v. Petropulos, 856 Fed Appx. 649 (2021) whether post-death hedonic damages were required under Section § 1983. The 9th Circuit panel respected the decisions of in Valenzuela and Craig, but said that an award of post-death hedonic damages was required, but also saying also that:

Post-death "hedonic" damages awards are speculative, contravene traditional common law damages principles, contradict California state law, and where, as here, the awards would have been $9.6 million and $1.6 million respectively in Valenzuela and Craig without post-death "hedonic" damages, are not necessary to satisfy the policy goals of § 1983 under Supreme Court precedent. For these reasons, our court should have ordered a review of the two cases by an en banc panel.

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.

This is a revised listing.

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.

May 19, 2022

Cardenas v. Western Express, 2020 U.S. Dist. LEXIS 261869 (W.D. OK 2-12-2021). This order was a response to a defense motion in limine to exclude various calculations of economist Dr. Stan V. Smith. The court allowed Smith’s calculations regarding lost earnings, but excluded Smith’s calculations regarding lost job-related fringe benefits based on Smith having provided no information regarding whether the plaintiff had fringe benefits in his employment. Smith’s calculations for lost household services was limited to evidence of specific household services provided by the decedent for children the decedent was not living with. Smith’s loss of Guidance and loss of companionship calculations were excluded because those elements are part of consortium and not part of pecuniary damages.

Mize-Kursman v. Marin Community College Dist., 202 Cal. App. 4th 832 (CA App. 2012). The plaintiff had suffered a salary reduction following whistle blower complaints and had continued to work at the lower salary for several years. At the time of trial, she was 65 and four months in age and was projected by economist Dr. Barry Ben-Zion to work another 3.83 years to age 69.14. Ben-Zion had calculated both loss of pay and reduction of pension benefits, with a total loss with a present value of $351,935. The defense had presented evidence that the plaintiff could have chosen to retire in lieu of continuing to work, showing that her retirement amount exceeded her pre-reduction salary. The jury found in favor of the plaintiff but awarded no damages. The Court of Appeals held that this was reversible error because available retirement benefits could not be used to reduce lost earnings. The Court reversed the decision and remanded for retrial on damages. The case then settled. Thanks to Barry Ben-Zion for assistance with this description.

June 20, 2022

Roberts v. Tim Dahle Imps., Inc., 2022 U.S. Dist. LEXIS 98682 (D. UT 6-1- 2022). The Court denied a defense motion to exclude or limit compensatory and punitive damages on the basis that calculations of those damages were not provided by the appropriate deadline. The court held that calculations of noneconomic damages, including hedonic damages, damages for emotional distress and punitive damages do not require specific calculations to be provided. The Court cited Smith v. Ingersoll-Rand Co., 214 F.3d 1235, 1245 (10th Cir. 2000) regarding hedonic damages, as follows:

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 reached in published value-of-life studies and skeptical of their underlying methodology, the federal courts which have considered expert testimony on hedonic damages in the wake of Daubert have unanimously held quantifications of such damages inadmissible.

The Court added that: “Punitive damages are similarly left to the discretion of the jury and are not subject to concrete rules or calculation.”

June 27, 2022

Sullivan v. City of Buena Park, 2022 U.S. Dist. LEXIS 91684 (C.D. CA 4-11-2022). Federal District Judge Cormac J. Cadrney excluded the testimony of economic expert Robert Johnson regarding the value of the decedent, David Sullivan. Johnson’s testimony would have been that the value of any human life fell within the range of $3,900,000 to $14,400,000 based on papers by Drs. Ted Miller and Kip Viscusi. Judge Cadrey commented on the fact that Johnson’s testimony would apply to any decedent, “from a vagrant bum, an infant, spouse, or the local version of Dr. Jonas Salk.” It was also noted that no justification was given for using the two papers by Miller and Viscusi rather than other studies with other values.

July 3, 2022

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.

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. Sim’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.

Laney v. Vance, 112 So. 3d 1079 (MS 4-25-13). The Mississippi Supreme Court reversed and remanded the trial court opinion, saying: “Because the trial judge committed reversible error in instructing the jury that they could consider the "value of life" of the deceased in awarding damages, and because counsel for Vance made improper and prejudicial comments to the jury during closing arguments, we reverse and remand for a new trial.” There is no indication that an economic expert was involved in this case.

Gurvey v. Twp. of Montclair, N.J., 2022 U.S. Dist. LEXIS 59815 (D. N.J. 3-31-2022). Gurvey’s claim was that police officers entered his residence and forced him to have an unwanted psychiatric examination to determine whether Gurvey was suicidal. Stan Smith valued Gurley’s alleged wages and benefits and Gurvey’s reduction in value of life caused by this incident. This was part of a cross-motion for summary judgment that was denied. The judge denied a defense motion to exclude Smith’s testimony without prejudice, meaning that the motion in limine could be refiled at a later stage of the litigation.

July 17, 2022

James v. Antarctic Mech. Servs, 2020 U.S. Dist. LEXIS 52619 (S.D. MS 2020). Economic expert Dr. George Carter relied upon earnings projections of vocational expert Kathy Smith, who did not rely on James’s actual earnings record. The Court stated that loss of earning capacity in Mississippi must be based at least in part on a plaintiff’s actual earnings record, if such a record existed. For that reason and because lost fringe benefit can only be calculated if there is evidence that a plaintiff is actually using them, Smith’s testimony was excluded and Carter’s testimony that relied upon Smith’s opinions on lost earning capacity was also excluded. Carter was permitted to testify about household services based on Carter’s assumption that James’s custodial granddaughter would continue to live with James until age 18.

August 10, 2022

Pepin v. Wisconsin Central, Ltd., 2021 U.S. Dist. LEXIS 187909 (W.D. MI 2021). The Court that railroad retirement taxes should not be excluded when calculating loss of earnings. The court provided two rationales for not excluding Tier I and Tier II taxes: (1) That such taxes will be levied on the portion of an award that is for lost earnings under BNSF v. Loos (U.S. 2019); and (2) That because Pepin is not claiming a loss of pension benefits, taxes to finance those benefits should not be excluded. This decision provides a good review of legal decisions regarding claims of lost pension benefits and railroad retirement taxes. The decision also held that statistical evidence of average age of retirements of railroad workers could be presented to a jury, but not the availability of retirement benefits if a plaintiff retired,

September 2, 2022

Stratton v. Thompson/Center Arms, Inc., 2022 U.S. Dist. LEXIS 155529 (D. UT 8-25-2022). This decision limited the testimony of Dr. Paul Thomas and Jacquelyn Vega Valez of Vocational Economics, Inc., to explaining that disabilities in general can result in reduced work lives, but could not project a specific reduction for the plaintiff. Valez testified for the plaintiff at the Daubert hearing, as did R. Brad Townsend, CPI, a forensic accountant for the defendant. Federal District Judge David Nuffer was very detailed in his analysis of the VEI, Inc., methods used by Thomas and Vega, and cited Nora Ostrofe, “Does the Vocational Economic Rationale Have Merit?—An Appraisal,” 20 J. Legal Econ. 61, 71 (July 2014). Judge Nuffer said:

The Vocational Experts' primary deficiency is that they fail to show that their methods, even if accurate for the general population, "can reliably predict the future work-life expectancy of a specific person." Neither the data itself nor its use in the general sense appear problematic. For example, the general proposition that persons with disabilities have a diminution in work-life expectancy compared to persons without disabilities does not appear to be controversial or even challenged. But the Vocational Experts' attempt to take that general premise, that persons with disabilities have a diminished work-life expectancy, and attempt to apply it to Mr. Stratton's situation, is not based on a reliable foundation. The Vocational Experts have not established that the use of their methods in the specific, as opposed to the general, is reliable or relevant to the situation at hand.

September 5, 2022

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.

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.

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.

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.

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.

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.

September 22, 2022

Taylor v. United States, 2022 U.S. Dist. LEXIS 166301 (D. NM 2022). In a wrongful death action, the testimony of Dr. M. Brian McDonald was limited as follows:

Dr. McDonald will not be permitted to opine or otherwise testify at trial as to the numerical quantification or computation of hedonic damages, including any "benchmark" figure corresponding to the value of life. Dr. McDonald may testify about other aspects of hedonic damages, including its definition and a general explanation of the components of an individual's life that the Court may consider in deciding whether to award hedonic damages.

From a footnote, “a benchmark figure for the value of life refers to testimony on the value of a statistical life (as opposed to the economic value of the decedent's life).”

October 7, 2022

Lemperle v. Avis Rent-a-Car Sys. 2020 U.S. Dist. LEXIS 265288 (D. NV 2020). U.S. District Judge James C. Mahan denied a defense motion to exclude the testimony of economic expert Stan V. Smith regarding loss of earnings, loss of household services, cost of future life care and hedonic damages. Defendants were free to challenge Dr. Smith’s calculations in any of these areas. Regarding hedonic damages, Judge Mahan said:

[W]ithout Dr. Smith's testimony—and the aggregated economic data that underlies it—the jury's award of hedonic damages would likely be arbitrary. While economists have come to different conclusions regarding the value to ascribe to a human life using "risk reduction" or "willingness to pay" methodology, this paradigm is widely used by economists to determine monetary values associated with everyday risks. Thus, Dr. Smith's specialized and technical expertise is helpful to the jury when determining the monetary value of plaintiff's hedonic damages.

November 27, 2022

Williams v. B&B Elec. & Util. Contrs., Inc., 2022 U.S. Dist. LEXIS 186277 (S.D. TX 2-08-2022). Plaintiffs profferred the testimony of Dr. Gary Kronrad, an economic expert, regarding pain and suffering based on a per diem unity of time during which pain and suffering was projected to occur. The exact per diem amount is not identified in the decision. The Court held that per diem testimony of this type can be presented by an attorney in closing arguments, but not by an expert with imprimatur of expert testimony. The Court said:

Because the issue is not a matter of special training or expertise, but rather it involves elementary multiplication, Dr. Kronrad's testimony is not truly expert testimony and will not properly assist the jury. It is neither a relevant nor reliable opinion on the amount of damages, for which it is offered. Consequently, the Court EXCLUDES the testimony.

United States v. Boam, 2022 U.S. Dist. LEXIS 158842 (D. ID 8-31-2022). This case involved restitution for injury to a child through being used for child pornography. Economic expert Stan V. Smith offered testimony about (1) loss of wages and employee benefits; (2) the cost of future life care; (3) reduction in the value of life. Based on Smith’s report, the Court ordered $320,548 in cost of life care and $2,006,113 in lost earnings. However, the government did not ask for reduction in the value of life as part of its claim for restitution.

Stovall v. Mack Truck’s, Inc., 2022 U.S. Dist. LEXIS 192488 (10-21-2022). Mack filed a motion in limine to exclude Dr. Ralph Scott as an expert witness in this case. Mack seeks to exclude Dr. Scott's opinion testimony on the value of statistical life ("VSL") as being unreliable and irrelevant. The Court said:

The Court joins with other courts in this district in finding that the VSL testimony is inadmissible. . . . To the extent that Stovall is offering Dr. Scott's testimony on the value of a statistical life methodology, the motion is granted. If Dr. Scott has given any opinions not relying on VSL, he will be permitted to testify.