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. A plaintiff is entitled to recover, in the case of permanent injuries, a reasonable compensation for the destruction of his capacity to pursue an established course of life.

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 laypersons 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.

Under Michigan law, loss of society and companionship caused by wrongful death compensates survivors "for the destruction of family relationships that result[] when one family member dies." Mr. Smith's testimony is irrelevant and unhelpful in making this assessment. The intrinsic value of the decedent's life is an unfit measure of the value of his relationship with the surviving plaintiffs; it is like comparing apples to oranges. To make that valuation the factfinder will need to consider the characteristics of the relationship, not the value society might place on the safety and health of a statistically average individual. Therefore, Mr. Smith's testimony is inadmissible under Fed. R. Evid. 403 as irrelevant.

Even if the proposed expert testimony was not patently irrelevant, this Court would recommend exclusion of such evidence as unreliable and irrelevant under the Daubert analysis.

The trial court's preliminary determination whether the expert opinion is founded on sound logic is not a decision on its persuasiveness. The court must not weigh an opinion's probative value or substitute its own opinion for the expert's opinion. Rather, the court must simply determine whether the matter relied on can provide a reasonable basis for the opinion or whether that opinion is based on a leap of logic or conjecture. The court does not resolve scientific controversies.  Rather, it conducts a "circumscribed inquiry" to "determine whether, as a matter of logic, the studies and other information cited by experts adequately support the conclusion that the expert's general theory or technique is valid." (Imwinkelried & Faigman, supra, 42 Loyola L.A. L.Rev. at p. 449.) The goal of trial court gatekeeping is simply to exclude "clearly invalid and unreliable" expert opinion. (Black et al., Science and the Law in the Wake of Daubert: A New Search for Scientific Knowledge (1994) 72 Tex. L.Rev. 715, 788.) In short, the gatekeeper's role "is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." (Kumho Tire Co. v. Carmichael, supra, 526 U.S. at p. 152.)

For the jury's purpose of placing a monetary value on the self-catheterization treatment, the evidence of what an employer would have paid Shirley for her time is not out of line. Furthermore, Dr. Smith concedes that there is evidence to support the jury's figure, which was the midpoint of  the range suggested by Shirley's economics expert witness. Although presented in the belief that the element of damage was loss of time, the evidence serves as well to establish what Shirley or another nonmedical person would be paid for the time it takes to administer the treatment. Thus, if there was error with respect to the label applied to the element of damages, it was harmless.

Mr. Harry, an accountant, prepared a report that seeks to quantify Plaintiff’s lost past and future earnings resulting from her “deep-seated, enduring emotional harm” cause by Defendant’s alleged conduct. Mot. Ex. A p. 3. Although the report alludes to “foreclosure-specific costs that Ms. Tamburri has incurred, “ Id., Plaintiff has not shown that Rule 30(b)(6) deposition testimony was necessary to calculate that figure.
   
Dr. Smith prepared a report calculating “(1) the additional cost of mortgage expenses; and (2) the loss of credit expectancy.” Mot. Ex. B. p. 1. Dr. Smith’s methodology was “generally based on interest rates and consumer prices.” Id. Nothing in Dr. Smith’s report relies upon testimony or facts related to the 30(b)(6) depositions. 

An expectancy is "that which is expected or hoped for." To have valid credit expectancy one need not have a formal contract. There must be, however, a reasonable expectation of obtaining credit. This expectancy cannot be too indefinite or remote.

All of the cases to which we have been cited or have found bearing directly on this subject uniformly hold that too many unforeseeable and variable factors would enter into any attempted computation of income tax liability on loss of future earnings to permit of any reasonably accurate estimate thereof. 

It may be argued that if the jury is instructed an award is not taxable, it should also be instructed that any income realized therefrom is taxable.  But we think not soundly so.  To do so would cause the jury to enter into a field fully as speculative, if not more so, than an effort to compute and deduct income tax liability from the estimated gross loss of earnings before payment of taxes.  In the case of income tax liability on future income realized from investment of the award there is the additional imponderable of what income, if any, a particular plaintiff would probably earn from investment thereof.  Furthermore, we believe the jury would assume that any such income was subject to income tax assessment to the same extent as income from any other source; and, inasmuch as it could not possibly be estimated, any reference thereto in an instruction would tend to confuse and distract the jury and lead it into speculating on the amount thereof. 

Here, although Plaintiff sought damages for lost wages along with medical expenses and other damages, BNSF did nothing to ensure prior to the entry of the judgment that the judgment entered specify that a portion of the damages awarded to Plaintiff constituted "pay for time lost."

Due to the reduction of the Bloors' credit scores it is reasonably certain that for at least the next ten (10) years the Bloors will suffer economic loss when they apply for credit. A reasonable estimate of the loss they will suffer from the damage to their credit scores can be made based on the increased cost they will likely than not [sic] incur to acquire and pay a home purchase loan. The reduced credit scores the Bloors now have will result in them having to pay approximately one percentage point more in interest on a home loan, which translates to a current loss of $10,000.00, when the added cost of the loan over the normal amortization period of the loan is reduced to present cash value. This loss is reasonably certain and based on reliable statistical data provided by Robert Moss, the Bloor's [sic] economic expert witness.

It is well established in the Fifth Circuit that the trier of fact may rely upon a lost income stream calculation that is based on an average wage rate, particularly if the plaintiff has had an inconsistent work history.

[P]lantiff’s deposition testimony discloses that plaintiff held several jobs at varying rates of pay in the years before his accident.  Additionally, he changed jobs often and was incarcerated for approximately sixteen months beginning around 2008. Accordingly, it would be reasonable for the jury to conclude that Dr. Boudreaux’s calculations based on Nelson’s average income best capture Nelson’s likely future earnings. Exclusion of those calculations is unwarranted.

In the nature of things one may not himself receive compensation for the wrongful loss of his right to live, and claim for the loss cannot be an asset of his estate in any fair view of the compensatory principle of allowable elements of damages. While allowance for bodily and mental suffering is granted as in justice imposed on a wrongdoer, the estimate  must be within the bounds of justice. To allow for the enjoyment of continued life would mean an entrance into a boundless field of arbitrary assessment, for which no policy of the law exists. The limitation of damages in actions for death brought under the statute indicates that the policy for any allowance is of restriction. It is sometimes said that a wrongdoer is better off in causing death than in causing severe and lasting injury without death. If this may be considered in the balance of adjustments in social relations, it does not serve to outweigh the reasons which bar allowance for damage on this account.

(1) within a recognized field of expertise; (2) testable and has been tested; (3) published and subjected to peer review; (4) generally accepted in the scientific community (not always determinative); and (5) based more on particularized facts rather than assumption, conjecture, or generalization.

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.

[T]he quantum leap to captain and a captain’s salary for the remainder of (Lewis’s) worklife is not well-grounded in the facts of this case.  Any reliable analysis or projection would have factored in the plaintiff’s prior work history and the fact that Lewis had only worked in the marine industry for one month prior to the accident, and then as a deckhand. There is no suggestion or innuendo that the injured plaintiff Gary Lewis took any concrete steps on the difficult road to becoming a captain, nor that he was even descended from a long line of seafaring captains and harbored dreams of attaining that position as a youth.