January 11, 2013

Adae v. State, 2013 Ohio 23 (OH App. 2013). This decision affirmed the trial court ruling of the Court of Claims. The third assignment of error that was rejected was a challenge to the methods used by Dr. David Boyd, plaintiff’s economic expert, to value the earning capacity of Cynthia Adae, who had worked on her family farm from 1978 until her injuries. After her injury, she resumed limited work in a roadside farm market, but at reduced capacity compared with before her injuries. She had never been paid a wage or salary and the defense argued that the loss should have been measured in terms of reduced farm income. Dr. Boyd calculated Adae’s reduced earning capacity as worth $10.43 per hour as of 2007. He assumed that she had worked ten hours per day, five days per week, 50 weeks per year before her injury, but had been limited to 4.5 hours per day, five days per week, 50 weeks per year after her injury. On this basis, Dr. Boyd testified to a present valued loss of $284,459.73, the amount awarded by the trial court.

January 14, 2013

Chustz v. J.B. Hunt Transport, 659 So. 2d 784 (LA App. 1995). This very short memorandum vacated a trial court’s decision to allow the hedonic damage testimony of Dr. Stan Smith and granted a motion to exclude Smith’s testimony.

Hendricksen v. State of Montana, 2004 MT 20; 84 P.3d 38 (MT 2004). This decision recognized “loss of ability to pursue an established course of life” and “emotional distress” as different categories for which an injured plaintiff can seek damages, pointing out that whether the damages overlap is a question of proof. An economic expert was not involved in this decision. The court described damages for “loss of ability to pursue an established course of life” as follows:

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.

February 17, 2013

Baker v. Promise Regional Medical Center, 2013 U.S. Dist. LEXIS 20762 (D. KS 2013).  This decision affirmed awards of $500,000 to the widow and $300,000 to the adult daughter of a decedent plus medical and funeral costs in a wrongful death action, relying on Wentling v. Medical Anethesia Services, 237 Kan. 503 (1985) and several other Kansas decisions. The term “loss of a complete family” was recognized as a component of economic damages. The unique component of this ruling appeared to be that an adult child can be awarded damages for “loss of a complete family.” An economist was not involved as an expert in this case. 
April 20, 2013

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 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.

Luttrell v. Island Pacific Supermarkets, Inc., 2013 Cal. App. LEXIS 270 (Cal. App. 2013). This decision involved both a failure of the plaintiff to mitigate his medical damages (by not treating his ulcer) and an application of Howell v. Hamilton Meats & Provisions, Inc., (2011) 52 Cal.4th 541, holding that a plaintiff can only recover for amounts actually paid to medical care providers and not for amounts originally billed. The Court held that Luttrell could recover 50% of amounts actually paid to medical care providers for his past medical expenses. The 50% reduction was based on his failure to mitigate his damages by seeing proper treatment for his medical condition. Suggested by Dave Jones.

April 22, 2013

Sasnett v. Jons, 2013 Mo. App. LEXIS 413 (MO App. 2013). It was noted without objection that Dr. John Ward had provided deposition testimony “regarding the loss to the family resulting from the loss of Sasnett’s income and benefits, household services, and the leisure time shared with his family” in a total amount of $1,975,000. No objection was stated in the decision to Dr. Ward’s calculation of the dollar value of leisure hours with family as time spent providing family services. 

Brereton v. United States, 973 F. Supp. 752 (E.D. MI 1997). Judge Marc Goldman held that hedonic damages for a decedent under the Michigan Wrongful Death Act were only allowed from the moment of injury to the moment of death.  He also held that hedonic damages testimony of Stan V. Smith was inadmissible to measure the loss of society and companionship of survivors with the decedent.

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.
Sargon Enterprises v. University of Southern California, 55 Cal. 4th 747 (CA 2012). This decision has been interpreted as meaning that California has come much closer to having adopted  the federal standards of Daubert v. Merrell Dow Pharmaceuticals, (1993) 509 U.S. 579.  In Sargon, the California Supreme Court reinstated a trial court decision to exclude the testimony of James Skorheim, who projected that a small start-up company would have become a giant in the dental implant industry for purposes of projecting damages. The trial court had excluded Skorheim’s lost profits testimony as speculative. A Court of Appeals decision had held that Skorheim should have been permitted to testify. The California Supreme Court explained the trial court decision in some detail and reinstated the trial court decision, saying:

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.)

May 1, 2013

Laney v. Vance, 2013 Miss. LEXIS 171 (MS 2013).  The Mississippi Supreme Court reversed the trial court decision “because the trial judge committed reversible error in instructing a 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 in closing arguments.” The Court held that it was a matter of law in Mississippi that no award can be made for loss of value of life in a wrongful death action.

Dugar v. Washington Metropolitan Area Transit Authority, 565 F.Supp. 2d 120 (DDC 2008).  This decision discussed how lost earnings should be calculated.  Judge Henry H. Kennedy, Jr., said: “When determining whether to award damages for future lost earnings, the court must consider facts specific to the plaintiff at issue, such as age, sex, occupational class, and probable wage increases over the remainder of the plaintiff's working life.”  Judge Kennedy also said: “The discount rate must be determined by comparing projected growth rates of wages with current and historic interest rates. The court rejects Dr. Edelman's view that the net discount rate must be determined using only current interest rates.” 

July 12, 2013

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). 

August 5, 2013

Shirley v. Smith, 261 Kan. 658; 933 P.2d 651 (KS 1997). At issue was whether Shirley could claim “loss of time” spent catheterizing herself following a medical injury at wage rates based on  what her employer paid her for work time. The Kansas Supreme Court held that a claim for “loss of time” must be based on loss of earning capacity, but reversed the court of appeals and upheld the trial court in holding that time spent by Shirley in self-cathetarization was an economic loss and not a non economic loss.  The Court said:

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.

August 11, 2013

Jerome v. Watersports Adventure Rentals, 2013 U.S. Dist. LEXIS 97146 (D. Virgin Is. 2013). This decision granted in part and denies in part a renewed defense motion in limine to exclude the testimony of Dr. Richard Moore, an economic expert who had provided opinions regarding the loss of earning capacity, future medical expenses, increased insurance premiums and the discount rate utilized to reduce future values to their present value. The decision provides a detailed Daubert consideration of three reports issued by Dr. Moore, which had resulted in decreases in his projections of lost earning capacity from $3,733,003 in his first report to $1,841,387 in his second report to $1,802,705 in his third report. This memorandum opinion by judge Wilma A. Lewis provides a detailed explanation for why she ultimately excluded Dr. Moore’s opinions about lost earning capacity, but allowed his testimony regarding future medical expenses, increased insurance premiums and his discount rate.  The discussion of what Judge Lewis refers to as the “Pennypack factors” is very instructive.

Tamburri v. Suntrust Mortgage, Inc., 2013 U.S. Dist. LEXIS 86375 (N.D. CA 2013). This order granted defense motions to strike the expert reports of Everett Harry and Stan V. Smith because they were not “based at least in part, on the Rule 30(b)(6) deposition testimony of the named defendants” as required by an earlier order. The Court had granted permission for a late filing based on the alleged need for the depositions to prepare the reports. The court described the excluded reports as follows:

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. 

Meeks v. Murphy Auto Group, Inc., 2010 U.S. Dist. LEXIS 132693 (M.D. FL 2010). The Court described Stan Smith’s proposed testimony as follows: “Regarding damages, Plaintiff proffers the expert opinions of Stan Smith, Ph.D., who opines that Plaintiff has sustained $1,772.00 in loss of time spent and $1,000 in credit expectancy.” Smith’s report was stricken as untimely in that it was filed after the filing deadline. The Court granted summary judgment to the defendant on several grounds, including the untimeliness of Smith’s report.

Bell v. May Department Stores, 6 S.W. 3d 871 (MO 1999). In a decision that has been cited for the language below, the Missouri Supreme Court said:

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.

August 24, 2013

Manko v. United States, 830 F.2d 831 (8th Cir. 1987).  The 8th Circuit held that the Federal Tort Claims Act specifies that damages should be based on state law in the state where a tort claim against the United States occurs, such that Missouri damages law applied in the case at hand. The Court interpreted Missouri law as precluding reduction for income taxes when determining lost earnings in a personal injury action. The Court also held that damages should not be reduced for Medicare benefits and Social Security benefits that the plaintiff had or would receive in the future since those benefits came and would come from a collateral source. There is, however, an interesting distinction regarding Medicare benefits in that an earlier 8th Circuit decision in Overton v. United States, 619 F.2d 1299 (8th Cir. 1980) had held in Missouri a payment comes from a collateral source if two conditions are met: (1) that the payment came from a source independent of the liable party and (2) that the plaintiff “may be said to have contracted with the prospect of ‘double recovery.” The Court held that Manko had contributed to the Medicare program and thus satisfied the second prong of that requirement. The Court also suggested that “a good argument can be made that” not subtracting taxes in calculating awards for lost earnings is “unfair to defendants,” that is what the law of Missouri requires. Suggested by Kurt Krueger.

Dempsey v. Thompson, 363 Mo. 339; 251 S.W.2d 42 (MO 1952). This decision held that income taxes are not to be deducted in Missouri when calculating an award for loss of earnings, but that a jury can be given an instruction that an award for loss of earnings is not subject to income taxes. The Court said:

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. 

The court also held that there should be no calculation of the tax consequences of the discount rate. On this issue, the Court said:

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. 

August 25, 2013

Mickey v. BNSF, 2013 WL 2489832; 2013 Mo. App. 691 (Mo. App. 2013).  At the trial court level, a jury awarded $345,000 to Mickey for damages in an FELA personal injury matter. In paying the judgement, BNSF withheld $12,820.80 for Tier I, Tier II and Medicare payroll taxes that were owing on $345,000 treated as earnings in the year awarded. Mickey refused to accept payment of $345,000 minus $12,820.80 on the ground that the award was insufficient based on the jury’s verdict. At issue was whether the award was for “time lost” working. The trial court ruled in favor of Mickey and was affirmed by the Missouri Court of Appeals, saying:

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."

The Court of Appeals went on to say that a verdict, once reached, cannot be modified by the court and thus required BNSF to pay Mickey the full amount of $345,000. 

Heckman v. BNSF, 286 Neb. 453 (Neb. 2013).  At the trial court level, Heckman was awarded $145,000 for on-the-job injuries suffered while working for the BNSF. The BNSF withheld $6,202.70 in Tier I, Tier II and Medicare payroll taxes that would have been owed on the verdict if treated as an award for lost earnings (assuming that the award is taxable under IRS rules).  The decision provided a detailed explanation for how $6,202.70 had been determined as the sum of $2,684.16 for Tier I taxes, $1,416.04 for Tier II taxes and $2,102.50 for Medicare taxes.  Heckman had earned $42,891.32 working for the BNSF as of the date of the judgment. That amount had been subtracted from $145,000 in determining the amounts of the award that were subject to Tier I and Tier II taxes. The trial court judge ordered BNSF to specify that none of the award was for lost earnings. The Nebraska Supreme Court reversed, holding that Nebraska law is based on a presumption that a general award (as compared with awards for specific categories) means that the plaintiff has prevailed on all claims. Since one of the claims was for lost earnings, at least part of the award was for lost earnings. Under IRS rules, if a general award is partly for lost earnings, the entire award is treated as if the award was for lost earnings. The Nebraska Supreme Court reversed the order of the trial court that BNSF report the award as not for time lost and supported the decision of the BNSF to withhold $6,202.70 for employee payroll taxes on $145,000 in lost earnings. In doing so, the Nebraska Supreme Court distinguished its decision from the decision in Mickey v. BNSF (2013) on the basis of differences in the presumed treatment of general versus special damages between Missouri and Nebraska.  The Nebraska Supreme Court went on to point out that the parties could have reached a settlement that specified that none of the award was for “lost time” and therefore not taxable for Tier I, Tier II and Medicare taxes, but had been unable to do so.

August 27, 2013

Bloor v. Fritz, 143 Wn. App. 718; 180 P.3d 805 (WA App. 2008). This decision is one of the very few decisions in which an economic expert is mentioned as provided testimony with respect to loss of credit expectancy.  The economic expert in this case was Robert Moss, who is identified as providing both loss of credit expectancy and short-term loss of earnings projections. With respect to loss of credit expectancy, the Washington Court of Appeals quoted the trial court decision favorably as follows:

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.

Further details about how Moss arrived at a figure of $10,000 for loss of credit expectancy are not provided. Moss also projected a short-term loss of earnings for Ed Bloor at $7,500 based on the incident causing the loss of credit expectancy.

August 29, 2013

Parker v. Twentieth Century Fox, 3 Cal. 3d 176; 474 P.2d 689 (Cal. 1970). Parker is the real name of actress Shirley Maclaine. She had a contract to lead in a musical, but the contract was cancelled and she was offered an alternative lead in a movie western. She sued and won $750,000 in damages. The California Supreme Court said: “[B]efore projected earnings from other employment opportunities not sought or accepted by the discharged employee can be applied in mitigation, the employer must show that the other employment was comparable, or substantially similar, to that which the employee has been deprived; the employee’s rejection or failure to seek other available employment of a different or inferior kind may not be resorted to in order to mitigate damages.” Submitted by Jerry Martin. (Revised from central file listing.)

August 31, 2013

Nelson v. Cooper T. Smith Stevedoring Company, 2013 U.S. Dist. LEXIS 123876 (E.D. LA 2013). Economic expert Dr. Kenneth J. Boudreaux had projected the lost earning capacity of Trevis Nelson on the basis of his last year of earnings at $45,217.90 and on the basis of an average for the last four years of earnings at $23,031.57. The plaintiff moved to preclude Boudreaux from testifying based on the four year average. The Court denied Plaintiff’s motion to limit Boudreaux’s testimony, saying that:

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.

After citing several prior decisions that allowed wage loss calculations to be based on average earnings, the Court described the plaintiff’s work history as follows:

[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.

September 4, 2013

Gerstenbluth v. Credit Suisse, 2013 U.S. App. 17841 (2nd Cir. 2013).  Gerstenbluth had settled a claim of age discrimination with Credit Suisse Securities for $250,000. Credit Suisse withheld $4,217.66 for FICA taxes and forwarded the withheld taxes to (the Court presumed) the IRS. No mention is made regarding whether Credit Suisse also paid the employer portion of FICA taxes in addition to the settlement amount. Nothing was apparently withheld for federal or state income taxes, but a W-2 was issued to Gerstenbluth for $250,000 as “Wages, Salaries, and Tips.” Both Gerstenbluth and Credit Suisse acknowledged that FICA taxes should have been withheld if Gerstenbluth had won an award for back pay and front pay, but Gerstenbluth argued that a settlement amount was somehow different. The 2nd Circuit noted that Gerstenbluth’s claim would imply asymmetric treatment of awards versus settlements and said: “We can think of no justification for this asymmetric treatment.” On this basis, the 2nd Circuit upheld the trial court decision in Gerstenbluth v. Credit Suisse, 2012 U.S. Dist. LEXIS 14483; 2012-2 U.S. Tax Cas. (CCH); 110 A.F.T.R.2d (RIA) 6238. 

September 8, 2013

Ham v. Maine-New Hampshire Interstate Bridge Authority, 92 N.H. 268 (1943). The New Hampshire Supreme Court ruled that damages for loss of enjoyment of life (later called “hedonic damages) were not available in a wrongful death action in New Hampshire.  The court said:

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.

West v. P Bell Helicopter Testron, Inc., 2013 U.S. Dist. LEXIS (D. N.H. 2013). The Court held that Ham v. Maine-New Hampshire Interstate Bridge Authority, 92 N.H. 268 (1943) was still good law in ruling that hedonic damages are not allowed in a wrongful death action in New Hampshire. 

September 19, 2013

Higgs v. State, 222 P.3d 648 (NV 2013). This decision was used by the Nevada Supreme Court to make it clear that while Nevada accepts the United States Supreme Court decision on Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and progeny as “persuasive,” Nevada has not “adopted” Daubert as the standard for admission of expert testimony, as some had interpreted from the Nevada Supreme Court’s decision in Hallmark v. Eldridge, 124 Nev 492; 189 P.3d 646 (NV 2008). The Court emphasized that NRS 50.275 has been and remains the standard. The Court also repeated that it had articulated five factors to be considered in a flexible way by district courts in admitting expert testimony, as:

(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.

October 18, 2013

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.

Smith v. Dorchester Real Estate, Inc., 2013 U.S. App. LEXIS 20785 (1st Cir. 2013). 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) and 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. 

October 25, 2013

Willink v. Boyne USA, Inc., 2013 U.S. Dist. LEXIS 152566 (D. MT. 2013).  The issue at hand was whether the plaintiff could introduce evidence about amounts originally billed in addition to amounts actually paid by Medicare in complete satisfaction of past medical bills of the plaintiff. Both parties agreed that Montana law limits recovery to amounts actually paid in satisfaction of those bills, but the plaintiff wanted to present evidence about amounts originally billed. The Court held that amounts originally billed could have been presented as evidence if there was any reason for doing so that could document medical procedures needed for the future as a foundation for a life care plan. No argument had been made to that effect in the current case, making such evidence irrelevant under Rule 402. The court drew a distinction from Chapman v. Mazda Motor of America, Inc., 7 F. Supp. 2d 1123 (D. MT. 1998), in which recovery was limited to amounts actually paid, but evidence about amounts originally billed was deemed relevant “to show the jury the severity and extent of [plaintiff’s] injuries” and “may bear on the necessity of future needs and provide a foundation for a life care plan.”

October 26, 2013

Chesapeake Operating, Inc., v. Hopel, 2013 Tex. App. LEXIS 13281 (Tex. App. 2013). The Court of Appeals reversed a trial court on the issue of damages based on the trial court’s admission of speculative testimony by vocational expert, Dr. Cornelius Gorman that was also the basis upon which the lost earning capacity of the plaintiff had been projected by the plaintiff’s economist, Dr. Douglas Womack. The court’s discussion of its reasons for reversing and remanding based on Gorman’s testimony was extensive. Gorman had opined that the plaintiff would “probably” have received two promotions to a position earning $125,000 per year in the oil drilling industry as either “an MWD lead engineer or a directional driller.” The Court said: “We believe Appellee’s experience in oil drilling, as testified to by Gorman, was inaccurate and exaggerated. Appellee’s work history showed he moved from job to job often and in varying industries.” The court concluded that: “The data underlying Gorman’s opinion was of such little weight that the jury should not have received his expert opinion on Appellee’s lost earning capacity.” For that reason, the trial court had abused its discretion in admitting Gorman’s testimony. The Court added that: “The trial court likewise abused its discretion in allowing Gorman to “crunch the numbers” before the jury based on conjecture.”

Haygood v. Escabedo, 356 S.W.3d 390 (Texas 2011). This Texas Supreme Court decision sets forth the standard for recovery of medical expenses in Texas as amounts “paid or incurred by or on behalf of” the claimant under Section 41.0105 of the Texas Civil Practice and Remedies Code. The Court also limited evidence at trial “to expenses that the (health care) provider has a legal right to be paid.” The trial court had admitted testimony based on list prices for medical care on bills issued by medical care providers. The Court pointed out that such list prices were often a function of being driven by government regulation and negotiations with private insurers to set list prices as high as possible, but that “[f]ew patients today ever pay a hospital’s full charges, due to Medicare, Medicaid, HM0s and private insurers who pay discounted rates.” The Court also held that the common law collateral source rule also applied so that award recipients might receive windfall gains in the form of an award to cover costs already paid for by third party insurers. Thus, plaintiffs can only present evidence of amounts actually paid by themselves or amounts paid by third party insurers to satisfy health care provider obligations, but can be awarded those amounts even if plaintiffs have not had to pay those amounts themselves.  

October 27, 2013

Lewis v. Seacor Marine, Inc., 2002 WL 34359733 (E.D. La. 2002). A motion in limine to limit the testimony of vocational expert Cornelius Gorman and Douglas Womack was granted by Judge Kurt D. Englehardt. Gorman assumed that the plaintiff, who had only worked one month as a deck hand would have rise to captain status and a captain’s salary within eight years. Womack had calculated the present value of damages on the basis of Gorman’s report. The Court said:

[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.

November 30, 2013

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 Unpubl LEXIS 178 (App.Div. Dec. 29, 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.