The Gamboa-Gibson tables are apparently highly controversial. See, e.g., Thomas R. Ireland, Why the Gamboa-Gibson Disability Work-Life Expectancy Tables Are Without Merit, 15 J. Legal Econ. 105 (Apr. 2009). And even setting aside broader methodological concerns, it is not hard to see why Bosch Tool criticizes their application to this case: Lynch grouped Lackey with a wide range of "disabled" persons, with little to no regard for the type or permanency of the injury, work history, or the ability and intention to return to work. Then, Lynch compounded the problem by not considering Lackey's own ability to return to work as a carpenter or to pursue a different field after he completes his college degree. Instead, Lynch ended up with a work-life projection that might, by his own concession, have worked equally well for Lackey and someone with a broken arm that will heal. . . . So it would seem there is good reason to doubt the reliability of the tables and Lynch's calculations. [Footnote 9 and reference removed.]

Simple arithmetic does not require any special skill or experience jurors do not possess. Further, as Country notes in its brief, Smith did not consider numerous variables which could have driven business from Country down, including weather and large repairs. We also note other possible variables, including a decrease in the number of claims overall, demographic shifts, new body shops opening in the area, or Country deciding to total, rather than repair, more vehicles. Instead of examining possible variables to explain the decrease in business from Country, Smith simply relied on plaintiffs' assumptions that no reasons existed for the percentage of their business from Country to decline other than Country's alleged bad acts. As a result, we do not find the trial court abused its discretion in barring plaintiffs' expert.

[T]ime spent “preparing” for a deposition entails not only the expert’s review of his conclusions and their basis, but also consultation between responding party’s counsel and the expert to prepare the expert to best support the responding party’s case and to anticipate questions from seeking party’s counsel.  Any expert’s deposition is in part a dress rehearsal for his testimony at trial and thus his preparation is part of trial preparation. One party need not pay for the other’s trial preparation. The court finds that a deposing party need not compensate the opposing party’s expert for time spent “preparing” for deposition, absent more compelling circumstances than exist here.

[T]he court explained the jury might have accepted Stockwell’s personal consumption theory – that Wordon’s personal maintenance costs that would have been incurred in the years beyond her reduced life expectancy should be subtracted from her earnings potential. That wrongful-death-action theory, however, is inappropriate in a personal injury case and the court should not have permitted it. See Overly v. Ingalls Shipbuilding, 74 Cal. App. 4th 164, 173-75, 87 Cal. Rptr. 626 (1999).

I have ruled that it is unconstitutional to base damages on the characteristics of a person injured as a[] Hispanic or a member of any other ethnic group. So all of your answers should be based upon individual characteristics and not the general characteristics of a group, ethnic group. Is that clear to you[?]

The father has a baccalaureate degree, the mother has a Master of Fine Arts; both held responsible income-generating jobs; the family was stable; and the parents were caring. Based upon his specific family background, had the child not been injured, there was a high probability of superior educational attainment and corresponding high earnings. Treated by experts as a "Hispanic," his potential, based on the education and income of "average 'Hispanics' in the United States," was relatively low.

In this case, Defendant was required to disclose its expert reports on or before July 31, 2014, and it fully complied with the Court's order, disclosing, inter alia, that it would be offering the testimony of Dr. Skoog. Dr. Skoog's report, filed that same day, expressly indicated that he relied on the "databases" provided by Defendant in assessing his worklife expectancy. Moreover, prior to Dr. Skoog's deposition, Defendant disclosed all of the raw information it provided to Dr. Skoog to Plaintiff, and Dr. Skoog was questioned at length about the data. This is the precise sequence envisioned by the Federal Rules.

The Ninth Circuit has established three "basic steps" for calculating pecuniary damages under the FTCA: "(1) compute the value of the plaintiff's loss according to state law; (2) deduct federal and state taxes from the portion for lost earnings; and (3) discount the total award to present value." Shaw v. United States, 741 F.2d 1202, 1205 (9th Cir. 1984). "Arizona allows unlimited recovery for actual damages, expenses for past and prospective medical care, past and prospective pain and suffering, lost earnings, and diminished earning capacity." Wendelken v. Superior Court, 137 Ariz. 455, 671 P.2d 896 (Ariz. 1983).

In this Court's experience, when calculating future lost wages, economists typically rely on other experts-such as vocational rehabilitation experts-to advise them as to the income a plaintiff can probably earn due to his injuries. Economists then use that information in conjunction with actuarial data to estimate the wage loss the plaintiff will probably sustain over the course of his lifetime. Rice's expert report does not mention the basis for his assumption that plaintiff can only earn a minimum wage.

Defendant’s expert Dawson’s declaration supports the proposition that plaintiff will be able to acquire comprehensive health care insurance going forward. In other words, it provides a defense expert assessment of the availability of insurance benefits compatible with defense health care expert Olzack’s analysis of sources to finance plaintiff’s future need satisfaction. Dawson opined that the ACA is reasonably certain to continue well into the future and that plaintiff will be able to acquire comprehensive health insurance notwithstanding his disability. Dawson reviewed Roughan’s and Olzack’s life care plans and compared them both to plaintiff’s current Medi-Cal coverage and to insurance available on the Covered California health care exchange. Dawson identified specific California insurance plans that would be available to meet many of his needs. He also explained that plaintiff could use funds held in his special needs trust to purchase private health insurance, in which case private insurance would pay first, and Medi-Cal would have a right of reimbursement from the corpus of the trust only on his death.

Defendant presented evidence sufficient to support the continued viability of the ACA, as well as its application to plaintiff’s circumstances. Accordingly, we conclude the trial court’s decision to exclude evidence of future insurance benefits that might be available under the ACA on the basis that the ACA is unlikely to continue was an abuse of discretion.

[T]he Court finds the life care plan of the Plaintiffs to be more reliable than the life care plan of the Defendants. Here are just two examples of the lack of reliability of the Defendant's plan: the plan calls for an additional 9 days of hospitalization during the next 12 years of Earl Jr.'s life, yet Earl Jr. has already been hospitalized for over 75 days in the first three years of his life. The Court finds the testimony of Ira Morris, an expert in rehabilitation counseling and life care planning who prepared a Life Care Plan for Earl Jr., to be more reliable than the Defendant's expert. Morris detailed Earl Jr.'s needs for the rest of his life, including medical and therapeutic treatment, medications, equipment, supplies, attendant care, transportation and special residential needs.

[T]he admissibility of immigration status under Rule 403 for decreased earning capacity claims turns on the chances of deportation. If a plaintiff is more likely than not to be deported, the relevance is necessarily so high that it will not be substantially outweighed by the evidence's risks. But if the chances of deportation fall below that level, immigration status should be excluded to avoid the dangers of confusing the issues and unfair prejudice.

Because Ford and Missun's testimony would "help the trier of fact" determine Escamilla's decreased earning capacity--a responsibility requiring expert testimony--it was an abuse of discretion to exclude it. In their report, Ford and Missun outline their calculations and methodology, reaching the conclusion that Escamilla's decreased earning capacity was $578,194 on the low end, and $947,421 on the high end. Once explained to the jury, these figures and their underlying methodology would be a great help in determining Escamilla's damages.

may recover for loss of consortium; loss of comfort and society; and the reasonable contributions of money that the decedent would reasonably have provided for the support, education, training and care of heirs during the life expectancies of the decedent and survivors.

the decedent’s estate may recover for lost earnings from the time of injury to death; the present value of the decedent’s reasonable earnings during his or her life expectancy; medical and funeral expenses; pain and suffering; and other special damages.

An annuity coupled with a reversionary trust, as proposed by the United States, is one possible mechanism to effectuate the periodic payments, but it is not the exclusive mechanism. A hearing will be held following any award of future medical care to provide a basis for the court to determine the appropriate type of funding plan and method of administration.

[My decision] does not mean that this Court advocates deviating from the general rule applicable to personal injury cases whenever there is evidence that a plaintiff's life expectancy may have been decreased. This case presents an unusually compelling argument for deviation because of the overwhelming evidence that the plaintiff will not survive to incur living expenses during his work life expectancy. . . . Accordingly, this Court holds only that in the unique circumstances presented by this case, any award for lost earning capacity must be reduced by the living expenses the plaintiff would have incurred in the pursuit of his livelihood.

When a negligently injured party is fully disabled, his injury prevents him from supporting himself, from directing his earnings to the benefit of his family or other dependents, and from accumulating an estate.  Quite properly, the injured plaintiff should receive as damages his total estimated future earnings undiminished But if such a plaintiff dies, his action, whether commenced or continued by his personal representative, is for the benefit of the estate.  We cannot be blind to the reality that neither the deceased person nor his estate is burdened with the personal maintenance costs of the decedent. It thus becomes clear that  the proper measure of damages designed to be compensatory must include a deduction based upon decedent's cost of personal maintenance.  On the other hand, the estate should not be deprived of those earnings which are in excess of decedent's personal expenses, which funds could be distributed through decedents' estate in much the same manner that the decedent himself might have apportioned them.  If we were seeking to compensate for the loss of life itself, it may be true that the best approximation of the value of that life could be cast in terms of an individual's personal maintenance costs.  It has never been the law in Pennsylvania, however, nor do we here choose to hold that the loss of life itself is compensable.

The statute provides for "just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses. "'Just damages' include (1) the value of the decedent's lost earning capacity less deductions for [his] necessary living expenses and taking into consideration that a present cash payment will be made, (2) compensation for the destruction of [his] capacity to carry on and enjoy life's activities in a way [he] would have done had [he] lived, and (3) compensation for conscious pain and suffering."
   
Katsetos v. Nolan, 170 Conn. 637, 657, 368 A.2d 172 (1976). Thus, the only economic damages that can be recovered in a wrongful death action are medical costs, funeral costs and the loss of earning capacity less deductions for necessary living expenses. The value of the decedent's household services is not compensable under § 52-555 as economic damages and it is not proper to offer expert testimony on that issue.

In Georgia, when determining the full value of a decedent's life, "the jury is not bound to find that lifetime earnings reduced to present value is the full value of the life of the decedent, but such is an aid only to the jury in making such determination." Miller v. Jenkins, 201 Ga. App. 825, 826, 412 S.E.2d 555, 556 (1991) (internal quotation marks and citation omitted). "The intangible factors which supplement the economic value to comprise the full value of the decedent's life elude precise definition." Id. (internal quotation marks and citation omitted).

In one case, the Georgia Court of Appeals noted that the jury had evidence to support "an award for loss of intangible aspects of the decedents' lives," including testimony "concerning the character and family circumstances of the decedents," "the decedents' relationships with their respective children," and "the decedents' religious activities." Consol. Freightways Corp. of Del., 201 Ga. App. at 234, 410 S.E.2d at 753. One court observed: "Georgia is unique in its measure of damages for a wrongful death claim. Unlike other states, including Alabama which also has a unique but different approach, the measure of damages is the value of the decedent's life to him. Therefore, the measure of damages is the same as for a person who survives a tortious injury but is totally permanently disabled." Hale v. Cub Cadet, LLC, No. 3:10-CV-697-MEF, 2010 U.S. Dist. LEXIS 118573, 2010 WL 4628135, at *3 (M.D. Ala. Nov. 8, 2010) (footnote omitted).

Thus, Plaintiffs may recover for the intangible aspects of Mr. Galack's life. Dr. Seaman's testimony clearly indicates that his calculation was simply intended to provide an example to the jury. To the extent that Defendants take issue with that calculation or the value that Dr. Seaman used, those matters simply present issues for cross-examination and do not warrant excluding this testimony. 

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.

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.

Johnson sets forth a five-step method for calculating hedonic damages. (Doc. 245-4) at 4-5. Johnson takes into account the value of an average life ($8,900,000 in 1997 dollars) and "the Human Capital component" to calculate that the value of a human life ranges from $3,5000,000 to $12,900,00 in 2013 dollars. Id. at 4. Johnson's computation method then requires a trier of fact to "determine the percentage (how much in percent) of the loss of the enjoyment of life that the plaintiff has suffered due to their [sic] injuries" and to pick a number between $3,5000,000 and $12,900,00, which "represents the 100% loss of the enjoyment of life." Id. at 5. Finally, to determine the amount of hedonic damages, the trier of fact multiplies the percentage of the loss of enjoyment of life by the chosen number representing the 100% loss of enjoyment of life. Id.

Although an economics expert can give "generalized testimony about the concept of hedonic damages," the majority rule in federal court is that placing a dollar amount on hedonic damages, including the use of benchmarks and range of values, does not meet the reliability and relevance factors required to admit expert testimony. See e.g., BNSF Ry. Co. v. Lafarge Southwest, Inc., 2009 U.S. Dist. LEXIS 132152, 2009 U.S. Dist. LEXIS 132152 (D.N.M.). This district court has, likewise, has rejected expert testimony on the value of a statistical life as not reliable or relevant. See Chavez v. Marten Transport., Ltd., 2012 U.S. Dist. LEXIS 39586, 2012 WL 988008 *2 (D.N.M.) (citing Cruz v. Bridgestone/Firestone North Am. Tire, LLC, 2008 U.S. Dist. LEXIS 107379, 2008 WL 5598439 *4 (D.N.M. 2008)). Because Johnson's five-step method incorporates a monetary range for the value of a human life based, in part, on the value of an average or statistical life, the Court will exclude Johnson's five-step method for calculating hedonic damages as unreliable.

UCMC requests $2,340.00 for the 5.2 hours defense expert Dr. Malcom Cohen prepared for his deposition pursuant to Rule 26(b)(4). Courts in this district have concluded that costs associated with the time spent preparing for a deposition are recoverable. See Waters v. City of Chicago, 526 F.Supp.2d 899, 900-01 (N.D. Ill. 2007); Profile Prods., LLC v. Soil Mgmt. Techs., Inc., 155 F.Supp.2d 880, 886 (N.D. Ill. 2001). In this district, courts look to the preparation time in relation to the deposition time to determine whether the preparation time was reasonable. See Chicago United Indus., Ltd. v. City of Chicago, No. 05 C 5011, 2011 U.S. Dist. LEXIS 106523, 2011 WL 4383007, at * 2 (N.D. Ill. Sept. 20, 2011) (collecting cases). "These courts have concluded that a ratio of 3 to 1 preparation to deposition time is reasonable in complex cases[.]" LG Elecs. U.S.A., Inc. v. Whirlpool Corp., No. 08 C 0242, 2011 U.S. Dist. LEXIS 121361, 2011 WL 5008425, at *5 (N.D. Ill. Oct. 20, 2011).

Dr. Cohen spent 5.2 hours for a 3.33 hour deposition, which falls well within the 3 to 1 ratio. Further, the time Dr. Cohen spent in preparation of his deposition was reasonable based on the complexity of the damages calculations and his detailed rebuttal to Plaintiff's damages expert Dr. Mark Killingsworth. The basic proposition under Rule 26(b)(4) "is relatively straightforward -- a party that takes advantage of the opportunity afforded by Rule 26(b) [] to prepare a more forceful cross--examination should pay the expert's charges for submitting to this examination." 8 Wright, Miller, and Marcus, Federal Practice & Procedure § 2034. The Court therefore awards the full amount of $2,340.00 for Dr. Cohen's deposition preparation.

Defendants seek reimbursement of $24,625.00 in expert witness fees pursuant to Federal Rule of Civil Procedure 26(b)(4)(C). That rule requires an opposing party to "pay the expert a reasonable fee for time spent in responding to discovery." Defendants claim a right to payment for the hours associated with Hosfield's preparation for his deposition as well as for the actual deposition time. As Judge Shadur has observed, "[t]here are mixed  [*4] judicial rulings" on the recoverability of an expert's preparation time. Waters v. City of Chicago, 526 F. Supp. 2d 899, 900 (N.D. Ill. 2007); see also 8A Charles Alan Wright, Arthur R. Miller, Mary Kay Kane & Richard L. Marcus, Federal Prac. & Proc. § 2034 (3d ed. 2011). However, the "majority view in cases decided around the country is that preparation time * * * is compensable" under Rule 26(b)(4)(C). Waters, 526 F. Supp. 2d at 900; see also Collins v. Village of Woodridge, 197 F.R.D. 354, 357 (N.D. Ill. 1999) ("the better reading of Rule 26(b)(4)(C)(i) is that the expert's reasonable fees for preparation time are recoverable by the party who tendered the expert"). This Court cannot improve on the analysis by Judges Shadur and Kennelly in the cases cited above and agrees with its colleagues' construction of Rule 26.

It remains for the Court to determine what is "reasonable" in this case. We can certainly imagine cases in which the "reasonable" compensation for deposition preparation time would be zero or a nominal amount. This, however, is not such a case. The amount of material that the experts had reviewed in arriving at their opinions was unusually extensive, and it was entirely reasonable to expect that they would have to re-review significant portions of it in order to be able to answer questions intelligently at their depositions. Moreover, defendants knew in advance that plaintiff planned to seek recovery of the experts' preparation time but made no effort to limit the scope of the depositions, which might have limited the amount of "reasonable" preparation time. On the other hand, defendants requested the depositions promptly after receiving the experts' reports and did not inordinately delay scheduling the depositions. Thus the experts did not need to completely duplicate their earlier work in order to answer questions about their opinions. It is not our intention to allow the experts to seek compensation for reinventing the wheel. Rather, what we believe appropriate is to permit the expert to be compensated by the opposing party for the time reasonably necessary to refresh the expert's memory regarding the material reviewed and the opinions reached.

Weighing these competing considerations, we do not think that a three-to-one ratio of preparation to deposition time is appropriate in terms of the costs that reasonably ought to be shifted to defendants under Rule 26(b)(4)(C). Having reviewed the experts' reports and their listings of the materials that they were required to review, we think that in the particular circumstances of this case, a ratio of one and one-half times the length of the deposition is reasonable. We will therefore order defendants to reimburse plaintiffs for twelve hours of preparation time for Mr. Walton ($ 1,500 at $ 125 per hour) and ten and one-half hours of preparation time for Dr. Jacobs ($ 3,675 at $ 350 per hour). These amounts are in addition to the compensation that defendants must pay for the time spent at the depositions themselves: $ 1,000 for Mr. Walton (8 hours at $ 125 per hour) and $ 2,450 for Dr. Jacobs (7 hours at $ 350 per hour). Plaintiffs have not yet presented a request for payment to Ms. Brubaker, but the Court will follow the same rule of thumb if and when a request is made, subject to review for any unusual or differing circumstances.

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.

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.

Under the RRTA's plain text, damages for lost wages are not remuneration "for services rendered." Damages for lost wages are, by definition, remuneration for a period of time during which the employee did not actually render any services. Instead, the damages compensate the employee for wages the employee should have earned had he been able to render services. Unlike FICA, the plain language of the RRTA refers to services that an employee actually renders, not to services that the employee would have rendered but could not. See 26 U.S.C. § 3231(e)(1); see also id. § 3231(d) (defining "service"). Thus, damages for lost wages do not fit within the plain meaning of the RRTA.

Plaintiffs maintain that they are not required to make the disclosures called for by Rule 26(a)(1)(A)(iii). They first argue, "No initial disclosure of a damages 'computation' is possible or required where such damages consisted almost entirely of compensation for emotional anguish." (Pls.'s Opp'n (# 19) at 3.) As Plaintiffs note, "the elements of pain and suffering are wholly subjective . . . [and] because of their very nature, a determination of their monetary compensation falls peculiarly within the province of the jury." Indeed, because emotional suffering is personal and difficult to quantify, damages for emotional anguish likely will be established predominantly through the plaintiffs' testimony concerning the emotional suffering they experienced, not through they type of documentary evidence or expert opinion relied upon to make a Rule 26(a)(1)(A)(iii) disclosure of a computation of damages. . . Accordingly, the court finds that Plaintiffs did not err in failing to provide a computation of their alleged emotional damages.

Similarly, Plaintiffs argue that a computation of damages pursuant to Rule 26(a)(1) is not possible or required where, as here, the plaintiff seeks punitive damages. Indeed, punitive damages can be based upon a variety of factors that are difficult to quantify, including the reprehensibility of the defendant's conduct. Under Nevada law, if the district court determines that the conduct at issue is subject to punitive  damages, "the allowance or denial of exemplary punitive damages rests entirely in the discretion of the trier of fact." Evans v. Dean Witter Reynolds, Inc., 116 Nev. 598, 5 P.3d 1043, 1052 (Nev. 2000) (citations omitted). Because a computation of punitive damages is not feasible at the time initial disclosures are required, the court finds that Plaintiffs did not err in failing to provide a computation of their alleged punitive damages.

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.

The danger of expert testimony is that it will be accorded a weight by the factfinder it is not due because the authority of the expert conceals the analytical leaps or unfounded assumptions on which his or her conclusion is based. It is the duty of the trial court to examine the expert's assumptions and the strength of the connections between them and the conclusion to which the expert will testify. Once the trial court has made the appropriate inquiry and is satisfied that the expert's opinion does not flow arbitrarily from a whim but from the disinterested operation of reason, the factfinder can trust that the expert arrived at the conclusion soundly. With the assurance that the trial process will not be corrupted by a capricious expert, the factfinder can decide for itself the weight to accord relevant expert testimony.

Country points out the expert witness is really only doing basic math for the jury. Based on the above quote from plaintiffs' brief, this is correct. If told the amount of gross revenue a company received from a particular client for a particular year and the company's gross revenue for the same year, any layman could determine what percentage of the gross revenue would be attributable to the particular client. The same layman could do the same thing with other years and then compare the percentage attributable to the particular client from year to year. Country argues, "[b]asic math is common knowledge and does not require expert testimony." We agree.

"Expert testimony is proper when the subject matter of the inquiry is such that only a person with skill or experience in that area is capable of forming a judgment." People v. Leahy, 168 Ill. App. 3d 643, 649, 522 N.E.2d 892, 896, 119 Ill. Dec. 230 (1988). Simple arithmetic does not require any special skill or experience jurors do not possess. Further, as Country notes in its brief, Smith did not consider numerous variables which could have driven business from Country down, including weather and large repairs. We also note other possible variables, including a decrease in the number of claims overall, demographic shifts, new body shops opening in the area, or Country deciding to total, rather than repair, more vehicles. Instead of examining possible variables to explain the decrease in business from Country, Smith simply relied on plaintiffs' assumptions that no reasons existed for the percentage of their business from Country to decline other than Country's alleged bad acts. As a result, we do not find the trial court abused its discretion in barring plaintiffs' expert.

Dr. BiFulco indicates that his life care plan was based on a review of Queen's medical records and a September 10, 2015, examination of Queen, which lasted less than two hours (Doc. 121-1, pgs. 36-37). Defendant contends that BiFulco's opinions are not grounded in a proper basis because Dr. BiFulco relied on his own assessment of Queen to develop his life care plan and opinions as to Queen's condition and future needs, rather than the assessments prepared by Queen's treating physicians. In addition, defendant also argues that Dr. BiFulco's report exceeded the scope of his expertise and fails to establish the reliability of his opinions.

[T]he ultimate question here is, "What sum of money is the evidence legally or factually sufficient to show that these particular appellees actually lost in fact due to no longer receiving Carl's care, maintenance, support, advice, counsel and reasonable monetary contributions (gifts)?" For example, assuming Carl had been an accountant who did their tax returns for free, how much would they have to pay to replace that free service? Or, as was shown here, how much will the wife have to pay for household services that Carl previously provided for free? Those are examples of actual economic or pecuniary losses that would be includable under the cap's economic damages prong if there was evidence supporting them. On the other hand, although Carl's practical advice to his family had some unquantified, inherent value to them, losing such advice in the future would not be an actual economic or pecuniary loss to appellees if there is no evidence of an associated monetary impact on them to replace that advice and counsel. These examples illustrate the difference between (i) the undifferentiated, non-monetized "pecuniary losses" the jury found in response to question three and (ii) the types of actual economic and pecuniary losses that the legislature made includable when determining the economic damages prong in § 41.008(b)(1)(A). The latter are included in that prong, whereas, the former are not.

The defendants do not challenge Dr. Smith's credentials and the court finds he appears to be qualified to testify with respect to the economic value of the decedent's services. The record shows he has education and experience in economics and the determination of damages. Based on his qualifications and experience, his testimony is likely reliable enough to assist the trier of fact. The expert's methodology appears to be scientifically valid and can properly be applied to the facts of this case. The defendants' criticism of Dr. Smith's formulas and methods is properly the subject of cross-examination.

Defendant attempts to characterize plaintiff's claim as one for lost financial support and argues that because a claim for lost financial support can be brought under the wrongful-death statute by beneficiaries of the estate, this claim is not one for damages suffered by the decedent. . . . However, a claim for lost financial support under the wrongful-death statute is not the same as a claim for lost earnings. Specifically, lost earnings are damages that decedent could have sought on his own behalf had he lived, whereas damages for lost financial support would be sought by one who depended on the decedent for financial support. . . Because the damages are distinct, the fact that the wrongful-death statute allows for recovery of lost financial support does not change the character of plaintiff's claim for damages for the decedent's lost earnings.

We join the thoughtful analysis of the Third, Seventh, and Tenth Circuits, and reject the matchbook musings of the D.C. Circuit. In so doing, we also agree with those courts that the decision to award a gross up--and the appropriate amount of any such gross up--is left to the sound discretion of the district court. As the Third Circuit put it, "we do not suggest that a prevailing plaintiff in discrimination cases is presumptively entitled to an additional award to offset tax consequences . . . . The nature and amount of relief needed to make an aggrieved party whole necessarily varies from case to case," Eshelman, 554 F.3d at 443, and the "circumstances peculiar to the case" drive that decision[.]
November 15, 2017

As for the final factor, Kelmendi provided no evidence such as "discount tables to determine the present value of future damages." Kelmendi "need not have paraded a team of economists in front of the [Court] to meet his burden of proof," Burton, 577 F. App'x at 567, and the Court acknowledges that the jury was instructed on how to discount a future damages award to present value (see R. 96, PID 1827-28). But most troubling is that, at the very least, "[a] plaintiff who seeks an award of front pay must provide the district court with the essential data necessary to calculate a reasonably certain front pay award." Arban, 345 F.3d at 407 (citations omitted). Kelmendi has not done that. True, he discussed his bi-weekly salary as an instructional specialist. But "[s]imply proving one's salary is not enough." Burton, 577 F. App'x at 567. And Kelmendi arguably fell short of even doing that. He threw out only a rounded estimate of his past salary, "probably 1,800 every two weeks . . . It's about 1,800." (R. 106, PID 2636), and offered no data on what his future salary would have been had he stayed at DPS or worked elsewhere.

On balance, these factors--and Kelmendi's lack of evidence offered to support his front pay award--weigh against finding that a front pay award would be appropriate here. Accordingly, the Court will grant Defendants' motion in limine to the extent it seeks to eliminate Kelmendi's front pay (i.e., the Court should not have sent that issue to the jury). The Court will thus vacate that aspect of the jury's verdict.