Decisions Developed in 2018

January 21, 2018

Dedmon v. Steelman, 2017 Tenn. LEXIS 720 (TN 2017). This decision held that the definition of “reasonable charges” for hospital services under the Tennessee Hospital Lien Act does not apply in personal injury cases. Therefore, plaintiffs are free to submit evidence of the injured party’s full undiscounted medical bills as proof of reasonable medical expenses. Defendants were precluded from submitting evidence of discounted rates accepted by medical providers as a result of insurance, but were free to submit any other competent evidence to rebut plaintiff’s proof on the reasonableness of the medical expenses as long as the proof does not contravene Tennessee’s collateral source rule. Suggested by Christina Tapia. 

February 1, 2018

Otero County Hospital Association, Inc., Quorum Health Resources, LLC, 2018 Bankr. LEXIS 244 (United States Bankruptcy Court for the District of New Mexico, 2017). The Court defined a life care plan as follows:

A life care plan is a dynamic document, based on extensive data analysis and research. A life care plan provides information regarding a patient's current and future needs and associated costs relating to a person's injury. To create a life care plan, a life care planner takes a comprehensive review of the patient's medical records and interviews the patient. A physical exam of the patient is also performed. Based on this review, the life care planner creates a life care plan that assesses the patient's current and long-term needs, including physician follow up exams, diagnostic tests, pain intervention needs, medications, medical devices, home assistance needs, and any anticipated home modifications.

February 12, 2018

Lee v. Overbey, 2009 U.S. Dist. LEXIS 138766 (W.D. AR 2009).  Federal Judge Robert T. Dawson had allowed Dr. Stan V. Smith to testify about loss-of-life damages and Dr. Gary Skoog had been proffered by defense as a rebuttal witness. The Plaintiff moved to exclude Skoog’s testimony. Judge Dawson interpreted Dr. Skoog’s report and deposition testimony to have argued that “it is improper to utilize loss-of-life damages as compensation in litigation.” Judge Dawson granted Plaintiff’s motion to preclude Skoog from expressing his opinions regarding whether loss-of-life damages should be recoverable under Arkansas law, but allowed Skoog to testify in opposition to the methodology used by Smith to arrive at loss-of-life damages. Note: This memorandum was apparently published the first time on LEXIS in February of 2018.  

Fielder v. J. V. Coleman Trucking, Inc., 2018 U.S. Dist. LEXIS 13812 (N.D. WV 2018). This order is the response of Federal Judge Frederick P. Stamp, Jr., to a number of motions in limine posed by both the Plaintiff and the Defendant. A Defense motion challenged the calculations of Dr. Clifford B. Hawley for Jason Fielder’s “lost household services.” The order noted that “the loss of ability to perform household services constitutes the loss of a customary activity and is not subject to calculation as a matter of law.” It criticized Hawley’s calculations as “unreliable as they are based entirely upon generalized data not specific to the plaintiff.” This challenge to Hawley’s testimony was rendered moot because the Plaintiff had agreed not to elicit any opinions from Hawley regarding the economic value of Fielder’s loss of household services. The order indicated that the Plaintiff would, however, elicit testimony from Mr. Fiedler, his wife and other potential witnesses regarding Mr. Fiedler’s loss of household services and “will ask the jury to award an appropriate amount for those losses.”

Rascon v. Brookins, 2018 U.S. Dist. LEXIS 20088 (D. AZ 2018). This order of Federal Judge John J. Tuchi allowed the testimony of Dr. Stan V. Smith’s calculations on loss of future earnings were admissible, but his opinons with respect to loss of life or loss of value of life in this wrongful death action were not admissible. Judge Tuchi discussed the Ninth Circuit decision of Dorn v. Burlington N. Santa Fe R.R. Co., 397 F.3d 1183, 1195 (2005) and said:

The Court agrees with the Ninth Circuit's evaluation that Dr. Smith's quantification of hedonic damages does not accurately project the value people place on the enjoyment of life, but rather an altered figure that could reflect many different government policy judgements. Further, even if the figure only reflected what the public spends out of its own pockets on safety devices, this spending "is probably influenced as much by advertising and marketing decisions made by profit-seeking manufacturers . . .as it is by any consideration by consumers of how much life is worth." Smith v. Jenkins, 732 F.3d 51, 66-67 (1st Cir. 2013) (quoting Mercado, 974 F.2d at 871). The Court finds that Dr. Smith's calculations are too speculative and unconnected to how an individual values their life and is therefore not sufficiently tied to the facts of the case and is unhelpful to the jury in determining the "loss of value of life". Under Rule 702, Dr. Smith's "loss of value of life" testimony is inadmissible. See, e.g., Daubert, 509 U.S. at 591 ("scientific validity for one purpose is not necessarily scientific validity for other, unrelated purposes"); Ayers v. Robinson, 887 F. Supp. 1049, 1064 (N.D. Ill. 1995) (ruling, after an extensive analysis of the methodology involved, that Dr. Smith's testimony failed to survive Daubert analysis and was unhelpful to the jury).

Morga v. FEDEX Ground Package System, 2018 N.M App. LEXIS 8 (N.M. App. 2018). This decision rejected an appeal of the trial court decision to award more than $165 million to the plaintiffs for two deaths in an automobile accident. Most of that value was in the form of compensatory damages for loss of enjoyment of life and loss of consortium. The Court of Appeals said:

Defendants made a strategic decision to entrust the jury with the decision of how to determine the value of a life from the evidence presented, even going so far as to exclude Plaintiffs' economist from providing testimony regarding "specific damages for the value of a statistical life[,]" including "any numbers offering a benchmark value as to human life." Defendants' counsel specifically told the jury, " I am not going to submit to you a number, because I agree the value of life--I don't want to insult anybody about the value of life in this case. But you have to rely on you[r] own conscious[] when you're looking at [the] value of life." We agree that the damage awards in this case were very large. However, when an experienced district court judge, who is familiar with juries in his community, properly reviews the record and evaluates a motion for new trial and a motion for remittitur; the fact that Plaintiffs' awards are large does not transform Plaintiffs' undisputed evidence into something illogical or insufficient. Furthermore, although Defendants were afforded an opportunity to present evidence or testimony at trial to guide the jury in their determination of the value of life and other non-economic damages, Defendants specifically chose not to do so.

February 13, 2018

Henckle v. Cumberland Farms, Inc., 2017 U.S. Dist. LEXIS 217367 (S.D. FL 2017).  This decision excluded the testimony of economic expert Roderick Moe based upon his inability to demonstrate that a method of using a period of 24 past years to measuring growth rates for components of a life care plan prepared by Dr. Lichtblau that would extend 24 years into the future. (The term “mirror image approach” was not used in this decision, but has been used by forensic economists to describe this method.) Judge Donald M. Middlebrooks said:

There is no evidence that Moe's methodology for calculating medical expense growth rates has a reliable basis in economics, or is generally accepted by economists who study the medical industry. First, Moe admitted that he is unaware of any standard, treatise, expert analysis, or other authority that supports his methodology. (Moe Dep., 83:20-84:4; 88:3-9). Second, he testified that he is not aware of any studies that have tested his methodology, nor has he tested his methodology. (Moe Dep., 88:12-19; 88:22-89:2).

February 19, 2018

Mercado v. Ahmed, 756 F. Supp. 1097 (N.D. IL 1991). This order of Judge James B. Zagel excluded testimony of Stan V. Smith regarding an injured child’s loss of enjoyment of life (hedonic damages). In reaching his decision to exclude the testimony of Smith, Judge Zagel discussed said:

This kind of evidence is well described in T. Miller, Willingness to Pay Comes of Age: Will the System Survive, 83 Nw. U.L. Rev. 876 (1989). In brief, Miller notes that economists are researching the "ways to measure the value that individuals place upon reducing the risk of dying" by examining the markets.  Id. at 878-79. They examine "what people actually pay -- in dollars, time discomfort, and inconvenience -- for small reductions in health and safety risks." Id. at 879. Of particular significance, economists have estimated the values people place on risk reduction based on the following factors: 1) the extra wages employers pay to induce people to take risky jobs; 2) the demand and price for products -- such as safer cars, smoke detectors, houses in polluted areas, and life insurance -- that enhance health and safety; 3) the tradeoffs people make among time, money, comfort, and safety -- in studies involving pedestrian tunnel use, safety belt use, speed choice, and drivers' travel time; and 4) surveys that ask people about their willingness to invest money to enhance their health or safety. Id. at 880-81.

However, there is no basic agreement among economists as to what elements  ought to go into the life valuation. There is no unanimity on which studies ought to be considered. There is a lack of reliability. In fact, Smith was prepared to testify based on seventy or eighty studies; Miller relies on twenty-nine; in Sherrod v. Berry, 629 F. Supp. 159, 163 (N.D. Ill. 1985), Smith testified on the basis of fifteen studies. Smith acknowledged that more studies could be done on the willingness-to-pay issue. In particular Smith noted that further studies will focus on a set of consumers to uncover when these consumers make or do not make choices for safety, and these results may help establish validity. The fact that the bottom lines of most studies (between less than $100,000 to more than $2,000,000) arguably do not wind up very far apart (by some definitions of "very far") may be coincidence and not the result of the application of a scientific method.

Survey of attitudes and views of others as a basis for concluding something is true is not  necessarily wrong. Some science as it comes into court is the result of consensus by practitioners of some area of expertise that a certain law of nature is correct. What is wrong here is not that the evidence is founded on consensus or agreement, it is that the consensus is that of persons who are no more expert than are the jurors on the value of the lost pleasure of life. Even if reliable and valid, the evidence may fail to "assist the trier of fact to understand the evidence or determine a fact in issue" in a way more meaningful than would occur if the jury asked a group of wise courtroom bystanders for their opinions.

February 22, 2018

Griego v. Douglas, 2018 U.S. Dist. LEXIS 26933 (D. N.M. 2018). Magistrate Judge Karen B. Molzen held that:

Plaintiff fails to provide a persuasive argument as to why this Court should depart from precedent and admit expert testimony quantifying hedonic damages. The Court expressly finds that any probative value of such quantifying testimony is substantially outweighed by a danger of unfair prejudice and misleading the jury, which collectively will be in the best position to make such an assessment. See Fed. R. Evid. 403. On the other hand, the risk of undue prejudice does not outweigh the probative value to the jury of qualitative expert testimony regarding the concept of hedonic damages and pointing out the areas to be considered in evaluating such damages. Thus, testimony by Dr. McDonald on hedonic damages will be limited to those areas only.

Judge Molzen also ruled that:           

While neither party addressed this specific topic in their filings, the probative value of testimony explaining how governmental agencies use the valuation of life in the context of public policy seems substantially outweighed by the danger of confusing the issues. The trier of fact needs not know how governmental agencies use such a valuation in order to grasp its concept and apply it to the case at hand.

March 3, 2018

In the Matter of Parker Drilling Offshore USA, 2018 U.S. Dist. LEXIS 32741 (W.D. LA 2018). This was a ruling in a personal injury case under the Jones Act, 49 U.S.C. § 30104, and general maritime law of the United States, 28 U.S.C. § 1333. The economic expert for the plaintiff was Dr. Charles O. Bettinger, III. The economic expert for the defendant was Dr. Kenneth J. Boudreaux. The damages portion of the decision related to issues of work-life expectancy and the use of a worker’s earnings history versus amount being earned at the time of injury by the worker. On both issues, federal judge Dee D. Drell held that Boudreaux was correct under 5th Circuit standards. Regarding work-life expectancy, Boudreaux had relied upon work-life expectancy tables produced by Ciecka, Donley and Goldman, Journal of Legal Economics, Vols. 9, No. 3 (Winter 1999-2000) and 10, No. 3 (Winter 2000-2001), while Bettinger had assumed that the plaintiff (Wilbert Mays) would have retired at “a normal male retirement age of 65.” Regarding work-life expectancy, Judge Drell said:

The court adopts Dr. Boudreaux's work life average and not a "normal male retirement age." Dr. Bettinger's assumption clearly does not take into account Mays' overall physical condition nor does it consider interim labor separations which are evidenced by Mays' own work history. These considerations are consistently noted as reasons why the Fifth Circuit in Culver II and the courts applying the Culver II framework adopt a work life average rather than a retirement age as the proper standard. 

The court adopted the Boudreaux earnings history approach rather than the Bettinger current-amount-being-earned approach, saying:

The record evidence shows Mays' work history was inconsistent and that he did not remain in employment within the oil and gas industry for any significant period of time. Thus, we determine a figure commensurate solely with his income in 2013 to be significantly inflated. We also find that Dr. Boudreaux's use of an average of Mays' earnings over an eight year period is fair and equitable as it even takes into consideration years where his pay was much higher. Additionally, by taking an average of eight years, versus the usual five, less weight is afforded to year five (2009) when Mays did not earn any income.

In a footnote, a number of decisions were cited indicating that use of averages based upon a worker’s earnings history was to be preferred.

Starling v. Banner Health, 2018 U.S. Dist LEXIS 28747 (D. AZ 2018). This order of Federal Judge Neil V. Wake granted a defense motion to exclude the hedonic damages testimony of Dr. Stan V. Smith in this wrongful termination case, citing particularly Dorn v. Burlington N. Santa Fe R.R. Co., 397 F.3d 1183, 1195 (9th Cir. 2005) (dictum), but also Stokes v. John Deere Seeding Grp., No. 4:12-cv-04054-SLD-JAG, 2014 WL 675820, at *5 (C.D. Ill. Feb. 21, 2014) (quoting Ayers, 887 F. Supp. at 1060). Smith had assumed a 25 percent reduction in the plaintiff’s enjoyment of life about which Judge Wake said:

Moreover, the arbitrariness of the "conservative" 25 percent reduction is troubling. As before, Smith "provides no explanation or method for calculating the conservative factor based on data or theories originating from economic research, leaving the Court with no option but to conclude that the conservative value is derived through unmethodical, subjective 'eyeballing.'" . . . Smith admits that he is conservative when approaching "matters that don't have a high degree of specificity." (Doc. 216-1, Ex. A at 153:2-4.) Although experts need not be certain, Smith does not point to anything justifying the manner in which he exercises this conservative discretion.

Judge Wake also responded to Smith’s claim that approximately 224 state and federal courts had admitted Smith’s hedonic damages testimony, as follow:

Starling points out that Banner did not offer a rebuttal expert opinion on Smith's methodology. The law does not require it to offer such a witness. Starling also posits, based on Smith's declaration, that Smith's "hedonic damages testimony has been allowed by approximately 224 state and federal courts around the country." (Doc. 230 at 12.) Yet Starling does not demonstrate that any of those courts discussed or considered the cases discussed above and in Banner's briefing. He does not describe Smith's role in those 224 cases or the testimony that Smith gave.

Banner Health also challenged Smith’s testimony about the lost earnings of the plaintiff. Smith’s testimony about front pay was excluded on the basis that front pay is an equitable remedy only to be determined after a jury’s verdict, but that Smith could testify about back pay. 

Case v. Town of Cicero, 2013 U.S. Dist. LEXIS 148565 (N.D. IL 2013). This decision severe  ly limited the hedonic damages testimony of Dr. Stan V. Smith to explaining what hedonic damages mean and the general factors that are ordinarily considered as part of such damages. However, “No dollar amount of damages may be cited, nor may Smith propose any methodology by which the jury should calculate Nicholas’ hedonic damages.”

March 9, 2017

Smith v. Auto-Owner’s Insurance Company, 2018 U.S. Dist. LEXIS 6970 (D. N.M 2018). This was an order of Federal Judge Stephan D. Vidmar that responded to a number of different motions in limine, one of which was a request to exclude “any expert testimony or evidence attempting to quantify hedonic damages.” Judge Vidmar indicated that the plaintiff made no substantive argument in opposition to this or eight other proposed exclusions and granted all nine exclusions asked for by the defendant. The real focus of this order was on testimony by medical providers, which was discussed in greater detail. There was no indication in the decision that the plaintiff had retained an economic expert to testify about hedonic damages.

Burns v. Pohto, 2016 U.S. Dist. LEXIS 193142 (D. CO 2016). This decision involved the wrongful death of a minor subject to Colorado law. U.S. Magistrate Judge Nina Y. Wang described recoverable damages as follows:

The net economic loss, if any, incurred in a wrongful death of a child is the reasonable value of any services that J.B. would have provided and earning he might have made as a minor, together with any support he might reasonably have been expected to provide Plaintiffs after he became an adult, less the expenses Plaintiffs might reasonably have incurred in maintaining J.B. and providing him an education. CJI-Civ. 10:4 (2016). In addition, funeral expenses are also recoverable as economic damages.

March 16, 2018

Ward v. Consolidated Rail Corporation, 2003 Mich. App. LEXIS 1865 (MI App. 2003). This decision involved the question of whether Tier I and Tier II payroll taxes are taxes or contribution made by railroad workers that are analogous to private pension payments in other industries. This court said:

Defendant relies on Norfolk & Western Railway Co v Liepelt, 444 U.S. 490, 493-495; 100 S. Ct. 755; 62 L. Ed. 2d 689 (1980), in which the Supreme Court ruled that in cases brought under the FELA, the jury can be instructed regarding the effect of income taxes on the plaintiff's estimated future earnings. Evidently, defendant analogizes the taxes at issue in Norfolk with the pension contributions in the instant case. Defendant also cites Rachel v Consolidated Rail Corp, 891 F. Supp. 428, 431 (ND Ohio, 1995), in which the court ruled that an economist must deduct pension contributions from his calculations of a plaintiff's projected future earnings. However, in Maylie v Nat Railroad Passenger Corp, 791 F. Supp. 477, 488 (ED Pa, 1992), the court found that "because defendant did not consent to inclusion of the value of the [plaintiff's] pension as an item of damages, it was not error to refuse to reduce plaintiff's lost wages by the amounts he would have had to pay in railroad retirement taxes." The court stated that "it would be inappropriate to deduct from plaintiff's lost salary taxes that, in effect, represented plaintiff's contribution toward a pension without including, as an item of damages, the value of that pension." Id. Here, there is no evidence that defendant consented to the inclusion of lost pension benefits as an item of damages. Therefore, under Maylie, no error occurred in the instant case. Moreover, the [*31]  Maylie court noted that the Liepelt case was inapplicable to the issue of railroad pension contributions. Id. at 487. See also Norfolk & Western Railway Co v Chittum, 251 Va 408, 416; 468 S.E.2d 877 (1996).