The primary flaw in this underlying assumption is that it refuses to acknowledge that those who are wrongfully denied health benefits suffer damage even if they do not incur direct out-of-pocket medical expenses during that particular time period. In its ruling, the trial court pointed to studies showing that people who do not have health insurance do not obtain routine preventive care, which results in deferred medical problems. More significantly, studies show that those without health benefits even put off necessary care for urgent medical issues. Based on these studies, the trial court concluded that the State's method of calculating damages would result in a “great understatement” of the actual damages.

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. See, e.g., id. 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.

The application of section 538.220.2 is unconstitutional as applied to Williams because payment of future medical damages at a different interest rate than the interest rate used to compute the present value of the jury's award deprives Williams of the full value of the award and violates her due process rights.

[P]laintiff's retirement pension benefits have not been shown to replace the lost future earnings  and health and welfare benefits for which the jury awarded him $80,000.  Rather, those benefits are paid in lieu of ordinary pension benefits and do not necessarily correspond to any future earning capacity plaintiff might have had.  Indeed, it is undisputed that, notwithstanding his retirement as an ironworker, plaintiff would have been free to earn income from his labor in other capacities without loss of his disability retirement pension benefits.  Thus, it cannot be said that the disability pension benefits plaintiff expects to receive are duplicative of the award he received for lost future earnings.

The Court, therefore, will allow Patterson to describe hedonic damages, but not to quantify Walker's hedonic damages, e.g., Patterson may not state that S. Walker's "lost value of the pleasure of life is $102,707" or that she lost $10,000.00 in her value of life, or discuss his worksheet showing his calculations for such figures.

Plaintiff's vocational rehabilitation expert and Certified Life Care Planner, Dr. Cornelius Gorman, has developed a life care plan for plaintiff that includes $692,500 for financial management. Following the April 29, 2016 pretrial conference, the Court issued an order stating that it "will not permit plaintiff to argue entitlement to financial management damages at trial." It further ordered that "[i]f plaintiff objects to this ruling, he shall brief the issue to the Court.  Plaintiff has done so. He argues, in short, that "he is entitled to put on evidence in the form of expert testimony as to whether he will need financial management and why [because], [a]s a practical matter, plaintiff needs financial management assistance if he is awarded a large amount of money." []

Even as a matter of first impression, it is clear that such damages are not permitted in this case. This is not a case in which plaintiff lacks the mental capacity to manage his funds or a case in which the accident diminished plaintiff's mental capacity to manage his funds. Plaintiff may be compensated for medical expenses, for loss of earning capacity, for pain and suffering, and for other damages that defendant caused. Even if the need for financial management can be considered as "damages," a finding this Court does not make, plaintiff cannot be compensated for damages not caused by defendant's conduct. The Court's order regarding financial management stands and plaintiff's claim for such damages should be dismissed.

Under New Jersey law, in cases involving the death of a child, plaintiffs may recover for "the pecuniary value of the child's companionship, including his or her advice and guidance, as the parents grow older. With respect to companionship, "the jury's focus is on the existence of [the parent-child] relationship and the value of the advice, guidance and counsel that inhere in it." "Given a normal parent-child relationship, a jury could very well find it is sufficiently probable, had the child lived, that at some point he or she would have rendered . . . companionship services . . . and advice, guidance and counsel[.]"

Once the parent-child relationship is established, juries should employ "an objective standard for calculating the value of advice, guidance and counsel . . . confined to what 'the marketplace would pay' for lost household services or the services of a business adviser, therapist or trained counselor." "[W]hile pecuniary losses under N.J.S.A. 2A:31-5 cannot be premised on speculation, an exact calculation of the plaintiff's damages may not be feasible in every case."

Loss of earning capacity is the loss of the ability to earn in the future." Id. In his report, Scott provides a base rate of income that Jordan would have earned but for this accident. Scott uses the national average for earnings of truck drivers to determine what Jordan would have earned but for this accident and provides a calculation for Jordan's past "lost earning capacity" instead of lost earnings. However, past lost earning capacity is not a recoverable element of damage under Arkansas law. Accordingly, the Court will not allow Scott to testify as to any past "lost earning capacity.

Dr.[Rebecca] Summary proposes to testify regarding Krista's loss of life damages using a method known as the "value of a statistical life." Arkansas law provides that in addition to other elements of damages, "a decedent's estate may recover for the decedent's loss of life as an independent element of damages." Ark. Code Ann. § 16-62-101(b). The Arkansas Supreme Court has construed the statute to allow for damages that a decedent would have placed on her own life. Durham v. Marberry, 356 Ark. 481, 492, 156 S.W.3d 242, 248 (2004). An estate seeking loss of life damages must present some evidence that the decedent valued her life from which a jury could infer that value and on which it could base an award of damages. One Nat'l Bank v. Pope, 372 Ark. 208, 214, 272 S.W.3d 98, 102 (2008).
   
No court applying Arkansas law has ruled as to whether expert testimony may be admitted to assist the jury in determining loss of life damages. An overwhelming majority of courts from other jurisdictions, however, have concluded that the methodology adopted by Dr. Summary does not meet the Daubert standards and may not be admitted into evidence. Smith v. Jenkins, 732 F.3d 51, 66 (1st Cir. 2013); Kurncz v. Honda North America, Inc., 166 F.R.D. 386, 388-89 (W.D. Mich. 1996). Dr. Summary explains in her report that the value of a statistical life methodology is based upon the trade-off between risk and money. It involves the assignment of monetary values to death risks based upon how much persons are willing to spend for a small reduction in the risk of death. Dr. Summary's value here is based upon government studies used to assign values to human lives in conducting cost/benefit analyses for potential government projects. The First Circuit in Smith has explained why this is not a reliable methodology for determining the value of a human life. 732 F.3d at 66-67. In addition to being unreliable, Dr. Summary's analysis would not assist the jury in determining what value Krista Hannibal placed on her own human life. It has nothing to do with Krista specifically. Cf. id. at 67 ("Even assuming that Dr. Smith's formula is a reliable measure of the value of life, it was of no assistance to the jury in calculating Smith's loss of enjoyment of life.").

 Dr. Summary will not be permitted to testify regarding loss of life damages based upon the value of a statistical life.

Dr. Smith's opinions are marinated in a proprietary blend of theoretical "studies" (developed for use in other contexts), and peppered with arbitrary "benchmarks" a la ipse dixit, and, finally, tabulated with present value spreadsheets to give the illusion of forensically precise calculations in D.M.'s specific case. Beyond the illusion, the reality is more akin to hocus pocus. And this Court is certainly not alone in finding Dr. Smith's methodologies suspect and unreliable.1Link to the text of the note Dr. Smith's calculations are based on arbitrary figures and assumptions that are unrelated to the facts of the case. An expert's calculations should be excluded when they are "so fundamentally unsupported that [they] can offer no assistance to the jury." Wood v. Minn. Mining & Mfg. Co., 112 F.3d 306, 309 (8th Cir. 1997) (citations omitted).
   
The problem here is not so much whether Dr. Smith reviewed and incorporated facts from D.M.'s medical findings, as it is Dr. Smith's unreliable methodology--which cannot be properly applied to the facts in this case, at least not in any meaningful or reproducible manner.

According to Dr. Smith, Soria could have borrowed as much as $60,000 in year 2016 dollars. (Dkt. 66-1 [Declaration of Dr. Stan V. Smith] Ex. 1 [Expert Report, hereinafter "Smith Rep."] at 5.) Because Soria's credit score declined from 735-740 to 524, however, Soria would have to pay a higher interest rate to obtain this line of credit. (Id. at 4-6.) Based on a peer-reviewed article that Dr. Smith coauthored, Dr. Smith estimated Soria would pay an increased 12 percent per year in costs as a result of his lower credit score. (Id.) The increased cost would last for seven years, the length of time a delinquency remains on a credit report. (Id.) Based on this, Dr. Smith calculated Soria's loss of credit expectancy to be $28,252.

BNSF further argues that Kowalewski's entire award should be taxed as earned income and that amounts be withheld to satisfy taxes required by the Railroad Retirement Act (RRTA). FELA damages for lost wages qualify as taxable compensation under the RRTA. See  BNSF Ry. v. Loos, No. 17-1042, 2019 WL 1005830, at *8 (U.S. Mar. 4, 2019). In this case, however, the jury awarded Kowalewski $15,343,753, but none of that amount was designated as wage loss on the special-verdict form. As such, none of the award need be withheld.

We hold, in a contested case, a party (typically a defendant) seeking to reduce an award of future damages to present value bears the burden of proving an appropriate method of doing so, including an appropriate discount rate. A party (typically a plaintiff) who seeks an upward adjustment of a future damages award to account for inflation bears the burden of proving an appropriate method of doing so, including an appropriate inflation rate. This aligns the burdens of proof with the parties' respective economic interests. A trier of fact should not reduce damages to present value, or adjust for inflation, absent such evidence or a stipulation of the parties.

Although an award to compensate for an income-tax disparity for lost future wages is inherently speculative, as is any award for lost future income, we see no reason why this factor cannot be established with sufficient certainty. As the trial court noted, plaintiff's expert provided “detailed testimony regarding his calculations of (i) plaintiff's total tax liability had plaintiff not been terminated and had he continued to earn income, (ii) the amount plaintiff would have to pay in taxes if awarded the computed loss of earnings (back and front pay), and (iii) the tax neutralization amount, i.e., the amount of money needed to generate a net amount equal to the adverse tax consequence.” We agree with the trial court that the foundational information relied on by the expert, including the applicable tax rates, provided a reasonable basis for his opinions.

Amerihua []challenges that White is not qualified to testify as an expert in this case, arguing that he does not meet any of the purported "Gold Standards" for expert testimony set forth by their own rebuttal expert, Stan Smith. Def. Br. at 14.  The argument goes that because White does not have a doctorate degree, has never taught a college course, and has not authored a university textbook, he is not a witness "qualified as an expert by knowledge, skill, experience, training, or education." Def. Br. at 14; Fed. R. Civ. P. 702. But the list of factors picked by Amerihua are not conclusive and are most definitely not required by Daubert and Kumho Tire. [] White has been an independent financial consultant since 2003, and before that, he held senior positions at Ernst & Young as a certified public accountant. R. 54, DSOF Sealed Exhibits Exh. V, White Report (sealed) at 36. More importantly, he has over 40 years of professional experience with specialization in valuation and damage analyses. Id. He has a bachelor's degree in accounting and a master's degree in business administration, on top of passing the CPA examination. Id. He has similarly served as an expert in myriad cases. Id. Just because White has focused his career on applying his skills to concrete cases rather than teaching courses or publishing articles does not disqualify him from expert analysis—nor does Rule 702 suggest as much. See Kumho Tire, 526 U.S. at 148-49; Tuf Racing, 223 F.3d at 591.

Dr. Rice relied on Ms. Seyler's figures that were the result of her consideration of Mr. Bland's seasonal work history and prior earnings. In essence, Dr. Rice adopted Ms. Seyler's work product. He also was provided Mr. Bland's pre-injury tax returns. After having considered the past tax return earning history of Mr. Bland, and adopting the lost earning capacity determination of Ms. Seyler, which alsoincluded her own consideration and estimation of Mr. Bland's work and earning history, Dr. Rice gave a range of values based upon the potential length of Mr. Bland's working life and the annual lost earning capacity figures provided by Ms. Seyler. Dr. Rice calculated that Mr. Bland's losses ranged from $483,021 to $595,863, depending on how much longer he expected to work. In sum, Dr. Rice [Pg 5] provided a lump-sum value equal to the total of Mr. Bland's lost earning capacity through his remaining life based upon the annual earning capacity figures determined by Ms. Seyler.

[T]he Court finds that Dr. Gamboa reliably applied his principles and methods to the facts of this case. Fed. R. Evid. 702(d). The Court disagrees with Defendant's argument that Dr. Gamboa failed to consider Plaintiff's unique characteristics, such as his driven nature. To the contrary, Dr. Gamboa considered Plaintiff's drive, intelligence, and educational goals in opining that Plaintiff will likely achieve a baccalaureate or higher level of education. He also considered other specific characteristics, such as Plaintiff's age, gender, and injury severity, in reaching his lost-earning-capacity opinion. The Court rejects Defendant's contention that Dr. Gamboa's opinion is irrelevant because it is insufficiently tailored to Plaintiff's circumstances.

This Court declined to give an instruction to the jury on the tax gross up and similarly declined to include a line of damages on the verdict form for such relief. Nonetheless, the Court allowed Wooten's forensic economist, [Jeffrey] Opp, to present exhibits and testimony on the amount he believed necessary to insulate Wooten from the tax consequences of a one-time payment of the total jury award. Additionally, the Court allowed Wooten to present evidence and argument on this issue throughout the trial. As has been discussed above, the jury awarded Wooten front pay in the amount of $1,407,978, a number between Opp's proposed front pay awards of $1,329,014 for approximately 30 years of BNSF work and $1,546,143 for approximately 37 years of work at BNSF. (Docs. 283-155 at 2; 289 at 4.) [] [T]he Court cannot be positive that the jury, after hearing Opp's testimony and Wooten's argument, did not take the tax consequences of a lump sum payment into account—the award falls between Opp's calculations of the loss amount.

Smith provides no justification for which Crawford’s time should be valued at a rate similar to that which is paid to bookkeepers, clerks, secretaries and assistants, as opposed to, for instance, paralegals, human resource officers or customer service agents.

Smith’s original report regarding one of the deceased passengers adequately explained Smith’s opinions, the basis for those opinions, and his reasoning, and plaintiffs state without contradiction that the supplemental reports for the other twenty-five follow a similar format. The apparent flaws exposed by Sunstrand may provide ample ammunition for cross examination of Smith, and they conceivably provide a basis for challenging some or all of his testimony via a motion in limine, but they are not of sufficient magnitude to warrant striking the original or supplemental reports or barring Smith from testifying at trial.

The district court did not abuse its discretion by allowing the testimony of Dr. Horenstein. Rule 702 does not require a defense medical expert to be of the identical medical speciality as the plaintiff's expert. Instead, Rule 702 only requires that an expert possess "knowledge, skill, experience, training, or education" sufficient to "assist" the trier of fact, which is "satisfied where expert testimony advances the trier of fact's understanding to any degree." 29 WRIGHT & GOLD, FEDERAL PRACTICE AND PROCEDURE: EVIDENCE § 6265 (1997). "Gaps in an expert witness's qualifications or knowledge generally go to the weight of the witness's testimony, not its admissibility." Id.; see also Lauria v. Nat'l R.R. Passenger Corp., 145 F.3d 593, 598 (3d Cir. 1998) (holding trial court abused its discretion by excluding testimony simply because the trial court did not deem proposed expert to be the best qualified or because proposed expert did not have the specialization that the trial court considered most appropriate).

The court finds these reductions in Michels' work life expectancy to be unsupported by the record. The Gamboa report suffers from several deficiencies which render it unreliable in assessing Michels' work life expectancy. . . [T]he Gamboa report lumped together without differentiation persons suffering from both mental and physical disabilities. Michels suffers from no mental abnormalities, only physical impairments to his lower left extremity. Finally, while the subjects of the report were required to have at least a five percent whole body impairment or be eligible for social security benefits, the study does not evaluate the work life expectancy of individuals according to whole body disability ratings. Thus, it is not clear whether a person, such as Michels, who suffers from a twenty-five percent whole body impairment will have a reduced work life expectancy equal to the mean reduced work life expectancy of subjects in the Gamboa report. Therefore, the court will disregard Sandberg's reductions for work life expectancy. Indeed, Michels' own vocational rehabilitation expert, Mr. Marquardt, testified that based upon his current condition he did not believe Michels suffered a reduced work life expectancy. Equally as important, there wassimply no medical evidence that Michels' present or expected future medical condition would reduce his work life expectancy. 

[E]ven if hedonic damages were appropriate in an FCRA case, plaintiff has not shown that Dr. Smith's testimony is necessary or reliable in assisting the trier of fact to understand or determine a fact in issue in this case. See Saia v. Sears Roebuck & Co., 47 F. Supp. 2d 141, 149 (D. Mass. 1999) (expert testimony on hedonic damages, purporting to calculate injured plaintiff's loss of enjoyment of life based on "willingness to pay" model which considered consumer behavior, wage risk premiums, and regulatory cost-benefit analysis, was unreliable whether evaluated as scientific or as "technical or other specialized" knowledge) (citing to various federal courts rejecting expert testimony on hedonic damages, in particular Dr. Smith's); see also Allen v. Bank of Am., N.A., 933 F. Supp. 2d 716, 734 (D. Md. 2013) ("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."); Kurncz v. Honda N. Am., Inc., 166 F.R.D. 386, 388 (W.D. Mich. 1996) ("The willingness to pay model on the issue of calculating hedonic damages is a troubled science in the courtroom, with the vast majority of published opinions rejecting the evidence."). For these reasons, Dr. Smith's testimony regarding hedonic damages will be excluded.

[M]any economists commonly rely on studies which estimate the time spent on household services, taking into account the size of the family, whether each family member works, their age, etc. - one such study being Dollar Value of a Day: 2007 Dollar Valuation, Shawnee Mission, Kansas, 2011. 

Dr. Carter's analysis declares that Mrs. Ellis would have provided household services valued at $34.77 per day until the expected end of her work life, and then $53.45 per day thereafter until her expected death. Dr. Carter reaches this declaration after referring to figures in publically available valuation studies and government statistics and accounting for inflation. Carter seems to also consider Mrs. Ellis' age, the projected end of her work life, and her projected life expectancy.

[T]he fact that Dallas was single and did not reside with other members of his family does not foreclose the possibility that he did or would have provided household services or entitlement benefits to them. . . Whether the plaintiff can prove these damages is another matter, but that question is for the jury to decide. Dr. Carter's opinion testimony in regard to loss of household services and entitlement benefits will be allowed.