DecisionsDeveloped2020

January 27, 2020

Gibson v. United States, 2020 U.S. Dist. LEXIS 8656; 2020 WL 241550 (D. MT 2020). This wrongful death decision by Federal Judge Brian Morris excluded loss of enjoyment of life (hedonic damages) testimony of Dr. Ann Adair, but permitted her testimony regarding the decedent’s loss of earnings and the value of the decedent’s lost household services. Adair testified that the U.S. Department of Transportation used an average figure of $9.6 million for the value of a human life in 2016 and that the Environmental Protection Agency (EPA) value valued a human life at $7.4 million in 2006, both of which led to her conclusion that the value of a human life was $9.4 million in October, 2019, when this case was tried. Judge Morris cited Dorn v. BNSF, 297 F. 3d 1183 (9th Cir. 2005), Mercado v. Ahmed, 974 F. 2d 863 (7th Cir. 1992), and Starling v. Banner Health, 2018 U.S. Dist. LEXIS 28747 (D. AZ 2018), in concluding that “Adair’s testimony failed to satisfy the standards of reliability and relevance as required under FRE 702 and Daubert.”

Saulsberry v. Savannah River Remediation, 2020 U.S. Dist. LEXIS 8578 (D. S.C. 2020). This decision included a ruling by U.S. District Court Judge J. Michelle Childs not to award to avoid the negative tax consequences of receiving a lump-sum backpay award. Judge Child explained the concept of negative tax consequences, citing several cases that had allows such awards, but pointed out that the calculation of such awards was complicated and that in Enshelman v. Agere Sys., 554 F.3d 426 (3rd Cir. 2009) the plaintiff had provided a sworn affidavit from a forensic economist making the necessary calculations and that “articulated a clear methodology for the court to follow.” This case had gone on for 17 years to that any such calculation was complex. The plaintiff had submitted a simple table by Sanford Lloyd, CPA, but had not testified in the trial and had not explained his calculations in detail.

February 17, 2020

Choudry v. Fowlkes, 243 Md. App. 75; 210 A.3d 107 (Md. App. 2019). This decision involved a defense challenge to a jury award to the mother of an adult decedent child (aged 22) who had been living with her mother before her death of $500,000 for the lost household services of the decedent child. The Maryland Court of Special Appeals agreed with the defense and reversed the award. The Court held that in order to claim a loss of household services in Maryland, a plaintiff must:

(1) identify domestic services that have a market value; (2) have reasonably expected the decedent to provide the identified services, which-absent the decedent'slegal obligation to provide the services-will typically require evidence showing that the decedent was regularly providing the services in the past; and (3) present some evidence concerning the duration the decedent would have likely provided the services.

The Court considered the plaintiff’s evidence in light of each of those requirements and held that the award for lost household services should be reversed.

February 18, 2020

Jennings v. Nash, 2020 U.S. Dist. LEXIS 26611 (W.D. MO 2020). Hedonic damages testimony of Stan V. Smith was excluded under the Daubert standard with citations to a number of other federal district court decisions reaching the same conclusion.

Adriatic Marine, LLC v. Harrington, 2020 U.S. Dist. LEXIS 26514 (E.D. LA 2020). Glenn Hebert, as the vocational expert for Harrington, had calculated Harrington’s 2019 income as $85,684. Adriatic Marine submitted tax returns showing that Harrington had only earned $36,993 in 2019, resulting in a substantial overstatement of Harrington’s losses. Based on this error, Hebert was excluded from testifying. G. Randolph Rice, an economic expert whose report was based on Hebert’s calculation, was also excluded from testifying. A request from Harrington to submit corrected reports was also denied.

February 25, 2020

Erickson v. Biogen, Inc., 2020 U.S. Dist. LEXIS 31304 (W.D. WA 2020). The decision in this case involved a doubling of the plaintiff’s back pay award of $390,500 based on the False Claims Act (FCA) of the federal government. Federal District Judge John C. Coughenour also reduced the front pay award from a period of 15 years to a period of five years in a remittitur. The result was that plaintiff’s calculation of the required amount for tax neutralization (“gross up”) had to be reduced. Judge Coughenour said:

FCA doubling of back pay is punitive, not compensatory, so it should be excluded from any tax gross up. And assuming Plaintiff accepts the remittitur, the amended past and future economic damages award is now $1,119,640. Thus, any potential tax gross up must be recalculated. Therefore, the Court GRANTS Plaintiff's request for a tax gross up and ORDERS Plaintiff to submit a new calculation of the gross up on only on the past economic damages, not the FCA doubling of back pay.

March 1, 2020

Markle v. United States, 2015 U.S. Dist. LEXIS 95610 (N.D. WV 2015). This decision did not focus on the Gamboa-Gibson work-life tables, by defense economic expert Daniel Selby relied upon participation rates from the 2010 Gamboa-Gibson Worklife Tables to reduce the number of hours Patricia Markle was assumed to work after her injury, thereby reducing his previous estimate of damages. There was no challenge from the plaintiff to this use of the Gamboa-Gibson tables, other than the lateness of its disclosure. Judge Gina Marie Groh rejected plaintiff's motion to exclude Selby's revised report on the ground of late disclosure.

Bennett v. United States, 2018 U.S. Dist. LEXIS 226328; 2018 WL 6265092 (C.D. CA 2018). The defense challenged the vocational expert opinions of Philip Sidlow of Vocational Economics, Inc., on several grounds. Judge Dolly M. Gee granted the defense motion to exclude Sidlow's business evaluation of Bennett's business on the ground that Sidlow "does not have any certification or accreditation in business valuation or accounting, and he has ever taught economics at any level." Sidlow was also excluded from testifying that using only Bennett's post-injury earnings to determine post-injury earning capacity. However, Sidlow was permitted to testify using the Gambo-Gibson tables regarding reduced work-life expectancy of Bennett following his injury.

March 29, 2020

Banks v. Eighth Judicial Dist. Court of Nev., 2020 Nev. App. Unpub. LEXIS 30; 2020 WL 283402 (NV App. 2020). This one page decision denies a writ of mandamous challenging, in part, an exclusion of portions of the testimony of economic expert Stan V. Smith. In denying the write, the Court noted that:

[T]he district court’s order does not foreclose the plaintiff’s expert, Dr. Smith, from testifying at trial but only imposes certain conditions on his doing so, including that he lay a detailed foundation for his opinions.

The challenged order of Susan H. Johnson in Banks v. Diaz (Case No. A-18-773248-C, Dept. No. XXII, District Court of Clark County, Nevada) dated December 4, 2019 had allowed Smith to testify about Banks past loss of earnings, but not to speculate about future wage loss or the value of housekeeping and home management services with having a factual basis. Smith was also precluded from testifying about Banks’ alleged loss of value of life without having a basis other than an interview from Smith’s staff and speculation that Banks had lost 20 to 40 percent of his ability to lead a normal life.

April 10, 2020

Greenberg v. Bd. of Supervisors, 2020 U.S. Dist. LEXIS 60725 (E.D. LA 2019). This was a ruling excluding testimony by economic expert Stan V. Smith based upon his second report in this case. Defense economic experts Ed Comeaux and Charles Theriot had detected a more than $500,000 mistake in Smith’s calculations for one of two scenarios in his first report. As a result, Smith was limited to testifying about only one of his two scenarios in that report. Smith’s second report introduced two different scenarios, but was rejected based on being filed past the deadline for reports.

April 29, 2020

Michon v. Campbell, 2019 U.S. Dist. LEXIS 230156 (N.D. IL 2019). The hedonic damages testimony of Dr. Stan V. Smith was excluded by Federal District Judge Harry D. Leinweber. Michon had asked the Court to adopt the "middle ground" approach taken in Richman v. Burgeson, 2008 U.S. Dist. LEXIS 48349 (N.D. Ill. June 24, 2008) of allowing Smith to testify about the general nature of hedonic damages without offering quantification. Judge Leinweber declined to do so and said:

As many, if not most, courts in this District and elsewhere have reasoned, Dr. Smith's methodology for ascertaining hedonic damages is not scientifically reliable. This Court agrees with that point and is not inclined to allow the testimony of hedonic damages generally when the underlying methodology is unsound. Moreover, such testimony will serve only to confuse the jury. The Court thus adopts the view held by the majority of courts in this District and finds that Dr. Smith's proffered testimony on hedonic damages fails to satisfy Rule 702 and Daubert. Accordingly, Defendants' Motion to Exclude Expert Testimony (Dkt. No. 125) is granted.

May 22, 2020

Lewis v. Lead Indus. Ass’n, 2020 IL 124107 (IL 5-21-2020). This decision was regarding a narrow collateral source issue. Plaintiffs in a class action sought to recover the costs of blood lead screening, which their children underwent as required by the Lead Poisoning Prevention Act of the state of Illinois. The children did not suffer an injury and parents of the children were not charged for the costs of blood lead screening, but the need for blood lead screening was created by alleged negligence of the defendants. Plaintiffs argument was that payment for the screening was from a collateral source and therefore they should receive the reasonable value of the screening costs even though those costs were paid by a third party. The Illinois Supreme Court held that the absence of a physical injury precludes a tort action that alleges only an economic injury and no physical injury or property damage. The trial court had ruled that the absence of a physical injury precluded the tort action. The Illinois Court of Appeals had reversed the trial court. The Illinois Supreme Court was reversing the decision of the Illinois Court of Appeals and affirming the trial court decision.

June 29, 2020

Anderson v. Portercare Adentist Heath Sys., 2020 Colo Dist. LEXIS 231 (CO Dist. 2020). This decision of Federal District Judge Elizabeth Beebe Volz granted a defense motion to exclude the "valueof life/loss of enjoyment of life" (hedonic damages) opinions of economic expert M. Brian McDonald. The decsion relied heavily on Scharrel v. Wal-Mart Stores, 949 P2d 89 (CO App. 1997), Smith v. Jenkins, 732 F3d 51 (1st Cir 2013), and Flowers v. Lea Power Partners, 2012 WL 1795081 (D. NM 2012). McDonald's testimony would have been that a "statistical life" in the United States is worth between $5.3 and $13.4 million, with $9.6 million as a "central tendency." McDonald offered opinions about lost earning capacity, household services and cost of a life care plan, which had not been challenged.

August 3, 2020

Smith v. Chrysler Group, 2017 U.S. Dist. LEXIS 232222 (E.D. TX 2017).This decision of Federal Magistrate Judge Keith F. Giblin excluded the "per diem" economic testimony of Dr. Gary D. Kronrad regarding mental anquis and loss of companionship and society and Kronrad's testimony about household services because Kronrand's testimony about household services made no effort to ascertain the actual service contributions of the decedent or the decedent's health conditions prior to his death.

August 4, 2020

Stillman v. Wal-Mart Stores, 2020 U.S. Dist. LEXIS 136205 (W.D. MO 2020). This decision granted a defense motion to preclude the plaintiff from presenting evidence of the amount billed by third-party providers following bumping his head on an overhead door in a Wal-mart Garden Center. Federal Judge Greg Kays said:

Even if evidence of the amount billed was not precluded by § 490.715, the Court would reach the same result under a different analysis. Pursuant to Federal Rule of Evidence 403, a court may exclude relevant evidence if its probative value is substantially outweighed by a danger of confusing the issues or misleading the jury. Evidence of the amount Plaintiff was billed may be relevant to the actual cost of his medical treatment—the amount billed is usually at least loosely related to the actual cost of medical care received. But the probative value of this evidence here is substantially outweighed by the danger of confusing the issue or misleading the jury about what the actual cost of the care received was. When a hospital issues a $200,000 bill for medical care and the bill is completely satisfied by a $70,000 payment, the actual cost of the care received is $70,000. Any evidence or argument to the contrary is confusing and misleading.

August 12, 2020

Martinez v. Cont'l Tire the Ams., 2020 U.S. Dist. LEXIS 147720 (D. NM 2020). This memorandum of U.S. District Judge Kea W. Riggs limited the hedonic damages testimony of Dr. M. Brian McDonald as follows:

Dr. McDonald may testify about the definition of hedonic damages and the components of life that may be considered in considering hedonic damages but may not quantify those damages or provide a range of values attributable to a statistical life, or "benchmarks."

McDonald was permitted to testify about lost earnings and lost household services of the plaintiff.

Murphy v. Sandoval Cty., 2019 U.S. Dist. LEXIS 229986 (D. NM 2019). This memorandum decision of U.S. District Judge Scott W. Skavdahl limited the hedonic damages testimony of Dr. M. Brian McDonald as follows:

[T]his Court will grant County Defendants' Motion to the extent that while Dr. McDonald may discuss the concept of and factors to be considered in determining hedonic damages, he shall not attempt to place any dollar figure for or quantify hedonic damages and will limit any opinion testimony accordingly.

Dr. McDonald was permitted to testify about lost earnings without limitation.

Griego v. Douglas, 2018 U.S. Dist. LEXIS 26933; 2018 WL 1010277 (D. NM 2018). This memorandum opinion of United States Magistrate Judge Karen B. Molzen limited the hedonic damages testimony of Dr. M. Brian McDonald, as follows:

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.

McDonald was permitted to testify about lost earnings and lost household services of the plaintiff.

August 13, 2020

Millward v. Bd. of Cty. Comm'rs of Teton, 2018 U.S. Dist. LEXIS 23107 (D. WY 2018). Federal District Judge Scott W. Skavdall limited the hedonic damages testimony of Dr. Allan Parkman as follows:

[T]he Court finds that Parkman is qualified to offer expert testimony as to the concept of hedonic damages, to the extent it relates to any viable damage claim under 42 U.S.C. § 1983. He may not however offer any monetary value, specific or otherwise of Mr. Millward's hedonic damages or express any opinion testimony regarding a numeric formula such as "benchmark figure," guideline," or "range of values" to be used in calculating such damages. See Fancher v. Barrientos, 2015 U.S. Dist. LEXIS 179990, 2015 WL 11142939 (July 1, 2015) (citing BNSFRy. Co. v. LaFarge Southwest, Inc., supra.)

September 17, 2020

Rochkind v. Stevenson, 2020 Md. LEXIS 414 (MD 2020). This decision was used by a 4 to 3 majority to adopt Daubert v. Merrell Dow Pharmaceutals, 509 U.S. 579, 113 S. Ct. 2786 (1993), and progeny, as the standard for admission of expert testimony, replacing the combination of Reed-Frye and Maryland Rule 5-702. The immediate decision was to reverse the Maryland Court of Special Appeals and remand the decision to the trial court for retrial for the sixth time, in this instance on the basis of testimony of Cecelia Hall-Carrington that lead paint in Rochkind's rental property was a significant contributing factor in Stevenson's neurological problems, including ADHD. The decision went further than Daubert by increasing the four tests of Daubert to ten tests, including:

    (1) whether a theory or technique can be (and has been) tested;
    (2) whether a theory or technique has been subjected to peer review and publication;
    (3) whether a particular scientific technique has a known or potential rate of error;
    (4) the existence and maintenance of standards and controls;
    (5) whether a theory is generally accepted;
    (6) whether experts are proposing to testify about matters growing naturally and directly of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying;
    (7) whether the expert has unjustly extrapolated from an accepted premise to an unfounded conclusion;
    (8) whether the expert has adequately accounted for obvious alternative explanations;
    (9) whether the expert is being as careful as he [or she] would be in his [or her] regular work outside his [or her] paid litigation consulting; and
    (10) whether the field or expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give.

The first trial in this litigation in January 2014 included an eight day Reed-Frye hearing that determined that the Gamboa-Gibson work-life expectancy tables were not generally accepted by forenic economists and that Dr. Michael Conte could not testify using those tables. During this hearing, economic experts Michael Brookshire, Gary Skoog, Chris Pflaum, and Frank Slesnick testified forthe defense. Economic experts Michael Conte and David Gibson testified for the plaintiff.

Doe v. Colgate Univ., 2020 U.S. Dist. LEXIS 75989 (N.D. N.Y. 2020). In this case, a Colgate male student was accused of raping a female student and sued for damages based on the violation of his right to defend himself. Stan Smith calculated hedonic damages for the accused male. Federal Judge Frederick J. Scullin, Jr., cited a number of other decisions excluding hedonic damages calculations and excluded Smith's proposed hedonic damages testimony.

September 22, 2020

Slater v. Jelinek, 2008 U.S. Dist. LEXIS 136270 (D. NE 2008). By agreement of the parties in this case, loss of guidance services, loss of enjoyment of life and loss of society and relationship calculations of Dr. Stan V. Smith were excluded by senior judge Lyle E. Strom.

September 23, 2020

Santillan v. Schaafsma, 2006 U.S. Dist. LEXIS 108851 (C.D. IL 2006). This decision extensively cited Ayers v. Robinson, 887 F. Supp, 1049 (1995) in excluding the hedonic damages testimony of Dr. Stan V. Smith. This decision also provides a good review of decisions for and against the admission of hedonic damages testimony as of 2006.

Hart v. Corrections Corporation of America, 2014 U.S. Dist. LEXIS 197426; 2014 WL 12670796 (D. NM 2014). Federal District Court Judge M. Christina Armijo granted defense motions to limit the testimony of Dr. M. Brian McDonald in two ways but permitted McDonald to explain the general concept of hedonic damages. McDonald was precluded from offering his opinion that the reasonable range for the value of life was from $5.0 million to $6.0 million. McDonald was also precluded from offering rounded present values for a life care plan.
December 3, 2020

Budagov v. Char, 2020 N.J. Super. Unpub. LEXIS 1869 (N.J. Super. 2020). Judge De La Cruz denied a defense motion to exclude the testimony of plaintiff economic experts Kristin Kucsma and Kenneth Betz regarding loss of household services, but granted a defense motion to exclude their testimony regarding loss of companionship services of a man with double amputation of his legs. Kucsma and Betz had provided a total value for the household services of the injured plaintiff and estimated that 80% to 100% of his ability to provide household services had been lost. The decision did not discuss how the total value was calculated, but indicated that the defense had also provided an alternative expert report forthe loss of household services and would also be permitted to testify about that expert’s opinions. The defense expert was not named. With respect to the claim for loss of the plaintiff’s companionship, Judge De La Cruz said:

The economists’ opinion on these claims for loss of companionship services are all based on activities that are non-economic in nature. These non-economic claims are within the purview of the jury's discreet evaluation, as they involve evaluation and credibility findings regarding the loss of intimacy, companionship, marital relations, and acts of love that are unique and individual to this couple. . .These non-economic claims are based on plaintiffs' relationship and are not items that are within the purview of an economist to place a price tag on.
December 12, 2020

Synder v. Bank of Am., N.A., 2020 U.S. Dist. LEXIS 206437 (N.D. CA 2020). This case involved a plaintiff not obtaining a National Mortgage Settlement (NMS)-Compliant loan modification order. Dr. Stan V. Smith was excluded from testifying based on incorrect assumptions and lack of specialized knowledge about the NMS. Smith projected that the plaintiff incurred $373,235 in lost time, and between $582,563 and $1,165,124 in loss of enjoyment of life (hedonic damages). The court also cited multiple cases in which Smith’s testimony has been rejected.

Wood v. Paccar, Inc., 2020 U.S. Dist. LEXIS 136846 (N.D. IA 2020). The defense moved to exclude Dr. Stan V. Smith’s testimony regarding loss of enjoyment of life (hedonic damages), household services, and loss of wages and benefits. U.S. Magistrate Judge Mark A. Roberts excluded Smith regarding hedonic damages but denied excluding Smith’s testimony regarding household services and loss of wages and benefits.

December 15, 2020

Martinez v. Cont’l Tire of the Ams., LLC, 2020 U.S. Dist. LEXIS (D. NM 2020). Federal Judge Kea W. Riggs limited the hedonic damages testimony of Dr. Brian McDonald, as follows:

The majority of cases in this district limit expert testimony that attempts to place a dollar value on hedonic damages as unreliable, irrelevant, or unhelpful to the jury. ("Generally, New Mexico United States District Judges have excluded or limited expert testimony on hedonic damages.") . . . ("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 is inadmissible and does not meet the relevance and reliability factors set forth in Daubert and its progeny.") The Court agrees with these cases and concludes that attempts by an expert to quantify the hedonic value of life is unreliable, irrelevant, or does not assist the jury.

The Court, however, permitted McDonald to explain the concept and factors involved in determining hedonic damages, but without offering any quantitative values, including ranges and benchmarks. Judge Riggs also denied a defense motion to exclude McDonald’s household services testimony.

December 18, 2020

Stillman v. Wal-Mart Stores, 2020 U.S. Dist. Lexis 136205 (W.D. MO 7-31-2020). This decision held that the plaintiff could not introduce amounts originally billed by third party providers after a personal injury, but must claim only amounts paid in satisfaction of those bills.