Plaintiffs retained William Patterson, III, an economist, to testify regarding hedonic damages. Mr. Patterson will not testify as to the value of Michael Cheromiah's life. Rather, he will provide a multiplier that takes into account Mr. Cheromiah's life expectancy, the growth rate per year, and the present value of whatever yearly figure the Court chooses (should the Court find that Plaintiffs have prevailed on liability). Mr. Patterson starts with a figure of $10,000 per year because he believes that this number provides a "good multiple." . . . He then figures in the decedent's life expectancy and the growth rate and then discounts back to present value. . .The Court can then apply its own finding as to the value of Mr. Cheromiah's life to the figure provided by Mr. Patterson rather than having to figure out the present value and life expectancy calculations itself. . .   

Mr. Patterson's proposed testimony, then, is very different than the hedonic damages testimony that has not been accepted by courts including this one. See, e.g., Smith v. Ingersoll-Rand Co., 94cv1083 MV/DJS, Memorandum Opinion and Order filed Nov. 17, 1997; McGuire v. City of Santa Fe 954 F. Supp. 230, 231 (D. N.M. 1996); Mercado v. Ahmed, 974 F.2d 863 (7th Cir. 1992). In each of these cases, the expert intended to rely on studies and other government analyses to put a dollar figure on the value of the plaintiff's/decedent's enjoyment of life. See Smith, slip op. at 2 (expert would "offer the jury a valuation of [plaintiffs'] loss of enjoyment of life"); McGuire, 954 F. Supp. at 232 (one expert "arrived at a percentage value of Plaintiff's lost enjoyment of life," and the other expert "address[ed] what the monetary value of the lost enjoyment is worth."). In each of these cases, the courts rejected the testimony because they found that the studies quantifying the value of lost enjoyment of life were widely disparate and not generally accepted. See, e.g., McGuire, 954 F. Supp. at 232-33 (applying Daubert factors).

Dr. Dillman's report discusses "benchmark" values, estimating "hypothetical per diems of $10-$100 per day" suffered by Dorothy Raigosa for lost value of life, and by Plaintiff for loss of consortium. Defendants contend that Dr. Dillman's opinion as to these two areas of damages should be excluded because it is speculative, unreliable and lacking in adequate basis. In support of their position, Defendants proffer the affidavit of George F. Rhodes, Jr., PhD, an economist and Professor of Economics Emeritus at Colorado State University. In his affidavit, Dr. Rhodes states, albeit in greater detail, that there is no reliable or valid scientific procedure or test which can assign a numeric value to a human life, that there is no means by which an attempt to assign such a value can be tested, that no objective criteria exist by which to value human life, that economists have no training which would permit them to place a dollar value on the existence or enjoyment of life, and that none of the procedures used by economist to place a dollar value on life is based on a properly formulated scientific hypothesis and have not been validated or generally accepted.

New Mexico permits the recovery of hedonic damages for wrongful death as well as damages for loss of consortium. Romero v. Byers, 1994-NMSC-031, 117 N.M. 422, 428, 872 P.2d 840, 846 (1994) (wrongful death); UJI 13-1810A. (loss of consortium). However, expert testimony attempting to quantify such damages invades the fact finder's domain. Couch v. Astec Industries, Inc., 2002- NMCA 084, 132 N.M. 631, 636 53 P.3d 398, 403 (Ct. App. 2002). I am persuaded by the weight of authority that rejects expert testimony placing a dollar figure on hedonic damages, finding such testimony unreliable, untestable, failing to meet the requirement of general acceptibility and/or invading the province of the fact finder.

As a neurologist who treated Mrs. Diawara, Dr. [Bruce] Grossinger is certainly qualified to provide expert testimony related to her neurological treatment, neurological injuries, and any ways in which those neurological injuries cause her various limitations. However, even in light of the Third Circuit Court of Appeals' liberal interpretation of the specialized knowledge requirement, neither Dr. Grossinger's experience nor his opinion in this case demonstrate that he is qualified to offer an opinion on how those neurological symptoms or limitations impact her employability. Those opinions are of the sort that should be left to the judgment of a vocational expert.

The Court will permit Dr. McDonald to testify about (a) the current cost of Plaintiff's future medical care and (b) a general explanation of the components of a person's life the jury may consider in deciding whether to award hedonic damages. The Court will not permit Dr. McDonald to testify as to any specific values of any kind, whether by way of suggestion, example, or otherwise.

Cunniff opines that Caldwell suffered hedonic damages because of his wrongful imprisonment in the amount of $749,400. Cunniff Expert Report at 12. Cunniff reaches this figure by examining the cost of "pay-to-stay" jails, which allow incarcerated people who can afford it to pay for a safer, cleaner facility. Id. Prices for these paid options vary by city, usually in the range of $75-$251 for California jails, but Cunniff settles on a rate of $100 per day as a "useful proxy for how much a consumer would pay to still 'enjoy life' while incarcerated." Id. He states that it is a conservative price because presumably people would be willing to pay more to avoid jail altogether. Id. He calls this kind of calculation a "real world" market experiment. Id. Cunniff concludes that Caldwell's hedonic damages are $100 per day multiplied by the 7,494 days he was wrongfully imprisoned, for a total of $749,400.

[I]t is difficult if not impossible to put a monetary value on the loss of a life or the loss of enjoyment of life. See, e.g., Smith v. Ingersoll-Rand Co., 214 F.3d 1235,1244-46 (10th Cir. 2000) (affirming district court's decision to allow expert to testify as to "the meaning of hedonic damages" but not to "quantify hedonic damages")

BNSF . . . 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, 139 S. Ct. 893, 203 L. Ed. 2d 160, 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.

The court concludes that the general damages award is subject to payroll tax under the RRTA.But BNSF isn't pushing for an offset for taxes on the entire $726,000 damages award. BNSF proposes to calculate Little's tax liability using the testimony of Little's economist, Jeffrey Opp. Opp testified, consistent with his expert report, that Little's lost wages totaled $519,004. See Dkt. 122 (trial transcript), at 116 (estimated past lost wages totaling $227,997) and id. at 121 (estimated future lost wages totaling $291,007); see also Dkt. 18 (Opp report). BNSF thus calculates Little's payroll tax liability, based on 2019 rates, to be $23,471.25. Little doesn't dispute BNSF's calculation of the payroll taxes on the damage award.

But the parties have overlooked one aspect of the jury award. The jury reduced the award by $150,000 based on Little's failure to "tak[e] reasonable steps to secure alternative employment." Dkt. 100 (verdict). This amount for failure to mitigate affects only the award for lost wages. And a reduction of $150,000 affects only the calculation of the Tier 1 Medicare tax, as the other payroll taxes are subject to limits that are reached regardless of the reduction. By the court's calculation, the reduction in Tier I Medicate tax would be $3,525. Thus, the total offset for payroll taxes to which BNSF is entitled is $19,946.25.

BNSF . . . 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, 139 S. Ct. 893, 203 L. Ed. 2d 160, 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.

The court concludes that the general damages award is subject to payroll tax under the RRTA. But BNSF isn't pushing for an offset for taxes on the entire $726,000 damages award. BNSF proposes to calculate Little's tax liability using the testimony of Little's economist, Jeffrey Opp. Opp testified, consistent with his expert report, that Little's lost wages totaled $519,004. See Dkt. 122 (trial transcript), at 116 (estimated past lost wages totaling $227,997) and id. at 121 (estimated future lost wages totaling $291,007); see also Dkt. 18 (Opp report). BNSF thus calculates Little's payroll tax liability, based on 2019 rates, to be $23,471.25. Little doesn't dispute BNSF's calculation of the payroll taxes on the damage award.

But the parties have overlooked one aspect of the jury award. The jury reduced the award by $150,000 based on Little's failure to "tak[e] reasonable steps to secure alternative employment." Dkt. 100 (verdict). This amount for failure to mitigate affects only the award for lost wages. And a reduction of $150,000 affects only the calculation of the Tier 1 Medicare tax, as the other payroll taxes are subject to limits that are reached regardless of the reduction. By the court's calculation, the reduction in Tier I Medicare tax would be $3,525. Thus, the total offset for payroll taxes to which BNSF is entitled is $19,946.25.
 

UP asserts that it is entitled to an offset for its payment of railroad retirement taxes. In his reply brief, Haynes recognized that, in the interim between the trial court's ruling on this issue and this appeal, the U.S. Supreme Court has settled this issue and ruled that past wage loss awards are taxable. See BNSF Ry. Co. v. Loos, 139 S. Ct. 893, 899-900, 203 L. Ed. 2d 160 (2019). . . . We sustain UP's request that we modify the judgment to reduce the lost-wages award by $14,648.40 as an offset to account for the taxes paid.

[Defendants also argue that hedonic damages (loss of relationship) should be excluded and the loss of accompaniment damages is really another way to obtain hedonic damages. In Dr. Smith's testimony, he articulates the difference between hedonic and other household services damages and why he finds them different. However, the record shows that plaintiffs do not intend to argue for hedonic damages, nor did Dr. Smith include this opinion in his report.

Plaintiffs argue that Dr. Smith and Mr. Weiner (defendants' expert) used a similar methodology for calculating loss of household/ family advice, counsel, guidance, instruction and training services and loss of accompaniment services, and came to similar conclusions. Finally, defendants also argue that hedonic damages (loss of relationship) should be excluded and the loss of accompaniment damages is really another way to obtain hedonic damages. In Dr. Smith's testimony, he articulates the difference between hedonic and other household services damages and why he finds them different. However, the record shows that plaintiffs do not intend to argue for hedonic damages, nor did Dr. Smith include this opinion in his report.

The court begins by addressing defendant's reliance on a number of other federal cases excluding Dr. Smith as an expert. Dr. Smith often opines on "hedonic damages" in litigation, which are damages that "attempt to compensate a victim for the loss of the pleasure of being alive[.]" Families Advocate, LLC v. Sanford Clinic N., No. 16-CV-114, 2019 U.S. Dist. LEXIS 56845, 2019 WL 1442162, at *1 (D.N.D. March 31, 2019). Quite a few federal courts have refused to permit Dr. Smith to testify concerning his method for calculating hedonic damages. Smith v. Jenkins, 732 F. 3d 51, 66 (1st Cir. 2013) (collecting cases). Here, however, plaintiff expressly disclaims any claim for hedonic damages. (Docket 194 at p. 23 n.15) ("[T]here is no claim for hedonic damages and no economic evaluation of hedonic damages is proffered by Plaintiff or Dr. Smith."). The court therefore does not view the authority defendant cites as indicative of a uniform condemnation of Dr. Smith's testimony in the federal courts, as its objections insinuate.

The Court agrees with the defense that the opinions from plaintiffs' economic experts [Kristin Kucsma, M.A. and Kenneth Betz, M.B.A.] relating to loss of companionship services do not relate to actual economic loss where plaintiff would have had to hire someone to perform his prior household and family duties. Instead, plaintiffs are attempting to quantify their own impairment and  loss of enjoyment of life  with economic evidence. It is not for an economist to quantify the value of a loved one's companionship and that is what historically the jury will be asked to decide, The evidence on this loss of companionship issue "is so one-sided that one party must prevail as a matter of law," leading to a grant of the requested relief. . . . Given these reasons, defendants' motion to bar plaintiffs' economic experts' opinion as to the claim for loss of companionship services is hereby granted.

Upon review of a sampling of the federal court cases on Dr. Smith's List, the Court found none in which he provided testimony at trial before a United States District Court. Further, the Court's independent research revealed that Dr. Smith's testimony regarding hedonic damages has been found inadmissible by the vast majority of federal courts including some of the cases on his List. These findings and the reasoning of the courts excluding Dr. Smith's testimony on the value of hedonic damages further support the Court's conclusion that Dr. Smith's testimony would not be helpful to a jury. Moreover, the Court continues to be convinced that to the extent Dr. Smith's testimony has any probative value, it is outweighed by the risk that purported expert testimony putting a specific value on the Plaintiff's noneconomic damages will confuse and/or mislead the jury.

Dr. Smith arrives at his initial value of life figure [$4.6 million in 2016] through an analysis of studies from the 1980s of "consumer behavior and purchases of safety devices," "wage risk premiums to workers," and "cost-benefit analyses of regulations." (Smith Report 4.) While the Court understands that such studies are well-accepted and appropriate for use in a number of contexts, such as by government agencies or other entities conducting cost-benefit analyses, the Court finds, as other courts have, that they are not helpful in assisting a factfinder in evaluating the value of a unique human life.

Sandmann testified that even though he was somewhat limited in how long he could walk, stand, drive, or sit, he still returned to his previous employment as an IT programmer for FedEx. He worked the same job, the same hours, and received the same pay—with regular annual increases. Sandmann also admitted he did not expect to retire early. Additionally, the Claims Commission did not find [Sara] Ford's testimony persuasive. It took issue with the lack of underlying support for Ford's opinion. She did not identify any work Sandmann would be unable to do in the future. She did not explain how she arrived at her figures, only that she estimated his work life expectancy. And, she did not refer to any medical opinions or records to document any of Sandmann's limitations.

Ms. Hauck is prohibited from eliciting testimony from Dr. Smith regarding her entitlement to non-economic damages, including hedonic, loss of guidance, counselling, society, relationship, support, and accompaniment damages. In pertinent part, Dr. Smith's opinion assigning a dollar-amount to Ms. Chambers' hedonic-damage award is unreliable pursuant to Daubert and its progeny. Moreover, the Court concludes that Dr. Smith's failure to disclose his proposed testimony regarding the "general scope of hedonic damages" is incurable and prejudicial. Therefore, Dr. Smith's opinions quantifying a hedonic-damage award and generally explaining the concept are both properly excluded. For these reasons, the Court grants Wabash's Motion to Exclude (Doc. 157).

Loss of chance as a theory of recovery for negligence, and in particular for medical malpractice, has gained traction in the last half-century. At this point, courts in most states have reached the issue, and more than half of the jurisdictions in the United States that have considered the issue have embraced the theory, at least to some extent. See Lauren Guest, David Schap, and Thi Tran, The "Loss of Chance" Rule as a Special Category of Damages in Medical Malpractice: A State-by-State Analysis, 21 J Legal Econ 53, 58-60 (2015)(reviewing case law as of 2014 and concluding that 41 states had addressed loss of chance, with 24 states having adopted some version of the theory).

David Schap, a Professor in the Department of Economics at the College of the Holy Cross in Worcester, Massachusetts, has been retained as an expert by Plaintiff to assess: (1) his earnings loss in the time between the accident in question and the date chosen for use as the threshold for calculating Plaintiff's prospective earnings loss; and (2) the value of Plaintiff's prospective earnings loss. Using various scholarly publications and statistics from the Department of Health and Human Services, the Department of Commerce, and the Social Security Administration,  Professor Schap determined that, as a 54 year old male, Plaintiff's pre-injury work life expectancy was 9.17 years. Because Plaintiff paid his truck driver employees at an annualized rate of $48,100.00 per year, and because Plaintiff is himself a professional truck driver who holds a commercial driving licence (CDL), Professor Schap calculated Plaintiff's prospective wage loss as $441,077.00 (9.17 x $48,100.00) and calculated Plaintiff's "interim wage loss" in the 1.48 years between his accident and the beginning of the prospective loss as $67,629.00 (1.48 x $48,100.00). [Footnote omitted.]

Smith, as an economist, may testify concerning calculations of loss of income and the value of the decedent’s services based on Plaintiff’s testimony, but Smith may not testify regarding non-economic damages such as for the decedent’s loss of loss of life’s enjoyment (hedonic damages) or the loss of society and companionship of the decedent’s mother or daughter, which is a question for the trier of fact.

Mr. Gibson's calculations of an age-earnings profile and worklife expectancy relied on broad, underlying survey data. He says "[t]he large sample sizes of the ACS and ASEC surveys assure low standard error rates" [ECF 108-1 at 12]. Just because the data resists error doesn't mean the method by which they are input proves reliable. Using a method unrooted in a decedent's occupation or artificially inflating income contrary to an opinion witness's own guiding authorities necessarily amplifies the risk of error beyond a reliable and recognized economic method.

An expert must do more than just state that she is applying a respected methodology; she must follow through with it. In deciding whether an expert employed a reliable method, the district court has discretion to consider "'[w]hether the expert has adequately accounted for obvious alternative explanations. [] '"The expert need not exclude all alternatives with certainty, however. See Gayton v. McCoy, 593 F.3d 610, 619 (7th Cir. 2010) ("[A]n expert need not testify with complete certainty about the cause of an injury; rather he may testify that one factor could have been a contributing factor to a given outcome.").

[T]estimony as to an average relationship without being specific to the decedent's relationship with her children will not assist a jury. In Wisconsin, an award for the loss of society and companionship must be based on the specifics of the relationship in question, just as the loss of enjoyment of life must be grounded in the age, health, habits, and pursuits of the injured party [in a personal injury case].

This Court adopts the same reasoning and, therefore, excludes Dr. Scott's proposed testimony that would present for the jury's "consideration the value that government agencies place on the statistical value of life," including the documents published by the United States Department of Transportation and the Environmental Protective Agency suggesting values of life (Dkt. No. 16-1, at 3).

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). . . ("Even assuming that Dr. [Stan V.] 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.").

The probative value of Plaintiff's retirement eligibility at age 60 is relevant to his future retirement date. Id. As Plaintiff's economist testified, Plaintiff is economically incentivized to extend his retirement date out as far as possible because it increases his calculated future losses; he can increase his damages by claiming he was planning to work well past age 60. Id. (citing Exhibit A, Jeffrey Opp deposition at 30:16-31:4). However, based  RRB actuarial data, 63-67% of railroad employees retire at age 60 if retirement eligible, and Plaintiff is eligible to retire at age 60. Id. at 7 (citing Opp Dep. at 32:9-12, 47:12-16). At age 61, 80% of retirement-eligible railroaders will retire; by 64, the number approaches 94%. Id. (citing Opp Dep. at 47:17-48:2). Based on RRB actuarial data, it is far more likely than not Plaintiff would retire earlier than his claimed retirement age of 65. Id. This evidence is highly probative of what his actual retirement date would have been had he not been injured. Id.

After Pfeifer was decided, the Fifth Circuit in Culver v. Slater Boat Co. ("Culver II"), 722 F.2d 114 (5th Cir. 1983) (en banc) held that the "below-market-discount" method must be used when conducting loss of income calculations. In Culver II, the Fifth Circuit described this method by saying, "the trier of fact [first starts by] estimat[ing] the wage increases the plaintiff would have received each year as a result of all factors other than inflation." Id. (emphasis added). Next, "[t]he resulting income stream is discounted by a below-market discount rate." Id. "This discount rate represents the estimated market interest rate, adjusted for the effect of any income tax, and then [is] offset by the estimated rate of general future price inflation. Id. This rate can either be reached by stipulation or by introducing competing expert opinions. Id. at 122.November 3, 2021

To the extent that the non-injured spouse can establish that there are services, which were not required prior to injury, that have been incurred or are reasonably certain to be incurred to meet the reasonable requirements of the injured spouse, the non-injured spouse may recover from the person causing the injury for the reasonable value of those services.

[T]he Fifth Circuit emphasized that one of the issues with per diem arguments is that they "cannot be supported by evidence because pain and suffering cannot be measured in dollars on a unit of time basis" and "the amount of such damages must necessarily be left, without mathematical formula, to the sound discretion of the jury, because there is no mathematical rule by which the equivalent of such injuries in money can be legally determined. . . Furthermore, in this case, Dr. Kronrad testified that he had no professional advantage over a juror in determining the value of mental anguish and did not have any expertise in that area. Accordingly, while it might be permissible for Plaintiffs to make a per diem argument at closing—which the Court does not decide at this time—it is not appropriate to allow Dr. Kronrad to give testimony supporting such a calculation. Chrysler's motion is GRANTED as to this request. Next, Chrysler asks the Court to exclude Dr. Kronrad's opinion regarding the value of Arthur's household services because his opinion is not based upon sufficient facts or data. In particular, Chrysler argues that Dr. Kronrad made no attempt to ascertain Arthur's actual contribution to the household and did not consider Arthur's medical issues in calculating Plaintiffs' damages. Plaintiffs did not respond to this argument. This request is likewise GRANTED.