"The problem of translating the loss resulting from an accident into money damages is always a complex and often imprecise calculation." Willinger, 241 Pa. Super. 456, 469, 362 A.2d 280, 286-87 (1976). But the Michigan courts and legislature have established guidelines to assist the jury in calculating loss compensation, and hedonic damages or damages for loss of life's pleasures is not one of the elements of recovery in a wrongful death action under the loss of society and companionship. Accordingly, the Court GRANTS defendants' motion in limine to preclude the introduction of any and all evidence concerning hedonic damages or damages for the loss of enjoyment of life in this trial on the ground that this evidence is irrelevant. This order precludes the plaintiff's expert Stanley V. Smith from testifying as to his opinion concerning the value of the Kasnia's loss of society and companionship claim.(2) Lucy v. Washington Metropolitan Transit Authority, 1989 U.S. Dist. LEXIS 6453 (D.D.C. 1989). The court granted a defense motion to exclude hedonic damages on the ground that Maryland’s survival statute does not provide for hedonic damages.
The Court agrees with the Defendants that the testimony on hedonic damages would confuse or mislead the jury and furthermore, would not be relevant. The real basis of the Court’s opinion is that this Court is not aware of any valid legal basis or authority for extending hedonic damages from death civil rights cases to this case, where it is alleged the Plaintiff was terminated from his job without due process. Simply state evidence of such damages is not relevant.(2) Polyak v. Reus, Inc., 1990 Minn. App. LEXIS 815 (MN App. 1990). Th Minnesota Court of Appeals said:
Minnesota Courts have never recognized loss of enjoyment of life as a separate element of damages . . . There is no Minnesota authority for a specially worded instruction on loss of enjoyment of life and we decline to impose such a requirement here. . . Dr. Smith would have testified about how to calculate damages for loss of enjoyment of life. Because Polyak’s evidence consisted of his emotional reaction to the shooting and not loss of enjoyment of life, there was no foundation for Dr. Smith’s testimony. . . Therefore the trial court’s exclusion of Smith’s testimony was proper.(3) Mapp v. Karos, 1990 U.S. Dist. LEXIS 21306 (E.D. WI 1990). Stanley V. Smith (later Stan V. Smith) was excluded from testifying about dollar values for the life of decedent in a wrongful death action as not relevant to damages allowed under the act. Smith’s calculations for loss of society and relationship were also excluded because:
[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].(4) Gonzales v. City Wide Insulation, 1990 U.S. Dist. Lexis 6360. U.S. District Court, interpreting Illinois law, ruled that the Illinois Wrongful Death act does not provide for the recovery of hedonic damages.
Here, the proposed economic expert testimony would be overly speculative and would serve to invade the province of the jury, and we see no abuse of discretion in the exclusion of such evidence.(2) Southlake Limousine and Coach, Inc. v Brock, 578 N.E.2d 677 (1991). Indiana's 3rd District Court of Appeals ruled that the trial court decision to admit hedonic damage testimony by Stan V. Smith was improper and should not be allowed in a retrial. The court said:
Expert testimony on the value of life should not have been admissible in a wrongful death case. It could not provide a measure of the loss of love and affection to the surviving spouse nor of the loss of parental guidance and training to the surviving children. Professor Smith even testified to that effect. The most Professor Smith could do was place a value on the life of the decedent. His testimony regarding the loss felt by survivors was inadmissible speculation.(3) Badeaux v. Rowan Companies, 1991 U.S.Dist. Lexis 13532 (E.D.La. 1991). Held that: "Damages for loss of the enjoyment of life or 'hedonic' damages are not recognized as a separate element of recovery in the Fifth Circuit. They are not a factor to be separately measured as an independent ground of damges," but must be included as part of pain and suffering. Testimony of Melville Wolfson was not permitted.
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.(6) Brown v. Seebach, 763 F.Supp. 574 (S.D. Fla.1991). U.S.District Court, interpeting Florida law, held that hedonic damages are not available under the Florida Wrongful Death Act.
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.
We find that any evidence relating to loss sustained by survivors such as ‘hedonic damages,’ going beyond pecuniary loss are appropriate matters for inclusion in this law suit. Since these matters are appropriate, expert testimony by qualified individuals would certainly be allowed into evidence. Moreover, taking into account that hedonic value of human life is difficult to measure, expert testimony becomes exceedingly important and may be of particular use to the trier of fact in this case. Sherrod v. Berry, 827 F.2d 195 (7th Cir. 1987). Accordingly Inland’s motions seeking to bar expert testimony as to damages for decedent’s loss of quality of life, and for the value of decedent’s services are, DENIED.(2) Bramlette v. Hyundai Motor Company, 1992 U.S. Dist. LEXIS 13080 (N.D.Ill. 1992). Judge Zagel’s decision in Mercado v. Ahmed, 756 F. Supp. 1097 (N.D. IL 1991) was cited in excluding the testimony of Dr. Stan V. Smith in this wrongful death action under Illinois law.
The record suggests that Smith, in addition to offering testimony on hedonic damages or damages for the loss of enjoyment of life, also intended to offer damages relating to "loss of relationship. Damages for loss of companionship and society of the decedent are allowable under Mississippi law. Nevertheless, the court, in reviewing Smith's proposals, [footnote omitted] finds that the facts and figures offered by Smith are largely speculative and may unduly prejudice a jury. While the figures offered in Smith's tables are one person's way of attaching a quantitative figure to a qualitative value, the jury, composed of laypersons who presumably value their own life and loved ones, is equally equipped to place a quantitative value on decedent's companionship, affection and society should the case call for such a determination. See generally In Re Air Crash Disaster at New Orleans, La., 795 F.2d 1230, 1233 (5th Cir. 1986) ("the trial judge ought to insist that a proffered expert bring to the jury more than the lawyer can offer in argument"). For all of these reasons, the testimony of Smith will be excluded in its entirety.(4) Moore v. Kroger Co. 800 F. Supp. 429 (N.D. MS 1992). The Court postponed making a decision about whether to allow hedonic damage testimony by Dr. Stan V. Smith in a wrongful death action. The Court said:
Having held that hedonic damages are not recoverable as a separate form of damages, the court nevertheless declines to limit the testimony of [Stan V.] Smith, Moore's proposed expert on such damages, until the substance of his testimony can be more fully explored at trial. In the past, the undersigned has rejected speculative figures that attempt to quantify an injured person's emotions when a jury of lay persons is equally equipped to make the determination. . . .The possibility exists that he may testify on matters helpful to the trier of fact in traditionally recognized areas. Accordingly, Smith's testimony will be considered at trial for its evidentiary value, helpfulness and prejudicial effect under Federal Rules of Evidence 702, 703 and 403. If confusing, unhelpful or prejudicial, it will be excluded.(5) In Re Korean Airlines Disaster of September 1, 1983, 807 F.Supp. 1073 (S.D.N.Y.1992). This decision interprets the relevance of the terms of the Warsaw Convention, ruling that hedonic damage claims do not survive in a death action. Lost earnings may not be recovered for a decedent but may be considered in determining lost financial support or loss of inheritance.
In this case, the plaintiffs intend to introduce [Stan] Smith's testimony to establish -- through economic principles -- the value of Doe's future loss of enjoyment of life. There is no binding Seventh Circuit precedent suggesting that such economic testimony is sufficiently reliable to be admissible . . .The court therefore follows the well-reasoned opinion of Mercado v. Ahmed, 756 F. Supp. 1097 (N.D. Ill. 1991). . . Because Smith's testimony would not assist the trier of fact in reaching its decision, his testimony is irrelevant -- and must be excluded.(2) Patch v. Glover, 618 N.E.2d (Ill.App.1 Dist. 1993). An Illinois Court of Appeals upheld a trial court decision not to admit hedonic damage testimony about loss of society Stan V. Smith. The court said:
The type of evidence Smith offered would, out of necessity, provoke an extended line of inquiry into Patch’s relationships with family members and friends, who are not entitled to recover under the [wrongful death] act, so that their loss of society could be factored out of the gross value of the loss of society. All of which would serve no purpose other than to distract the jury from its real task which is to apply their common sense to assess the value of society lost by the plaintiff and the children. Moreover, Smith’s testimony on this issue would mislead the jury into believing the false notion that the distinct and personal relationship that one has with his wife and children has commercial value which can be determined by a comparison to the value that society places on the non-monetary contributions of the statistically average person. It is our belief that the type of evidence that plaintiff sought to introduce through Smit, h’s testimony would be the antithesis of a reasonable and practical consideration of the fair and just compensation for the loss of society suffered by the spouse and next of kin of a decedent under the peculiar facts of any given case.(3) Laing v. American Honda Motor Co., 628 So. 2d 196 (LA App. 1993). Citing Foster v. Trafalgar House of Oil and Gas, 603 So.2d 284 (1993) which had been decided during or after Laing, the Court said that the trial court’s admission of testimony by Dr. Stan V. Smith might have been in error, but:
The jury did not award the $ 2,200,000 figure calculated by Dr. Smith as the loss of enjoyment of life suffered by Tommy Laing, but made an award of $ 1,350,000 for Laing's loss of enjoyment of life and mental anguish. (Emphasis added). Honda cross-examined Dr. Smith extensively and presented their own expert in economics, Dr. Jerome Staller, on the issue of hedonic damages. Regardless of whether Dr. Smith's testimony should have been allowed, there is ample evidence in the record to support the jury's award of $ 1,350,000 to Laing for loss of enjoyment of life and mental anguish.The economic expert presenting hedonic damages testimony in Foster was Dr. Luvonia Casperson, not Dr. Smith.
(6) Liston v. The University of West Virginia Board of Trustees, 190 W. Va. 410; 438 S.E.2d 590 (W.Va 1993). The West Virginia Supreme Court held: (1) “Where a plaintiff wishes to quantify the loss of earning capacity by placing a monetary value on it, there must be established through expert testimony the existence of a permanent injury, its vocational effect on the plaintiff’s work capacity, and an economic calculation of its monetary loss over the plaintiff’s work-life expectancy reduced to present day value;” and, (2) That an economist, “Mr. Selby,” should not have been permitted to testify about the loss of enjoyment of life, citing Wilt v. Burracker, 443 S.E.2d 196 (1993).
(7) Wilt v. Burracker, 443 S.E.2d 196 (W.VA. 1993). Hedonic damage testimony ruled inadmissible in West Virginia. Michael Brookshire was not permitted to testify about hedonic damages.
This court's concern is that the willingness-to-pay studies upon which Mr. Smith's calculations are based have no apparent relevance to the particular loss of enjoyment of life suffered by a plaintiff due to an injury or death. The studies relied on by Mr. Smith do not use methodology designed to calculate the loss of enjoyment of life, yet are nonetheless extrapolated by Mr. Smith into what he claims to be valid data for calculating damages for both Mr. and Mrs. Sullivan's loss of enjoyment of life. Mr. and Mrs. Sullivan suffered totally distinct and different damages (Mrs. Sullivan died, Mr. Sullivan faces living without the support and companionship of his wife), yet, under Mr. Smith's analysis their damages are identical, save only an adjustment for differing the expectancy. The court finds that the proffered testimony of Mr. Smith simply fails in any real terms to provide a measure of the loss and affection to Mr. Sullivan due to his wife's death. The court does not believe that the distinct and personal relationship that Mr. Sullivan enjoyed with his wife has commercial value which can be determined by a comparison to the alleged value that society places on the contributions of a statistically average person.(2) Longman v. Allstate Ins. Co., 635 So.2d 343 (La. App. 4 Cir. 1994). The Lousiana Court of Appeals, citing Foster v. Trafalgar House of Oil and Gas, 603 So.2d 284 (1993), affirmed the decision of the trial court judge to exclude the hedonic damages testimony of Dr. Stan V. Smith in a personal injury case, saying: The statement by the trial judge indicates that the trial judge primarily based his decision excluding the testimony of Stan Smith on the facts that 1) the proffered evidence would not assist the jury in determining how to compensate the plaintiff for his general damages and 2) the plaintiff was capable of explaining how his injuries hadaffected his lifestyle. Having reviewed the proffered testimony we agree with the trial court's finding that the proffered evidence would not have assisted the jury in determining the value of the plaintiff's loss of enjoyment of life as a result of his injuries. Additionally, having reviewed the testimony of the plaintiff, we find that the plaintiff was extremely capable of explaining how his life had been affected by this accident. For these reasons, we find that the trial court did not abuse its discretion when it refused to allow Stan Smith to testify.
First, the court must determine whether Dr. Palfin’s theories have been or can be tested. Many of the predictions or assumptions of economists in damages testimony can be validated in retrospect, if not otherwise. For instance, predicted rates of inflation, predicted salary escalations, average life expectancies, average work life expectancies, average interest rates can all be looked at years down the line to determine if we were correct in allowing expert estimates of economic loss. Such an evaluation after time is a comforting response to the criticism that courts’ decisions to accept or exclude novel scientific evidence may be ‘behind the curve’ or may have a dampening effect on scientific development. No such retrospective validation is possible in Dr. Palfin’s thesis of the valuation of hedonic damages. Speculative assumptions remain speculation.”Judge Wiseman went on to look at the entirety of the Value of Life literature and criticisms of the use of that literature, particularly in Parker Cashdollar and Marsha Cope Huie, “Reliability and Validity of Hedonic Damage Testimony: Judicial Logic about Economic Science in Merrell Dow and Mercado, 3-DEC J. Legal Econ 57, 67 (1993). Judge Wiseman said: “Even at my somewhat advanced age, I’m not ready or willing to put a price on my continued existence. Honest answers to hypothetical questions of this kind are not possible. This methodology is subject to criticism for being based on unreliable, untrustworthy hearsay. It fails the common sense test, as well.”
In sum, neither the $3.5 million or the $2.5 million benchmark rests upon any scientific method or procedure, so that testimony regarding either one is inadmissible under the scientific knowledge prong of Rule 702.” . . .[T]he low probative value of such testimony (ill fitting data) is substantially outweighed by the danger of unfair prejudice (a false appearance of tailoring to the individual case). . . Unfortunately for Stan Smith, the surname Smith seems to be about the only thing they have in common. . . [I]t is franky bogus to massage numbers [from the Value of Life literature], as both Hedonic Damages [Brookshire and Smith] and Plausible Result [Miller] have done, to create a deceptive appearance of precision rather than the true picture of an enormous spread in ‘value,’The Court also criticized the underlying assumptions of the “willingness to pay” model.
This court recognizes that there is measurable value to one’s life other than his or her earning capacity. However, this value is already recoverable in the recognized category of mental suffering. There is no need to allow for the recoupment of hedonic damages as a separate category of loss.The Court cited Economic/Hedonic Damages (1990) by Michael Brookshire and Stan V. Smith for its definition of hedonic damages.
Any error in admitting Stan Smith's testimony is harmless. Smith's methodology is by his own concession unorthodox. The Nebraska Department of Social Services (DSS) points out in its brief that not only is Smith one of the few alleged experts on hedonic damages, but in fact most of the reported decisions on this subject involve Smith and the much-debated value of his opinions. Smith's analysis applies a quasi-scientific spin to what may seem like a simple issue, which may not be the best method of gauging the value of enjoyment of life. Nevertheless, the receipt of Smith's testimony in this case hardly cries out for a remand. At trial, Smith testified that Bridgette Anderson suffered a loss of enjoyment of life in an amount between $ 2,442,000 and $ 2,817,000; the trial judge awarded $ 300,000 in hedonic damages. Smith testified that Candy Anderson suffered losses valued between $ 1,950,000 and $ 2,127,000; the trial judge awarded $ 25,000. The trial judge stated in his written judgment that the court was not bound by Smith's calculations, noting that Smith's testimony was no more helpful than the testimony of a physician who stated that an injured person suffers pain more greatly than does the general public.(4) Talle v. Nebraska Department of Social Services, 541 N.W.2d 30 (Neb. 1995). The Nebraska Supreme Court reversed and remanded the trial court decision in part because the trial court judge allowed Dr. Stan V. Smith to testify about hedonic damages in this personal injury action. The Court said:
The department's final claim is that the district court erred in receiving the testimony of Stan Smith, an economist who established a formula for calculating the value of lost enjoyment of life. Smith is the same economist whose testimony on the value of lost enjoyment of life was held inadmissible in Anderson/Couvillon. In that case, we held that the three models on which Smith bases his formula for calculating the value of lost enjoyment of life were flawed in one way or another and that his testimony failed to satisfy Neb. Evid. R. 702, Neb. Rev. Stat. § 27-702 (Reissue 1989). As his testimony and the models on which he bases his formula were substantially the same in this case as they were in Anderson/Couvillon, the district court erred in admitting his testimony.(5) Estate of Sinthasomphone v. City of Milwaukee, 878 F.Supp. 147 (E.D. WI 1995). This decision rejected hedonic damage testimony by Stan V. Smith for the following reason:.
The problem with Mr. Smith's testimony is that he is attempting to quantify something which cannot truly be determined: what is the value of a human life? He rests his determination on a number of studies which are in themselves grounded in the science of economics--which, in the first place, is not quite like physics. Does this mean that his testimony will not assist the jury or will mislead them? I am not, at this point, convinced of that. His testimony may conceivably be useful for the jury to have some starting point in their attempt to place a value on life. On the other hand, his testimony may be the kind of "junk" that should not be heard in court of law. At trial, after a short offer of proof as to the nature of the testimony, I will make a final decision on whether this evidence can be presented. The plaintiffs may not make any reference to it in opening statement.(6) Chustz v. J.B. Hunt Trans., 659 So. 2d 784 (LA App. 1995). The Court’s entire opinion was:
WRIT GRANTED. The trial court's ruling allowing Dr. Stan Smith to testify regarding "hedonic damages" is vacated and relators' motion to exclude the testimony of Dr. Smith regarding "hedonic damages" hereby is granted. Foster v. Trafalgar Oil and Gas, 603 So. 2d 284 (La. App. 2d Cir. 1992).(7) United States v. Starzepyzel, 880 F.Supp. 1027 (S.D. N.Y.1995). Accepted testimony by document examiner. Said: "Yet, as distinguished from such discredited ventures as hedonic damage expertise, clinical ecology, trauma-cancer expertise or the Benedictin plaintiffs' statistical machinations, forensic document examination does involve true expertise, which may prove helpful to a fact finder."
The loss or denial of hedonic, or enjoyment of life, values is compensable under Michigan law. The Court will so instruct the jury. But, the Court concludes that the balance of the applicable factors weigh against finding Mr. Smith's "willingness to pay" testimony is reliable and helpful within the meaning of Daubert and Fed. R. Evid. 702. While it may be sufficient science for passing regulations, It is poor science for the courtroom. Even if the evidence were not to be analyzed under Rule 702, it would fail Rule 403.
[L]ike Judge Shadur, we are unconvinced that the [hedonic damage] theory is helpful to the jury. We presently are of the opinion that the jury is able to decide for itself, without the assistance of an economics expert, the value that our society places on a human life. Therefore, we will presently grant the motion to bar the testimony on hedonic damages. The plaintiffs have argued that they should be allowed to make an offer of proof at trial on the issue of hedonic damages. We will allow them to do so, and to move that we reconsider this decision at that time.(2) Smith v. Ingersoll-Rand, 1997 U.S. Dist. LEXIS 23443 (D.N.M. 1997); aff'd 214 F.3d 1235 (2000). The Court said that Stan V. Smith was correctly admitted to explain the concept of hedonic damages based on New Mexico law, but without providing specific calculations for the plaintiff.
Plaintiffs seek to admit Mr. Smith's testimony to assist the factfinder in placing a value upon the survivors' loss of society and companionship caused by the death of Albert Brereton. Mr. Smith has calculated the value of Albert Brereton's life based upon his expected life-span, a statistical individual's willingness to pay for safety, to endure on-the-job safety risks, and the costs of government health and safety regulations. See Stan V. Smith letter to Robert G. Lewendowski, dated Dec. 19, 1996; Government's supplemental brief at exh. A. Mr. Smith asserts that this value of life --or the value of preserving the ability to live a normal life-- "is also a measure of the value placed on the loss of relationship or society and companionship." Id. Thus, not only is the statistically-calculated value of life a measure of hedonic value to an individual, it also is an estimate of the value of that individual's relationship to his survivors. Id. at 3. I find, however, that even if one were to accept Mr. Smith's testimony as producing a scientifically reliable value of the decedent's life, the conclusion that this same figure provides a value of that person's relationship to his or her survivors is unfounded.(4) Saffrani v. TheWerner Company, 1997 U.S. Dist. LEXIS 18589 (S.D.N.Y. 1997). In admitting expert testimony by a mechanical engineer, the decision cited United States v. Starzepyzel, 880 F.Supp. 1027 (1995), quoting that decision : "Yet, as distinguished from such discredited ventures as hedonic damage expertise, clinical ecology, trauma-cancer expertise or the Benedictin plaintiffs' statistical machinations, forensic document examination does involve true expertise, which may prove helpful to a fact finder."
A plaintiff’s loss of enjoyment of life is not ‘a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact[.]’ No amount of expert testimony on the value of life could possibly help a jury decide that difficult question. A life is not a stock, car, home, or other such item bought and sold in some marketplace. Smith’s impersonal method of valuing life assumes that for the most part, all lives have the same basic value. That has democratic appeal, but Smith used no democratic process in reaching that conclusion or selecting which benchmark figures to consider in setting the baseline figure. There is no statute Smith could have turned to for guidance. Our legislature has not decreed that all injured plaintiffs of the same age and with the same degree of disability should recover the same hedonic damages; nor has it assigned set values in referring to the amounts of jury verdicts in other cases. (Citations omitted). Because counsel may not ask the jury to give the same amount of damages in another case, it would be inconsistent to permit an expert witness to do so.(2) Lewis v. Alfa Laval Separation, 128 Ohio App. 3d 200; 714 N.E.2d 426 (OH App. 1998). This decision affirmed the trial court’s decision to allow the hedonic damages testimony of Dr. Michael Bookshire as falling within the “shaky but admissible” prong of Daubert v. Merrell Dow Phamaceuticals (1993). Dr. Stan Smith was mentioned in the decision in reference to his co-authorship with Dr. Brookshire of Economic/Hedonic Damages: The Practice Book for Plaintiff and Defense Attorneys (1990) and in the context of similarities between method used for hedonic damages testimony by Drs. Brookshire and Smith. Judges on the Ohio Court of Appeals indicated that they would not have admitted hedonic damages testimony by Dr. Brookshire.
Stan Smith, the hedonic damages expert, did not testify as to any precise damage figures. Instead, he testified concerning the methodology used by economists in the field of hedonics and showed how the methodology may be used by a fact-finder in attempting to assess loss of enjoyment of life damages. For example, he testified that if the fact-finder, using the methodology discussed, determined in this case that Butler had a 50% loss of enjoyment of life, the amount of damages would be $ 683,203 or if the fact-finder determined that Butler had a 66% loss of enjoyment of life, the amount of damages would be $ 910,932, and a 57% loss of enjoyment of life, the amount of damages would be $ 778,851. He was careful to state that he could not say and was not saying what percentage of loss of enjoyment of life Butler had suffered. He also made clear that the figures were just illustrative.From the dissent of C. J. McMillan:
As I understand the majority's view, there is no real dispute that Smith's evidence ought to have been excluded. The majority simply takes the position that the error in admitting Smith's testimony was harmless. . . I cannot agree that Smith's testimony can be brushed aside as harmless evidentiary clutter in the record of an otherwise acceptable trial.(2) Saia v. Sears Roebuck and Co., 47 F.Supp. 2d 141 (D. MA.1999). Hedonic damages testimony by Stan V. Smith was not allowed. The Court said: In support of its opposition to Defendants' motion in limine, Plaintiffs point to a significant number of cases in which Dr. Smith claims to have testified with respect to "intangible damages." (See Pl. Mem. (Docket No. 41) at Exh. 2.) But numbers do not an argument make. Cf. Joiner, 522 U.S. at 146 ("nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert."). As a review of the published case law reveals, quite a number of federal decisions have rejected such expert testimony, in particular Dr. Smith's testimony. The court's own Daubert/Kumho analysis of the present record -- detailed below -- convinces the court that Dr. Smith's proffered testimony in the instant matter should not get to the jury. The cases specifically cited by Plaintiffs in counterpoint do not convince the court otherwise.
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).2000
The concept of hedonic damages is premised on what we take to be the rather noncontroversial assumption that the value of an individual’s life exceeds the sum of that individual’s economic productivity. In other words, one’s life is worth more than what one is compensated for one’s work. The assumption that life is worth more than the sum of economic productivity leads to the equally noncontroversial conclusion that compensatory awards based solely on lost earnings will under-compensate tort victims. The theory of hedonic damages becomes highly controversial when one attempts to monetize that portion of the value of life which is not captured by measures of economic productivity. Attempts to quantify the value of human life have met considerable criticism in the literature of economics as well as in the federal court system. Troubled by the disparity of results in published value-of-life studies and skeptical of their underlying methodology, the federal courts which have considered expert testimony on hedonic damages in wake of Daubert have unanimously held quantifications of such damages inadmissible. . . Here, Stan Smith only testified to the definition of loss of enjoyment of life, which he described as ‘an estimate of the value of a person’s being for enjoyment of life as opposed to the value of a person’s doing or their economic productive capacity, whether it’s in the marketplace, in the business, or in the household as a service.’ . . As the district court correctly noted, New Mexico state law permits both recover of hedonic damages and allows ‘an economist to testify regarding his or her opinion concerning the economic value of a plaintiff’s loss of enjoyment of life. . . The district court also made an appropriate decision regarding reliability, excluding the quantification which has troubled both courts and academics, but allowing an explanation adequate to insure the jury did not ignore a component of damages allowable under state law.(2) Bennett v. Lembo, 761 A.2d 494 (2000). New Hampshire's Supreme Court ruled that hedonic damages can be recovered in a personal injury with a permanent impairment. Whether expert testimony would be allowed based on willingness-to-pay literature was not addressed.
Dr. Ireland testified that the methodology could not be tested. Dr. Smith admitted only that the underlying studies . . .could or had been tested. Dr. Ireland further pointed out that while many of the predictions of economists in damages testimony can be validated in retrospect if not otherwise (for example, predicted rates of inflation, salary escalations, etc.), no such retrospective validation is possible with hedonic damages.Under “Peer Review,” the Court said: “Publication . . . does not equate to peer review.” Under “Potential Rate of Error,” the Court cited Hein v. Merck & Co, 868 F. Supp. 230 (M.D. Tenn. 1994) in saying that “Expert valuation in hedonic damages has been roundly criticized for the wide variation reached by various experts in calculating values of an anonymous life, from for example $100,000 to $12,000.” Under “Degree of Acceptance,” the Court said:
Dr. Ireland cites to a 1999 survey of forensic economists in which only 25% indicated they were willing to consider presenting hedonic damage testimony and 75% would not. . . Certainly a cottage industry has sprung up around this theory of hedonic damages in which numerous forensic economists are willing to come forward and testify for one side or the other. Any time there is a market for a particular type of expert testimony as there clearly is here, one should lnot be surprised that there will be experts ready to avail themselves of that market. A review of the cases and literature cited in the cases reveals that there is anything but a professional consensus that Dr. Smith’s theory is valid.The Court also concluded that hedonic damages testimony failed a separate “relevance” test based on the fact that purchases of smoke detectors were not relevant to measure the quality of someone’s life.
Defendants objected to any testimony from Dr. Wolfson on this issue and a Daubert hearing was held. Dr. Wolfson testified that the method he used to calculate loss of enjoyment of life assumes earning capacity as a unit of measurement and the value of leisure time as determined by that earning capacity. He agreed that the economic testimony had a very limited function, that the determination rests with the fact finder, and that this was but one component of the damages. Dr. Wolfson admitted that his methodology is unique and he has not published any material on the matter. The trial court first admitted the testimony, and Dr. Wolfson valued this portion of damages at $ 1,228,565.00. The court later determined it had committed [Pg 19] error and instructed the jury to disregard this testimony. We agree with the statement in Foster v. Trafalgar House Oil & Gas, 603 So. 2d 284, (La. App. 2nd Cir. 1992), that economic theories which attempt to extrapolate the "value" of human life from various studies of wages, costs, etc., have no place in the calculation of general damages. See also Mistich v. Volkswagen of Germany, Inc. 94-0226 (La. App. 4th Cir. 6/25/97), 698 So. 2d 47,wherein the court determined to reject the testimony of Dr. Wolfson on this same issue: " Hedonic damages] refers to damages for loss of enjoyment of life. They are included in the concept of general damages because, like pain and suffering, they cannot be quantified with any degree of "pecuniary exactitude" or measured definitely in terms of money." Id, at 51. We agree that it was error for the court to permit that testimony.2002
In Smith v. Ingersoll-Rand, the district court was called upon to rule on the admissibility of the proposed expert testimony of Stan Smith, the reputed father of the theory of hedonic damages. The district court excluded Smith's testimony purporting to quantify hedonic damages but did allow Mr. Smith to testify "about the meaning of hedonic damages." Smith, at 1244. It is unmistakably clear from the Tenth Circuit's opinion, affirming the judgment of the district court, that the indispensable predicate for the admission of Stan Smith's testimony about the meaning of hedonic damages was that "hedonic damages are explicitly allowed under New Mexico law . . . ." Id.(4) Dubose v. City of San Diego, 2002 U.S. Dist. LEXIS 28297 (S.D. Ca. 2002). Judge James Lornenz granted defendant’s motion in limine to exclude the hedonic damages testimony of economic expert Robert Johnson, applying federal Daubert-Kumho standards and precedents rather than California precedents.
(8) Couch v. Astec Industries,
Inc., 2002 NMCA 84 (New Mexico Court of Appeals 2002). This
decision reconfirms that a trial court judge can admit testimony
economic expert about hedonic damages in a personal injury case in
Mexico. Brian McDonald had testified at the trial court
that the value of a statistical life lies between $500,000 and $11
million, with $3 million as the average. McDonald testified that
figure represented “the value of an entire life from cradle to
and included earnings as well as intangible enjoyment.” McDonald
declined to specify a percentage of a whole life that the
lost because of his injuries. The defense appealed on the basis
failure to specify a percentage rendered his testimony unhelpful
jury. The Court of Appeals responded: “We disagree. McDonald’s
testimony regarding a statistical life gave the jury a range of
monetary values that likely proved helpful in evaluating
claim. He also provided concrete guidance to the jury in
percentage of the monetary value that might reasonably compensate
plaintiff. . .[I]f McDonald had complied and offered a specific
for Plaintiff’s hedonic damages claim, he would have intruded
improperly into the fact finder’s domain.” The court cited Smith
Ingersoll-Rand Co, 214 F.3d 1235 (10th Cir. 2000) as
that the role of an economic expert regarding hedonic damages in
Mexico was one of explaining the general concept of hedonic
the nature of the statistical studies in the value of life
(9) McGarry v. Horlacker, M.D., 2002 Ohio 3161 (Ohio
App. 2002). The Ohio Court of Appeals
upheld a trial court refusal to admit the hedonic damages
John Burke, an economist. The trial court judge conducted a Daubert hearing to determine the
admissibility of his hedonic damage testimony in a personal
case. Burke was allowed to testify about McGarry's
lost earning capacity and the value of her services as a
trial court judge was quoted as having said: "Now, I am aware
that under Daubert there are areas
that are shaky but admissible that can be introduced, but I just
think this is in the shaky but admissible category. It may
that with more study in the near future, but I just don't
believe it is
there now." The Court of Appeals emphasized that "Burke
assign a monetary value to a random American woman's qualitative
enjoyment of life at McGarry's age.
admitted that, because his calculations were based on a random
American, his method would assign the same hedonic damages to a
who had been sentenced to life in prison as to a woman living a
healthy life with her family."
(10) Gradia v.
Tanner, 2002 U.S. Dist. LEXIS 28446 (D. N.M. 2002).
U.S. Magistrate Judge William Deaton granted a motion to limit
the hedonic damages testimony of Dr. Allen Parkman, as follows:
The parties have not provided the Court with a copy of Dr. McDonald's report or with the specific testimony that is being challenged. Dr. McDonald will not be allowed to testify as to "his valuation that Plaintiff has suffered a loss of $10,000.00 per year in purely hedonic damages." To that extent, Defendant's Motion in Limine will be granted. However, the Court is unable to properly perform its gatekeeping function under Rule 702 without the expert's report. Therefore, the Court will defer ruling on the admissibility of the remainder of Dr. McDonald's hedonic damages testimony until it has had an opportunity to review his report and consider oral argument of counsel. The Court will then determine whether Fed. R. Evid. 403 and 703 are appropriate bases for excluding Dr. McDonald's testimony on hedonic damages.Judge Johnson also said in a footnote:
Defendant has provided a copy of a report by its own economist, Dr. George Rhodes, whose opinion is that an economist "does not bring reliable or valid scientific testimony or specialized knowledge to a trier of fact with respect to placing dollar values on human lives or on the enjoyment of value to a human life or the enjoyment of it with validity or reliability." Def. Ex. A at 2. Dr. Rhodes attacks certain portions of Dr. McDonald's report, but without the report the Court cannot assess adequately the factors it must consider.2004
Though the appellants do not argue this point on appeal, the appellees have noted that the appellants retained an economist to provide expert testimony about loss-of-life damages. This expert testimony was the subject of a motion in limine filed by the appellees, requesting that the expert testimony be excluded. However, the trial court did not reach the issue of the motion in limine because it granted summary judgment on the claim for loss-of-life damages. In a case decided three decades ago by this court, we determined that there is no hard and fast rule to determine compensatory damages for non-pecuniary losses:
No rule has been established - and in the nature of things none can be - for determining what compensation should be paid for loss of life, for pain and suffering, for loss or decrease of earning power, for mental anguish accompanied by physical injury, for loss of companionship, and for the various elements entering into damage actions.
While we do agree with the appellees that the determination of damages is within the purview of the jury, without a trial court ruling or order before us on the issue of expert testimony, this issue is not ripe for consideration.[Although not named in the decision, Stan V. Smith was the plaintiff expert proffering value-of-life damages and Thomas R. Ireland was the defense expert opposing such testimony.]
The individual defendants move to bar or limit Lewis' expert economist, Stan Smith, from testifying regarding losses attributable to: (a) lost wages and employee benefits, (b) replacement services, such as advice, counsel, guidance and instruction, (c) enjoyment of life, and (d) society or relationship . . .Lewis concedes the motion with respect to Smith's opinions about loss of advice, counsel, guidance and instruction, loss of accompaniment services, loss of value of life, and loss of society or relationship. . . . Lewis' concession is not surprising given the number of courts that have excluded testimony in these categories. See, e.g., Mercado v. Ahmed, 974 F.2d 863 (7th Cir. 1992); Ayers v. Robinson, 887 F. Supp. 1049 (N.D. Ill. 1995) Doe v. Tag, Inc., 1993 U.S. Dist. LEXIS 16356, at *7-9 (N.D. Ill. Nov. 16, 1993); Saia v. Sears Roebuck & Co., Inc., 47 F. Supp. 2d 141 (D. Mass. 1999). Accordingly, the motion in limine is granted with respect to Smith's testimony relating to loss of advice, counsel, guidance and instruction, loss of accompaniment services, loss of value of life and loss of society or relationship.(5) Foradori v. Captain D’s, 2005 U.S. Dist. LEXIS 47843 (N.D. MS). This decision of Judge Michael P. Mills excluded the hedonic damages testimony of G. Richard Thompson, saying:
Captain D's motion to strike the testimony of plaintiff's expert G. Richard Thompson, Phd, who has been called to testify regarding plaintiff's damages, will be granted, to the extent that he seeks to offer expert testimony regarding the pecuniary value of any hedonic damages suffered by Foradori. After reviewing Dr. Thompson's report and the methodologies used therein, the court views his hedonic damages testimony as quintessential "junk" science excluded by Daubert.. See, e.g. Davis v. ROCOR Intern., 226 F.Supp.2d 839 (S.D. Miss. 2002) (excluding hedonic damages expert testimony pursuant to Daubert). Indeed, the notion that Dr. Thompson is able to assign the precise value of $ 1,164,300 to plaintiff's loss of enjoyment of life borders on the absurd, and the specific methodologies used by Dr. Thompson in arriving at this figure strengthen this court's conclusion in this regard.(6) Raigosa v. Roadtex Transp. Corp., 2005 U.S. Dist. 50001 (D. NM 2005). Dr. Everett Dillman was not permitted to provide per diem hedonic damages testimony by U.S. Magistrate Judge Richard L. Puglisi, who said:
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.2006
Defendant has brought a Renewed Motion to Strike the Second Expert Report of Stan Smith - Plaintiff’s expert on the issue of hedonic damages. Plaintiff does not oppose the merits of the Motion since Plaintiff is no longer pursuing hedonic damages. Accordingly, Defendant’s Motion is GRANTED.( 2) Mitchell v. Board of County Commissioners, 2007 U.S. Dist. LEXIS 55674 (D. N.M. 2007). This was a decision that a person who had been injured after arrest could not unilaterally withdraw his demand for a jury trial for the purpose of assessing damages so that the Court did not award damages at the current time. However, Judge Browning’s order described in some detail the damages calculations of “William Jennings Patterson, III, a forensic economist.” The order said: “Patterson has been the sole proprietor of the firm, Legal Economics, since 2000 and has been employed by the firm since 1986. . . Patterson has a bachelor’s degree in economics, and has testified as an expert in state and federal courts in New Mexico and Texas.” The order discusses details of Patterson’s calculations for “incurred and future medical expenses,” household services, and “pleasure of life.” In the latter category, Patterson testified about the value of life literature, testifying that “in calculating the present value of lost value of life, it is his practice to calculate a benchmark similar to the figures he calculated related to medical expenses and household services. . . . Patterson calculated that the present value per $10,000 per year lost is $353,254. . . . Patterson did not, however, calculate the specific value for any pleasure of life Mitchell may have lost; Patterson expressed that, in his opinion, this valuation is an issue for the finder of fact. . . Patterson also stated that he did not compute any value for Mitchell’s pain and suffering, because economists do not have a marketplace or reliable statistical study to base such calculations.”
[N]othing indicates that Mr. McKinnon's theory is testable; the studies on which he bases his testimony produce values ranging from $6.1 million to $12.9 million, suggesting very broad and flexible parameters. Although Mr. McKinnon purportedly relies on "published [i.e., peer reviewed] research" regarding the value of life, theories of hedonic damages attempting "to monetize that portion of the value of life which is not captured by measures of economic productivity" are highly controversial. . . . Neither Mr. McKinnon nor Plaintiff suggests the existence of any known or potential error rate. The controversy that exists among economists and others regarding the meaning and use of such studies does not indicate a general acceptance of such testimony in the relevant community. Applying these factors leads the Court to conclude that Mr. McKinnon's proposed testimony is not reliable. Moreover, this Court is persuaded by the weight of authority rejecting expert testimony that attempts to quantify hedonic damages as unreliable, untestable, and failing to meet the requirement of general acceptability.2009
Smith's damages were based solely on the expert testimony of Dr. Stanley Smith, a forensic economist (who is not related to the plaintiff), which defendants argue should not have been admitted. It is true that Dr. Smith's testimony was hardly a model of exactitude, and in retrospect, it perhaps should have been excluded, but it is equally true that from every appearance, the jury did not base its damages award on those portions of Dr. Smith's relatively brief testimony that veered from the mundane into the purely speculative. (The court instructed the jury to disregard Dr. Smith's attempt to import a wholly conjectural potential tax liability into his “willingness to pay" econometric model and refused to admit his written report in evidence). It appears rather that the jury based its far less ambitious awards against those defendants it found liable on a common-sense assessment of the impact that the ruin of Smith's credit had (and will have) on his emotional health and future earning prospects. . . As the court is of the view that Dr. Smith's testimony (to the extent the jury was permitted to consider it) had no pernicious influence on the damages award, it will reject this argument.(2) Anastasion v. Credit Service of Logan, Inc., 2011 U.S. Dist. LEXIS 116271 (D. UT 2011). The Court granted a motion in limine to exclude the hedonic damages testimony of Stan V. Smith in a credit loss case involving no physical injury. The Court said:
[W]ith respect to Dr. Smith's testimony regarding reduction in the value of Plaintiff's life, or hedonic damages, the Court will grant Defendant's Motion. Plaintiff argues in her Reply that this evidence should be admissible, arguing that Dr. Smith is extremely qualified, that his testimony is based on reliable economic and scientific methods, and that it has received extensive peer review and acceptance. Plaintiff further states that hedonic damages are "used by every federal regulatory agency." However convincing these arguments may be, they do not change the fact that hedonic damages are used to approximate the loss of the value of life, and therefore are used in cases involving death or injury. As Plaintiff herself states, when "every federal regulatory agency" uses hedonic damages, it is "in analyzing the potential impact to life or limb." Furthermore, the three Tenth Circuit cases that have mentioned hedonic damages all involve either physical injury or loss of life. As Plaintiff has not suffered the loss of life or limb, testimony regarding hedonic damages will not assist the trier of fact. Therefore, the Court will grant Defendant's Motion with respect to this testimony. (Footnotes omitted.)(3) Gurule v. Ford Motor Company, 2011 N. M. Unpubl. LEXIS 51 (N.M. App. 2011). The New Mexico Court of Appeals held that it was not in error for the trial court judge to have admitted the hedonic damages testimony of William Patterson. The Court said:
While we recognize that most courts have found quantifying the value of a human life, including the loss of enjoyment component, to be based on an unreliable methodology post-Daubert, we do not believe that the district court erred in finding Patterson's testimony reliable. . . Contrary to Defendant's characterization of Patterson's testimony, Patterson's testimony was mostly definitional in nature as to the types of considerations that can be taken into account when an economic value is placed on the enjoyment of a human life. He testified that economists have used several differing methods in valuing a human life, including the enjoyment component, and that application of these methods has led to a wide disparity in the dollar amounts that economists have provided as benchmarks. He then provided a very broad range of values for an individual Gurule's age, based on present value calculations of an annual range determined by a meta-study that averaged 67 individual studies to exemplify the wide divergence between economists in determining the value of the enjoyment of life. We cannot say that the district court abused its discretion in finding that this testimony had a reliable basis. . . Patterson testified only as to the theories and techniques economists use in determining the value of a human life, and his calculations were not based on his personal perceptions on the value of enjoyment of life, but instead were based on values derived from a benchmark meta-study. As to Patterson's qualifications, he has a bachelor's degree in economics, has taught a variety of economic topics, has authored materials on a variety of legal-economic topics, including the valuing of life, has been an expert in court over 120 times, including testimony regarding hedonic damages, and has been retained by Defendant in other cases. Additionally, Defendant cross-examined Patterson both on his qualifications and on his testimony. A general economic background in conjunction with experience as an expert are sufficient qualifications for expert testimony on the economic theories underlying the values provided by benchmarks studies on loss of enjoyment of life and calculating the present value of a range of benchmarks. . . Based on the nature of Patterson's testimony and his background, we cannot say that the district court abused its discretion in finding that Patterson was qualified as an expert.(4) Rivera v. Passaic County, 2011 U.S. Dist. LEXIS 8069 (D. N.J. 2011). This decision related to whether the estate of Jesse M. Rivera could claim hedonic damages (loss of enjoyment of life) for a period of time prior to his death from hanging himself while in the general prison population. The defense argued that since Rivera attempted suicide, Rivera was obviously not enjoying his life. The District Court held that argument to be unavailable. The Court also relied upon the New Jersey decision in Eyoma v. Falco, 247 N.J.Super. 435 (1991) to hold that Rivera’s estate could claim hedonic damages during the period after hanging but before death when Rivera was comotose, but still alive, but ended when Rivera died. The final question related to when the period of hedonic damages loss began. The plaintiff wanted the period of hedonic damages to begin when Rivera was removed from suicide watch and placed in the general prison population on October 9, 2008. The District Court ruled with the defense that hedonic damages only began when Rivera hanged himself on the morning of October 13, 2008 and died seven hours later. Thus, the period of time during when the estate of Rivera was entitled to recover hedonic damages was seven hours. There was no mention of an economic expert in the decision.
[M]any of the affidavits do not address the use of ‘value of life’ figures to calculate the value of loss of society damages, many are duplicates and some are from Stan Smith himself. These affidavits do not negate the economists’ responses in a 2009 survey in the Journal of Forensic Economics which asked economists if they would be willing to calculate hedonic damages in an injury case. Of the economists who responded, 83.6% responded because such damages ‘are far too speculative to quantify’ and ‘[t]his should be left up to the trier of fact.’Judge Steeh concluded that: “Smith’s testimony concerning loss of society damages is inadmissible because it is irrelevant and unreliable.”
To the extent Plaintiff seeks to introduce evidence of reduction of value of life, or "hedonic” damages, such evidence is not relevant where Plaintiffs termination is not properly before the Court. Plaintiffs expert testimony is speculative and unreliable and will not be helpful to the jury. The jury would be able to make its own decision on damages if it finds intentional infliction of emotional distress. Accordingly, Defendants' Motion in Limine No. 2 is granted.(3) Flowers v. Lea Power Partners, 2012 U.S. Dist. LEXIS 67359 (D.N.M. 2012). Judge James Parker held that Dr. Brian McDonald could testify about the definition of hedonic damages and the components of life that may be considered in calculating hedonic damages, but may not testify about an dollar range of values attributable to a statistical life. The plaintiff had also argued that the Court should strike an affidavit by Dr. Thomas Ireland in the case of Esquibel v. John Q. Hammons, LLC, that the defendant at attached to the defendant’s motion in limine. The judge held that because the affidavit was relevant to hedonic damages, the affidavit would be considered in ruling on defendant’s motion. Judge Parker then quoted Ireland’s affidavit extensively in his decision.
[Thomas R.] Ireland may not provide testimony at trial that challenges the “hedonic damages” approach to a determination of the the loss of enjoyment of life, or that the use of the “values of statistical life” studies are not scientifically reliable or valid to use in the determination of the value of life. These conclusions are contrary to the law of New Mexico. Further, Mr. Ireland may not provide testimony that is his lay person intepretation of the law. This is an improper invasion of the Court’s exclusive role in instructing the Jury on the law.(8) Bolden v. Walsh Group, 2012 U.S. Dist. LEXIS 44351 (N.D. IL 2012). This was a putative class action filed by twelve black employees. U.S. District Judge Joan Humphrey Lefkow limited the testimony of Dr. Stan V. Smith regarding his class damages calculations and excluded Smith’s hedonic damages projections entirely, saying:
Walsh objects to Smith's calculation of hedonic damages, which Smith describes as the damages attributable to the class members' "loss of enjoyment of life" as a result of Walsh's discriminatory employment practices. His method is based on a "willingness to pay" model for calculating the value of a life, which looks at consumer purchases, wage risk premiums, and regulatory cost-benefit analysis to determine a value that society places on an individual human life. (Smith Rep't, App'x E at 1.) Smith concludes that the statistical value of a human life is $4.2 million and estimates that black Walsh employees would sustain a 10 percent loss of enjoyment of life as a result of racial discrimination. (Id. at 2.) In support, Smith cites an article that describes a conceptual approach for applying estimates of the loss of the pleasure in life (referred to as hedonic damages) in personal injury cases. See Edward P. Berla, Michael L. Brookshshire & Stan V. Smith, Hedonic Damages and Personal Injury: A Conceptual Approach, J. of Forensic Economics, Vol. 3, No. 1, pp. 1-8 (1990). As Smith admitted in his deposition, however, he is aware of no studies that apply hedonic damages in the context of a hostile work environment or otherwise discriminatory environment. (Smith Dep. at 173-74.) His estimate of a 10 percent loss in enjoyment of life is an assumption that is not subject to any scientific testing, and the estimate may vary depending upon the fact-finder's determination of individualized damages. (Id.; Smith Rebuttal Rep't at 18-19.) Plaintiffs have cited no case or peer-reviewed article where hedonic damages were used to determine the "loss of enjoyment of life" that results from employment discrimination. Smith's calculation of hedonic damages will be excluded.2013
BANA has moved to exclude all of the testimony of the Allens' designated damages expert, Stan V. Smith, asserting that he is unqualified to offer his proposed expert opinions and that the opinions themselves are irrelevant and unreliable. The Allens seek to offer his testimony on two types of damages they allegedly suffered because of BANA's actions: loss of credit expectancy and "hedonic damages" (also known as "loss of enjoyment of life"). The Allens, in turn, have moved to exclude the expert BANA seeks to offer to rebut Smith's testimony. For the reasons set forth below, Smith's testimony on "hedonic damages" will be excluded (as will any testimony by BANA's expert rebutting as much), but the parties' motions will otherwise be denied without prejudice as the relevance and reliability of their expert opinions on the Allens' credit expectancy is an issue for trial.
BANA's argument seeking to exclude Smith's testimony on "hedonic damages" largely focuses on Smith's qualifications and the reliability of his opinions on this issue. Setting aside the question of Smith's credentials and methods, which raise significant doubts about his proposed expert opinions, the court finds that any testimony on so-called "loss of enjoyment of life" or "hedonic damages" would not "help the trier of fact to understand the evidence or determine a fact in issue" as required by Fed. R. Evid. 702(a). See, e.g., Mercado v. Ahmed, 974 F.2d 863, 870-71 (7th Cir. 1992). While the Allens are correct that they may seek "noneconomic damages" for emotional injuries they suffered because of BANA's actions, (citations deleted) a jury is perfectly capable of determining such damages without any expert testimony (citations deleted). The court is not convinced that an expert whose opinion is based almost entirely on asking lay persons how a particular event has affected their enjoyment of life would provide any assistance to the jury in making that determination for themselves. Accordingly, BANA's motion to exclude testimony on this topic will be granted.(2) Case v. Town of Cicero, 2013 U.S. Dist. LEXIS 148656 (N.D. IL 2013). Item H in this memorandum concerned the admissibility of hedonic damage testimony by Stan V. Smith in this personal injury claim. Magistrate Judge Daniel G. Martin limited Smith’s testimony as follows:
Smith may explain what hedonic damages mean and the general factors that are ordinarily considered part of such damages. No dollar amount may be cited, nor may Smith propose any methodology by which the jury could calculate Nicholas’ hedonic damages. This testimony will help the jury carry out its fact-finding function to determine an appropriate amount of damages.(3) Smith v. Dorchester Real Estate, Inc., 2013 U.S. App. LEXIS 20785 (1st Cir. 2013). In an appeal from a federal district court in Massachusetts, the 1st Circuit held that it was reversible error for the trial court to have admitted the hedonic damage and loss of credit expectancy testimony of Stan V. Smith (not the plaintiff). The 1st Circuit also remanded to the trial court a consideration of Dr. Smith’s loss of time calculations. The decision provided extensive explanation of the methods used by Smith for each of Smith’s calculations, with extensive citations of previous decisions disallowing Smith’s hedonic damages testimony. The court also rejected Smith’s method for calculating the value of lost credit expectancy as a mere possibility and unhelpful to a jury, saying: “Absent evidence to the contrary, Smith’s loss of future credit expectancy at the rate calculated by Dr. Smith was merely in the realm of possible harm. As such, it was speculative and should have been excluded.” The court went on to stress that loss of credit expectancy was a compensable harm if properly calculated.
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.2015
Even assuming Dr. Smith arrives at his "value of life" number in a scientifically reliable way, reducing it by, say, 25 percent would arrive at the value of a life that has been cut short by 25 percent, not at a life that is of the same duration but 25 percent less enjoyable. In order to be useful to the jury, Dr. Smith would have had to start with the value of the enjoyment of the Plaintiff's life but-for the events at issue in this case and then reduce that figure by the percentage of enjoyment she has lost; instead, he started with what he purports to the overall value of her life. Dr. Smith offers no explanation why he believes the value of a person's life is the same as the value of the enjoyment of a person's life, and, as the First Circuit held [Citing Smith v. Jenkins, 732 F.3d 51, 66 (1st Cir. 2013)], "[t]hat Dr. Smith may equate [the two] is not enough to bridge that gap." Accordingly, Dr. Smith's testimony regarding hedonic damages lacks a factual basis and therefore fails to satisfy Rule 702 and will not be admitted. [Footnotes removed from quotation.]On wage loss, Smith had made speculative assumptions with respect to both the Plaintiff’s pre-injury earnings and post-injury earnings that Judge Lawrence rejected, particularly given that the Plaintiff was earning more at present than projected by Smith.
Hedonic damages are recoverable in § 1983 wrongful death cases. See Romero v. Byers, 1994-NMSC-031, 117 N.M. 422, 428, 872 P.2d 840, 846 (1994). Similarly, the Tenth Circuit has allowed an expert witness to provide "an explanation adequate to insure the jury did not ignore a component of damages allowable under state law" by offering "his interpretation of the meaning of hedonic damages" and identifying "four broad areas of human experience which he would consider in determining those damages." See Smith v. Ingersoll-Rand Co., 214 F.3d 1235, 1246 (10th Cir. 2000). Based on this authority, Mr. Patterson will be permitted to offer generalized testimony about the concept of hedonic damages, and the Motion will be denied in part as to that aspect of Mr. Patterson's proffered testimony.2016
The majority rule in federal courts, however, is that expert testimony which places a dollar figure before the jury in an attempt to quantify the value of a human life in monetary terms is inadmissible and does not meet the relevance and reliability factors set forth in Daubert and its progeny. See Smith, 214 F.3d at 1244-45; Raigosa v. Roadtex Transp. Corp., No. 04 CV 305 RLP/WDS, Doc. 60, at 4-5, 2005 U.S. Dist. LEXIS 50001 (D.N.M. Feb. 10, 2005) (unpublished). Thus, the Court will not allow Mr. Patterson to testify as to the monetary value of Mr. Dominguez's hedonic damages, and will not permit Mr. Patterson to express any opinion testimony regarding a numeric formula such as "benchmark figure," "guideline," or "range of values" to be used in calculating such damages. BNSF Ry. Co. v. LaFarge Southwest, Inc., No. 06 CV 1076 MCA/LFG, 2009 U.S. Dist. LEXIS 132152, 2009 WL 4279849, *2 (D.N.M. Feb. 9, 2009) (unpublished). See also Myers v. Williams Manufacturing, Inc., No. 02 CV 157 WPJ/ACT, MEMORANDUM OPINION AND ORDER ON MOTIONS IN LIMINE (Doc. No. 151) at 7, 2003 U.S. Dist. LEXIS 29102 (Nov. 14, 2003) (precluding an economics expert from testifying about hedonic damages using a $10,000 benchmark). The underlying methodology used to arrive at the quantitative measurements of the value of human life "does not meet the relevance and reliability requirements of Daubert and its progeny and will not assist the jury, regardless of whether the figure, formula, or 'range of values' in question is assigned to a specific decedent, a hypothetical individual, a statistical person, or a generic benchmark or guideline." BNSF Ry Co., 2009 U.S. Dist. LEXIS 132152, 2009 WL 4279849, *2. Accordingly, the Motion will be granted in part and all testimony from Mr. Patterson that ascribes an amount to hedonic damages, or the value of the enjoyment of life, will be excluded as unreliable and unhelpful to the jury.
New Mexico allows an injured party to recover hedonic damages. UJI 13-1807A NMRA. The concept of hedonic damages is premised on "the rather noncontroversial assumption that the value of an individual's life exceeds the sum of that individual's economic productivity." Smith, 214 F.3d at 1244 (10th Cir. 2000). The Tenth Circuit and numerous cases from this District have excluded expert testimony on hedonic damages from an economist who attempts to testify to a specific dollar figure, benchmark figures, or a range of values to be used in calculating such damages, but have allowed testimony about the concept of hedonic damages and the broad areas of human experience the factfinder should consider in determining those damages. Id. at 1245-46; Kretek v. Bd. of Comm'rs of Luna Cty., No. 11-cv-0676 KG/GBW, 2014 U.S. Dist. LEXIS 188299, at *4 (D.N.M. Feb. 26, 2014) (unpublished); Flowers v. Lea Power Partners, LLC, No. 09-cv-0569 JAP/SMV, 2012 WL 1795081, at *4 (D.N.M. Apr. 2, 2012) (unpublished); BNSFRy. Co. v. LaFarge Sw., Inc., No. 06-cv-1076 MCA/LFG, 2009 WL 4279849, at *1 (D.N.M. Feb. 9, 2009) (unpublished). I will follow this well-established law and will allow Dr. Smith to testify about the concept of hedonic damages and the general method for calculating them within the parameters set out in the cases. However, he will not be allowed to testify as to any certain dollar amount quantifying the alleged hedonic losses. See Smith, 214 F.3d at 1245-46.(2) Otero County Hospital Association, Inc., Quorum Health Resources, LLC, 2017 Bankr. LEXIS 2245 (United States Bankruptcy Court for the District of New Mexico, 2017). The defense moved to exclude the hedonic damages testimony of Dr. Brian McDonald in this bankruptcy case. Judge Robert H. Jacobvitz held that:
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).(3) 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 follows:
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.
[E]ven if Dr. Smith's methods of calculation were reliable, the VSL studies on which his expert opinion depends establish only how the overall value of a life is measured in the field of economics, not how enjoyment of life is measured, which is the relevant question the jury must resolve in awarding hedonic damages.(6) Hannibal v. TRW Vehicle Safety Sys., Inc.,2018 U.S. Dist. LEXIS 134318 WL 377500 (E.D. AR 2018). The value of life testimony of Dr. Rebecca Summary was excluded by Federal District Judge J. Leon Holmes, saying:
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.").(7) Griego v. Douglas, 2018 U.S. Dist. LEXIS 26933 (D. N.M. 2018). Magistrate Judge Karen B. Molzen held that:
(8) Stachulski v. Apple New England, LLC, 2018 N.H. LEXIS 133 (N.H. 2018). This decision held that awards for hedonic damages and pain and suffering are available for cases involving injuries that are not permanent injuries. Testimony at issue was testimony of Dr. Seth Rosenbaum, who had testified at trial about the plaintiffs loss of enjoyment of life and pain and suffering caused by non-permanent injuries. The decision also reviewed case law in New Hampshire regarding hedonic damages.
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).(3) Soria v. United States Bank N.A., 2019 U.S. Dist LEXIS 70068 (C.D. CA 2019). This case involved an injury to the credit of Samuel Soria because of identity theft by an employee of U.S. Bank. The plaintiff economic expert was Dr. Stan V. Smith, who projected losses of credit expectancy and the value of the lost time Soria had spent dealing with inaccurate reporting. The court excluded Smith’s testimony on loss of credit expectancy, describing Smith’s testimony as follows:
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.The Court indicated that this part of Dr. Smith’s testimony was inadmissible because Smith provided no analysis regarding how he arrived at the figure of $60,000, which was significantly in excess of Soria’s annual earnings during the previous three years. However, the Court allowed Smith’s testimony regarding Soria’s allegedly lost time, valued at $27.67 in 2017 dollars, indicating that the hourly value goes to the weight, but not the admissibility of Smith’s testimony. Smith had also calculated hedonic damages for Soria, but the plaintiff had withdrawn that claim before this decision.
[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.(5) McKay v. City of St. Louis, 2019 U.S. Dist. LEXIS 55690; 2019 WL 1436972 (E.D. MO 2019). Regarding Dr. Stan V. Smith and “hedonic damages,” Federal District Judge John A. Ross said:
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 issue of hedonic damages is derivative of any constitutional violation Plaintiff may have suffered. In light of the Court's ruling that Defendants are entitled to summary judgment and qualified immunity, it concludes that Dr. [Stan] Smith's testimony regarding damages is moot and that nothing in Dr. Smith's report affects the Court's analysis of Plaintiff's substantive § 1983 claims.(6) Cramer v. Equifax Info. Servs., 2019 U.S. Dist. LEXIS 161062 (E.D. MO 2019). This memorandum by Federal District Judge Charles A. Shaw excluded hedonic damages testimony by Dr. Stan V. Smith, plaintiff’s economic expert. This was a case that involved an alleged injury to the plaintiff’s credit caused by actions of Equifax Information Services under the Fair Credit Reporting Act (FRCA), but no physical injury was involved. Regarding hedonic damages, Judge Shaw said:
[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.However, Judge Shaw also ruled that Smith would be permitted to testify about loss of credit expectancy if the plaintiff was able to develop a basis for arguing that there was some tangible loss and would be able to testify about the value of plaintiff’s loss of time spent resolving her credit problems.
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.(8) Walker v. Spina, 2019 U.S. Dist. LEXIS 5275 (D. N.M. 2019). In response to a motion in limine to exclude the hedonic damages testimony of William Patterson, Federal Judge James O. Browning, interpreting New Mexico law, allowed Patterson to explain the general concept of hedonic damages, but relying upon Smith v. Ingersoll-Rand, 214 F.3d 1235 (2000), limited Patterson’s testimony as follows:
Mr. Parkman may testify as to the four factors he utilized in valuing hedonic damages — specifically the effect that the injury had on "the ability to enjoy the occupation of your choice," "activities of daily life," social leisure activities," and "internal well-being." The Tenth Circuit permits expert testimony on these exact four "broad areas of human experience which [an expert] would consider in determining [hedonic] damages."(10) 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.
[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")2020
[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 Plaintiff had 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. Judge Johnson's order 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.
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.Judge Brodie also cited many prior decisions excluding the hedonic damages testimony of Smith.
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.(8) 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.
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.(10) Estate of Smart v. Chaffee, 2020 U.S. Dist. LEXIS 241444 (D. KS 2020). This case involved the fatal shooting of Marquez Smart by police officers in Wichita, Kansas, and was brought under Section § 1983 of the Federal Civil Rights Act. At issue was whether hedonic damages could be claimed in wrongful death claim under Section § 1983 even though not authorized under the Kansas Wrongful Death Act. The Court cited a number of cases hold that hedonic damages were recoverable under Section § 1983, even though not authorized under the Kansas Wrongful Death Act. Expert testimony about hedonic damages was not addressed in this decision.
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.(2) Moe v. Grinnell College, 2021 U.S. Dist. LEXIS 239863 (D. IA 2021). Federal District Judge Rebecca Goodgame Ebinger granted a defense motion to exclude the hedonic damages testimony of Dr. Stan V. Smith, saying: Smith's hedonic damages calculation is not sufficiently reliable for admission at trial because the method is not testable, has not been peer reviewed, lacks governing standards, and is not generally accepted by economists. Additionally, Smith's method to determine the percent reduction in the value of life is not based on objective indicia because it relies on self-reported percentages. Furthermore, hedonic damages are not relevant because Moe has not experienced physical injury or death. As a result, the portion of Smith's expert report and related testimony concerning hedonic damages is inadmissible under Rule 702. The probative value of Smith's expert report is also outweighed by the threat it poses of misleading the jury. The Court excludes the portion of Smith's expert report concerning hedonic damages and related testimony under Rule 403.
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).(4) Crouch v. Master Woodcraft Cabinetry, LLC, 2021 U.S. Dist. LEXIS 172785 (E.D. AR 2021). Federal District Judge Kristine G. Baker excluded the value of life testimony of Dr. Ralph Scott, citing the decision in Hannibal v. TRW Vehicle Safety Sys., Inc., WL 377500 (E.D. AR 2018) by Federal Judge J. Leon Holmes excluding the proposed value of life testimony of Dr. Rebecca Summary. The Hannibal decision included discussion of the exclusion of Dr. Stan V. Smith in Smith v. Jenkins, 732 F.3d 51 (D. MA 2013). Judge Baker said:
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).(5) Shipley v. Hunter Warfield, Inc., 2021 U.S. Dist. LEXIS 208718 (M.D. FL 2021). Dr. Stan V. Smith calculated five types of damages suffered by the plaintiff that resulted from an inadequate investigation for the plaintiff: (1) the loss of credit expectancy; (2) additional auto-loan interest; (3) the loss of mortgage expectancy; (4) the value of time spent; and (5) the reduction in value of life ("RVL"), also known as loss of enjoyment of life or “hedonic” damages." The defendant moved to exclude Smith’s opinion in it entirety, but focused on hedonic damages. The plaintiff did not oppose exclusion of Smith’s hedonic damages testimony and that testimony was excluded. Smith was also not permitted to testify about the value of the plaintiff’s time trying to remedy the alleged inadequate investigation, but was permitted to testify about mortgage expectancy and interest rates available without the impact of the inadequate investigation.
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.She cited a number of legal decisions excluding expert testimony on the issue of hedonic damages and indicated that courts have been particularly skeptical of “willingness-to-pay” methods for calculating hedonic damages.
The Nevada Supreme Court has permitted economists to use various methods to arrive at their conclusions on hedonic loss, including a "willingness-to-pay method" similar to the one utilized by Smith in this case. Id. at 62-63. Smith uses his "willingness-to-pay method" but uses different data and sources to arrive at his conclusions than the expert in Banks [Banks v. Sunrise Hospital, 2004]. This difference is properly addressed on cross-examination. The Court is confident that Smith's testimony is not substantially more prejudicial than probative and that it will not confuse the issues or mislead the jury. As stated previously, Smith's report merely gives the jury a framework with which to determine a damages amount. Target will have the opportunity to attack Smith's data and calculations on cross-examination, but it will be up to the jury to determine the credibility of the witness and the weight to give his report.(4) Miller v. Juarez Cartel, 2022 U.S. Dist. LEXIS 112463 (D. N.D. 6-24-2022). This was a judicial ruling by Federal Magistrate Judge Clare R. Hochhalter in an ATA (Anti-Terrorism Act) case involving deaths and injuries to two American families by the Juarez Cartel. The defendant was not represented and there was no expectation that the defendant would pay awarded damages. The case was bench-tried and expert reports were submitted in writing. Damage opinions of economic expert Stan V. Smith for one group of plaintiffs and by J. Matthew Sims for another group of plaintiffs were reported in the decision. Smith’s opinions included loss of wages and benefits, loss of household services, loss of guidance and counsel, loss of accompaniment services, life care services of one decedent for a family member, value of life of decedents, or loss of society and relationship. Sims’s damage opinions included loss of wages and benefits, household services and care for fellow family members, and cost of vocational rehabilitation for injured minor children. Sims did not include guidance and counsel, loss of accompaniment services, value of life, or loss of relationship, but Judge Hochhalter included amounts based on Smith’s calculations for the first group of plaintiffs.