2nd Circuit

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. 

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."

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."

3rd  Circuit

    Court of Appeals

Livingston v. United States, 817 F.Supp. 601 (E.D.N.C. 1993). Rejected hedonic damage testimony by Gary Albrecht.

Sterner v. Wesley College, Inc., 747 F.Supp. 263 (D.De.1990). Rejected hedonic damage testimony by Stan V. Smith. 

5rd  Circuit

    Court of Appeals

Smith v. Harrah’s New Orleans Management, 2007 U.S. App. LEXIS 893 (5th Cir. 2007). This is an unpublished opinion. Kenneth Boudreaux was the economic expert for the defendant, but there was no economic expert for the plaintiff. Boudreaux’s calculations are described in the decision and were accepted by the Court. The Court said: “Awards for lost earnings ‘are inherently speculative and intrinsically insusceptible of being calculated with mathematical certainty.’ Melancon v. Lafayette Ins. Co., 926 So. 2d 693, 708 (La. Ct. App. 2006) (internal quotation omitted). Accordingly, such damages need only be shown with ‘such proof as reasonably establishes the plaintiff’s claim.’ Id.; see also Gunn v. Robertson, 801 So. 2d 555, 565 (La. Ct. App. 2001) (‘Future loss of earnings, which [is] inherently speculative, must be proven with a reasonable degree of certainty, and purely conjectural or uncertain future loss of earnings will not be allowed.’) This decision also discusses awards for “loss of life enjoyment” in Louisiana at some length, indicating that “loss of enjoyment of life” awards are normally smaller than “pain and suffering” awards. The decision distinguishes between “special damages” and “general damages” under Louisiana law. “Loss of earnings is a “special damage” because it can be calculated with relative certainty, while “loss of enjoyment of life is a “general damage.” Because general damages are “not susceptible to monetary quantification,. . . the jury necessarily has broad leaway.” (Citation omitted).

Transco Leasing Corporation v. United States, 896 F.2d 1435 (5th Cir. 1990). This decision holds that an FTCA action being tried under Louisiana law was not bound to follow the 5th Circuit rule requiring use of a “below market” discount rate as set forth in Culver v. Slater Boat Co., 722 F.2d 114 (5th Cir. 1983). There is extended analysis of why Louisiana law rather than Texas law should apply in this matter. The decision also provides an extended comment about valuing the loss of love, affection and guidance. The 5th Circuit said: “‘The loss of a loved one is not measurable in money. Human life is, indeed priceless. Yet the very purpose of the lawsuit for wrongful death is to fix damages in money for what cannot be measured in money’s worth.’ Caldarera v. Eastern Airlines, Inc., 705 F.2d 778 (5th Cir. 1983). When we discuss the loss of love in terms of money, we feel more than a little ghoulish in engaging in such surreal exercises. This fiction of reducing love to a monetary figure is a difficult and distasteful task for a court.”

    District Courts in the 5th Circuit (LA, MS, TX)

Am. River Transp. Co. v. US Maritime Servs (In re Am. River Trans. Co), 2007 U.S. App. LEXIS 14464 (5th Cir. 2007).  The 5th Circuit held that parents of a 24 year old man wrongfully killed while working as a longshoreman in territorial waters could not recover under maritime law for loss of society with their decedent son. This decision provides a review of the evolution of maritime law on the question of loss of society between adult children and parents and points out a conflict between other federal circuits and the 9th Circuit on this question.

Augustin v. Hyatt Regency of New Orleans, 1992 U.S.Dist. Lexis 1061 (E.D.La. 1992). Melville Wolfson was not permitted to present hedonic damage testimony based on an interpretation of Louisiana law. 

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.

Craft v. Matlack, Inc., 1992 U.S.Dist. Lexis 7978 (E.D.La. 1992). Rejected hedonic damage testimony by Melville Wolfson based on 5th Circuit rules.

Davis v. Rocor International, 226 F.Supp.2d 839 (S.D.Miss. 2002). A Daubert standard was applied to the proffered expert testimony of Dr. Stan Smith in several areas. The hedonic damages testimony of Stan Smith was rejected on the grounds of not assisting the trier of fact to understand or determine an issue in this case. The loss of society testimony of Stan Smith was rejected on the basis of lack of evidence showing loss of society based on percentages in this personal injury action and on the basis that Smith, as an economist, has not been shown to be qualified as an expert with respect to relationship values. The loss of household services testimony of Stan Smith, projected on the basis of 40 percent, was rejected because there was no showing that Smith, as an economist, is independently qualified to make that determination and that Plaintiffs had not shown that Smith’s opinion would assist the trier of fact in understanding the evidence presented at trial. 

Faciane v. Rhodes, 1997 U.S.Dist. Lexis 17361 (E.D.La. 1997). Melville Wolfson was not permitted to testify about hedonic damages. 

Trabucco v. Hilton Hotels Corporation, 1994 WL 419846 (E.D.LA). Granted motion in limine to preclude hedonic damage testimony by Melville Z. Wolfson.

6th Circuit

Hein v. Merck & Co., Inc., 868 F.Supp. 230 (M.D.Tenn. 1994).  This decision granted a motion in limine to bar hedonic damages testimony by Dr. Richard Palfin. The decision quoted Palfin’s report at length, indicating that Palfin had stated the opinion that the reasonable range for the value of an average person’s enjoyment of life was between $2,079,377 and $4,158,753, with a midpoint at $3,119,065. Since this was a personal injury and Birgit Hein was still alive, Palfin opined that the jury should chose a percentage reduction in the midpoint value of life and gave examples for reductions of 25% and 15%. Judge Wiseman used Daubert criteria to evaluate Palfin’s report of hedonic damages, saying: “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.”

Kurncz v. Honda Motor Company, Ltd., et al., 1996 U.S.Dist. Lexis 6132 (W.D.Mich.1996). A motion in limine was granted to preclude the hedonic damage testimony of Stan V. Smith.

Pomella v. Regency Coach Lines, 899 F.Supp. 335 (E.D. Mich. 1995). Cites Ayers v. Robinson in rejecting an "eyeballing" selection of a value with a range. The Pomella Court cited Ayers as saying that: "(Court would not accept choosing a midpoint value of $3.5 million as a "benchmark" measure of hedonic, or pleasure, value of life for the statistically average life, the true value of which was estimated to lie somewhere between $500,000 and $9,000,000.) As in that case, the data on which plaintiff relies 'goes to one thing' (friction on snow-covered pavement) while a jury would need information of a very different sort (the abilty to stop on I-94's uneven and potentially icy pavement)." 

7th Circuit

   Court of Appeals

Arpin v. United States, 521 F.3d 7 69 (7th Cir. 2008). This is a Richard Posner decision holding that an award for non economic losses in a decision by a trial court judge was not adequately explained in the trial court judge’s decision. Posner pointed out that: “When a federal judge is   the trier of fact, he, unlike a jury, is required to explain the grounds of his decision. . . One cannot but sympathize with the inability of the district judge in this case to say more than he did in justification of the damages that he assessed for loss of consortium. But the figures were plucked out of the air, and that procedure cannot be squared with the duty of reasoned, articulate adjudication imposed by Rule 52(a). Posner went on to explain how that should be done: “The first step in taking a ratio approach to calculating damages for loss of consortium would be to examine the average ratio in wrongful death cases in which the award for damages was upheld on appeal. The next step would be to consider any special factors that might warrant a departure in the case at hand. Suppose the average ratio is 1:5–that in the average case, damages awarded for loss of consortium are 20 percent of the damages awarded to compensate for other losses resulting from the victim’s death. The amount might be adjusted upward or downward on the basis of the number of the decedent’s children, whether they were minors or adults, and the closeness of the relationship between the decedent and his spouse and children. . . . We suspect that such an analysis would lead to the conclusion that the award in this case was excessive.” The 7th Circuit affirmed the trial court decision on every issue but the award for lost consortium and remanded that part of the decision back to the trial court judge.

Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir. 1984). This was the decision before Sherrod v. Berry that created an argument under Section 1983 of the 1964 Civil Rights Act for recovery for the value of lost enjoyment of the life of a decedent, even in states that do not allow recovery for that category of damages in state cases. It covers cases before 1984 that had interpreted Section 1983. The importance to Sherrod v. Berry was that Illinois, like Wisconsin, has no recovery for loss of enjoyment of life in death cases. Thus, the rationale for allowing enjoyment of life damages was the precedent of Bell v. City of Milwaukee. The issue of whether Section 1983 creates a class of cases in which loss of enjoyment of life in death cases supercedes state law standards is still an unresolved matter.

   District Courts in the 7th Circuit (IL, IN, WI)

Ayers v. Robinson, 887 F. Supp. 1049 (N.D.Ill. 1995). This decision rejected hedonic damage testimony by Stan V. Smith. It quoted extensively from Brookshire and Smith, Economic/Hedonic Damages (1990) and extensively evaluated Ted Miller’s “The Plausible Range for the Value of Life–Red Herrings among the Mackerel,” Journal of Forensic Economics, 1990, 3(3) in performing a Daubert test of the admissibility of Stan Smith’s version of hedonic damages testimony.  The Daubert analysis considered Smith’s proffered testimony on the basis of five factors: (1) benchmark, (2) adjustments, (3) pedigree, (4) empirical data and (5) underlying assumptions.  The decision pointed out that the $3.5 million “central tendency” benchmark was based on results “rang[ing] from the high several hundred thousands well into several millions.” The Court said: “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.” With respect to adjustments, the Court said: “[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).” With respect to “pedigree,” the Court criticized Stan Smith for claiming that the source for hedonic damages testimony was Adam Smith. The Court said: “Unfortunately for Stan Smith, the surname Smith seems to be about the only thing they have in common.” The Court went on to suggest that the “willingness to pay” methodology only goes back to Thomas Schelling. With respect to “empirical data” the Court said: “[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,’” which the Court found fatal under Rule 702 and a basis for exclusion under Rule 403. The Court also criticized the underlying assumptions of the “willingness to pay” model. 

Birdsell v. Board of Fire and Police Commissioners of the City of Litchfield, 1990 U.S. Dist. LEXIS 14961. The court granted defendant’s motion in limine to bar the hedonic damages testimony of Stan Smith, saying: “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. Suggested by David Jones.

Bramlette v. Hyundai Motor Company, 1992 U.S. Dist. LEXIS 13080 (N.D.Ill. 1992). Rejected hedonic damage testimony by Stan V. Smith.

Crespo v. City of Chicago, 1997 U.S. Dist. LEXIS 12820. Rejected hedonic damage testimony by Stan V. Smith.

Johnson v. Inland Steel Company, 140 F.R.D. 367 (N.D.Ill. 1992).  Interpreting both Indiana and federal standards for wrongful death damages by a two magistrate judge panel, the court said: “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.”

Wanke v. Lynn’s Transportation Company, 836 F.Supp. 587 (N.D.Ind 1993). The court ruled that the defendant had not shown that the hurdles to preventing the hedonic damage testimony by Dr. James Bernard were insurmountable. The decision went on to say, however, that the hurdles the plaintiff had to showing that Dr. Bernard was an expert in the area of the economic value of love and affection were “unlikely” to be overcome. The court also made the memorable remark earlier:  “That Dr. Bernard is an economist does not entitle him to state an opinion on every conceivable issue of economics.” 

8th Circuit

    Court of Appeals

Westcott v. Crinklaw, 133 F.3d 658 (8th Cir. 1998).  The district court interpreting Nebraska law had refused to instruct the jury that Arden Westcott’s estate could be awarded hedonic damages, relying on Anderson v. Nebraska Dep’t of Social Services, 248 Neb. 651, 538 N.W.2d 732 (Neb. 1995).  Westcott argued that the application of Anderson was in error because Anderson was not a wrongful death case. The 8th Circuit held that the trial court was correct in its interpretation that Nebraska law prohibits treating loss of enjoyment of life as a separate category of nonpecuniary damages.

     District Courts in the 8th Circuit (AR, IA, MN, MO, NE, ND, SD)

Hernandez v. Flor, 2003 U.S. Dist. LEXIS 1732 (D.Minn. 2003). “Champion and Central Turf challenge Trevino’s testimony because they contend that Trevino, an economist, is not qualified to testify as to the dollar value of emotional services that Cruz provided and would have provided to his family. . . The Court notes that determining damages amounts in a wrongful death case frequently requires a valuation in dollars of the loss of relationship or companionship. . . In many respects, every attempt to calculate damages in a wrongful death suit hinges upon great speculative leaps and assumptions. The Court denies Defendants’ Motions to exclude Trevino’s testimony in its entirety and will determine at trial whether his testimony lacks the requisite foundation or is admissible. 

Sullivan v. United States Gypsum Company, 862 F. Supp. 317 (D.Kan. 1994). Rejected hedonic damage testimony by Stan V. Smith.

Walsh v. Union Pacific Railroad, 2007 U.S. Dist. LEXIS 77379 (D. Neb. 2007). This is an order from Judge Thomas D. Thalken denying defendant’s motion for a new trial. The second of six grounds in the defendant’s the motion for a new trial was that “the court erred in giving jury instruction No. 20 which failed to instruct the jury to reduce any non-economic damages to present value.” The plaintiff contended that both plaintiff’s economic expert Dr. Opp and the defendant’s economic expert Dr. Pflaum had reduced only economic damages to present value. The plaintiff also argued that if the defendant believed that non-economic damages should be reduced to present value, Dr. Pflaum should have addressed that issue. The Court held that the defendant had not objected to jury instruction No. 20 at trial and therefore that the defendant could not now claim that the Court had erred. The Court also cited Chesapeake & Ohio R.  Co. v. Kelly, 241 U.S. 485, 489 (1916) as authority for not reducing non-economic damages to present value.

9th Circuit     

    Court of Appeals

Dorn v. Burlington Northern Santa Fe Railroad Company, 397 F.3d 1183; 2005 U.S. App. 1887 (9th Cir. 2005). This was an appeal of a wrongful death decision under Montana law, not an FELA action. The trial court judge had permitted Stan V. Smith to present hedonic damages testimony, but had not allowed Thomas R. Ireland to testify in opposition to the validity of hedonic damages testimony. As one a number of errors that resulted in a reversal of the trial court decision, the 9th Circuit held that it was in error for the trial court not to have admitted Ireland’s testimony. The 9th Circuit evaluated Montana’s position on hedonic damages and the admissibility of expert testimony on hedonic damages as ambiguous and therefore did not hold that the admission of Smith’s hedonic damages testimony was reversible error. It did, however, express concerns about the validity of that testimony. 

Baron v. Sayre Memorial Hospital, 2000 U.S. App. LEXIS 17731 (10th Cir. 2000).  The 10th Circuit Court of Appeals quoted the trial court decision: "It takes a 'discerning mind . . . to make a strict differentiation between hedonic damages and the loss of pleasure of life as a pain and suffering -- mental pain and suffering component, but certainly damages are contemplated in law for the latter.'" This did not involve the admissibility of an expert witness to testify about hedonic damages. 

City of Hobbs v. Hartford Fire Insurance Company, 162 F.3d 576 (10th Cir. 1998). References an hedonic damages report by Brian McDonald being called "bullshit" by defense counsel. The issues, however related to whether an insurance company had bargained in good faith.

Smith v. Ingersoll-Rand, 214 F.3d 1235 (2000). The 10th Circuit described the trial court decision in detail in affirming the trial court decision to allow Stan V. Smith to explain the concept of hedonic damages, but without providing specific calculations for the plaintiff. The 10th Circuit indicated that the trial court had been in error in assuming that Daubert v. Merrell Dow Pharmaceutical, Inc., 509 U.S. 579 (1993) did not apply to Smith’s testimony, but that this was not reversable error because Smith had not provided specific numbers in explaining the conceptual meaning of hedonic damages. The 10th Circuit said: “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.”  

Anderson v. Hale, 2002 U.S. Dist. LEXIS 28281 (W.D. Ok. 2002).  This memorandum evaluates the admissibility of an economic damages report by Dr. James Horrell that provided projections for lost earnings, lost household services and hedonic damages. Judge Friot sets out a 12 step process for evaluating the admissibility of the lost earnings and lost household services projections of Dr. Horrell under F.R.Civ.P. Rule 26(a)(2). Judge Friot found that the requirements for those calculations were met, however inadequately. Judge Friot then applied Daubert-Kumho standards to Dr. Horrell’s hedonic damages calculation. That calculation consisted of assuming that the value of enjoyment of life had a value of $3,000,000 and that the plaintiff had lost 20% of that amount based on his injury, with a corresponding loss of $600,000. Judge Friot concludes: “[N]either Dr. Horrell’s equation or the numberts he plugs into that equation are substantiated by his report. Moreover, the approach to hedonic damages which Dr. Horrell advocates is demonstrably lacking in “fit” with either the facts of the case or Oklahoma law.”

Garay v. Missouri Pacific Railroad Company, 60 F.Supp.2d 1168 (D. Kan. 1999). The federal district court of Kansas granted a motion in limine to exclude the expert testimony of economist Gary Baker on the lost earnings and the specific value of lost guidance and counsel of a Mexican national who was illegally in the United States when wrongfully killed in Kansas. Baker’s testimony about lost earnings assumed that the decedent would have remained in the United States and Baker admitted knowing very little about earnings in Mexico. Baker’s projection of lost guidance and counsel was rejected on the basis that Baker had no knowledge of the specific amounts of such services the decedent was providing. Baker was permitted to testify as to the unit value (per hour) of such services.

Harris v. United States, 2007 U.S. Dist. LEXIS 96157 (D. N.M 2007). Judge James A. Parker granted a Motion to Preclude Testimony by Plaintiff’s Economic Expert Regarding Computation of Hedonic Damages.” The precluded economic expert was Dr. Brian McDonald. Judge Parker said: “Generally, to be considered reliable, the expert’s proposed testimony must be based on more than a subjective belief or unsupported speculation. Daubert, 509 U.S. at 590.  While the United States Supreme Court in Daubert, 509 U.S. at 592-594, established basic standards by which courts may assess reliability, the Court here need not reach those factors as Dr. McDonald’s description of the proposed benchmark evinces the speculative and subjective nature of that proposed benchmark.” McDonald’s report was described as follows: “Much of Dr. McDonald’s report focuses on various studies concerning the value of a statistical life studies (sic) and the valuation figures contained therein. The brief discussion of the benchmark figure ($50,000 per year for life expectancy) is intermingled with the discussion of statistical life studies despite having ‘no connection’ to them. The report contains no discussion of how Dr. McDonald generated the proposed benchmark figure or any citation to credible sources that support such a figure. As such, the basis of the benchmark figure appears largely arbitrary.” Judge Parker then cites decisions of two other judges in unreported cases as having arrived at similar conclusions with respect to Dr. McDonald’s approach.

McGuire v. City of Santa Fe, 954 F.Supp. 230 (D.N.M. 1996). This order of Judge Bruce D. Black granted defendant’s motion in limine to bar the testimony of Dr. Patricia Murphy, a psychologist, and Dr. John Myers, an economist on hedonic damages in a wrongful termination case. At a Daubert hearing, Dr. Murphy did not testify, but the Court said: “Dr. Myers testified that Dr. Murphy interviewed Plaintiff to determine the extent of Plaintiff’s lost enjoyment of life. Dr. Murphy than applied the data she collected from her interview to her Lost Pleasure of Life Scale and arrived at a percentage value of Plaintiff’s lost enjoyment of life. Dr. Myers testified that it was Dr. Murphy’s role to ‘determine the part of the enjoyment of life that has been lost,’ while it was his role to address what the monetary value of the lost enjoyment is worth.” Dr. Myers testified that the value of a human life varied f rom $928,000 to $18,464,000, and that the reduction in the value of Plaintiff’s enjoyment of life caused by Defendant’s alleged harassment and termination was between $1,430,000 and $2,300,000. Judge Black subjected this method to Daubert tests. He pointed out that neither of the experts had suggested any widely suggested standards for uniformly measuring the value of lost pleasure. The Court also pointed out that the foundations for such analysis had been assailed as lacking any verifiable basis by respected economists, including W. Kip Viscusi, Ted Miller and Thomas Havrilesky, citing papers by those authors in the Journal of Forensic Economics. The Court pointed out that Dr. Murphy’s “Lost Pleasure of Life Scale” had no known error rate. He finally determined by reference to a number of articles that the theory underlying the hedonic damage calculations had not been “generally accepted.  The Court also noted that: “Permitting ‘expert’ testimony on hedonic damages would seem particularly inappropriate in a wrongful termination suit like that at bar.”

Robertson v. Hecksel, 2005 U.S. App. LEXIS 17201 (11th Cir. 2005). The mother of a 30 year old adult decedent brought an action for her own loss of support, loss of companionship, and pain and suffering resulting from the death of her son in a 42 U.S.C. § 1983 action on the basis of a deprivation of her Fourteenth Amendment right to a relationship with her adult son. This claim was dismissed by the trial count. The dismissal was affirmed by the 11th Circuit on the grounds that there is no constitutionally-protected liberty interest in a continued relationship with an adult child. The 11th Circuit pointedly did not minimize the value of the loss of such a relationship, but said: “[I]t is the province of the Florida legislature to decide when a parent can recover for the loss of an adult child. We will not circumvent its authority through an unsupported reading of the Fourteenth Amendment.”  

Tucker v. Fearn, 2003 U.S. App. LEXIS 11536 (11th Cir. 2003). This decision holds specifically that loss of society damages resulting from the death of a minor child cannot be recovered by a parent under general maritime law. The implication, however, is that loss of society damages are not allowable under any circumstances in maritime law. The decision reviews the different maritime acts that authorize wrongful death litigation and the decisions that have previously been reached to preclude loss of society damages under those acts. In 1978, the U.S. Supreme Court disallowed loss of society damages under the Jones Act in Mobil Oil Corp. v. Higginbotham, 436 U.S. 618 (1978) and under the Death on the High Seas Act (DOHSA) in Miles v. Apex Marine Corp., 498 U.S. 19 (1990). 

Alaska

Buoy v. ERA Helicopters, Inc., 771 P.2d 439 (Alaska 1989). The Supreme Court of Alaska held that the lifestyle of the plaintiff may indicate whether a loss in the enjoyment of life has occurred.

Ogden v. J.M. Steel,  31 P.3d 806 (2001). Hedonic damages are a separate element of damages from pain and suffering. No issue was raised about whether expert testimony about hedonic damages was allowable.

Quintero v. Rodgers, 2008 WL 4916554 (Ariz. App. Div. 1).   This decision held that Arizona’s survival action statute (A.R.S § 14-3110) does not allow for the estate of a decedent to recover for hedonic damages suffered by the decedent. There is no indication in the decision that an economist had attempted to quantify hedonic damages. 

Arkansas

Bailey v. Rose Care Ctr., 817 S.W.2d 412 (Ark. 1991). Hedonic damages were not allowed under the state death statute. This was before a new state law in 2001 that established the right of an estate to sue for "loss of life."

Durham v. Marberry, 356 Ark. 481; 156 S.W.3d 242 2004 Ark. LEXIS 179 (Ark. 2004). The Arkansas Supreme Court held that a 2001 Arkansas survival action Ark. Code Ann. § 16-62-101 (Supp. 2003) created a new element of damages in circumstances of wrongful death called “loss of life” and that an injured plaintiff did not have to have survived beyond the fatal injury to have the right to recover this loss element. The Court indicated that “loss of life” and “loss of enjoyment of life” are different elements even though “both are hedonic.” In doing so, the Durham court cited Sterner v. Wesley College, Inc., 747 F. Supp. 263 (Del. 1990) and Willinger v. Mercy Catholic Medical Center, 482 Pa. 141, 393 A.2d 1188 (1978) as drawing a distinction between “loss of life” and “loss of enjoyment of life.” Willinger has been interpreted as not allowing recovery for lost enjoyment of life in death cases in Pennsylvania and Sterner is one of the decisions that precluded an economist from offering hedonic damages testimony in Delaware. The Durham Court appeared to indicate that it would probably not allow expert testimony about the amount of damages to be awarded for “loss of life.” The Court cited its own decision in Clark & Sons v. Elliot, 251 Ark. 853 (1972), as indicating that “there is no hard and fast rule to determine compensatory damages for non-pecuniary losses.” Revised listing.

McMullin v. United States, 2007 U.S. Dist. Lexis 77933 ( E.D. Ark. 2007). This is a judicial ruling in a Federal Tort Claims Act (FTCA) case involving a medical malpractice wrongful death action. An economist was apparently not involved in this case. Judge Eisele held that the Arkansas Survival Action statute applies to medical malpractice in spite of some controversy in the Arkansas Courts about whether the Arkansas Medical Malpractice Act changed this application. This meant that Judge Eisele had to make an award under Ark. Code. Ann. § 16-62-101(b), which says: “In addition to all other elements of damages provided by law, a decedent’s estate may recover for the decedent’s loss of life as an independent element of damage (as modified in 2001).” Judge Eisele reviewed the decision in Durham v. Marberry, 356 Ark, 481 (2004) which is the only appellate interpretation of the 2001 addition to the Survival Act. He found no guidance in that decision. He indicated that he had found two U.S. District Court decisions in which interpretations of this section were made. In one of the two, the judge awarded $400,000, but spoke of the vagueness of the new statutory language. In the other, the judge had permitted the testimony of Dr. Stan V. Smith, but that judge did not find Smith’s testimony “persuasive” and awarded amounts of $81,068.91 and $71,463.91. Judge Eisele also discussed a 2006 Note by Ali M. Brady, “The Measure of Life: Determining the Value of Lost Years after Durham v. Marberry,” 59 Ark. L. Rev. 125 at some length. After extensive discussion, Judge Eisele awarded $600,000 for loss-of-life damages. 

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.

Fields v. Riley, 1 Cal.App.3d 308 (Cal.App.3d 308).  In a case involving the death of a four year old child, the court held that the jury was required to treat the costs to a parent of raising the child as an offset to an award for the lost “society, comfort and protection” of the child. (Submitted by Jerry Martin.)

Garcia v. Superior Court of Los Angeles County, 42 Cal. App.4th 177 (1996). This decision held that the testimony of Stan V. Smith was not admissible because hedonic damages are not allowed under the California survival action and therefore also not available under Section 1983 of the federal Civil Rights Act. (Revised listing.)

Mather v. Griffin Hospital, 207 Conn. 125 (1988). The Supreme Court of Connecticut held that an award for loss of the enjoyment of life did not duplicate the award for other damages and was not a windfall for the family of the the plaintiff. Whether an economist could testify about hedonic damages was not addressed.

Delaware

Ferguson v. Valero Energy Corp., 2009 U.S. Dist. LEXIS 34888 (E.D. Pa. 2009). This is an opinion by Judge Mary A. McLaughlin interpreting Delaware’s Wrongful Death Act and Survivor’s Act as they apply to categories of damages. There is no discussion of an economic expert in the decision. The case involved the death of a single adult man who was living with, but not financially supporting his father. The father was suing for damages under the Delaware Wrongful Death Act. The decedent’s brother was suing for damages under Delaware’s Survival Act. The judge held that there was sufficient evidence that the decedent had provide household services to assist his father, but no evidence to suggest that the decedent had financially supported his father. The judge also said: “Delaware courts have consistently held that the Wrongful Death   Act allows the recovery of that portion of the decedent’s lost earnings that would have been saved, over and above the decedent’s spending on his maintenance, and passed on to his estate.” The plaintiff’s had sought “any and all hedonic damages allowed for the loss of the decedent’s life and enjoyment of future life as permitted by Delaware law or as evidence of the pain and suffering and mental anguish” of the decedent. Judge McLaughlin’s discussion of hedonic damages under the Survivor’s Act relied heavily on the decision in Sterner v. Wesley College Inc., 747 F. Supp. 263 (D.Del. 1990). Under Delaware law, any claim for hedonic damages has to be as a part of pain and suffering and not as an independent category of damages “at least under circumstances like those in Sterner and here, where only a brief interval occurred between decedent’s injury and death. . . .The Court therefore predicts that if Delaware law were to allow for the recovery of hedonic damages for life’s pleasures and loss of enjoyment of life, then the Survivor’s Act would allow recovery of such damages only to the extent they were suffered for the period of time between the injury at issue and the decedent’s death.   

District of Columbia

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. 

Florida

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.

Hawaii

Montalvo v. Lapez, 884 P.2d 345 (Hawaii 1994). The Supreme Court of Hawaii ruled that hedonic damages in a personal injury are recoverable, but used Hawaii's Rule 702 to reject expert testimony by Louis Rose about hedonic damages based on the willingness-to-pay methodology. 

Ozaki v. Association of Apartment Owners of Discovery Bay, 954 P.2d 652 (1998). Louis Rose had projected future lost earnings, but had not been allowed to testify. This Intermediate Court of Appeals decision reversed the trial court and  allow admission of that testimony. Under the Hawaii survival action, evidence of lost enjoyment of life should have been admitted. Expert testimony on loss of the enjoyment of life was not at issue. Dr. Rose had not provided such testiomony in this case. 

Illinois

Bullard v. Barnes, 102 Ill.2d 505 (Ill. 1984). The Illinois Supreme Court allowed recovery for “companionship, comfort, instruction, guidance, counsel, training and support” of one family member for another in a wrongful death action. In the death of a minor child: “juries must be instructed not only to assign a dollar value to the loss of the child’s society, but also to arrive at a figure, based on the evidence presented to them, which represents expenditures the parents would have been likely to incur had the child lived. Jurors should be instructed to deduct these projected child rearing expenses from any award for loss of society and any proved loss of income.” 

Dralle v. Ruder, 124 Ill.2d 61; 529 N.E.2d 209 (Illinois 1988). This decision establishes that parents may not claim loss of consortium in Illinois as a damage in a case involving an injured child that remains alive. This is in contrast to the Ohio case of Gallimore v. Children’s Medical Center, 67 Ohio St.3d 244 (1993), which does allow such damages. The Dralle Court draws strong distinction between lost consortium claims in a personal injury case and a death case and a claim of lost consortium resulting from an injury to a child and a lost consortium claim resulting from an injury to a spouse, which is allowed in Illinois.  The court said: “The chief distinction between the claim for loss of society in a wrongful death action and its assertion here is that the nonfatally injured child retains his own cause of action against the tortfeasor. Thus, there is no danger that the injury caused by the tortfeasor will go uncompensated, or that similar conduct in the future will be deterred. In contrast, an action under the Wrongful Death Act affords the sole remedy for the surviving family members.” The court also said: “To succeed in their action, parents of a nonfatally injured child would be required to provide evidence of the diminution of their child’s society and companionship resulting from the injury; the jury or judge would then be required to perform the sensitive, and perhaps impossible task of evaluating – and assigning a monetary figure to – the reduced value of the parents relationship with the affected child.”

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.

Kaufman v. Cserny, M.D., 856 F. Supp. 1307 (S.D. Ill. 1994). This decision held that damages for loss of enjoyment of life (hedonic damages) is allowed in an Illinois survival action, but not in an Illinois wrongful death action. The decision explains that an Illinois survival action in a wrongful death context applies from the moment of injury to the moment of death. The court held that loss of enjoyment of life is allowed under the survival action for that period of time.

Mister v. Illinois C. G. R. Co., 790 F. Supp. 1411 (S.D. Ill. 1992). This case was brought as a class action under Title VII of the Civil Rights Act of 1964. The class was allowed to recover back pay and for emotional distress, but not hedonic damages. The court said: “In this case. . . the only hedonic loss is caused by the lack of a job. The back pay award fully compensates the class  for any hedonic damage. Once the class is awarded back pay, the past lost ability to enjoy life is fully restored, since the class has received the object which caused the deprivation. For example, a plaintiff who has lost an arm may have a claim for hedonic damages. However, if the arm is restored to him, his claim for hedonic damages would disappear, since he could no longer claim that he cannot enjoy the more subjective pleasures of life to the fullest. Similarly here, the plaintiff class has been made whole by an award of back pay. To allow hedonic damages on top of back pay would be equivalent to double recovery.”  

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 Smith’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.”   

Frye v. Akron, 759 F. Supp. 1320 (N.D. Ind. 1991). This decision held that plaintiffs in a Section § 1983 action involving a wrongful death “may properly claim as an element of damages the decedent’s loss of enjoyment of life.” However, the court held that Indiana law applied to claims by the decedent child’s surviving parents for their own pain and suffering occurring as the result of their child’s wrongful death.  Section § 1983 did not apply to the decedent’s parents because they were not claiming that their own constitutional rights were violated.  The Indiana Wrongful Death Act did not allow recovery for the pain and suffering of the parents resulting from the death of the child. There was no discussion in this decision about whether an economist could testify about the hedonic damages of the decedent.

Johnson v. Inland Steel Co., 1992 U.S. Dist. Lexis 19733 (N.D.Ill. 1992).  Interpreting Indiana law, the court ruled that expert testimony about hedonic damages was inadmissible. The expert was not named in the decision. 

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.”  This case also contains very interesting commentary about testimony by economists about annuities.   

Iowa

Poyzer v. McGraw, 360 N.W.2d 748 (Iowa 1985). The Iowa Supreme Court held: “W recognize loss of enjoyment of life as a factor to be considered as a part of future pain and suffering. . . To whatever extent recover for such a loss should be allowed, it is already recognized, under Mabrier, as a factor in other elements of damages. It would be plainly duplicative to allow a separate award for loss of enjoyment of life. Although we recognize there is a contrary view, we join the states which refuse to allow the submission of loss of enjoyment of life as a separate element of damages. [Citing Mabrier v. A. M. Servicing Corp. of Raytown, 161 N.W.2d 180 (1968)]

Kansas

Brick Co. v. Fisher, 79 Kan. 576; 100 P. 507 (KS 1909). This early Kansas decision discussed pecuniary losses suffered by his parents as a result of the death of James Lareau, their unmarried 21 year old son. The Court said: “We have here a relationship that naturally leads to the conferring of pecuniary benefits – a willing disposition to contribute, a capability to contribute likely to increase, contributions actually made, and a definite plan from which further contributions were likely to result. It is not only reasonable to suppose but it is quite certain that these parents would have been pecuniarily advantaged by the continued life of their son, and under all the decisions of the court sufficient data appeared from which the jury, taking into consideration the knowledge and experience common to all men, could compute the damage they suffered from his death.”

Calvert v. Rothlisberger, 268 Kan. 698 (Kan. 2000). The Kansas Supreme Court specifically rejected the parental investment approach for valuing parental loss in the death of a child, saying: “The lost investment of infant care, clothing, support, and education of the deceased child do not fit into any of the [K.S.A. 1999 Supp.] 60-1903 categories. Rothlisberger’s argument is inconsistent with 60-1903 and against the clear weight of authority.” 

Cochrane v. Schneider National Carriers, Inc, 980 F.Supp. 374 (D.Kan 1997), Dr. Gerald Olson was permitted to testify about all normal pecuniary losses, but not permitted to advance a projection of the value of lost “emotional services” the decedent would have provided to his family.  Dr. Olson had calculated an average of the salaries of teachers, social workers, psychologists and counselors as being in the range of $25,000 to $30,000 per year. He had then projected that the decedent father had provided “emotional services” in this range. The court ruled that such services by a high school graduate could not be valued by amounts paid to persons with more advanced degrees. The court also rejected this testimony because Dr. Olson provided no specific times during which these services were being provided.

Leiker v. Gafford, 245 Kan. 325; 778 P.2d 823 (Kan. 1989). This decision held that hedonic damages cannot be recovered as a separate element of damages in Kansas, saying: “[L]oss of enjoyment of the pleasurable things in life is inextricably included within the more traditional areas of damages for disability and pain and suffering. While it is true that a person may recover from the physical pain of a permanent injury, the resultant inability to carry on one’s normal activities would appear to fall within the broad category of disability. In the majority of cases loss of enjoyment of life as a separate category of damages would result in a duplication or overlapping of damages. . . However, we also point out that evidence of loss of enjoyment of life  is definitely admissible and proper for the jury’s consideration as it relates to disability and pain and suffering, and may certainly be argued by counsel to the jury. We hold that in Kansas, loss of enjoyment of life is not a separate category of nonpecuniary damages in a personal injury and that it is in error to submit a separate instruction, or provide a separate verdict form entry, on loss of enjoyment of life. However, in a proper case it is a valid subcomponent or element of pain and suffering and/or disability.”  The decision also held that “Kansas generally follows the majority rule that damages are recoverable only for pain and suffering which is consciously experienced.”  The decision cited Wentling v. Medical Anethesia Services, 237 Kan. 503, 507-09, 701 P.2d 939 (199); K.S.A. 1988 Supp. 60-1904 to the effect that: “There was testimony by plaintiff’s expert witness that a conservative estimate of the present value of Shawn’s anticipated lifetime earning capacity alone exceeded $1,000,000. The expert testified that the present value of the household and family care services she would have provided between the ages of 24 and 70 was $556,335. He reduced the totals by $213,303 as the estimated present value of Shawn’s lifetime personal consumption, concluding that the total pecuniary loss for earning capacity and household and family care was $1,633,055. There was sufficient evidence to support the jury verdict of $1,000,000 for pecuniary loss in the wrongful death action.” 

The Atchison, Topeka & Santa Fe Railway Company v. Fajardo, 74 Kan.314 (1906). “No questions of greater difficulty are presented than those involving the pecuniary loss which next of kin suffer in the death of a child. No precise measure has ever been found, nor is it easy to state the quantum of proof that will give a basis of recovery. It is said that ita must be left largely to the discretion of the jury; but it is also ruled that damages cannot be rested on the conjecture of jurors, but must be supported by proof tending to show pecuniary benefits already realized or in reasonable expectation from the continuance of the life. . . Where the deceased was a minor child and lived with his parents, who would have been entitled to his services if he had lived, there is an implication of pecuniary loss, but a substantial amount cannot be recovered unless the circumstances proved, as to age, intelligence, conduct and relationship, furnish a basis of reasonable expectation of pecuniary benefit. It is not essential to a recovery in the case of a child that there should be proof of valuable services already rendered, nor direct evidence of the exact value of the services which would have been rendered had it lived, nor yet a fixed amount of pecuniary loss sustained in its death. This is not practicable.” Suggested by Kurt Krueger.

Foster v. Trafalgar House of Oil and Gas, 603 So.2d 284 (La.App.2 Cir. 1992). Ruled that "any evidence, including expert testimony, that attempts to quantify or assign a specific monetary value for alleged loss of the pleasure of life is inadmissible." Luvonia Casperson was not permitted to testify about hedonic damges, but was permitted to testify about other damage categories.

Laing v. American Honda Motor Co., Inc, 628 So.2d 196 (La.App.2 Cir.1993). Rejected hedonic damage testimony by Stan V. Smith, citing Foster v. Trafalgar House of Oil and Gas. 

Lee v. Entergy Corporation, 09-535 (La.App. 3 Cir. 11/04/09); 2009 La. App. LEXIS 1892.  The jury in this case made no award for the plaintiff’s lost enjoyment of life. The trial court judge had issued a JNOV that awarded $45,000 for lost enjoyment of life. The defendant appealed on several grounds, one of which was that the trial court erred in awarding $45,000 for lost enjoyment of life. The Louisiana Court of Appeals decided that the trial court judge had abused his discretion by making an award as low as $45,000 an raised the amount to $100,000. Since the plaintiff had not made an appeal of the $45,000, this increase would apparently not have occurred if the defendant had not appealed the $45,000.        

Longman v. Allstate Ins. Co., 635 So.2d 343 (La.App. 4 Cir. 1994). Stan V. Smith was not permitted to testify about hedonic damages.

McGee v. A C and S, Inc., 933 So. 2d 770; 2006 La LEXIS 2139 (La. 2006). This decision of the Louisiana Supreme Court held in favor of allowing an award for hedonic damages as a separate category from other intangible losses such as pain and suffering. It provides a very clear discussion of the difference between “special damages” (“those which have a ‘ready market value,’such that the amount of damages may be determined with relative certainty, including medical expenses and lost wages”) and “general damages” (“general damages are inherently speculative and cannot be calculated with mathematical certainty”). The decision points out that “loss of the enjoyment of life falls within the definition of general damages because it involves the quality of a person’s life, which is inherently speculative and cannot be measured definitively in terms of money.” It offers this comparison: “Consider, for example, two boys, one athletic and the other artistic, who are both involved in an accident and suffer similar injuries. Presumably each boy should be awarded a similar quantum of damages for pain and suffering. However, the same injury may affect the boys very differently. The artist’s lifestyle was not drastically altered by the accident, as he was able to resume his artistic activities after the accident, whereas the athlete’s lifestyle is altered significantly, as he has to resign from his team and can no longer participate in athletics.” This decision involved the wrongful death of James McGee from exposure to asbestos. The court pointed out that there was no right to recover for James McGee’s loss of enjoyment of life under Louisiana’s wrongful death act, but that right existed under Louisiana’s survival action. The decision provides a clear discussion of the differences between the two acts. The right to recover for loss of enjoyment of life under the survival action was limited to the period McGee remained alive and thus suffered his loss of enjoyment of life. The decision also reviews decisions on this issue reached in a number of other states.

Mistich v. Volkswagen of Germany, Inc., 698 So.2d 47 (1997). This case was remanded by the Louisiana Supreme Court, 666 So.2d 1073 (La. 1996), reversing an award to the estate of the decedent for the decedent's loss of enjoyment of life based on testimony of Melville Wolfson. 

Maine

Phillips v. Eastern Maine Med. Cntr., 565 A.2d 306 (Me. 1989). Hedonic damages are not allowed for the period after death, but may be recovered for the period from injury to death.

Maryland

Carolina Freight Carriers Corporation v. Keane, 311 Md. 335; 534 A.2d 1337 (Md. App. 1988).
This decision focuses on whether the language “21 years or younger” for recovery of solatium by parents with a child applies to someone who was 21 years and some months in age. The Maryland statute allows recovery of solatium for parental loss in the death of an unmarried child with whom parents had a close relationship if the child is “21 years or younger” or the parents provided more than 50 percent of the support of the child.  The court ruled that the parents could recover solatium with respect to their decedent son who was 21 years and some months of age.

Monias v. Endal, 330 Md. 274, 623 A.2d 656 (Md. App. 1993).  The Maryland Court of Appeals held that: “[I]n tort actions where a family member is injured, the marital entity has a claim for damages for loss of a spouse’s consortium, but parents and children do not have a claim for loss of each other’s consortium. Parents have a limited common law claim for loss of an injured child’s services, but children have no reciprocal claim for loss of an injured parent’s services. A tort victim’s loss of earnings damages are based on pre-tort life expectancy, but a tort victim’s loss-of-services are based on actual post-tort life expectancy. The court also argued that a child’s “loss of household services” is similar to a child’s claim for “loss of consortium.”

United States v. Searle, 322 Md. 1; 584 A.2d 1263 (Md. App. 1991).  In answering the question whether, in Maryland, household services are encompassed within the term “solatium,” the court said: The element of damages referred to as household services can have both pecuniary and nonpecuniary aspects. Where a claim is made for the nonpecuniary aspect of household services, the award may overlap the claim for solatium damages. But where an award for household services is compensation for the loss of domestic services and is based on the market value of those lost services, the award is pecuniary and is not duplicative of the solatium damages. These are services that can be performed by domestic workers and their replacement value is measured by prevailing wage rates for such services.” (Submitted by David Curry.)

Massachusetts

Norman v. Mass. Bay Transp. Auth., 403 Mass 303, 529 N.E.2d 139 (Mass. 1988). The Massachusetts Supreme Court held that a parent has no right to recover for the lost consortium of a non-fatally injured child even though the child can recover for lost consortium of a non-fatally injured parent: “Although parents customarily enjoy the consortium of their children, in the ordinary course of events a parent does not depend on a child’s companionship, love, support, guidance, and nurture in the same way and to the same degree that a husband depends on his wife, a wife depends on her husband, or a minor or disabled adult depends on his or her parent.” 

Michigan

Berger v. Weber, 411 Mich. 1; 303 N.W.2d 424 (Mich. 1982). This decision held that a child may recover for loss of a parent’s society and companionship in cases involving severe permanent injuries to a parent. The case involved a minor child, but the decision is not explicit as to whether this ruling would apply to an adult child. The Court said: “Recognizing the child’s cause of action may result in increased insurance costs, but compensating a child who has suffered emotionally because of the deprivation of a parent’s love and affection may provide the child with the means of adjustment to the loss. The child receives the immediate benefit of the compensation, but society will also benefit if the child is able to function without emotional handicap.”

Breckon v. Franklin Fuel Company, 383 Mich 251 (Mich. 1970).  The Michigan Supreme Court ruled that references in Wycko v. Gnodtke to recover for loss of companionship were dicta and that the Michigan Wrongful Death Act did not provide for damages for loss of companionship. This case provides a review of cases from Wycko until 1970. 

Frontier Insurance Company v. Blaty, 454 F.3d 590 (6th Cir. 2006). This decision of the 6th Circuit discusses the damages section of the Michigan Wrongful Death Act in the context of U.S.C. § 1983, a federal statute that deals with civil rights violations. There was no testimony by an economist about hedonic damages and the jury made no award for hedonic damages. Blaty, as representative of the estate of Melva Dee Parrott, a child who died from bronchitis in foster care. The 6th Circuit interpreted Michigan law as awarding hedonic damages as a part of “pain and suffering” and only “recoverable only to the extent that the decedent experienced a loss of enjoyment before dying.” The decision also held that “federal law does not require, in a section 1983 action, recovery of hedonic damages stemming from a person’s death.” 

Kemp v. Pfizer, Inc., 947 F.Supp. 1139 (E.D.Mi 1996). There is no authorization for hedonic damages in a wrongful death action in Michigan.

McBride v. Pinkerton's, Inc., 1999 Mich. App. LEXIS 1198 (1999). Defense did not properly preserve hedonic damages issue for appeal and the Michigan court did not formally address this issue on appeal, but added dicta to citing a number of  federal district decisions in Michigan rejecting hedonic damages testimony to suggest that it is Michigan law that expert testimony on hedonic damages is inadmissible. 

Thorn v. Mercy Memorial Hospital, 2008 Mich. App. LEXIS 2441 (MI App.2008). From the decision: “Defendants contend that loss of [household] service damages are available, but fall strictly under the umbrella of loss of society and companionship. Defendants argue that loss of society and companionship is defined in the same manner, and encompasses the same criteria or elements, as loss of consortium and, as such, is noneconomic in nature and, therefore, subject to the damages cap of MCL 600.1483. Defendants’ characterization is inaccurate and comprises an oversimplification of these terms and concepts. While loss of society and companionship and loss of consortium have often been erroneously used interchangeably, defendants are incorrect in asserting that the terms are equivalent in meaning. . .  Although loss of consortium includes loss of service and loss of society as components of damage, that does not make the concepts interchangeable or determine whether they are economic or noneconomic in nature. . . . [T]his Court has recognized not only the availability of loss of service damages, but also acknowledged these damages as economic and separate and distinguishable from compensation for the loss of society or companionship.”      

Winnick v. Mark Keith Steele, 2003 Mich. App. LEXIS 2792 (Mich. App. 2003). This is an unpublished opinion. The court said: “Plaintiff’s final argument . . .is that defense counsel improperly disparaged her expert witness, an economist who testified regarding ‘hedonic damages.’ We disagree. It is proper for counsel to ‘discuss the character of witnesses, the probability of the truth of testimony given on the stand, and . . .when there is any reasonable basis for it, [to] characterize the testimony.’”. . .Here, the challenged remarks by defense counsel were proper comments regarding the credibility of plaintiff’s expert, which was a contested issue in the case. Defense counsel was attempting to persuade the jury that the witness’ testimony was not reliable. We are not persuaded that defense counsel’s comments were improper.”

Wycko v. Gnodtke, 361 Mich. 331 (Mich. 1960). This was the Michigan Supreme Court case that established the parental investment approach as the method for valuing parental loss in the death of minor children. 

Minnesota

Cruz v. Harris, 1999 Minn. App. LEXIS 741 (MN App. 1999). “In reviewing a compensatory damage award, the following factors are relevant: past and future pain, permanent disability, life expectancy, ability of plaintiff to follow his usual occupation, loss of earning power, the effect on plaintiff’s enjoyment of the amenities of life, degree of disfigurement, and the inflationary trend of the economy. . . No finding were made regarding past pain, permanent disability, life expectancy, ability of respondent to pursue her occupation, loss of earning power, enjoyment of the amenities of life, disfigurement or inflation. The district court’s only pertinent finding was that the respondent still suffered from a sore shoulder. . . Here, the findings of fact do not support the district court’s conclusion that respondent suffered $100,000 in compensatory damages. We reverse the award of compensatory damages.” Suggested by David Jones.

Fussner v. Andert, 261 Minn. 347 (Minn. 1962). This decision expanded the concept of “pecuniary loss” to include the loss of advice, comfort, assistance and protection of the decedent, even if a minor child.  This decision, however, did not address the “investment theory” that loss could be valued by the amount of parental investment in the child.

Gravley v. Sea Gull Marine, Inc., 269 N.W.2d 896 (Minn.1978).  The Minnesota Supreme Court reaffirmed that to include the loss of advice, comfort, assistance and protection of a decedent is a part of pecuniary damages, but specifically rejected the theory that parental investment in raising a child measures that pecuniary value, saying: “A child, however, is not a monetary investment, and we do not find the analogy persuasive.” 

Leonard v. Parrish, 420 N.W.2d 629 (Minn.App. 1988). Held that a specific instruction on loss of the enjoyment of life was not necessary because it was covered under the general instruction on damages.

Choctaw v. Hailey, 2002 Miss. Lexis 181 (2002). Loss of the enjoyment of life was declared recoverable in a wrongful death action. A subsequent act of the Mississippi precluded hedonic damages in a death case and precluded an expert witness from testifying about hedonic damages in a personal injury action. 

Dorrough v. Wilkes, 817 So. 2d 567 (MS 2002). This decision predates Mississippi tort reform legislation precluding hedonic damages in a death case and holding that there can be no expert opinion about hedonic damages. The Court held that hedonic damages were allowable in a death case if pain and suffering was lengthy before death as in the Dorrough case, but struck the hedonic damages testimony of Robert Johnson after Johnson’s testimony. The jury was told they could award hedonic damages, but should ignore report Robert Johnson’s testimony in arriving at its award.

Kansas City Southern Railway Company, Inc. v. Johnson, 798 So.2d 374 (2001). Allows hedonic damage testimony in a personal injury case at the discretion of the trial court judge. Testimony by Stan V. Smith ruled proper.

K.M. Leising, Inc.et al. v. Butler, 1999 Miss.App. Lexis 591 (1999). Trial court admission of testimony by Stan V. Smith in a personal injury matter was proper. 

Upchurch v. Rotenberry, 1998 Miss. LEXIS 524 (1998). Hedonic damages testimony in a death case was not allowable in a wrongful death action, apparently overturned by Choctaw v. Hailey in 2002.

Missouri

Schuman v. Missouri Highway and Transportation Commission, 912 S.W.2d 548 (1995). Admission of hedonic damage testimony by John O. Ward did not constiute reversible error because jury was not swayed by testimony. Dicta predicts that Missouri Supreme Court will reject hedonic damages testimony. 

Montana

Artuso v. State of Montana, 1999 Mont. Dist. LEXIS 1119 (Mt. Dist. 1999). Hedonic damages may not be recovered in a Montana survival action. 

Bell v. Montana Rail Link, 1994 Mont. Dist. LEXIS 613. (Mt.  Dist. 1994). Hedonic damages cannot be recovered in a Wrongful Death Action. 

Buxbaum v. Trustees of Indiana University, 2002 ML 2937; 2002 Mont. Dist. LEXIS 3141 (Mt Dist. 2002). A motion to exclude the testimony of Stan Smith on hedonic damages was granted.

Christofferson v. City of Great Falls, 2001 ML 2326; 2001 Mont. Dist.  LEXIS 3560. (Mont. Dist. 2001).  This is an order of Judge Kenneth Neill granting a motion in limine barring the hedonic damages testimony of Dr. Stan V. Smith after a Daubert hearing, with specific considerations of: (A) Testability; (B) Peer Review; (C) Potential Rate of Error; and (D) Degree of Acceptance. Under “Testibility,”the Court said: “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. 

Dorn v. Burlington Northern Santa Fe Railroad Company, 2005 U.S. App. 1887 (9th Cir. 2005). This was an appeal of a wrongful death decision under Montana law, not an FELA action. The trial court judge had permitted Stan V. Smith to present hedonic damages testimony, but had not allowed Thomas R. Ireland to testify in opposition to the validity of hedonic damages testimony. As one a number of errors that resulted in a reversal of the trial court decision, the 9th Circuit held that it was in error for the trial court not to have admitted Ireland’s testimony. The 9th Circuit evaluated Montana’s position on hedonic damages and the admissibility of expert testimony on hedonic damages as ambiguous and therefore did not hold that the admission of Smith’s hedonic damages testimony was reversible error. It did, however, express concerns about the validity of that testimony. 

Heffelinger v. Baggenstos, M.D., 1991 Mont. Dist. LEXIS 5 (Mont. Dist 1991). A motion to dismiss granted on grounds that the Montana Wrongful Death statute does not permit recovery by a decedent for loss of enjoyment of life, nor does it allow recovery for loss of a survivor’s ability to enjoy life because of the death of a decedent. 

Hendrickson v. State of Montana, 2004 MT 20; 319 Mont. 307; 84 P.3d 38 (Montana 2004). “Damages for loss of ability to pursue an established course of life compensate for impairment of the ability to pursue one’s chosen pursuits in life, calculated separately from the loss of earning capacity. . . a claim for the loss of ability to pursue an established course of life need not be premised on a physical limitation.”

Hunt v. K-Mart, 981 P.2d 275 (MT 1999). The defense appealed on the basis that Drs. Velin and Vinso should not have been permitted by the trial court to offer hedonic damages testimony. The defense did not lodge objection to the proposed testimony until the second day of trial. At the hearing, the judge asked both parties if either party was aware of any appellate decisions regarding expert testimony. Plaintiff counsel responded that there have been decisions in other states that have gone both ways. Plaintiff counsel “argued that the article relied on by the experts in this case had been published by the National Association of Clinical Economists (sic) and that both experts (a psychologist provided percentages of life enjoyment that had been lost) were qualified with regard to that portion of the evidence related to their respective fields of expertise. . . K-Mart did not cite any legal authority to the District Court in support of its position that this kind of testimony is not allowable in the courts of Montana or elsewhere and, when asked whether it was aware of any professional articles attacking the approach used by Drs. Velin and Vinso, K-Mart responded, ‘Nothing that directly attacks it; no, Judge.’” The Montana Supreme Court concluded that “the District Court did not abuse its discretion in allowing expert testimony regarding Norma’s hedonic damages due to the lack of a timely and specific objection to the introduction of this evidence at trial.” 

Odland v. Lewis, 1996 Mont. Dist. LEXIS 635 (Mt. Dist. 1996). “Defendant’s Motion in Limine precluding Plaintiff from introducing expert opinion to prove the extent and monetary value of his so-called ‘hedonic’ damages relating to the loss of pleasures of life is Granted.” 

Renville v. Fredrickson, 2004 MT 239 (Montana 2004). In a 4 to 3 decision on the main point in question, the Montana Supreme Court held that parents of an adult child can claim loss of consortium resulting from the death of that child if evidence exists of a special quality of relationship between the parents and the child. The case was remanded to the trial court to determine whether such a special relationship existed.

Wisseman v. City of Cut Bank, 2001 ML 5022; 2001 Mont. Dist. LEXIS 2734 (Mt.  Dist. 2001). A motion to exclude the testimony of Robert Velin on hedonic damages was granted.

Nebraska

Anderson v. Nebraska Department of Social Services, 538 N.W.2d 732 (Neb. 1995). Hedonic damages were allowable in a personal injury action, but an economist (Stan V. Smith) may not offer expert testimony about hedonic damages.

Talle v. Nebraska Department of Social Services, 541 N.W.2d 30 (Neb. 1995). It is improper to treat loss of the enjoyment of life as a separate category of damages in a personal injury. Stan V. Smith was not permitted to testify about loss of enjoyment of life damages. 

Selders v. Armentrout, 190 Neb. 275 (Neb.1973).  The Supreme Court of Nebraska indicated that parents could recover pecuniary damages for the loss of companionship of a wrongfully killed child in Nebraska, but added this dicta: “For the guidance of the court on retrial, we believe that the expenses of birth, food, clothing, instruction, nurture, and shelter which have been incurred or were reasonably necessary to rear the child to the age he or she at attained on the date of death are not properly admissible. We conclude that the investment theory of measuring damages by the amounts expended in raising the child   is inappropriate and improper.”

Banks v. Sunrise Hospital, 102 P.3d 52; 2004 Nev. LEXIS 121 (Nevada 2004).  This decision held that the trial court was not in error for admitting the hedonic damages testimony of Robert Johnson that Banks’ hedonic loss from being in a persistent vegetative state fell between $2.5 million and $8.7 million based on consumer purchase and wage-risk studies in the value of life literature. The court said: “Johnson’s methodology for the valuation of hedonic damages assisted the jury to understand the amount of damages that would compensate James for the loss of his enjoyment of life. Johnson’s valuation theories were matters within the scope of his specialized knowledge concerning the monetary value of intangibles. Moreover, the probative value of Johnson’s testimony was not substantially outweighed by the danger of unfair prejudice. Therefore, the district court properly exercised its discretion in qualifying Johnson as an expert and permitting him to testify concerning hedonic damages. We observe that Sunrise had the ability to use traditional methods of disputing Johnson’s testimony, such as presenting witnesses on its behalf to persuade the jury that Johnson’s methods were inaccurate or unreliable. The jury was then free to determine whether Johnson’s valuation theories were credible and to weigh his testimony accordingly.”

Matlock v. Greyhound Lines, Inc. 2010 U.S. Dist. LEXIS 92359 (D. Nev. 2010).  The defendant argued that hedonic damages are a component of pain and suffering and are not a separate and distinct compensatory award, and that expert testimony is required to support a claim for hedonic damages. The Court said: “The Court does not agree. Hedonic damages are ‘monetary remedies awarded to compensate injured persons for their noneconomic loss of life's pleasures or the loss of enjoyment of life.’ Banks ex rel. Banks v. Sunrise Hosp., 120 Nev. 822, 102 P.3d 52, 61--64 (2004). In Banks the Nevada Supreme Court found that expert  testimony is not required, but may be utilized to assist a jury in making its determination of hedonic damages. Additionally, the Banks court found that awards for hedonic damages are typically not permitted separate and apart from pain and suffering damages. As in Banks however, the award here was not prejudicial ‘because the jury could have easily added the value of the hedonic loss to the pain and suffering award.’”

Hayhurst v. Timberlake, 1994 U.S. Dist. LEXIS 18428 (D.N.H.1994). Claim for hedonic damages separate from compensatory damages was denied.

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. 

Marcotte v. Timberlane/Hamstead Sch. Dist, 733 A.2d 394 (1999). "The trial court was correct in not permitting economic testimony to be used in cumputing loss of life damages."  These damages "are too subjective to lend themselves to such exactness."

Alexander v. Whitman, 114 F.3d 1392 (3rd Cir. 1997).  Interpreting New Jersey law, recovery is allowed in personal injury for hedonic damages, but the injured person must be conscious.

Clement v. Consol. Rail Corp., 734 F.Supp. 151 (D.N.J. 1989). Interpreting New Jersey Law, this decision held that hedonic damages are not available under New Jersey's Wrongful Death Act, but are available under the Survival Act if an injured party survives an accident for a period of time and is conscious.

Eyoma v. Falco, 247 N.J. Super. 435 (App. Div 1991). Hedonic damages are not available under New Jersey's Wrongful Death Act, but are available under the Survival Act if an injured party survives an accident for a period of time and is conscious.

Green v. Bittner, 85 NJ 1 (1980). Defines broad standard for what will be considered lost household services in New Jersey, including guidence, counsel and comfort. See the longer description of this decision in "Standards for Wrongful Death."

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 by an economic expert about hedonic damages in a personal injury case in New Mexico.  Brian McDonald had testified at the trial court level that the value of a statistical life lies between $500,000 and $11 million, with $3 million as the average. McDonald testified that this figure represented “the value of an entire life from cradle to grave and included earnings as well as intangible enjoyment.” McDonald declined to specify a percentage of a whole life that the plaintiff lost because of his injuries. The defense appealed on the basis that failure to specify a percentage rendered his testimony unhelpful to a 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 Plaintiff’s claim. He also provided concrete guidance to the jury in determining a percentage of the monetary value that might reasonably compensate plaintiff. . .[I]f McDonald had complied and offered a specific value for Plaintiff’s hedonic damages claim, he would have intruded improperly into the fact finder’s domain.” The court cited Smith v. Ingersoll-Rand Co, 214 F.3d 1235 (10th Cir. 2000) as indicating that the role of an economic expert regarding hedonic damages in New Mexico was one of explaining the general concept of hedonic damages and the nature of the statistical studies in the value of life literature. 

Cruz v. Bridgestone/Firestone North American Tire, 2008 U.S. Dist. LEXIS 107379 (D.N.M. 2008). This order of Judge Bruce D. Black grants the part of defendants’ motion in limine to preclude the hedonic damages testimony of M. Brian McDonald and William J. Patterson in a case involving an automobile accident that killed two illegal immigrants and injured a number of others. McDonald offered testimony to the effect that the appropriate range for the value of life in the Value of Statistical Life (VSL) literature was between $5 million and $6 million, but did not offer annual values for lost life enjoyment. Patterson offered testimony that the value of life ranged from $500,000 to $11 million, with an average of about $3 million.  The focus of the judge’s decision was on the applicability of the U.S. Supreme Court decision in Hoffman Plastic Compounds, Inc., v. National Labor Relations Board, 535 U.S. 137, 122 S.Ct. 1275 (2002). That decision “prohibits any use of Department of Labor statistics or statutory minimum wages for undocumented workers as it is illegal for any employer in the United States to hire or pay Plaintiffs.” Judge Black said: “Whether or not Dr. McDonald’s risk premium or Mr. Patterson’s labor versus leisure theories are valid, then, begs the question in this case. Both theories create a significant range of values. More significantly, however, both are based exclusively on wage scale and consumer choices in the United States.  Several of the Plaintiffs had spent the majority of their working career employed in Mexico and were only sporadically in the United States. . . Neither Dr. McDonald nor Mr. Patterson made any attempt to acknowledge the Mexican citizenship of the Plaintiffs or the legal barriers to their earning the average American wages which are the foundation of both experts’ studies. This court finds that Daubert requires a much more tailored approach.” Judge Black went on to say, however, that he would be willing to consider testimony based on wage losses of workers “similar to Plaintiffs and which were previously disclosed in the Rule 26 reports.” 

Loyoza v. Sanchez, 66 P.3d 948 (N.M. 2003).  The New Mexico Supreme Court recognized the right of an unmarried cohabitant to sue for loss of consortium because of an injury to her partner. The court indicated that “no other State in the union currently allows unmarried cohabitants to recover loss of consortium. . . . More convinced by the policies and rationales that favor recognizing the claim by unmarried cohabitants in certain circumstances, we conclude that the jury should have been allowed to consider Ms. Lozoya’s claim.” Presumably, this case could provide a precedent for recovery of lost financial support by an unmarried cohabitant.

Martinez v. Caterpillar, Inc., 2007 U.S. Dist. LEXIS 97414 (D.N.M. 2007). This is an order of Judge Robert Haynes Scott granting a motion in limine to bar the hedonic damages testimony of William Patterson, who offered the present value for $10,000 of lost pleasure of life over the lifetime of the plaintiff as a “benchmark” value. Judge Scott wrote that: “This type of expert opinion testimony invades the province of the jury and fails to meet the criterial for admission as expert testimony as set forth in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). . . [N]owhere in his report does Mr. Patterson explain how or why he selected this particular value. Indeed, Plaintiff ‘acknowledge[s] that [the $10,000 value] is a hypothetical figure.’ Thus, the basis of the benchmark value appears to be almost entirely arbitrary. . . [T]he Court does not understand the need to use a hypothetical ‘benchmark value’ when common mathematical equations and symbols serve the same purpose.”

McGuire v. City of Santa Fe, 954 F.Supp. 230 (D.N.M. 1996). This order of Judge Bruce D. Black granted defendant’s motion in limine to bar the testimony of Dr. Patricia Murphy, a psychologist, and Dr. John Myers, an economist on hedonic damages in a wrongful termination case. At a Daubert hearing, Dr. Murphy did not testify, but the Court said: “Dr. Myers testified that Dr. Murphy interviewed Plaintiff to determine the extent of Plaintiff’s lost enjoyment of life. Dr. Murphy than applied the data she collected from her interview to her Lost Pleasure of Life Scale and arrived at a percentage value of Plaintiff’s lost enjoyment of life. Dr. Myers testified that it was Dr. Murphy’s role to ‘determine the part of the enjoyment of life that has been lost,’ while it was his role to address what the monetary value of the lost enjoyment is worth.” Dr. Myers testified that the value of a human life varied f rom $928,000 to $18,464,000, and that the reduction in the value of Plaintiff’s enjoyment of life caused by Defendant’s alleged harassment and termination was between $1,430,000 and $2,300,000. Judge Black subjected this method to Daubert tests. He pointed out that neither of the experts had suggested any widely suggested standards for uniformly measuring the value of lost pleasure. The Court also pointed out that the foundations for such analysis had been assailed as lacking any verifiable basis by respected economists, including W. Kip Viscusi, Ted Miller and Thomas Havrilesky, citing papers by those authors in the Journal of Forensic Economics. The Court pointed out that Dr. Murphy’s “Lost Pleasure of Life Scale” had no known error rate. He finally determined by reference to a number of articles that the theory underlying the hedonic damage calculations had not been “generally accepted.  The Court also noted that: “Permitting ‘expert’ testimony on hedonic damages would seem particularly inappropriate in a wrongful termination suit like that at bar.”

Romero v. Byers, 872 P.2d 840 (N.M. 1994). This decision in a consolidated case held that New Mexico would henceforth recognize a claim for spousal consortium and household services in a wrongful death action. It also held that a claim could be made in a wrongful death action for “loss of the value of life itself.” The Court said: “We hold that the value of life itself is compensable under our Act. Whether or not expert testimony is admitted for the purpose of providing that value is a matter best left to the rules of evidence of the applicable court.” The Court held that task before a jury is to award “fair and just damages” taking into account both pecuniary and nonpecuniary damages suffered by the decedent, defining non pecuniary damages as follows: “There are two aspects of nonpecuniary damages that make up ‘fair and just’ compensation. Pain and suffering devolves from (1) that which the victim must newly endure and (2) that which the victim may no longer enjoy. The language of the Act clearly contemplates damages that encompass more than the pecuniary loss to th beneficiaries because of the loss to the deceased. In our opinion, the Act goes beyond the loss of decedent’s wages, and encompasses all damages that are fair and just.” The Court also specifically said with respect to the loss of guidance and counsel that a decedent might have provided to minor children: “Loss of guidance and counseling may be considered by a jury in fixing pecuniary loss to the survivors. The jury should be allowed to assess this loss as part of the value of the decedent’s life.”

Sena v. New Mexico State Police, 119 N.M. 471 (N.M.App. 1995). New Mexico Court of Appeals held that economic testimony about lost enjoyment of life in a personal injury could be admitted at the discretion of a trial court judge. The Court said: “Consistent with the rule in Romero, we think it is clear that New Mexico permits proof of nonpecuniary damages resulting from the loss of enjoyment of life in tort actions involving permanent injuries. Romero, 117 N.M. at 428; 872 P.2d at 846; see also Hoskie v. United States, 666 F.2d 1353 (10th Cir. 1981). Similarly, we conclude that where an expert witness has been properly qualified, it is not improper for the trial court to permit an economist to testify regarding his or her opinion concerning the economic value of a plaintiff’s loss of enjoyment of life,” noting that a “trial court has wide discretion in determining whether witness is qualified to give expert testimony.” 

McDougald v. Garber, 73 N.Y.2d 246; 536 N.E.2d 372; 538 N.Y.S.2d 937 (New York, 1989). The highest court in New York held that a comatose personal injury victim cannot recover hedonic damages since consciousness is a prerequisite for experiencing loss of enjoyment of life. The Court said: “Damages for nonpecuniary losses are, of course, among those that can be awarded as compensation to the victim. This aspect of damages, however, stands on less certain ground than does an award for pecuniary damages. An economic loss can be compensated in kind by economic gain; but recovery of noneconomic losses such as pain and suffering and loss of enjoyment of life rests on ‘the legal fiction that money damages can compensate for a victim’s injury’ . . . We accept that fiction, knowing that although money will neither ease the pain nor restore the victim’s abilities, this device is as close as the law can come in its effort to right the wrong. We have no hope of evaluating what has been lost, but a monetary award may provide a measure of solace for the condition created. . . Our willingness to indulge in this fiction comes to an end, however, when it ceases to serve the compensatory goals of tort recovery. When that limit is met, further indulgence can only result in assessing damages that are punitive. The question posed in this case, then, is whether an award of damages for loss of the enjoyment of life to a person whose injuries preclude any awareness of the loss serves a compensatory purpose. We conclude that it does not. Simply put, an award of money damages in such circumstances has no meaning or utility to the injured person. An award for the loss of enjoyment of life ‘cannot provide [such a victim] with any consolation or ease any burden resting on him . . .He cannot spend it upon necessities or pleasures. He cannot experience the pleasure of giving it away’ (Flannery v. United States, 718 F 2d 108, cert denied 467 U.S. 1226).” 

Nussbaum v. Gibstein, 73 N.Y.2d 912 (1989). Hedonic damages can be discussed in a  personal injury action if the injured person is not comotose. However, "Loss of enjoyment of life is not a separate element of damages deserving a distinct award but is, instead, only a factor to be considered by the jury in assessing damages for conscious pain and suffering."

First Trust Co. v. Sheels Hardware & Sports Shop, 429 N.W.2d 5 (N.D. 1988). Loss of enjoyment of life is a component of pain and suffering. 

Abbott v. Jarrett Reclamation Services, Inc., 132 Ohio App. 3d 729 (Ohio App. 1999). This decision in a wrongful death action upheld a trial court decision to exclude the testimony of an unnamed economics about hedonic damages. 

Fantozzi v. Sandusky Cement, 64 Ohio St. 3d 601 (1992). Ohio Supreme Court recognized a right to recover for "loss of the ability to perform life's usual functions" (similar to hedonic damages) in a personal injury case.

Gallimore v. Children’s Medical Center, 67 Ohio St.3d 244; 617 N.E.2d 1052 (Ohio 1993). This decision held that a parent can recover for a loss of consortium with a badly injured child resulting from the injury to the child.  Resolving that matter was the exclusive focus of this decision, which stands in sharp contrast with the Illinois decision on the same issue in Dralle v. Ruder, 124 Ill.2d 61; 529 N.E.2d 209 (Illinois 1988).

Lewis v. Alpha Lavel Separation, Inc., 128 Ohio App.3d 200 (1998). Trial court admission of hedonic damage testimony by Michael L. Brookshire was within the discretion of the trial court judge. The ruling indicated that the judges on the appeals court would not have admitted Brookshire's testimony, but felt that it fell within the "shaky, but admissible" language of Daubert v. Merrell-Dow. This is the only reported decision to date in which hedonic damage testimony was specifically judged according to the standards of Daubert and admitted.

Ramos v. Kuzas, 65 Ohio st.3d 42 (1992). A newborn infant had not had time to develop the ability to have hedonic damage losses. 

Tinch v. City of Dayton, No. 94-3436, 1996 WL 77445 (1996). Interpreting Ohio Law, the 6th Circuit Federal Court of Appeals held that hedonic damages are inadmissible as a compensable element of damages in a survival action under Ohio law.

Alexander v. Beal St. Blues Co., 108 F.Supp. 2d 934 (W.D.Tenn 1999).  The district court ruled that hedonic damages were not allowed under Tennessee law in a Section § 1983 case because Section § 1983 decisions are governed by state law. (Section § 1983 is a federal civil rights action which, at one time, had been interpreted as allowing hedonic damages even if not available under state law.)

Garner v. United States, 2009 U.S. Dist. LEXIS 16350 (E.D. Ark. 2009). This order interpreted Tennessee law as not allowing an award for the lost enjoyment of life in a wrongful death action and therefore excluded the direct hedonic damages portion of the economic expert report of Dr. Stan V. Smith, but did not exclude his values for lost consortium, holding that Tennessee law allowed for such damages to be awarded to survivors.

Jordan v. Baptist Three Rivers Hospital, 984 S.W.2d 593 (Tenn. 1999). This decision reverses a 1903 decision of the Tennessee Supreme Court that precluded damages for loss of consortium. The Court held that “the pecuniary value of a deceased’s life includes the element of damages commonly referred to as loss of consortium.” The decision provides a history of the wrongful death standards in Tennessee leading up to the current decision. It holds that Tennessee’s approach to wrongful death is “a hybrid between survival and wrongful death statutes, resulting in a statutory scheme with a ‘split personality.” The first classification of damages is “for injuries sustained by the deceased from the time of injury to the time of death,” including medical expenses, physical and mental pain, funeral expenses, and loss of earning capacity.” The second classification: “permits recovery of incidental damages suffered by the decedent’s next of kin.” The Court explained: “Incidental damages have been judicially defined to include the pecuniary value of the decedent’s life Pecuniary value has been judicially defined to include ‘the expectancy of life, the age, condition of health and strength, capacity for labor and earning money through skill, any art, trade or profession and occupation or business, and personal habits as to sobriety and industry.’ . . Pecuniary value also takes into account the decedent’s probable living expenses had the decedent lived.” The decision goes on to talk at length about parental consortium provided to a minor child, but adds that: “Adult children may be too attenuated from their parents in some cases to proffer sufficient evidence of consortium losses. . . The adult child inquiry shall taken into consideration factors such as closeness of the relationship and dependence (i.e., of a handicapped adult child, assistance with day care, etc.” Whether an economic expert can testify about the value of loss of consortium was not addressed.

Wallace v. Couch, 642 S.W.2d 141 (Tenn. 1982).  This decision discusses the meaning of the personal maintenance deduction in Tennessee. It also discusses the relationship between the concept of personal maintenance in Tennessee and in Pennsylvania and New York. (Pennsylvania still uses a similar concept, but apparently not New York.) The decision involves recovery by the father of a teenager killed in an automobile accident. The trial court judge had charged the jury with subtracting “the deceased’s probable living expenses had the deceased lived.” The trial court was upheld by the Court of Appeals and the decision was then appealed to the Supreme Court of Tennessee.  The Supreme Court cited several decisions from Tennessee and Pennsylvania in support of the proposition that personal maintenance deductions should be made, but specifically adopted the language about measurement of Calfee v. O’Neal Steel, Inc, an unreported 1976 decision of the Tennessee Court of Appeals: “In estimating damages, the deduction of the decedent’s probable personal living expenses, had he lived, should extend to those personal expenses which, under the standard of living followed by him, would have been reasonably necessary for him to incur in order to keep himself in such condition of health and well-being that he could maintain his capacity to enjoy life’s activities, including the capacity to earn money.”  Submitted by Parker Cashdollar. 

Lawrence v. Town of Brighton, 1998 Tenn. App. LEXIS 720 (Tenn. App. 1998).  An award for loss of enjoyment of life in personal injury was allowed. The issue of whether an expert can testify about the value of loss of consortium was not addressed.

Spencer v. A-1 Crane Service, Inc., 880 S.W.2d 938 (Tenn. 1994). Hedonic damages are not recoverable in a death case.

Thurmon v. Sellers, 62 S.W.3d 145 (Tenn. App. 2001). This case involved the wrongful death of a five year old child. Dr. Thomas O. Depperschmidt testified to a net loss of earnings figure of $1,160,000. This based on the parents’ education and money income figures from the Department of Commerce, with subtraction for personal maintenance costs that assumed that the child would have married and have had two children. After hearing this evidence, the trial court awarded $700,000. The plaintiff challenged the award as inadequate on the basis of the evidence, but the court of appeals said: “Expert testimony is not conclusive, even if uncontradicted, but is rather purely advisory in charter, and the trier of facts may place whatever weight it chooses on such testimony.” This decision provided the following description of what may be recovered in a Tennessee Wrongful Death action (citations omitted): When recovery is based upon the pecuniary value of the decedent’s life, the trier of fact must make this determination upon a consideration of several factors, including the decedent’s life expectancy, age, condition of health and strength, capacity for labor and for earning money through skill in any art, trade, profession, and occupation or business. . . That award should then be reduced by deducting the decedent’s probable living expenses had the decedent lived. . . In the case of a minor child, those living expenses are the costs of associated with child rearing. In the case of a very young child, estimates of the child’s future earnings and contributions are speculative at best. . . For this reason, it can be helpful to have expert testimony concerning the valuation of a child’s pecuniary losses. . . Pecuniary value also necessarily encompasses the value of human companionship. Therefore, in determining the amount of consortium damages, courts must also consider the benefits the child bestowed on the family, such as companionship, comfort, society, attention, cooperation, affection, care and love. Because it is impossible to generalize on the extent to which family members enjoy each other’s companionship and society, the measurement of a particular child’s consortium must be decided on a case by case basis. It must be noted, however, that the recovery of such losses are restricted to pecuniary losses, that is the actual monetary value of the life of the child. Thus, parents cannot recover for the sorrow and anguish endured as a result of the child’s death. This decision also provided a clear definition of “consortium” in Tennessee law, saying: “Although ‘consortium’ historically denoted the loss of an injured spouse’s services and society, it recently has been broadened to encompass general notions of comfort, support and companionship in the parent-child relationship, as well as in the spousal relationship.” 

Texas

Celotex Corporation v. Tate, 797 S.W.2d 197 (Tex. App. 1990). This decision found that the trial court had erred in admitting the testimony about the value of guidance and counsel of economist Dr. Everett Dillman. Dillman had offered present value testimony without specific numbers with respect to love and affection, which the court found permissible. However, Dillman’s guidance and counsel testimony was based on the hourly rate paid to teachers, which the court said was not commensurate. Thus the court concluded that Dillman possessed no special knowledge which the jurors did not possess. The court noted that: “Problems regarding Dr. Dillman’s testimony are familiar to this court,”citing Seale v. Winn Exploration Co., Inc., 732 S.W.2d 667 (Tex. App. 1987). However, the court concluded: “[W]e are persuaded that the admission of the testimony probably did not have a discernable effect upon the jury’s assessment of the entire case.” On that basis, the error in admitting Dr. Dillman’s guidance and counsel testimony did not constitute grounds for reversal.  

Garza v. Berlanga, 598 S.W.2d 377 (Tex. App. 1980).  This decision approved trial court testimony about the value of moral guidance services provided by a decedent in a wrongful death action. The Court described the testimony as follows: “Dr. Benz, an expert in the field of economics, testified as to the value of the services which Linda Berlanga would have performed for the three children, had she lived up until the time they were 22 years of age. He then gave values for services in the areas of moral guidance and housework. The values given were based on the life expectancy of the deceased and the dependency of the minor plaintiffs until they reached 22 years of age. As a comparable for loss of household services, he considered the services of a housemaid paid the minimum wage rate, projected the wages until the youngest child would reach the age of 22, added an anticipated inflation factor, figured in a discount rate, and arrived at a conclusion that the sum of $134,112 would be the total pecuniary loss for those types of services. In arriving at the economic value for the loss of moral guidance, he equated the loss as being equal to the annual salary of a school teacher and, figuring in the same factorss, arrived at the total sum in this area of $159,208.00. In obtaining a figure as to how to divide these amounts among the three children, he gave his opinion as to certain percentage figures based on their ages with the youngest child receiving the most and the oldest the least. Suggested by Everett Dillman.  

Hyundai Motor Company v. Chloe, 882 S.W.2d 606 (Tex. App. 1994). “Dr. Everett Dillman, an economist, evaluated the damages in this case. He testified that Chloe’s mental anguish and emotional pain and suffering would amount to $912,477; that Pele could have contributed $564,777 to Chloe over Cloe’s lifetime; that past and future loss of companionship would amount to approximately $912,477; and that the value of life lost, based on the majority of studies, would range from $2 million to $2.5 million.” The decision does not indicate that the admissibility of Dr. Dillman’s testimony was challenged and the Texas Court of Appeals found that all of the evidence taken together was sufficient to justify the trial court’s award of $661,876. 

Lopez v. City Towing Associates, 754 S.W.2d 254 (Tex. App. 1988). Testimony by an economist regarding the value of lost guidance, counseling, love, affection, companionship and society suffered by plaintiffs was excluded by the trial court. “[T]he economist calculated average earnings of the ‘the helping professions’ – the clergy, psychologists, social workers and counselors – the professions that attempt to provide the same kinds of benefits provided by a mother. He arrived at a figure of approximately $10 per hour.” The appeals court upheld the trial court in excluding testimony by the economist. 

Moore v. Lillebo, 722 S.W.2d 683 (TX 1986). “Pecuniary loss for the parent of an adult child is defined as the care, maintenance, support, services, advice, counsel and reasonable contributions of a pecuniary value that the parents would, in reasonable probability, have received from their child had the child lived. . . The definition used will vary according to the class of beneficiary and decedent, e. g. spouse, parent, adult child or minor child. The court distinguished pecuniary damages as thus defined from mental anguish and loss of society and companionship, which were apparently not pecuniary damages.

Roberts v. Williamson, 2003 Tex. LEXIS 110 (Tex. 2003).  Texas does not recognize a common law cause of action for a parent’s loss of consortium resulting from a non-fatal injury to a child. A sharp distinction was drawn between the right of child to recover for the loss of consortium with its parent and the right of a parent to recover for the loss of consortium with a child. The Texas Supreme Court cited similar decisions by the Massachusetts, Michigan, Wyoming, Vermont and Wisconsin, quoting Norman v. Mass. Bay Transp. Auth., 403 Mass 303, 529 N.E.2d 139 (Mass. 1988) as follows: “Although parents customarily enjoy the consortium of their children, in the ordinary course of events a parent does not depend on a child’s companionship, love, support, guidance, and nurture in the same way and to the same degree that a husband depends on his wife, a wife depends on her husband, or a minor or disabled adult depends on his or her parent.”  (Submitted by David Jones.) 

Seale v. Winn Exploration Company, Inc., 732 S.W.2d 667 (Tex. App.1987).  The Texas Court of Appeals upheld the trial court decision to preclude the testimony of economist Dr. Everet Dillman about the present value of appellant’s loss of society and comfort based on a $9.50 hourly average income of a psychiatrist, multiplied times one hour per day over the life expectancy of appellant. The court said: “The trial court properly excluded Dillman’s testimony. The average hourly income of a psychiatrist is not relevant to the ultimate issue to be determined by the jury; the value of the loss, love, affection, companionship and society as between the son and his mother. Therefore, Dillman’s testimony, based on the hourly average income of a psychiatrist, possessed no traces of special knowledge which jurors do not possess in deciding this issue. Further, the trial court allowed Dillman, the economist, to testify generally with regard to computing present value without basing it upon a specific element of damages.” 

Van Cleave v. Lynch, 109 Utah 149 (Ut. 1946).  The Utah Supreme Court upheld the trial court that the jury could compensate for the decedent boy’s “comfort, society and companionship,” quoting an earlier Washington decision in Sweeten v. Pacific Power & Light Co., 88 Wash. 679, to the effect that: “In any action for the death of a bright, health child, eight years of age, the jury may estimate and award substantial damages without direct evidence of the probable value of his services had he lived to majority.”

Vermont

Kirk v. Washington State University, 109 Wash.2d 285 (1987). The Washington Supreme Court held that loss of the enjoyment of life in a personal injury matter is an appopriate separate factor to consider when fixing damages.

Otani v. Broudy, 2004 Wash. LEXIS 435 (Wash. 2004). This decision was appealed to the Washington Supreme Court to resolve whether damages are available to an estate for a decedent’s loss of enjoyment of life (LOEL) under Washington’s survival statutes. The decision provides a review of Washington’s general and special survival statutes and how it interacts with Washington’s wrongful death statute. It holds by a 7 to 3 margin that recovery is not available for LOEL, holding that “loss of enjoyment of life is not a claim Mrs. Otani could have brought had she survived because it is not a loss she experienced in life.” The court held that the standard in a survival action is what an individual could recover if still alive, but one cannot recover for what one lost by being dead if one is still alive. 

Wooldridge v.  Woolett, 96 Wn.2d 659 (Wa. 1981). This decision cites the Pennsylvania decision in Willinger v. Mercy Catholic Medical Center, 482 Pa. 441, 393 A.2d 1188 (1978) as persuasive  authority concerning the wrongful death act and survival action in the state of Washington with respect to the issue of whether loss of enjoyment of life damages are recoverable in a death case. The Wooldridge Court said: “The loss of life’s amenities should be recoverable only by plaintiffs who survive compensable injuries, since such lost pleasures are personal to that individual and essentially represent pain and suffering. Damages for loss of life’s amenities should not be recoverable in survival action, however, because such damages are a back-door method of obtaining compensation for pain and suffering, or for obtaining those damages otherwise recoverable in a wrongful death action. . . We believe that loss of the ability to enjoy life’s pleasures and amenities is not an asset to be accumulated by the deceased.”

West Virginia

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). 

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.

Wisconsin

Czapinski vs. St. Francis Hospital, 2000 WI  80; 236 Wis. 2d 316 (WI 2000). The Wisconsin Supreme Court held that Section 893.55(4)(f), which sets forth the damages for loss of society and companionship recoverable for a wrongful death resulting from medical malpractice does not allow such damages for adult children of the decedent. Such damages are apparently allowed in other types of wrongful death actions in Wisconsin. The Court also held that the disparate treatment between different categories of wrongful death actions does not violate the equal protection clause of the Wisconsin constitution. Suggested by David Jones.  

Pierce v. American Family Mutual Insurance Company, 2007 Wisc. App. LEXIS 509 (Wis. App. 2007). This decision held that loss of society and companionship can be awarded to adult children of a decedent in Wisconsin, reversing the trial court which had held that such damages were only available to minor children. The Court of Appeals also upheld the trial court’s decision to allow the testimony of economist Dr. Karl Egge, discussing Dr. Egge’s calculations for loss of  financial support, loss of household services and loss of inheritance at some length. 

Danculovich v. Brown, 593 P.2d 187 (Wyo. 1979). The Supreme Court of Wyoming held that evidence of parental investment in raising a child a measure of damages is inadmissible under the “lost investment” theory.  It said: “The use of the ‘lost investment’ theory could unduly emphasize the ‘investment’ aspect. The simple facts are that the loss of companionship, society and comfort could be greater for a small child in which there has been far less ‘investment’ than in an 18-year-old, and that the loss of companionship, society and comfort could be just as great, or greater, to parents of a low income family who have been unable to ‘invest’ a great deal in their child as such is to parents of wealth who have spent a large amount on their child.”

Whitney v. McDonough, 892 P.2d 791 (1995). This decision, the only reported decision referencing "hedonic damages" in Wyoming, does not  provide guidance about whether loss of the enjoyment of life is a separable element of damages or whether an expert can be admitted to testify about the value of such damages.  

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Last Modified: March 9, 2011

Updated to December 25, 2010