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The Louisiana Supreme Court has joined courts in a handful of other states in allowing plaintiffs to seek separate damages for loss of enjoyment of life, or so-called hedonic damages. The court’s 5-2 decision reversed a Louisiana 4th District Court of Appeal holding, bringing it into line with the state’s other four intermediate appellate courts, as well as jurisdictions in other states that allow hedonic damages as a distinct element of general damages. Hedonic damages are “detrimental alterations of a person’s life or lifestyle or a person’s inability to participate in the activities or pleasures of life that were formerly enjoyed,” according to the Louisiana high court’s July 10 opinion. The term first appeared about 20 years ago, when economists began using it to refer to certain aspects of an injured person’s noneconomic damages. The supreme courts of Connecticut, Maryland, New Hampshire, New Mexico, South Carolina, Washington and Wyoming-as well as the 6th U.S. Circuit Court of Appeals applying Tennessee law, and the 10th Circuit applying New Mexico law-are among other courts that permit separate claims for hedonic damages. But the high courts of Kansas, Nebraska, New York, Ohio and Pennsylvania, and appellate-level decisions in California, Minnesota and Texas, have rejected this position. Mississippi did away with hedonic damages through legislation in 2002. Victor E. Schwartz, head of the public policy group in the Washington office of Kansas City, Mo.-based Shook, Hardy & Bacon, downplayed the Louisiana decision, calling it a “resurrection” of “a trial balloon of the early 1980s that generally failed. “Hedonics are duplicative, like five pennies added to a nickel,” because awards for loss of pleasure in life are already made for pain,” Schwartz said, adding that he does not expect to see other states follow Louisiana’s lead. Two recoveries? The majority dismissed arguments by the defense and the two dissenting high court judges that allowing a separate award for enjoyment of life lets plaintiffs recover more than once for the same damage. But the court’s majority also instructed trial courts to exercise their discretion on a case-by-case basis over whether the facts of a case warrant recoverable hedonic damages. McGee v. A. C. and S. Inc., No. 05-CC-1036. The court sent back to the lower court for trial Betty McGee’s asbestos survival action, on behalf of her deceased husband James, against building products manufacturer A. C. and S. Inc. of Omaha, Neb. The court limited Betty McGee’s damages claim for loss of the enjoyment of life to the period of her husband’s lifetime, and precluded his survivors from asserting their own hedonic damages claim caused by his illness. “Kaye N. Courington of Duncan, Courington & Rydberg in New Orleans who filed a brief on behalf of several of the defense amicus parties, said in an e-mail that although the court ruled for the plaintiffs, she is satisfied that it made it clear that duplicative awards are not appropriate.” “Despite the ruling in plaintiffs’ favor, we are hopeful that the Louisiana trial courts will heed the Louisiana Supreme Court’s comments and allow only those jury instructions which would clearly prevent duplicative awards for hedonic damages to go to the jury,” Courington said. “If defendants are successful in crafting such instructions and getting them into the jurors’ hands, then the McGee ruling will effectively bring Louisiana in line with the majority of other states which consider hedonic damages to be a part of general damages.” Gerolyn P. Roussel of Roussel & Roussel in La Place, La., who represents the McGees, said in an e-mail that the court recognized that pain and suffering and loss of enjoyment of life represent separate losses. “Failure to recognize loss of enjoyment of life as a separate element of damages is contrary to the primary purpose for awarding damages to a victim, which is to compensate the victim for all harm suffered,” she said. In a hypothetical case, the majority also contrasted an injured athlete with an injured artist to underscore that two people with similar injuries can be affected differently regarding their ability to enjoy life. The artist could continue in his activity, while the athlete would have “to find another avocation to fill his leisure time,” Roussel said.

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