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When my old friend, University of Kansas economist George Bitlingmeyer, first read Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993), he wondered out loud whether Daubert spelled doom for testimony by economists. Last year, two of these columns were devoted to the question of whether and how Daubert and its progeny, Joiner and Kumho, apply to soft science. After reading those columns, University of Missouri at St. Louis economist Thomas Ireland once again raised the issue with me. Ireland has written and testified about hedonic damages, and in particular he asked how the Daubert- Kumho analytic framework applies to testimony on that subject. Economists’ testimony under ‘Daubert’ scrutiny Litigants are increasingly offering economists’ testimony, and the courts are subjecting such testimony to scrutiny under the Daubert line of authority. Kaye, “The Dynamics of Daubert: Methodology, Conclusions, and Fit in Statistical and Econometric Studies,” 87 Va. L. Rev. 1933 (2001); Hechler, “Courts Toss Out Expert Testimony,” NLJ, Jan. 7, 2002, at A20. It therefore seemed appropriate to try to answer Ireland’s question. Hedonic damages are not inherently punitive in nature; rather, they are compensatory. They are intended to compensate the plaintiff for an intangible injury, that is, the loss of the enjoyment of life. Given the nature of hedonic damages, there are some points of agreement among both the courts and commentators. To begin with, in certain types of actions the law of damages does not permit the recovery for that injury. Suppose, for example, that the lawsuit is a wrongful death action. The statutes governing wrongful death actions often permit the recovery of only losses suffered by a decedent victim’s survivors. Livington v. U.S., 817 F. Supp. 601 (E.D.N.C. 1993). The substantive law of damages renders testimony about the decedent’s own hedonic damages logically irrelevant in that type of lawsuit. In contrast, in many jurisdictions the law of damages permits the recovery of such damages in tort “survival” actions filed by a deceased victim’s heirs at law and actions filed by a surviving victim. The battles over the admissibility of hedonic damages testimony occur principally in actions filed by surviving victims who are old and conscious enough to appreciate that they have suffered a diminution in the quality of their life. McDougald v. Garber, 73 N.Y.2d 246, 536 N.E.2d 372 (N.Y. 1989); Ramos v. Kuzas, 65 Ohio St. 3d 42, 600 N.E.2d 241 (Ohio 1992). There is another point of agreement. In the latter types of cases in which the law of damages allows the recovery of hedonic damages, the jury may assess those damages without the benefit of expert testimony. Wilt v. Burracker, 191 W.Va. 39, 443 S.E.2d 196 (W.Va. 1993), cert. denied, 511 U.S. 1129 (U.S. 1994). In closing argument, the attorneys can suggest guidelines to the jury; but in the final analysis, the jurors draw on their own life experience in making their decision. Montalvo v. Lapez, 77 Haw. 282, 884 P.2d 345 (Hawaii 1994). Further, there is general consensus that in these types of actions, some types of expert testimony are admissible. By way of example, the courts routinely allow expert testimony on such subjects as lost earnings and the value of lost household services. Smith v. Ingersoll, 214 F.3d 1235 (10th Cir. 2000). An economic methodology for predicting inflation rates can be retrospectively tested and validated in a manner that satisfies Daubert. Hein v. Merck & Co. Inc., 868 F. Supp. 230 (M.D. Tenn. 1994). The researcher can back up in time, apply the methodology to the then-existing data, make a rate projection based on that data, and then compare the projection to the actual rate. The point of controversy, though, is this: If the law of damages permits the recovery of hedonic damages in a given type of case, does evidence law allow expert testimony on that specific subject by economists? Post- Daubert and Kumho, how should a trial judge approach that question? The starting point for the judge would be the proposition that soft science such as economics no longer enjoys an exemption from scrutiny. As we have seen in prior columns, in many Frye jurisdictions, the courts do not extend the general acceptance test to soft sciences such as psychology or economics. These courts reason that unlike testimony about instrumental “black boxes,” testimony about soft science does not present an acute risk that the jury will overvalue the evidence. However, in Kumho, Justice Stephen G. Breyer made it crystal clear that this is a new evidentiary ballgame. In Kumho, his majority opinion flatly rejected the argument that the Daubert line of authority applies only to purportedly scientific expert testimony. In his words, “We conclude that Daubert‘s general principles apply to [all] the expert matters described in Rule 702.” 526 U.S. at 149. The judge’s responsibility to police the relevance and reliability of expert testimony cuts across the board of expert testimony. The Advisory Committee Note to the 2000 amendment to Rule 702 declares: “[T]he Court in Kumho clarified that this gatekeeper function applies to all expert testimony, not just testimony based in science.” Then, in deciding whether the proffered testimony is admissible, the judge must focus on the specific theory or technique employed by the expert. In Daubert, Joiner and Kumho, the court carefully scrutinized the particular theory or technique that the expert relied on. In Daubert, the court assessed the adequacy of the proof of the theory that a pregnant woman’s use of Bendectin in the first trimester can cause limb defects in the woman’s child. 593 U.S. at 597 (the expert’s ability to perform the particular “task at hand”). In Joiner, the court painstakingly reviewed the record to decide whether the cited animal and epidemiological studies were a sufficient foundation for the theory that, in human beings, exposure to PCBs could cause the type of small-cell lung cancer the plaintiff developed. 522 U.S. at 144. Finally, in Kumho, the court focused on the narrow question of the validation of Carlson’s four-factor test for determining whether a tire failure was caused by a design defect rather than wear and tear or abuse of the tire. 526 U.S. at 141, 149, 153-56. As Risinger has written, the message from this trilogy of cases is that the inquiry is not the “global” validity of the discipline; rather, the pivotal question is whether the particular theory or methodology employed by the expert will enable the expert to perform the specific “task at hand.” Risinger, “Defining the ‘Task at Hand’: Non-Science Forensic Science After Kumho Tire Co. v. Carmichael,” 57 Wash. & Lee L. Rev. 787 (2000). The question is not whether, in general, economics is a recognized intellectual discipline. Kaye, supra, at 1968, 2010, 2014. Next, in determining whether the proponent has laid a sufficient foundation to validate the expert’s specific theory or technique, the trial judge must demand more than the expert’s ipse dixit. The late Chief Justice William H. Rehnquist put it best in Joiner: Trained experts commonly extrapolate from existing data. But nothing in either Daubert or the Federal Rules of Evidence require a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered. 522 U.S. at 146. Thus, the trial judge must examine the foundational testimony, including any evidence of studies that supposedly validate the expert’s theory or technique. In Joiner, the plaintiffs marshaled both animal studies and epidemiological research to support their experts’ opinion. More needed than showing reliance on empirical studies The court reviewed the studies in detail. Initially, the court found the animal studies unpersuasive. The court characterized those studies as “far-removed” from the question in the instant suit. Mr. Joiner was an adult human being who had received a relatively low-level dermal PCB exposure and developed small-cell carcinomas. In the studies, the subjects were infant mice who had received massive doses injected directly into their systems and developed alveolo-genetic adenomas. The court also found significant differences between the conditions obtaining in the epidemiological studies and the facts in the pending case. For instance, some of the studies did not even involve exposure to PCBs. While other studies involved PCBs, the same subjects were exposed to “numerous other potential carcinogens, including toxic rice oil.” Id. In light of Joiner, the proponent must do more than establish that his or her expert relied on some empirical studies in forming the opinion. The test conditions in those studies must be roughly analogous to the conditions in the pending case, and as a matter of logic the findings in the studies must be adequate to sustain the inference drawn by the expert. Can the proponent of hedonic damages testimony satisfy that threshold? As in Joiner, the proponent can point to a number of value of life studies. The studies take two forms: willingness-to-pay and willingness-to-accept. The studies concern the tradeoffs that consumers and workers are willing to make between money and risk avoidance. The former studies examine the behavior of consumers. How much is a consumer willing to pay for a product that will reduce his or her risk of death? Kuiper, “The Courts, Daubert, and Willingness-to-Pay: The Doubtful Future of Hedonic Damages Testimony Under the Federal Rules of Evidence,” 1996 U. Ill. L. Rev. 1197, 1206-07. If a consumer is willing to pay $10 for a device that decreases his or her risk of death by 1 in 100,000 � an automobile safety feature � that suggests that the consumer views the value of a life as $1,000,000. Edward J. Imwinkelried is the Edward L. Barrett Jr. professor of law at the University of California, Davis. He can be reached at [email protected].

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