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From the average person’s viewpoint, the expert witness on “hedonic” damages comes armed with a foreign, even offensive, calculus, using wage differentials, percentages, risk avoidance and other elements to put a value on the invaluable — a human life. Nearly two decades after such damages first entered the legal lexicon, the basic idea of recovering money for loss of enjoyment of life stirs little controversy. But many courts still cast a leery eye on experts who try to assess that loss — and a blind eye on recoveries for wrongful death. “My own sense is hedonic damages are routinely claimed now and that, linguistically, lawyers have to be a little versatile,” says tort scholar Michael I. Krauss of the George Mason University School of Law. In some jurisdictions, he explains, an independent claim for damages for lost enjoyment of life can be made in personal injury actions, but in others, it must be sought as an element of pain and suffering. The only areas in which controversy remains, he adds, involve the admissibility of expert testimony and whether hedonic damages can be recovered for someone who is in a coma or dead. MISSISSIPPI TOO In February, the Mississippi Supreme Court joined a majority of states in allowing recovery for lost enjoyment of life as a separate element of damages. These damages, the court explained, compensate an injured person “for the limitations placed on his or her ability to enjoy the pleasures and amenities of life.” In contrast, pain and suffering damages, added the court, encompass “the physical and mental discomfort caused by an injury, such as anguish, distress, fear, humiliation, grief, shame, and worry.” Kansas City Railway Co. v. Johnson, No. 99-CA-00505-SCT. “That’s the first clear ruling I’ve seen in several years,” says tort scholar Gary Schwartz of the University of California at Los Angeles School of Law. “A reason this [concept] has been stable or quiet is because, whatever you call it, it’s recoverable today.” But the Mississippi ruling also spoke to one of the remaining controversies — expert testimony — in a way that encourages plaintiffs’ lawyers about the economic experts they use to value the lost enjoyment of life. The court held that the trial court did not abuse its discretion in allowing economist Stan V. Smith to testify to the value of J.C. Johnson’s lost enjoyment of life after he suffered severe injuries when a freight train going 40 mph struck his vehicle. The court held that Smith’s testimony met the standards for admissibility set out in the state’s rules on expert testimony — which are very similar to the federal rules — as well as under the so-called Frye test. Smith, who coined the phrase “hedonic damages” in a 1983 federal civil rights suit, calls the Mississippi opinion “remarkable” because it did not just say that trial judges “may” admit this testimony, but also that the testimony meets state evidentiary standards and, by extension, the federal rules as well. “This issue has been more or less trench warfare,” says Smith. The economics of valuing life has been studied for more than three decades, he says. “Most of the reports on the value of life fall in the $2.5 million to $3 million range,” he says. “We value it by what workers are paid and what people do to protect their own health and safety.” Obstacles to admissibility of this kind of testimony, he says, include judges who generally are not trained in scientific review, intense opposition from the defense bar and insurance industry, and deep-rooted public antipathy to the subject. “We are told in Sunday school that life is invaluable, and then we’re told it’s valued at one-half the value of a commercial jet,” he explains. “I’m not sure people want to hear that.” But it also may be that people don’t have to hear that, says Prof. Krauss. The science of valuing lost enjoyment of life is “extremely dubious,” he says. Juries can value lost enjoyment of life based on personal, not expert, testimony, adds Prof. Schwartz. But behind hedonic damages lies the notion that enjoyment can be quantified in some meaningful way by economic analysis, says Chicago plaintiffs’ attorney John C. Wunsch: “Courts permit economic analysis of damages for lost and future lost wages, pain and suffering, and loss of a normal life, which used to be known as disability.” Despite the controversy, the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceutical Inc., 509 U.S. 579 (1993), gave trial judges much discretion in handling this testimony, says Prof. Krauss, and it will be difficult to overturn them whether they admit it or exclude it. In fact, an Ohio appellate court in 1998, relying on Daubert, held that a trial judge had not abused his discretion in admitting economic testimony on lost enjoyment of life. The evidence, the court said, fell into the “shaky but admissible” category of evidence envisioned by Daubert. Although courts still may treat the admissibility question unevenly, they are fairly consistent in their view of hedonic damages and wrongful death suits. They are recoverable only in four states — Connecticut, Georgia, New Mexico and Mississippi — and in federal civil rights suits under 42 U.S.C. 1983. “We allow tortfeasors to pay zero for this element of damages in a death case in 46 states,” Smith says. “It allows us to depreciate and devalue life because we don’t charge for it.” In survival suits brought in the decedent’s name, the common law cuts off damages for lost enjoyment of life at the moment of death, says Prof. Krauss, “and that’s the state of the world.” And because wrongful death suits are brought by survivors for damages they have suffered, hedonic damages seem inconsistent, says Prof. Schwartz. “Family members can recover for their own lost companionship with the decedent,” says Prof. Schwartz. “But to allow them to recover for the pleasure of life that the decedent would have had, had he lived, seems odd.” COMATOSE LIFE New York and a number of other states bar hedonic damages if the injured person is comatose. Because the person doesn’t feel anything — and doesn’t know what’s being missed — he or she shouldn’t recover for lost enjoyment of a life. “I find that impossible to understand,” says Prof. Krauss. “If a person is 35 and has two children, you can imagine what enjoyment that person has lost. We give lost income even though she doesn’t know she has missed any money.” Smith says he would like judges to be trained to understand the 30 years of research into valuing life. And he’d like attorneys to realize that such evidence can be used by plaintiffs or defendants. “We have useful information for juries,” he says.

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