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Practice Tip: Expert Testimony Quantifying Hedonic Damages
Few subjects in the staid world of economics generate as much controversy as expert testimony quantifying hedonic damages: tort damages that attempt to compensate a plaintiff for the loss of enjoyment of life. Countless articles in forensics literature debate whether monetary value placed on a statistical life applies to a specific plaintiff. This controversy has spilled over into the courtroom. While most jurisdictions allow recovery of some form of hedonic damages, the trend, especially in the post-Daubert era, has been to exclude expert testimony that purports to calculate the amount of those damages. This article examines the trend against expert testimony quantifying hedonic damages and notes recent decisions that indicate the trend may be curbing, especially in jurisdictions that have refused to adopt Daubert.
The Willingness-to-Pay Methodology
Economists who testify about the amount of hedonic damages ordinarily begin with a benchmark they claim represents the total value of life for a statistically average person as determined through willingness-to-pay methodology. This methodology presupposes that average persons place value on their life as represented by their expenditures for safety devices and their willingness to accept higher-risk occupations for increased wages. For example, assume a safety device costs $460 and results in lowering a person's risk of premature death by one chance in 5000. The cost per life saved is obtained by dividing $460 by the one in 5000 probability, yielding $2.3 million. This figure theoretically represents the value that person places on his or her life. See Michael L. Brookshire & Stanley V. Smith, Economic/Hedonic Damages: The Practice Book for Plaintiff and Defense Attorneys, 161-175 (Anderson Publishing Co. 1990).
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