Loth v. Truck-A-Way Corp.

• Decision Date: 07 January 1998
• Docket Number: TRUCK-A-WAY,No. B106209,B106209
• Citation: 60 Cal.App.4th 757,70 Cal.Rptr.2d 571
• Court: California Court of Appeals Court of Appeals
• Parties: , 98 Cal. Daily Op. Serv. 212, 98 Daily Journal D.A.R. 215 Shereen LOTH, Plaintiff and Respondent, v.CORPORATION et al., Defendants and Appellants.

Page 571

70 Cal.Rptr.2d 571

60 Cal.App.4th 757, 98 Cal. Daily Op. Serv. 212,

98 Daily Journal D.A.R. 215

Shereen LOTH, Plaintiff and Respondent, v. TRUCK-A-WAY CORPORATION et al., Defendants and Appellants.

No. B106209.

Court of Appeal, Second District, Division 1, California.

Jan. 7, 1998.

Rehearing Denied Jan. 28, 1998.

Review Denied April 15, 1998.

Hulsy & Hulsy and William S. Hulsy, Irvine, for Plaintiff and Respondent.

Ropers, Majeski, Kohn & Bentley, Mark G. Bonino and Timothy K. Branson, Redwood

City; Santochi, Fitzer & Gable and Darrell J. Chun, Glendale, for Defendants and Appellants.

ORTEGA, Acting Presiding Justice.

In this personal injury lawsuit arising from an automobile accident, the jury awarded the plaintiff substantial general damages, which was not in itself remarkable. What was unusual, however, was plaintiff's expert economist's testimony on "hedonic" ¹ damages, or damages to compensate for the loss of enjoyment of life. The expert told the jury the baseline value of an average person's remaining 44-year life expectancy is $2.3 million. He also explained that after adjusting the baseline value to account for the plaintiff's expected lifespan, the jury could calculate the plaintiff's hedonic damages by multiplying the percentage of the plaintiff's disability by the adjusted baseline figure. The admissibility of such testimony appears to be a question of first impression in California. ²

We conclude the expert's testimony on hedonic damages was inadmissible as a matter of law and its admission was prejudicial. We reverse the judgment and remand for a new trial on damages.

FACTUAL & PROCEDURAL BACKGROUND

On June 29, 1994, plaintiff Shereen Loth was on a business trip driving north on Interstate 5. Plaintiff's small car was struck by a 24-wheel tractor-trailer rig owned by defendant Truck-A-Way. The collision occurred as plaintiff's car, which was in the slow lane, was passing on the truck's right. The truck made an unsafe lane change into plaintiff's lane, and its front end hit plaintiff's car's left rear. Plaintiff's car spun in front of the truck and was pushed sideways across three lanes of traffic. Plaintiff's car eventually separated from the truck, but was struck by another vehicle before it stopped on the shoulder, facing the wrong way.

Plaintiff walked away from the accident but her car was seriously damaged. She continued her trip in a rental car, but she had suffered a concussion, was disoriented, and was unable to handle her business affairs. (Plaintiff, a design school graduate, owns a small but growing business that manufactures and markets lingerie throughout California and in Las Vegas.) Plaintiff cut short her business trip and flew home.

Two days after the accident, plaintiff went to her doctor complaining of headaches, low back pain, and a stiff neck. Between July 1994 and March 1995, plaintiff saw five other doctors including a neurologist, a psychiatrist, and an orthopedic surgeon. She had disabling neck pain, headaches, severe low back pain, groin pain, and shooting pains down her legs. She received physical therapy which lessened her headaches, neck pain, and upper back pain, but failed to improve her low back pain, groin pain, and shooting pains down her left leg. A soft tissue injury specialist gave her cortisone shots in the lower back and sacroiliac joint, but she felt no lasting relief. She had six chiropractic sessions that were of no help. According to plaintiff's medical experts, she has exhausted her treatment options other than taking pain medications with dangerous potential side effects.

Plaintiff sued Truck-A-Way and its employee driver for personal injuries, property damage, and lost earnings. Defendants conceded liability at trial, and the only issue for the jury was damages.

Plaintiff asked the jury for $208,479 in special damages, comprised of medical damages (past and future) of $27,635, temporary lost earnings of $147,675, ³ and property damage and miscellaneous expenses of $3,507. (Those figures do not total $208,479, but that is what the jury was told both orally and in writing.)

As for pain and suffering, plaintiff asked for an unspecified amount of damages, including compensation for loss of enjoyment of life. Plaintiff, who was 27 when the accident occurred, was a star high school varsity athlete in volleyball, softball, and basketball. Before the accident, she worked 10 to 11-hour days (including a night shift as a cocktail waitress), played softball and volleyball three nights a week, and exercised at the gym every day. After the accident, she could not sit at a sewing machine for longer than an hour without pain, could not function as a cocktail waitress, could not play organized sports, and could no longer water or snow ski, jog, or golf. Her social life, which had previously revolved around her athletic activities, was severely impaired. Driving a car now causes her jaw to hurt. To prevent her jaw from clenching, she must drive with her mouth agape. She has constant lower back pain that increases with activity and sometimes shoots down her leg. She had hoped to get married and have children, but her condition has made her fearful of having children and her "sexual spontaneity is gone."

Over defendants' objection, ⁴ plaintiff's expert economist Stanley V. Smith testified he had computed the basic economic value of life (apart from one's earnings from employment). Smith relied upon three types of studies of: (1) the amount society is willing to pay ⁵ per capita on protective devices such as seat belts, smoke detectors, etc., (2) the risk premiums employers pay to induce workers to perform hazardous jobs, and (3) the cost/benefit analyses of federally mandated safety projects and programs. Based on those studies, Smith calculated the value of an average person's remaining 44-year life expectancy at $2.3 million, which he described as a baseline figure. Smith adjusted the baseline figure to account for plaintiff's longer than average remaining life expectancy of 53 years. He multiplied the adjusted baseline figure by various percentages reflecting plaintiff's possible degrees of disability to calculate various possible hedonic damage awards. For example, Smith told the jury that in plaintiff's case, a 33 percent loss of enjoyment would be worth $1,684,000, a 10 percent loss of enjoyment would be worth $510,000, and a 5 percent loss of enjoyment would be worth $255,000. Smith gave the jury a table to assist it in making its mathematical calculations.

Defendants, having failed to prevail on their objections to Smith's testimony, offered no expert testimony to refute Smith's assertions.

In closing argument, plaintiff's counsel specifically referred to Smith's testimony, and pointed out the absence of conflicting expert testimony on the formula for computing hedonic damages. Plaintiff's counsel stated: "Now I want you to compare the experts. Stan Smith testified. He wrote the book literally on this kind of damages. He's tops in his field. There's been no contradiction of anything that he said."

Defendants' closing argument urged the jury to disregard plaintiff's claim of a lower back injury. Defense counsel conceded plaintiff had incurred a soft tissue injury to the neck and a concussion, but argued her other injuries were not related to the accident. As for pain and suffering damages, defense counsel argued that the jury needed no expert testimony to calculate an award. Counsel pointed out Smith's $2.3 million baseline figure did not take into account "any unique personalities, likes, interests of any one of us. I think each one of us is a ... distinct individual, and I think it's almost sacrilegious or almost impossible to place value on human life. That's going to be a tough job for you, and that's something that you are going to have to decide in this matter." Counsel urged the jury to ignore Smith's testimony, which he characterized as "just too speculative[.]"

The jury returned a general verdict for plaintiff for $890,000. After the trial court denied defendants' motion for new trial or remittitur, defendants appealed from the judgment.

CONTENTIONS ON APPEAL

Defendants contend Smith's testimony on hedonic damages was inadmissible and the amount of the judgment was unsupported by the record.

DISCUSSION

In California, a pain and suffering award may include compensation for the plaintiff's loss of enjoyment of life. Loss of enjoyment of life, however, is only one component of a general damage award for pain and suffering. It is not calculated as a separate award.

"California case law recognizes, as one component of general damage, physical impairment which limits the plaintiff's capacity to share in the amenities of life. (Henninger v. Southern Pacific Co. [ (1967) ] 250 Cal.App.2d 872, 883, 59 Cal.Rptr. 76 ... (loss of both legs); Purdy v. Swift and Co. [ (1939) ] 34 Cal.App.2d 656, 658, 94 P.2d 389 ... (impairment of taste and smell); Scally v. W.T. Garratt & Co. [ (1909) ] 11 Cal.App. 138, 145, 104 P. 325 ... (loss of ability to pursue musical studies)....) The California decisions rarely employ the 'enjoyment of life' rubric, yet achieve a result consistent with it. No California rule restricts a plaintiff's attorney from arguing this element to a jury. Damage for mental suffering supplies an analogue. [Citation.] A majority of American jurisdictions recognize the compensability of loss of enjoyment of life, some as a component of the pain and suffering award, others as a distinct item of damage. [Citations.]" (Huff v. Tracy, supra, 57 Cal.App.3d at p. 943, 129 Cal.Rptr. 551.) ⁶

There is "[n]o definite standard or method of calculation ... prescribed by law by which to fix reasonable compensation for pain and suffering." (BAJI No. 14.13 (8th ed. 1994), original brackets omitted.) As our Supreme Court stated, "One of the most difficult tasks imposed upon a jury in deciding a case involving personal injuries...