Rivera v. Volvo Cars of N. Am., LLC, Civ. No. 13-397 KG/KBM

Decision Date08 June 2015
Docket NumberCiv. No. 13-397 KG/KBM
CourtU.S. District Court — District of New Mexico
PartiesANDRES RIVERA, as parent and next friend of A.R., a minor, Plaintiff, v. VOLVO CARS OF NORTH AMERICA, LLC, a Delaware Corporation; ROE CORPORATIONS I-X, inclusive; and JOHN DOES, I-X, inclusive, Defendants.
MEMORANDUM OPINION AND ORDER

This matter comes before the Court upon Defendant Volvo Cars of North America LLC's Daubert Motion to Exclude Plaintiff's Expert Witness Robert Johnson's Testimony on Hedonic Damages and Wage Loss Scenarios (Motion to Exclude), filed on April 1, 2015. (Doc. 245). Plaintiff filed a response on April 20, 2015, and Defendant Volvo Cars of North America, LLC (Volvo) filed a reply on May 7, 2015. (Docs. 264 and 286). Having reviewed the Motion to Exclude, the accompanying briefs, and exhibits, the Court grants the Motion to Exclude.

Volvo moves to exclude certain opinion evidence in the May 15, 2014, expert report prepared by Plaintiff's economic losses expert Robert Johnson. First, Volvo asks that the Court exclude any evidence from Johnson that quantifies the value of enjoyment of life, i.e., hedonic damages. Second, Volvo asks that the Court exclude any evidence Johnson may present on wage loss scenarios.

As a gatekeeper under Fed. R. Evid. 702, the Court must ensure the reliability and relevance of all proffered expert testimony. Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137,147 (1999) (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993)). Generally, to be considered reliable, an expert's proposed testimony must be based on more than a subjective belief or unsupported speculation. Daubert, 509 U.S. at 590. The proponent of expert testimony has the burden of demonstrating that its expert fulfills the Rule 702 requirements of reliability and relevance. Heer v. Costco Wholesale Corp., 589 Fed. Appx. 854, 861 (10th Cir. 2014).

A. Johnson's Opinion on Hedonic Damages

Johnson sets forth a five-step method for calculating hedonic damages. (Doc. 245-4) at 4-5. Johnson takes into account the value of an average life ($8,900,000 in 1997 dollars) and "the Human Capital component" to calculate that the value of a human life ranges from $3,5000,000 to $12,900,00 in 2013 dollars. Id. at 4. Johnson's computation method then requires a trier of fact to "determine the percentage (how much in percent) of the loss of the enjoyment of life that the plaintiff has suffered due to their [sic] injuries" and to pick a number between $3,5000,000 and $12,900,00, which "represents the 100% loss of the enjoyment of life." Id. at 5. Finally, to determine the amount of hedonic damages, the trier of fact multiplies the percentage of the loss of enjoyment of life by the chosen number representing the 100% loss of enjoyment of life. Id.

Although an economics expert can give "generalized testimony about the concept of hedonic damages," the majority rule in federal court is that placing a dollar amount on hedonic damages, including the use of benchmarks and range of values, does not meet the reliability and relevance factors required to admit expert testimony. See e.g., BNSF Railway Co. v. La Farge SW., Inc., 2009 WL 4279849 *1-2 (D.N.M.). This district court has, likewise, has rejected expert testimony on the value of a statistical life as not reliable or relevant. See Chavez v.Marten Transport., Ltd., 2012 WL 988008 *2 (D.N.M.) (citing Cruz v. Bridgestone/Firestone North Am. Tire, LLC, 2008 WL 5598439 *4 (D.N.M. 2008)). Because Johnson's five-step method incorporates a monetary range for the value of a human life based, in part, on the value of an average or statistical life, the Court will exclude Johnson's five-step method for calculating hedonic damages as unreliable.

B. Johnson's Wage Loss Scenarios

Johnson, at Plaintiff's attorney's request,1 calculated expected income for A.R. under three scenarios: (1) as a high school graduate, (2) as having completed 1-3 years of college, and (3) as a college graduate. (Doc. 245-2) at 2-3. Johnson acknowledges in his report that he made his wage loss calculations for the three scenarios based on a nurse's life care plan, various statistical reports, the First Amended Complaint, and Plaintiff's deposition testimony. (Doc. 245-1) at 1-2. Johnson, however, admitted at his deposition that all he knew of A.R.'s injuries came from the life care plan; Johnson did not review any medical records. (Doc. 245-3) at 4; depo. at 30.

Volvo cites to Virginian Ry. Co. v. Armentrout to support its position that the speculative nature of determining loss of earning capacity for a child makes expert testimony on that subject inadmissible under Rule 702. 166 F.2d 400, 407 (4th Cir. 1948). The Fourth Circuit in Virginian Ry. Co. stated:

The problem of assessing damages in a case of this sort is one which must be approached with common sense. The little child has been terribly injured; but there is nothing from which loss of earning capacity can be estimated with any degree of accuracy. The jury must do the best it can to estimate this, taking into account, of course, such matters as average earnings. They can consider, also, that the child is bright and intelligent and with proper education may be able to develop high earning capacity in intellectual pursuits.

Virginian Ry. Co., 166 F.2d at 407. The Fourth Circuit in that case, however, did not address the issue of admissibility of expert testimony on a child's loss of earning capacity. Rather the issue before the Fourth Circuit was whether the district court erred in not setting aside the verdict as excessive and in not granting a new trial. Id. Moreover, the Fourth Circuit actually stated that a jury should consider average earnings, information which an expert would provide. Id.

Plaintiff cites to Hull by Hull v. United States to support its position that the Court should allow Johnson to present the three wage loss scenarios to establish loss of A.R.'s earning capacity. 971 F.2d 1499 (10th Cir. 1992). In Hull by Hull, the Tenth Circuit affirmed the district court's acceptance of an expert's "present value calculation" of a child's lost future earnings. Id. at 1511. The issue in Hull by Hull was limited, however, to whether the district court properly adjusted the award for lost future earnings to reflect present value. Id. at 1510-11. Like Virginia Ry. Co., the Court in Hull by Hull did not squarely address the question of admissibility of expert testimony on a child's loss of earning capacity.

Other courts, albeit state courts, have more directly addressed the question of whether to admit expert testimony on a child's loss of earning capacity. One group of cases allows expert testimony on a child's loss of earning capacity if the expert bases that testimony both on statistics and facts specific to the child. See, e.g., Bulala v. Boyd, 239 Va. 218, 233, 389 S.E.2d 670, 677 (1990). Otherwise, "[e]stimates of damages based entirely upon statistics and assumptions are too remote and speculative...." Id. For example, an expert should consider facts personal to the child such as academic reports, medical records, the family's educational and vocational background, and impressions from interviews with the child and the child's family. See Musickv. Dorel Juvenile Group, Inc., 818 F.Supp. 2d 960, 963-64 (W.D. Va. 2011). See also Altman v. Alpha Obstetrics & Gynecology, P.C., 255 A.D.2d 276, 278, 679 N.Y.S.2d 642, 644 (1998) (expert considered father's vocation and educational level as well as brother's college attendance and academic achievements); Thoreson v. Milwaukee & Suburban Transp. Co., 56 Wis.2d 231, 240, 201 N.W.2d 745, 750 (1972) (expert must take into account child's handicaps which are supported by medical evidence). In Andrews v. Reynolds Memorial Hosp., Inc., the West Virginia Supreme Court of Appeals allowed expert testimony setting forth three wage loss scenarios, like the ones Johnson proposes, noting that the expert considered the educational background of the child's parents. 201 W.Va. 624, 630-33, 499 S.E.2d 846, 852-55 (1997). On the other hand, the New Jersey Supreme Court held that it,

will not require
...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT