Walker v. Spina

Decision Date11 January 2019
Docket NumberNo. CIV 17-0991 JB\SCY,CIV 17-0991 JB\SCY
Citation359 F.Supp.3d 1054
Parties Shirley J. WALKER, Plaintiff, v. Gregory J. SPINA, Valley Express, Inc., and Great West Casualty Company, Defendants.
CourtU.S. District Court — District of New Mexico

Shavon M. Ayala, Ayala P.C., Albuquerque, New Mexico --and-- Anthony James Ayala, Law Offices of Anthony James A. Ayala, Albuquerque, New Mexico, Attorneys for the Plaintiff.

Raul P. Sedillo, Allison M. Beaulieu, Butt Thornton & Baehr PC, Albuquerque, New Mexico, Attorneys for the Defendants.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on the Defendants' Motion to Exclude Expert Testimony of William Patterson, filed August 30, 2018 (Doc. 72)("Motion"). The Court held a hearing on November 21, 2018. The primary issues are: (i) whether the Court should allow William Patterson, an economic consultant from Albuquerque, New Mexico, see Curriculum Vitae at 1, filed September 6, 2018 (Doc. 75), to testify to the hedonic damages that Plaintiff Shirley Walker suffered from her automobile accident with Defendant Gregory J. Spina, who Defendant Valley Express, Inc. employed; and (ii) whether the Court should exclude the Patterson Report (dated June 6, 2017), filed August 30, 2018 (Doc. 72-1). The Court will grant the Motion in part and deny it in part. Pursuant to the United States of America Court of Appeals for the Tenth Circuit and persuaded by other New Mexico federal district court opinions, the Court will preclude Patterson from quantifying S. Walker's hedonic damages or providing a benchmark figure for her hedonic damages. The Court will allow Patterson to testify generally about hedonic damages, including what they are and the factors considered in valuing them. The Court will preclude admission of the Patterson Report at trial.

FACTUAL BACKGROUND

The Court recited this case's facts and early procedural history in its Memorandum Opinion and Order, 347 F.Supp.3d 868, 872-73 (D.N.M. 2018). The Court incorporates that recitation here. The footnotes in the quotations are in the original.

The Court takes its facts from S. Walker's Complaint for Personal Injuries and Damages (First Judicial District Court, County of Santa Fe, State of New Mexico), filed December 23, 2016, filed in federal court September 29, 2017 (Doc. 1-1)("Complaint"). The Court provides these facts for background. It does not adopt them as the truth, and it recognizes that the facts are largely S. Walker's version of events.
On July 23, 2015, Defendant Gregory J. Spina was speeding on U.S. Highway 84/285 in a commercial vehicle that Defendant Valley Express, Inc. owned. See Complaint ¶¶ 6-7, at 2. As Spina approached a red light, he realized that he was going too fast to brake, so, instead of hitting the vehicles stopped side by side in front of him, he attempted to slip between them. See Complaint ¶ 7, at 2. Rather than avoiding the stopped vehicles, however, he sideswiped both of them, causing both cars to roll into the intersection. See Complaint ¶ 7, at 2-3. S. Walker was driving one of the sideswiped vehicles and, because of Spina's actions, suffered physical and emotional injuries. See Complaint ¶¶ 7, 11, at 2-4.

MOO, 347 F.Supp.3d at 872.

PROCEDURAL BACKGROUND

S. Walker sues Spina and Valley Express, asserting negligence,1 and sues Defendant Dixon Insurance Company, asserting that she has a claim for benefits against it under the [New Mexico Financial Responsibility Act, N.M. Stat. Ann. §§ 66-5-201 to -239] and Raskob [ v. Sanchez, 1998-NMSC-045, 126 N.M. 394, 970 P.2d 580] for injuries that Spina's negligence caused. See [S. Walker's Complaint for Personal Injuries and Damages (First Judicial District Court, County of Santa Fe, State of New Mexico), filed December 23, 2016, filed in federal court September 29, 2017 (Doc. 1-1)("Complaint") ] ¶¶ 8-13, at 3-5. Spina and Valley Express removed the case to federal court on the basis of diversity jurisdiction. See Notice of Removal to the United States District Court for the District of New Mexico at 1, filed September 29, 2017 (Doc. 1)("Notice of Removal").

MOO, 347 F.Supp.3d at 872-73. The Amended Complaint terminated Defendant Dixon Insurance Company as a Defendant and added, in its place, Defendant Great West Casualty Company. See Amended Complaint at 1.

S. Walker "indicated in discovery responses that she may call Mr. Patterson to testify regarding economic damages, including loss of household services, future medical expenses, and loss of value of enjoyment of life." Motion at 2. See generally Patterson Report. On July 27, 2018, the Defendants filed the Defendants' Motion to Exclude Plaintiff's Expert Witnesses William J. Patterson, III, Keith W. Harvie, D.O., and Michael Rodriguez, filed July 27, 2018 (Doc. 58)("Disclosure Motion"), in which they seek to exclude Patterson because S. Walker did not "provide an expert disclosure." Motion at 2. The Court addresses the Disclosure Motion in a separate Memorandum Opinion and Order, filed January 9, 2019 (Doc. 111).

In the Motion, the Defendants describe Patterson's proposed testimony. See Motion at 2-3. The Court summarizes that, and other, information about Patterson here to provide context for the Motion. Patterson is an economic consultant with Legal Economics, in Albuquerque. See Curriculum Vitae at 1. Patterson has a B.A. in economics from Carleton College, in Northfield, Minnesota and has served as an expert witness in several cases in New Mexico state and federal court. See Curriculum Vitae at 1, 4. According to Patterson, the collision with Spina cost S. Walker household services worth $ 141,599.00. Motion at 2 (citing Patterson Report at 1). Patterson specifies that S. Walker would pay $ 1,000.00 per year for medical expenses, see Motion at 3 (citing Patterson Report at 1). He also lists specific numbers for S. Walker's loss of enjoyment of life. See Motion at 3 (citing Patterson Report at 1). He estimates that S. Walker suffered $ 10,000.00 a year in hedonic damages and calculates that the present value of these damages is $ 102,707.00. Patterson Report at 1. In the Patterson Report, Patterson includes his calculations for this $ 102,707.00 number. See Patterson Report at 4. On Wednesday, April 4, 2018, the Defendants deposed Patterson. See Motion at 2 (citing generally Patterson Report; Deposition of William Patterson (Excerpts)(taken April 4, 2018) ), filed August 30, 2018 (Doc. 72)("Patterson Depo."). The Monday before the Patterson Depo., Patterson received documents on S. Walker. See Motion at 2 (citing generally Patterson Report; Patterson Depo.). The documents -- "the Deposition Transcript of Shirley S. Walker's deposition; each of Ms. S. Walker's discovery responses and the supplements of those responses; medical records from various providers; Senior Olympics documents; and various pleadings," Motion at 2 n.1 (citing Patterson Depo. at 72:1-84:23) -- did not change Patterson's opinions, see Response at 2 (citing Patterson Depo. at 6:1-8; id. at 65:23-67:6).

1. The Motion.

The Defendants argue that Patterson bases his opinions on "speculation and generalities," and not on facts, and that "his methods are not supported by economic principles or literature." Motion at 5. In the Motion, the Defendants describe Patterson's methodology. See Motion at 2-3. According to the Defendants, "Patterson did not interview Ms. Walker prior to drafting the report of his opinions." Motion at 2 (citing Patterson Depo. at 32:15-19). The Defendants note that Patterson testified that his calculation for S. Walker's lost value in household services are based on Kathryn E. Walker and Margaret E. Woods' "Time Use, the Value of Household Production of Goods and Services," Motion at 2 (citing Patterson Depo. 34:16-23), in which K. Walker and Woods "compiled data regarding time spent on household services for women under 55 who were employed and unemployed, and women over 55 who were employed and not employed," Motion at 3, and draw data from a 1967 to 1968 study of 1,296 families in Syracuse, New York, see Motion at 2. According to the Defendants, "[t]he Study did not take into consideration single women over 55 years of age who were not employed." Motion at 3 (citing Patterson Depo. at 39:8-22). The Defendants indicate that Patterson assumes such single women belong in the same category as married women over 55 years old but "d[oes] not know whether his assumption [is] correct." Motion at 3. According to the Defendants, Patterson testified that the $ 1,000.00 per year for medical expenses represents a "benchmark figure" and not an actual figure for S. Walker's medical expenses. Motion at 3 (citing Patterson Depo. at 48:20-24; id. at 49:2-50:7; id. at 51:1-16). Further, the Defendants explain that Patterson bases S. Walker's hedonic damages on the value of statistical lives, and "does not know what Ms. S. Walker's specific lost pleasure of life is." Motion at 3 (citing Patterson Depo. at 56:4-5).

According to the Defendants, the substance of Patterson's proposed testimony was found inadmissible under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (" Daubert"), and Smith v. Ingersoll-Rand Co., 214 F.3d 1235, 1245 (10th Cir. 2000), see Motion at 5, and such testimony "routinely is excluded," Motion at 5. The Defendants explain that courts and economic literature criticize "hedonic damages," and the "disparity of results reached in published value-of-life studies and trouble regarding their underlying methodology" have led courts to reject hedonic damages. Motion at 6. The Defendants indicate that "the trend is away from allowing expert opinion testimony on valuation of hedonic damages." Motion at 6 (citing McGuire v. City of Santa Fe, 954 F.Supp. 230, 233 (D.N.M. 1996) (Black, J.) ). Although the Defendants concede that courts have admitted "explanations of hedonic damages," the Defendants aver that Patterson proposes to...

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