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Measuring The Loss Of Enjoyment Of Life In Personal Injury Cases In Washington - Hedonic Damages

Originally Published in Trial News, Vol. 32, Number 5, January 1997, pp.29-30, Washington State Trial Lawyers Association

By: Dr. Stan V. Smith
Tel: (312) 943-1551
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In most courts, the value of a human being is not recognized. According to the laws of many states, your life isn't worth a "plugged nickel" if you no longer work. So, except in Georgia, Connecticut, Mississippi and New Mexico, and in Section 1983 cases, if you are injured or killed and have lost all your future enjoyment of life, but have no lost income, you or your survivors stand little chance of collecting anything for the value of your life.

Fortunately, in non-fatal injury cases, most states do allow for the partial loss of enjoyment of life.1 The Field of economics has much to say about how to value these losses, and thus many courts have allowed expert testimony on the loss of enjoyment of life damages to assist juries in evaluating these losses.

In fatal injury cases, while a decedent cannot recover for his or her own loss of enjoyment of life, an economic model can and has been used in courts throughout the country to value the loss of society and companionship to survivors.

Most states do allow non-fatal injury victims to recover for their lost enjoyment of life without requiring cognitive awareness on the part of the victim. Recently, in Molzof v. United Slates 112 S.Ct. 711 (1992), a Federal Tort Claims Act case, the U.S. Supreme Court unanimously ruled that cognitive awareness is no longer required for damages to be claimed against the U.S. Government.

In a few states, however, you can recover only if you are aware of the loss you have experienced from an injury. If you are in a permanent coma, you or your survivors are entitled to nothing. In these states, such as New York, it is thus "cheaper to kill than to maim."

The loss of enjoyment of life is a separate element of damages in the majority of states. In several states, it is a part of pain and suffering. From an economic point of view, where these damages fit on a jury form does not affect their calculation. Washington's Supreme Court held, in Kirk v. Washington State Univ., (Wash 1987) 746 P2d 285, that a jury may be instructed to consider the "loss of enjoyment" of life, and that such an instruction would not mislead the jury or lead to double recovery in addition to pain, suffering and disability.

Legal views on the issue of loss of enjoyment of life are beginning to change, in part because of an economic model that places a dollar figure on the hedonic value of life - the pleasure or satisfaction we get from living. The hedonic model of the value of life, along with its implications, has stirred some controversy. Since the concept was first presented 1984, dozens of articles have appeared in law reviews and legal and economic journals, and a handful of books have been published on the topic. In some 25 states so far, both in injury and death cases, judges have permitted me to testify and thus educate juries as to economic evidence on the hedonic value of life. In most of these cases, juries are concluding that the value of life itself is quite significant; in many cases, awards have been in excess of $1 million. Over the past decade, plaintiff's attorneys have begun to see that in cases where there is little or no lost income, such as for very young or retired people, testimony on hedonic damages can have a very powerful effect. More recently, defense attorneys have recognized that in cases where juries are likely to, be overly sympathetic to the victim, defense testimony on hedonic damages can help argue against sky-high claims for losses, thus preventing runaway verdicts. Through such testimony, awards may become more predictable, leading to more settlements, less litigation, and hence lower insurance premiums. Appropriate and reasoned jury awards often result from such expert witness testimony.

Before economic testimony on the loss of enjoyment of life was available, the value of a workaholic, based primarily on wages, would have been considered to be greater than the value of a person who led a more balanced life, and who may have thus contributed more significantly to the community. Similarly, a working mother would receive greater compensation than a mother who chose to work full time in the home and/or in volunteer settings. Testimony on the loss of enjoyment of life now gives juries a way to properly evaluate the non-monetary value of life.

"Hedonic value" refers to that part of life's worth, which is separate from the financial value, such as lost earnings. In death cases, the loss is total. In injury cases, the concept of hedonic value is used to measure the diminution of the value of life as a consequence of trauma, separate from the palpable pain and suffering of the trauma itself. Courts are increasingly recognizing the distinction between experiencing the pain and suffering of the incident itself, and the subsequent suffering from a disability caused by an injury. If you lose a leg you may not only lose your job, but also your self-esteem, your ability to perform many personal care functions, and much of your social and leisure potential.

One of the first cases involving expert economic testimony on hedonic damages is a wrongful death case, Sherrod v. Berry, 629 F.Supp. 159, (N.D. 111. 1985), aff'd, 827 F.2d 195, (7th Cir. 1987), vacated, 835 F.2d 1222 (7th Cir. 1987), rev'd on other grounds, 856 F.2d 802 (7th Cir. 1988). In Sherrod, a 19-year-old unarmed youth was killed by a policeman. The 7th Circuit Court ruled that hedonic value testimony was "invaluable" to the jury and that it did not invade its province as the defense had argued. More recently, in Fergiison v. Vest, Circuit Court, 3rd Judicial Circuit, Madison County, IL, Case No. 87-L-207, the concept was successfully applied to an injury of a woman who received unnecessary radiation for a false positive pap smear indicating a cancer she did not have.

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Dr. Stan V. Smith, is a nationally renowned Economist and Financial Consultant providing analysis in simple terms that any trier-of-fact can understand. As an expert consultant to plaintiff and defense attorneys representing clients in Federal State courts, he provides testimony and litigation support services in evaluating damages.

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