Massachusetts Federal District Court Applies Kumho Tire to
Exlude Plaintiffs' Expert Testimony on "Hedonic" Damages
In a recent decision illustrating the rigorous application of the Daubert analysis
to social science evidence, a United States District Court magistrate
judge applied the Supreme Court's teachings in the recent Kumho
Tire Co,. Ltd. v. Carmichael decision (reported in the April
1999 Product Liability Update) to exclude, on a pre-trial motion, testimony
from plaintiffs' expert witness on "hedonic" (loss of enjoyment
of life) damages.
Plaintiffs in Saia v. Sears Roebuck and Co., Inc., et al.,
No. 98-30034-KPN (D. Mass. April 27, 1999), a husband and wife brought
a product liability action alleging that the upper joint of the husband's
right index finger was amputated by an exposed nip point while he was
erecting a ping-pong table manufactured and sold by the defendants. Plaintiffs
sought to introduce expert testimony on hedonic damages from an economist
who based his calculations on the "willingness-to-pay" model.
Under this model, the "value" of an average human life can
be determined based upon the amount of money that society is willing
to pay to protect life, calculated from data regarding purchases of safety
devices, wage risk premiums and regulatory cost-benefit analyses.
The court, applying what is termed a "Daubert/Kumho" analysis,
concluded that the evidence offered by plaintiffs' expert was neither
reliable nor relevant. The court critiqued the the reliability of the
expert's method at length, focusing on two of the four factors enumerated
in Daubert: testability and general acceptance. The court
found that the model was based on assumptions that could not be verified
and led to conclusions that could not be tested, and concluded that "there
is no basic agreement among economists as to what elements ought to go
into the life valuation." Notably, the court so found despite 'many
favorable articles' and testimony from the proposed expert that 25% of
his profession used the proposed method of analysis. The court also found
that the evidence was not relevant because the 'anonymous' human life
value arrived at by the expert's analysis had "no bearing whatsoever
on the enjoyment of life lost by the victim." [Foley, Hoag & Eliot
LLP, July 1999:3]