Admission of Expert Opinion Regarding "Non-Economic Damages" "Value of Life" Damages

Case summary provided by New Jersey attorney, Jeffrey Hark

Johnson vs. Redd, Trial Court Hudson County NJ, L-855-11

In this trial court decision, the court reviews the ability of a party to submit evidence to the jury regarding the pain and suffering value of life based on several different methods of calculations.  The trial court reviewed New Jersey’s evidentiary standards through the New Jersey Rules of Evidence and required by the United States Supreme court’s decision in FRYE.  The trial court barred the ‘hedonic’ expert’s opinions because the New Jersey Supreme court has previously ruled that non-economic damages, also known as ‘pain and suffering’ damages are beyond the scope of any expert.  The ‘effect on their actual life’  damages people suffer as a result of the negligence of another, the court has ruled, are solely a matter for the jury’s determination, and no expert can comment on them.  Procedurally, the court conducted a Rule 104 hearing to determine if the expert was allowed to testify regarding what he believed was the plaintiff’s non economic damages in addition to his economic damages.  At the conclusion of the hearing the trial court, relying on the Rules of Evidence and prior state Supreme Court opinions determined that

(a) an expert is not allowed to testify to non-economic damages,

(b) the expert’s opinions have not been generally accepted or have been adopted by any courts previously, and

(c ) the jury would be mislead because the opinions of the expert are too speculative. 

The court went through the following thought process.

“The Appellate Division, in State v. Doriguzzi, 334 N.J. Super. 530 (App. Div. 2000) explained that when a court is to admit a scientific method not previously approved by the Appellate Division or Supreme Court, it must meet the standard articulated in Frye v. United States, 293 F. 1013 (D.C. Cir.1923). Although Frye has been replaced in the federal court system in favor of the more lenient standards of Federal Rule of Evidence as set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), in New Jersey, with the exception of toxic tort litigation, Frye remains the standard. The Frye test asks whether the scientific test is generally accepted in the relevant scientific community. That acceptance may be demonstrated as follows:

A proponent of a newly-devised scientific technology can prove its general acceptance in three ways:

(1) by expert testimony as to the general acceptance, among those in the profession, of the premises on which the proffered expert witness based his or her analysis;

(2) by authoritative scientific and legal writings indicating that the scientific community accepts the premises underlying the proffered testimony; and

(3) by judicial opinions that indicate the expert’s premises have gained general acceptance.

The burden to “clearly establish” each of these methods is on the prononent of the evidence.

State v. Doriguzzi, 334 N.J. Super. 530, 539 (App. Div. 2000). New Jersey Rule of Evidence 702 provides:

In short, subject to Rules of Evidence 104 and 403, there are three basic requirements for the admission of expert testimony:

(1) the intended testimony must concern a subject matter that is beyond the ken of the average juror;

(2) the field testified to must be at a state of the art that such an expert’s testimony could be sufficiently reliable; and

(3) the witness must have sufficient expertise to offer the intended testimony.

Dehanes v. Rothman, 158 N.J. 90, 100 (N.J. 1999) (citing State v. Kelly, 97 N.J. 178, at 108 (N.J. 1984)).

When the qualifications of an expert or the admissibility of certain evidence is in question, the Judge will hold a Rule 104 hearing that required the court to determine if the jury is allowed to hear certain scientific evidence. If the expert is found to be qualified and the evidence to be admissible, the judge will then consider whether such testimony and evidence risks (1) undue prejudice, confusion of issues, or misleading the jury or (2) undue delay, waste of time, or needless presentation of cumulative evidence. N.J.R.E. 403.  This Court is aware that hedonic damages are different than pain and suffering. Hedonic damages, although in a separate category of pain and suffering, are nevertheless non-economic damages. In Sheck, relying heavily on Eyoma v. Falco, 247 N.J. Super. 435 (App. Div. 1991), the Court described hedonic damages as follows:  Hedonic damages are those damages which flow from physical impairments which limit plaintiff’s capacity to share in the amenities of life. . . . In New Jersey, damages for loss of enjoyment of life are non-pecuniary damages. These damages are encompassed within an injured party’s disability and impairment. Actual loss of enjoyment of life is not a function of pain and suffering. Rather, it is an element of the permanent injury plaintiff has suffered. [Further], we concluded in Eyoma that the concept of diminished loss of enjoyment of life [is] not a concept that is too esoteric for a jury to understand and evaluate.  Sheck, supra, 2005 N.J. Super. Unpub. Lexis 178 at *11-12.  In dicta, the New Jersey Supreme Court has plainly stated that expert testimony  is NOT permitted where the expert seeks to quantify non-economic damages. Dehanes v. Rothman, 158 N.J. 90, 100 (N.J. 1999). In Dehanes, the issue before the Court was whether an attorney during summary may suggest to a jury an aggregate sum or “bottom-line” figure to award for a claim of unliquidated damages. Though this specific issue is not before this Court, the Supreme Court’s explanation of permissible expert testimony in the field of damages is highly instructive. In Dehanes, the Supreme Court explained that experts may testify as to economic damages because such damages can, to some extent, be objectively quantified. On the other hand, damages relating to pain and suffering are beyond the realm of expert testimony.

Specifically, the Court explained:  Some losses in life cannot be measured in dollars and cents. No expert can properly aid a jury in determining what is just compensation for non-economic damages such as pain and suffering. What measure can there be of the suffering sustained by one who loses an arm or a leg in an accident? The value of pain and suffering is simply beyond the reach of science:  No market place exists at which such malaise is bought and sold . . . . It has never been suggested that a standard of value can be found and applied. The varieties and degrees of pain are almost infinite. Individuals differ greatly in susceptibility to pain and in capacity to withstand it. And the impossibility of recognizing or of isolating fixed levels or plateaus of suffering must be conceded.

“[T]he nature of pain and suffering [thus] remains intrinsically and intractably subjective, and, necessarily, any equation between pain, suffering, impairment and the like and monetary compensation remains elusive and speculative.” Dehanes, 158 N.J. at 97 (internal citations omitted).  Although, as explained in Sheck and Eyoma, hedonic damages are different than damages for pain and suffering, both are non-economic damages. Importantly, the Supreme Court’s decision in Dehanes was specific to noneconomic damages – not pain and suffering. This is evident because the Court specifically stated “No expert can properly aid a jury in determining what is just compensation for non-economic damages such as pain and suffering. Dehanes, 158 N.J. at 97.

As explained above, the WTP model is based on three distinct economic analyses. A recent decision by the First Circuit of the Federal Court casts doubt as to the reliability of each of these three models, two of which were relied upon by Dr. Smith.  In Smith v. Dorchester Real Estate, Inc., 2013 U.S. App. LEXIS 20785 (1st Cir. Mass. Oct. 15, 2013), plaintiff was a schizophrenic trash collector who was fraudulently induced into acting as a straw buyer for two overvalued residential properties in Massachusetts. Plaintiff sued various entities and individuals involved in the transactions, including the mortgage lenders, mortgage brokers, real estate brokers, and closing agents. A jury returned a verdict in favor of plaintiff of his claims of fraud and breach of fiduciary duty. Two defendants appealed, inter alia, the trial court’s admission of Dr. Stanley Smith’s testimony as to hedonic damages. Smith, 2013 U.S. App. LEXIS 29785 at *1.