How to defend against claims for hedonic damages.

• Author: Cetrulo, Lawrence G.

DAMAGES for the loss of enjoyment of life, known as "hedonic damages," have received widespread attention and, with justification, have attracted the concern of the defense bar. The underlying concept of hedonic damages is not itself new. Although it is frequently unclear whether those damages are to be considered a separate and distinct award or merely one factor in awarding damages for pain and suffering or disability, loss of enjoyment of life has been a compensable injury in virtually all American courts for many years.(1)

What is new is the term that has emerged to describe the loss-"hedonic"-and, what is more important, the related theories of mathematical calculation by which economic experts place a dollar figure on the loss of enjoyment of life.

The term "hedonic" damages made its debut in 1985 in Sherrod v. Berry,(2) a case in the U.S. District Court for the Northern District of Illinois in which the term was coined by an economist, Stan V. Smith, who was permitted to testify as an expert on the question of the value of the plaintiff's loss of enjoyment of life and the means by which to measure that loss. The court quoted Smith as defining the "hedonic value" of life as follows:

It derives from the word pleasing or pleasure.

I believe it is a Greek word. It is distinct from

the word economic. So it refers to the larger

value of life, the life at the pleasure of society, if

you will, the life--the value including economic,

including moral, including philosophical, including

all the value with which you might hold life,

is the meaning of the expression "hedonic

value."(3)

It is astonishing that, since Sherrod, the term "hedonic damages," although better suited to the lexicon of pop psychology or daytime television than to a court of law, has become widely used by practitioners, courts and commentators alike to describe damages for the loss of enjoyment of life. Smith has gone on to coauthor a book on the subject with Michael L. Brookshire(4) and to criss-cross the United States offering himself as an expert witness, primarily to plaintiffs. Fortunately for defendants, however, the courts' apparent enthusiasm for the catchy term "hedonic damages," in preference to the more traditional "loss of enjoyment of life," has not been matched by a greater willingness to permit expert testimony to establish those damages. To the contrary, the overwhelming majority of reported decisions addressing the issue have excluded this testimony as unscientific, unreliable and not likely to assist the trier of fact. This article will use the terms "hedonictype" damages and "damages for loss of enjoyment of life" rather than "hedonic damages," because the theoretical underpinnings of the latter term have not been scientifically established.

SEPARATE ELEMENT OF DAMAGES?

The question whether damages for loss of enjoyment of life are separate and distinct from damages for pain and suffering or disability is an important one from the defense point of view for three reasons.

* A separate category of damages is more likely to increase the total damage award.

* A tort victim, in nearly all jurisdictions must be conscious in order to recover for pain and suffering, while the same rule does not always apply to damages for loss of enjoyment of life.

* If hedonic-type damages are considered to be a component of pain and suffering, expert testimony to establish those damages will be excluded, since expert testimony is not allowed to establish pain and suffering.(5)

1. Component of Other Damages

   The cases holding that loss of enjoyment of life is a component of pain and suffering or disability, rather than a separate element of damages, are typically based on the rationale that treating loss of enjoyment of life as a separate element of damages would lead to duplication or overlapping of damages.

   California and New York are two of the leading jurisdictions taking the position that hedonic-type loss may only be recovered as a component of other damages.

   The leading California case is Huff v. Tracy,(6) in which the plaintiff suffered lacerations of his tongue in an automobile accident, which resulted in loss of his sense of taste. The California Court of Appeal held that the trial court had erred in permitting jury instructions for both pain and suffering and injury to "enjoyment of life." The court noted that the state's decisions rarely used the term "enjoyment of life" but achieved a consistent result in that (1) physical impairment limiting the capacity to share in the amenities of life was a component of pain and suffering and (2) the plaintiffs' counsel could argue this element to the jury.

   The New York Court of Appeals rejected loss of enjoyment of life as a separately recoverable element of damages in McDougald v. Garber,(7) in which the plaintiff suffered oxygen deprivation during a caesarean section delivery, resulting in severe brain damage that left her permanently comatose.

   In a thoughtful and thorough opinion, the court first set forth a helpful summary of the law of other jurisdictions that had addressed the issue. While acknowledging that analytical distinctions could be made between the concepts of pain and suffering and the loss of enjoyment of life, the court noted that by treating loss of enjoyment of life as a component of pain and suffering, courts traditionally have used the term "suffering" in a broad manner so as to encompass not only the emotional response to pain but also the anguish caused by the inability to participate fully in activities that once brought pleasure.

   The court stated:

   If we are to depart from this traditional approach

   and approve a separate award for loss of

   enjoyment of life, it must be on the basis that

   such an approach will yield a more accurate

   evaluation of the compensation due to the plaintiff.

   We have no doubt that, in general, the total

   award for nonpecuniary damages would increase

   if we adopted the rule.... But a larger award

   does not by itself indicate that the goal of compensation

   has been better served.

   The advocates of separate awards contend that

   because pain and suffering and loss of enjoyment

   of life can be distinguished, they must be

   treated separately if the plaintiff is to be compensated

   fully for each distinct injury suffered.

   We disagree. Such an analytical approach may

   have its place when the subject is pecuniary

   damages, which can be calculated with some

   precision. But the estimation of nonpecuniary

   damages is not amenable to such analytical precision

   and may, in fact, suffer from its application.

   Translating human suffering into dollars

   and cents involves no mathematical formula; it

   rests, as we have said, on a legal fiction. The

   figure that emerges is unavoidably distorted by

   the translation. Application of this murky process

   to the component parts of nonpecuniary injuries

   (however analytically distinguishable they

   may be) cannot make it more accurate. If anything,

   the distortion will be amplified by repetition.(8)

   Other jurisdictions holding that loss of enjoyment of life is not a separate element of recovery but rather a component of pain and suffering or disability include Illinois,(9) Indiana,(10) Kansas(11) and Louisiana.(12)

2. Separate Component

   One of the leading cases to hold that hedonic-type damages are separately recoverable is Thompson v. National Railroad Passenger Corp.,(13) in which passengers who had been injured in a rail collision and who sued in federal court in Tennessee were awarded damages for impairment of enjoyment of life as damages separate and apart from pain and suffering or disability. On appeal, the defendant claimed that those damages duplicated pain and suffering, and that there was no Tennessee authority permitting separate amounts for each intangible item of damages.

   The Sixth Circuit, however, affirmed the trial court's award of five separate categories of damages, which included (1) expenses, (2) pain, suffering and fright; (3) permanent injuries, (4) impairment of earning capacity, and (5) impairment of enjoyment of life. The court noted that the purpose of compensatory damages was to make the...