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Suing for hedonic damages 
 
 
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
 
Westcott v. Crinklaw 133 F.3d 658 (1998): Hedonic damages are a part of pain and suffering and do not get a separate jury instruction.
*there is no error in the court's failure to specifically instruct the jury on recovering for hedonic damages (damages arising solely from Arden Westcott's loss of the enjoyment of his life)

*Relying on Nebraska law, the district court refused to instruct the jury that Arden Westcott's estate could be awarded hedonic damages. The district court concluded that Nebraska does not allow a separate instruction on hedonic damages, relying on Nebraska law which says that hedonic damages are not a distinct category of damages but are merely a component of pain and suffering and of disability. See Anderson v. Nebraska Dep't of Social Services, 248 Neb. 651, 538 N.W.2d ... (see below)

Arkansas: Hedonic damages are allowed but not in wrongful death actions.

Bailey v. Rose Care Center, Div. of C.A.R.E., Inc., 307 Ark. 14 (1991):

*Hedonic damages are not allowed in wrongful death actions.

*Likewise, we dismiss the appellant's final argument that the trial court erred in omitting provision (c) of her proffered instruction which allowed damages for the loss of enjoyment of life and the capacity to enjoy life suffered by John Dowdy. In short, our law does not recognize damages for loss of the decedent's enjoyment of life in wrongful death actions. See Ark. Code Ann. 16-62-102 (1987); AMI 2215.

PHILLIPS v. SUGRUE, 800 F. Supp. 789 (1992):

*Hedonic damages are allowed in personal injury cases.

*Facts: This action was instituted by Kimberly Phillips (plaintiff) against Father Timothy Sugrue (Father Sugrue) and Marist Fathers of Washington Province (Marist Fathers) alleging that between 1976 and 1978, when plaintiff was "a minor child of tender years defendant, Father Sugrue, intentionally took improper sexual liberties with, and indecently fondled plaintiff against her will and without her consent."

*Viewing the allegations contained in plaintiff's complaint in a light favorable to the plaintiff on defendants' motion for summary judgment, the Court is of the view that plaintiff has suffered severe emotional distress resulting in great mental suffering, permanent injury and "hedonic damages," stated differently, unpleasurable states of consciousness.

Iowa: Hedonic damages are a part of pain and suffering.

Pouzer v. McGraw, 360 N.W.2d 748 (1985):

*As a separate and independent element of damages, the trial court submitted plaintiff's claim of a diminished capacity for enjoying life. We seem never to have considered such a submission. Plaintiff cites Swiler v. Baker's Super Market, Inc., 203 Neb. 183, 277 N.W.2d 697, 700 (1979) in support of the instruction. In that case, the Nebraska court found no error but, recognizing the instruction might be redundant, stated it did not recommend the practice.


*Our own opinions have assiduously guarded against duplicate damage awards. Team Central, Inc. v. Teamco, Inc., 271 N.W.2d 914, 925 (Iowa 1979) ("Duplicate or overlapping damages are to be avoided"). We recognize loss of enjoyment of life as a factor to be considered as a part of future pain and suffering. Mabrier v. A.M. Servicing Corp. of Raytown, 161 N.W.2d 180, 183 (Iowa 1968); Holmquist v. Volkswagen of America, Inc., 261 N.W.2d 516, 526 (Iowa Ct. App. 1977). To whatever extent recovery for such a loss should be allowed it is already recognized, under Mabrier, as a factor in other elements of damages. It would be plainly duplicative to allow a separate award for loss of enjoyment of life. Although we recognize there is a contrary view, we join the states which refuse to allow the submission of loss of enjoyment of life as a separate element of damages. See Annot. 34 A.L.R. 4th 293, 300-04 (1984).

Minnesota:

Leonard v. Parrish, 420 N.W.2d 629 (Minn.App.1988): No separate jury instruction for hedonic damages but loss of enjoyment of life may be considered as a part of general damages.

*The trial court rejected Leonard's request for a specific instruction on loss of enjoyment of life for damages to her senses of smell and taste, instead submitting that loss as a general element of damages. The court also rejected an instruction on Leonard's future job retraining. This damage element appears adequately covered by the special verdict question relating to her future earning capacity. Since its general instructions were adequate, the trial court did not abuse its broad discretion by limiting Leonard's proposed jury instructions.

Cruz v. Harris, 1999 Minn. App. LEXIS 741 (1999):

*Hedonic damages appear to be allowed as a part of compensatory damages but in this case the award was found to be excessive.

*In reviewing a compensatory damage award, the following factors are relevant: past and future pain, permanent disability, life expectancy, ability of plaintiff to follow his usual occupation, loss of earning power, the effect on plaintiff's enjoyment of the amenities of life, degree of disfigurement, and the inflationary trend of the economy. Dawydowycz v. Quady, 300 Minn. 436, 440, 220 N.W.2d 478, 481 (1974).


*No findings were made regarding past pain, permanent disability, life expectancy, ability of respondent to pursue her occupation, loss of earning power, enjoyment of the amenities of life, disfigurement, or inflation. The district court's only pertinent finding was that respondent still suffered from a sore shoulder. Appellant urges that this finding does not support its conclusion that respondent is entitled to $ 100,000 compensatory damages.


*Appropriate action may be taken where the evidence does not justify the award of damages. We have stated that we are reluctant to disturb a verdict as excessive in a case where the amount has the approval of the trial court, but that it does not follow from such reluctance that we should permit all verdicts to stand. Fifer v. Nelson, 295 Minn. 313, 318, 204 N.W.2d 422, 425 (1973). Here, the findings of fact do not support the district court's conclusion that respondent suffered $ 100,000 in compensatory damages. We reverse the award of compensatory damages.

Polyak v. Reus, Inc., 1990 Minn. App. LEXIS 815: Hedonic damages are a part of general damages. This case is also interesting b/c expert testimony on hedonic damages was denied. However, this case does not really make it clear that expert testimony would be disallowed if the factual circumstances were different. 

*Polyak argues that the trial court erred in failing to include on the special verdict form and to instruct on the issue of loss of enjoyment of life. Minnesota courts have never recognized loss of enjoyment of life as a separate element of damages. See Anunti v. Payette, 268 N.W.2d 52, 55 (Minn. 1978); Leonard v. Parrish, 420 N.W.2d 629, 634 (Minn. App. 1988). Moreover, the standard Minnesota jury instruction on future bodily and mental harm states that a jury can compensate a victim for loss of enjoyment of life under the term "disability." 4 Minnesota Practice, Civ. JIG 158 (1986). There is no Minnesota authority for a specially worded instruction on loss of enjoyment of life and we decline to impose such a requirement here.


*Polyak also argues that the trial court abused its discretion in excluding the testimony of expert Stanley Smith. Generally, the exclusion of expert testimony lies within the sound discretion of the trial court and its ruling will not be reversed unless it is based on an erroneous view of the law or it constitutes an abuse of discretion. Reinhardt v. Colton, 337 N.W.2d 88, 93 (Minn. 1983). An expert's opinion must be based on facts sufficient to form an adequate foundation for the opinion and should not be speculation. See Hudson v. Snyder Body, Inc., 326 N.W.2d 149, 155 (Minn. 1982).


*Dr. Smith would have testified about how to calculate damages for loss of enjoyment of life. Because Polyak's evidence consisted of his emotional reaction to the shooting and not loss of enjoyment of life there was no foundation for Dr. Smith's testimony. Hudson, 328 N.W.2d at 155. Therefore, the trial court's exclusion of Smith's testimony was proper.

Missouri: Hedonic damages allowed as a part of general damages but the question of expert testimony is still undecided.

Schumann v. Missouri Highway and Transportation Commission 912 S.W.2d 548 (1995):

*
Facts: Schumann was driving his combine on a highway and pulled over to the defective
shoulder of the road which sunk and sent him crashing into a ravine injuring him.

*
The Commission does not contest the concept that lost enjoyment of life is a compensable element of general damages in a personal injury case. Rather, it contends the use of an expert witness to calculate these damages is improper.

*While, as indicated, we do not decide whether expert testimony on hedonic damages is admissible, we observe that most jurisdictions addressing the issue have rejected such testimony.

*there was ample evidence to support the verdict, without regard to Dr. Ward's testimony on hedonic damages. Thus, even if admission of Dr. Ward's testimony was error, it did not materially affect the merits of the action. Rule 84.13(b). Point denied.

Nebraska: Hedonic damages are not a category w/n themselves they fall w/n pain and suffering (i.e. no hedonic damages)

Anderson v. Nebraska Dept. of Social Services 253 Neb. 813 (1998):

*We wrote in Anderson/Couvillon I. that "while consideration of loss of the enjoyment of life may properly be considered as it relates to pain and suffering, and to disability, it is improper to treat it as a separate category of nonpecuniary damages." Id. at 664, 538 N.W.2d at 741. Thus, the district court's judgment in Anderson/Couvillon I. was reversed because it was predicated in part on the existence of hedonic damages.

South Dakota: It appears that South Dakota allows hedonic damages and allows them to stand alone (i.e not as a part of pain and suffering, etc.) However, hedonic damages not allowed in PEPL funds.

E.P. v. Riley 1999 SD 163:

*The PEPL fund provides "payment of valid tort claims against all member public entities of the state and their officers and employees for all liability they may incur based upon negligence in the operation of motor vehicles or negligence in performing other acts within an employee's scope of employment." SDCL 3-22-1. Under the current statutory scheme, unless a claim falls within PEPL fund coverage, the doctrine of sovereign immunity applies to abrogate that claim. Kyllo 535 N.W.2d at 900.

*However, the PEPL fund does not cover "non-economic damages, including, but not limited to, damages for pain, suffering, inconvenience, physical impairment, disfigurement, loss of society and companionship, and hedonic damages[.]" Id., quoting The Public Entity Pool for Liability, Memorandum of Liability Coverage to the Employees of the State of South Dakota, Apr. 4, 1990.


Jurgensen v. Smith, 2000 SD 73:

*This case was an appeal by the D for a reduction of the jury's damage award. The court affirmed the jury's decision. Mention of loss of enjoyment of life was made, without dispute, in the jury instruction which I include below.

*Instruction 34 (based upon South Dakota Pattern Jury Instruction Numbers 30-04 and 30-06) includes loss of enjoyment of life.

*Jury Instruction number thirteen provided: Your award of actual damages must be in an amount which will reasonably and fairly compensate Mike Jurgensen for all injuries or losses caused by Ms Smith, whether the loss or harm could have been anticipated or not, namely;
1) The nature, extent, and duration of Mike Jurgensen's injury.
2) The disfigurement and disability of Mike Jurgensen.
3) The pain and suffering mental anguish and loss of capacity of the enjoyment of life experienced in the past and reasonably certain to be experienced in the future as a result of the injury.
4) The reasonable expense of necessary medical care, treatment, and services received as a result of the January 23, 1996 accident;
5) The time Mike Jurgensen has lost for employment since the injury because he was unable to pursue his occupation or other income-producing activities. In determining this amount, you should consider evidence of Mike Jurgensen's earning capacity, past, earnings, and the manner in which he ordinarily occupied his time before the injury and find that Mike Jurgensen was reasonably certain to have earned in the time lost had he not been disabled.
6) The loss of future earning capacity of Mike Jurgensen because of his not being able to pursue his occupation or other income-producing activities. The factors to be considered in determining the measure of damages for loss of earning capacity included what Mike Jurgensen earned before the injury and what he is capable of earning after the injury, his prior ability and the extent to which his injuries affect his power to earn, his age, his life expectancy, his physical condition, his occupation, his skill and habits of industry.

Whether any of these elements of damages have been proved by the evidence is for you to determine. Your decision must be based on evidence and not upon speculation, guesswork, or conjecture.

BAKKER v. IRVINE, 519 N.W.2d 41 (1994):

*Here the jury tabulated the loss of enjoyment of life separately from other damages and the court upheld their award.

*Finally, of the non-economic damages, the value of which are necessarily subject to the subjective consensus of the jury, Ronald Bakker received $ 1,000.00 or one-tenth of what he claimed for his permanent disability and Marlys Bakker received $6,000.00 or one-fifth of what she claimed. As to past and future pain and suffering/loss of enjoyment of life, Ronald received $ 1,250.00 of the $ 28,500.00 claimed and Marlys received $ 6,500.00 of the $ 90,000.00 claimed. Ronald also made a total claim of $ 2,500.00 for past and future loss of spousal services and consortium for which the jury did not award him anything. In respect to the loss of spousal service, he complained that since the accident he had helped with certain household chores such as vacuuming. There was no evidence, however, as to what the cost of replacement would be. As to the loss of consortium, there was evidence that the parties were not as intimate as usual for the first three or four weeks following the accident. There was some disagreement between Mr. and Mrs. Bakker whether, as of time of trial, they were as intimate as they always had been.

*Of the total damages sought by Ronald Bakker of $ 57,667.34, some $ 41,000.00 constituted non-economic damages. Of the total sought by Marlys Bakker of $134,469.22, some $ 115,000.00 constituted non-economic damages.

*Accepting the fact that both Bakker's are permanently and partially disabled (Mrs. Bakker to a far greater extent that Mr. Bakker); and accepting the fact that both Bakkers will most likely experience physical pain as the result of their disabilities for the rest of their lives (again Mrs. Bakker to a far greater extent than Mr. Bakker); and having considered the nature, intensity, and extent of the Bakkers' physical pain and disabilities as shown by their evidence; and accepting the fact that the quality of their
lives is affected by the physical pain they suffer and by their disabilities; we are of the opinion that the non-economic damages as well as the other damages awarded by the jury are not facially or manifestly inadequate. While the jury's awards for these damages may have been affected somewhat by the Irvine's personal background evidence, there are no objective factors by which this supposition can be measured. Instead, the evidence supports the actions of the jury.
 

 

 
Ronald Bakker Jury Award Sought

 

 

 
Past Medical Expense
$ 1,233.00 1,233.00
Future Medical Expense
600.00 7,000.00
Permanent Impairment
1,000.00 10,000.00
Past Pain and Suffering
250.00 4,000.00
Future Pain and Suffering
1,000.00 17,500.00
Past Loss of Enjoyment of Life
0.00 2,000.00
 
Future Loss of Enjoyment of Life
0.00 5,000.00
Past Loss of Spousal Services
0.00 1,000.00
and Consortium

 

 
Future Loss of Spousal Services
0.00 1,500.00
and Consortium

 

 
Property Damage and Other Damage
8,434.34 8,434.34
Total n1
$ 12,517.34 57,667.34

 

 

 

 

 

 
Past Medical Expense
5,189.22 5,189.22
 
Future Medical Expense
6,000.00 13,600.00
Permanent Impairment
5,000.00 25,000.00
Past Pain and Suffering
1,250.00 10,000.00
Future Pain and Suffering
2,500.00 60,000.00
Loss of Earnings
710.36 710.36
Past Loss of Enjoyment of Life
1,250.00 5,000.00
Future Loss of Enjoyment of Life
2,500.00 15,000.00
Total n1
$ 24,399.58 134,469.22