The opinion of the court was delivered by: MILTON I. SHADUR
At about 9 p.m. September 14, 1992 City of Chicago ("City") Police Officer Hugh Robinson ("Robinson") shot and killed Lenardo Ayers ("Lenardo") in the vicinity of 68th and Loomis Streets in Chicago. Lenardo's mother Lillian Ayers ("Lillian"), both individually and as special administrator of his estate, brings this action against Robinson, Chicago Police Chief Matt Rodriguez and City itself to recover money damages under 42 U.S.C. § 1983 and various Illinois state laws.
Defendants have moved to exclude that testimony under the principles set out in Daubert v. Merrell Dow Pharmaceuticals, Inc., 125 L. Ed. 2d 469, 113 S. Ct. 2786 (193), and their motion is now fully briefed and ready for decision. For the reasons stated in this memorandum opinion and order, defendants' motion is granted.
Lillian has not tendered any specific proffer as to the nature of Smith's anticipated testimony. But the principles and methodology upon which Smith relies--the so called "willingness-to-pay" approach to valuing human life (P. Mem. 7-15)--are reported in a number of articles in addition to Hedonic Damages 161-75: see, e.g., Lauraine Chestnut & Daniel Violette, The Relevance of Willingness-To-Pay Estimates of the Value of a Statistical Life in Determining Wrongful Death Awards, J. Forensic Econ. 3(3) 75 (1990); Andrew McClurg, It's a Wonderful Life: The Case for Hedonic Damages in Wrongful Death Cases, 66 Notre Dame L. Rev. 57 (1990); Ted Miller, Willingness to Pay Comes of Age: Will the System Survive?, 83 Nw. U. L. Rev. 876 (1989)), and a number of articles authored or co-authored by Smith (Smith, Should Judges Allow Testimony About Hedonic Damages?, Chi. Daily L. Bull., July 15, 1991, at 2; Gary Magnarini & Smith, Hedonic Damages, Wis. Law., Feb. 1991, at 17-19 and 56-58; and Smith, Hedonic Damages in Wrongful Death Cases, A.B.A. J., Sept. 1, 1988, at 70-73). See also the reported cases in which Smith has previously sought to testify (e.g., Mercado v. Ahmed, 974 F.2d 863, 868-71 (7th Cir. 1992) and Estate of Sinthasomphone v. City of Milwaukee, No. 91 C 1121, 878 F. Supp. 147, 1995 U.S. Dist. LEXIS 2652 (E.D. Wis. Mar. 2)). All of those materials supply ample basis for evaluation, for Daubert, 113 S. Ct. at 2797 has instructed:
The focus [of the admissibility determination], of course, must be solely on principles and methodology, not on the conclusions that they generate.
For current purposes the most useful explication of willingness-to-pay methodology is set forth in the sample testimony in Chapter 11 (pages 225-29) of Hedonic Damages and in the related section at pages 81-85 of its 1992/93 supplement. Those samples provide both a concise summary of the conceptual underpinnings of the economic model and an overview of the most recent empirical data. Hence that testimony will be used as a starting point, drawing upon the larger body of literature and Smith's own scholarship when necessary. Although Smith's coauthorship of Hedonic Damages leads this opinion to refer to that title throughout (rather than speaking of Smith alone), it is reasonable to treat the book's sample testimony as reflective of what Smith would offer if he were allowed to take the stand.
In the book's initial text the sample testimony deals with the damages to be awarded a 35-year-old white male named Jack Doe in a wrongful death action. Here is the testimony on hedonic damages, which follows testimony as to the economist's credentials and a calculation of economic loss ($ 605,795):
Q: [Plaintiff's attorney] Do the losses that you have estimated thus far, wages, fringe benefits, and household services, all net of personal consumption, account for all the losses sustained by the decedent?
Q: What additional losses are there?
A: Mr. Doe also suffered the loss of the pleasure of life, itself: the value that he would have expected to obtain from living beyond the value he may have attached to his net financial loss. This is a value which is recoverable in this jurisdiction according to my understanding.
Q: Is there a name that economists sometimes use to refer to this value?
A: Sometimes this loss is referred to as a loss of hedonic value.
Q: What does the word hedonic mean?
A: It comes from a Greek root word meaning value or satisfaction or pleasure. Economists use the word to refer to the non-earnings-based value of life, the value we get from living as opposed to working. People get value or satisfaction or pleasure from living, even though not all moments are pleasurable. But by and large, unless we are suicidal, we regard life as satisfying.
Q: Is this non-earnings-based value, or hedonic value, a significant figure?
A: Yes it is. In this instance it is $ 1,709,842 when applied to Mr. Doe. Studies have shown that where estimates of lost earnings are available as well as estimates for the non-earnings value of life, the hedonic value ranges up to several times earnings.
Q: Are you saying that economists have made measurements of the value of life beyond lost earning capacity?
A: Yes they have. There is an extensive body of literature published in scholarly journals estimating this value in several different ways.
A: First, economists have examined the value of life expressed by consumers in their expenditures on safety. If you buy an air bag for your car, you are spending money to reduce the probability of injury and death. You are placing an implicit value on your life in so doing. Secondly, economists have studied what certain risky occupations receive as extra compensation for the risk they present. When someone receives an extra $ 1.00 an hour as a security guard in a high-risk neighborhood, this represents a premium for the extra hazard to life. Finally, government agencies analyze the impact of lifesaving regulations and the costs associated with such regulations. All in all, there are dozens of estimates in the literature regarding the value of life published over the last several decades.
Q: What do those estimates show?
A: The estimates show, typically, that we value life in the several million dollar range.
Q: Can you describe to us an example of how these studies are conducted?
A: Yes. Assume that a person purchases a safety device for $ 700 and that device reduces the probability of his death from 7 in 10,000 to 5 in 10,000. By reducing his chance of dying by 2/10,000ths, or one chance in 5,000 at a cost of $ 700, economists would say that he valued his life at $ 3,500,000. In effect, if 5,000 people spent $ 700 each on air bags, one life would be saved at a total cost of $ 3,500,000. These figures are not the actual figures from air bag studies, but just sample figures to show how the analysis is done, in simple terms.
Q: Is this estimate for the total value of life?
A: Yes, these estimates include several components of value that must be subtracted out in order to arrive at the net satisfaction value. Specifically, we must subtract the net lost earnings value, the loss of household services, and the value of financial security for the statistically unknown, or anonymous, person being considered in these economic studies of the overall value of a human life.
Q: Could you explain this in more detail?
A: Yes. The value of life estimates are, in many instances, for the lives of anonymous persons. From that total value, we must account for what the unknown, statistically average person earns, contributes in household services, and attributes as a value of financial security. These figures add up to an estimated $ 800,000. Netting this amount from a reasonably conservative estimate of the value of life leaves approximately $ 2,700,000 which I treat as an undiscounted value for the anonymous, statistically average person.
Q: What adjustments do you then make to the undiscounted $ 2,700,000 figure?
A: I estimate the value of life per year of life expectancy by dividing by the remaining life expectancy of an average person, which is approximately 45 years according to the life tables. This leaves a $ 60,000 per-year value in 1989 dollars. Although most economists estimate that the remaining life expectancy of the lives of the people covered in the studies ranges from about 35 to 40 years, I used a more conservative figure of 45 years, which lowers the per-year estimate, because it is the value for an average person in the U.S. census.
Q: What other adjustments do you make?
A: I then take into account the age, race, and sex of the decedent by calculating the losses through the life expectancy of Mr. Doe, using the same growth and discount factors we discussed earlier.
Q: So you figured out the hedonic value of life based on the value that is attributed to statistically average people and then adjusted it to the specific characteristics of the decedent, namely, age, race and sex?
Q: What further adjustments did you make?
A: Economists do not know as yet how to adjust further, to take into account that the decedent was married, for example, or that he had two children. These factors and all the other factors regarding the quality of life of the decedent can only be taken into account by the jury, in my opinion.
Q: So your figures can be adjusted upward or downward depending on other factors that a trier of fact may wish to take into account?
Q: No further questions, your honor.
Q: [Defense attorney] Turning now to the intangible losses that you tried to estimate, what is the word you used for them?
A: [Economist] I called it a hedonic loss, the loss of the satisfaction of living.
Q: Are you saying that because Jack Doe lost out on the hedonistic opportunities he had, he should also be compensated, without taking into account any of the misfortunes he might have sustained in his life such as sickness of a loved one?
A: The term is hedonic, not hedonistic. The two are different. I have estimated the value that he placed on the satisfaction of living, which includes ...