At least since Dr. Faust, and perhaps since the Garden of Eden, people have wondered how much it was worth to be able to enjoy the pleasures of life. While Faust and Adam and Eve all weighed their options abstractly, however, juries in personal injury cases have often been asked to assign a specific dollar amount to "loss of enjoyment of life" as a component of general damages for pain and suffering.

While specific, the amount the juries pick used to be based on subjective considerations. But then, about a decade ago, a forensic economist named Stanley Smith announced the absolute value of the bundle of things that make life enjoyable, including participating in hobbies or sports, sensory experiences and unencumbered movement. Calling the loss of these things "hedonic damages," Smith said they were worth $2.3 million.

The use of expert witnesses like Smith to testify to the dollar value of the loss of enjoyment of life suffered by personal injury plaintiffs has become quite fashionable over the past decade. Now, however, a California Court of Appeal may have put an end to the practice by ruling that hedonic damages are not different from pain and suffering damages and ought to be based on the jurors' experiences, not on expert testimony. Loth v. Truck-A-Way Corp., 98 Daily Journal D.A.R. 215 (Jan. 7, 1998).

Although most states permit damages to be awarded for loss of enjoyment of life, some jurisdictions, including California, say those damages are included in any award for pain and suffering and are not a distinct form of damages. California thus barred separate jury instructions on loss of enjoyment of life for fear that separate instructions would permit plaintiffs to recover twice for the same harm. Huff v. Tracy, 57 Cal. App. 3d 939 (1976). The distinction made little difference, however, as long as jurors were using their own judgment to set the damage award.

But then an Illinois federal court allowed Stanley Smith to offer his magic number of $2.3 million. Sherrod v. Berry, 629 F. Supp. 159 (N.D. Ill. 1985); see also Mercado v. Ahmed, 974 F.2d 863 (7th Cir. 1992). Suddenly, the stakes escalated, and the specter of similar expert testimony added significantly to the settlement value of a tort action.

Many reported decisions since those early days have rejected expert testimony on hedonic damages, both because they found it unreliable and unscientific and because the value of enjoyment of life -- to the extent it is quantifiable at all -- is well within the knowledge and experience of a jury. See, e.g., Mercado; McGuire v. City of Santa Fe, 954 F. Supp. 230 (D.N.M. 1996); Montalvo v. Lopez, 884 P.2d 345 (Hawaii 1994).

Nevertheless, until last month, expert testimony on hedonic damages apparently was admitted with some regularity in California. In the same article in which he conceded that "there is no well-established methodology for calculating hedonic damages," one forensic economist reported that about half the judges in Los Angeles, Orange and San Diego counties were allowing such expert testimony. Stephen T. Riley, "Loss of Enjoyment of Life: Admissibility of Hedonic Damage Varies in Courtrooms," Lawyers World 22 (Sept.-Oct. 1996).

Loth may finally put the debate over the admissibility of hedonic damages experts to rest. In Loth, the plaintiff called none other than Stanley Smith himself to testify to the dollar value of the loss of enjoyment of life that resulted from headaches, neck pain, back pain and leg pain after a vehicle collision.

Smith's calculus began with studies regarding how much people pay for safety equipment, such as smoke detectors or seat belts, the risk premiums employees earn in dangerous jobs and the cost-benefit analyses of government safety programs. From such studies, Smith derived the total dollar value of an "average human life."

Though Smith's methodology in Loth is not documented in detail, his usual next step is to deduct the "economic value" of an average life from the total, with the remainder representing the value of the average person's enjoyment of life. In the Loth case, Smith then adjusted this baseline figure to account for the plaintiff's longer-than-average expected life span, for a total of more than $5 million.

The jury was to then determine the percentage of enjoyment of life that the plaintiff had lost in her accident, and Smith provided the jury with a table to assist them in calculating the plaintiff's "hedonic damages." Using this table, if the jury concluded that the plaintiff had a 33 percent loss of enjoyment of life (and accepted Smith's adjusted baseline amount), they were to award exactly $1.684 million; if they concluded the plaintiff had a 5 percent loss of enjoyment, they were to award $255,000.

Like many defendants in this position, Truck-A-Way offered no rebuttal expert after its objections to Smith's hedonic damages testimony were overruled. Though a defense expert in forensic economics could have been called to attack Smith's methodology and assumptions, defendants generally consider this approach risky, since it may appear to the jury that the defendants are haggling over the value of the plaintiff's enjoyment of life. Defense counsel for Truck-A-Way instead simply argued to the jurors in closing that they did not need expert testimony to calculate an award, that Smith's baseline figure was not relevant to the plaintiff and that Smith's figures were too speculative.

On appeal, the Loth court concluded as a matter of law that Smith's expert testimony on hedonic damages was inadmissible based on the following:

• Only the particular plaintiff's pain and suffering is relevant in the calculation of damages, and Smith's figures concerned a mythical "average" life and relied upon arbitrary studies with "no meaning relationship" to the plaintiff's life.

• The use of mathematical formulas in calculating pain and suffering damages was rejected by California's Supreme Court more than 30 years ago in Beagle v. Vasold, 65 Cal. 2d 166 (1966).

• Smith's testimony likely misled the jury into awarding double damages for both loss of enjoyment of life and pain and suffering and violated the prohibition against separate instructions on both loss of enjoyment and pain and suffering.

• The value of the loss of a plaintiff's enjoyment of life is not suited to expert testimony as it would not assist the trier of fact as required by California Evidence Code Section 801.

Expert testimony like Smith's on hedonic damages should also be subject to exclusion under People v. Kelly, 17 Cal.3d 24 (1976), and People v. Leahy, 8 Cal. 4th 587 (1994). First, as the Mercado court noted, there are no techniques "generally accepted" by forensic economists to calculate hedonic damages.

Second, even internally, Smith's methodology is scientifically suspect and unreliable. Smith assumes that the studies he uses are accurately capturing the dollar values people place on their lives. Courts, including the Mercadou court, have criticized such studies, however, for inappropriately assuming that people are unwilling to pay for safety devices when they may merely be unable to afford them, or for assuming that a worker recognizes the relative dangers involved in different jobs and has free choice in selecting a risk premium over a lower-paying, safer position.

Further, as noted in Montalvo, not only is the relationship between surveys of safety costs and the "value of life" speculative, but their relationship to the value of enjoyment of life is even more so.

Although plaintiffs can still introduce testimony abut impairment of their participation in various enjoyable activities and pastimes, the Loth decision is undoubtedly a victory for defendants. The ruling eliminates the uncomfortable choice faced by the Truck-A-Way Corp. -- to call its own hedonics damages expert to assign discount prices to the value of enjoyment of life, or to forgo calling an expert and argue that the jury should disregard the plaintiff's expert's handy table and easy figures. Instead, this inherently subjective determination must be left to the restraint and common sense of jurors.