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Starling v. Banner Health

United States District Court, D. Arizona

February 21, 2018

Mark Starling, M.D., Plaintiff,
Banner Health, an Arizona corporation; Marjorie Bessel, M.D.; Julie Nunley; Cindy Helmich; Lori Davis-Hill; and Joseph Chatham, M.D., Defendants.


          Neil V. Wake Senior United States District Judge

         Before the Court are Defendant's two motions challenging Plaintiff's expert witnesses, the Responses, and the Replies. First is Defendant's Motion to Exclude Testimony of Stan Smith (Doc. 216). Second is Defendant's Motion to Exclude Testimony of Chester Flaxmayer (Doc. 221). The first motion will be granted in part and denied in part. The second will be granted.


         Rule 702 of the Federal Rules of Evidence governs admission of opinion testimony from qualified experts. Testimony is admissible if (1) “the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue, ” (2) “the testimony is based on sufficient facts or data, ” (3) “the testimony is the product of reliable principles and methods, ” and (4) “the expert has reliably applied the principles and methods to the facts of the case.” Fed.R.Evid. 702.

         Where the basis for an expert's testimony has been “sufficiently called into question. . . the trial judge must determine whether the testimony has a ‘reliable basis in the knowledge and experience of [the relevant] discipline.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 149 (1999) (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592 (1993)) (citation omitted). The Court must “decide whether this particular expert [has] sufficient specialized knowledge to assist the jurors in deciding the particular issues in the case.” Id. at 156 (internal quotation marks omitted).

         II. STAN SMITH

         Dr. Stan Smith (“Smith”) is an economist with impressive credentials, including a Ph.D. in Economics from the University of Chicago, where his doctoral advisor was Nobel Prize winner Gary Becker. (Doc. 230-1, Ex. 1 at Ex. C at 51 of 85.) Starling wishes to present Smith's opinion on Starling's (1) hedonic damages and (2) lost wages and benefits.

         A. Hedonic Damages

         Smith believes that the value of a statistical human life is $4.6 million. He arrived at this figure through a “willingness-to-pay” model. (See Doc. 216-1, Ex. B at 29-30 of 50. (“My estimate of the value of life is based on many economic studies on what we, as a contemporary society, actually pay to preserve the ability to lead a normal life.”).) The basic idea is to “measure[ ] the monetary worth of life by calculating the amounts that individuals, government agencies, and businesses are willing to pay for reductions in health and safety risks.” Smith v. Jenkins, 732 F.3d 51, 65 (1st Cir. 2013). Here, Smith examined five economic meta-analyses “and the values of a statistical life that they recommend.” (Doc. 216-1, Ex. B at 37 of 50.) He found “a credible net value of life based on all these literature reviews to be . . . $5.4 million in 2008 dollars.” (Id.) He then calculated the actual value of a statistical life to be “$4.1 million in year 2008 dollars ($4.6 million in year 2016 dollars)[, which] is approximately 24 percent lower than a conservative average estimate based on the [ ] meta-analyses.” (Id.) When asked why he lowered the amount by roughly 25 percent, as opposed to 20 percent or 15, he explained that the number was essentially arbitrary. (See Doc. 216-1, Ex. A at 151:20-152:19.) Smith noted that it is his standard practice “to make conservative judgments when approaching [ ] matters that don't have a high degree of specificity. So if someone wants to see these studies and say let's take a conservative view of their results, by taking off 25 percent, that's a conservative view.” (Id. at 153:2-7.) Finally, applying Starling's self-assessment that he had experienced a one-half reduction in enjoyment of life, Smith calculated the present value of each year of lost reputation until age 84. (Id. at 163:18-164:13; Doc. 216-1, Ex. B at 29, 50 of 50.) Age 84 is, according to Smith, a statistical figure provided by the Centers for Disease Control-“the age to which [Starling] has a 50/50 chance of living past” or 50/50 chance of not. (Doc. 216-1, Ex. A at 244:22-245:4.)

         1. Smith's analysis would not help the jury.

         According to the First Circuit, “The overwhelming majority of courts have concluded that [Smith's] ‘willingness-to-pay' methodology is either unreliable or not likely to assist the jury in valuing hedonic damages, or both.” Smith, 732 F.3d at 66 (collecting cases).

         The fundamental problem with Smith's testimony is that it is unlikely to help the jury. Smith “equate[s] the value of life with the value of enjoyment of life, though it is readily apparent that the two are not the same. A plaintiff who loses enjoyment of life but is alive is not in the same shoes as a plaintiff who lost his life.” Id. at 66 (emphasis added). Consider a real case, in which a wife died and a husband lived on without her companionship. Under Smith's “analysis their damages [were] identical, save only an adjustment for differing the expectancy.” Sullivan v. U.S. Gypsum Co., 862 F.Supp. 317, 321 (D. Kan. 1994). Smith's proffered testimony “simply fail[ed] in any real terms to provide a measure of the loss and affection” the husband experienced. Id. In starker terms, it was implausible that “the distinct and personal relationship that [the husband] enjoyed with his wife ha[d] commercial value [that could] be determined by a comparison to the alleged value that society places on the contributions of a statistically average person.” Id. See also Castrillon v. St. Vincent Hosp. & Health Care Center, Inc., No. 1:11-cv-430-WTL-DML, 2015 WL 3448947, at *2 (S.D. Ind. May 29, 2015) (“In order to be useful to the jury, Dr. Smith would have had to start with the value of the enjoyment of the Plaintiff's life but-for the events at issue in this case and then reduce that figure by the percentage of enjoyment she has lost.”).

         Smith's base figure of $4.6 million is supposed to apply to any given human being. The figure, by its very nature, is unmoored from anything individualized to Starling. Observe its failure, in the loss-of-enjoyment context, to meaningfully compare “(1) a person who is sick with one who is healthy or (2) someone very old with someone very young. Or [ ] (3) a person with a loving family with one who has none, or (4) someone with many friends versus someone who has none.” Ayers v. Robinson, 887 F.Supp. 1049, 1061 (N.D. Ill. 1995). “Try it with an arguably tougher class of criteria- say (5) wealth, (6) race, (7) intelligence, (8) education, (9) sex, (10) character, (11) reputation-and the complexities become plain.” Id. at 1061-62. The jury is to determine Starling's loss-of-enjoyment damages, which Smith's figure does not help it to do.

         Members of the jury are perfectly capable of drawing on their experiences and knowledge and on Starling's testimony to determine any loss of enjoyment of life that he suffered as a result of his termination.[1] Starling's self-assessed one-half diminution in quality of life is something he can attempt to convince the jury of. What matters is how much Starling enjoyed his life prior to this incident and what that translates into in monetary terms. Smith's analysis does not provide that information, and the jury is capable of discerning it without Smith's help. See Saia v. Sears Roebuck & Co., Inc., 47 F.Supp.2d 141, 150 (D. Mass. 1999) (“At bottom, the court believes that the qualitative and quantitative value of the loss of [plaintiff's] enjoyment of life, as it might be included in the pain and suffering he may have endured, can be calculated independently by the jury without the assistance, if not the confusion, of Dr. Smith's proffered testimony.”).

         2. Smith's methodology is flawed as applied to hedonic damages.

         Various courts, including the Ninth Circuit, have also expressed skepticism toward Smith's methodology itself. See Dorn v. Burlington N. Santa Fe R.R. Co., 397 F.3d 1183, 1195 (9th Cir. 2005) (dictum). Although Smith's bottom-line dollar figure “gives some finitude to a question that can sound like a probe into the infinite, ” its usefulness is questionable “because he averaged this figure with other estimates, likely to be much higher, and not at all informative about how much people value their own enjoyment of life.” Id. “That a government safety program costs a certain amount per life saved, or that the government requires purchase of a certain kind of safety equipment, may suggest a collective policy judgment the government has made, or may represent a policy selected for reasons other than the cost-benefit analysis ‘hedonic analysis' implies, or even a mistaken policy.” Id. Similarly, the Seventh Circuit has expressed “serious doubts about [Smith's] assertion that the studies he relies upon actually measure how much Americans value life.” Mercado v. Ahmed, 974 F.2d 863, 871 (7th Cir. 1992). “[H]umans are moved by more than monetary incentives.” Id. To consider how many variables are potentially unexplored, consider that

government calculations about how much to spend (or force others to spend) on health and safety regulations are motivated by a host of considerations other than the value of life: [I]s it an election year? [H]ow large is the budget deficit? [O]n which constituents will the burden of the regulations fall? [W]hat influence and pressure have ...

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