Portal de Periódicos da CAPES

Loss of Enjoyment of Life Damages in New Mexico

2008; Volume: 20; Issue: 2 Linguagem: Inglês

10.5085/0898-5510-20.2.171

2374-8753

M. Brian McDonald,

Property Rights and Legal Doctrine

Since 1994 New Mexico state courts have allowed monetary compensation for the non-pecuniary value of life itself in both personal injury and wrongful death cases. In Romero v. Byers 1994 the New Mexico Supreme Court held that the value of life itself is compensable under the New Mexico Wrongful Death Act (1989) as fair and just compensation. In Sena v. New Mexico State Police 1995 the New Mexico Court of Appeals extended this precedent to personal injury cases: "Consistent with the rule in Romero, we think it is clear that New Mexico permits proof of non- pecuniary damages resulting from the loss of enjoyment of life in tort actions involving permanent injuries." (471 at 478; 604 at 611)This paper discusses the issue of loss of enjoyment of life damages1 in New Mexico from the perspective of a forensic economist who has been practicing in New Mexico for over 28 years. The concept and purposes of economic damages in New Mexico are first outlined through the relevant case law, providing the context for the award of loss of enjoyment of life damages. The allowable scope of expert economic testimony on loss of enjoyment of life damages is then discussed for both state district court and the federal court in New Mexico. Finally, typical arguments raised in a motion in limine to exclude expert economic testimony on loss of enjoyment of life damages are outlined along with a response.An award for loss of enjoyment of life damages is premised on the assumption that the value of an individual's life exceeds the sum of that person's economic productivity such as his or her earning capacity and the value of household services. Loss of enjoyment of life damages consider the effect of the injury on the plaintiff's non-work activities such as leisure, hobbies, recreational activities, the ability to pursue a chosen occupation, and internal well-being. Nobel laureate economist, Gary S. Becker (1965) developed a theory of the allocation of time where foregone earnings, measured as the economic value of non-work time, are quantitatively important. A person's "full income" according to Becker includes foregone earnings as well as money income. More recently, Posner and Sunstein (2005) argue that an award for hedonic damages in a wrongful death case provides compensation for the welfare loss of the decedent.Under both the New Mexico Wrongful Death Act and New Mexico case law New Mexico is not a survival statute state, and has not been since 1961. The seminal case was Stang v. Hertz 1970, a decision of the New Mexico Supreme Court. This case involved the wrongful death of a nun, who had no surviving beneficiary. The court noted that "…wrongful death action does not fail merely because there is absent pecuniary injury to a statutory beneficiary." (348 at 349; 14 at 15) The court opinion further specified that "damages are recoverable by proof of the worth of the life of the decedent, even though there is no kin to receive the award." (at 350 and at 16) The Stang v. Hertz court concluded that the measure of damages is the worth of the life of the decedent to the estate.The New Mexico Uniform Jury Instructions do not restrict the award of damages solely to the measurable monetary loss of beneficiaries. "While the presence or absence of a measurable monetary loss to beneficiaries is a factor for consideration, damages may be awarded even where monetary loss to the surviving beneficiaries cannot be shown." (paragraph 8) Furthermore, the New Mexico Uniform Jury Instructions allow a monetary award based on "the value of the deceased's life apart from his/her earning capacity." (paragraph 4)In Stang v. Hertz the New Mexico Supreme Court also outlined the purposes of economic damages in New Mexico to include both compensation to surviving beneficiaries and an element of deterrence. "The statute (Wrongful Death Act) allowing damages for wrongful act or neglect causing death have for their purpose more than compensation. It is intended by them, also, to promote safety of life and limb by making negligence that causes death costly to the wrongdoer."2Loss of enjoyment of life damages fit squarely within the concept and purposes of economic damages in New Mexico. Loss of enjoyment of life damages are recoverable by proof of the worth of the plaintiff's life where the worth of life goes beyond the individual's earning capacity. Economic damages in New Mexico do not just provide compensation for direct monetary losses to a survivor, but are intended to deter negligence that causes death or significant injury. A monetary award for the non-pecuniary value of life provides an economic deterrence to the wrongdoer.3In Romero v. Byers 1994 the court addressed the issue of whether the New Mexico Wrongful Death Act permitted expert testimony by an economist for establishing a non-pecuniary value of life itself for the decedent. The Romero court ruled that "…admissibility of evidence directed at establishing this value is governed by the rules of evidence of the applicable trial court." (422 at 424; 840 at 842) In Sena v. New Mexico State Police 1995 the court concluded that..."where an expert witness has been properly qualified, it is not improper for the trial court to permit an economist to testify regarding his or her opinion concerning the economic value of a plaintiff's loss of enjoyment of life." (at 611)After Romero and Sena and until 2002, whether or not an economist could testify in state district court concerning loss of enjoyment of life damages was at the discretion of the trial judge. New Mexico's standard for admissibility of expert testimony is set forth in Rule 11-702 NMRA 2007 and State v. Alberico 1993 and is similar, but not identical to the federal Daubert standard.4 Rule 11-702 NMRA 2007 provides:Alberico further clarifies that for expert testimony to be admitted: (1) the expert must be qualified, (2) the scientific evidence must assist the trier of fact, and (3) the expert may only testify as to scientific, technical or other specialized knowledge. (116 N.M. at 166) Regarding what constitutes scientific, technical or other specialized knowledge, the Alberico court discussed two evidentiary issues: validity and reliability:My experience as a testifying economist in New Mexico during this time period was that about half of the state district judges would allow economic testimony, while the other half would exclude it. Motions in limine were usually filed to exclude such testimony, and occasionally a Daubert/Alberico hearing would be held outside the presence of the jury.In Couch v. Astec Industries 2002 the New Mexico Court of Appeals further defined the allowable scope of expert testimony on loss of enjoyment of life damages to include, but not be limited to, testimony on the economic research on the value of a statistical life, including testimony on a range of the dollar value of a statistical life based upon published research. Other proper areas for an expert economist's testimony include an interpretation of the meaning of hedonic damages and the broad areas of the human experience to be considered by the trier of fact in determining such damages.5The specific nature of the expert economist's testimony in the Couch case played a significant role in the court's decision. The expert described for the trier of fact how economists go about placing a value on an intangible: life; not the life of any specific person, but a statistical life, as evidence of how we as a society value life. The expert discussed in lay terms how the peer-reviewed economic research on the value of a statistical life analyzes economic information present in actual market transactions (labor markets and consumer markets) concerning a tradeoff between money and life, and infers from this research the value of a statistical life. The expert then testified to a reasonable range for the value of a statistical life, based upon the published research, as a benchmark or guideline to the trier of fact. Most importantly, the expert did not quantify loss of enjoyment of life damages for the specific plaintiff, making it clear that this decision was ultimately up to the trier of fact.Couch was a personal injury product-liability case. The expert economist also provided testimony on the broad areas of the human experience which the trier of fact might consider in quantifying loss of enjoyment of life damages for the plaintiff such as the impact of the injury on the plaintiff's enjoyment of his work above and beyond the amount of his wages, on his recreational activities, on his ability to pursue his leisure, and on his hobbies. However, the expert did not tell the trier of fact how to evaluate these specifics. The trier of fact would have to rely on other evidence presented at trial to determine how this plaintiff derived enjoyment from his life and how his injuries affected that enjoyment.The defendant in Couch argued that the expert economist's refusal to quantify the plaintiff's loss of enjoyment of life rendered his testimony unhelpful to the trier of fact, resulting in improper juror speculation. The Couch court disagreed arguing thatThus, expert testimony in New Mexico state court on loss of enjoyment of life damages is limited to providing guidance to the trier of fact concerning a range of economic values for a statistical life based upon published research as well as testimony on the broad areas of the human experience which the trier of fact might consider in quantifying loss of enjoyment of life damages for the plaintiff. In New Mexico the expert economist does not quantify loss of enjoyment of life damages for a specific person. Rather this specific quantification is left to the province of the trier of fact.6 The distinctive character of the expert economist's testimony on loss of enjoyment of life damages in New Mexico, as discussed above, contrasts sharply with the nature of expert economic testimony in other jurisdictions where economists in the past have attempted to provide an opinion of a specific dollar value for loss of enjoyment of life damages for a specific person.7After the Couch decision in June 2002 and until the end of 2005 it was my experience that every state district court judge in New Mexico allowed expert testimony on loss of enjoyment of life damages within the confines of the Couch decision. Even judges, who earlier had excluded such expert testimony, now allowed the expert to testify concerning loss of enjoyment of life damages.At the end of 2005 Judge James Hall of the First Judicial District in Santa Fe granted a motion in limine by the defendants to exclude expert economic testimony on loss of enjoyment of life damages in the Jaramillo v. Gardiner case (2003). The proposed expert testimony in Jaramillo was the same as had been proffered in the Couch case. The defendants' argument was that the Couch case had not included a Daubert/Alberico/Rule 702 type challenge. Relying primarily on the rationale expressed by Federal District8 Court Judges John Conway and Bruce Black,9 State District Court Judge James Hall ruled that there does not exist a significant scientific basis for the expert's testimony related to hedonic damages and that such testimony is not helpful to the jury in arriving at a damage calculation.Judge Hall's reliance on Judge John Conway's decision in the Reynaga v. County of Bernalillo case is not relevant to the proposed expert testimony in Jaramillo. The expert economist in Reynaga did not rely upon the peer-reviewed economic research on the value of a statistical life. Rather, the economist quantified a specific dollar value range for the plaintiff's loss of enjoyment of life damages based upon the annual dollar cost of keeping a prisoner locked away from society in a penitentiary and the annual dollar cost of medical life support, calculated over the plaintiff's life expectancy in present value.10 This latter methodology by an economist to quantify loss of enjoyment of life damages has never been peer-reviewed, and in the end the economist provided a specific quantification of loss of enjoyment of life damages for a specific plaintiff.Judge Hall's reliance on Judge Bruce Black's decision in the McGuire v. City of Santa Fe 1996 case is also not relevant to the proposed expert testimony in Jaramillo. McGuire was a wrongful termination/employment discrimination case. Judge Black ultimately concluded that loss of enjoyment of life damages are not a proper element of damages in an employment discrimination case. In McGuire the expert economist had teamed up with a psychologist to assign a dollar value to the particular individual's lost pleasure of life. The expert economist had developed an average value of a whole life, based upon the published economic research on the value of a statistical life, but adjusted the latter subjectively to the plaintiff's individual circumstances of age and attitudes toward risk. The psychologist provided an opinion of the plaintiff's percentage lost pleasure of life. The expert economist applied this percentage to the adjusted average value of a whole life in order to quantify loss of enjoyment of life damages for the plaintiff. In the end, the expert economist provided an opinion of a specific quantification of loss of enjoyment of life damages for the plaintiff, something which the Couch court said would have been inappropriate.Since the Jaramillo case, Judge Hall has made similar rulings in other cases before him. Another state district court judge11 has recently followed Judge Hall's lead and ruled that expert testimony on hedonic damages does not meet the scientifically reliable standard under Alberico. I am aware of two cases12 where Judge Hall's ruling was used unsuccessfully to persuade another state district court judge to exclude expert economic testimony on loss of enjoyment of life damages.Judge Hall's decision to exclude expert testimony on loss of enjoyment of life damages represents a rejection of the Couch court's conclusion that the economic research on the value of a statistical life provides a range of values that likely proved helpful in evaluating the plaintiff's claim, i.e., would be of assistance to the trier of fact. It seems doubtful that the New Mexico Court of Appeals in Couch would have ruled that the proffered expert testimony would have been "of assistance to the jury" (a Rule 702 and Alberico evidentiary standard) unless the court also believed that the proffered expert testimony on the value of statistical life studies was grounded in or was a function of established scientific methods or principles (an Alberico evidentiary standard). It also places Judge Hall at odds with a reported New Mexico appellate decision and creates a situation where expert testimony on loss of enjoyment of life damages is accepted in one state court and not another. This result undermines the legal principle of stare decisis.13Expert economic testimony regarding loss of enjoyment of life damages in federal court in New Mexico is generally governed by Smith v. Ingersoll-Rand Co. 2000 where the Tenth Circuit Court of Appeals held that it was proper under New Mexico law for the expert economist to explain his or her interpretation of the meaning of loss of enjoyment of life damages and to describe broad areas of human experience to be considered in determining such damages by the trier of fact. However, the trial judge, Martha Vazquez, did not allow the expert economist to quantify the plaintiff's loss of enjoyment of life damages. And the Tenth Circuit Court agreed.However, based upon my own experience in testifying in federal court in New Mexico, rulings on the admissibility of expert economic testimony on loss of enjoyment of life damages have been inconsistent. In McGuire v. City of Santa Fe 1996, Judge Bruce Black, and in Wade Myers v. Williams Manufacturing 2002,14 Judge William Johnson both ruled that an economist could not testify at all. In Michael Cheromiah, et. al., v. United States of America15 Judge Martha Vazquez did allow the economist to testify in this wrongful death bench trial to a hypothetical dollar value per year in loss of enjoyment of life (as a guideline or benchmark) over the life expectancy of the deceased. In another bench trial (Freeland v. United States of America)16 in 2001 Judge Vazquez allowed expert economic testimony on loss of enjoyment of life damages similar to the Couch case, including testimony on the economic research on the value of a statistical life and a range of values based upon this research. In 2006 Judge Judith Herrera allowed the expert economist to testify before a jury regarding value of statistical life studies including a range of values in the Estate of Kevin Boyer v. City of Albuquerque 2003.17 These latter two decisions by Judge Vasquez and Judge Herrera went beyond the precedent set in the federal Tenth Circuit's Smith v. Ingersoll-Rand Co. decision by allowing the expert economist to testify to a range of the dollar value of a statistical life based upon the peer-reviewed economic research. Finally, in Moreland v. Ford Motor Company 200518 Federal Magistrate Judge Daniel Schneider upheld a motion to exclude entirely proposed expert testimony on loss of enjoyment of life damages citing Smith v. Ingersoll Rand in his Order.Challenges to expert economic testimony regarding loss of enjoyment of life damages in New Mexico are frequent, particularly since Judge Hall's ruling in the Jaramillo case, discussed above. In a typical motion in limine three separate and distinct topics are usually addressed: (1) the scientific validity and reliability of the economic research on the value of statistical life; (2) the usefulness of value of statistical life studies as assistance to the trier of fact in the determination of loss of enjoyment of life damages; and (3) the appropriateness of awarding loss of enjoyment of life damages in wrongful death and personal injury cases.Most challenges in state court rely heavily upon the existing federal case law in which expert economic testimony has been excluded either in New Mexico or in other jurisdictions. Reference is generally made to articles published in the Journal of Forensic Economics or law reviews, which are used to demonstrate controversy within the economics and legal academic community regarding testimony on loss of enjoyment of life damages. All of this is an attempt to demonstrate that there is a general lack of acceptance of expert economic testimony regarding loss of enjoyment of life damages.As discussed above, the nature of allowable expert economic testimony in New Mexico differs significantly from proffered, excluded testimony in other jurisdictions. Economic testimony concerning loss of enjoyment of life damages in New Mexico is provided as a guideline to the trier of fact. The economist in New Mexico does not offer an opinion for the specific loss of enjoyment of life damages for a specific plaintiff. The economist in New Mexico provides a range of values for a statistical life, based upon the peer-reviewed economic research, as a guideline only to the trier of fact.This approach by expert economists in New Mexico differs importantly from excluded expert testimony in other jurisdictions, where the expert attempted to provide an opinion for the specific loss of enjoyment of life damages for a specific plaintiff. These experts in other jurisdictions may rely upon the value of statistical life studies to establish an "average" value of a life, but then inappropriately assign this average value of life to the plaintiff.19 However, the economic research on the value of a statistical life is just that—the value of a statistical life, and not the value of any specific individual.This latter approach to expert economic testimony by economists in other jurisdictions has been rejected and excluded by many federal courts and has been the subject of controversy in the economics profession. The two most widely cited federal cases are Mercado v. Ahmed 1992 and Ayers v. Robinson. 1995. While the courts in these two latter decisions rejected the scientific validity of value of statistical life studies (wrongly in my view), the fundamental error of the expert testimony was using the economic research on the value of a statistical life, which is grounded in the analysis of market decisions and the scientific methods of economics, and applying this to a specific life. Becker and Stout (1992) noted the misuse of value of life studies as a "…mistake of equating estimates of the marginal value of risk reduction to the hedonic value of a specific life." (p. 198) These federal courts should not have rejected the value of statistical life studies as junk science, but rather rejected the junk application of this economic research to a loss of enjoyment of life damages opinion for a specific person. There is no peer-reviewed economic research on loss of enjoyment of life damages for a specific person, but there is peer-reviewed, well accepted economic research on the value of a statistical life.In New Mexico state court any challenge to expert testimony should focus on the validity and reliability of the scientific evidence and the issue of whether that scientific testimony assists the trier of fact. These are the two factors mentioned in Alberico, which represent the standard for admissibility of expert testimony in New Mexico.Under Alberico the focus on the scientific evidence "should be on the validity and the soundness of the scientific method used to generate the evidence." (16 N.M. 156 at p. 167, emphasis added) The scientific method used by economists to determine the value of a statistical life is the same scientific method used to prove or disprove other economic theories such as the slope of a demand curve or the price elasticity of demand for a good or service. A typical value of statistical life study starts with the research hypothesis that businesses have to pay workers a higher wage, everything else equal, to accept employment in a more risky job, a job with a higher probability of an on-the-job death. Standard, well accepted multivariate statistical analysis is applied to a large sample of workers in different occupations and industries with known differences in the probability of annual job fatality. Controlling for other factors in wage determination such as education, years of experience, union/non-union job, region of the country, and gender, multivariate statistical analysis is used to prove or disprove this research hypothesis. An estimate of the wage premium is quantified in the analysis, and these results are used to infer how we as a society (i.e., a large group of workers) value a statistical life.Actual industry job fatality data tell us, for example, that each year one out of every 10,000 workers will die from an on-the-job accident. We do not know which worker will die, but based upon historical data it will likely be one worker out of 10,000 workers. For accepting this risk, each worker is paid a wage premium of, say, $500 (estimated by the multivariate statistical analysis). Collectively, these 10,000 workers are paid $5.0 million (10,000 times $500) to accept the risk that one of them will die. We do not know which one of them will die; that is why it is referred to as a statistical life. Thus, as a society (a large group of workers) this evidence suggests that we value a statistical life by $5.0 million.Kenneth Arrow (1997), a Nobel laureate economist, wrote that ... "the study of this relation (the increased risk of death for a price) has become, indeed, a standard way of estimating the value of life for use in benefit-cost analysis." (p. 759) In his survey of the value of statistical life literature Kip Viscusi (1993) recognized then the long research tradition of value of life. "Although the value of life literature is now roughly two decades old, the essential approach became well established in the 1970s." (p. 1942) More recently, Viscusi (2004) noted the scientific basis of the value of statistical life research this way:There has been some criticism of the value of life research based on the trade-off that workers make between higher wages and the increased risk of a job fatality, most notably in the research of J. Paul Leigh (1991), who found no compensating wage differentials based upon the occupational classification of the worker. However, this research of Leigh was itself rebutted by Roy F. Gilbert (1998), who argued that it is the industry risk of fatal injury, not occupational risk of fatal injury, that are significant to workers. Another, unsubstantiated criticism raised in Alberico challenges is that workers are not aware of the inherent risks of fatal injury in different industries and occupations, and thus do not possess the requisite information to demand a wage premium. Information is a vital commodity in a free market economy so that consumers and businesses make the optimal decisions for allocating scarce resources. I would suggest that workers do possess information of the inherent risks of fatal injury on the job, as documented in the song, Big Money, by none other than country pop singer, Garth Brooks (2001):On balance, the economic research on the value of a statistical life is well accepted by the economics profession, as noted by Arrow and Viscusi above; is based upon well-accepted scientific methods used by economists; and has been published extensively in peer-reviewed academic economic journals over the last 30 to 40 years.Alberico also notes that the reliability of the scientific evidence must be considered, meaning "if a particular scientific technique brings about consistent results." (116 N.M. 156 at p. 167) Many Alberico challenges question the reliability of value of life studies based upon the wide range for the value of life from the available published literature. The results of value of life studies over the last 30 years have had a wide range of valuations. The most recently published research on the value of life is now based upon larger sample sizes and has developed better data sets such as both occupation and industry fatality risk variables, age-specific fatality risk data rather than average-age fatality risk data, data on nonfatal injuries, and data on expected workers compensation benefits. These improved data sets have helped to explain away some of the wide variation in past studies and have narrowed the range of value of life estimates. Viscusi (2004) notes:Viscusi's value of life study (2004), is based upon a sample of 99,033 workers and uses these improved data sets. Viscusi finds the value of a statistical life for his full sample is equal to $4.7 million in 1997 dollars, which would be $6.02 million in 2004 dollars. (p. 39, Table 3) Aldy and Viscusi's value of life study (2003) is based upon a sample of 116,632 workers using age-dependent fatal and non-fatal risk variables. Their results support a mean value of a statistical life of $4.23 million in 1996 dollars, (p. 15) or $5.63 million in 2004 dollars. Viscusi and Aldy's 2003 survey of the economics literature found that half of the studies of U.S. compensating wage differentials reveal a value of a statistical life ranging from $5 million to $12 million, with a median value of $7 million.There is great observed variability in economic data such as the income of high school graduates, life expectancy, and work life expectancy. Variability in the results of value of life studies should not be used to question its reliability, as Viscusi (2000) has noted:For an economist, the issue of reliability should focus on whether or not these various studies re-confirm through research replication the research hypothesis that workers do require a higher wage in return for accepting some greater risk of death on the job. If not one, but many studies of the value of life confirm this research hypothesis, then the economics profession can be more confident in the validity and reliability of the theory. The first thorough review of the economics literature on the value of life was commissioned by the U.S. Environmental Protection Agency in June, 1983 with an update in March, 1989.20 Ted R. Miller (1990) reviewed 67 studies of the value of life in an article published in the Journal of Forensic Economics. In 1993 Viscusi authored a survey of the literature in the Journal of Economic Literature covering 24 wage/risk studies of the value of a statistical life. And more recently, Viscusi and Aldy (2003) reviewed more than 60 studies of the value of life from 10 different countries. These surveys of the economic literature on the value of a statistical life document the volume of research replication as well as the validity and reliability of this area of economic inquiry.A final factor to be considered under the Aberico evidentiary standard is whether the expert opinion testimony will assist the trier of fact. Challenges in this area revolve around the issue that the economic research is for the value of a statistical life, and not the life of the plaintiff. A trier of fact, when faced with the decision to determine loss of enjoyment of life damages, will have little or no basis for approaching this task. Expert economic testimony provides the trier of fact a perspective on what is the nature of loss of enjoyment of life damages—the impact of the injury on the plaintiff's leisure, recreation, and hobbies as well as social interaction with the community, family, and friends.The discussion of value of statistical life studies will explain how in every day economic decisions involving a tradeoff between a small risk of death and money, workers and consumers implicitly place a value on life. When workers require that a wage premium be paid to accept work in a riskier occupation, workers are accepting a tradeoff between money and a shorter life expectancy. When consumers purchase certain safety devices such as smoke detectors and air bags, which will reduce the risk of death, they are accepting a tradeoff between money and a longer life expectancy. In value of life research economists are analyzing the economic information contained in these actual market transactions—labor markets and consumer markets—and inferring from this economic information how we as a society value a statistical life. Not the life of any specific individual, but life in general.This economic research can inform and assist the trier of fact concerning loss of enjoyment of life damages. The New Mexico Court of Appeals has already agreed. In its Couch decision the court found that expert economic testimony on value of life studies gave the jury a range of monetary values that likely proved helpful in evaluating plaintiff's claim for loss of enjoyment of life damages. The Nevada Supreme Court, citing in part the New Mexico Couch decision, also has agreed, finding that the economist's methodology (providing a range for the value of a statistical life) "assisted the jury to understand the amount of damages that would compensate James for the loss of his enjoyment of life.21"Viscusi (1990) has argued that an award for loss of enjoyment of life damages in a product-liability case provides a deterrence value so that manufacturers make the optimal investment in product safety. Viscusi concludes by saying that "juries currently have no guidelines for setting the damages needed to establish safety incentives (deterrence values), and the value of life methodology establishes this basis." (p. 15) Posner and Sunstein (2005) more recently have argued that hedonic damages should be allowed in wrongful death cases in all 50 states22 and favor value of statistical life studies (VSL) for assisting the trier of fact in establishing such damages: "VSL studies should be used to educate juries about common valuations, so that their own estimates will be informed rather than arbitrary." (p. 587)In Alberico challenges, defendants will also argue that allowing testimony on the value of life studies will lead to "overcompensation" of the plaintiff, and therefore such testimony should be excluded. Many will cite the work of economist Viscusi (2000) in the Journal of Forensic Economics. However, in this article Viscusi does not argue against the scientific validity of value of life studies. Rather he argues against any award of loss of enjoyment of life damages in personal injury and wrongful death cases, because Viscusi sees only a more narrow purpose and objective of economic damages—compensation for the direct monetary loss of the plaintiff. Similar criticism can be found in the work of Thomas Havrilesky (1993).But as we have seen, in New Mexico the purposes of economic damages are broader than mere compensation to a survivor, and include compensation for the worth of the life of the decedent apart from his/her earning capacity and the deterrence of negligence. In New Mexico this issue of overcompensation should be a non-issue in any event, since in Romero and Sena the New Mexico courts have already ruled that loss of enjoyment of life damages are a category of damages.What defendants will not include in their Alberico challenge is that in another legal context—a product-liability case—Viscusi (1990) has argued for the award of loss of enjoyment of life damages to provide deterrence value so that manufacturers make the optimal investment in product safety. Viscusi concludes by saying that "juries currently have no guidelines for setting the damages needed to establish safety incentives (deterrence values), and the value of life methodology establishes this basis." (p. 15) In the end you have the curious situation where Viscusi (2000) would be used to exclude Viscusi (1990) in a product-liability case.Since 1994 New Mexico courts have allowed an award for loss of enjoyment of life damages in wrongful death and personal injury cases. Such an award conforms to the concept and purposes of economic damages in New Mexico by providing compensation not only for direct monetary losses but also to deter negligence that causes death or significant injury. In a wrongful death case the New Mexico uniform jury instructions allow a monetary award based on the value of the deceased's life apart from his/her earning capacity. And there does not have to be a surviving beneficiary for such an award.Expert economists are permitted to testify in state district court23 regarding loss of enjoyment of life damages. However, the nature of such testimony differs significantly from the excluded economic testimony in other jurisdictions24 in that the New Mexico expert is not permitted to provide an opinion of a specific dollar amount for a specific plaintiff's loss of enjoyment of life. The expert may, however, discuss the economic research on the value of a statistical life and provide testimony on a range of the dollar value of a statistical life as a guideline to the trier of fact. Expert testimony may also include an interpretation of the meaning of loss of enjoyment of life damages and the broad areas of the human experience to be considered by the trier of fact.Expert testimony regarding loss of enjoyment of life damages in the federal District of New Mexico is generally governed by the Smith v. Ingersoll Rand decision of the Tenth Circuit. The expert economist may provide an interpretation of the meaning of loss of enjoyment of life damages and to describe the broad areas of human experience to be considered in determining such damages by the trier of fact, but is not allowed to quantify the plaintiff's loss of enjoyment of life damages. However, rulings on the admissibility of expert testimony for loss of enjoyment of life damages in federal court in New Mexico have been inconsistent. Some federal judges exclude such testimony entirely, while other federal judges allow testimony regarding the economic research on the value of a statistical life and a range of the dollar value of a statistical life as a guideline to the trier of fact.New Mexico's standard for admissibility of expert testimony is set forth in Rule 11-702 NMRA 2007 and the State v. Alberico decision. Scientific, technical, or other specialized knowledge must assist the trier of fact to understand the evidence or to determine a fact in issue. Under Alberico the focus is on the validity and soundness of the scientific method used to generate the scientific knowledge as well as its reliability.