MEMORANDUM OPINION AND ORDER

TIMOTHY L. BROOKS, District Judge.

Currently before the Court is the Report and Recommendation ("R&R") (Doc. 136) of the Honorable Alice R. Senechal, United States Magistrate Judge for the District of North Dakota, filed in this case on February 11, 2019, concerning a Motion to Exclude Certain Testimony of Dr. Stan V. Smith (Doc. 57) filed by Defendants Sanford Clinic North d/b/a Sanford Clinic Jamestown and Sarah Schatz, M.D. ("the Sanford Defendants") and a Motion to Exclude Testimony of Stan V. Smith, Ph.D. (Doc. 60) filed by Defendant Lutheran Charity Association d/b/a Jamestown Regional Medical Center ("JRMC"). The Magistrate Judge heard oral argument on the motions on December 18, 2018. In her R&R, she recommends granting the motions and excluding from trial Dr. Smith's proposed testimony concerning: (1) the amount needed to compensate D.M. for the reduction in value of his life as a result of certain neurological injuries he suffered at or around the time of his birth, (2) the amount needed to compensate D.M.'s parents for the loss of consortium with D.M., and (3) the amount needed to compensate D.M.'s parents for the loss of D.M.'s "household/family services."

Plaintiffs filed timely and specific objections to the R&R on February 25, 2019 (Doc. 141), and the Sanford Defendants and JRMC each filed a Response to those Objections (Docs. 148, 149) on March 4, 2019. Now that the matter is ripe, the Court has conducted a de novo review as to all proposed findings and recommendations to which Plaintiffs have raised specific objections. See 28 U.S.C. § 636(b)(1). As explained below, all objections are OVERRULED, and the R&R is ADOPTED IN FULL.

I. BACKGROUND Defendants' motions in limine seek to exclude from trial certain expert testimony offered by an economist named Dr. Stan V. Smith on the subject of hedonic damages. Hedonic damages attempt to compensate a victim for the loss of the pleasure of being alive; and/or in the case of a minor victim, hedonic damages attempt to compensate the minor victim's parents or guardians for the loss of the pleasure of the minor's society and companionship. (Doc. 136 at 2). Defendants do not dispute that Dr. Smith is a well-qualified expert in the areas of economics and finance. However, they contend that his computation of hedonic damages rests on an assumed value of life that is arbitrary and unreliable, and that his opinions (or "examples") as to the amount of hedonic damages will be unhelpful, confusing, misleading, and/or a waste of the jury's time, all to the Defendants' unfair prejudice. Lastly, Defendants argue that Dr. Smith's proposed computation of certain categories of hedonic damages is inconsistent with North Dakota's law on damages.

Two of Dr. Smith's expert reports are discussed in Defendants' motions. In the first report, Defendants challenge the admissibility of Dr. Smith's opinions and testimony concerning his calculation of the reduction in value of D.M.'s life (also known as loss of enjoyment of life) resulting from certain neurological injuries D.M. suffered at or around the time of birth. Defendants also contest Dr. Smith's calculation of the value of the loss to D.M.'s parents of the "society or relationship" D.M. would have provided them, but for his injury. With respect to Dr. Smith's second report, Defendants challenge the admissibility of his opinions regarding the value of the parents' loss of D.M.'s "household services," which include the value of D.M.'s advice, counsel, guidance, and instruction to his parents, as well as the loss of his "accompaniment services."

After reviewing the applicable legal standards and analyzing Dr. Smith's reports and the parties' briefing, Magistrate Judge Senechal concluded as follows:

(Doc. 136 at 25). She therefore recommended granting Defendants' motions and excluding from trial Dr. Smith's testimony on the reduction in value ("RVL") of D.M.'s life, the value of the loss to D.M.'s parents of his society and relationship, and the value of the loss to D.M.'s parents of his household/family services.

Plaintiffs have made four objections to the R&R (Doc. 141). First, they contend that it was error for the Magistrate Judge to conclude that Dr. Smith used little data to connect his methodology to the facts of the case. Plaintiffs appear to argue in their first objection that the Federal Rules of Evidence do not require them to present any underlying facts or data to support Dr. Smith's opinions—though they admit such underlying facts or data do exist and were presented to the Magistrate Judge for her consideration. As for the second objection, Plaintiffs contend the Magistrate Judge erred in recommending the exclusion of Dr. Smith's testimony as to his calculation of the reduction in value ("RVL") of D.M.'s life and the value of the loss to D.M.'s parents of his household/family services. Plaintiffs' third objection is that the Magistrate Judge erred in finding that Dr. Smith's testimony in these contested areas would lead to juror confusion. Plaintiffs' fourth objection is that the Magistrate Judge erred in finding that Dr. Smith's calculation of damages in these contested areas is unreliable. The Court will consider each of these objections in turn.

II. LEGAL STANDARD

Defendants' motions in limine ask the Court to invoke its "gate-keeping function" to ensure that an expert's opinion is "supported by the kind of scientific theory, practical knowledge and experience, or empirical research and testing that permit assessment `of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.'" Robertson v. Norton Co., 148 F.3d 905, 907 (8th Cir.1998) (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-93 (1993)). Whether to exclude or allow expert testimony is committed to the district court's sound discretion, subject to the Federal Rules of Evidence, including Rule 702. Johnson v. Mead Johnson & Co., LLC, 754 F.3d 557, 561 (8th Cir. 2014).

Rule 702 states:

The Eighth Circuit has "boiled down" these requirements into a three-part test:

Johnson, 754 F.3d at 561 (quoting Polski v. Quigley Corp., 538 F.3d 836, 839 (8th Cir. 2008)).

When making this sort of inquiry—which is often referred to as a Daubert challenge, see Daubert v. Merrell Dow Pharm, Inc., 509 U.S. at 592-93—the Court's objective "is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999). The proponent of expert testimony bears the burden of showing by a preponderance of the evidence that the requirements set forth in Daubert and its progeny are satisfied; however, if a close case presents itself, "[c]ourts should resolve doubts regarding the usefulness of an expert's testimony in favor of admissibility." See Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 757-58 (8th Cir. 2006). In doing so, "a court should not admit opinion evidence that `is connected to existing data only by the ipse dixit of the expert.'" Id. at 758 (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)).

III. DISCUSSION

A. Objection One

Plaintiff's first objection takes issue with the Magistrate Judge's finding that Dr. Smith used little data to connect his methodology to the facts of the case. The objection leads with a rather bizarre argument: that pursuant to Federal Rule of Evidence 705, "Dr. Smith was not required to disclose underlying facts and data in his expert reports." (Doc. 141 at 6 (emphasis in original)). The Court cannot fathom what Plaintiffs are driving at in making this argument. Certainly, if it were the case that Dr. Smith's testimony were being presented at trial, Rule 705 would govern the presentation of that testimony, and Dr. Smith could "state an opinion—and give the reasons for it—without first testifying to the underlying facts or data." Fed. R. Evid. 705. But that is not the posture here. The Defendants have challenged the admissibility of expert testimony prior to trial through a Daubert challenge. That challenge is governed by Daubert and its progeny, as informed by Rule 702, not Rule 705. And the relevant standard in this circuit requires expert opinion testimony to be supported by sufficient facts or data, and the product of reliable principles and methods as applied to the particular facts of the case before the court. Johnson, 754 F.3d at 562.

Turning first to the facts and data disclosed to the Magistrate Judge through motion practice, there is no dispute that Dr. Smith calculated what he thought would be the value of a statistical life—not D.M.'s particular life—based on his own amalgamation of different types of economic studies, such as variances in incremental pay for risky occupations; consumer behavior in purchasing safety devices relative to theoretical risk reduction; and cost-benefit analyses used in governmental policy making decisions and regulatory applications. (Doc. 58-1 at 3-4). Dr. Smith then arbitrarily selected an "impairment rating benchmark of a 95% reduction in [D.M.'s] ability to lead a normal life." (Doc. 58-1 at 4). After accounting for a hypothetical lifespan of more than 77 years (which Defendants do not contest for purposes of the instant motions), and adjusting for the time value of money, Dr. Smith opines that D.M.'s total RVL—the total reduction in the value of D.M.'s life throughout his expected lifetime due to his injuries—would be $6,874,871.

Next, Dr. Smith calculated the value of D.M.'s parents' loss of their child's society or relationship. To do this, Dr. Smith assumed a "benchmark loss" of 20% for each parent without explaining why. The value of D.M.'s father's loss of D.M.'s society or relationship was calculated to be $1,137,227, and his mother's loss was calculated to be slightly higher, at $1,282,839. Again, no explanation was offered as to why the father's expected loss was different from the mother's, though the Magistrate Judge speculated that the discrepancy could have been due to a difference in the two parents' expected lifespans. Regardless, and just as noted above with respect to the RVL calculation, it is evident that Dr. Smith used certain multipliers, such as the "benchmark loss" factor of 20%, that appear wholly arbitrary.

In ruling on Objection One, the Court also reviewed Dr. Smith's deposition testimony, which Plaintiffs appended to their objections to the R&R. Plaintiffs argue in a footnote that the deposition transcript "demonstrates that counsel for the Defendants bringing the Motions to Exclude failed to elicit the underlying facts or data for Dr. Smith's opinions during his discovery deposition." (Doc. 141 at 7 n.2). Quite to the contrary, the Court believes defense counsel elicited a great deal of information from Dr. Smith regarding the underlying facts, data, and assumptions he used to support his opinions. A few examples from the deposition illustrate the point and demonstrate quite convincingly the correctness of the Magistrate Judge's recommendation to exclude Dr. Smith's contested testimony:

Id. at 80-81.

Dr. Smith's opinions are marinated in a proprietary blend of theoretical "studies" (developed for use in other contexts), and peppered with arbitrary "benchmarks" a la ipse dixit, and, finally, tabulated with present value spreadsheets to give the illusion of forensically precise calculations in D.M.'s specific case. Beyond the illusion, the reality is more akin to hocus pocus. And this Court is certainly not alone in finding Dr. Smith's methodologies suspect and unreliable.1 Dr. Smith's calculations are based on arbitrary figures and assumptions that are unrelated to the facts of the case. An expert's calculations should be excluded when they are "so fundamentally unsupported that [they] can offer no assistance to the jury." Wood v. Minn. Mining & Mfg. Co., 112 F.3d 306, 309 (8th Cir. 1997) (citations omitted).2

The problem here is not so much whether Dr. Smith reviewed and incorporated facts from D.M.'s medical findings, as it is Dr. Smith's unreliable methodology—which cannot be properly applied to the facts in this case, at least not in any meaningful or reproducible manner. Objection One is therefore OVERRULED.

B. Objection Two

Plaintiffs argue that it was error for the Magistrate Judge to recommend that Dr. Smith not be permitted to testify as to his calculation of RVL or the value of D.M.'s parents' loss of his household/family services. Stated differently, Plaintiffs essentially frame the question this way: If the jury may award damages based on RVL and loss of household/family services, why not allow them to hear Dr. Smith's opinion and consider his calculations? After all, he is a qualified expert. What would it hurt?

The Court's ruling above is a sufficient basis alone to overrule Plaintiffs' second objection. But as the Magistrate Judge correctly found, there are other reasons why Dr. Smith's testimony should be excluded. For example, it is generally not the role an expert economist to quantify noneconomic damages. Yet here, Plaintiffs are improperly seeking to have Dr. Smith do just that.

To the extent that the loss of enjoyment of one's life is a recoverable damage,3 it is only compensable as a component part of other recognized forms of noneconomic damage, such as pain, mental anguish, and physical and mental impairments. First Tr. Co. of N. Dakota v. Scheels Hardware & Sports Shop, Inc., 429 N.W.2d 5, 14 (N.D. 1988). And the North Dakota Supreme Court has long observed that "[t]he determination of [non-economic] damages for pain and suffering is not susceptible of arithmetical calculation. Its ascertainment must to a large degree depend upon the common knowledge, the good sense and practical judgment of the jury." Lake v. Neubauer, 87 N.W.2d 888, 891 (N.D. 1958); see also Slaubaugh v. Slaubaugh, 466 N.W.2d 573, 577 (N.D. 1991) (noting that the valuation of non-economic damages "rests largely within the sound discretion of the jury"). Dr. Smith appears to agree, inasmuch as he characterizes his valuation opinions as mere "example[s]" that "the jury may consider interesting to review." (Doc. 141-2 ag 36-37).

Dr. Smith's opinions will not assist the jury—and should therefore be excluded under Rule 702—because the law does not consider these types of damages to be beyond the jury's ability to understand and determine on its own. Dr. Smith is no more qualified than anyone else to place a precise dollar value on the loss of the enjoyment of life, or the value of a parent's loss of consortium with her child. In fact, like pain and suffering, the applicable law commits these types of valuations to collective wisdom of the jury. Objection Two is therefore OVERRULED.

C. Objection Three

The third objection goes to the Magistrate Judge's related conclusion that Dr. Smith's proposed testimony would likely confuse the jury. Plaintiffs contend that the Magistrate Judge "invad[ed] the province of the jury" when she unduly relied on and gave greater weight to Defendants' competing expert opinions that sought to discredit Dr. Smith's testimony. Plaintiffs miss the point here. The Magistrate Judge's ruling was not about choosing one side's expert over the other. It was about Rule 403. The Magistrate Judge observed—as one reason, among many others—that Dr. Smith's opinions on these matters should be excluded because of the likelihood of juror confusion. This Court agrees, especially given its rulings above.

Plaintiffs seek to present the jury with Dr. Smith's statistical models (which do appear mathematical and scientific on the surface), and they will then rely on Dr. Smith's qualifications to imbue his calculations with an illusion of legitimacy. It is certainly not a well-kept secret that such testimony is often used to establish a false anchor for the jury's deliberations—which in and of itself may or may not be a reason for exclusion. But here, for the reasons explained above, Dr. Smith's contested testimony has been deemed unreliable. The Court also harbors concern that the jury would conflate—just as the Plaintiffs do in their briefing4—the distinction between proof of economic damages and proof of noneconomic damages. Stated more precisely, there is concern that the jury would lump all of Dr. Smith's monetary opinions together onto the same (economic damages) side of the leger. For these additional reasons, the Court finds there would be a likelihood of substantial juror confusion. Objection Three is therefore OVERRULED.

D. Objection Four

Finally, with regard to the fourth objection, Plaintiffs contend it was error for the Magistrate Judge to conclude that Dr. Smith's calculations were unreliable. For all the reasons previously stated, the Court disagrees. To be clear, Dr. Smith is certainly an expert in the field of economics, but that only unlocks the first tumbler. Likewise, it is true that some district courts have permitted Dr. Smith's calculation of hedonic damages. But other courts have not, including numerous circuit courts. While there is no binding precedent one way or the other, the Court finds much more persuasive the opinions cited in notes 1 and 2 above.

The Plaintiffs conclude by re-urging their belief that "Dr. Smith's testimony provides the jury a basis for the determination of a significant element of Plaintiffs' damages, instead of relying on seemingly arbitrary suggestions from the attorneys," (Doc. 141 at 13), but this Court believes that Dr. Smith's calculations are no less arbitrary than what Plaintiffs' attorneys might argue in closing. Objection Four is therefore OVERRULED.

IV. CONCLUSION

For the reasons explained herein, Plaintiff's Objections (Doc. 141) are OVERRULED. The Court ADOPTS IN FULL the Report and Recommendation of the Magistrate Judge (Doc. 136). The Motion to Exclude Certain Testimony of Dr. Stan V. Smith (Doc. 57) filed by Defendants Sanford Clinic North d/b/a Sanford Clinic Jamestown and Sarah Schatz, M.D. ("the Sanford Defendants") and the Motion to Exclude Testimony of Stan V. Smith, Ph.D. (Doc. 60) are both GRANTED, and Dr. Smith's testimony on reduction in value of life, loss of society and relationship, and loss of "household/family service" is EXCLUDED FROM TRIAL.

IT IS SO ORDERED.