`JULIE HERLITZ, Individually and as
`Executor of the Estate of JOJO
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`WILLIAM HERLITZ, deceased, and
`HANNAH SOFIA HERLITZ and
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`ANDREW WALKER HERLITZ, minors,
`by next friend and natural guardian,
`JULIE HERLITZ,
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`Plaintiffs,
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`v.
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`BATSON-COOK COMPANY,
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`B & M MASONRY, INC. and
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`A & R IRONWORKS, LLC,
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`Defendants.
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`CIVIL ACTION
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`FILE NO. 18EV000856
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`State Court of Fulton County
`**E-FILED**
`18EV000856
`7/21/2020 3:56 PM
`LeNora Ponzo, Clerk
`Civil Division
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`IN THE STATE COURT OF FULTON COUNTY
`STATE OF GEORGIA
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`MOTION TO RECONSIDER AND MODIFY ORDER OF MARCH 12, 2020
`GRANTING THE DEFENDANTS’ MOTION TO EXCLUDE
`THE OPINIONS OF RICHARD ALAN SEALS, JR., Ph. D.
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`COME NOW the Plaintiffs in the above-styled action and hereby move the Court to
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`reconsider and modify its Order of March 12, 2020 that excluded the opinions of economist
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`Richard Alan Seals, Ph.D. A copy of the Court’s Order is attached hereto as Exhibit “A.”1 In
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`support of this Motion, Plaintiffs show as follows:
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`Introduction
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`By definition, intangible damages cannot be precisely quantified. See Consolidated
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`Freightways Corp. of Delaware v. Futrell, 201 Ga. App. 233, 410 S.E. 2d 751 (1991). Such
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`damages are to be determined in accordance with the “enlightened conscience of an impartial
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`jury.” Futrell, ibid. The Merriam-Webster Dictionary defines “enlightened” as “based on full
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`1 This Motion is timely submitted as all applicable deadlines were stayed, pursuant to Fulton County and Supreme
`Court of Georgia Judicial Emergency Orders.
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`comprehension of the problems involved.” Physical and emotional connection (marriage), health,
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`and financial satisfaction are among the prevalent components from which an individual’s
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`enjoyment of life are derived. As will be discussed herein, Dr. Seals can offer statistical evidence
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`and testimony without ascribing the specific valuations generated from the General Social Survey
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` that would enable the jury to appreciate the hierarchy of influence on an individual’s enjoyment
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`of life,
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`Counsel’s lack of clarity caused the Court to misconstrue Dr. Seals’ opinions as an effort
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`to quantify intangible damages, more specifically, to place a quantitative measure for damages
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`relating to JoJo Herlitz’s loss of enjoyment of life. However, the figures generated by Seals were
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`intended only as a means to gauge the relative impact of various features of life and to provide
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`understanding as to their interplay. Because the General Social Survey data is compiled using
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`monetary ranges, the barometer of each component is its cost compared to other features.
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`While the methodology employed by Seals, contingent valuation, has a longstanding
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`history of diverse use and acceptance, the Court expressed its concern that it’s reliability for
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`stratifying enjoyment of life had not yet been sufficiently established. This ostensible shortcoming
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`has now been addressed and cured. Dr. Seals has detailed this approach in a submission to the
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`Journal of Legal Economics, which has completed its arduous peer review process and accepted
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`his article and slated its publication for August of 2020. This academic journal is renowned for
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`its discerning critiques of the utility of principles of economics in the legal system. A copy of Dr.
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`Seals’ galley proof is attached to this Motion as Exhibit “B.”
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`What Information Do The Surveys Provide
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`The General Social Survey is a universally accepted data set that identifies the most
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`impactful components of enjoyment of life, based upon the amounts the respondent is willing to
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`2
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`pay for different features. The data used by Dr. Seals are known in the literature as “happiness
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`surveys.” For all intents and purposes, “happiness” is the equivalent of “enjoyment of life.” This
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`data allows Seals to place a yearly “price” on elements of happiness, alone and in combination.
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`When the “prices” are ordered from most to least expensive, the relative influence of the
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`component(s) is identified and the likely magnitude of enjoyment of life evident.
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`The General Social Survey includes expansive information that allows Dr. Seals to
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`compare the respective “happiness quotients” for marriage, health and finances. The data relating
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`to the features when present together is the most illuminating and lends credence to the impressions
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`of the decedent’s friends and family. This data reflects that a synergistically increase or decrease
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`in “happiness” occurs, and that excellent and good health and to a lessor degree marriage,
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`overwhelm, mitigate and minimize the influence of financial dissatisfaction.
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`Why Is This Data Relevant?
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`This case has a unique set of facts. Prior to 2001, the decedent, JoJo Herlitz worked for
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`E3 Corporation, a family owned software business. JoJo’s ownership interest was slightly in
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`excess of eighteen percent (18%). In 2001, the company was sold for Fifty Million Dollars
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`($50,000,000.00).2 JoJo realized approximately Eight Million One Hundred Thousand Dollars
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`($8,100,000.00) from the sale, less taxes. (Dep. of Carl Herlitz, p. 14-19.)
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`Between 2001 and 2008, the Herlitz’ acquired and invested in vacation properties that JoJo
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`managed. The properties and JoJo’s company, Herlitz Property Management, turned a Two
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`Million Dollar ($2,000,000.00) profit in the seven (7) years prior to 2008. However, when the real
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`estate market cratered in 2008 and continuing through 2017, the Herlitz’ suffered over Six Million
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`Dollars ($6,000,000.00) of losses. (Dep. of Julie Herlitz, p. 14-18.) At the time of his death, the
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`2 The last Five Million Dollars ($5,000,000.00) of the purchase price was never paid.
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`3
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`Herlitz’ held ownership interests in one(1) remaining investment property in South Carolina.
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`(Dep. of Julie Herlitz, p. 15.)
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`JoJo’s priorities changed after 2008 and he adopted a modest, family-centric mentality. He
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`brought his wife coffee every morning, cooked dinner most nights and attended all of his kids’
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`activities and school events. He worked a variety of part-time jobs so as to maximize his family
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`time. While his earnings from these jobs was only roughly Twenty-Five Thousand Dollars
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`($25,000.00) a year, JoJo viewed the benefits of availability as outweighing a higher income.3
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`The Defendants are expected to argue that JoJo’s financial decline precludes true
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`enjoyment of life and the average jury is unlikely to have experienced the effects of losing millions
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`of dollars. However, without exception, the testimony is expected to reflect that JoJo was content
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`with his lifestyle and that he continued to enthusiastically find pleasure and enjoyment in his
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`relationships, interactions and activities, despite the change in his economic circumstances. (See,
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`for example, Dep. of John McKinley; Dep. of Richard Owings.) The evidence will reflect that
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`JoJo became absorbed and was fully committed to being a devoted husband and ever-present dad.
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`There will also be evidence that JoJo had no significant health problems and, at most, a moderate
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`amount of financial dissatisfaction.
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`What Does the Data Show
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`Dr. Seals’ information provides objective, statistical evidence that being married and in
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`excellent health overrides financial dissatisfaction. The data reflects a three times higher valuation
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`of enjoyment of life for individuals in “excellent” health, as opposed to “fair” health. “Excellent”
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`health generates a one and a half times higher valuation of enjoyment of life when compared to
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`“good” health. Whether an individual in excellent health is married or unmarried influences
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`3 Julie Herlitz earned approximately Thirty-Five Thousand Dollars ($35,000.00) a year as a realtor. JoJo’s parents
`helped by paying daughter Hannah’s college expenses that were not covered by the Hope Scholarship.
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`4
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`happiness valuation by approximately two times. In comparison, the difference between
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`financially satisfied and dissatisfied individuals is one and a half times. When viewed
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`cumulatively, married people in excellent health who are moderately financially dissatisfied
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`generate happiness valuations three and a half times higher than unmarried individuals in “good”
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`health, who are similarly displeased with their financial situation. Married people in excellent
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`health with moderate financial dissatisfaction generate approximately two and a haf times the
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`happiness valuations of analogous individuals in fair health.
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`Relevant evidence is any evidence which relates to the questions being tried by the jury
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`and bears upon them either directly or indirectly. O.C.G.A. § 24-2-1. Once relevancy is
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`established, the evidence should be admitted so long as it does not offend some other rule of
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`evidence. Furthermore, a principle firmly entrenched in our jurisprudence regarding the
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`admissibility of evidence is that when evidence offered by a party is of doubtful relevancy, it
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`should nevertheless be admitted, and its weight left to the jury. Continental Trust Co. v. Bank of
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`Harrison, 36 Ga. App. 149 (1926); Burton v. Campbell Coal Co., 95 Ga. App. 388 (1957); Calhoun
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`v. Branan, 149 Ga. App. 160 (1979); Owens v. State, 248 Ga. 586 (1981).
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`The Data Has Been Reliably Applied
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`Now that Dr. Seals’ application of the General Social Survey data and contingent valuation
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`methodology have been favorably peer reviewed, the requisite showing that the testimony is the
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`product of reliable principles and methods properly applied has been made.
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`The Defendants contention that valuation disparities from model to model reflect a flaw in
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`the methodology or its application is incorrect. The models produce different valuations because
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`they are dissimilar and do not price the same combinations and amounts of components. The dollar
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`5
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`valuations themselves are meaningless, other than for internal comparative purposes within each
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`model.
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`Furthermore, the models do not produce the same numerical ranges of cost because there
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`is an interplay between factors that produces exponential and not additive increases and decreases.
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`For example, being happily married increases in relative value during periods of financial turmoil,
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`likely because of the need for and benefit of emotional support. Conversely, the effects of
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`financially dissatisfaction on happiness are diminished by the positives derived from a satisfying
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`marriage and good health.
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`As Seals points out, the models are validated when the methodology produces costs that
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`are internally consistent, that is, negative-type components have a devaluing effect within the
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`confines of the model and positive type components a heightened cost. Seals’ has provided in his
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`article, his report and in his deposition the entirety of information needed to review, test and
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`replicate his findings. The Journal peer review and publication acceptance verifies that the
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`principles and methods have been reliably applied.
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`The Data Will Be Presented Without Monetary Valuations
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`Courts routinely address potential for jury confusion with a limiting instruction.4 To ensure
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`the jury does not perceive the General Survey component ranges as enjoyment of life valuations,
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`Seals has converted the data from monetary to percentage metrics. Seals’ testimony still serves to
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`enlighten the jury as to the relative degree of happiness statistically likely to be present in
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`individuals with certain combinations of components of life.
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` The Plaintiffs have set out the fundamental opinions after the conversion of the data in
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`this motion and the supplement to Seals’ expert identification, attached as Exhibit “C.”
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`4 For example, a common instruction is “this testimony is being offered and to be considered to explain conduct and
`not for the truth of the matter asserted therein.”
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`6
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`Summary and Conclusion
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`The information to be offered will assist the jury in assessing the credibility of witnesses
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`in the context of determining the level of enjoyment of life JoJo Herlitz experienced. The recent
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`peer review and acceptance of Seals’ article demonstrates that the use of the General Social Survey
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`data for these purposes is reliable and that the data has been properly applied using standard
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`econometric methodology. Seals’ opinions are relevant and of value and effectively constitute
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`economic epidemiology. With his conversion of the data to a non-monetary metric, Seals has
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`resolved any misunderstanding that his ranges were a valuation of enjoyment of life and eliminated
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`any potential for confusion.
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`Wherefore, the Plaintiffs request that this Court vacate and modify its Order of March 12,
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`2020, and permit the reconstituted testimony and opinions of Richard Alan Seals and to allow him
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`to express the data and opinions set forth in his report in non-monetary terms.
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`Respectfully submitted this 21th day of July 2020.
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`One Buckhead Plaza
`3060 Peachtree Road, NW, Suite 1000
`Atlanta, Georgia 30305
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`T: (404) 869-8600
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`F: (404) 869-8044
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`jag@goldsteinhayes.com
`jml@goldsteinhayes.com
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`7
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`GOLDSTEIN HAYES LINA LLC
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`/s/ James A. Goldstein
`James A. Goldstein
`Georgia Bar No. 300430
`Jared M. Lina
`Georgia Bar No. 191099
`Attorneys for Plaintiffs
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`CERTIFICATE OF SERVICE
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`This is to certify that I have this day served a true and correct copy of the foregoing Motion
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`to Reconsider and Modify Order Granting the Defendants’ Motion to Exclude the Opinions of
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`Richard Alan Seals, Jr., Ph.D. via court e-filing system and electronic delivery and by depositing
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`the same in the United States mail in a properly addressed envelope with adequate postage thereon
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`to the following:
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`Richard C. Foster, Esq.
`Jennifer L. Nichols, Esq.
`Swift Currie McGhee & Hiers LLP
`1355 Peachtree Street, NE, Suite 300
`Atlanta, Georgia 30309
`richie.foster@swiftcurrie.com
`jennifer.nichols@swiftcurrie.com
`Attorneys for Defendants Batson-Cook Company,
`B & M Masonry., Inc. and A & R Ironworks, LLC
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`Mark R. Johnson, Esq.
`John M. Hawkins, Esq.
`Joseph J. Minock, Esq.
`Shawn D. Scott, Esq.
`Weinberg, Wheeler, Hudgins, Gunn & Dial, LLC
`3344 Peachtree Road, NE, Suite 2400
`Atlanta, Georgia 30326
`mjohnson@wwhgd.com
`jhawkins@wwhgd.com
`jminock@wwhgd.com
`sscott@wwhgd.com
`Attorneys for Defendants Batson-Cook Company,
`B & M Masonry, Inc. and A & R Ironworks, LLC
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`This 21th day of July 2020.
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`GOLDSTEIN HAYES LINA LLC
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`/s/ James A. Goldstein
`James A. Goldstein
`Georgia Bar No. 300430
`Jared M. Lina
`Georgia Bar No. 191099
`Attorneys for Plaintiffs
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`One Buckhead Plaza
`3060 Peachtree Road, NW, Suite 1000
`Atlanta, Georgia 30305
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`T: (404) 869-8600
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`F: (404) 869-8044
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`jag@goldsteinhayes.com
`jml@goldsteinhayes.com
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`8
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