On October 5, 2022, Plaintiff John Caton, then 77 years old, was crossing the street, when he was struck by a USPS postal truck. Plaintiff claimed injury to and future medical care needs for not just his right hip and cervical spine, but also for his right shoulder, right foot and ankle, right thumb, and spine. While the parties agreed that Plaintiff injured his hip in the collision and required treatment, the parties disputed which of his other body parts were injured due to the collision, as well as the appropriate course of treatment.
Plaintiff submitted expert reports from two retained experts in this case: Dr. Piers Barry, an orthopedic surgeon who examined Plaintiff and his medical records; and Dr. Kelly S. Harvey, a life care planner who estimated medical costs. Barry submitted five expert reports in this case, dated: November 29, 2024; December 20, 2024; April 8, 2025; July 31, 2025; and September 16, 2025. The April 8, 2025 and July 31, 2025 reports contain his causation opinions. Harvey’s life care plan report estimated the cost of carrying out Dr. Barry’s treatment plan.
Defendant United States filed a motion to exclude certain testimony of Plaintiff’s experts.
Orthopedic Surgery Expert Witness
Dr. Piers A. Barry is a board certified orthopedic surgeon with extensive clinical and hands on experience. He has published scientific journal articles and has given presentations on subjects such as arthroscopic treatment of knee, shoulder, and ankle, and hip injuries. Barry is a member of the Arthroscopy Association of North America (AANA).
Kelly Sandy Harvey is a credentialed and certified Life Care Planner. She specializes in the treatment of complex orthopedic trauma, traumatic brain injury, spinal cord injury, amputations, and burns.
Defendant sought to exclude certain expert testimony from Barry and Harvey for four reasons: 1) Barry’s causation opinions for Plaintiff’s foot, ankle, shoulder, and thumb injuries were unreliable; 2) Barry’s opinions regarding Plaintiff’s hip care were unreliable; 3) Barry’s report, served on September 16, 2025, was untimely; and 4) Harvey’s opinions on the cost of Plaintiff’s injuries lacked foundation.
i. Testimony that Plaintiff’s foot, ankle, shoulder or thumb were injured in the collision
Defendant sought to exclude Barry’s testimony that Plaintiff’s foot, ankle, shoulder, and thumb were injured in the collision. Defendant argued that Barry did not provide a clear explanation as to why he believes the collision injured Plaintiff’s shoulder, foot, ankle, or thumb.
a. Right foot and ankle
Barry noted that Plaintiff felt significant pain in his right foot and ankle after regaining consciousness immediately following the collision. Furthermore, Barry’s report stated that Plaintiff later underwent a cardiovascular evaluation to rule out a cardiac cause for the persistent swelling, but he did not address what caused the swelling.
While Plaintiff’s ankle and foot pain could be considered a symptom of the injuries sustained during the collision—Barry’s reports are silent on how the swelling was caused by the collision. Given the passage of time between the collision and the symptoms, the Court found that Barry’s reports did not explain how the injuries can be attributed to the collision and allowing him to testify regarding these injuries would only confuse the finder of fact.
b. Shoulder and thumb
Barry explained that Plaintiff saw Eric Stuffman, an orthopedic surgeon from July 25 to August 10, 2023 for ongoing right shoulder pain. Barry’s summary of Plaintiff’s medical records noted limited range of motion in his shoulders as early as October 7, 2022, which was only two days after the accident. The earliest mention of a thumb injury was December 11, 2024, when Plaintiff had an MRI.
The Court noted that Barry did not explain how these injuries are related to the accident other than Plaintiff denying any prior injuries. That is not enough.
ii. Testimony regarding future medical care needs for Plaintiff’s hip
Second, Defendant contended that Barry’s opinion regarding Plaintiff’s hip recovery needs are unreliable and will not assist the trier of fact, because Plaintiff underwent hip replacement surgery in January 2026, and Barry admitted at deposition that he had no basis of knowing whether Plaintiff required extended inpatient care or rehabilitation, as originally opined, or whether he was discharged home immediately.
Plaintiff’s opposition did not meaningfully address this argument. Nonetheless, Defendant essentially sought to penalize Plaintiff for having surgery after expert reports were due. That is no reason to exclude testimony regarding the anticipated course of treatment and recovery. If anything, any divergence between Barry’s report and Plaintiff’s post-operative care needs would serve as grounds for impeachment, rather than exclusion.
Accordingly, the Court declined to exclude Barry’s testimony on future medical care needs pertaining to Plaintiff’s hip.
iii. Whether Barry’s report received on September 16, 2025 should be stricken as untimely
Finally, Defendant filed a motion to strike Barry’s rebuttal report, served on September 16, 2025, as untimely. The deadline to serve rebuttal reports was August 27, 2025.
In opposition, Plaintiff argued that the two-week delay was inconsequential, not prejudicial and was unintentional. Specifically, Plaintiff contended that the report was provided well in advance of any expert depositions and that defense counsel had the report for approximately four months prior to Barry’s deposition.
Even with the two-week delay, Defendant had the rebuttal report several months before Barry’s deposition and before any other experts were deposed, which effectively rendered the delay harmless. Thus, exclusion would be a harsh sanction under the circumstances.
B. Harvey’s Opinion
Finally, Defendant argued that, to the extent that the Court excluded Barry’s opinions, it should also exclude any of Harvey’s cost analysis that relied on those excluded opinions.
The Court agreed. Since Barry’s opinions regarding Plaintiff’s right foot and ankle, shoulder, and thumb injuries were excluded, Harvey’s opinions regarding the cost of care for those injuries were also similarly excluded. Her other opinions, however, were not excluded.
Held
The Court granted in part and denied in part Defendant’s motion to exclude certain testimony of Plaintiff’s experts.
Key Takeaway
The purpose of a ‘detailed and complete’ expert report is, in part, to minimize the expense of deposing experts, and to shorten direct examination and prevent an ambush at trial.
Case Details:
Case Caption:
Caton V. United States
Docket Number:
4:23cv5451
Court Name:
United States District Court for the Northern District of California
On October 27, 2022, a three-vehicle collision occurred on Interstate-10 in Phoenix, Arizona. Defendant Eduardo Serrato was operating a tractor trailer when he struck the rear of a Dodge Dart, killing a non-party individual inside the vehicle. The Dodge Dart was pushed across two lanes, and it impacted the tractor trailer containing Plaintiffs Robert Hanifon and Edelmira Encarnacion. Serrato had “nodded off” before the collision, although he had not fallen asleep.
Serrato, a Class-A Commercial Vehicle licensed driver, was employed by Defendant J.B. Hunt, and the tractor trailer he was driving was owned by J.B. Hunt. In addition to Serrato’s involvement in the collisions prior to his employment with J.B. Hunt, Serrato’s employee file noted several incidents that took place leading up to the October 27, 2022, collision.
Plaintiffs intended to have two life care planning experts testify about Plaintiffs’ future medical care—Dr. Caitlin Civiello would testify on Ms. Encarnacion’s and Dr. Pallavi R. Cherukupally on Mr. Hanifon’s.
J.B. Hunt filed motions to strike and exclude portions of the report and proposed testimony of both experts on substantially identical bases.
Life Care Planning Expert Witnesses
Caitlin E.A. Civiello is an emergency room physician and a certified life care planner. Civiello received her M.D. from the Tufts University School of Medicine. She has extensive experience in life care planning and emergency treatment and pain management, including steroid injections and trigger point injections.
She authored a life care plan that purports to identify the care that Encarnacion will need in the future and the price for that care.
Pallavi R. Cherukupally is a board-certified physician in Physical Medicine and Rehabilitation. She is a nationally recognized leader in Regenerative and Interventional Spine Medicine and a certified life care planner.
Plaintiff Edelmira Encarnacion has identified Dr. Caitlin Civiello of the expert witness firm, LCPpro LLC, as the life care planning expert that plans to testify as to her future medical care.
1.Medical Foundation
J.B. Hunt contended that Civiello’s life care plan lacked medical foundation because Civiello did not have the requisite expertise and did not consider comprehensive enough evidence. The Court disagreed.
J.B. Hunt pointed out that Civiello’s opinions did not conform to recommendations made by Encarnacion’s treating providers.
There is no requirement that an expert’s opinions agree with the recommendations of a treating physician. That is why it is common to have competing testimony between a treating physician and medical expert.
To the extent Civiello’s opinions diverge from specific recommendations, the Court concluded that those opinions may nonetheless stand on her independent review of the medical records and literature, and her experience as a licensed physician and certified life care planner.
J.B. Hunt argued that her opinions are inadmissible because she lacked credentials in orthopedics, neurology, and psychology. She also lacked experience providing non-emergency treatment and pain management care.
The Court, however, will not exclude Civiello’s testimony by virtue of the fact that she is not a specialist in all areas of care outlined in her report. The jury may weigh her testimony accordingly.
2. The LCPPro Database
In addition to identifying future care, Civiello also estimated the “usual, customary, and reasonable” (“UCR”) cost of that care using the LCPPro Median Cost Research Database.
The data consists of only medical bills from cases where an LCPpro expert was retained to author a life care plan. In other words, the care LCPpro references in the data is care provided almost exclusively to Personal Injury Plaintiffs. An LCPpro employee, Shelene Giles, maintains the database.
The Northern District of Georgia recently found that an LCPpro expert could not offer opinions based on the LCPpro Database because it was confidential, so the jury could not “probe its functioning or accuracy.”
The LCPpro Database is based on a limited sample of data, despite being relied upon for conclusions about a broader population. The Court found that Civiello’s expert testimony must be excluded under Rule 702 to the extent that it relied upon the LCPpro Database.
Still, Plaintiffs made it “excruciatingly clear” that the LCPpro Database is not a methodology, but merely facts relied upon. But even assuming this is true, an admissible expert opinion is based on reliable methodologies and sufficient facts.
Pallavi Cherukupally
Like Civiello, Cherukupally is a life care planning expert employed by the expert witness firm, LCPpro. Plaintiffs authored a life care plan for Hanifon, and Plaintiffs planned to offer his testimony on Hanifon’s future medical care needs. Defendants filed a motion to exclude much of Cherukupally’s testimony.
Defendants argued that Cherukupally’s opinion lacked medical foundation because Cherukupally is not a certified specialist concerning every treatment she includes in her plan. They also argued that her opinions diverge from the recommendations made by Hanifon’s treating physician. Again, there is no requirement that an expert’s opinions agree with the recommendations of a treating physician. As with Civiello, Cherukupally possesses experience and qualifications as a physician and life care planner. Her opinions align, at least in part, with the recommendations of Hanifon’s treating physicians.
The Court will not exclude Cherukupally’s opinions in their entirety. The Court, however, will exclude Cherukupally’s opinions based on the LCPpro Database for the same reasons that it is excluding those of Civiello. Unlike Civiello, Cherukupally relied on her team to calculate averages and medians of data in the LCPpro Database. Although the parties make much of this fact, it does not alter the Court’s analysis.
Held
The Court granted in part and denied in part the Defendants’ motions to exclude the testimony of Caitlin E.A. Civiello and Pallavi R. Cherukupally.
Key Takeaway
Although the fact that a physician may be a board-certified specialist may warrant giving greater weight to that physician’s opinion on an issue in his or her area of expertise, there is no requirement that a physician be actively practicing, or practicing in a particular area of, medicine in order to qualify as a medical expert.
Plaintiffs cannot sidestep Rule 702 by rebranding the output of their opaque data selection process as “facts.”
A July 2022 vehicle collision in Gallup, New Mexico, triggered a lawsuit claiming severe injuries. Plaintiff Jimmy Woodall claimed that Defendant Curt Moeller made an “unsafe lane change,” forcing his tractor-trailer into a guardrail.
Woodall alleged that the crash caused him “severe and disabling injuries.” Woodall sued the Defendants, demanding medical expenses along with damages for physical and mental pain and suffering, physical impairment, loss of enjoyment of life, and lost wages.
To support his claim for these future medical care needs as related to the injury that he sustained, Woodall hired life care planner Todd Capielano. Capielano relied on the opinions of Woodall’s treating physicians to form his own assessment of the costs Woodall was likely to face. However, Defendants filed a motion under Daubert, challenging Capielano’s qualifications, reasoning, and methodology, as well as his reliance on the opinions of Woodall’s treating physicians.
Life Care Planning Expert Witness
Todd Capielano has a bachelor’s degree in rehabilitation counseling, which he obtained from Louisiana State University Medical Center, School of Allied Health Professions. He also has a master’s degree in human services counseling from the University of New Orleans. In 2015, Capielano obtained a certification for life care planning from the University of Florida.
Defendants contended that Capielano relied on the opinions of Woodall’s treating physicians to fill in the gaps in his expertise. Because Capielano is not a physician and is not qualified to diagnose Woodall’s conditions, the Defendants argued that he cannot form a life care plan.
However, the Court held that a life care planner’s reliance on the medical reports of other experts, even when the life planner does not have the same medical qualifications, does not make the life care planner unqualified.
Given that Defendants raised no other challenges to Capielano’s qualifications as a life care planner, the Court finds him qualified to testify as an expert regarding Woodall’s future medical expenses.
B. Reasoning andMethodology
Because Woodall’s treating physicians couldn’t quantify the extent of the aggravation to Woodall’s preexisting injuries, Defendants argued that Capielano’s life plan must be questionable. Additionally, they argued that this flaw in the life care plan “would mislead the jury and prejudice Defendants.”
According to the Defendants, the life care plan incorrectly includes all of Woodall’s future medical expenses, while they should only be liable for the portion caused by the vehicle collision.
However, Woodall responded that the alleged shortcomings in the underlying medical opinions used to create the life care plan are properly addressed on cross-examination, not by excluding the life care plan entirely. The Court agreed.
Given that the jury already will be tasked with determining the extent to which Defendants’ conduct exacerbated Plaintiff’s condition, the Court added that it will not unfairly prejudice the Defendants or mislead the jury to have the jury conduct the same inquiry with regard to what portion of future expenses is attributable to Defendants’ conduct.
Held
The Court denied Defendants’ motion to exclude the opinions of Plaintiff’s expert Todd Capielano.
Key Takeaways:
Defendants made no argument that Capielano’s qualifications are insufficient within the field of life care planning; rather, they appeared to argue that life care planning performed by a non-physician cannot support expert designation as a categorical matter.
The trial will almost certainly involve discussions and inquiries about the preexisting injuries Woodall had and the extent to which they may have been aggravated by the collision in question. That is, the jury will determine the extent to which Woodall’s injuries and present condition are attributable to Defendants’ conduct, if any.
Case Details:
Case Caption:
Woodall v. W. Express, Inc.
Doket Number:
1:23cv862
Court:
United States District Court for the District of New Mexico
This case concerns a motor vehicle accident involving the Plaintiffs, Vanessa Rivera and her minor child K.C., and Joseph Giordano, a driver for Defendants Safway Services, LLC and Brand Safway Services, LLC. The Plaintiffs asserted four counts of negligence against the Defendants and sought damages for the physical, emotional, and financial injuries they allegedly suffered from the accident.
Defendants filed a motion to exclude the opinions of Dr. Nikhil Thakur and Maryanne Cline. Basically, the Defendants contended that Thakur’s opinions are not founded on a satisfactory level of analytical rigor and are not the product of reliable principles and methods.
Moreover, Defendants added that Thakur’s conclusions regarding future medical treatment were speculative under Massachusetts law governing future damages. Based on these challenges, Defendants argued that excluding the expert testimony would mean Plaintiffs could not establish the necessary amount in controversy, requiring dismissal for lack of subject matter jurisdiction.
As for Cline, the Defendants’ only justification for moving to exclude her medical cost projections hinges on the preclusion of Thakur’s opinions.
Orthopedic Surgery Expert Witness
Dr. Nikhil Thakur is a Board Certified Orthopaedic Spine Surgeon, who specializes in Adult Reconstructive Spine Surgery. Previously, he was an Assistant Professor at SUNY – Upstate in Syracuse NY, where he performed over 300 elective and traumatic spine surgeries at a Level 1 Trauma Center each year. He also developed and ran the spine program at Upstate University at Community General. He continues to hold an adjunct professorship there and is actively involved in his stem cell lab, which he co-directs.
Thakur completed his spine fellowship at the prestigious Emory Spine Center in Atlanta, where he was involved in the care of the Atlanta Falcons. He also completed an orthopaedic trauma fellowship at Brown University – Rhode Island Hospital.
Maryanne Cline began her career in nursing in 1985 and specifically, rehabilitation nursing in 1991. She worked with traumatically injured clients at St. Anthony’s Medical Center in Crown Point, Indiana and in the Physical Medicine and Rehabilitation Inpatient Unit at The Cleveland Clinic.
Her varied clinical experience includes cardiology, medical/surgical, oncology and hospice. Cline has nearly ten years’ experience in the field of Life Care Planning, first as a research assistant then becoming a Certified Life Care Planner in 2012.
Defendants moved to exclude the testimony and opinions of plaintiffs’ experts, Thakur, an orthopedic spine surgeon, and Maryanne Cline, a certified nurse life care planner. They argued Thakur’s opinions were inadmissible under Federal Rule of Evidence 702. Defendants asserted his opinions lacked satisfactory analytical rigor and did not result from reliable methods.
Methodology
The Court evaluated Thakur’s methodology for forming his expert opinions. Thakur based his opinions on a physical examination of Rivera. Furthermore, he also took her medical history and interpreted medical records from her other healthcare providers. Ultimately, the Court found this approach constituted a reliable methodology under Federal Rule of Evidence 702.
The Court addressed the Defendants’ specific challenges to alleged “errors and omissions” in Thakur’s report. Specifically, Defendants argued certain points, like the fact that Thakur described the accident as a slip and fall instead of a motor vehicle accident or that Thakur did not reference any medical records contradicting his description of Rivera’s ongoing complications and his diagnosis of a C4-C5 disc herniation, warranted exclusion. Nevertheless, the Court held that these disputes over the factual underpinnings of the report did not evince a “significant ‘analytical ga[p]’” between Thakur’s opinions and the record evidence.
The Defendants’ only methodological quibble—that Thakur did not wait until two years after the accident to measure Rivera’s maximum medical improvement—is not a significant enough analytical issue to merit wholesale exclusion of his opinions.
The Defendants next argued that Thakur’s conclusions regarding Rivera’s future medical treatment are “speculative and precatory” and must be excluded under Massachusetts law governing recovery for future damages.
A Plaintiff, however, “is not restricted to compensation for suffering and expense” that “will inevitably follow,” because “suffering and expense following an injury cannot be foretold with exactness.” Instead, a Plaintiff may be compensated for expenses “which by a fair preponderance of the evidence [she] has satisfied the jury reasonably are to be expected to follow.”
Relevance
Under Federal Rule of Evidence 403, the Court determined Thakur’s opinions had significant probative value which was not substantially outweighed by the danger of unfair prejudice or jury confusion. Moreover, the Court rejected the argument that the jury would improperly rely on Thakur’s credentials alone or become confused by the “stark contrast” between Thakur’s report and Rivera’s deposition testimony.
Since Thakur’s opinions were admissible under Rules 702, 403, and Massachusetts law, the Court likewise found that Maryanne Cline’s medical cost projections should not be excluded. After all, Cline based her opinions on Thakur’s admissible findings and recommendations.
Held
The Court denied the Defendants’ motion to exclude the experts, Dr. Nikhil Thakur and Maryanne Cline.
Key Takeaways:
Ultimately, the “errors and omissions” highlighted by the Defendant did not evince a significant analytical gap between Thakur’s opinions and the record evidence.
Because the evidentiary value of Thakur’s opinions is not substantially outweighed by the risk of jury confusion or unfair prejudice, exclusion of his report and testimony is unwarranted.
Case Details:
Case Caption:
Rivera V. Safway Servs., LLC
Docket Number:
1:23cv12184
Court Name:
United States District Court for the District of Massachusetts
On August 05, 2022, Antoinette Marie Plummer (“Plaintiff” or “Plummer”) sued IFH Hospitality Group, LLC d/b/a WoodSprings Suites Atlanta Conyers and Rockdale Hospitality, LLC (“Defendants”) for premises liability. She claimed a kitchen cabinet fell inside her leased hotel room and caused her injuries. The Plaintiff claims negligence against the Defendants, along with other allegations. The lawsuit focuses on the Defendants’ alleged failure to properly install, inspect, and maintain the cabinets.
To support her damages claim, Plummer hired Steven Barnett to create a life care plan outlining her future medical needs and related costs. Defendants later moved to exclude Barnett’s testimony under O.C.G.A. § 24-7-702(b). They argued his opinions on life care plan were speculative and lacked a reliable basis.
Life Care Planning Expert Witness
Dr. Steven B. Barnett, DC, CBIS, A-CLCP, LCP-C, is a licensed chiropractor and certified life care planner. Barnett holds active chiropractic licenses in Georgia, Florida, and California. He has served in multiple advisory and consulting roles within the healthcare and medical device sectors.
He earned his Doctor of Chiropractic degree summa cum laude from Palmer College of Chiropractic in 1979, following a Bachelor of Science degree from Brooklyn College, City University of New York.
Defendants sought to exclude Barnett’s testimony, asserting that he lacked the medical expertise necessary to project future care needs. They emphasized that he failed to consult with Plaintiff’s treating physicians or base his recommendations on medical records or doctor assessments. Consequently, they argued that Barnett’s plan relied on speculation rather than scientific methodology, essentially creating an “abstract wish list” of future treatments.
Plaintiff countered by highlighting Barnett’s certification and extensive experience in life care planning. She maintained that Barnett’s methodology aligned with industry standards through his review of medical records and application of professional judgment.
Analysis
A. Qualifications
The Court determined Barnett qualified as a life care planner based on his knowledge, experience, and formal training. Barnett’s testimony regarding his life care plan is admissible if the plan is appropriately based on the medical records, opinions, and recommendations set forth in the medical files he reviewed and the recommendations of the treating physicians who treated the Plaintiff. Courts consistently acknowledge that certified life care planners are qualified to testify about the life care plans they develop, even if they lack a medical degree.
B. Reliability
However, the Court identified significant concerns regarding Barnett’s methodology. Specifically:
Because Barnett is not a medical doctor, nor a licensed or certified radiologist, he lacked the qualifications to recommend or prescribe any procedures or medications included in the Plaintiff’s life care plan.
Barnett acknowledged that he did not collaborate with any of Plaintiff’s treating physicians nor did he have them review and validate his life care plan and the related treatment recommendations.
Barnett admitted he wouldn’t always follow the treating physician’s advice and would make predictions even without medical record support. Consequently, despite never examining the Plaintiff directly and acknowledging his lack of qualification to recommend or prescribe treatments, Barnett’s life care plan includes multiple interventions not supported by medical records or the treating physicians’ recommendations.
While Barnett may be qualified to provide cost valuations, the Court held that those costs associated with treatments not prescribed or recommended by the Plaintiff’s treating physicians lack a proper foundation, making them unreliable and unhelpful for the jury. Presenting such testimony would improperly encourage the jury to base an award on a course of treatment that was never implemented, prescribed, or intended.
Barnett’s recommendations for non-medical expenses, such as household goods and services like cleaning and home health care, are admissible based on his expertise and the symptoms and conditions the Plaintiff reported to him. Additionally, the inclusion of ongoing medication in the life care plan is admissible because the Plaintiff’s medical records and her reports to Barnett confirm she was prescribed and taking this medication when the most recent plan was created.
Held
The Court granted in part Defendants’ motion to exclude the testimony of Barnett to the extent such testimony and/or the life care plan are not supported by recommendations from Plaintiff’s treating physicians.
Key Takeaway:
When offering expert testimony on future medical needs through a life care planner, courts expect the recommendations to reflect medical guidance—especially from treating physicians. A life care planner’s projections that lack corroboration from medical experts or records may be considered speculative and inadmissible under O.C.G.A. § 24-7-702 and the Daubert standard.
On July 29, 2022, a minor, Kamila, represented by her mother Keila Robles Figueroa (“Plaintiff” or “Robles”), filed a medical malpractice lawsuit against Dr. Juan C. Castañer (“Castañer”), Presbyterian Community Hospital, Inc. (“the Hospital”) and the Hospital Pediátrico Universitario (collectively “Defendants”). The allegations of negligence in this lawsuit are centered on the medical care providers’ treatment of Robles and her baby during her pregnancy, delivery, and the neonatal care of her premature infant. Robles claimed that the Defendants deviated from the established standards of care.
Defendants sought to exclude the testimony of Plaintiff’s life care planning expert witness, Jocelyn Holt.
Life Care Planning Expert Witness
Jocelyn Holt is a certified life care planner since 2017. She is also a Licensed Occupational Therapist in the states of Florida and North Carolina. She holds a bachelor’s degree in Science, occupational therapy with a minor in Health Science Education from the University of Florida. In addition, she holds a Life Care Planning Certification Course from the Institute of Rehabilitation Education and Training. Her experience since 2002 has been mainly as an Occupational Therapist, yet since 2018 she is the owner of and life care planner at Planning Hope, LLC in Gainesville, Florida.
According to Defendants, Holt’s limited experience with pediatric patients, particularly infants and children with complex medical conditions like autism and brain injury, and her inexperience in preparing a life care plan for a medical malpractice case is a significant factor in disqualifying her testimony. They added that Holt did not collaborate with or consult any medical experts, including neurologists, pediatricians, or other relevant specialists, before rendering her life care plan. Specifically, they maintained that she prepared her life care plan without consulting any of Kamila’s treating physicians. In addition, Defendants argued that since Holt relied on generalized data from the Center for Disease Control and Prevention (“CDC”) as to life expectancy— that is not specific to Kamila’s condition— and did not consult appropriate experts, her testimony does not meet the Daubert standards because it lacked a reliable foundation. Defendants also questioned Holt’s methodology and conclusions as speculative and unreliable.
Plaintiff’s Arguments
In response, Plaintiff submitted that the motion in limine constitutes an untimely dispositive motion disguised as a motion in limine. To this extent, Plaintiff argued that this District has already held that “a motion in limine to exclude the Plaintiff’s expert on grounds that his opinion is unreliable was not the appropriate tool to move for judgment on a particular claim.”
She argued that “an expert witness may base his opinion on reports, writings or observations not in evidence which were made or compiled by others, so long as they are of a type reasonably relied upon by experts in that particular field.”
Analysis
A. Holt’s Qualifications
Based on her credentials and extensive experience, the Court determined that Holt was qualified to testify as a life care planner.
B. Holt’s Life Care Plan for Keila Robles on behalf of Kamila Robles (“Life Care Plan Report”)
Holt’s life care plan report, dated April 18, 2023, indicates that “the recommendations are gathered from information provided by [Kamila’s] medical providers through records and evaluations, Keila Robles, evidenced [sic] base practices, as well as knowledge/experience from this life care planner.”
Moreover, during her deposition, Holt admitted that she did not consult any physician before she rendered the life care plan report. She also stated that the life care plan reflects her opinion, based on her assessment after speaking with Kamila’s mother and reviewing her medical record. To this extent she expressed that she interviewed Kamila’s mother on two different occasions.
Holt used the National Vital Statistic Reports and CDC data and indicated she was not an expert in life expectancy. To that extent, in her life care plan Report, Holt clearly stated that “opinions on the life expectancy tables are deferred to an appropriate expert.”
In addition, in page 15 of her life care plan report, Holt listed a series of references used to prepare her report, which included various website links including the CDC and other publications from the pediatric and medical field.
Foremost, and Plaintiff admitted as much, Holt will only testify as a life care planner, and not as to the applicable medical standards of care; the departures from the medical standards of care by Defendants in the treatment of Kamila; or the causal relationship between the alleged departure from the medical standards of care with Kamila’s damages.
Reliability and Methodology
While Defendants questioned the reliability of Holt’s life care plan because she did not consult Kamila’s physicians and attacked Holt’s conclusion because of her methodology and basis, the Court noted that in the first few pages of his report, Holt employed the standard methodology applied by life care planners which requires consideration of: (a) available medical records; (b) assessment of the individual; (c) assessment of the data and the individual’s needs, and (d) research of the costs within the relevant geographical area of items needed for the proper care of the patient. This appeared to be a sufficiently reasonable and reliable method for formulating a life-care plan.
The Court agreed with the Defendants to the extent that there might be some deficiencies in the strength of support for some of the recommendations in Holt’s life care plan report, but concluded that those issues go to the weight, and not the admissibility, of Holt’s testimony. Holt will be able to testify, and be subject to cross-examination, about her opinions in this case.
Held
The Court denied the Defendant’s motion in limine to exclude the testimony of Plaintiff’s life care planning expert witness, Jocelyn Holt.
Key Takeaway:
Despite challenges to Holt’s qualifications, the Court determined she was qualified to testify, given her extensive experience as a certified life care planner and licensed occupational therapist. Defendants argued that Holt’s failure to consult Kamila’s treating physicians and her reliance on generalized data from the CDC rendered her testimony unreliable. However, the Court noted that life care planners are not required to consult with treating physicians when formulating life care plans. Furthermore, the Court found Holt’s methodology to be reasonable and consistent with standard practices in the field. While the Defendants raised valid concerns about the strength of some of Holt’s conclusions, the Court concluded that these issues affected the weight of her testimony, not its admissibility. As a result, Holt was allowed to testify, and the Court permitted cross-examination regarding her opinions.
Case Details:
Case Caption:
Robles-Figueroa V. Presbyterian Community Hospital, Inc. Et Al
Doket Number:
3:22cv1361
Court:
United States District Court for the District of Puerto Rico
A district judge in Missouri allowed a emergency room physician, who also happens to be a certified life care planner, to diagnose the Plaintiff’s injuries and attribute them to the vehicle accident at issue.
This matter arises from a January 2021 vehicular collision. A United States Postal Service (“USPS”) employee, driving a delivery truck, rear-ended a Plymouth Barracuda driven by Plaintiff Steven Golden. In December 2022, Plaintiff filed this lawsuit pursuant to the Federal Tort Claims Act (“FTCA”) against the United States of America. He alleged that he suffered “significant physical injuries” as a result of the collision.
On January 19, 2024, Defendant filed a motion seeking to strike the testimony of Plaintiff’s expert, Mitchell Mullins. Defendant contended the expert’s testimony must be stricken because his report fails to satisfy Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure, and his opinions fail to satisfy the requirements of Rule 702 of the Federal Rules of Evidence.
Life Care Planning Expert Witness
Mitchell C. Mullins began his career in medicine in 1975 as a licensed practical nurse in Joplin, Missouri. He received his bachelor’s degree in Health Sciences from Tulsa University in 1983 and graduated from medical school at Kirksville College of Osteopathic Medicine and Surgery in 1987. While in medical school, he joined the United States Army and served as an active reservist until 1992.
Dr. Mullins completed his residency in emergency medicine at Mount Clemens Medical Center in Mount Clemens Michigan in 1990. He is board certified in emergency medicine and worked full time as an emergency physician in the St. John’s (now Mercy) Hospital system from 1990 until 2011. In 2011, he transitioned to part-time status to acquire Missouri Independent Medical Evaluations and he has been actively performing independent medical evaluations since that time.
In 2013, Dr. Mullins became certified as a Life Care Planner through the University of Florida and the International Commission on Health Care Certification and has been actively authoring Life Care Plans since that time.
Whether Mullins’ Report Satisfies the Rule 26 Requirements
Defendant contended that Mullins’ report did not contain the basis of, reasons for, and facts or data he considered in forming his opinions that (1) Plaintiff’s injuries were caused by the January 2021 vehicle accident, and (2) Plaintiff would require future medical care. Defendant conceded that Mullins’ report listed the medical records he reviewed and the range of motion tests. However, Defendant contended that Mullins “did not indicate how these records and tests” led to his opinions regarding Plaintiff’s injuries and future care.
In his report, Mullins stated that his “opinions and diagnoses were based on the medical records provided to him” and “the history and physical personally completed by” him. He further represented that his opinions were based “upon the information reviewed as set forth in his report,” which included “medical records, photographs, history from the patient, physical examination, billing, and the resource materials as set forth in his report and life care plan.” According to Mullins, “medical professionals relied upon medical records, patient history, physical examination, and other resources . . . in forming medical opinions as part of the treatment, diagnosis, determining the cause of injuries, extent of injuries, and the future treatment of injuries.”
Based on its review of Mullins’ report, the Court found that the Rule 26(a)(2)(B) requirements had been met. That is, Mullins’ report identified the information he considered in forming his opinions that Plaintiff’s injuries were caused by the vehicle accident at issue in this matter, and that Plaintiff would require future medical care.
Usefulness to Finder of Fact
Defendant maintained Mullins’ report and his trial testimony were not useful to the finder of fact. In support, Defendant stated Mullins’ report, which was rendered in January 2022, is two years old, has not been updated, and since that time, Plaintiff’s leg was amputated as result of an unrelated motorcycle accident. Defendant also argued Mullins’ life care plan was “irrelevant” because Plaintiff will not have surgery, which Mullins recommended.
Upon reviewing Mullins’ report, the Court finds his testimony may be helpful. Rule 702 is satisfied where expert testimony advances the trier of fact’s understanding to any degree.
The Court will consider Mullins’ opinions and testimony, the factual bases and reasons for his opinions, assess his credibility, and afford whatever weight to his opinions as it sees fit.
Dr.Mullins’ Qualifications
Defendant maintained Mullins was not qualified to render his opinions in this matter. More specifically, Defendant asserted Mullins, who was an emergency room physician, was not qualified to diagnose Plaintiff’s injuries, attribute an injury to particular event, or opine on future medical care.
Mullins may qualify as an expert based on his “knowledge, skill, experience, training, or education.” According to Mullins’ curriculum vitae, he received his Doctor of Osteopathic Medicine and surgery in 1987. Between 1987 and 2019, he practiced emergency medicine. Since 2011, Mullins has owned his own business performing independent medical evaluations and life care plans. And since 2012, Mullins has been a certified life care planner through the University of Florida.
Based on the information in Mullins’ curriculum vitae, the Court finds he is qualified to render medical opinions in this matter. The Eighth Circuit has observed “gaps in an expert witness’s qualifications or knowledge generally go to the weight of the witness’s testimony, not its admissibility.”
Reliable Principles and Methodology
Defendant moved to strike Mullins’ testimony because his report “did not bear indicia that it is a product of reliable principles and methodology nor reflect a reliable application of such to the facts of this case.”
More specifically, Defendant argued Mullins (1) “did not factor into his analysis the effect of Plaintiff’s injuries from an unrelated motorcycle accident,” (2) conducted the physical examination of Plaintiff remotely, (3) failed to account for improvement in Plaintiff’s condition, (4) did not provide any support for his conclusion that the January 2021 collision caused injury to Plaintiff’s left shoulder, (5) did not include an analysis of the effect of Plaintiff’s failure to mitigate his injuries or non-compliance with treatment, and (6) failed to address Plaintiff’s pre-existing injuries.
Although Defendant maintained that it questioned the reliability of the principles and methodologies used by Mullins, the examples it cited in support of its argument did not pertain to principles and methodologies.
Instead, Defendant’s examples relate to the factual bases (or lack thereof) in Mullins’ report. As discussed above, “the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility.” And Defendant will have the opportunity cross-examine Mullins on those issues.
Held
The Court denied Defendant’s motion to strike Plaintiff’s expert Mitchell Mullins’ testimony.
Key Takeaways:
To determine whether a Rule 26 violation is justified or harmless, courts consider several factors including (1) prejudice or surprise to the opposing party, (2) the ability of the party to cure the prejudice, (3) the extent to which allowing the testimony would disrupt the trial, and (4) the moving party’s bad faith or willfulness. Based on its review of Mullins’ report, the Court found that the Rule 26(a)(2)(B) requirements had been met.
The Eighth Circuit has held “the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility.” If the factual basis or methodology utilized by an expert is disputed, the Court may exclude an expert when the expert’s opinion is “so fundamentally unsupported . . . it can offer no assistance to the jury.” Upon reviewing Mullins’ report, the Court finds his testimony may be helpful considering Rule 702 is satisfied where expert testimony advances the trier of fact’s understanding to any degree.
With regard to reliability and relevancy determinations, courts may consider “whether the theory or technique can be or has been tested,” “whether the theory or technique has been subjected to peer review or publication,” “whether the theory or technique has a known or potential error rate and standards controlling the technique’s operation,” and “whether the theory or technique is generally accepted in the scientific community.” Defendant argued that it questioned the reliability of Mullins’ principles and methodologies. However, the examples provided by Defendant in support of this argument did not actually pertain to principles and methodologies but rather focused on the factual bases (or lack thereof) in Mullins’ report. As discussed above, “the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility.”
The first-party lawsuit originated from a collision involving multiple vehicles on May 2, 2017. Plaintiffs Steve Watkins (“Mr. Watkins”) and Lisa Watkins (“Ms. Watkins”) were traveling in a vehicle in Harris County, Texas, when they were struck from behind and pushed into the vehicle in front of them. They were in the process of taking Ms. Watkins for a medical procedure. The Watkins asserted that another driver, Lucas Love, was at fault for the accident, and that he was “underinsured.” Mr. Watkins suffered a broken thumb. Mr. Watkins sought underinsured motorist (“UIM”) coverage benefits from Hartford Accident and Indemnity Company (“Hartford”) for his alleged injuries, and Ms. Watkins asserted a bystander claim.
The Watkins had designated Dr. Shelly N. Savant, MD, CLCP, to provide expert testimony and a life care plan for Steve Watkins. Savant also purported to opine regarding Mr. Watkins’s prognosis, diagnostic and therapeutic necessities, and the alleged causal connection between his injuries and the accident. She had provided a life care plan, which included a plan for future medical treatment, an opinion on causation, opinions regarding the diagnosis and treatment history of Steve Watkins, and an estimate of the costs of purported future medical treatment.
Hartford filed a motion to exclude the testimony of Shelly Savant, claiming Savant was not qualified to testify as an expert on causation because her opinions were not based upon a reliable foundation and were nothing more than speculation.
Hartford also contended that Savant’s disclosure failed to comply with Federal Rule of Civil Procedure Rule 26 because the Watkins had not provided the facts or data considered by Savant in arriving at her opinions in this case. According to Hartford, without reliable factual data, Savant’s testimony contained analytical gaps and was speculation.
Life Care Planning Expert Witness
Shelly N. Savant is a board-certified neurologist and psychiatrist practicing in the private sector since 2005. As a neurologist and psychiatrist, she has the specialized skills and knowledge to diagnose and provide medical treatment for a diverse range of problems, including neurological and psychiatric emergencies as well as long-term care of chronic illnesses.
She is also a certified life care planner and, as part of her private practice, she performs medical evaluations (interviews and/or examinations) for the purpose of providing additional medical opinions relating to diagnoses, prognosis, diagnostic and therapeutic necessities, and causation in the fields of neurology and psychiatry as well as develop life care plans for evaluees at the request of the referral sources.
Discussion by the Court
Moreover, Hartford argued that Savant’s testimony and purported life care plan were at odds with Mr. Watkins’ advice from medical providers and at odds with his own behavior. For instance, Dr. Varon, Mr. Watkins’s surgeon, did not include any recommendations for long-term medications, nor did he provide a referral for pain management in any of his records. Yet, Savant found a need for Mr. Watkins to undergo physical therapy, occupational therapy, blood tests, MRIs, x-rays, long-term pain medication, orthopedic surgery, primary care, pain psychology evaluations, and steroid injections for the rest of his life despite the fact that Mr. Watkins had not sought any of the treatments that Savant stated would be necessary since the accident on May 2, 2017.
Mr. Watkins noted that Savant’s deposition had not yet taken place at the time of Hartford’s motion to strike, and that any flaws in Savant’s initial disclosure did not prejudice Hartford because Hartford was still able to hire an expert and provide a rebuttal report. Mr. Watkins maintained that Savant was qualified and had reliably applied the life planning principles and methodology to this case. She was both a board-certified neurologist and psychiatrist and a Certified Life Care Planner, had substantial post-graduate medical training in life care planning, and was a member of the International Association of Rehabilitation Professionals.
The Court found that excluding Savant’s testimony was not the proper remedy for the Rule 26 deficiencies alleged by Hartford because it had adequate notice of the facts relied upon by Savant and was able to designate a counter-expert.
Assuming that Watkins could demonstrate that Savant applied her expertise to case specific-facts, the Court declared it best to resolve Hartford’s objections through cross-examination at trial.
Held
The Court denied Hartford’s motion to exclude testimony of Plaintiff’s expert Shelly Savant.
Key Takeaway:
The Court does not consider a Rule 26 deficiency if the opposing party had adequate notice of the facts the expert in question relied upon, especially to the extent of being able to designate a counter-expert.
Case Details:
Case Caption:
Watkins Et Al V. Hartford Accident And Indemnity Company
Plaintiffs Briana Leakas and her minor son, D.L., along with Theodore Leakas, Leakas’ spouse and D.L.’s guardian ad litem, initiated a legal action in the Monterey County Superior Court alleging personal injuries resulting from toxic mold contamination in a home they leased from Defendants, Monterey Bay Military Housing, LLC. The Plaintiffs claimed they sustained these injuries while residing in the U.S. Army Garrison Presidio of Monterey from approximately June 2019 to May 2020. The Defendants, citing the occurrence of the events in a federal enclave, removed the case to the United States District Court for the Northern District of California.
After the Court granted the Defendants’ motion to dismiss the complaint with leave to amend, the Plaintiffs filed an amended complaint, which served as the operative pleading. This amended complaint asserted ten state and common law claims for relief, including negligence, nuisance, negligent misrepresentation, negligent infliction of emotional distress, breach of implied warranty of habitability, breach of implied covenant of quiet use and enjoyment, gross negligence, premises liability, constructive (wrongful) eviction, and fraud—concealment.
Rebecca Czarnik, a registered nurse retained by the Plaintiffs solely for providing a projection of future medical costs, based her testimony entirely on the proposed testimony of another expert, David Ross, concerning Leakas’ long-term care and life-care planning needs. Defendants sought to exclude Czarnik’s testimony, arguing that it did not meet the admissibility requirements of Rule 702 of the Federal Rules of Evidence. They claimed her cost projections were unreliable due to mathematical and geographical errors and because she did not adjust amounts to present value. Plaintiffs opposed the motion, arguing that Defendants’ objections to Czarnik’s calculations were matters concerning the weight, rather than the admissibility, of her proposed testimony.
Life Care Planning Expert Witness
Rebecca Czarnik, RN, MS, CNLCP, also known as Becky Czarnik, is a Registered Nurse with an exemplary 44-year career encompassing various healthcare settings, including hospitals, hospital administration, teaching in university nursing programs, home care, private medical office practice, and the insurance industry. She holds active and unrestricted nursing licenses in both Nevada and California. Additionally, Czarnik is a Certified Nurse Life Care Planner, equipped to serve as both a care expert and a cost of care expert. In her role, she determines the future care needs of individuals by establishing patterns of past, present, and future care, while also identifying the associated costs of those services. She currently holds the position of CEO/Owner of Sierra Nurse Consultants. Czarnik earned her Bachelor of Science in Nursing from St. Olaf College, following her, Master of Science in Nursing from The Ohio State University.
Neuropsychiatry Expert Witness
Dr. David Edward Ross, M.D., holds a distinguished position as the Director of the Virginia Institute of Neuropsychiatry, serves as the CEO of NeuroGage LLC, and holds the role of Clinical Assistant Professor at Virginia Commonwealth University. He boasts board certification in General Psychiatry, Neuropsychiatry, and Brain Injury Medicine. Ross completed both medical school and residency in psychiatry at Virginia Commonwealth University, followed by a fellowship in neuropsychiatry at the Maryland Psychiatric Research Center, University of Maryland. His expertise lies in the treatment and research of patients with traumatic and other types of brain injury. He identifies his major career interests as encompassing traumatic brain injury, MRI brain volume measurement, acquired brain injury, mold-related illness, and other neuropsychiatric disorders.
Discussions by the Court
Defendant pressed for the exclusion of Czarnik’s report for a number of reasons. For instance, Defendants alleged that Czarnik’s calculations were based not on her independent review of Plaintiff’s medical records, but simply on a laundry list of future care items that another of Plaintiffs’ experts, Ross, provided in his report. Czarnik failed to consider, offer opinions on, or factor into her calculations what items of future care on the list provided by Ross were due to Plaintiff’s myriad and undisputed pre-existing conditions (which pre-dated her tenancy at the subject property) and her various non-mold related genetic conditions (Ehlers Danlos Syndrome and its associated illnesses) versus what was actually due to her claimed symptoms or ailments allegedly stemming from living at the Property. Czarnik’s opinion was flawed in that her report used the wrong geographical location for the Plaintiff in reaching her calculations because Czarnik priced her future care costs based on Monterey, California, despite Plaintiff residing in rural North Carolina. Czarnik did not review a single medical record of Plaintiff prior to reaching her opinions as to the reasonable value of Plaintiff’s “future medical care.” The sole basis for her opinions was her review of the report prepared by another expert in this matter, David Ross. Defendants alleged that she did not even consult with Ross or any of Plaintiff’s treating doctors as to Ross’ diagnosis and treatment plan. Even though Czarnik characterized her opinions in this matter as a “Medical Cost Projection” as opposed to a “Life Care Plan”, her methodology did not attempt to establish a medical foundation through which the future treatment and care will be necessary, which is the requisite standard. Czarnik failed to even properly value the purported costs of such care considering her report contained a number of mathematical errors which grossly overstated the cost of the purported future care needs of Plaintiff.
David Ross, a board-certified neuropsychiatrist, examined Leakas on June 28, 2023, and reviewed her medical records and other documents. Ross concluded that Leakas developed an acquired brain injury due to biotoxin (mold) exposure at the home the Plaintiffs leased in Monterey, caused by CIRS (Chronic Inflammatory Response Syndrome), a mold-related illness.
Czarnik was retained solely to provide a calculation of future medical costs based on Ross’ proposed testimony regarding Leakas’ long-term care and life-care planning requirements, yet in a separate order the Court held that Ross was not qualified to testify regarding Leakas’ long-term care or life-care planning needs. The Court noted that Plaintiffs presented no evidence or argument in response, and failed to demonstrate that Ross’ proposed testimony regarding Leakas’ long-term care or lifecare planning needs met the admissibility requirements of Rule 702. Accordingly, Czarnik’s proposed testimony was also excluded by the Court.
Held
The Court granted the Defendants’ Daubert motion to exclude testimony of Rebecca Czarnik.
The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.
Key Takeaways
Czarnik’s expert testimony came under scrutiny for various shortcomings. Her report was heavily criticized for containing numerous mathematical errors and using an incorrect geographical location for the Plaintiff’s calculations, which significantly skewed the projected future care costs. Moreover, Czarnik failed to conduct an independent review of the Plaintiff’s medical records, basing her calculations solely on a list of future care items provided by another expert, Dr. Ross. This lack of comprehensive analysis led to concerns about the accuracy and reliability of her conclusions. Additionally, Czarnik did not adequately consider the Plaintiff’s pre-existing conditions or consult with Ross or the plaintiff’s treating doctors, further undermining the credibility of her opinions. On the other hand, Ross, a board-certified neuropsychiatrist, diagnosed the Plaintiff with an acquired brain injury attributed to mold exposure, forming the basis for the Plaintiff’s claim for future medical costs. However, the Court found Ross unqualified to testify regarding the Plaintiff’s long-term care and life-care planning needs, casting doubt on the foundation of Czarnik’s calculations. The Court’s assessment also raised questions about the admissibility of expert testimony under Rule 702, as Plaintiffs failed to demonstrate that Ross’ proposed testimony met the requisite standards. Overall, the expert testimony presented significant challenges and uncertainties in the legal proceedings.
Plaintiff Shawn Martin suffered serious injuries from the rear-end motor vehicle collision with Defendant Valenzuela’s trailer, which occurred on I-84 on Cabbage Hill outside Pendleton, Oregon, amid adverse weather conditions. Defendants Luis Valenzuela and Baljinder Singh were operating commercial motor vehicles, while Defendant Joel Hannu was driving a large pick-up truck. The Plaintiff, Shawn Martin, operated a pick-up truck and had a passenger, Dylan Smith, at the time of the incident.
Defendants Valenzuela and Singh encountered a scene with multiple vehicles blocking the highway upon their arrival. As Defendant Valenzuela was slowing down for traffic, Defendant Singh, along with a Black Ford Escape, collided behind him, forcing Valenzuela out of his lane. Consequently, Valenzuela’s semi-truck was struck by Defendant Singh and/or the Ford Escape. Despite managing to bring his truck to a complete stop on the highway exit ramp without colliding with other vehicles, Valenzuela couldn’t proceed forward due to previous collisions blocking the road. Additionally, Defendant Singh’s tractor-trailer obstructed the exit. In a matter of seconds, the Plaintiff, Shawn Martin, collided with the rear of Valenzuela’s trailer.
The Plaintiff entered the highway from the onramp immediately preceding the exit where the accident occurred. At that location, an Oregon Department of Transportation (ODOT) worker flagged down the Plaintiff, warning of an accident or a stalled vehicle in the fast lane about two miles down the road. Although the Plaintiff noticed some fog upon entering the highway, the weather conditions worsened just before the accident, reaching “zero visibility.” Despite being aware of the stalled vehicle ahead and facing poor visibility, multiple witnesses, including the Plaintiff’s passenger, had confirmed the Plaintiff’s speed at 45 miles per hour just before colliding with the back of Valenzuela’s stopped trailer. Plaintiff sustained serious injuries in the accident. Plaintiffs Shawn Martin and Karen Martin brought a negligence action against multiple Defendants, stemming from a multi-vehicle accident.
The Plaintiff hired a trucking expert, Lew Grill, with the intention of obtaining testimony on Federal Motor Carrier Safety Administration (FMCSA) regulations. Grill’s evaluation focused on determining whether the Defendants’ drivers had violated FMCSA regulations.
The final deadline for expert disclosures had been known to the parties for months. By Order dated April 10, 2023, the Court reset the deadline for expert disclosures to July 18, 2023, and rebuttal expert disclosures to August 8, 2023. On July 18, 2023, the Plaintiffs disclosed and produced reports from their two purported primary experts, Lew Grill ( Trucking Expert) and Sharla Paso (Medical Billing Expert). On August 8, 2023, the date for rebuttal reports, Plaintiffs submitted a four-page “rebuttal” report from Paso and newly disclosed expert Michele Cook (“Paso/Cook Report”) that contained the primary opinions alluded to but not included in the original Paso Report.
Defendant Valenzuela moved to exclude the expert report of Plaintiffs’ trucking expert, Lew Grill (“Grill”), under Federal Rule of Evidence 702. The basis for Valenzuela’s motion was the assertion that Grill’s opinion, as presented in his expert report, lacked sufficient reliability, and his methodology was flawed due to a failure to consider adequate facts and data. Additionally, Defendant Singh joined in the motion. Defendant Singh also moved to strike the expert reports of Passo/Cook due to Plaintiffs’ failure to adhere to their expert discovery obligations under Fed. R. Civ. P. 26(a)(2)(B).
Trucking Expert Witness
Lew Grill, an expert witness in motor fleet safety, accident investigation, and traffic accident reconstruction, has a comprehensive background in the trucking industry. He has over 50 years’ experience as a truck driver, independent trucker, truck driver training instructor, and consultant for motor carriers and truck driving schools. Grill holds licenses, certifications, and qualifications as a Commercial Motor Vehicle (CMV) driver with endorsements for hazardous materials, tank truck, double & triple trailers, passenger carriage, and school bus. Currently, Grill is the Founder and Chief Visionary Officer (CVO) at The Legacy Corporation International, and since March 1990, he has been the Founder/CVO, Author, Publisher, A/V Producer, and trucking consultant at Atlantic Pacific Resource Group, Inc.
Medical Billing Expert Witness
Sharla Paso, DNP, RNC-OB, Women’s Health CNS, has a Doctorate in Nursing Practice (DNP) from the University of Washington, and has 25 years of experience in various nursing areas including ICU, medical surgical, dialysis, and all areas of obstetric/newborn nursing. Sharla holds certifications in obstetric nursing and as a Life Care Planner. Paso is currently the Owner of Medical Vocational Planning, LLC, and is the Founder of Listen Line Community Services. She obtained her Associate Degree from the College of St Catherine-MPLS and then earned her B.S.N. from Walden University.
Life Care Planning Expert Witness
Michele Cook, RN, MA, ABVE has been a Registered Nurse, Medical Case Manager and Vocational Rehabilitation Counselor for over 30 years. She is also a Life Care Planner for over 15 years. She obtained her R.N. from Los Angeles County College of Nursing and Allied Health and then earned her M.A. from Marylhurst University. Cook is currently the Owner/Operator of Medical Vocational Planning, LLC, which serves the attorney clients in areas of medical negligence, personal injury, motor vehicle accidents, product liability, wrongful death, domestic relations, and workers’ compensation.
Discussion by the Court
Federal Rule of Evidence 702 outlines the criteria for admissibility of expert testimony, requiring qualification, reliability, and relevance. The proponent bears the burden of establishing these requirements by a preponderance of the evidence. The Court acts as a gatekeeper, ensuring the testimony is both relevant and reliable. The relevancy bar is low, demanding logical advancement of a material aspect of the case. Testimony is reliable if rooted in the knowledge and experience of the relevant discipline, with a flexible inquiry allowing broad discretion to trial Courts. The reliability test focuses on the methodology’s soundness, not the correctness of conclusions, and shaky but admissible evidence should be addressed through cross-examination and contrary evidence rather than exclusion.
Lew Grill, a trucking expert retained by the Plaintiffs, provided an expert opinion where he formulated the opinion that both Defendants Singh and Valenzuela were negligent in their operation of their vehicles and failed to adhere to the Federal Motor Carrier Safety Administration (“FMCSA”) regulations. His opinion was based on the review of several documents, including the Oregon State Police Traffic Crash Report, Oregon State Police Incident Report, Driver Statements, Photos of the accident scene, and Deposition Transcripts for Plaintiff Shawn Martin, witness Dylan Smith, and Defendant Singh.
In their motion to exclude Grill’s testimony, the Defendants pointed out that Grill had not reviewed testimony from witnesses Joel Hannu and Sam Glerup or Defendant Valenzuela, which would have provided information on the conditions immediately preceding the accident. Additionally, the Defendants noted that Grill did not consider testimony from multiple witnesses regarding the weather at the time of the accident or the conditions of the road. The Defendants argued that reviewing this evidence was crucial for any expert to form a reliable opinion. Due to Grill’s failure to examine this evidence, the Defendants asserted that his opinion was unreliable and should be excluded. In response, the Plaintiffs contended that “material facts (time and place of the accident, parties, etc.) are common and generally accepted among all expert reports” and that this case was “relatively simple,” requiring the review of only basic evidence.
Arguments regarding whether Grill should have reviewed additional documents in formulating his opinion were considered by the Court to pertain to the weight, rather than the admissibility, of Grill’s testimony. The Court emphasized that the requirement for expert testimony to be based on “sufficient facts or data” involves a quantitative analysis rather than a qualitative one. The Court clarified that this requirement doesn’t authorize the exclusion of expert testimony based on the Court’s belief in one version of the facts over another. The Court cited Bluetooth SIG, Inc. v. FCA US LLC, 468 F. Supp. 3d 1342 (W.D. Wash. 2020), stating that the factual basis of an expert opinion goes to the credibility of the testimony, not its admissibility. Therefore, any issues concerning the materials deemed more appropriate for the expert to consult were deemed matters of weight, not admissibility, of the expert’s testimony.
The Court concluded that Grill’s failure to review all available evidence, including what the Defendants deemed essential, did not render his decision unreliable, at least under Rule 702. While the Defendants presented persuasive arguments highlighting deficiencies in Grill’s analysis due to his limited review of the evidence, on the other hand the Defendants conceded that the basic facts of the accident were not in dispute. As such, the Court determined that Plaintiffs were entitled to have their expert formulate an opinion based on “relatively simple” facts without rendering the opinion inadmissible under Rule 702. Therefore, the Court denied the Defendants’ motions to exclude Grill’s testimony.
Under Rule 37(c)(1), failure to disclose information required by Rule 26(a) may result in exclusion of evidence unless the failure is justified or harmless. To overcome Rule 37’s preclusive effect, a party must show substantial justification or harmlessness. The burden lies on the party facing sanctions to prove harmlessness. Factors guiding the Court in this determination include prejudice, the ability to cure the prejudice, trial disruption likelihood, and any bad faith or willfulness in nondisclosure. Exclusion of expert testimony is not appropriate if other less severe sanctions are available, especially when harm can be easily remedied.
On the deadline for expert disclosures, which was July 18, 2023, the Plaintiffs submitted a purported expert report from medical billing expert Sharla Paso. The two-page report asserted that the cost of Plaintiff Martin’s medical treatment was reasonable and necessary. However, the report lacked a basis for this opinion and mentioned that Paso was recently hired and in the process of reviewing the records. Subsequently, on the deadline for rebuttal expert disclosures, which was August 8, 2023, the Plaintiffs submitted a combined rebuttal expert report from Paso and her associate, Michele Cook. This report contained the complete opinions regarding the reasonableness of Plaintiff Martin’s medical treatment.
In their motion to strike, the Defendants argued that the reports should be excluded because the initial Paso report did not contain the required information under Fed. R. Civ. P. 26(a)(2)(B), and the Paso/Cook report was not an appropriate subject for rebuttal testimony. The Defendants sought to strike the Paso/Cook reports and prohibit the testimony of these experts at trial. During oral argument, the Plaintiffs conceded that Paso’s initial expert report did not contain the required information as per Rule 26(a)(2)(B), and the opinions in the Paso/Cook report were not a proper subject for rebuttal testimony. Citing Grove City Veterinary Serv. v. Charter Practice Int’l., 3:13-cv-2276-AC (D. Or. Apr. 19, 2016), in this case it was acknowledged that if the purpose of expert testimony is to contradict an expected portion of the other party’s case-in-chief, then the witness is not a rebuttal witness. Plaintiffs attributed this error to counsel’s unfamiliarity with Rule 26’s expert disclosure requirements. Thus, it is undisputed that Plaintiffs failed to comply with Rule 26.
Exclusion of the experts was deemed unwarranted in this case. Any potential prejudice to the Defendants was considered easily curable by requiring Paso and/or Cook to undergo expert depositions, at the Plaintiffs’ expense. Additionally, Defendants were allowed to supplement their rebuttal reports if deemed necessary. Given that no trial date was set, both parties had ample opportunity to address and remedy any prejudice in advance of trial. Moreover, the Court noted that there is no evidence indicating bad faith or willfulness in the delayed disclosure of evidence. Consequently, the Defendants’ motion to strike the expert reports was denied, and instead, Plaintiffs were ordered to facilitate depositions for Paso and Cook, at their expense. Defendants were permitted to supplement their expert reports after these depositions.
Held
The Court denied the Defendants’ motions to exclude the testimony of Lew Grill and also denied the Defendant’s motion to strike the expert reports of Passo/Cook. The following orders were issued:
1. Within fourteen (14) days from the date of the order, Plaintiffs were directed to submit separate and complete expert reports for either or both Paso and Cook.
2. Defendants were granted permission to depose Paso and/or Cook, with Plaintiffs being responsible for any expert fees associated with the deposition if conducted.
3. Defendants were allowed to supplement their rebuttal expert reports if deemed necessary.
The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.
Key Takeaways
In the presented case, Plaintiffs brought a negligence action against Defendants following a multi-vehicle accident on I-84. The Plaintiff hired a trucking expert, Lew Grill, to provide an opinion on the Defendants’ alleged negligence in operating their vehicles and violating Federal Motor Carrier Safety Administration (FMCSA) regulations. Defendants moved to exclude Grill’s testimony, arguing it lacked reliability due to a limited review of evidence. The Court, however, deemed Grill’s failure to consider additional documents as a matter concerning the weight, not admissibility of his testimony, and denied the motion. Another dispute arose the Plaintiffs’ failure to comply with their expert discovery obligations. The Court refrained from excluding the testimony in question, instead directing the concerned experts to submit to expert depositions, at Plaintiffs’ expense. These decisions underscore the importance of complying with disclosure rules and suggest that Courts prioritize addressing evidentiary issues through less severe sanctions when possible.
