Expert Witness Profiler

Tag: Injuries

  • Lost Earning Capacity Opinions of Vocational Rehabilitation Expert Witness Fails to Satisfy Rule 702

    Lost Earning Capacity Opinions of Vocational Rehabilitation Expert Witness Fails to Satisfy Rule 702

    A district judge in Colorado limited the opinion of a vocational expert  because the injuries were obscure and a loss of future earnings capacity could not be deduced from the same.

    This case arises from a car accident that occurred on July 7, 2020, between Plaintiff and a person who was operating a commercial semi-truck while in the course and scope of his employment with Defendant. The semi-truck collided with Plaintiff’s vehicle causing Plaintiff to suffer various claimed physical and cognitive injuries. Plaintiff has sued Defendant under theories of respondeat superior and agency liability. Defendant admitted the semi-truck driver was operating the vehicle within the course and scope of his employment at the time of the accident and has admitted liability. The parties, however, disputed the nature and extent of Plaintiff’s alleged injuries, damages, and losses.

    In his Rule 26(a)(2)(B) disclosures, Plaintiff Timothy Korbe disclosed Daniel B. Best, a certified vocational rehabilitation counselor, to offer opinions regarding his calculations of Plaintiff’s past and future wage losses. Defendant Doug Andrus Distributing LLC filed a motion to preclude these opinions under Federal Rule of Evidence 702.

    Vocational Rehabilitation Expert Witness

    Daniel B. Best is a Certified Rehabilitation Counselor (CRC) with a Master of Arts in vocational rehabilitation counseling and vocational evaluation that he obtained in 1989. For numerous years of his career he has engaged in providing services which include labor market analysis, job analysis, counseling, earning capacity, vocational exploration, and job development and placement. These services sometimes require Best to analyze a worker’s earnings at different points in time.

    Throughout his career, since 1989, Best has testified as an independent vocational expert in over 10,000 Social Security disability hearings and has been qualified as an expert in vocational rehabilitation counseling and vocational evaluation in over 250 workers compensation cases, approximately 20 to 25 divorce proceedings, and over 50 personal injury and other cases throughout the state courts of Colorado, administrative courts, and this United States District Court.

    Get the full story on challenges to Daniel Best’s expert opinions and testimony with an in-depth Challenge Study. 

    Discussion by the Court

    The Defendant argued that Best was not qualified to opine on Plaintiff’s past wage loss, his methodology was unreliable, and his opinions would not assist the fact finder. 

    Best’s Past Wage Loss Opinion

    Considering his education, training, and experience, the Court found Best qualified to opine on Plaintiff’s past wage loss. But the Court noted the Defendant’s concern over his methodology for calculating that loss.

    Best calculated Plaintiff’s past wage loss using simple math, considering a one year period when Plaintiff was placed on medical leave from work purportedly due to his accident-related injuries. He took the amount Plaintiff made the prior year—$85,463—and opined that “during the year off work . . . I believe [Plaintiff] lost $85,463 minus any wage replacement provided to him.”

    The Court held that grounding in reliable facts and tie to Best’s expertise is what saved the opinion.

    Plaintiff’s social security statement showed he made $85,463 in 2019. The accident in this case occurred on July 6, 2020. Plaintiff’s employer placed him on medical leave in August 2020 due to the severe headaches and “sensory overload” he experienced when he tried to return to work. Plaintiff eventually returned from leave and worked 40 hours a week beginning July 6, 2021.  These are reliable and verifiable facts upon which Best based his past wage loss opinion. And while his methodology for calculating those damages is uncomplicated, Rule 702 neither expressly nor impliedly requires an expert’s mathematical calculations to be complex. To sum it up, the Court refused to strike Best’s opinions regarding Plaintiff’s past wage loss.

    Best’s Lost Earning Capacity Opinion

    Best Lacked Qualifications to Testify about Plaintiff’s Lost Earning Capacity

    The Court held that Best’s qualifications to render an opinion on Plaintiff’s lost earning capacity were suspect. Black’s Law Dictionary defines “lost earning capacity” as “a person’s diminished earning power resulting from an injury.” While Best has experience calculating wage losses, there is little in his background to suggest his experience determining a person’s earning capacity, determining the extent of a reduction in that capacity, and then placing a monetary value on that diminution. 

    Best testified that calculating economic losses falls within his expertise from only “a basic standpoint.” 

    Best’s calculation of these damages is not based on sufficient facts or reliable principles or methods

    Best’s opinion here is not based on any medical professional opining that it is probable Plaintiff will be unable to work in the future due to his accident-related injuries. It is instead based on the Plaintiff’s view that he “likely” will have to stop working before retirement age. 

    The Court, citing Parra v. Atchison, Topeka & Santa Fe Ry. Co., 787 F.2d 507, 509 (10th Cir. 1986), held that where the injury is obscure, a loss of future earnings capacity must be established by expert medical testimony in order to avoid pure speculation on the part of the jury.

    Plaintiff’s injuries are of the obscure variety. His injuries involve diagnoses of traumatic brain injury, sequelae, mild neurocognitive disorder, post-concussion syndrome, and he suffers from cervicogenic headache, posttraumatic headache of an unspecified chronicity pattern, visual disturbance, and other issues. 

    Because Best’s lost earning capacity calculation was not based on any factual predicates from a medical expert regarding the extent of his injuries and their probable effect on his ability to work at all in the future, the Court held that Best’s opinion in this regard failed to satisfy Rule 702.

    Held

    The Court granted in part and denied in part the motion to strike Daniel Best’s opinions. Plaintiff met his burden to show that Best’s past wage loss opinions satisfied the requirements of Fed. R. Evid. 702, but he did not meet his burden to show that Best’s lost earning capacity opinions did the same.

    Key Takeaways:

    • There is no implicit requirement in Fed. R. Evid. 702 for the proffered expert to make complicated mathematical calculations.
    • Where injuries complained of are of such character as to require skilled and professional persons to determine the cause and extent thereof, they must be proved by the testimony of medical experts.

    Case Details:

    Case Caption: Korbe V. Manchester Et Al
    Docket Number: 1:23cv1145
    Court: United States District Court, Colorado
    Order Date: May 23, 2024

  • Life Care Planning Expert Witness Deemed Qualified to Diagnose Plaintiff’s Injuries

    Life Care Planning Expert Witness Deemed Qualified to Diagnose Plaintiff’s Injuries

    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.

    Discover more cases with Mitchell C. Mullins as an expert witness by ordering his comprehensive Expert Witness Profile report.

    Discussion by the Court

    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.”

    Case Details:

    Case Caption: Golden v. United States
    Docket Number: 6:22cv3312
    Court Name: United States District Court, Missouri Western
    Order Date: April 23, 2024
  • Biomechanical Engineering Expert Witness’ Testimony As to General Causation of Injuries held to be Permissible

    Biomechanical Engineering Expert Witness’ Testimony As to General Causation of Injuries held to be Permissible

    Plaintiff Ernst Nicolas suffered severe injuries to his cervical spine, lumbar spine, right knee, and left shoulder in a motor vehicle accident that took place on September 1st, 2018, on JF Kennedy Blvd at the intersection with 63rd Street, in Jersey City. Nicolas was a rear seat passenger in a Lyft vehicle when a truck owned by Defendant ABF Freight Systems, and driven by Randy Rivers, rear-ended a Chevrolet Cobalt, which then collided with the Lyft vehicle.

    Defendant conceded liability when Plaintiff filed a lawsuit. The only remaining issue in this case is to determine the extent of damages resulting from the accident.

    Defendant retained a biomechanical engineer, William Bussone to assess the following:

    • the severity of the collision
    • the forces imparted to the body of the Plaintiff as a result of the accident
    • the absence of any mechanism to cause any permanent injury to the cervical spine, thoracic spine, lumbosacral spine and/ or extremities
    • whether the subject accident caused the alleged injuries

    Plaintiff filed a Daubert motion challenging Bussone’s testimony because he is not a licensed medical doctor. For the reasons set forth below, the Court rejected the Daubert challenge against Bussone’s testimony.

    Biomechanical Engineering Expert Witness

    William Bussone is a biomechanical engineer with an M.S. in Mechanical Engineering (from Virginia Tech) and a B.S. in Biomedical Engineering (from Michigan Tech). He has testifying experience and more than 15 years research experience in biomechanics, accident reconstruction, and human injury / tolerance to mechanical load.

    Discussion by the Court

    Plaintiff alleged that Bussone lacked the requisite qualifications to comment on the diagnosis, treatment or prognosis of an injured person. According to the Plaintiff, Bussone was unqualified to provide testimony as to medical causation.

    Bussone is Unqualified to Comment on any Area of Medicine

    The Court noted Bussone’s significant experience in the field of biomechanical engineering. After all, Bussone engaged in research regarding injury biomechanics for more than fifteen years. He read and analysed the medical records to evaluate the extent, distribution and severity of injuries as they related to biomechanical analysis. Bussone has a bachelor’s degree in biomedical engineering and a master’s degree in mechanical engineering. He has conducted research on “human tolerance to impact and acceleration loading in vehicles” and published the findings in peer-reviewed articles.

    The scope of Bussone’s proposed testimony concerned the general causation of injuries in motor vehicle accident cases, such as this one. Defendant asserted that it had no intention to have Bussone opine about the diagnosis, treatment or prognosis of any injury.

    The Court subsequently held that Bussone’s expert testimony was permissible as biomechanical experts are permitted to opine as to general causation since he will not be opining on Plaintiff’s particular alleged injuries and medical care.

    Bussone’s Opinions are not Based on Sufficient Facts and Data

    Both parties disagreed about whether Plaintiff’s alleged injuries were caused by the accident. Plaintiff was of the opinion that Bussone’s conclusions warranted exclusion on that basis. The Court, citing In re Fosamax Products Liability Litigation 645 F. Supp. 2d 164 (S.D.N.Y. 2009), observed that the jury will be the judge of whether Plaintiff’s alleged injuries were caused by the accident and it was the jury’s responsibility to assess what weight to be given to the proffered testimony.

    Expert testimony is excluded when speculative, conjectural, or based on unrealistic assumptions implying bad faith. The Court found Bussone’s opinions grounded in adequate facts and data, lacking signs of bad faith

    Held

    The Court denied Plaintiff’s motion to strike the testimony of William Bussone.

    The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

    Key Takeaways:

    1. Expertise and Qualifications Matter: The Court noted Bussone’s significant experience in biomechanical engineering, including over fifteen years of research in injury biomechanics. His educational background in biomedical and mechanical engineering further solidified his qualifications.
    2. Scope of Testimony: Bussone’s testimony focused on the general causation of injuries in motor vehicle accident cases, avoiding specific diagnoses, treatments, or prognoses of injuries, which were beyond the scope of his proposed testimony.
    3. Sufficiency of Facts and Data: Expert testimony must be based on sufficient facts and data to be admissible. The Court found no indications of speculation, conjecture, or bad faith in Bussone’s conclusions.

    Case Details:

    Case Caption: Nicolas V. ABF Freight System Et Al
    Docket Number: 1:19cv6513
    Court: United States District Court, New York Eastern
    Citation: 2024 U.S. Dist. LEXIS 41661
    Order Date: January 24, 2024