Expert Witness Profiler

Tag: Life Care

  • Transportation Engineering Expert Allowed to Opine on Traffic Safety

    Transportation Engineering Expert Allowed to Opine on Traffic Safety

    Plaintiffs Yafeng Zhu and Shuhui Zhang filed this action in March 2024 for damages stemming from a motor vehicle accident that occurred in April 2022.

    Specifically, Plaintiffs alleged that at approximately 12:21 a.m. on April 1, 2022, Plaintiff Zhu was traveling westbound on a two-lane section of Interstate 70 in Bond County, Illinois, as part of his employment. The right lane of the highway contained markings for ongoing construction, but no construction work was being performed at that time.

    At or near milepost 37.6 westbound, there was a manmade pothole (i.e., a cutout) that was only marked by cones in the right lane. According to Plaintiff, however, the pothole protruded into the left lane without any signs or cones signifying the full length of the protrusion. As a result, Plaintiff Zhu’s vehicle crashed into the manmade pothole, causing the vehicle to flip onto its side and Plaintiff Zhu to suffer severe injury and expense.

    Defendant Keeley filed three Daubert motions seeking to exclude the expert reports, testimony, and opinions of Michelle Albers, Dr. Richard G. Bowman, and Dr. Helena Breuer.

    Vocational Rehabilitation Expert Witness

    Michelle J. Albers has a Master of Science degree in rehabilitation psychology from the University of Wisconsin and has obtained numerous licenses and certifications related to rehabilitation counseling and life care planning. In addition, she has practiced vocational rehabilitation counseling for over 27 years, has worked as a vocational and life care planner for over 17 years, and has served as a social security vocational expert since 2004. Albers has also served as an expert witness in numerous cases across various state and federal courts.

    Want to know more about the challenges Michelle Albers has faced? Get the full details with our Challenge Study report.

    Physical Medicine and Rehabilitation Expert Witness

    Dr. Richard Graham Bowman earned his M.D. from West Virginia University, and he specializes in physiatry (physical medicine and rehabilitation). In addition, Bowman has been certified by the World Institute of Pain as a Fellow of Interventional Pain Practice and he has been certified by Capital University School of Law as a Certified Life Care Planner. He has also served on the International Commission on Health Care Certification’s Certified Life Care Planner Board of Commissioners.

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

    Transportation Engineering Expert Witness

    Dr. Helena K. Breuer obtained a master’s degree and a bachelor’s degree in civil engineering, both of which included a focus in transportation engineering. In addition, she obtained a Ph.D. in civil engineering with a specialization in transportation engineering.

    Breuer also completed 280 hours of accident reconstruction-related training approved by the Accreditation Commission for Traffic Accident Reconstruction.

    Discover more cases with Helena Breuer as an expert witness by ordering her comprehensive Expert Witness Profile report.

    Discussion by the Court

    I. Michelle Albers’ Expert Opinions

    Defendant Keeley challenged the sufficiency of the facts and data underlying Albers’ opinions, as well as the methodology and reliability of those opinions.

    However, Albers’ opinions about Plaintiff Zhu’s inability to work and lost earning potential were based on sufficient facts and data. Her expert report considered hundreds of documents including dozens of medical and billing records, depositions, tax returns, photographs and videos, and numerous other discovery documents from this case.

    Defendant Keeley next contended that Albers failed to rely on personal observations of Plaintiff to reach her opinions. Albers conducted a clinical interview of Plaintiff Zhu, relied on the depositions of Plaintiff Zhu and his family, and also relied on the medical records and findings of Plaintiff Zhu’s doctors.

    Next, Defendant Keeley argued that Albers’ testimony should be excluded because she did not follow a reliable methodology, and thus “the opinions included in her report are unreliable because they amount to mere speculation or conjecture.”

    While Defendant Keeley contended that Albers merely explained what those methods entail, without also explaining how they were applied in this case, the Court does not believe that to be true. Rather, Albers’ report demonstrates how she applied those accepted methodologies to the facts of Plaintiff Zhu’s case.

    Finally, Defendant Keeley argued that Albers’ testimony and report should be excluded because her opinions would not assist the trier of fact due to the lack of data underlying her opinions and errors or inconsistencies in her methodology. The Court has already rejected Defendant Keeley’s data and methodology arguments above.

    Thus, all that is left is to determine whether Albers’ opinions may be helpful to the jury. Suffice to say, the Court believes Albers’ expert opinion as to lost earning capacity would be relevant and helpful to the trier of fact in determining damages, if applicable.

    II. Dr. Richard Bowman’s Expert Opinions

    Defendant Keeley first argued that Bowman’s evaluation is not supported by sufficient facts or data. In this regard, Defendant Keeley emphasizes that Bowman “did not perform any physical tests or any kind of investigation” into Plaintiff Zhu’s capabilities and instead relied on Plaintiff Zhu’s subjective self-reporting. However, as shown in Bowman’s report, he relied on extensive medical records from Plaintiff Zhu’s providers and also evaluated Plaintiff Zhu over Zoom.

    Defendant Keeley argued that Bowman relied exclusively on the conclusions of other medical providers, rather than the underlying data generated by them.

    The Court rejected Keeley’s argument that Bowman’s opinion could only rely on the “data generated” by Plaintiff Zhu’s medical providers and not their overall conclusions. To the contrary, had Bowman relied solely on the data Plaintiff Zhu’s doctors generated, that would have raised much greater concerns as to Bowman’s qualifications and methodology, absent a showing that he was qualified to interpret underlying data from every type of medical field at issue in this case.

    Defendant Keeley’s challenge related to whether Plaintiff Zhu has and will continue to avail himself of the treatment Bowman accounted for in his reports is also a question of weight, not admissibility. Admittedly, evidence that Plaintiff Zhu has not, or will not, avail himself of treatment that Bowman anticipated in his life care plan is something that goes to the weight of Bowman’s plan and cost estimates.

    However, Plaintiff Zhu’s alleged treatment noncompliance does not impact the reliability of Bowman’s methodology. And, in regard to methodology, Bowman reasonably relied upon medical opinions as to the care Plaintiff Zhu will need and then expanded upon that information by using his expertise to estimate future costs. That is an appropriate methodology for determining Plaintiff’s care costs.

    III. Helena Breuer’s Expert Opinions

    a. Breuer’s Qualifications as an Expert

    As Plaintiffs admit, this is Breuer’s “first case as an expert.” Obviously, however, the Court’s inquiry focuses on Breuer’s qualifications and not her experience or lack thereof as an expert witness.

    Breuer did not dispute the fact that she is not a licensed engineer, has not designed a traffic control plan, has not assisted or evaluated the setup of an active traffic control plan, and has no prior work experience related to commercial truck drivers in construction zones.

    Here the purpose of Breuer’s investigation and report was “to determine if the temporary traffic controls (TTC) at the time of the incident (1) met the requirements outlined in the approved TTC plans, (2) adequately warned road users of hazards created by work activities, and (3) provided adequate positive guidance for drivers to safely navigate the work zone.” Accordingly, given Breuer’s extensive education in civil engineering with a focus in transportation engineering along with her accident reconstruction training, the Court found that she is qualified and has an adequate foundation to answer the above questions.

    Defendant Keeley has also argued that, even if Breuer is qualified to provide expert opinions on certain transportation related topics, such as passenger vehicles and commercial vehicles at rest, she is not qualified to provide expert opinions for situations involving “extensive interstate construction and commercial vehicles traveling on a busy interstate.”

    Thus, to the extent Breuer has greater specialized experience in passenger vehicles or commercial vehicles at rest, as opposed to “commercial vehicles traveling on a busy interstate,” that distinction goes to the weight of her expert opinions, not their admissibility.

    b. Sufficient Facts and Data

    Defendant contended that Breuer’s report is lacking facts and data because: (1) she never visited the crash site or performed any sort of scene examination; (2) she has no knowledge of how traffic control measures were placed at the end of the construction day; (3) she lacks knowledge as to the reasons for the cutout extension; and (4) her opinions rely on unsupported assumptions. Again, the Court is not persuaded.

    Analysis

    For one, even if the Court assumes that there was value in Breuer visiting the crash site several years after the incident in question, Defendant Keeley’s argument improperly presumes that the failure to personally visit the site renders an expert’s opinions unreliable. This is an argument that has already been rejected in this circuit on multiple occasions.

    Turning to Defendant Keeley’s next contention—that Breuer has no knowledge of how traffic controls were placed at the end of the workday—the Court again found that this challenge would, at most, go to the weight of Breuer’s opinions. For one, Breuer’s report demonstrates that several individuals associated with Defendant Keeley have claimed that their placement of safety barrels was permissible at the time of the accident. Put simply, Breuer’s expert opinion on the placement of safety barrels at the time of the accident is not impacted by the separate question of whether those safety barrels were initially placed in different, suitable locations.

    Defendant Keeley also argued that Breuer’s opinions should be excluded because she lacks knowledge as to the underlying cause for the cutout extension (i.e., the manmade pothole referenced in the Complaint). The Court questions how Breuer’s alleged lack of knowledge as to the underlying reasoning for the extension of the cutout impacts her opinions and testimony related to traffic safety.

    For similar reasons, the Court rejected Defendant Keeley’s argument that Breuer lacked knowledge to provide expert opinion as to the failure to inform the Illinois Department of Transportation about the cutout extension. Undoubtedly, if Defendant Keeley possesses evidence tending to demonstrate that the engineer in question was informed of the extension, they are free to use that evidence to challenge Breuer’s opinion that there is no evidence the engineer was informed.

    c. Methodology

    Defendant Keeley challenged: (1) Breuer’s use of photogrammetry to form her opinion as to the extension of the cutout; and (2) her failure to look at other factors that may have contributed to the incident.

    Breuer’s report first describes the site and the accident. It then lays out the purpose and utility of temporary traffic control measures before discussing the hazard created by the extension of the cutout. Breuer references numerous resources and evidence discussing/specifying what temporary traffic control occurred in this case and what was required under the applicable plans and standards. Her report then outlines the responsibilities the Defendants failed to follow for proper temporary traffic control. Finally, her report lists seven findings related to the traffic hazard at issue and the failure to take appropriate actions to protect drivers from it.

    To the extent Defendant Keeley has even challenged Breuer’s overall methodology, the Court is not persuaded. Breuer’s report provides sufficient context, explains and relies on applicable standards and plans, and analyzes Defendant Keeley’s alleged deviation from those requirements to reach her opinions. In other words, Breuer arrived at her opinions with appropriate soundness and care.

    Moreover, regarding the specific photogrammetry challenge Defendant Keeley has raised, the Court found that such an approach was permissible because it satisfies the reliability requirements specified in Daubert.

    Additionally, the Court is not persuaded by Defendant Keeley’s argument that Breuer’s methodology was inadequate because she failed to use the same methodology to “determine Plaintiff’s lane positioning” or “the width of other cutouts in the construction zone.” If Defendant Keeley wanted an expert to opine on Plaintiff’s lane positioning or the adequacy of temporary traffic controls for other cutouts in the area, it should have retained its own expert to conduct that analysis.

    d. Breuer’s Report is Relevant and Will Assist the Trier of Fact

    Defendant avers that Breuer’s report and opinions are unreliable, provide little to no independent investigation, and can readily be observed through evidence in the record (and underlying standards and specifications cited therein). The Court did not find any of these arguments convincing.

    The Court need not rehash its prior finding that Breuer’s methodology was reliable. It was. Likewise, that methodology demonstrates that Breuer provided ample independent investigation. In fact, the Court found it curious that Defendant Keeley challenged Breuer’s use of, among other things, photogrammetry, while also claiming that she provided no useful independent analysis. Regardless, the Court found that Breuer’s report relied upon useful, independent analysis of temporary traffic control standards and compliance. Moreover, contrary to Defendant Keeley’s argument, the Court did not believe that the pictures and other evidence in the record adequately establish whether traffic control measures were appropriately followed. In addition, contrary to Defendant’s assertions, such a topic is not within the purview of the average juror.

    Held

    The Court denied Defendant Keeley & Sons, Inc.’s Daubert motions seeking to exclude the testimony of Michelle Albers, Dr. Richard Bowman, and Dr. Helena Breuer.

    Key Takeaway

    Medical professionals have long been expected to rely on the opinions of other medical professionals in forming their opinions. This is particularly true in the area of life care planning because it would be virtually impossible to find an expert life care planner who was qualified to opine on every distinct type of underlying injury.

    Case Details:

    Case Caption: Zhu V. Keeley & Sons, Inc.
    Docket Number: 3:24cv908
    Court Name: United States District Court, Illinois Southern
    Order Date: July 02, 2026
  • Physical Medicine and Rehabilitation Expert Was Allowed to Opine on Long-Term Care

    Physical Medicine and Rehabilitation Expert Was Allowed to Opine on Long-Term Care

    Mark McCown was working as a locomotive engineer for Defendant Norfolk Southern Railway Company at the Bulls Gap, Tennessee Rail Yard. McCown was standing on the ballast slope next to the track when the rock he was standing on gave way and McCown fell onto his backside. He immediately experienced pain upon his fall and he ultimately developed a condition called Complex Regional Pain Syndrome (“CRPS”) due to the fall. McCown filed this suit against Norfolk Southern pursuant to the Federal Employers’ Liability Act (“FELA”) asserting that his fall and subsequent injury was due, at least in part, to Norfolk’s negligence. While the parties do not dispute that a causal relationship exists between McCown’s fall and his CRPS diagnosis, they do dispute whether any negligent act or omission by Defendant contributed to McCowns fall.

    Plaintiff sought compensation for the costs of future medical care and retained Christopher R. Sellars, DO, CLCP “to create a life care plan that assesses his future care needs and the costs associated with that care.” 

    Norfolk Southern filed a motion to exclude Sellars as an expert, asserting that he is unqualified to render the opinions in his report, his methodology is unreliable, and his conclusions are not properly supported. In the alternative, Norfolk Southern requested that if Sellars is permitted to testify his testimony be limited to treatment that has been ordered by “Plaintiff’s qualified treaters or recommended by qualified specialists” such as Defendant’s own experts.

    Physical Medicine and Rehabilitation Expert Witness

    Christopher Robert Sellars, DO, CLCP is both a doctor who is board-certified in Physical Medicine and Rehabilitation, also known as physiatry, and a Certified Life Care Planner. Sellars has been practicing medicine since 2007 and is also a publisher and presenter in the areas of physiatry, sports medicine, and pain medicine.

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

    Discussion by the Court

    a. Qualification

    Defendant did not dispute that Sellars is a qualified medical doctor in general but argued that his lack of specific experience with CRPS renders him unqualified to opine regarding Plaintiff’s injury and future medical needs. The breadth of Sellars’ medical practice and experience is rather wide, and although he does not specialize in neurology or CRPS he did have significant experience related to pain medicine and some experience with CRPS cases. Additionally, Sellars conducted a fairly exhaustive review of Plaintiff’s medical records and considered both Plaintiff’s current treatment and recommendations for future treatment in forming his opinions.

    Given that CRPS is a chronic pain condition and that he relied upon the information in Plaintiff’s medical records supplied by other medical experts, the Court held that Sellars’ practice and experience is sufficiently related to the diagnosis and treatment of injuries in order to qualify him to render opinions and recommendations related to Plaintiff’s long-term care.

    b. Reliability

    In attacking the reliability of Sellar’s report, Defendant vehemently asserted that Sellars is not qualified to render opinions regarding Plaintiff’s long-term care due to his lack of specialized knowledge of CRPS. As such, Defendant characterized Sellars’ testimony as pure speculation. Defendant also took issue with the fact that Sellars did not consult with any medical specialists or Plaintiff’s treating physicians before preparing his initial report.

    As an initial matter, the Court noted that while Defendant asserted that Sellars’ methodology is flawed, causing his opinions to be unreliable, much of Defendant’s reliability argument rehashes what Defendant perceives are Sellars’ insufficient qualifications. As the Court has already addressed Sellars’ qualifications in the previous section, it will not do so again here. The Court is satisfied that Sellars has provided an adequate factual basis for his conclusions.

    Having determined that Sellars’ testimony is not unreliable as a whole, the Court turned to Defendant’s request that Sellars’ testimony be limited. In asking the Court to limit Sellars’ testimony, Defendant essentially asked the Court to limit Sellars’ admissible recommendations regarding Plaintiff’s future care needs to those that Defendant’s own experts have recommended. The the Court cannot, and will not, do so.

    Held

    The Court denied Defendant’s motion to exclude Plaintiff’s life care plan opinion witness Christopher Sellars, DO, CLCP.

    Key Takeaway

    While CRPS treatment is not a focal point of Sellars’ practice, Sellars is qualified to treat a wide range of conditions that cause longterm pain and functional impairment, including CRPS.

    Case Details:

    Case Caption: McCown V. Norfolk Southern Railway Company
    Docket Number: 2:24cv63
    Court Name: United States District Court, Tennessee Eastern
    Order Date: April 06, 2026
  • Economics Expert Allowed to Opine on Lost Fringe Benefits

    Economics Expert Allowed to Opine on Lost Fringe Benefits

    Plaintiff, Mark McCown, a locomotive engineer, fell on his buttocks and immediately experienced pain upon his fall and developed a condition called Complex Regional Pain Syndrome (“CRPS”) due to the fall. McCown filed this suit against Defendant pursuant to the Federal Employers’ Liability Act (“FELA”) asserting that his fall and subsequent injury were due, at least in part, to Defendant’s negligence. While the parties did not dispute that a causal relationship existed between the Plaintiff’s fall and his CRPS diagnosis, they did dispute whether any negligent act or omission by Defendant contributed to Plaintiff’s fall.

    Plaintiff sought compensatory damages for his injuries and retained Dr. Robert McLeod to calculate his past and future economic losses. McLeod prepared two reports: a Personal Injury Economic Damages Report (“Personal Injury Report”) and a Life Care Plan Economic Report (“Life Care Report”).

    McLeod also prepared supplements that assumed Defendant was totally disabled and would have no future income as well as assumed Defendant is only partially disabled and will be able to engage in part-time work in the future.

    Defendant did not argue that McLeod is unqualified, nor did they contest the relevancy of his testimony. However, Defendant did assert that McLeod’s testimony should be excluded in its entirety as unreliable.

    Economics Expert Witness

    Robert Wesley McLeod has been a financial economics consultant for over 40 years. He earned his doctorate degree in finance and economics from the University of Texas in 1977.

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

    Discussion by the Court

    a. Personal Injury Economic Damages Report

    In attacking McLeod’s Personal Injury Report, Defendant first argued that the methodology used in calculating Plaintiff’s loss of fringe benefits was flawed.

    Defendant also asserted that McLeod relied on anecdotal evidence from a “single-year snapshot of 2024 benefits cost data,” and that relying on “outlier” anecdotal information is improper.

    Next, Defendant argued that McLeod’s methodology “lacked internal consistency.” Specifically, Defendant asserted that McLeod averaged multiple years of historic data in assessing Plaintiff’s future tax rate, but used a single, “cherry-picked” year in determining lost fringe benefits.

    McLeod explained that benefits are a percentage of earnings, so calculating lost fringe benefits based on that percentage is “a fairly standard approach.” Defendant argued that “a far more reasonable approach is to tie any increase to the projected inflation rate or healthcare-related costs indices, not wage growth.”

    McLeod is a well-qualified economist who provided detailed descriptions of his methods and reasoning in his reports, deposition, and declaration. The mere existence of another method of calculation did not make the method used by McLeod unreliable or not generally accepted among economists. As such, the Court is not persuaded by Defendant’s assertions that McLeod’s methodology is unreliable.

    b. Life Care Plan Economic Damages Report

    As to the portion of McLeod’s report that addressed pretrial expenses, Defendant argued that “the jury is fully capable of independently reviewing medical bills and adding up the medical expenses incurred by Plaintiff without the assistance of an economist.” While this may be true, the Court did not agree with Defendant’s argument that the inclusion of pretrial damages in McLeod’s report risked confusing the issues and misleading the jury so long as the pretrial damages are the sum of medical expenses Plaintiff has actually incurred to this point.

    While any testimony that Plaintiff’s pretrial damages is based upon hypothetical pretrial treatment that Plaintiff did not receive will be excluded, even a treatment that was declined pretrial may still be a necessary treatment in the future based on Plaintiff’s changing needs and responses to other treatments. As such, it is permissible for McLeod’s Life Care Plan Report to include the cost for treatments Plaintiff has previously declined in his calculation of post-trial expenses unless it is a treatment that Plaintiff has stated he will not consider in the future.

    Held

    The Court denied Defendant’s motion to exclude certain calculations from Plaintiff’s economist, Dr. Robert McLeod. 

    Key Takeaway

    The existence of other methodologies that McLeod chose not to apply was fodder for cross-examination, but it did not warrant the exclusion of his testimony.

    Case Details:

    Case Caption: McCown V. Norfolk Southern Railway Company
    Docket Number: 2:24cv63
    Court Name: United States District Court, Tennessee Eastern
    Order Date: April 07, 2026

  • Life Care Planning Expert’s Testimony on Future Care Limited

    Life Care Planning Expert’s Testimony on Future Care Limited

    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.

    Discover more cases with Caitlin Civiello as an expert witness by ordering her comprehensive Expert Witness Profile report.

    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.

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

    Discussion by the Court

    Caitlin Civiello

    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.”

    Case Details:

    Case Caption: Encarnacion V. JB Hunt Transport Incorporated
    Docket Number: 2:24cv1384
    Court Name: United States District Court, Arizona
    Order Date: January 12, 2026
  • Anesthesiology Expert’s Opinions on Life Expectancy Admitted

    Anesthesiology Expert’s Opinions on Life Expectancy Admitted

    This case arises from a motor vehicle collision between Plaintiff Marie Shante Box and Defendant William Causey in May 2023. Following the collision, Box filed suit against Causey, CTS National Corporation (Causey’s employer), and Old Republic Insurance Company (CTS’s insurer). She sought compensatory damages for her injuries, punitive damages, and attorney’s fees. To support her compensatory damages claims, Box retained Dr. Thomas Pontinen as an expert witness. Pontinen’s expert report opined that Box’s future medical and life care will cost $822,2218.55.

    The Defendants sought to exclude Pontinen’s opinions on the grounds that he is not qualified and that his methodology is not reliable.

    Anesthesiology Expert Witness

    Dr. Thomas Pontinen is a double-board certified anesthesiologist and interventional pain medicine specialist and is certified as a Life Care Planner.

    He regularly provides life care planning services through a company called LCP Pro, LLC. Pontinen has published multiple journal articles, written textbook chapters, and has presented at international conferences in the fields of surgery, anesthesiology, and pain medicine.

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

    Discussion by the Court

    1. Qualifications

    The Defendants sought to exclude Pontinen’s opinions because his life care plan included an estimate of Box’s life expectancy, which they argued Pontinen was not qualified to calculate.

    The Court held that Pontinen is qualified to opine on Box’s life expectancy, as one component of Box’s life care plan. As part of the life care planning calculations, Pontinen estimated that Box would live an additional forty years.

    His life expectancy estimate was based on the Center for Disease Control’s (“CDC”) 2023 National Vital Statistics Report on life expectancy for the U.S. population.

    Pontinen is a certified life care planner who provides services through a life care planning company, which regularly provides life expectancy estimates as part of its process. Other courts have found certified life care planners qualified to rely on their life expectancy calculations as part of creating a life care plan.

    And the Defendants did not point to—and the Court is not aware of—case law that requires an expert witness to be a life expectancy expert or economist in order to rely on a life expectancy estimate.

    2. Reliability

    The Defendants argued that Pontinen (1) did not collaborate with Box’s primary treating physician and (2) his pricing model relied on proprietary data.

    The Court held that Pontinen’s methodology is reliable for Daubert purposes. There is no one required methodology in the life care planning industry. Pontinen explains that his methodology (and LCP Pro’s) is based on “peer-reviewed, published methodologies and Standards of Practice within the life care planning associations,” including the American Academy of Physician Life Care Planners, International Academy of Life Care Planners, and American Association of Nurse Life Care Planners.

    Regarding the relationship between Pontinen and Box’s primary treating physician, the Court found that the lack of formal collaboration between the two is not sufficient to render Pontinen’s methodology unreliable.

    While the record in this case indicated that collaboration with physicians is recommended within the life care planning industry, the record did not support the notion that a life care planner’s failure to collaborate renders his or her methodology unreliable

    Even if the Defendants could identify some document that expressly requires collaboration with every treating physician, that would still be insufficient.

    The Court is not persuaded that LCP Pro’s database is unreliable or unverifiable within the industry nor that Pontinen’s use of a proprietary database renders his methodology unreliable for Daubert purposes. Pontinen relied on Box’s actual bills or provider estimates where possible and costing databases, such as those by the Practice Management Information Corporation and LCP Pro, where not. He provided nineteen cost estimates based on individual future needs. Three of those estimates were derived from LCP Pro’s database. LCP Pro’s database contains data from “more than 2,000 cases” and is “based on actual provider charges and actual provider estimates for injections and surgeries.”

    Held

    The Court denied the Defendants’ motion to exclude the testimony of Thomas Pontinen.

    Key Takeaway:

    Pontinen’s methodology for employing pricing databases, including LCP Pro’s proprietary database, is consistent with standards in the life care planning industry and Daubert.

    Any further disagreement regarding the accuracy of Pontinen’s individual cost estimates speaks to the weight of the testimony rather than its admissibility, as competing expert witnesses often supply different cost estimates from one another.

    Case Details:

    Case Caption: Box V. Causey
    Docket Number: 1:24cv3766
    Court Name: United States District Court, Georgia Northern
    Order Date: December 02, 2025
  • Nursing Expert’s Life Care Plan Opinions Limited

    Nursing Expert’s Life Care Plan Opinions Limited

    This is a medical negligence case filed by Plaintiff Tanya Soule, as holder of Power of Attorney for Marlene Do, her mother, a currently disabled adult, and Long Do, her husband. Plaintiffs alleged that Defendants were negligent in failing to timely diagnose and manage Marelene’s ischemic stroke on December 11, 2019.

    Defendants Blessing Hospital; Scott Hough, M.D.; Shaila O’Dear, R.N.; Jason Little, APRN; Kristin Hampton, R.N.; Angelo Liana, M.D.; and Rebecca Dennison, R.N. filed a motion under Federal Rule of Evidence 702 to bar Plaintiffs’ expert witness, Nurse Linda K. Schwieger, RN, CNLCP, CBIS, from testifying because she is not qualified to testify on future costs derivative of medical coding decisions and her life care plan is unsupported by medical evidence and fails to account for preexisting injuries. 

    Nursing Expert Witness

    Linda K. Wilson-Schwieger, RN, CNLCP, CBIS is a certified nurse life care planner and certified brain injury specialist who has spent the last 19 years developing life care plans. She is a member of the American Association of Nurse Life Care Planners, where she spent two years as the National Conference Chairperson, a member of the American Association of Legal Nurse Consultants, where she served as President of her chapter, and a member of the International Association of Rehabilitation Professionals.

    Fortify your strategy by reviewing a Challenge Study detailing grounds for excluding Linda Schwieger’s expert testimony.

    Discussion by the Court

    In seeking exclusion, Defendants noted that Schwieger conceded through her discovery deposition that she has no training, education, or experience in medical coding. Defendants claimed that this is significant because her cost opinions related to a portion of her life care plan derive from her independent medical coding decisions. Additionally, because her opinions are not supported by independent admissible evidence, Schwieger’s future cost opinions are irrelevant. Finally, Schwieger failed to account for whether Marlene would have needed the items and services in her life care plan due to her preexisting conditions.

    B. Qualifications to Testify on Future Costs Using Medical Coding Decisions

    Defendants contended that, despite Schwieger’s lack of training, education, or experience in the world of medical coding, she selected the second highest code and cost available for every physician service in Marlene’s life care plan.

    Defendants contended that Schwieger’s life care plan opinion associated with (1) Physician Care; (2) Diagnostics; and (3) Physical, Occupational, and Speech-Language Therapies should be excluded because, based on the complexity of medical coding and given that she has not been trained or educated on how to select an appropriate medical code, she is not qualified under Daubert to render such opinions.

    Given the nature and complexity of medical coding and the fact that Schwieger has no training, education, or experience in selecting medical codes for a patient, the Court concludes Schwieger lacked the requisite specialized knowledge under Rule 702 to select medical codes. Significantly, Schwieger did not base the medical codes she selected on codes that had previously been selected by healthcare providers. Instead, she independently selected medical codes that she believes may be selected by Marlene’s future healthcare providers. Her decision as to the appropriate code was “based on the complexity of what I know about [Marlene] and her issues.” However, Schwieger admitted that she is not qualified to make medical diagnoses and must rely upon decisions made by Marlene’s treating physicians.

    Therefore, the Court granted Defendants’ motion to the extent it sought the exclusion of Schwieger’s life care plan opinions premised upon her medical coding selections: (1) Physician Care, (2) Diagnostics, and (3) Physical, Occupational, and Speech-Language Therapies.

    C. Medical Evidence in Support of Life Care Plan

    Defendants next contended that Schwieger’s life care plan is unsupported by medical evidence and fails to account for preexisting injuries. Specifically, she failed to collaborate with a physician for most of the opinions and did not account for Marlene’s preexisting conditions in developing her life care plan. 

    Plaintiffs argued that Schwieger relied on the medical opinions of a board-certified physical medicine and rehabilitation physician who has cared for thousands of stroke patients over the last 15 years, when drafting the life care plan. Schwieger also reviewed Marlene’s medical records and the deposition testimony of two of her medical providers. As a result, the Court concluded that the information is sufficiently reliable and relevant to assist the factfinder.

    Defendants further noted that Schwieger was aware that, prior to her December 2019 stroke, Marlene had a debilitating condition known as rheumatoid arthritis, which resulted in her being on social security disability for two decades. Defendants contended that Schwieger failed to consider Marlene’s preexisting condition. However, while Plaintiffs appeared not to have disclosed any physicians to differentiate which items and services in Schwieger’s life care plan would have been needed if Marlene had not suffered a stroke, Mathew’s testimony touches on the issue.

    Thus, the Court declined to bar Schwieger’s testimony as to the life care plans.

    Held

    The Court granted in part and denied in part the Defendants’ motion to bar the testimony of Linda Schwieger, RN, CNLCP, CBIS.

    Key Takeaway:

    While Schwieger lacked the requisite specialized knowledge under Rule 702 to select medical codes, Schwieger’s review of Marlene’s medical records, review of the deposition testimony of her treating physicians, her nursing assessment of Marlene, and Schwieger’s own education, training, and experience, all formed the factual basis of her life care plan. 

    Case Details:

    Case Caption: Do Et Al V. Blessing Hospital, A Corporation Et Al
    Docket Number: 1:20cv1398
    Court Name: United States District Court, Illinois Central
    Order Date: September 19, 2025
  • Court Admits Economics Expert Witness’ Analysis of Plaintiff’s Postinjury Economic Capacity in the Absence of the Incident

    Court Admits Economics Expert Witness’ Analysis of Plaintiff’s Postinjury Economic Capacity in the Absence of the Incident

    The present lawsuit involves a tort dispute arising from an incident in which Andrés González-Pérez (“Plaintiff” or “González”) was allegedly injured after he fell from a poorly maintained ladder that provided access to a vessel owned and operated by Harley Marine Financing LLC (“HMF”) and Harley Marine NY, Inc. (“HMNY,” collectively “Defendants” or “Harley Marine”).

    In the course of the legal proceedings, the Defendants filed the following three motions:

    1. Motion to exclude portions of the Life Care Plan prepared by the Plaintiff’s physical medicine expert witness Gloydian Cruz-Gomez.
    2.  Motion to exclude the testimony of Plaintiff’s economics expert witness Kenneth McCoin.
    3. Motion to exclude the testimony of the Plaintiff’s vocational rehabilitation expert witness Ashley G. Lastrapes.
    Economics Expert Witness

    Physical Medicine Expert Witness

    Gloydian Cruz-Gomez is a Physical Medicine & Rehabilitation and Pain Medicine specialist who has practiced medicine in Florida since 2011.

    Cruz is a licensed physician in the state of Florida, and she is certified by the American Board of Physical Medicine & Rehabilitation and the American Board of Pain Medicine. Cruz is also a Certified Life Care Planner, as designated by the International Commission on Health Care Certification.

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

    Economics Expert Witness

    Kenneth G. McCoin is a consulting economist and a chartered financial analyst. He holds a Ph.D. in Economics from the University of Houston. His professional experience includes serving as Chief Economist at American General Capital Management. He also taught investments and corporate finance at Houston Baptist University.

    Want to know more about the challenges Kenneth G. McCoin has faced? Get the full details with our Challenge Study report.  

    Vocational Rehabilitation Expert Witness

    Ashley G. Lastrapes has worked in rehabilitation counseling since 2011. She holds a Ph.D. in Counselor Education and Supervision from the University of Holy Cross, a Master of Health Science in Rehabilitation Counseling from Louisiana State University Health Sciences Center, and a Bachelor of Science in Psychology from the University of New Orleans.

    Get the full story on challenges to Ashley G. Lastrapes’ expert opinions and testimony with an in-depth Challenge Study.  

    Discussion by the Court

    A. Gloydian Cruz-Gomez

    i) Defendants’ Argument

    The Defendants sought to exclude portions of the life care plan prepared by Gloydian Cruz-Gomez. They argued that her calculation of the cost of medications that González will incur for future use is unreliable. Specifically, they contended that her estimates, which included the cost of NSAIDs, opioids, antidepressants, and Zanaflex for the next 25 years of his life, lacked a reliable foundation.

    ii) Plaintiff’s Counter-Argument

    In response, the Plaintiff defended the reliability of Cruz-Gomez’s Life Care Plan by pointing out that her estimates were grounded in Plaintiff’s medical records, consultations with treating physicians, and established medical guidelines. Additionally, he argued that she applied well-recognized principles in life care planning and offered a rational basis for her cost estimates.

    iii) Analysis

    While Harley Marine agreed that Cruz-Gómez is qualified to render the opinions included in her report and that the methodology used in reaching said opinions met the standards of Rule 702, Daubert and its progeny, the Court was still required to examine whether the experts’ opinions on future medications was based on reliable foundations.

    In her life care plan, Cruz-Gomez explained that she relied on all past medical, social, psychological, educational, vocational, and rehabilitation data to the extent they are available and applicable. This included records of medications prescribed by González’s treating physician. She used this information, in addition to her education, training, and experience as a board-certified physical medicine and rehabilitation specialist and certified life care planner to determine González’s future medication needs. She based her conclusions on a “reasonable degree of medical probability,” indicating it was more likely than not that González would require the medications outlined in the plan. The Court held that her analysis followed reliable principles and methods and relied on sufficient facts and data, meeting the requirements of Rule 702.

    Conclusion

    Consequently, it should be noted that Harley Marine objected only to the section of Cruz Gómez’s report addressing the costs of Plaintiff’s future medications. Defendants’ experts’ competing opinion was the sole basis for their challenge to the factual basis of Cruz Gómez’s opinions on Plaintiff’s future medications. Citing United States V. Vargas, 471 F.3d 255 (1st Cir. 2006), the Court held that when the factual underpinning of an expert is weak, it is a matter affecting the weight and credibility of the testimony— a question to be resolved by the jury. Thus, their challenge goes to credibility of the expert, not the reliability of her opinions. 

    B. Kenneth McCoin

    i) Defendants’ Argument

    To begin with, Harley Marine sought to exclude Kenneth McCoin’s opinion on González’s earning capacity, arguing that his analysis lacked sufficient facts and data, making it unreliable. Specifically, the Defendants contended that McCoin failed to consider González’s post-injury earnings and relied on an unsupported assumption that wages increase over time when the record did not provide evidence of such a conclusion.

    ii) Plaintiff’s Counter-Argument

    In response, the Plaintiff defended McCoin’s methodology, asserting that he based his calculations on González’s tax returns and employment contract. These, according to the Plaintiff, provided a valid and reasonable foundation for estimating his earning capacity in the absence of his injuries. The Plaintiff also argued that any income earned by González after his injury was irrelevant to McCoin’s analysis. Moreover, McCoin’s use of a “societal wage growth” factor is a recognized method of forecasting future earning capacity.

    iii) Analysis

    First, the Court observed that Harley Marine appeared to confuse “earning capacity” with “lost earning capacity.” McCoin was tasked with estimating González’s postinjury economic capacity in the absence of the incident. The jury would then determine the actual loss of income based on this estimate. However, the Court found that Harley Marine incorrectly argued that McCoin’s failure to consider medical information, vocational data, and post-employment history undermined the reliability of his analysis. The Court clarified that McCoin’s role was to provide an estimate of what his earning capacity would have been, but for the accident, from which the jury can make a lost earning capacity determination.

    Second, the Court found that McCoin’s assumption that González was not working after the injury did not affect his analysis of his earning capacity. His task was to evaluate earning capacity absent the injury, making post-injury employment irrelevant to this assessment. McCoin relied on González’s tax returns from 2019–2021 and an independent contractor agreement with PETROCARE Marine Consultants, Inc., which provided a sufficient and reliable basis for his calculations.

    The Court found that McCoin’s application of a “societal wage growth factor” in his earning capacity analysis does not make his conclusions unreliable. McCoin explained at deposition what a “societal wage growth factor” is and the purpose for including it in his analysis: “Those are wage growth that redounds to employees due to the increase in general labor productivity.”  Courts are instructed to consider “societal factors” which contributes to “wages of workers increase over time.”  Therefore, the Court held that McCoin’s implementation of a “societal wage factor” in his earning capacity calculation was well-reasoned, not overly speculative.

    Conclusion

    The Court also rejected Harley Marine’s claim that fluctuations in González’s earnings from 2019–2021 proscribe McCoin from having a reliable basis to apply a societal wage growth factor to the earnings capacity analysis. In other words, variations in income over three years did not undermine the reliability of McCoin’s methodology. As McCoin explained in his deposition, even self-employed individuals experience market changes in wages. For the Court, a fluctuation of earnings over three years does not seem to be sufficient basis to discredit the expert’s methodologies.

    C. Ashley G. Lastrapes

    i) Defendants’ Argument

    Harley Marine sought to exclude Ashley Lastrapes’ vocational assessment for González, claiming it lacked a sufficient factual basis to evaluate his earning capacity under Rule 702.

    ii) Plaintiff’s Counter-Argument

    González countered that despite Lastrapes issuing a “guarded” assessment of his post-injury earning capacity, her report offered valuable insights with regard to his capacity to work which are relevant to the case, including the following:

    a) Lastrapes provided opinions on the Life Care Plan developed by Gloydian Cruz-Gomez. She also assessed González’s physical limitations, decreased ability to perform daily activities, and the resulting loss of vocational opportunities.

    b) She analyzed the potential impact of a future surgery, as predicted by Cruz Gómez, on González’s ability to earn income.

    c) Lastrapes evaluated González’s inability to travel for work-related tasks, as well as the economic losses stemming from this limitation.

    iii) Analysis

    Lastrapes was retained to conduct a vocational assessment evaluating the factors affecting González’s post-injury earning capacity following his May 2022 injury. She relied on medical and employment records, litigation case materials, and expert reports from Cruz-Gomez and McCoin, and conducted a clinical interview with González.

    Regarding vocational prognosis, Lastrapes concluded it was “guarded,” explaining that she needed additional information to provide a definitive opinion on future wage loss. However, the Court noted this was only one aspect of her report because Lastrapes also addressed other critical issues, including the Life Care Plan by Cruz-Gomez, González’s physical limitations, and his diminished ability to perform daily activities, which reduced his vocational opportunities. She further analyzed how a potential future surgery would impact his earning capacity and highlighted economic losses tied to his inability to travel for work-related tasks.

    Harley Marine argued that the absence of a conclusive vocational prognosis warranted the exclusion of all of Lastrapes’ testimony. The Court disagreed, emphasizing that her opinions were grounded in reliable data and aligned with the scope of her assignment.

    Therefore, the Court observed that the parties could address any challenges to Lastrapes’ credibility or conclusions through cross-examination and the presentation of contrary evidence, as outlined in Daubert. It refused to penalize González because his expert presented sound opinions within the scope of her task only where a reliable basis existed.

    Held

    Accordingly, the Court issued the following orders:

    1. Motion in limine to exclude portions of the Life Care Plan prepared by Plaintiff’s physical medicine expert witness Gloydian Cruz-Gomez was denied
    2. Motion in limine to exclude the testimony of Plaintiff’s economics expert witness Kenneth McCoin was denied
    3. Motion in limine to exclude the testimony of Plaintiff’s vocational rehabilitation expert witness Ashley G. Lastrapes was denied.

    Key Takeaway:

    First, physical medicine expert witness Gloydian Cruz-Gomez’s Life Care Plan, based on medical records and professional expertise, was deemed grounded in sufficient data, despite conflicting opinions from the Defendants’ expert.

    Moreover, economics expert witness Kenneth McCoin’s analysis of the Plaintiff’s postinjury economic capacity in the absence of the incident was supported by tax returns and an independent contractor agreement, with the Court affirming that his use of a societal wage growth factor was a valid and recognized method.

    Lastly, vocational rehabilitation expert witness Ashley Lastrapes’ vocational assessment was upheld as it was based on comprehensive medical and employment records, despite her “guarded” prognosis, as the Court noted that such conclusions could be addressed during cross-examination.

    Case Details:

    Case caption: González-Pérez v. Harley Marine Fin. LLC
    Docket Number: 3:22cv1519
    Court: United States District Court for the District of Puerto Rico
    Dated: January 6, 2025
  • Nursing Expert Witness’ Opinions on the Propriety of Treatment Recommendations Admitted

    Nursing Expert Witness’ Opinions on the Propriety of Treatment Recommendations Admitted

    This matter stems from a motor vehicle accident that occurred on May 21, 2023 when the vehicle driven by Plaintiff, Juwan Brown, and occupied by his parents, Clarence and Tawanna Brown, was struck by a commercial vehicle driven by Dashawn Brooks.

    The commercial vehicle was owned by Penske Truck Leasing Co. and leased by Defendant Mayflower Laundry & Linen. As a result of the accident, Plaintiffs have alleged that they have sustained various injuries and damages.

    Defendants retained Lynda Kopishke “to provide a rebuttal report in response to the reports of Plaintiffs’ life care planning experts.” In her reports, Kopishke opined on the medical necessity of treatment that is recommended by Plaintiffs’ medical and vocational consultants and included in the life care plan for each Plaintiff. Plaintiffs argued that Kopishke’s opinions are “well beyond the scope of her expertise.”

    Nursing Expert Witness

    Lynda Kopishke, DL, MSN, RN received her diploma in Nursing from St. Francis Hospital School of Nursing in Wilmington, Delaware. After several years of successful practice, Kopishke attended Wilmington University, where she obtained a Bachelor of Science and a Master of Science in Nursing degree. At Widener University School of Law, Kopishke received her Doctorate of Laws in Health Care Policy.  She has served on various nursing boards at both the local and national levels. Kopishke’s practice settings include adult and neonatal intensive care, home health nursing, rehabilitation, Legal Nurse Consulting, and infusion therapy. 

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

    Discussion by the Court

    Plaintiffs focused on the qualification element of Rule 702, arguing that Kopishke, although she is a qualified nurse and life care planner, is not qualified to offer opinions related to the propriety of treatment recommendations because she is not a physician.

    However, the Court held that she holds bachelor of science and master of science degrees in nursing, and a doctor of laws in health care policy. She has worked as an interim care and direct care nurse, providing skilled nursing assessments for home health clients and acted as a manager supervising workers in a home health agency, worked as a rehabilitation specialist and nursing supervisor, and has been a nursing instructor for fifteen years. In addition, she has worked as a consultant for attorneys and insurers, providing medical expertise including in the area of life care planning. Although she may not be the most qualified to offer an opinion on the necessity of future treatments, procedures, and services, that is a matter of weight for the jury to determine.

    Held

    The Court denied the Plaintiffs’ motion to preclude the testimony of Lynda Kopishke.

    Key Takeaway:

    Kopishke has extensive experience as a rehabilitation specialist and nursing supervisor. Despite her lack of a medical degree, the Court refused to exclude her opinion on the medical necessity of treatment that is recommended by Plaintiffs’ medical and vocational consultants.

    Case Details:

    Case Caption: Brown Et Al V. Brooks Et Al
    Docket Number: 5:23cv2966
    Court: United States District Court, Pennsylvania Eastern
    Order Date: November 05, 2024
  • Testimony of Physical Medicine & Rehabilitation Expert Witness Concerning Plaintiff’s Life Care Plan Is Not Entirely Based on Speculation

    Testimony of Physical Medicine & Rehabilitation Expert Witness Concerning Plaintiff’s Life Care Plan Is Not Entirely Based on Speculation

    Plaintiff Towanda R. Futrell filed this personal injury action on August 28, 2023. The action arises from a motor vehicle accident on Interstate 64 on December 16, 2022, when a tractor-trailer owned by AV Leasing, LLC, leased by Triton Logistics, Inc., and driven by Daniel Cramer, collided with a bus on which Futrell was a passenger. 

    Pursuant to Rule 26(a)(2) of the Federal Rules of Civil Procedure, on May 28, 2024, Futrell disclosed Dallas Lea, II, M.D. (“Dr. Lea”), as an expert witness in the field of orthopedic surgery who may be called to testify at trial. Futrell disclosed that Lea was expected to testify to: (a) Futrell’s injuries, including a broken right ankle, sprained left ankle, broken eye socket, and broken left jaw; (b) Futrell’s ankle surgeries; (c) Futrell’s “extensive physical medicine and rehabilitation”; and (d) his opinion that Futrell’s injuries, medical treatment, hospitalizations, “past and future pain and suffering, past and future medical expenses and medical costs and life care medical costs, and economic or non-economic related damages” are “a proximate cause of Defendant Daniel Cramer’s negligence.” 

    Futrell provided Defendants with a copy of Lea’s curriculum vitae. On or before July 9, 2024, Futrell also provided Defendants with Lea’s expert report-a life care plan for Futrell. The life care plan outlines Futrell’s treatment following the accident, Lea’s opinion that Futrell “will have chronic symptoms and residual disabilities resulting from the accident,” and a table containing Lea’s recommendations for Futrell’s “current and future care needs.” 

    On September 17, 2024, Defendants filed the pending motion in limine to exclude Lea’s opinion because he was not properly designated as an expert in life care planning and the opinions in his life care plan lack the requisite foundation. 

    Lea was not properly designated as an expert in life care planning

    First, the Defendants asserted that Lea was not properly designated as an expert in life care planning. The Defendants noted that Lea was designated as an expert in orthopedic surgery who was expected to testify about Futrell’s injuries, Futrell’s treatment, and his opinion that Futrell’s injuries, treatment, past and future pain and suffering, past and future medical expenses, and life care costs were proximately caused by Defendant Daniel Cramer’s negligence.

    Lea’s opinions lack the proper foundation and are speculative

    Next, Defendants argued that Lea’s opinions lacked the proper foundation and were speculative. Lea never treated Futrell and did not interview her or her treating physicians prior to developing the life care plan. The life care plan was drafted based on Lea’s review of Futrell’s medical records.

    Physical Medicine & Rehabilitation Expert Witness

    Dallas Alexander Lea, II M.D. is an internationally recognized spinal cord injury physician, fellowship-trained, and double-boarded in Physical Medicine and Rehabilitation (PM&R) and Spinal Cord Injury (SCI) Medicine.

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

    Discussion by the Court

    Errors in the Rule 26(a)(2) disclosure are harmless as Dr. Lea’s CV, life care plan, and deposition clarify his expertise and outline his proposed expert testimony

    Futrell asserted that Defendants were provided with a copy of Lea’s CV, which put them on notice that Lea was a life care planner, board certified in physical medicine and rehabilitation, and Defendants were provided with his life care plan on July 5, 2024. During Lea’s deposition, Futrell’s counsel clarified that the designation of Lea as an orthopedic surgeon was due to a “typographical error.” Lea testified that he was not an orthopedic surgeon, but a specialist in spinal cord injury and in physical medicine and rehabilitation. Lea explained that he would not be testifying about causation or negligence, rather he would testify to Futrell’s “injuries and future care and needs,” and that he was asked to “review records, review the case, and produce a life care plan.” 

    The Court found that Futrell’s failure to identify Lea as an expert to testify about Futrell’s life care plan in the Rule 26(a)(2) disclosure served on May 28, 2024, was harmless. The Rule 26(a)(2) disclosure was inaccurate. Futrell’s explanation for the inaccurate disclosure—that it was a “typographical error”—is less than satisfactory. The inaccuracy also goes beyond simply misstating that Lea is an orthopedic surgeon, by wrongfully disclosing that Lea will testify about the cause of Futrell’s injuries. The disclosure did, however, include Lea’s expected testimony about Plaintiffs future medical care and expected costs over her lifetime. The provision of Lea’s CV and life care plan clarified his expertise and proposed testimony and Defendants were further able to clarify this with his deposition taken September 6, 2024. 

    Lea’s proposed testimony concerning Futrell’s life care plan is based on his medical expertise and will be helpful to a jury

    Defendants also challenged several of the line items in Lea’s life care plan table, specifically house cleaning, ophthalmologist evaluations, an ear, nose, and throat evaluation, yearly visits to her primary care physician, and psychological counseling.

    Defendants argued Lea did not know whether Futrell has familial support to take care of house cleaning or to what extent she has suffered emotional injuries and needs counseling. They concluded that the life care plan is speculative and not tailored to Futrell’s unique needs, and Futrell “provides no indication why Lea’s life care plan is more plausible than other possibilities of what she will require in the future.”

    Lea explained that: (1) Futrell’s chronic symptoms and residual disabilities “were evident” in her medical records (2) the monthly housecleaning expense is for deep cleaning (3) the ophthalmologist evaluation and ear, nose, and throat evaluation were a precaution due to her jaw fracture and broken eye socket (4) the yearly visit to her primary care physician would be in addition to a routine yearly physical and would be necessary for pain management and pain management medications and (5) psychological counseling was included because of the mention of Futrell’s anxiety in the medical record.

    The Court held that Lea reviewed and summarized Futrell’s past treatment, current treatment regimen, and future treatment recommended by her physicians. Lea then developed a life care plan projecting Futrell’s future costs based on this review.  A certain amount of speculation is inherent in a life care plan that projects what will be needed in the future and hinges on future events. Permitting cross-examination regarding the facts and data Lea relied on to arrive at the future costs will allow the fact finder to determine the appropriate weight to assign to Lea’s testimony. 

    Held

    • The Court held that permitting Lea to testify about the life care plan he outlined for Futrell would not disrupt the trial. Lea, however, will not be permitted to testify about the cause of Futrell’s injuries and his testimony will be limited to the opinions outlined in his life care plan.
    • The Court found that Lea is qualified to testify as an expert witness and he is proposing to testify to relevant medical knowledge that will assist the trier of fact in understanding a fact in issue. Nor does the Court find that the probative value of such testimony is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. The Court found that Defendants’ concerns about the reliability of Lea’s testimony may be properly raised during cross-examination, but they are insufficient to persuade the Court to exclude Lea.

    The Court denied Defendants’ motion in limine to exclude the expert opinions of Dallas Lea, II, M.D.

    Key Takeaways:

    • The Rule 26(a)(2) disclosure was inaccurate. Futrell’s explanation for the inaccurate disclosure—that it was a “typographical error”—is less than satisfactory. The inaccuracy also goes beyond simply misstating that Lea is an orthopedic surgeon, by wrongfully disclosing that Lea will testify about the cause of Futrell’s injuries.
    • A certain amount of speculation is inherent in a life care plan that projects what will be needed in the future and hinges on future events.

    Case Details:

    Case Caption: Futtrell V. Av Leasing, LLC
    Docket Number: 4:23cv118
    Court: United States District Court for the Eastern District of Virginia, Newport News Division
    Order Date: October 25, 2024
  • Vocational Rehabilitation Expert Witness’ Testimony Admitted Because he used Data from Industry-Specific Sources

    Vocational Rehabilitation Expert Witness’ Testimony Admitted Because he used Data from Industry-Specific Sources

    This is an action for Jones Act negligence, unseaworthiness and unpaid maintenance and cure brought by Eric Ward. On or about December 13, 2021, Ward joined the Yacht as the Electro Technical Officer as part of the Yacht’s engineering department in Miami Beach, Florida at a private residence.

    On night of December 23, 2021, the Yacht collided with the Tropical Breeze, a gasoline tanker (“Tropical Breeze”), off the coast of the Bahamas due to the Captain’s negligence. Plaintiff Ward was working on the Sky Lounge aft of the Bridge with the charter guests, assisting them in connecting to the Yacht’s onboard entertainment systems. During the collision, Plaintiff Ward was thrown off his feet and collided with a wall, causing his injuries. The Defendant Yacht and its owner, Utopia refused to pay and delayed payment for the medical expenses as part of Plaintiff Ward’s cure benefit as a seaman.

    The Defendants filed a motion to exclude the testimony of Ira Morris and Oscar Padron for failure to meet the minimum standards of expert testimony.

    Vocational Rehabilitation Expert Witness

    Ira Morris performs vocational evaluations to identify occupational options and determine earning capacity, as well as assessments to evaluate the loss of earning capacity resulting from an injury or illness. As a Life Care Planner, he develops plans to identify future needs, including medical, therapeutic, adaptive equipment, and ancillary or residential services, resulting from an injury or illness. He provides expert witness testimony on these issues, and his opinions have been accepted in state and federal courts, in civil, family law, and state workers’ compensation matters.

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

    Accounting Expert Witness

    Oscar Padron holds multiple professional designations and qualifications in the fields of accounting, financial planning, and valuation. His credentials include Certified Public Accountant, Certified Financial Planner and Certified Valuation Analyst. He has earned a B.B.A. in Accounting (1980) and an M.S. in Finance (1989), both from Florida International University. Padron is currently a partner at Turner & Associates, LLP, with extensive experience in litigation support, economic valuations, and forensic accounting.

    Want to know more about the challenges Oscar Padron has faced? Get the full details with our Challenge Study report. 

    Discussion by the Court

    Ira Morris

    Ira Morris is the Plaintiffs’ vocational rehabilitation and life care plan expert, and Oscar Padron is the Plaintiffs’ expert on economics. The Defendants argued that Ira Morris used an unreliable methodology because he “relied heavily on Ward’s accounts of the facts pertaining to them without independently verifying the same when formulating his life care plan.” Moreover, he relied on his own summaries of private telephone conversations he had with treating medical professionals in formulating his opinions, though he admitted he lacks the medical knowledge to evaluate the medical findings.

    With respect to Morris, the Plaintiffs argued that his methodology was reliable because it adhered to the Standards of Practice for Life Care Planners, a peer-reviewed manual prepared by the International Academy of Life Care Planners, and the RAPEL Method, also a peer-reviewed and widely accepted method. The Plaintiffs also noted that Morris: (1) relied only on materials that were in his possession and obtained through interviews; (2) used data from industry-specific sources in assessing Ward’s loss of earning capacity; and (3) relied on health recommendations from the parties’ independent providers that were provided with “signed verifications attesting to the summaries of information and analyses they provided in support of Morris’ opinions and conclusions.”

    Plaintiffs also disputed various contentions made by the Defendants. The Plaintiffs noted that Morris relied on market data in addition to Morris’ contract; Morris did not provide causation opinions; Morris’ reports do not include paid cure expenses or expenses incurred after Ward reached their Maximum Medical Improvement; collateral sources such as Medicare are not considered when making life care plans; Ward’s tax returns were not necessary because Morris relied on labor market data.

    Oscar Padron

    As for Oscar Padron, the Defendants alleged that his methodology is likewise unreliable because it is based almost entirely on Morris’ conclusions and it was prepared in less than a day. According to the Defendants, Padron admitted in his deposition that he did not independently verify any information regarding Ward complaints because it was “beyond the scope of what he was asked to do,” and “he simply accepted and quantified the opinions of Ira Morris.”

    With respect to Padron, the Plaintiffs argued that when quantifying Morris’ conclusions, Padron used widely accepted standard practices such as using the applicable interest rates, growth rates, discount rates, inflation rates, and life expectancy data. He also relied on reputable publications, including those that were peer-reviewed. Moreover, his methodology was consistent with the standards of the Association of Forensic Economics and the American Institute of CPAs.

    Held

    The Court denied the Defendant’s Daubert motion to exclude the testimony of Ira Morris and Oscar Padron. The Court found that the experts were qualified and their methodologies were reliable. Therefore, their testimony will be helpful to the jury. The Defendants may cross-examine the experts on any perceived deficiencies.

    Key Takeaway:

    The Defendants did not dispute that the experts are qualified. They contended that Morris should be precluded from providing any medical or liability testimony. They maintained that Morris used an unreliable methodology because in addition to the reasons cited in the original motion, he relied on an incomplete record. 

    As to Padron, the Defendants maintained that his methodology was unreliable (and therefore not helpful) because he exclusively relied on Morris’ unreliable findings. 

    However, the Court found that the experts were qualified and their methodologies were reliable.

    Case Details:

    Case Caption: Ward V. M/Y Utopia Iv Et Al
    Docket Number: 1:22cv23847
    Court: United States District Court, Florida Southern
    Order Date: October 3, 2024