Expert Witness Profiler

Tag: Life Care

  • Occupational Medicine Expert Witness’ Testimony Based on Generalized Medical Guidelines Rejected

    Occupational Medicine Expert Witness’ Testimony Based on Generalized Medical Guidelines Rejected

    Following an automobile accident in which driver Ronald Skinner struck Plaintiff’s vehicle, Plaintiff subsequently filed suit against Defendants. To offer opinion testimony as to Plaintiff’s damages, Plaintiff’s counsel identified Dr. Manijeh Berenji, an occupational and environmental medicine physician, as an expert life care planner and emailed Defendants a life care plan for Plaintiff that Berenji prepared.

    Compiled after Berenji conducted a “detailed review” of Plaintiff’s medical records and interviewed Plaintiff, Berenji’s life care plan listed medical costs that Plaintiff was likely to incur—including surgeries such as a lumbar discectomy, lumbar hardware removal, and cervical microdiscectomy, various injections, and a Functional Restoration Program—totaling $446,350.

    Defendants contended that Berenji failed to meet the substantive requirements of expert testimony pursuant to Federal Rule of Evidence 702 and Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

    Occupational Medicine Expert Witness

    Manijeh Berenji is board-certified in occupational and environmental medicine as well as public health in general preventive medicine. She is the chief of Occupational Health at VA Long Beach Healthcare System.

    She has over 10 years of experience in occupational and environmental medicine, preventive medicine, and population health.

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

    Discussion by the Court

    Plaintiff failed to properly disclose Berenji as an expert witness  

    Defendants argued (1) that Plaintiff’s disclosure of Berenji failed to meet Rule 26(a)(2)(B)’s requirements for witnesses specifically retained to provide expert testimony and (2) Plaintiff cannot meet his burden in showing the noncompliance was justified or harmless.

    Defendants first argued that Plaintiff failed to properly disclose Berenji as an expert witness because although Plaintiff’s counsel emailed the life care plan to Defendants, Plaintiff did not comply with Rule 26(a)(4)’s requirement that an expert disclosure be written, signed, and served on the other party. 

    Next, Defendants argued that Berenji’s written report failed to satisfy the requirements of Rule 26(a)(2)(B) for experts specifically retained to provide expert testimony. First, they argued, Plaintiff failed to meet the requirement to list all other cases in the past four years in which the witness has testified as an expert witness—despite that  Berenji later testified that she is deposed at least a few times per month. The Court noted that Berenji’s life care plan did not include any such list. 

    Although Defendants ultimately obtained a copy of Berenji’s CV, they obtained it through a subpoena to Medical Life Care Planners, not Plaintiff’s expert disclosure. The Court held that Plaintiff failed to provide the basis for the expert’s qualifications. 

    While Defendants did ultimately depose Berenji, the Court held that Plaintiff’s failure to disclose the other cases in which she has provided expert testimony prejudiced Defendants by limiting their ability to compare her testimony in other cases and cross-examine her about any similarities or inconsistencies.

    Berenji’s testimony failed Rule 702’s requirements 

    1. Qualifications

    Defendants first argued that Berenji was not qualified to testify as an expert witness regarding life care planning because (1) she was not certified as a life care planner and (2) she lacked experience in the field. Although Defendants acknowledged that lack of certification was not dispositive, they argued that such a lack—paired with the fact that Berenji had only been preparing life care plans for about a year and only had any training by way of the introductory module of certification coursework and by following a listserv—demonstrated that she was not qualified to speak as an expert in that area. 

    2. Reliability

    Defendants argued that Berenji “failed to take into account” that none of Plaintiff’s treating physicians recommended surgery when she formulated her life care plan. Berenji neither spoke with nor received any information from any of Plaintiff’s treating physicians.

    In sum, Defendants argued that because Berenji’s life care plan was based on generalized medical guidelines, rather than Plaintiff’s specific circumstances with his treating physicians, Berenji’s expert opinion was not based on “sufficient facts or data.”

    Because she did not discuss the need for more surgeries with qualified physicians, the Court held that Berenji cannot offer the requisite reliability for her opinions because she necessarily relied on her own lack of expertise or resorted to a generic set of guidelines to support her opinions.

    The Court disagreed with the suggestion that Berenji’s testimony “did not relate to any issue in the case.” Although it may be disputable and unreliable, it certainly would be relevant if allowed. That said, given that the Court agreed that Berenji’s testimony failed Rule 702’s other requirements (namely, her lack of qualification to provide spinal and other surgery recommendations and her lack of consultation with the treating physicians), the Court found that her expert testimony must be excluded.

    Held

    The Court granted Defendant’s motion to strike Manijeh Berenji because her testimony failed to meet the substantive standard for expert witnesses under Federal Rule of Evidence 702 and Daubert. 

    Key Takeaways:

    • The Court held that Berenji is unqualified to provide spinal and other surgery recommendations. She previously testified that she is not in a position to recommend spinal surgeries to patients and does not have training in the areas in which she recommended Plaintiff have treatment (spinal surgery, neurosurgery, orthopedics, physical therapy, pain management, optometry, or radiology). 
    • The Court found that Berenji’s guideline recommendations are not based on any consultation with Plaintiff’s treating physician because she did not discuss the need for more surgeries with qualified physicians.

    Case Details:

    Case Caption: Hamilton V. Louisville Cartage Co Inc Et Al
    Docket Number: 5:23cv241
    Court: United States District Court, Georgia Middle
    Date: May 21, 2024
  • Testimony of Life Care Planning Expert Witness Admitted Despite Claims of Rule 26 Deficiencies

    Testimony of Life Care Planning Expert Witness Admitted Despite Claims of Rule 26 Deficiencies

    The first-party lawsuit originated from a collision involving multiple vehicles on May 2, 2017. Plaintiffs Steve Watkins (“Mr. Watkins”) and Lisa Watkins (“Ms. Watkins”) were traveling in a vehicle in Harris County, Texas, when they were struck from behind and pushed into the vehicle in front of them. They were in the process of taking Ms. Watkins for a medical procedure. The Watkins asserted that another driver, Lucas Love, was at fault for the accident, and that he was “underinsured.” Mr. Watkins suffered a broken thumb. Mr. Watkins sought underinsured motorist (“UIM”) coverage benefits from Hartford Accident and Indemnity Company (“Hartford”) for his alleged injuries, and Ms. Watkins asserted a bystander claim.

    The Watkins had designated Dr. Shelly N. Savant, MD, CLCP, to provide expert testimony and a life care plan for Steve Watkins. Savant also purported to opine regarding Mr. Watkins’s prognosis, diagnostic and therapeutic necessities, and the alleged causal connection between his injuries and the accident. She had provided a life care plan, which included a plan for future medical treatment, an opinion on causation, opinions regarding the diagnosis and treatment history of Steve Watkins, and an estimate of the costs of purported future medical treatment.

    Hartford filed a motion to exclude the testimony of Shelly Savant, claiming Savant was not qualified to testify as an expert on causation because her opinions were not based upon a reliable foundation and were nothing more than speculation.

    Hartford also contended that Savant’s disclosure failed to comply with Federal Rule of Civil Procedure Rule 26 because the Watkins had not provided the facts or data considered by Savant in arriving at her opinions in this case. According to Hartford, without reliable factual data, Savant’s testimony contained analytical gaps and was speculation.

    Life Care Planning Expert Witness

    Shelly N. Savant is a board-certified neurologist and psychiatrist practicing in the private sector since 2005. As a neurologist and psychiatrist, she has the specialized skills and knowledge to diagnose and provide medical treatment for a diverse range of problems, including neurological and psychiatric emergencies as well as long-term care of chronic illnesses.

    She is also a certified life care planner and, as part of her private practice, she performs medical evaluations (interviews and/or examinations) for the purpose of providing additional medical opinions relating to diagnoses, prognosis, diagnostic and therapeutic necessities, and causation in the fields of neurology and psychiatry as well as develop life care plans for evaluees at the request of the referral sources.

    Discussion by the Court

    Moreover, Hartford argued that Savant’s testimony and purported life care plan were at odds with Mr. Watkins’ advice from medical providers and at odds with his own behavior. For instance, Dr. Varon, Mr. Watkins’s surgeon, did not include any recommendations for long-term medications, nor did he provide a referral for pain management in any of his records. Yet, Savant found a need for Mr. Watkins to undergo physical therapy, occupational therapy, blood tests, MRIs, x-rays, long-term pain medication, orthopedic surgery, primary care, pain psychology evaluations, and steroid injections for the rest of his life despite the fact that Mr. Watkins had not sought any of the treatments that Savant stated would be necessary since the accident on May 2, 2017.

    Mr. Watkins noted that Savant’s deposition had not yet taken place at the time of Hartford’s motion to strike, and that any flaws in Savant’s initial disclosure did not prejudice Hartford because Hartford was still able to hire an expert and provide a rebuttal report. Mr. Watkins maintained that Savant was qualified and had reliably applied the life planning principles and methodology to this case. She was both a board-certified neurologist and psychiatrist and a Certified Life Care Planner, had substantial post-graduate medical training in life care planning, and was a member of the International Association of Rehabilitation Professionals.

    The Court found that excluding Savant’s testimony was not the proper remedy for the Rule 26 deficiencies alleged by Hartford because it had adequate notice of the facts relied upon by Savant and was able to designate a counter-expert. 

    Assuming that Watkins could demonstrate that Savant applied her expertise to case specific-facts, the Court declared it best to resolve Hartford’s objections through cross-examination at trial.

    Held

    The Court denied Hartford’s motion to exclude testimony of Plaintiff’s expert Shelly Savant.

    Key Takeaway:

    The Court does not consider a Rule 26 deficiency if the opposing party had adequate notice of the facts the expert in question relied upon, especially to the extent of being able to designate a counter-expert.

    Case Details:

    Case Caption: Watkins Et Al V. Hartford Accident And Indemnity Company
    Docket: 4:21cv1946
    Court: United States District Court, Texas Southern
    Order Date: March 29, 2024
  • Occupational Medicine Expert Witness’ projection of Plaintiff’s future medical care costs rejected by the Court for lacking sufficient basis in the medical evidence

    Occupational Medicine Expert Witness’ projection of Plaintiff’s future medical care costs rejected by the Court for lacking sufficient basis in the medical evidence

    Plaintiff Autumn Brown, who was twenty-two years old at the time, sustained injuries on June 24, 2020 after a vehicle driven by an employee of Defendant BellSouth Telecommunications, LLC struck her vehicle at an intersection in Pascagoula, Mississippi. She was taken to the emergency department at Singing River Hospital where they found she had suffered a broken right wrist, broken bones in her pelvic area, a fractured lumbar vertebra, and a liver laceration. She was transferred to USA Medical Center in Mobile, Alabama for further treatment, where testing revealed she also had a ruptured bladder.

    Brown reported having issues controlling her bowel and bladder, back and pelvic spasms, stiffness, decreased range of motion, incontinence, and mental health problems – all of which she attributed to the accident.

    Defendant BellSouth filed a motion in limine to limit the testimony of Plaintiff’s retained expert, Dr. Gregory L. Smith, regarding Smith’s life care plan which projected $345,337 in future medical damages for Brown. BellSouth argued the life care plan lacked sufficient factual basis.

    Occupational Medicine Expert Witness

    Gregory L. Smith, M.D., M.P.H. graduated from Rush Medical College in Chicago and served in the U.S. Army Medical Corp for six years, achieving the rank of Major and completing his residency in Occupational and Preventive Medicine at Walter Reed Army Medical Center. Following his military service, he earned a Master’s of Public Health (MPH) from Harvard University and published numerous research articles in peer-reviewed medical journals.

    In 1988, Smith entered private practice, specializing in Occupational Medicine in various states, including California, Georgia, Florida, and Texas. He was recognized as a Fellow of the American Board of Occupational and Preventive Medicine and appointed as an Agreed Medical Examiner (AME) by worker’s compensation judges in two California counties. Additionally, he obtained certification from FIG® in Medical Cost Analysis.

    Smith’s extensive experience includes providing expert medical opinions and testimony on numerous cases related to causation, medical necessity, and future medical care. He has authored hundreds of Life Care Plans and Medical Cost Projections for personal injury cases, demonstrating a comprehensive understanding of medical assessments and cost analysis in the legal context.

    Discussions by the Court

    Smith reviewed Brown’s medical records and conducted an interview, leading to the following conclusions:

    Brown had the following diagnoses and associated impairments linked to the injury:

    • She experienced pelvis pain resulting from bilateral superior pubic rami comminuted displaced fractures, a right inferior pubic ramus fracture, and a left sacral ala intra-articular fracture. She underwent open reduction internal fixation (ORIF) for bilateral superior ramus fractures and closed reduction percutaneous screw fixation for bilateral sacral fractures on June 25, 2020.
    • Brown faced bowel incontinence.
    • She reported right wrist pain attributed to a healed impacted fracture of the distal radius and an ulnar styloid process nondisplaced fracture.
    • A bladder repair was performed on June 25, 2020, resulting in residual bladder urgency and incontinence.
    • Brown struggled with anxiety and depression

    Smith, in his future care projections, organized the anticipated needs into four categories: (1) medication; (2) future diagnostic studies and surgeries for the “late sequelae” of Brown’s broken bones and bladder rupture; (3) durable medical equipment (“DME”); and (4) a Functional Restoration Program for pain management.

    Regarding medication, Smith opined that Brown had an “ongoing need for prescription medications,” including daily use of cyclobenzaprine, which proved effective for residual symptoms. He projected that Brown would require Cyclobenzaprine (Flexeril) at 10mg per day for 63.9 years, with a total cost of $7,668.

    The most substantial projected future care costs were allocated to the “late sequelae” of Brown’s ongoing wrist and pelvic pain from broken bones, as well as for “neurogenic bowel and bladder” problems presumably related to her rupture. Smith predicted that these “late sequelae” would necessitate a comprehensive diagnostic evaluation, along with potential interventional pain injections and/or surgery. The projected future care costs also factored in pre- and post-operative diagnostic studies, perioperative medical and facility costs, and required post-operative therapy.

    In terms of durable medical equipment (DME), Smith foresaw Brown’s need for six Neuromuscular Stimulator units throughout her life, each costing $600, along with two sets of supplies per year for these units. The total projected cost for DME amounted to $11,268.

    The remaining costs in the life care plan covered a Functional Restoration Program, incorporating a three-day evaluation and 160 hours of programming, with a total cost of $27,000.

    In summary, Smith projected Brown’s future medical damages at $345,337.

    The Court found that Smith’s testimony failed the Daubert test because his report lacked specificity in linking Brown’s medical records to the projected future care needs and establishing a reasonable degree of medical probability in the causal relationship to the accident.

    In the context of future diagnostic studies and procedures for the “late sequelae” of Brown’s injuries, Smith did not identify or describe these sequelae beyond residual pain. The report failed to connect specific instances of projected future medical care to recommendations by any of Brown’s treating physicians. Additionally, the Court noted that Plaintiff’s counsel acknowledged during the hearing on September 21, 2023, that none of the treating physicians would opine on the need for future treatment, leaving the court unconvinced by Smith’s projections.

    Furthermore, the Court observed that some of the medical records cited by Smith contradicted his projections. Brown mentioned in her interview with Smith that her orthopedist and urologist had released her, and the report indicated that she was no longer seeing a physical therapist. Despite listing a home exercise program under current treatments, Smith did not mention physical therapy, and no surgeries were scheduled.

    Smith projected twelve future neurologist visits, although he provided no records of Brown receiving neurology care after the accident. Moreover, Brown denied a head injury immediately after the accident, and her hospital CT scan revealed “no significant abnormality.”

    In essence, the Court concluded that Smith’s assertions were insufficient, emphasizing the need for a more concrete connection between Brown’s medical records, the projected future care needs, and a demonstrated causal relationship to the accident. The Court could not rely solely on Smith’s assertions without a more substantial basis.

    Smith’s projections of Brown’s future care needs were deemed insufficient by the Court. In the case of future drug costs, Smith’s assertion that Brown had an “ongoing need” for Flexeril was criticized. The Court noted that simply because she was currently taking the drug and it had been effective did not necessarily mean she would require it for the rest of her life. Smith did not provide detailed explanations for why she would need Flexeril continuously, relying on a broad statement about her “ongoing need.”

    Similarly, Smith’s opinion about the Neuromuscular Stimulator unit lacked sufficient justification. While he asserted that Brown would benefit from prolonged use due to chronic pain, he did not explain why she would experience a lifetime of problems with pain and spasms or how the stimulator would address these symptoms adequately.

    The last medical care projection, the Functional Restoration Program, was also challenged. Smith referenced “current treatment guidelines (ODG)” to support the prescription, stating that Brown was expected to have long-term issues with bowel and bladder incontinence, anxiety, depression, and significant functional losses. However, the Court noted that no treating physician had recommended this program for Brown, and Smith’s conclusory statements lacked a clear basis in the medical evidence.

    The Court emphasized the difference between weak and insufficient bases for expert testimony, asserting that Smith’s life care plan did not demonstrate a sufficient reliance on medical evidence to predict Brown’s future care needs accurately. Despite Smith’s status as a medical doctor, the Court found that he provided projections without an adequate foundation in the available medical evidence, specifically regarding the medical necessity of the predicted future care.

    While Brown was undoubtedly injured, the medical records discussed in Smith’s report did not demonstrate an ongoing, specific, permanent injury. These records also lacked any doctor’s recommendations for future care. Smith’s report acknowledged the possibility of future pain, including the “chronic pain syndrome” he attributed to Brown, but he noted that it had not been diagnostically evaluated or treated.

    The Court determined that there was a significant analytical gap between the data presented and the opinions Smith proffered. The absence of conclusive evidence supporting ongoing, specific injuries and the lack of doctor-recommended future care contributed to this analytical gap.

    Additionally, the Court concluded that the opinions expressed in Smith’s life care plan were inadmissible under Federal Rule of Evidence 403. Based on the reasons discussed earlier, the Court found that the “probative value” of Smith’s life care plan was substantially outweighed by the danger of unfair prejudice, confusion of the issues, and potential to mislead the jury regarding the extent of Brown’s future medical needs and their associated costs.

    Held

    The Court granted Defendant BellSouth Telecommunications, LLC’s Motion in Limine to Limit Testimony of Plaintiff’s Retained Expert, Gregory L. Smith, M.D., M.P.H., as a result of which he was precluded from testifying at trial to the opinions in his life care plan.

    The case was dismissed with prejudice on October 23, 2023 after the parties announced to the Court a settlement of this case.

    Key Takeaways:

    • An expert’s testimony must be based on sufficient facts and data to be admissible under Rule 702. The Court found Smith’s life care plan lacked a sufficient basis in the medical records.
    • An expert cannot simply state conclusions without explaining the underlying facts and analysis. The Court found there was too great an analytical gap between the data and Smith’s opinions.
    • An expert should clearly connect their opinions to specific recommendations by treating physicians when possible. Smith did not link his projections to any treating doctor’s recommendations.
    • A life care plan should identify ongoing, specific, and permanent injuries as a basis for projections. The Court found Smith did not show Plaintiff had such identifiable permanent injuries.
    • Expert opinions can be excluded under both Rule 702 and 403 if unreliable or prejudicial. The Court found admission would be unfairly prejudicial and misleading here.