This is a medical malpractice action which arises from care provided by Defendant Richard Bellon, M.D. (“Dr. Bellon”) to Plaintiff Lauren Bern a/k/a Lauren Britton (“Ms. Bern”) in February 2021 at Defendant HCA-HealthONE LLC d/b/a Swedish Medical Center (“SMC”) after Bern suffered a stroke following the procedure, resulting in injuries.
In support of their alleged damages, Plaintiffs Bern and her husband, Joshua Britton disclosed several experts while Defendants, in turn, disclosed rebuttal experts, including a forensic accountant, Alison Wise, CPA and a physical medicine and rehabilitation doctor, Kara E. Flavin, M.D. Plaintiffs filed motions to strike certain opinions of Wise and Flavin.
Forensic Accounting Expert Witness
Alison Wise is a forensic accountant in the CPA firm of Matson, Driscoll & Damico, LLP (“MDD”). She has eleven years of experience in evaluating forensic accounting cases and measuring damages claims, including those relating to injuries, lost earnings or profits, and future medical care.
Brain Injury Expert Witness
Kara Eunice Flavin is a board-certified physiatrist who specializes in brain injuries, regularly works with stroke patients as part of her practice.
Discussion by the Court
Alison Wise
Plaintiffs filed a motion to strike and preclude three of Wise’s categories of opinions regarding Bern’s: (1) salary and benefits; (2) future wage loss; and (3) needed household services.
A. Opinions on Bern’s Salary and Benefits
Wise opined about Bern’s past and future lost earnings and benefits based on Bern’s employment at the time of the incident. As part of that opinion, Wise calculated Bern’s lost past and future benefits.
Wise opined that because there has been “no evidence or testimony to support which benefits Bern was actually participating in,” the fringe benefit percentage should be 11.3% of her salary, “which approximates the amount of Bern’s salary allocable to legally required benefits.”
Plaintiffs contended that this opinion should be stricken because “Wise did not consider Bern’s specific benefits provided through her employer” and the 11.3% rate “only included calculations for Social Security and Medicare.”
Indeed, when asked at her deposition, Wise admitted that if Bern participated in other benefits, such as health insurance, a 401(k) plan with a match, and disability, the fringe benefits would increase by 13-15%.
It appears that Wise knew of the appropriate methodology to use but inexplicably failed to ask for any of the underlying data that would allow her to employ such methodology.
B. Opinions on Bern’s Future Wage Loss
Wise also opined in her report regarding Bern’s future wage loss, and Plaintiffs raised three distinct challenges to that opinion: first, they argued that Wise’s admission that there is a calculation error in her report “provided adequate evidence that calls the totality of Wise’s opinions in question.” Second, they contended that Wise’s reliance on the “Markov Model” to calculate Bern’s work-life expectancy is unreliable, because “she has not researched the model to see any validation or verification of the data,” is “unaware of the data the Markov Model uses to generate their reports,” and cannot “explain the statistical analysis underlying the data.”
Third, Plaintiffs argued that Wise’s reduction of Bern’s future wage loss based on Flavin’s life expectancy opinion has no grounding in any generally accepted forensic accounting methodology and additionally should be precluded because Flavin’s life expectancy opinion should be excluded.
The Court was not persuaded by Plaintiffs’ first two arguments—for which Plaintiffs cited no authority in support. At threshold, a “simple math error” in an expert’s calculation is not grounds to strike an expert opinion that is otherwise based on sound methodology.
Regarding the Markov Model, Plaintiffs did not argue that the model itself is unreliable. Indeed, Plaintiffs acknowledged that Wise testified that she has been using the Markov Model throughout her entire career as a forensic accountant, as has her supervisor.
Rather than take issue with the economic model’s reliability, Plaintiffs attacked Wise’s usage of the model on the grounds that, essentially, she does not understand how it works and has not independently verified the data it uses. But these issues go to the weight of the evidence and can be addressed through cross-examination.
C. Opinions on Bern’s Needed Household Services
Plaintiffs urged the Court to strike Bern’s opinion on household services because ” Wise did not complete any evaluation of Bern’s necessary household services and did not employ any analysis to review the household service loss for Bern.” Further, Plaintiffs argued that Wise admitted that she was speculating that these household replacement costs would be covered by the costs in the Life Care plans.
Without the benefit of a response from Defendants, the Court respectfully agreed with Plaintiffs. Wise admitted in her deposition that she did not conduct any investigation into whether home healthcare agencies—i.e. what Bern’s life care plan accommodates for—provide household services such as mowing the lawn, housekeeping, and grocery shopping. Nor is there any evidence that Wise relied on her expertise to come to this conclusion, either in her report or her deposition. On the contrary, Wise admitted that she was “speculating that the home healthcare agencies would actually provide the essential/home services.”
D. Testimony Regarding Bern’s Current Medical Condition or Medical Needs
Plaintiffs requested that the Court “exclude any testimony from Wise on Bern’s current medical condition or medical needs, as Wise is admittedly not qualified to offer medical, mental health, or other healthcare opinions.”
Plaintiffs did not provide any additional information and did not point the Court to any portions of Wise’s report or deposition where Wise opined on ” Bern’s current medical condition or medical needs.” To the extent that Plaintiffs are concerned about Wise testifying about matters not included in her report, this issue is not properly before the Court and can be addressed if it arises during trial.
Kara Flavin
Flavin was retained by Defendants to “conduct an independent medical examination of Bern and opine on her future needs.” In her report, Flavin offered a range of opinions regarding Bern’s medical care needs, including, that Bern has a life expectancy of 18 years from the date of the report.
Plaintiffs argued that Flavin’s opinion regarding Bern’s life expectancy should be stricken for four reasons: (1) it is not grounded in the method of science, and is therefore unreliable; (2) Flavin is not a statistician and does not have the education, training, or experience to conduct the statistical extrapolation needed for her life expectancy opinion; (3) the method used by Flavin to extrapolate Bern’s life expectancy is not grounded in accepted scientific principles; and (4) the study that Flavin used for her calculations is not meant to estimate the life expectancy of a person who suffers a stroke.
The Court respectfully found Flavin’s extrapolation methodology unreliable considering Flavin acknowledged during her deposition that she does not know whether her extrapolation method is generally accepted. She did not offer any supporting scientific literature or precedent, any accepted practice of extending survival data to younger cohorts, or any explanation for why extending a certain pattern observed across three age intervals would hold true for a patient a decade younger than anyone studied.
It should be noted that the Court granted Plaintiffs’ motion to exclude Wise’s opinion regarding Bern’s future wage loss to the extent it relied on Flavin’s life expectancy calculation.
Held
- The Court granted in part and denied in part Plaintiffs’ motion to strike certain opinions of Alison Wise, CPA.
- The Court granted Plaintiffs’ motion to strike certain opinions of Kara Flavin.
Key Takeaway
This Court does not require an expert to have an in-depth knowledge of all the algorithms underlying their technological tools to reliably testify about the outputs of those tools.
Case Details:
| Case Caption: | Bern V. HCA-Healthone, LLC |
| Docket Number: | 1:23cv304 |
| Court Name: | United States District Court, Colorado |
| Order Date: | March 24, 2026 |
