Virginia Lawyers Weekly//May 9, 2023
Virginia Lawyers Weekly//May 9, 2023//
Where a life care planner selected which medications, treatments, therapies or modalities she believed an injured party would require in the future, she was rendering medical opinions without sufficient medical grounding or expert support. Her expert report was excluded as a result.
This case arises from a serious motor vehicle accident between Yvette Norman and Julian J. Kaczor, who was operating a semitruck owned by Leonard’s Express Inc. Presently before the court is Norman’s motion in limine to: (1) exclude the report and testimony of the defendant’s life-care planner Shelby Dubato or, in the alternative, limit her testimony if she is permitted to testify; (2) preclude defense experts from offering undisclosed opinions relating to Norman’s future care needs and (3) compel production of Dubato’s statement of compensation.
Because Dubato is not a licensed medical doctor, Norman contends that she is not qualified to render an expert opinion about the future necessity or non-necessity of medical and surgical treatment, therapeutic treatment, and prescription medication. Norman further argues that Dubato’s report was expressly conditioned on endorsement by a qualified medical expert and that, since that requested endorsement was never obtained and Leonard’s Express’s expert disclosure deadline has passed, Dubato’s report and testimony should be excluded at trial.
As an initial matter, physician endorsement is not necessarily required for admission of a life care plan. “[C]ourts in this circuit have found that life-care plans can be admissible without a physician review, so long as they are reliable.” Although a life-care plan need not be approved by a physician, the medical treatments and therapies outlined therein must be predicated on expert medical opinion.
Here, Dubato expressly listing the extensive documents, medical records, and medical expert reports on which she relied; fairly thoroughly reviewing them; drawing on her education, training and experience and her repeatedly expressing that she relied on medical records, Dubato’s opinions exceed the scope of her expertise. And by selecting which medications, treatments, therapies or modalities she believed Norman would require in the future, she rendered medical opinions without sufficient medical grounding or expert support. After closely reviewing the defense medical expert’s reports, the court finds that only some of Dubato’s opinions can be supported by reference to a proper medical opinion.
Because Dubato is unqualified to render medical opinions, the court’s gatekeeping obligation requires it to exclude all portions of her report that constitute medical opinions without very specific foundation in a treating physician’s or medical expert’s opinion. After those excisions, the life care plan is effectively gutted, and what remains—whether presented with line-by-line redactions or other impracticable method—would be incomplete, contradictory and, at bottom, wholly unreliable. To prevent this unreliable testimony from misleading (or confusing) the jury, Dubato’s entire report must be excluded. This moots those portions of Norman’s motion that relate to the scope of her testimony and statement of compensation.
Norman argues that, setting Dubato’s report aside, Leonard’s Express should be precluded from using reports or testimony relating to Norman’s future care needs or its cost from any experts not disclosed by its March 7, 2023, expert discovery deadline. To the extent that this portion of Norman’s motion is intended to cover Dubato’s addendum, it will be denied as moot because Dubato’s addendum will be excluded on Rule 702 grounds.
Because Norman has not moved to exclude any particular other such report or testimony, the court will not render a speculative or advisory opinion on this issue beyond Dubato’s addendum. This portion of Norman’s motion will therefore be denied without prejudice as unripe as it relates to any proposed expert other than Dubato.
Plaintiff’s motion in limine granted in part, denied in part, and mooted in part.
Norman v. Leonard’s Express Inc., Case No. 7:22-cv-00096, April 21, 2023. WDVA at Roanoke (Cullen). VLW 023-3-219. 14 pp.