Virginia Lawyers Weekly VA Lawyers Weekly
A life care planner’s expert report was excluded from an auto accident trial after a federal judge ruled that the planner rendered medical opinions that she was not qualified to in her report.
U.S. District Judge Thomas T. Cullen handed down the opinion in Norman v. Leonard’s Express Inc. (VLW 023-3-219) for the U.S. District Court for the Western District of Virginia.
“[B]y 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,” Cullen wrote.
The judge decided to exclude the life care planner’s entire report, noting that, after the exclusions dealing with medical opinions are made, the report would “be incomplete, contradictory, and, at bottom, wholly unreliable.”
Background
The case stemmed from a serious motor vehicle accident involving Yvette Norman and a semitruck owned by Leonard’s Express Inc.
Norman filed a motion to exclude the expert report and testimony of Shelby Dubato, a life care planner retained by the defendant to “present a life-care plan forecasting the cost of Norman’s future care needs stemming from the motor vehicle accident that gave rise to this lawsuit.”
Norman sought to exclude Dubato’s report and testimony, preclude defense experts from offering opinions related to Norman’s care needs and “compel production of Dubato’s statement of compensation.”
Specifically, Norman noted that Dubato “rebut[ed] and challeng[ed]” the plaintiff’s expert’s calculation of Norman’s future care needs, which Norman contended Dubato was “not qualified to render” an expert opinion on.
Further, Norman argued 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 has passed, Dubato’s report and testimony should be excluded at trial.”
The plaintiff also stated that in Dubato’s report, she made determinations that “various medical opinions endorsed” by Norman’s medical expert were “indicated” or “not indicated,” which Norman claimed were “the province of a medical expert.”
Leonard’s Express countered by stating Dubato’s background made the life care plan admissible and that the report did not require a physician’s endorsement to be admissible.
Analysis
Cullen pointed out that physician endorsement isn’t necessarily required for admission of a life care plan, but medical treatments and therapies included within the plan “must be predicated on expert medical opinion.”
Here, the judge agreed with the plaintiff that Dubato’s plan extended beyond expert medical opinion.
“Despite 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,” Cullen wrote. “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.”
The judge specifically cited the “medications” category of her report, where Dubato wrote that three headache drugs are “not indicated,” while deeming a different headache drug necessary.
“[N]either Dr. Richmond nor Dr. DeRight (the defense medical experts) opined that Norman would not need Nurtec, Prazosin, or Voltaren to treat her headaches in the future,” Cullen wrote.
Cullen also pointed out that, under the “projected evaluations” section, Dubato noted physical therapy, occupational therapy and speech therapy evaluations as “not indicated” and assigned them “a $0 lifetime value.”
“In other words, Dubato does not — and on the record before the court, cannot — point to a medical expert or treating physician who opines that Norman will need what Dubato says is ‘indicated,’ and nothing more,” the judge wrote. “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.”
As such, Cullen found the defendant did not meet the burden to show that more than half of the “non-indicated” items in the report were “adequately grounded in the medical expert reports.”
As for those items marked as “indicated,” Cullen noted that, if Dubato’s report had been grounded in the findings of DeRight and Richmond’s reports, “she would, as a matter of logic and common sense, have concluded that nothing was ‘indicated.’”
“Dubato’s report is even more unreliable because her pick-and-choose approach is incompatible with the defendant’s own medical experts’ opinions,” the judge wrote. “As the plaintiff aptly put it, Leonard’s Express cannot have its cake and eat it too.”
Having found “no reliable basis for most of her ‘indicated’ or ‘not indicated’ determinations,” Cullen ruled that all portions of the report that constitute medical opinions “without very specific founding in a treating physician’s or medical expert’s opinion” be excluded under “the court’s gatekeeping obligation.”
And, following those exclusions, Cullen held that Dubato’s entire report must be excluded.
“After those exclusions, 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,” Cullen concluded.
Norman’s motion to preclude Leonard’s Express’s experts from offering undisclosed opinions related to Norman’s future care needs was denied.
“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,” Cullen wrote.
Since Norman did not move to exclude any other specific report or testimony, the court did not render an opinion on the issue beyond Dubato’s addendum.
