Keeping Testimony of Future Medical Expenses “Out of the Gate”

In a recent case involving Keogh Cox attorneys, the Eastern District of Louisiana in Michael Brander, Jr. v. State Farm Mutual Auto. Ins. Co., Civ. A. No. 18-982 (Feb. 14, 2019), 2019 WL 636423 barred testimony of substantial projected medical expenses because it was not based on a reliable methodology. This ruling stands to impact many other cases where plaintiffs seek to use far-reaching projections of a life-long need for radiofrequency ablations (“RFAs”) or other pain-management modalities to “board” six and even seven-figure numbers for future medical expenses.  

In Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the United States Supreme Court recognized the trial judge as the “gatekeeper” of expert opinion testimony and held that only reliable and relevant expert opinions may be admitted.  The reliability requirement serves to keep expert opinions “outside the gate” when they constitute unsupported speculation or mere subjective belief; only scientifically valid expert opinions are allowed inside.  To ascertain whether an expert opinion is scientifically valid, Daubert instructs the trial court to consider:

            ∙           whether the expert’s theory can or has been tested;

            ∙           whether it has been subject to peer review and publication;

            ∙           the known or potential rate of error when applying the theory;

            ∙           applicable standards and controls; and,

            ∙           the degree to which the theory has been generally accepted in the scientific community.

In Brander, the plaintiff advanced medical testimony that he would need RFAs every year of his expected lifetime, a period of 36 years. The court disallowed the testimony, noting that the plaintiff’s physicians had less than ten years personal experience in administering RFAs to patients, the medical literature only considered the effectiveness of RFAs over a span of seven to ten years, and there was no showing that the 36-year treatment plan was in general acceptance by the medical community.  According to the court, the expert opinions offered by plaintiff failed Daubert “on all points.” As a result, the plaintiff was permitted to introduce testimony of future RFAs for only a seven-year period. 

The reasoning of Brander may be equally applicable to projections of lifetime treatment involving other medical procedures, such as medial branch blocks, Botox injections, or spinal cord stimulators, for which the long-term efficacy has not been firmly established in the medical literature. Opinions unsupported by personal treatment experience and peer-reviewed medical studies are not scientifically valid and are properly halted “at the gate.”

Nancy B. Gilbert is a partner with Keogh Cox in Baton Rouge, Louisiana.  She is a puzzle-solver by nature, and specializes in providing clear and in-depth analysis of complex litigation issues.  

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