When accident victims suffer catastrophic injuries, their lawyers rely on life care planners to help them estimate the cost of their future needs. Insurance defense counsel retains life care planners to review the plaintiff’s expert report and to alert counsel to any shortcomings in the life care planner’s analysis.
Life care planners provide critical opinions about the future needs of accident victims who suffer disabling injuries. This blog post examines what it takes to make those opinions admissible as evidence in court.
Life Care Planner’s Expert Report
The admissibility of expert testimony is a function of federal or state law. The Federal Rules of Civil Procedure require testifying experts to prepare a detailed report before they testify. That report must include:
1. a complete statement of all opinions the witness will express and the basis and reasons for them;
2. the facts or data considered by the witness in forming them;
3. any exhibits that will be used to summarize or support them;
4. the witness’s qualifications, including a list of all publications authored in the previous 10 years;
5. a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and
6. a statement of the compensation to be paid for the study and testimony in the case.
While the federal rules require the report to be disclosed at least 90 days before trial, scheduling orders often impose a tighter deadline. Expert evidence may be excluded if delays in retaining an expert prevent a report from being disclosed on time.
It makes sense to have an expert on board before the suit is filed. To prepare a report that complies with the federal rules, a life care planner will need time to investigate the facts. That investigation typically involves an interview with the injury victim and his or her family members, a home visit to determine whether home modifications are needed to accommodate the victim’s disability and research regarding the costs in the victim’s community of meeting future needs.
Conducting that analysis before the suit is filed will provide the attorney with a better understanding of the settlement value of the injury claim. It will also give the attorney time to review the report and to discuss the expert’s findings before the report is finalized.
Procedural rules in state courts may or may not require experts to prepare a written report. In all states, expert opinions are discoverable. Scheduling orders often require that experts disclose their opinions well ahead of trial. Again, lawyers should consider their need for a life care planning expert even before they file suit.
Life Care Planning Expert and the Daubert Standard
Expert evidence is generally admissible in federal court if it meets the Daubert standard. That standard requires an expert’s opinion to be based on sufficient facts, a reliable methodology, and the reliable application of that methodology to the facts.
As a federal judge in Alabama noted, “courts routinely recognize that life care planners may be qualified to provide testimony as to future care of injured patients and the cost of such care.” The key to offering admissible opinions lies in the expert’s application of a reliable methodology to facts that can be established at trial.
An appellate decision from the Court of Appeals for the First Circuit explains how the expert testimony of a life care planner can satisfy the Daubert standard. In Rivera v. Turabo Medical Center, the Riveras began a medical malpractice action against health care providers after their baby was born with permanent neurological damage. They alleged that the baby was deprived of oxygen prior to birth.
The Riveras settled with their negligence claim against the physician who delivered the baby. The case went to trial against the hospital on the theory that hospital personnel negligently failed to monitor the labor and childbirth process.
There was no dispute that the baby will never be able to see, walk, or communicate. She has a life expectancy of 45 years and will need a caretaker for her entire life.
The Riveras called a life care planner as an expert witness. The court reviewed the expert’s professional credentials and concluded that the life care planner had the appropriate training, education, and experience to form opinions about the baby’s future needs and the cost of providing them. The court also noted that the life care planner had been admitted as an expert on rehabilitation and lifecare planning in many state and federal courts. The expert was, therefore, qualified to testify.
The hospital objected that the life care planner did not base his opinion on adequate facts or a reliable methodology. The expert testified that his lifecare plan was based on a review of records from the agency that currently provided the baby’s skilled nursing care, a letter from her physician, and an interview of the child’s family and caregiver. The lifecare planner used a variety of reliable sources to project future costs. The court concluded that the expert’s opinions were based on adequate facts.
The defense claimed that the expert did not employ a reliable methodology because he did not ask a physician to review the expert’s projections regarding future healthcare needs. The court was satisfied that the expert had the necessary expertise to make those projections based on the medical opinions that the expert reviewed. The expert’s methodology was designed to produce a reliable result. At least in that particular case, it was not necessary for a physician to agree with the expert’s conclusions to assure that the conclusions were reliable.
The jury award $5.5 million to the Riveras. The appellate court affirmed that award after concluding that it was well supported by admissible evidence, including the testimony of the lifecare planner.
Attorneys and expert lifecare planners work together to present admissible evidence of future damages that will be needed to compensate the victim of a catastrophic injury. Lawyers have the legal expertise to assure that expert evidence is admitted. Lifecare planners have the expertise to investigate the facts, research local costs of care, and prepare reliable projections of a disabled victim’s future needs and the expenses that will be incurred to meet those needs.