Steven Babitsky, Esq.

The United States District Court, M.D. Louisiana dealt with a slip and fall case and the life care plan of Aaron Wolfson, PhD. Dr. Wolfson spoke to the treating physicians and then sent a letter to each doctor, recording the need for future medical treatment of the plaintiff.

The court held that the procedure followed by Dr. Wolfson was appropriate and denied the motion to exclude this testimony.

The court stated:

In his report, Wolfson states that he consulted with Isaza, Graham, Jaffarzad and Acosta on February 19, 2020 and that their “recommendations are outlined in the life care plan section of this report.” (Doc. 23-2 at 4-5.) In his affidavit, Wolfson states that during his consultations, he asked each of them “to enumerate future medical recommendations for Ms. Smith, on a more probable than not basis, related to her slip and fall in Dollar General on 3/25/18.” (Doc. 26-1 at 2 (emphasis added).) In his affidavit, he states explicitly what is implicit in his report: “After each telephone conversation, I memorialized my understanding of each physician’s recommendations in written correspondence which I forwarded to each physician.” (Id.)

He then sent the written recommendations, based on his consultations, to each of the doctors. The summary sent to the doctors states “You recommended the following from a more probable than not standpoint related to Ms. Smith’s injuries sustained on 03/25/18.” (Id.) In this written communication, “[e]ach physician was advised to `Please review this form. If there are any changes, denote the changes on this letter. Once reviewed, please sign and return this form to me.” (Id.) Wolfson states emphatically in his affidavit that “none of the four treating physicians provided any written or verbal feedback contradicting my understanding of their medical recommendations.” (Id. (emphasis and bold in original).)

Wolfson states that certain of the deposition testimony of Jaffarzad stands “in direct conflict with the information [she] provided to me in our documented telephone conference.” (Id. at 3.) He maintains that the Acosta’s statement quoted by Defendant in briefing “is an ambiguous statement that may or may not obviate the need for this service [a neuropsychological evaluation] in the Life Care Plan” and that other statements quoted from Acosta’s deposition are “again in conflict with our documented phone conference.” (Id. at 3-4.) He also notes that some of Defendant’s objections based on Acosta’s testimony were also recommended by Isaza to which no objection was made. (Id. at 4.) Finally, he states that some of the objected to items from Graham were “for informational purposes only” and Wolfson clearly noted in his report that these were not being included in his future cost calculations. (Id.)

In this case, Wolfson consulted with Plaintiff’s four treating doctors and asked them their recommendations for future medical treatment based on a more probable than not standard which was related to the subject accident. (Doc. 26-1 at 1-2.) He summarized their recommendations on a chart and sent it to them asking that “[i]f there are any changes, denote the changes on this letter. Once reviewed, please sign and return this form to me.” (Id. at 2.) None of the doctors returned Wolfson’s letter with changes. (Doc. 26-1 at 2.)

An expert can rely upon otherwise inadmissible evidence as long as it is of a type “reasonably relied upon by experts in the particular field.” Fed. R. Evid. 703. See also, Monsanto Co. v. David, 516 F.3d 1009, 1015-1016 (5th Cir. 2008) (finding that expert could rely upon a report prepared by someone else). The purpose allowing experts to rely on another expert’s opinions is that “an expert cannot be an expert in all fields, and it is reasonable to expect that experts will rely on the opinion of experts in other fields as background material for arriving at an opinion.” Concerned Area Residents for the Environ. V. Southview Farm, 834 F. Supp 1422, 1436 (W.D.N.Y. 1993).

National Union Fire Ins. Co. v. Smith, No. 11-830, 2014 WL 5794952, at *4 (M.D. La. Nov. 6, 2014) (deGravelles, J.).

It is therefore appropriate for a life care planner to consult with a plaintiff’s treating doctors to gather their opinions regarding future medical care. It is appropriate for a life care planner to incorporate those opinions in his report. As Wolfson notes in his affidavit, this procedure is “the standard of practice that all certified life care planners are upheld. [sic]” (Doc. 26-1 at 2 (citing the Standards of Practice for Life Care Planners, 3A, 3B, 3C, 4A, 6D, 7B, and 7C attached to his affidavit at Doc. 26-1 at 33-35).)


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