The U.S. District Court (E.D Missouri) dealt with the plaintiff, Bayes, who sued a biomedical company, Biomet, for a defective hip implant. The defense sought to exclude the life care planner, Corwin, who is ACRC and a certified life care planner.

The court denied the motion to exclude, stating that the methodology was sufficiently reliable.

The court stated:

The Court finds Corwin’s methodology in this case sufficiently reliable. Basically, Lux provided recommendations regarding Mary’s future medical needs, and Corwin provided a calculation of the associated costs, based on her knowledge, experience, and research. Corwin permissibly relied on Lux’s medical opinion. Fed. R. Evid. 703; see also Roach, 2015 WL 3970739, at *4. Thus, the Court denies Biomet’s motion to exclude the entirety of Corwin’s opinions as the product of unreliable methodology.

  1. Corwin’s opinions regarding Mary’s future medical care

Biomet also seeks to exclude certain specific opinions in Corwin’s life-care plan unsupported by any independent recommendation from a medical professional. As noted above, most of the future medical care needs identified in Corwin’s life-care plan are based on specific recommendations from Lux. For example, the life-care plan includes a “power scooter” for the purpose of “long distance and community mobility,” and lists Lux as the recommender. Doc. 122-3 at 11. However, a few items in the life-care plan list Corwin as the recommender, rather than Lux. Biomet argues that Corwin lacks the requisite qualifications to offer these opinions on Mary’s future medical needs because she is not a medical professional.

The life-care plan includes only three items that list Corwin as the recommender rather than Lux: a primary care physician, a power scooter lift, and power scooter maintenance. Lux recommended the power scooter for Mary but did not separately recommend the lift or maintenance. When asked about this, Corwin testified:

I don’t believe that I had asked [Lux] about the lift, but it’s standard that it needs to have a lift so you can mobilize it. So I recommended that. And then the maintenance, we all know scooters need to be maintained once a year.

Doc. 122-1 at 114:10-14. Biomet argues that Corwin is unqualified to offer these opinions. The Court disagrees. Corwin is not a medical professional and cannot independently assess Mary’s medical needs. But she has not done so. Lux recommended the power scooter. Relying on that medical assessment, Corwin calculated the necessary costs to effectuate Lux’s recommendation, including a lift and maintenance.

Corwin did not thereby intrude into the realm of medical judgment. Rather, the Court finds this is precisely the type of opinion that may make a life-care planner’s testimony helpful to the jury—i.e., providing an assessment of the real-world costs of a physician’s care recommendations. If Biomet has evidence that scooter lifts and maintenance are unnecessary, it may certainly cross-examine Corwin on that basis. But the Court will allow Corwin to offer her opinion that these costs are necessary. Finally, regarding the primary care physician, Corwin attributed no separate cost to this item because Mary “has other health conditions for which she also sees her [primary care physician].” Doc. 122-3 at 5. Thus, Biomet’s request to exclude this item in the life-care plan is baseless.

  1. Corwin’s opinions regarding future revision surgeries

Biomet also seeks to exclude opinions in Corwin’s life-care plan regarding Mary’s need for future revision surgeries (and the associated costs). During his consult with Corwin’s staff, Lux opined “to a reasonable degree of medical certainty,” that Mary “will experience on average an episode of left hip dislocation every 5 years for the remainder of her life expectancy.” Doc. 137-1. Lux further opined that, with each dislocation, Mary will need revision surgery to repair her hip. Id. Relying on statistics published by the National Center of Health Statistics, Corwin calculated Mary’s remaining life expectancy at 16.5 years. Doc. 122-2. Thus, the life-care plan anticipates a revision surgery “every five years for a total of 3 times over [Mary’s] life expectancy.” Doc. 122-3.

Although Corwin explicitly attributes her inclusion of revision surgeries (and other associated care) in the life-care plan to Lux’s opinion, Biomet argues these opinions are medically unsupported because Lux offered conflicting testimony during his deposition, and because another of Mary’s treating physicians, Dr. Lewallen, did not think future revision surgery would necessarily be required. When asked about Lewallen’s assessment that Mary might not need future revision surgery, Lux testified:

I think what Dr. Lewallen was saying, which is what I agree with, is that everything that can be done surgically has been done. That doesn’t mean that if she doesn’t dislocate it again that she is not going to have the hardware repaired. What he was basically saying to Mary is that: Mary, this is as good as it can be. . . . But that doesn’t mean she may not need another surgery. She may need ten surgeries in the future. It just depends on how many times she dislocates. . . . So, yes, I agree with what Dr. Lewallen said, but, no, she may absolutely need further operations if she dislocates.

Doc. 122-1 at 108:7-109:14. Lux agreed he could not be “certain” Mary would need further surgeries, testifying her next dislocation “could be next month [or] could be never.” Id.

The Court acknowledges some inconsistency between Lux’s deposition testimony and the opinions he shared with Corwin. However, the Court finds this inconsistency goes to the weight, rather than the admissibility of Corwin’s opinions. See Sphere Drake Ins. PLC v. Trisko, 226 F.3d 951, 955 (8th Cir. 2000) (“Attacks on the foundation for an expert’s opinion . . . go to the weight rather than the admissibility of the expert’s testimony.”). Corwin relied on Lux’s unambiguous opinion, expressed to a reasonable degree of medical certainty, that Mary would need future surgeries. Accordingly, the Court does not find Corwin’s inclusion of future surgeries in her life-care plan “so fundamentally unsupported that it can offer no assistance to the jury.” Synergetics, 477 F.3d at 956.

  1. Foundation for Corwin’s testimony at trial

Finally, Biomet argues in the alternative that, even if Corwin’s opinions are not per se inadmissible under Rule 702, she should be precluded from offering any testimony about the cost of future medical care until a qualified medical professional testifies at trial that such care is necessary. This is not the law.

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