When physicians conclude that a car accident victim needs radiofrequency ablations (RFAs) for life, the court may intervene to limit this testimony.
The US District Court (E.D. Louisiana) dealt with physicians who opined that the plaintiff would need RFAs for the remainder of his life. The life care planner relied on this opinion to formulate her life care plan.
The court rejected the testimony finding that the physicians did not provide sufficient medical literature to support the need for RFAs for life and limited the testimony of the physicians and the life care planners.
The court stated:
In his expert report, Dr. Schlosser recommended “that Mr. Brandner receive RFAs to the Cervical and Lumbar region of his body for a lifetime as long as he receives benefits which allow him to live a reduced pain lifestyle.” In deposition, Dr. Schlosser testified it was more probable than not that Plaintiff would require an annual cervical and lumbar RFA for the remainder of his lifetime. When asked in deposition whether there was medical literature to support his opinion that RFAs may be performed repeatedly for a period longer than ten years, Dr. Schlosser offered to “get the specifics” for State Farm. The parties agreed to hold the deposition open for thirty days so that Dr. Schlosser could provide medical literature supporting performing repeated RFAs beyond seven to ten years. Eight months following the deposition, Dr. Schlosser issued an expert report, citing articles to support his opinion that it is medically necessary for Plaintiff to receive annual RFAs for the remainder of his lifetime.
Neither Dr. Schlosser nor Dr. DeFrancesch has documented how the studies on which they relied were conducted, whether the studies were peer reviewed, or whether the results of the studies have been generally accepted by the scientific community. Neither have they explained how the studies support their opinions regarding the medical necessity of annual RFAs for thirty-six years. The Court may not rely on the experts’ assurances that their opinions are backed by generally accepted scientific methodology. The opinions of Dr. DeFrancesch and Dr. Schlosser must be “based on more than subjective belief or unsupported speculation.” Neither doctor has established that the opinions have been tested, validated, or generally accepted. Rather, the doctors’ opinions are “connected to existing data only by the ipse dixit of the expert.”
After assessing the reliability of Dr. DeFrancesch’s and Dr. Schlosser’s proffered expert testimony with respect to Plaintiff’s need for annual cervical and lumbar RFAs for the remaining thirty-six years of his life expectancy, the Court finds Plaintiff has not met his burden of proving by a preponderance of the evidence that this testimony meets the standards of Federal Rule of Evidence 702 and Daubert. Plaintiff has not met his burden of establishing the doctors’ experience qualifies them to offer this opinion. Neither has Plaintiff shown that the doctors’ opinions are supported by peer-reviewed studies the results of which have gained general acceptance in the scientific community. As a result, there is no evidence establishing the “reasoning or methodology underlying the testimony is scientifically valid,” and the opinions do not meet the requisite level of intellectual rigor to be reliable and admissible. Dr. DeFrancesch’s and Dr. Schlosser’s testimony regarding Plaintiff’s need for annual cervical and lumbar RFAs for the remaining thirty-six years of his life expectancy will be excluded. Dr. DeFrancesch and Dr. Schlosser will be permitted to testify, based on their personal knowledge and experience treating patients, and the studies cited examining RFA administration for seven to ten years, that it is more probable than not that Plaintiff will need and will benefit from up to ten annual RFAs. Dr. Savant’s testimony will be limited accordingly. Dr. Savant will be permitted to testify as to the cost of Plaintiff’s receiving seven additional cervical RFAs and six additional lumber RFAs.
For the foregoing reasons, IT IS ORDERED that State Farm’s Motion in Limine is GRANTED IN PART AND DENIED IN PART. Plaintiff will not be permitted to introduce testimony regarding his need for and the cost of annual cervical and lumbar RFAs for the remaining thirty-six years of his life expectancy. Plaintiff will be permitted to introduce testimony regarding his need for and the cost of receiving seven additional cervical RFAs and six additional lumber RFAs.
MICHAEL BRANDNER, JR., Plaintiff,
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, ET AL., SECTION: “E” (4), Defendants.
Civil DOCKET No. 18-982.
United States District Court, E.D. Louisiana.
February 14, 2019.