Steven Babitsky, Esq.

The U.W. District Court D. Colorado dealt with a life care planner, Dahlberg, who relied on a prosthetist for the lifetime cost of a C-leg prosthesis. The purchase price for the prosthesis was $81,654. A Daubert challenge was filed based on the life care planner’s reliance on the prosthetist (Pickering).

The court denied the motion, finding that the reliance on the prosthetist and the failure to speak to the medical providers was not fatal.

The court stated:

The Court can reasonably infer that it is common practice for a Rehabilitation Consultant to solicit data and opinions from a client’s own medical providers when attempting to determine the cost and durability of that provider’s own treatments. Certainly, Mr. Morales has not come forward with any evidence to suggest that this would be an unusual thing for a Rehabilitation Consultant to do. In such circumstances, the Court finds that Mr. Burgard has carried — at least at this point in time — his burden of demonstrating that consulting with others and folding their opinions into a life care plan is a task that Rehabilitation Consultants generally perform. As such, Rule 703 permits Mr. Dahlberg to incorporate Mr. Pickering’s opinions into his own opinion and to testify thereto. And, of course, Mr. Morales is free to cross-examine Mr. Dahlberg to elicit whether Mr. Dahlberg has any independent basis to believe the accuracy of Mr. Pickering’s estimates, or even to call Mr. Pickering himself and examine him about the accuracy and reliability of his statements to Mr. Dahlberg.

As to the Rule 703 issue, once again, Mr. Morales’ reliance on Owens is misplaced. Owens did not consider, much less attempt to apply, Rule 703. Thus, its persuasive value here is limited.

Accordingly, Mr. Morales’ motion to exclude Mr. Dahlberg’s opinions derived from discussions with Mr. Pickering is denied.

Turning to Mr. Morales’ specific objections, the Court cannot say that Mr. Dahlberg’s methodology is not generally reliable simply because Mr. Dahlberg chose to review medical records to determine Mr. Burgard’s medication regimen, rather than speak to Mr. Burgard’s various medical providers. It may be presumptuous for Mr. Dahlberg — who lacks any apparent medical credentials — to assume that that medication regimen would continue indefinitely, but once again, that is a matter of the weight to be given to Mr. Dahlberg’s opinion, not a defect in its general reliability. Likewise, Mr. Dahlberg may have assumed too much in concluding that documented ophthalmological and cardiac complications that occurred during Mr. Burgard’s surgeries will justify indefinite annual checkups with those specialists, but again, this is an issue of weight to be considered by the jury. The vast majority of Mr. Dahlberg’s care plan for Mr. Burgard involves non-medical expenditures — non-prescription mobility aids and household goods and services — for which no consultation with medical providers would appear to be necessary. As to Mr. Morales’ objection that Mr. Dahlberg did not identify the sources of his cost estimates, Mr. Dahlberg’s report specifically states that such data is provided in an appendix. Although that appendix does not appear in the version of the report filed with the Court, Mr. Morales has not contended that no such appendix was supplied to him.

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