When expert witnesses accept “last minute” cases their exposure to Daubert challenges and other problems increase drastically.
In a recent case in the US District Court EE California, a nurse life care planner accepted a life care planning assignment on 9/26/2018 with an expert disclosure date of 10/2/2018. As you might expect, her deposition testimony did not go well:
According to Ms. Apuna-Grummer, the first contact she had with plaintiff’s counsel regarding this case was “[t]he end of September .” Id. at pg. 9, lines 1-3. Ms. Apuna-Grummer also testified that her life care plan was not complete. See Doc. 92-1, Exhibit D (excerpts of transcript of Ms. Apuna-Grummer’s deposition). In particular, Ms. Apula-Grummer testified as follows:
Q. Forgive me. I created confusion. I’m referring — I’m not talking about that. This is what your plan is based on. The sentence says, “The plan is based on projected medical needs as described by the medical records, discussions with her treaters, interview with Ms. Cioban as related to the accident, and other items related to the medical diagnoses.” What other items are you talking about in formulating your plan?
A. This would be suggestions by the doctors, and this paragraph, I put these — the conclusions is generic for all my life care plans because it’s very evidence that I haven’t had a chance to talk to her treaters or to do the on-site with her. So I won’t be able to answer that until after I’ve talked to the treaters and seen her.
The court excluded her testimony and stated:
While it may be true Ms. Apula-Grummer did all she could given the limited time period between being retained by plaintiff’s counsel on September 26, 2018, and the expert disclosure deadline of October 2, 2018, it is clear plaintiff’s counsel did not. The time crunch plaintiff complains of was entirely of plaintiff’s counsel’s own making. Plaintiff has not explained why she failed to retain Ms. Apuna-Grummer earlier so that the expert could have conducted a complete evaluation before rendering her report and giving her deposition. Plaintiff’s offer to limit Ms. Apuna-Grummer’s trial testimony to only those opinions expressed at her October 24, 2018, deposition is of no avail because, as indicated above, none of Ms. Apuna-Grummer’s opinions are supported by adequate foundation. In particular, Ms. Apuna-Grummer testified her opinions are generic and she would not be able to offer opinions specific to plaintiff until after she had discussed the case with both plaintiff as well as her treating doctors.
Based on the specific language contained in the District Judge’s scheduling order, as well as the foundation requirements of Rule 702 and the court’s gatekeep function under Daubert, defendant’s motion to exclude expert witness testimony at trial from Ms. Apuna-Grummer will be granted.