Life Care Planning Expert Witness Allegedly Violates Civil Rule 35

The plaintiff sued the railway company for negligence after suffering injuries when his bike's front tire got stuck at a railroad crossing.

Zach Barreto

Written by
— Updated on September 29, 2021

Life Care Planning Expert Witness Allegedly Violates Civil Rule 35

Court: United States District Court for the District of Idaho
Jurisdiction: Federal
Case Name: Sherwood v. BNSF Ry. Co.
Citation: 2019 U.S. Dist. LEXIS 32277

Facts

The plaintiff was cycling over a railroad crossing in Sandpoint, Idaho when he claimed his front tire got stuck in a narrow gap between two cement slabs at the intersection. This caused him to be thrown over the handlebars and onto the pavement. The plaintiff suffered serious injuries, prompting him to sue the railway company for negligence. The defendant retained a life care planning expert to support their case. The plaintiff then filed a motion to exclude the life care planning expert’s testimony.

Life Care Planning Expert

The defendant’s life care planning expert was a vocational rehabilitation counselor. She was experienced in the rehabilitation field. Additionally, she provided consultation on personal injury cases. She also had previous litigation experience as a life care planning expert witness. The plaintiff claimed the expert’s testimony should be excluded for two main reasons. First, the plaintiff moved to exclude the expert’s testimony based on nursing reference materials. The plaintiff sought to prohibit her testimony detailing their contents, interpreting the medical documents, or offering an opinion on how the plaintiff’s own life care planning expert had met the nursing requirements in preparing a life care plan for the plaintiff.

Secondly, the plaintiff sought to prevent the defendant’s life care planning expert from her proposed testimony alleging that she had visited the plaintiff or had conducted a clinical life care planning interview. The plaintiff further moved to block the expert’s testimony on any findings she might have made upon reviewing a neuropsychological investigative examination performed by the defense psychology expert. The plaintiff alleged the expert had violated Rule 35 Stipulation and Order by attending this exam and sending a list of questions to the psychology expert. The plaintiff claimed that the expert had also failed to disclose this event as the basis of her report.

Discussion

The court agreed that the defendant’s life care planning expert witness was not a nurse and therefore was not qualified to opine on nursing or focus on the nursing reference materials. Nevertheless, the court noted that the life care planning expert witness was competent in the area of life care planning. Thus, she was qualified to offer expert opinions on the methods and techniques used by the plaintiff’s expert to formulate his life care plan.

The court further asserted that in developing her expert opinion, the defendant’s expert performed a standard life care planning evaluation based on her extensive experience in the area. She appropriately assessed the nature and extent of the plaintiff’s condition, potential case management, and the consistency of the plaintiff’s expert’s life-care plan. The court did accept the condition that the expert may not give opinions on the medical practice of the plaintiff’s expert, who was a professional nurse. But the court maintained she was certainly qualified to opine on whether that expert used the right approach to formulate a life-care plan.

Per the plaintiff’s argument the life planning expert should be prohibited from offering an opinion related to her involvement in the psychologist’s test, the court responded the plaintiff had ample opportunity to object to her attendance. The court also noted that the language of Rule 35 Order and Stipulation did not support their claim nor does Rule 35 accept such an attendance ban. The court explained that, even if the defendant’s expert was not to have taken part in the examination under Rule 35, the plaintiff agreed that she could have reviewed the entire exam via video and, thus, could not be excluded from testifying about any observations made during that evaluation.

Held

Plaintiff’s motion to exclude the defendant’s life care planning expert witness was denied.

Key Takeaways for Experts

It’s important for experts to understand and know the Federal Rules of Civil Procedures (FRCP). In this case, the plaintiff argued that the life care planning expert witness violated Rule 35 of the Federal Rules of Civil Procedure. It can be beneficial for you to be familiar with the FRCP in order to prevent the opposing counsel from finding ways to exclude you through these rules.

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