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


    The plaintiff was cycling over a railroad crossing in Sandpoint, Idaho when he claims 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 and providing 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.


    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 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 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.


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