Life Care Planning Expert’s Rebuttal Report is Reliable Even Without Physician’s Review

    Court: United States District Court for the Western District of Virginia, Roanoke Division
    Jurisdiction: Federal
    Case Name: Boden v. United States
    Citation: 2019 U.S. Dist. LEXIS 217141

    The plaintiff claims a government surgeon acted negligently in treating his ankle injury. As a result, his leg was amputated. The plaintiff retains a life care planning expert. But the defendant’s own life care planning submit a rebuttal report. Specifically, the expert disputes the level of supportive care the plaintiff requires. The plaintiff challenges these conclusions. He claims that since the life care planning expert is a registered nurse, her views on medical necessity require a physician’s review.

    The court disagrees. It points out instances where courts have allowed non-physicians to speak about medical needs. The court finds no other reason why the expert’s report isn’t reliable.


    The plaintiff initially suffered an ankle injury during active military duty. He underwent treatment for the pain but his ankle later gave out. Doctors later diagnosed the plaintiff with lateral ankle instability. This condition develops after repeated ankle sprains. The plaintiff then underwent ankle stabilization surgery. A podiatrist at a veterans’ medical center performed the procedure. The surgery failed and the podiatrist performed another surgery to fuse the ankle using screws. However, the screws came off and necessitated three further unsuccessful surgeries. Ultimately, doctors amputated the plaintiff’s leg below the knee.

    In response, the plaintiff filed a tort claim against the government. He alleged the podiatrist acted negligently in his treatment and surgeries. The plaintiff retained a life care planning expert witness to testify regarding his future medical needs. The government hired its own life care planning expert witness to rebut these opinions.

    The Defendant’s Life Care Planning Expert Witness

    The defendant’s life care planning expert witness was a certified life care planner and registered nurse. The expert’s opinion was not based on a physical review. Rather, she submitted a critique of the plaintiff’s life care planning expert witness. In her rebuttal report, the defendant’s expert critiqued various points from the opposing expert report. The life care planning expert accepted that the plaintiff would require the use of a scooter or other mobility tool. She did not agree, though, that he needed a scooter lift for his car. She argued there were several lightweight scooters that could be broken down into smaller components.

    Next, the expert agreed that the plaintiff would need a chair or a bench for his shower. However, she noted he already owned a shower chair that would require repairs on a regular basis. Further, the expert agreed the plaintiff required a grab rail in his bathroom. But she noted the plaintiff already had a grab rail in his shower. She argued this did not need to be included in his life-care plan. The life care planning expert also disagreed with the opposing expert’s recommended level of medical care. The defendant’s expert found no medical evidence to show the plaintiff could not complete his daily chores independently.

    The life care planning expert witness based her opinions on a review of the plaintiff’s medical and surgical reports. She also consulted the pertinent scientific and medical literature.


    The plaintiff moved to exclude the defendant’s expert’s testimony. He claimed that since the expert was a registered nurse, she could not opine on the medical necessity of his support care without a physician’s review. The plaintiff argued that the evidence should be omitted under Federal Rule of Evidence 403. The defendant argued their expert’s opinion was admissible because her report did not mention medical necessity. Rather, her expertise laid the foundation for a credible report, with or without a medical examination.

    The court noted that other courts have found that life care plans may be admissible without a medical examination as long as they are accurate, citing Burress v. Winters, Payne v. Wyeth Pharms. and Rivera v. Turbo Med. Ctr. The court also acknowledged that courts typically look at what facts the life care consultant relies on when designing a life care plan. This includes a study of the patient’s medical history, a review of the treating physician’s deposition, a consultation with the patient or the treatment provider, or a physical examination of the patient.

    The court noted that the expert’s methodology was reliable. Though the testimony could be bolstered by a physician’s review, this absence only affected the weight of her testimony and not its admissibility.


    The court denied the plaintiff’s motion to exclude the defendant’s life care planning expert.

    Key Takeaways for Experts

    This case highlights the importance of reviewing your jurisdiction’s requirements for admissible expert testimony. Here, the plaintiff attempts to argue that a registered nurse may not opine on medical treatment without a review from a physician. However, the court produces examples of non-physicians opining on care plans. It’s crucial to verify that your expert report falls within the acceptable scope recognized by the court.