Occupational Therapy Expert Exclusion Held After Plaintiff Fails to Provide Adequate Record of Error

    Court: United States Court of Appeals for the Tenth Circuit
    Jurisdiction: Federal
    Case Name: Neiberger v. FedEx Ground Package Sys.
    Citation: 2009 U.S. App. LEXIS 11161

    The plaintiff’s appeal for review of the district court’s refusal to allow the testimony of her occupational therapy expert witness was denied because the plaintiffs failed to provide adequate records indicating that error occurred on the part of the district court.


    The plaintiffs, a husband and wife, filed a negligence suit against the defendants — a delivery driver, the delivery company he worked for, and the owner of the delivery van. The plaintiffs alleged that they were seriously injured after the defendant (delivery driver)  negligently pulled into their lane as they were attempting to pass him on the highway. Pursuant to the Colorado Rev. Stat. § 10-4-714 (repealed in July of 2003), the jury handed down a special verdict that the plaintiff had not proven any of the losses necessary to prove a claim under tort law. The district court handed down a decision in favor of the defendants. The plaintiffs appealed against the judgment. Part of their appeal entailed a motion challenging the district court’s refusal to allow testimony provided by her occupational therapy expert witness.

    The Occupational Therapy Expert

    The expert witness had 30+ years of experience offering occupational therapy, forensic analysis, life-care counseling, and expert testimony specializing in career training, rehabilitation and life-care preparation in regulatory hearings, as well as in the government, the US District, and the Federal Courts. The occupational therapy expert witness was an approved service provider by the Colorado State Department of Labor Workers Compensation (Qualified Rehabilitation Consultant), the Federal Workers’ Compensation (OWCP), and the Social Security Administration Office of Disability and Review (ODAR). The occupational therapy expert witness was a Fellow of the American Occupational Therapy Association (FAOTA) and a Certified Life Care Planner (CLCP), a Qualified Rehabilitation Consultant (QRC) and an Associate Member of the American Board of Vocational Experts (VE). She is also a member of the AOTA–American Medical Association, Physical Medicine and Rehabilitation (PM&R) Work Group on Current Procedural Terminology.


    Under the Colorado no-fault law, the plaintiff was able to bring a tort claim by arguing that the incident had forced her to receive medical treatment that was reasonably necessary and had a value of more than $2,500. The plaintiff appealed against the district court’s exclusion of evidence from her occupational therapy and life-planning expert regarding the incurred medical expenses.

    The court immediately disposed of the claim in consideration of the occupational therapy expert witness. The record of the appeal included just a few pages of the expert’s testimony in which there was no mention of medical expenses. As a result, the court was unable to decide which, if any, evidence had been omitted. The court noted that “a party who seeks to reverse the decision of a district court must provide an adequate record for this court to determine that error was committed,” citing Travelers Indem. Co. v. Accurate Autobody, Inc. The court accordingly refused to consider the plaintiff’s testimony regarding the occupational therapy expert’s testimony.


    Parties seeking to reverse district court decisions must always provide adequate records of the error in question. Because the court could not discern any error in the lower court’s decision to exclude the testimony of the occupational therapy expert witness, the plaintiff’s motion was denied.

    Expert Witness Specialty Index

    Need an occupational therapy expert witness?

    Explore a sample of our expert network.

    Browse Experts