A Defense Attorney’s Perspective on Life Care Planning
Counsel defending against serious injuries is likely to confront a life care plan presented by the plaintiff’s attorney in an effort to quantify the various impacts upon the injured party’s activities of daily living and quality of life. A defendant must prepare early and thoroughly to rebut the plaintiff’s various claims and identify areas of overreaching or weakness in the plan. This post will address the defense perspective on life care planning in terms of both attacking the plaintiff’s life care plan and retaining a defense life care planning expert, either as a nontestifying consultant or to testify at trial.
Attacking the Plaintiff’s Life Care Plan
The first step in attacking the plaintiff’s life care plan is to determine whether the plaintiff’s life care planner is, in fact, qualified to present the plan. This is a critical issue because an unqualified witness will not be accepted as an expert and will not be permitted to testify at trial. Thus, a successful attack on the plaintiff’s life care planner’s qualifications will result in the planner’s entire testimony, and the plan itself, being kept from the jury’s consideration.
There are two levels of qualification that will be required of a life care expert presenting a life care plan. First, the expert must be qualified generally in the area of life care planning. Second, the expert must be qualified to substantiate, to the degree required under the particular jurisdiction’s substantive law, the need for each element of care provided in the plan.
Qualifications as a Life Care Planning Expert Generally
Under the Federal Rules of Evidence, a witness may establish his or her qualification as an expert by reason of “knowledge, skill, experience, training, or education. The use of the disjunctive “or” in this list of the grounds for determining a proposed expert’s qualification has been consistently held to permit qualification as an expert based on any one of these five factors. Thus, a properly qualified expert may have no practical experience in the particular area about which he or she testifies. Similarly, a witness may qualify as an expert in a field in which he or she has no formal training, education, degree, or certification. In fact, at least one court has held that a skilled witness on a medical subject need not be duly licensed to practice medicine. The determination of whether an individual qualifies as an expert is a decision for the trial court pursuant to Federal Rule of Evidence 104(a). This determination is left to the sound discretion of the trial court and will not be reversed on appeal absent an abuse of that discretion.
Because life care planning is a relatively new profession, there are few written court decisions addressing the degree of experience, education, or other qualification required to properly establish a proposed witness as an expert life care planner. At least one court has held that attending two seminars on life care planning and compiling 25 life care plans are not sufficient to qualify an individual as an expert in life care planning.* Another court has determined that a rehabilitation consultant who prepared 200 to 225 life care plans per year and held a bachelor’s degree in psychology, a master’s degree in rehabilitation counseling with a minor in behavioral psychology, and a PhD in counseling psychology and a minor in rehabilitation counseling, with a subspecialty in severe orthopedic disabilities, was qualified by both his education and practical experience to testify as a life care planning expert.^
Between these two extremes, the lack of case law precedent on the issue leaves a gray area that will give rise to debate concerning the qualifications of a proposed life care planning expert. A life care planner seeking to testify for the plaintiff should be prepared to establish her qualifications by relevant training, education, or experience. A defense life care planning consultant can assist her client not only in analyzing the elements of the life care plan, but also in determining whether the plaintiff’s proposed life care planning expert is in fact qualified as such.
Qualification to Present the Particular Life Care Plan
Rule 702 was written as a general grant of authority for the use of expert testimony and is therefore permissive in nature. Therefore, in many applications of the expert witness rule, the threshold issue is whether the field of expertise is proper for expert testimony in court. Expert testimony is generally proper in any scientific field that has reached a level of general acceptance. Most courts have at least implicitly recognized that life care planning itself has reached such a degree of general acceptance as to be the proper subject of expert testimony. Thus, there should not usually be any question that expert testimony is generally permitted in conjunction with a life care plan.
Conversely, however, the particular substantive law controlling a given case may require expert testimony regarding a certain issue. In these cases, expert testimony is not only permitted by rule 702 but also, in fact, required by the relevant substantive law.1* For example, in cases involving claims of personal injury, courts around the country generally hold that expert testimony is required on the issue of whether treatment claimed as damages is medically necessary. Under this rule, many elements of a life care plan will often require qualified medical expert testimony in order to be properly presented to the jury as a claimed element of damages. In the vast majority of cases, this foundation requires testimony of a physician.
In many cases, plaintiffs seek to present a life care plan to the jury supported only by the testimony of a rehabilitation consultant or certified life care planner. The defense will likely take the position, and several courts have held, that each element of the life care plan must also be independently supported by a separately qualified expert’s testimony as to that element’s reasonableness and necessity in the given case. As one court stated, “The responsibility for establishing a treatment plan rests with a claimant’s authorized physicians.”* Unless such requirements are enforced, the use of the life care planning expert will enable the plaintiff to circumvent the threshold for admissibility of each claimed element of damages in the plan. Thus, once the life care planner is properly qualified as an expert in the field of life care planning generally, the court will next consider whether the proposed expert is qualified as an expert in the relevant field for each element of the life care plan that is not supported by other evidence or another expert’s testimony.
Failure by the plaintiff to properly limit the scope of the life care planner’s proposed expertise may result in the entire plan and the planner’s entire testimony being precluded or stricken. A life care planner testifying for the plaintiff must therefore ensure not only that he is qualified to testify as a life care planner generally, but that he is qualified to testify concerning the necessity of any individual elements of the plan that are not independently supported by appropriate medical or other expert testimony. In many cases the plaintiff’s life care planner can best serve the client by enlisting the services of the proper medical experts, rather than by attempting to support the plan based on his testimony alone.1 A defendant’s life care planning consultant can be of great assistance in helping defense counsel to identify any weaknesses in the plaintiff’s proposed expert’s qualifications to testify regarding the need for any given treatment element in the plan.
In general, a rehabilitation or habilitation expert will attempt to translate the physical or mental impairment into a disability in order to assess the effect upon the injured party’s ability to participate in activities of daily living. It is the role of the physician to establish the existence of a physical or mental impairment, and it is inappropriate for a rehabilitation consultant to present opinion testimony as to the existence of a medical condition or its likely progression. Rather, the foundation for the impairment must be laid by a physician, including any expected complications or progression. This medical opinion can then be translated by the rehabilitation consultant into the disabling effects.
It should be noted that there may also be limitations on the authority of a life care planner to oversee and supervise the plaintiff’s treatment. In one case, the court reversed an award that placed a rehabilitation counselor in charge of supervising the claimant’s medical and nursing home care where there was insufficient independent medical evidence to support the award:
The award is patently erroneous insofar as it purports to give a rehabilitation company authority to oversee and supervise claimant’s medical and nursing care. Such responsibility rests with a claimant’s treating physicians. Furthermore, although [the rehabilitation expert] was apparently competent to testify concerning his rehabilitation services, his testimony was not sufficiently substantial to provide the sole support for such a far-reaching award of rehabilitative oversight and authority.*
Foundational Objections, the Frye Standard, and Other Preclusions
In addition to challenging the plaintiff’s expert’s general and specific qualifications, defense counsel should be aware of other potential grounds to exclude the testimony. For example, an untimely disclosure of the intent to use a life care plan can bar its introduction at trial.
Likewise, even where there is no question regarding the expert’s qualifications, the expert’s opinion must be supported by an adequate factual foundation.1 The expert’s proper role is to provide opinion testimony based on facts that are of record in the case. The lack of an adequate factual foundation requires that the expert’s testimony be stricken as based on speculation. Such an issue may arise if, for example, the life care planner intends to testify regarding the cost of certain treatment but no medical evidence has been proffered to indicate that such treatment is reasonable, necessary, or caused by the relevant accident. Such foundational objections should be considered in cases where similar objections to the life care planner’s qualifications have been overruled.
The speculative nature of a life care plan can also preclude its admissibility if the plan involves new or experimental treatments or novel theories of causation. Frye v. UnitedStates§ (the Frye rule) mandates that expert testimony deduced from a scientific principle or discovery is only admissible if the principle or discovery is “sufficiently established to have gained general acceptance in the particular field in which it belongs.” While the U.S. Supreme Court has since adopted a slightly broader standard for admissibility of scientific evidence in federal courts, all courts will apply some threshold requirements to the admissibility of novel scientific evidence. If the life care plan is based on a scientific theory that does not meet the threshold requirements, it can be excluded in whole or part. A Frye analysis can be applied not only to test the viability of the types of treatment and services claimed in the life care plan, but also to challenge the theory that the condition itself could have been caused by the particular event.
Of course, defense counsel is advised not only to keep these potential exclusionary arguments in mind in analyzing the plaintiff’s proffered life care plan, but also to ensure that any defense life care plan complies with each of these requirements and will be admissible.
Cross-Examination of the Plaintiff’s Expert
As courts increasingly relax the formal requirements for qualifications of expert testimony, and as scientific advances render more elements of a life care plan generally accepted, it may not be possible to completely exclude the expert from testifying.1 Where the threshold requirements for qualification are met, any deficiency in the witness’s knowledge, education, training, or experience is relevant only to the weight to be given her testimony, and not the admissibility of that testimony. Courts will often hold that a proposed expert of marginal qualification should be permitted to testify and the opposing party required to elicit the defects in his qualifications on cross-examination, rather than barring the testimony completely. Thus, when a life care expert is permitted to testify over defense objection, the expert should expect any weaknesses in his qualifications to be explored in detail on cross-examination.
Defense counsel will determine whether the plaintiff’s expert is state certified in rehabilitation, habilitation,* vocational rehabilitation, workers’ compensation, or other form of counseling. A defendant will also find it helpful to determine whether the plaintiff’s expert is a medical case manager. Often, plaintiffs will retain vocational rehabilitation consultants who have expanded their forensic practice into life care planning. Many plaintiffs’ experts have never actively served as a patient advocate or coordinator of health services on behalf of an injured party. Establishing that the plaintiff’s expert has done nothing more than read books and look at other life care plans in order to present a particular life care plan can be crippling to the plaintiff’s case, even if the court finds the expert qualified to testify. A life care expert hired by the defendant to assist in preparing the defense case can assist his or her client by being familiar with all available training or education in the field, and making defense counsel aware of any such training or education that does not appear on the plaintiff’s life care expert’s resume.
After the plaintiff’s life care planner has overcome any qualification issues, the planner must avoid additional potential pitfalls. Financial bias is a common ground for defense efforts to discredit the plaintiff’s experts, including the life care planner. The obvious financial bias of any expert is that he or she is being paid to present opinion testimony on behalf of the plaintiff.* Beyond the bias that all retained experts have, defense counsel will likely inquire about the amount of money received by the expert for litigation support services generally. Many jurisdictions require that the expert give a best estimate of the amount of money or percent of income received from litigation services as a whole. Under the Federal Rules (commonly referred to as Rule 26), the expert must disclose publications for the last 10 years, compensation paid for the study and testimony, and a listing of cases for which testimony was given in the last 4 years. Prior retention by the plaintiff’s law firm is often a fruitful source of showing an ongoing business relationship that the life care planner presumably would not want to jeopardize by presenting conservative plans.
Another source of financial bias impeachment is the appearance of impropriety created by recommended self-referral. Some life care planners are involved in owned and operated rehabilitation centers. Where the life care plan is centered around such a program, this creates the appearance of a financial incentive on the part of the life care planner. In some egregious cases, defense counsel can successfully establish that the life care planner has engaged in self-referral of prior plaintiffs who have received settlements or judgment awards and entered into the life care planner’s own facility programs. It can be devastating to the plaintiff’s case for the jury to learn that the life care planner may receive a substantial amount of the life care plan funding by payment to a medical facility in which he or she owns a substantial interest.
Defense counsel should also be aware that the elements offered in the plaintiff’s life care plan can impact other evidence and discovery in the case. For example, at least one court has held that where the plaintiff’s life care plan included professional help to manage her assets, the plaintiff had put her economic condition at issue and was required to produce her personal financial records, which ordinarily would have been unavailable to the defense.
Purpose of Retention
It is useful to establish why the rehabilitation consultant was retained by plaintiff’s counsel. The obvious purpose is to support the plaintiff’s litigation by providing a life care plan that can be used by an economist as a foundation to support a present value of economic loss.
Rather than sharing such candor, some rehabilitation consultants will attempt to present themselves as an advocate for the client, who is allegedly seeking advice regarding his or her future care needs and how they can be met. Defense counsel will establish carefully the extent to which the rehabilitation consultant has furthered advocacy of the client beyond obtaining the information necessary to prepare the plaintiff’s life care plan. In the usual instance, nothing has been done to advocate on behalf of the client beyond the preparation of the life care plan report. For example, rarely will the plaintiff’s expert have contacted an insurer or public assistance program in order to qualify the client for services. Such a line of inquiry can be most effective in instances where an insurer, the public school system, or other resource has provided a medical case manager who has not recommended the various therapies or other aspects of the plaintiff’s life care plan.
Another area of recent aggressive attack is the failure of the life care planner to look at the injured party’s circumstances in any real-world sense. Defense counsels are increasingly inquiring of the history of the life care planner’s clients who actually follow through with the life care plan after a court recovery or large settlement.* Often, the catastrophic case takes several years to resolve. Life care planners need to be prepared to respond to defense counsel inquiry as to how the injured party is being presently cared for and the current economic cost for that level of care. Obviously, the life care planner must be prepared to explain why the proposed life care plan markedly differs from the current care plan and thereby justify the increased costs of the more intensive care.
The Basis of the Opinions
The basis of an expert’s opinions is another potential area for criticism and cross-examination. In the discovery deposition, defense will establish the entirety of the work performed by the rehabilitation consultant in order to prepare the report and should determine that the work on the case is complete. Inquiry will be made regarding any interviews conducted and any authoritative text relied upon. A well-prepared life care expert will be able to demonstrate that he or she is familiar with all the relevant facts of the case.
Counsel should also determine at the time of the deposition that the rehabilitation consultant is not attempting to interpret any of the medical, psychological, or therapeutic assessments made, unless the rehabilitation consultant is qualified to do so. If the inclusion of some therapy, medical examination, diagnostic testing, or other aspect of the plan requires the opinion of a physician, psychologist, or other expert, it must be determined whether such a person has been contacted to validate those aspects of the life care plan. The more experienced rehabilitation consultant who is not a physician will have the life care plan reviewed by a physician in order to verify the inclusion of the various prescribed modalities. On the other hand, a life care planner who is a physician may very well require the support of a case manager, vocational counselor, psychologist, or other specialist if he or she cannot show specialized training in the area of damage-related opinions. If this is not done, it can be a fertile source of cross-examination and perhaps for striking some elements of the plan for lack of proper predicate.
Base Costing and Duplication
In most instances, the plaintiff’s life care planner will attempt to identify a current cost for each aspect of the plan. Defense counsel will review the plan carefully to determine the reasonableness of each of these base cost assumptions. The defense rehabilitation consultant should also review the plan and point out any areas of weakness. Fertile ground for attack usually involves the failure of the plaintiff’s plan to recognize the availability of bulk purchasing and long-term contractual rates. Many plaintiffs’ plans will set forth an hourly rate for home health aides, nursing services, and household services. Such hourly rates are then extrapolated by the plaintiff’s economist, resulting in exorbitant annual costs. It is not unusual to be able to demonstrate that the annual cost of hourly services is more than double the cost of negotiated contract rates.
Plaintiffs’ life care plans also commonly provide for many duplications of services and supportive items. Duplication not only is a basis for attack of the life care plan in argument to the jury, but also may result in the court striking all or part of the plan.1 All costs of the life care plan should therefore be carefully assessed and a determination made of whether the plaintiff is recognizing the fixed costs that would not be relatable to the injury event. For example, where a plaintiff’s injury requires a special diet, the cost of the special diet should be offset by the normally expected food cost incurred by any individual. In instances of special transportation requirements, it is important to establish whether the plaintiff’s plan has offset those transportation expenses that would have been normally incurred. Where group home residency is being recommended, the plaintiff’s plan should set off for typical housing costs. The group home rate often includes laundry, food, and other expenses that may also be included in some other aspect of the plaintiff’s economic analysis, such as lost earnings capacity.
Defense counsel should also explore with the plaintiff’s expert any consideration given to the availability of public programs or collateral sources.* It should be noted that the collateral source rules of the particular jurisdiction may impact the permissible scope of such evidenced In most states, the collateral source rule has been modified to allow defendants to set off insurance benefits provided without lien rights and benefits provided or available under public assistance programs from the damages awarded. The defendant’s rehabilitation consultant should assist defense counsel in pointing out those matters called for by the plaintiff’s plan for which there may be a government agency or other funding source not considered in the plaintiff’s economic analysis.
For example, states receiving federal funds may be required to provide comparable education opportunities to severely handicapped children up to age 22. The public school system also makes available those therapies that are required to further the educational opportunities of the student. Therefore, the public school program is an excellent resource for cases of catastrophic injury to infants and young children. Defense counsel should establish the plaintiff’s rehabilitation consultant’s position with respect to the consideration of these public programs and be prepared to rebut the plaintiff’s expected contention that such programs are substandard and inappropriate for the particular client. The failure of a plaintiff’s life care planner to recognize and take into account the availability and suitability of charitable and other publicly funded programs can cast doubt on an otherwise objectively prepared analysis.
To this author’s knowledge, no state has any specific licensing requirements for persons who author life care plans. As the majority of life care planning probably involves the medicolegal context, the lack of any standardized requirements and licensure makes the area fertile ground for those persons who wish to claim expertise for sale on the open market. Unlike recognized specialties that are subject to licensing requirements, the field is open to the unscrupulous expert who views the life care plan as a device to sell in the forensic marketplace. Without licensure, it is impossible to self-police those who are claiming to be life care planners. The long-term solution is the creation of a national standards organization that becomes recognized by the states and lobbies for enactment of statutory licensing. (Editor’s note: As noted previously there are certifications with ethics and standards. There is also the International Academy of Life Care Planners, which publishes Standards of Practice guidelines.
In the absence of separate licensure, life care planners must be mindful of the limitations that are imposed by related and existing state licensure laws. In most states, persons are required to hold one or more licenses before they may prescribe or perform various therapies. For example, a licensed vocational rehabilitation counselor is not qualified in the State of Florida to prescribe or perform physical therapy. Moreover, therapists licensed to perform physical therapy may only do so subject to intermittent physician reviews. Life care planners must therefore be mindful not to misrepresent to the client or the jury the ability to recommend the various treatment modalities that the life care planner is not independently qualified to opine as reasonable and necessary.
Due to the minimal organization within the life care planning profession, a myriad of qualifications are typically seen on the life care planner’s resume. The life care planner’s formal training may be as a vocational rehabilitation counselor, nurse, certified case manager, mental health counselor, psychologist, occupational therapist, physical therapist, physician, or some combination of these and other professions. Thus, the ability of the life care planner to give specific opinions for care will vary with the type of case presented. For example, a vocational rehabilitation counselor who has no training in case management or nursing is not qualified to render a life care plan assessing the medical needs of a child with catastrophic birth-related injuries. The same life care planner may, however, be perfectly qualified to render a life care plan in the case of a less catastrophically injured plaintiff who simply requires modality seeking to reasonably accommodate the client in the workforce throughout his or her remaining work life. Conversely, a certified case manager with nursing experience in the long-term care of persons with impaired mobility would be well suited to the evaluation of the life care needs of the catastrophically injured child, and ill equipped to assess the needs of the less catastrophically injured worker. Thus, the life care planner seeking to provide services in a medicolegal context should assess his or her own limitations and accept cases accordingly.
Moreover, a certified case manager may be very well qualified to opine as to future durable goods requirements and perhaps the nursing care coverage required for the type of injury presented. This same case manager would, however, be required to defer to a qualified physician the issue of future surgeries and attendant complications, prescription medication, and prescribed therapies. Similarly, this life care planner should defer to an orthotist for the type of orthopedic
bracing required and the various therapists involved in the care for the form and frequency of therapy provided. As the clinical care of the catastrophically injured person involves a multidisciplinary approach, the life care planner should not be hesitant to interact with and gain insight from these disciplines when creating a plan. In fact, the greatest service the life care planner can provide to a retaining attorney is to express the limitations of the planner to give opinions and encourage the retaining party’s use of other experts to ensure a credible and legally sufficient foundation for the admission of the life care plan.
Many life care planners are unwilling to accept their own limitations for fear that it will erode their role. Such persons are encouraged to look at the other fields that are called upon to participate in the legal system. For example, economists were called upon to render opinions concerning future economic loss in catastrophically injured cases long before the assistance provided by life care planners was available. In order to properly perform this assessment, the economist would frequently review the opinions of the health care providers, the costs provided therein, and the extrapolations required based upon this foundation of information.
The life care planner’s role is to take this analysis to the next step and include a more holistic approach. The weakness of the economist’s analysis historically was that it was incomplete in its scope. It is submitted that the life care planner is best able to assist the legal professional by using experience to dictate the probable needs that will be involved with a patient’s future care. This ensures that the life care planner and attorney will research and consider all aspects of care in creating the life care plan. Just as most of the economist’s report of future economic losses is predicated by facts gained from others, there is no weakness in a life care planner’s relying upon information gained from other sources. Such reliance may make the difference between admissibility and inadmissibility of the life care planner’s testimony.
The Decision to Retain a Defense Rehabilitation Consultant
Because cases that are appropriate for plaintiff’s use of a life care plan typically involve catastrophic physical injury or significant brain damage, the defense counsel is well advised to retain a defense rehabilitation consultant early in the case. Often courts do not require disclosure of experts’ opinions until the months immediately preceding the trial. As such, much of the discovery will be completed before the defendant has an opportunity to receive the plaintiff’s life care plan.
In order to be properly prepared to rebut the plaintiff’s plan and to determine whether to present a defense plan, it is vital that much of the groundwork be laid in the early portions of the case discovery. A defense rehabilitation consultant can provide early assistance by suggesting the various records that should be requested and identifying persons to be deposed in order to make the determinations necessary to evaluate the injured party’s life care needs. In most cases, the defense rehabilitation consultant will not need to spend a significant amount of time or money to provide this initial assistance. Moreover, the dividends returned on this initial investment are paid in the form of easing the inevitably compressed final preparation toward trial.
The actual selection of a particular rehabilitation consultant requires a basic understanding of the types of injuries involved in the case and an investigation of those experts available and qualified to support the defense. The qualifications of any proposed rehabilitation consultant should be reviewed carefully by defense counsel. Most defense counsels will want to review the potential rehabilitation consultant’s current curriculum vitae and rate sheet. Defense counsel will likely request referrals from other attorneys who have hired the counselor, in order to confirm both the expert’s qualifications and his or her abilities as a witness.
Ultimately, defense counsel must exercise judgment in determining the practical interplay of the retained rehabilitation expert with the overall theme of the defense and the other experts. For example, if the plaintiff has no in-state experts, then the defendant’s theme may be to retain only local experts on all issues in order to point out the need for the plaintiff to go to other jurisdictions to get experts to support the case. As with the selection of any expert, the overall picture of the case must not be lost and the rehabilitation expert must make a good fit.
The Testifying Defendant Rehabilitation Consultant
The initial scope of retention is usually limited to service as a consulting expert to assist defense counsel in the rebuttal of the plaintiff’s life care plan. In some cases, the defendant may want to take the next step and hire his or her own life care planning expert to testify at trial. The decision of whether to call a defense rehabilitation consultant at trial is troublesome and must be made on a case-by-case basis. Several factors affect this decision. First, a credible life care planner, even though testifying for the defense, will likely validate at least some of the plaintiff’s plan. Defense counsel must weigh the price of validation of some or all of the plaintiff’s plan with the benefit of attacking the credibility of those portions with which the defense rehabilitation consultant has substantial disagreement. Just as a defendant intends to elicit substantial concessions from the plaintiff’s rehabilitation consultant on cross-examination, so too the plaintiff’s counsel anticipates being able to reinforce much of the plaintiff’s theory of the case through cross-examination of the defense expert.
A second and perhaps more important factor in deciding whether to call a defense rehabilitation consultant as a testifying expert is the impact of this decision on the discoverability of the expert’s work and opinions. In most jurisdictions, the contributions of consulting experts who do not testify at trial are protected by the work-product privilege. For example, under the Federal Rules, a party can discover facts known or opinions held by another party’s consulting experts only upon showing “exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.”* Absent such a showing of exceptional circumstances, which is extremely rare, the expert’s work is protected from discovery.
However, such protection is usually not afforded to experts expected to testify at trial. Thus, in instances where the rehabilitation consultant may be called upon to testify, both defense counsel and the life care expert should be aware that matters that would have been protected as work product if prepared by a consulting expert may be stripped of that protection. Notes, memorandums, research, and other matters held by the consulting expert may, by the decision to have the expert testify at trial, be transformed into the discoverable file materials of a testifying expert.These materials may outline a great deal of the defense theory of the case. The cost of disclosing these materials to the plaintiff prior to trial may outweigh the benefit of having a defense life care planner testify at trial.
Furthermore, under the Federal Rules, a party must automatically disclose the identity of all testifying experts, and each testifying expert must provide the opposing party with a report that contains the following:
A complete statement of all opinions to be expressed and the basis and reasons therefore; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and the testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.
This report must be provided 90 days prior to the trial date or at such other time as the court requires.1 Additionally, the opposing party may depose any testifying expert, and the opposing party is entitled to take that deposition after the disclosure of the expert’s report.* Such disclosure requirements and discovery opportunities are a substantial consideration in determining whether to retain a testifying life care expert for the defense.
In instances where the defense rehabilitation consultant will testify, it is imperative that a physical examination of the injured party occur, or that the court be requested to allow such an examination. Otherwise, the plaintiff will make the often persuasive argument that the defense expert has not even seen his or her client. As the provision of care to severely injured persons continues to become more complex and specialized, it is essential to recognize a multidisciplinary approach and to allow the defense rehabilitation consultant access to the depositions and, if possible, the actual persons involved in the care and treatment of the injured party.
In catastrophic injury cases, it is advisable for defense counsel to work with the rehabilitation consultant to engage the services of the specialized physicians and therapists necessary for the overall assessment of the life care plan. However, many jurisdictions have patient—physician or other privileges that preclude defense-retained experts from meeting with the plaintiff’s physicians and therapists.5 Additionally, many treating physicians and therapists do not want to become involved in litigation and therefore refuse to be informally interviewed by a defense-retained rehabilitation consultant. In such situations, compiling a defense team is the only approach that will ensure a complete evidentiary foundation for a defense life care plan. Plaintiffs obviously have a distinct advantage in having access to treating physicians. The defense must minimize this advantage by putting together its own team of experts and, if permitted under the laws of the relevant jurisdiction, explaining to the jury why such assembly was necessary.
Practical Considerations: The Effect on the Jury
It must be remembered by both plaintiff and defendant that the life care plan will not be presented in a vacuum. Issues of liability and causation can be affected by the credibility of the plaintiff’s life care plan. Both plaintiff and defendant must be certain that they retain a well-qualified, knowledgeable rehabilitation or habilitation expert who will present an objective life care plan. Although the economic incentive to prepare an overreaching life care plan can be tempting to the plaintiff, the presentation of such a plan to the jury will often have a spillover effect on the overall view of the case. It may offend the jury and thereby swing a close liability case in favor of the defense. Defense counsel must therefore be prepared to take full advantage of the overreaching life care planner.
Conversely, the requirements of care for the injured party that are set forth in the life care plan directly affect the economic costs of the injury and indirectly affect the noneconomic losses by the life care plan’s efforts at improving the quality of life. Defense counsel must therefore be cognizant that an attack on any aspect of the plan may be viewed as insensitive to the efforts at improving the plaintiff’s quality of life. Just as the overreaching plaintiff can alienate a jury, the insensitive attack on elements of a plan for the benefit of the injured party can offend juries.
Defense counsel involved in the catastrophic injury case in which the plaintiff relies upon a life care plan is advised to aggressively attack damages. This attack begins with early retention of defense experts, including a rehabilitation consultant. At a minimum, the defense rehabilitation consultant will be instrumental in the preparation of early discovery and effective cross-examination of the plaintiff’s expert. In instances where the plaintiff’s life care plan warrants, the presentation of an alternative defense life care plan, and the early involvement and careful presentation of the defense rehabilitation consultant as a testifying expert, can enhance the overall credibility of the defendant’s case and provide the jury with a more reasonable economic alternative.