RUNGE v. STANLEY FASTENING SYSTEMS, L.P.

Filing 128

ENTRY ON DEFENDANT'S MOTION TO PRECLUDE THE TESTIMONY OF PLAINTIFF'S EXPERT LAURA J. LAMPTON - For the reasons outlined in this Entry, Defendant's Motion to Preclude the Testimony of Plaintiff's Expert, Laura J. Lampton, 50 is GRANTED, in part, and DENIED, in part. Signed by Magistrate Judge William G. Hussmann, Jr on 10/14/2011. (JLM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION
GLEN ANDREW RUNGE,
Plaintiff,
v.
STANLEY FASTENING SYSTEMS, L.P.,
A Wholly Owned Subsidiary of
Stanley Black & Decker, Inc., f/k/a
Stanley Bostitch, Inc.,
Defendant.

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4:09-cv-130-TWP-WGH

ENTRY ON DEFENDANT’S MOTION TO PRECLUDE THE TESTIMONY
OF PLAINTIFF’S EXPERT LAURA J. LAMPTON
This matter is before the Honorable William G. Hussmann, Jr., United
States Magistrate Judge, on Defendant’s Motion to Preclude the Testimony of
Plaintiff’s Expert Laura J. Lampton filed May 2, 2011. (Docket Nos. 50-51).
Plaintiff filed a response on June 1, 2011. (Docket Nos. 70-71). Defendant filed
its reply brief on June 30, 2011 (Docket No. 104), and Plaintiff filed his surreply
on July 18, 2011 (Docket No. 116).
I. Background
This case involves a products liability claim brought by Plaintiff, Glen
Andrew Runge, for injuries he sustained as a result of the discharge of a nail
gun into his chest. Plaintiff filed suit against Defendant, Stanley Fastening
Systems, Inc., alleging that Defendant negligently manufactured the nail gun at

issue in this case, and that the incident would not have happened had the nail
gun been manufactured with a safety, a trigger guard, a sequential trip nailer, or
with adequate warnings. (Amended Complaint ¶ 24, 62, 68, 71, 73, 86). As a
result of being struck in the chest by the nail, Plaintiff suffered injuries,
including significant blood loss resulting in anoxic/ischemic brain damage, or
lack of oxygen to his brain, which has resulted in a loss of vision, a cognitive
impairment, and compartmental syndrome of the right leg. (See Report of
Sheldon Margulis, M.D.). At least one doctor, Lance E. Trexler, Ph.D., has
examined Plaintiff and opined that Plaintiff suffers from a severe impairment of
cognitive functioning which results in the need for 24-hour supervision and
assistance with even basic activities of daily living. (Report of Lance E. Trexler,
Ph.D. (“Trexler Report”) ¶¶ 1-2). Dr. Trexler opined that, if not for his parents’
decision to care for him, Plaintiff “would require placement in a long-term lifelong living residential program for people with brain injury.” (Id. ¶ 4).
Based on Plaintiff’s injuries, the opinions of Dr. Trexler, meetings with
Plaintiff and his parents, as well as other factors, Plaintiff’s expert witness, Laura
J. Lampton (“Lampton”), developed a Life Care Plan for Plaintiff. Defendant has
moved to exclude Lampton’s testimony, including the Life Care Plan, arguing
that: (1) Lampton’s opinions are not reliable because they are not based on
sufficient facts or data; (2) Lampton’s opinions are not the product of reliable
principles and methods; and (3) Lampton’s opinions do not apply the principles
and methods reliably to the facts.

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II. Description of Testimony of Plaintiff’s Expert, Laura J. Lampton
Lampton is a life care planner who “make[s] an assessment of an
individual after an accident or an injury and assess[es] their disabilities, the
areas that they have problems with, what their needs are, and then . . . put[s]
together a plan, looking at . . . their future health and medical care needs and
the costs associated with those.” (Deposition of Laura K. Lampton (“Lampton
Dep.”) at 15). Lampton prepares the plan after reviewing the medical records, or
any other records provided, followed by an interview with the injured person,
their family, and their caregivers. (Id. at 16). She sometimes meets with the
treating doctors “[i]f that can work out,” but Lampton did not meet with any of
Plaintiff’s treating doctors. (Id.). She did meet with Plaintiff and his parents.
(Id. at 30).
Lampton’s Life Care Plan for Plaintiff projects lifetime costs for Plaintiff’s
care and treatment of between $7,684,912 and $7,700,590. (Life Care Plan at
6). A significant portion of the estimated costs involves the estimate of the cost
for 24-hour residential care from the date of the Life Care Plan (October 21,
2010) to “life expectancy,” costing $7,407,562. (Id. at 4). Lampton admitted that
she is not aware of any of Plaintiff’s treating doctors who recommended that he
be removed from his parents’ home and placed in 24-hour residential care for
the rest of his life. (Lampton Dep. at 35, 67). However, she testified that she
included the cost of life-long residential care based on Dr. Trexler’s report which
provided that such residential care would be necessary “if it were not for

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[Plaintiff’s] parents.” (Id. at 32-33, 55-56). Lampton acknowledged that Plaintiff
is currently living with his parents and has done so for most of his life. She also
testified that there have been no issues with the care Plaintiff’s parents have
provided since the accident, and she is not critical of the care that they have
provided. (Id. at 32- 33). Lampton is “sure” Plaintiff likes living at home with his
parents. (Id. at 32). Lampton further admitted that plaintiff has not and, “for
the foreseeable future,” will not be incurring any of the costs she included in her
Life Care Plan for residential care. (Id. at 66).
In addition to the 24-hour residential care, Lampton included, among
other things, the following items in her Life Care Plan: (1) four visits a year to
Plaintiff’s primary care physician for the rest of his life, as indicated by Plaintiff’s
parents (Lampton Dep. at 38); (2) visits to a physiatrist annually for the rest of
his life, which she indicated was recommended by Dr. Trexler (Id. at 62); (3)
annual visits to an optometrist (Id. at 63); (4) family psychotherapy for Plaintiff’s
parents to deal with their feelings of guilt (Id. at 64); and (5) 25 occupational
therapy visits as recommended by Jeanette Dow, an occupational therapist (Id.
at 64-65).
III. Legal Standard
Whether or not the testimony of an expert witness is admissible is
governed by Rule 702 of the Federal Rules of Evidence and the Supreme Court’s
decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct.

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2786, 125 L.Ed.2d 469 (1993). An “expert” is someone who possesses
specialized knowledge due to her skill, experience, training, or education that
will assist the trier of fact to comprehend the evidence or to determine a fact in
issue. See FED.R.EVID. 702. According to Rule 702, an expert may testify “if (1)
the testimony is based upon sufficient facts or data, (2) the testimony is the
product of reliable principles and methods, and (3) the witness has applied the
principles and methods reliably to the facts of the case.” Id. The Supreme Court
in Daubert interpreted Rule 702 to require that expert testimony be both relevant
and reliable. Daubert, 509 U.S. at 589.
“The district court functions as a gatekeeper with respect to testimony
proffered under Rule 702 to ensure that the testimony is sufficiently reliable to
qualify for admission.” Mihailovich v. Laatsch, 359 F.3d 892, 918 (7th Cir. 2004).
The Seventh Circuit, pursuant to Rule 702 and Daubert, has developed a threepronged approach to determining whether expert testimony is admissible. See
Ervin v. Johnson & Johnson, Inc., 492 F.3d 901, 904 (7th Cir. 2007). First, the
witness must qualify as an expert by knowledge, skill, experience, training, or
education. Id. Second, “the expert’s reasoning or methodology underlying the
testimony must be scientifically reliable . . . .” Id. And, third, the testimony
must be relevant; it must assist the trier of fact to understand the evidence or
determine a fact in issue. Id.
In the court’s role as gatekeeper, it is granted a great deal of discretion to
determine the method by which the reliability of the proffered expert testimony is

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measured, as well as whether the testimony is reliable. Jenkins v. Bartlett, 487
F.3d 482, 489 (7th Cir. 2007). However, “[t]he soundness of the factual
underpinnings of the expert’s analysis and the correctness of the expert’s
conclusions based on that analysis are factual matters to be determined by the
trier of fact, or, where appropriate, on summary judgment.” Smith v. Ford Motor
Co., 215 F.3d 713, 718 (7th Cir. 2000).
IV. Discussion
In this case, Defendant finds fault with Lampton’s opinion about the costs
of Plaintiff being placed in a 24-hour care facility because, according to
Defendant, it is contradicted by the fact that Plaintiff still lives at home with his
parents. Essentially, Defendant questions how Plaintiff can be entitled to
reimbursement for the costs of living in a 24-hour care facility when he is not
living in such a facility and may never live in one. However, Dr. Trexler has
opined that Plaintiff suffers from a severe impairment of cognitive functioning
which results in the need for 24-hour supervision and assistance, and that
Plaintiff “would require placement in a long-term life-long living residential
program for people with brain injury” if he were not being taken care of by his
family. (Trexler Report ¶¶ 1-2, 4). Under Indiana law, which the court must
apply in this case, the trier of fact may award an injured person the value of
medical services gratuitously rendered. The Indiana Supreme Court has
explained that:

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[I]n common law tort actions[,] Indiana has long recognized that a
plaintiff may recover the reasonable value of medical services,
regardless of whether the plaintiff is personally liable for them or
whether they were rendered gratuitously. Under well-established
principles of Indiana tort law, the extent of recovery by an injured
plaintiff for medical expenses depends not upon what the plaintiff
paid for such services but rather their reasonable value.
Butler v. Indiana Dep’t. of Ins., 904 N.E.2d 198, 201-02 (Ind. 2009).
Consequently, Lampton’s testimony and Life Care Plan concerning the costs of
placement in a 24-hour care facility are both permissible under Rule 702
because, contrary to Defendant’s argument, it is based on sufficient facts (the
opinions of Dr. Trexler). Whether or not Plaintiff is ever placed in such a 24hour care facility is irrelevant, because he is entitled, under Indiana law, to the
value of the 24-hour care his parents are gratuitously providing him.1
Additionally, as explained by the Seventh Circuit in Smith, 215 F.3d at 718,
either a motion for summary judgment or, more likely, trial is the proper venue
for challenging the soundness of Dr. Trexler’s opinions which are the “factual
underpinnings” of Lampton’s Life Care Plan. To the extent that Defendant’s
motion seeks to preclude Lampton’s opinions concerning the costs of care at a
24-hour care facility, it is DENIED.

The Magistrate Judge is aware that there is a dispute over whether or not Plaintiff’s
siblings have agreed to take care of Plaintiff after Plaintiff’s parents can no longer do so.
However, whether or not Plaintiff will eventually be cared for by his siblings is also
irrelevant to the issue of the admissibility of Lampton’s Life Care Plan. Plaintiff can
recover the value of 24-hour care, even if his siblings gratuitously provide it for him.
1

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With regard to the other contested portions of Lampton’s report and Life
Care Plan, the Magistrate Judge concludes that there is a significant factual
basis for Lampton’s opinions about the need for four visits to a primary care
physician a year. Lampton testified that this was the current practice for
Plaintiff since sustaining his injuries and that Plaintiff’s parents intended to
continue these visits. While Lampton did not trace her opinion about the need
for four visits yearly to the opinion of any doctor, the Magistrate Judge believes
that relying on current practices provides a reasonable factual basis for
Lampton’s opinion. As for Lampton’s opinions concerning the costs for a yearly
visit to a physiatrist, a yearly visit to an optometrist, and 24 visits to an
occupational therapist, the Magistrate Judge notes that all three of these
opinions are based on the opinions of experts who believe that such visits are
necessary. Therefore, Defendant’s Motion to Preclude the Testimony of Plaintiff’s
Expert Laura J. Lampton must be DENIED to the extent that Defendant seeks
the exclusion of Lampton’s testimony about the costs of these items. However,
to the extent that Defendant seeks to preclude Lampton’s testimony about the
costs of family psychotherapy for Plaintiff’s parents to deal with their feelings of
guilt, the Magistrate Judge concludes that Defendant’s motion must be
GRANTED. Plaintiff’s parents are not parties to this litigation, and Plaintiff has
not explained how he is entitled to recover the cost of psychotherapy for his
parents.

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V. Conclusion
For the reasons outlined above, Defendant’s Motion to Preclude the
Testimony of Plaintiff’s Expert, Laura J. Lampton, is GRANTED, in part, and
DENIED, in part.2
SO ORDERED.
Dated: October 14, 2011

__________________________
William G. Hussmann, Jr.
United States Magistrate Judge
Southern District of Indiana

Electronic copies to:
John D. Boren
BOREN OLIVER & COFFEY
[e-mail]

Carine Marie Doyle
LEWIS RICE & FINGERSH L.C.
[e-mail]

John Scott Callahan
[e-mail]

Richard T. Mullineaux
KIGHTLINGER & GRAY, LLP
[e-mail]

David L. Coffman
LEWIS RICE & FINGERSH, L.C.
[e-mail]

Stephen A. Oliver
BOREN OLIVER & COFFEY
[e-mail]

In its reply brief, Defendant argues that Lampton has impermissibly attempted to
supplement her 26(a)(2) report through the submission of a new affidavit. Additionally,
Defendant argues that the Report of Gregory O’Shanick, M.D., is untimely and that
Lampton cannot base her opinions on Dr. O’Shanick’s report. However, a review of the
docket does not indicate that Defendant has filed a Motion to Strike either Lampton’s
affidavit or Dr. O’Shanick’s report, and the court will not entertain separate new motions
that were raised within a reply brief. Furthermore, the court has not, nor does it need to,
rely on either of these pieces of evidence in ruling on Defendant’s motion.
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