Wilcox et al v. Max Welders, LLC et al

Filing 162

ORDER granting in part, deferring in part 130 Motion in Limine to exclude the report and testimony of plaintiffs' expert life care planner, Stephanie P. Chalfin; denying 131 Motion in Limine to exclude the anticipated testimony of Dr. Katz. Signed by Judge Lance M Africk on 8/22/2013. (blg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

JOSEPH R. WILCOX ET AL.

CIVIL ACTION

VERSUS

No. 12-2389

MAX WELDERS, L.L.C. ET AL.

SECTION I

ORDER
Before the Court is a motion1 in limine filed by defendants, Wild Well Control, Inc. and
Superior Energy Services, Inc. (collectively, “defendants”), to exclude the report and testimony
of plaintiffs’ expert life care planner, Stephanie P. Chalfin (“Chalfin”). Defendants have also
filed a motion2 in limine to exclude the testimony of plaintiff’s treating physician, Dr. Howard T.
Katz, M.D. (“Dr. Katz”). Plaintiffs, Joseph Wilcox and Lisa Wilcox, oppose the motions. This
Court has carefully considered the memoranda submitted by the parties, the evidence, and the
law, and it rules as follows.
Defendants first argue that Dr. Katz’s anticipated testimony regarding the need for 24hour supervision should be excluded because it was not fully set forth in an expert report.
However, as a treating physician, Dr. Katz is not required to provide defendants with a formal
written report to the extent that his opinions derive from information learned during actual
treatment of the patient. See Knorr v. Dillard’s Store Servs., Inc., No. 04-3208, 2005 WL
2060905 (E.D. La. Aug. 22, 2005) (Vance, J.).

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R. Doc. No. 130.

2

R. Doc. No. 131.
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Defendants next argue that Chalfin should not be permitted to testify regarding the cost of
lifelong 24-hour supervision. Chalfin’s expert report is based on information provided to her by
Dr. Katz. Dr. Katz initially confirmed in a declaration that the information Chalfin relied upon
was accurate. See R. Doc. No. 142-2. Dr. Katz later acknowledged that he had stated in his
declaration, “[b]eyond three to five years, I cannot state to a medical certainty whether Mr.
Wilcox’s level of care can be decreased.” R. Doc. No. 151-5, at p. 6, Dep. at p.20.

However,

Dr. Katz clarified that he does not believe plaintiff would require 24-hour care for the rest of his
life. See id. pp. 5-6. He stated in his deposition that after three to five years, he did not “think he
will need 24-hour care anymore.” Id. at p. 6, Dep. pp.18-19.
“As a general rule, questions relating to the bases and sources of an expert’s opinion
affect the weight to be assigned that opinion rather than its admissibility and should be left for
the jury’s consideration.” United States v. 14.38 Acres of Land, 80 F.3d 1074, 1077 (5th Cir.
1996); see also Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 596 (1993) (“Vigorous
cross-examination, presentation of contrary evidence, and careful instruction on the burden of
proof are the traditional and appropriate means of attacking shaky but admissible evidence.”).
On the other hand, Rule 702 plainly requires that expert testimony be “based on sufficient facts
or data.” Fed. R. Evid. 702(b).
In this case, there is no evidence that Wilcox will require lifelong 24-hour supervision.
Chalfin’s expert report and anticipated testimony regarding the cost of lifelong 24-hour
supervision lack a sufficient basis in fact to support her expert opinion at the present time. Fed.
R. Evid. 702. Additionally, in the absence of any evidentiary basis, the probative value of any
expert opinion regarding the cost of lifelong 24-hour supervision is substantially outweighed by

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the danger of unfair prejudice, the wasting of time, and of misleading the jury. Fed. R. Evid.
403.
Accordingly,
IT IS ORDERED that the motion in limine to exclude the report and testimony of
plaintiffs’ expert life care planner, Stephanie P. Chalfin, is GRANTED IN PART. Chalfin will
not be permitted to opine as to the cost of lifelong 24-hour supervision. Given the ongoing
discovery issues and the likelihood that plaintiff will undergo additional surgery, plaintiff will be
permitted to seek further clarification or reconsideration by the Court should he discover
evidence that would support a finding that he requires lifelong 24-hour supervision or additional
supervision following the 3-5 year period.

Other evidentiary objections relative to the

duration of care will be DEFERRED until trial.
IT IS FURTHER ORDERED that the motion in limine to exclude the anticipated
testimony of Dr. Katz is DENIED.

New Orleans, Louisiana, August 22, 2013.
________________________________ 
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

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