Beavers et al v. Victorian et al

Filing 270

ORDER denying 199 Motion in Limine. Signed by Honorable Timothy D. DeGiusti on 3/27/2014. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA

DAVID RODNEY BEAVERS, et al.,
Plaintiffs,
v.
LENNIERE VICTORIAN, et al.,
Defendants.

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Case No. CIV-11-1442-D

ORDER
Before the Court is Defendants’ Motion in Limine on Plaintiffs’ Life Care Plan Expert
Sherry Latham’s Testimony [Doc. No. 199], filed pursuant to Fed. R. Civ. P. 702 and Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).1 Defendants challenge certain opinions
of Plaintiffs’ expert witness, Sherry Latham, on the grounds that she is not qualified to render the
challenged opinions and that they lack a reliable basis in the knowledge and experience of her
discipline. The Motion is fully briefed and at issue.2
This diversity case concerns a commercial trucking accident in which Plaintiffs David
Rodney Beavers and Cynthia D. Beavers (husband and wife) suffered serious personal injuries,
including traumatic brain injuries. During the litigation, Plaintiffs retained Ms. Latham, who is a
registered nurse and a certified life care planner (among other credentials), to formulate life care
plans on which they will rely to establish damages related to future care needs. Defendants’ Motion

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The Motion is made by Defendants Shonda Copeland as Administrator of the Estate of Anthony
B. Copeland, Bee-Line Delivery Service, Inc., Bee-Line Transportation, Inc., and Gulf Delivery Systems, Inc.
An additional movant, Defendant Great Western Leasing and Sales, Inc., was voluntarily dismissed by
Plaintiffs after the Motion was filed.
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Plaintiffs filed a timely response brief [Doc. No. 244], and Defendants filed a reply [Doc. No. 245].

challenges only the portions of Ms. Latham’s plans in which she includes expenses for attendant
care or assisted living placement beginning at age 70 for each plaintiff, Mr. Beavers in 2034 and
Mrs. Beavers in 2036. Defendants contend that Ms. Latham is not qualified to opine about the
likelihood of future cognitive decline or the need for assisted living services 20 years from now, and
that her opinions in this area are unreliable because they lack a scientific basis or methodology.
Standard of Decision
The Supreme Court’s decision in Daubert has been codified in Fed. R. Evid. 702, which sets
forth the standards for admissibility of expert opinions and defines the trial court’s gatekeeper role.
Under Rule 702, the district court must satisfy itself that the proposed expert
testimony is both reliable and relevant, in that it will assist the trier of fact, before
permitting a jury to assess such testimony. In determining whether expert testimony
is admissible, the district court generally must first determine whether the expert is
qualified by knowledge, skill, experience, training, or education to render an opinion.
Second, if the expert is sufficiently qualified, the court must determine whether the
expert’s opinion is reliable by assessing the underlying reasoning and methodology,
as set forth in Daubert.
Reliability questions may concern the expert’s data, method, or his
application of the method to the data. The party offering the expert must show that
the method employed by the expert . . . is scientifically sound and that the opinion
is based on facts which satisfy Rule 702’s reliability requirements. . . .
United States v. Nacchio, 555 F.3d 1234, 1241-42 (10th Cir. 2009) (en banc) (internal quotations
and citations omitted).
Discussion
A.

Ms. Latham’s Qualifications
In the arguments supporting the Motion, Defendants do not challenge Ms. Latham’s

credentials as a life care planner or her competence to render an opinion about Plaintiffs’ future
needs generally. They instead challenge only Ms. Latham’s expertise regarding future cognitive

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effects of Plaintiffs’ traumatic brain injuries. Plaintiffs dispute that Ms. Latham’s projection of
future cognitive decline was based on her own opinions; they note that Ms. Latham relied on the
medical opinions of Dr. Shawn Smith, M.D., a physiatrist retained by Plaintiffs to assess the injuries
and medical conditions of, and the treatments needed by, Mr. and Mrs. Beavers. In reply,
Defendants concede the substance of Dr. Smith’s opinions but argue that Ms. Latham’s life care
plans “go far beyond Dr. Smith’s actual recommendations.” See Reply Br. [Doc. No. 245] at 2.
Upon careful consideration, the Court finds that Ms. Latham appears well qualified to offer
opinions regarding the future costs of attendant care or assisted living services for Mr. and Mrs.
Beavers. Contrary to Defendants’ argument, Ms. Latham’s life care plans do not depend on her own
diagnoses or medical opinions regarding the cognitive decline that is likely to result from Plaintiffs’
brain injuries. Instead, Ms. Latham relied on the medical opinions of Dr. Smith, who expressly
opined that “patients with traumatic brain injury are more likely to develop dementia or decline in
cognition with aging” and, specifically, that Mr. Beavers “is at a higher risk for further cognitive
decline as a result of his brain injury.” See Pls.’ Resp. Br., Ex. 4 (Independent Medical Evaluation,
Cynthia Beavers) at 7; Ex. 5 (Independent Medical Evaluation, Rodney Beavers) at 9. Dr. Smith
also opined: “Provisions for attendant care after age 70 should be available;” and “provisions for
assisted living are also recommended.” See id., Ex. 5 at 9; Ex. 4 at 7. Defendants have filed no
timely Daubert challenge to Dr. Smith’s opinions.
Further, Ms. Latham also based her opinions regarding future attendant care or assisted
living services on a likelihood of “early onset arthritis and overuse syndrome related to the traumatic
orthopedic injuries sustained during the motor vehicle accident” and a prediction that daily needs
will increase “as age and disability combine.” See Defs’ Motion, Ex. 1 (Mr. Beavers’ Life Care

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Plan) at 64-65; see also Ex. 2 (Mrs. Beavers’ Life Care Plan) at 45. Plaintiffs have submitted with
their response brief a declaration of Ms. Latham in which she cites published studies – also listed
as references in each life care plan – that provide empirical support for the assumptions on which
she bases her opinions regarding future needs. See, e.g., Pls.’ Resp. Br., Ex. 3 (Declaration of Sherry
Latham) at pp.13-14; see also Defs’ Motion, Ex. 1 at pp.68-70; Ex. 2 at pp.48-50. Defendants have
not challenged Ms. Latham’s opinions regarding age-related physical decline and do not dispute the
research studies cited in her declaration.
Accordingly, the Court rejects Defendants’ challenge to Ms. Latham’s qualifications to opine
that Mr. and Mrs. Beavers may need attendant care or assisted living services beginning at age 70.
B.

Reliability of Ms. Latham’s Opinion
Defendants also assert that Ms. Latham’s opinions regarding Plaintiffs’ future needs for

attendant care or assisted living services are unsupported by any scientific basis or methodology and,
therefore, are unreliable. Defendants argue that Ms. Latham makes a “speculative leap” between
Dr. Smith’s findings and a “need [for] assisted living services beginning at age 70 and through life
expectancy.” See Defs.’ Reply Br. [Doc. No. 245] at 5. Because Ms. Latham’s opinions are based
on Dr. Smith’s expressed medical opinions, however, the Court finds that the challenged opinions
are sufficiently reliable to be admissible.
Further, Ms. Latham provides two life care plan options for each of Mr. Beavers and
Mrs. Beavers, one providing for home placement with attendant care and a second providing for
facility placement (assisted living). Each provides an itemized listing of all care needs reflected in
the medical records, which are summarized in the plans, as well as other assessments and interviews.
From the approaches shown by the plans themselves, it is apparent that Ms. Latham is offering

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estimations of future care needs and expenses. Defendants are free to challenge these estimations
through cross-examination of Ms. Latham at trial. The Court does not find Ms. Latham’s opinions
to be so speculative and lacking in reliable foundation that her testimony regarding the life care
plans she prepared should be deemed inadmissible. See Marcano Rivera v. Turabo Med. Ctr.
P’ship, 415 F.3d 162, 170-71 (1st Cir. 2005) (opinion testimony of life care planner was properly
admitted); see also Sands v. Kawasaki Motors Corp., 513 F. App’x 847, 856 (11th Cir. 2013) (“the
number presented by the life care planner was simply an estimate, from which the jury is permitted
to draw its own conclusion”).
IT IS THEREFORE ORDERED that Defendants’ Motion in Limine on Plaintiffs’ Life Care
Plan Expert Sherry Latham’s Testimony [Doc. No. 199] is DENIED.
IT IS SO ORDERED this 27th day of March, 2014.

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