Opinion
No. 1D21-2560.
02-15-2023
Dearta ANDERSON-MOODY and Sandra Anderson, Appellants, v. Brandon WILSON, Appellee.
Michael P. Regan, Jr. , and Brian M. Guter , Florida O'Hara Law Firm, Jacksonville; and Warren B. Kwavnick , Cooney Trybus Kwavnick Peets, Fort Lauderdale, for Appellants. Kyle J. Bagen , Steven A. Bagen & Associates, PA, Gainesville, for Appellee.
Michael P. Regan, Jr. , and Brian M. Guter , Florida O'Hara Law Firm, Jacksonville; and Warren B. Kwavnick , Cooney Trybus Kwavnick Peets, Fort Lauderdale, for Appellants.
Kyle J. Bagen , Steven A. Bagen & Associates, PA, Gainesville, for Appellee.
Per Curiam.
Appellants challenge portions of a final judgment in a personal injury action awarding over $1.6 million in damages to Appellee. Appellants take issue with only that part of the judgment awarding damages for future epidural and facet injections. As to those damages, Appellants argue the trial court abused its discretion by allowing Appellee's life care planner to testify, based on his own medical opinions, that Appellee would require the injections for the rest of his life. We agree, reverse portions of the final judgment, and remand for entry of a final judgment consistent with this opinion.
Appellants raised additional argument as to error by the trial court regarding denial of directed verdict requests and a motion for remittitur. Because we reverse on issue one, we decline to address the remaining arguments on appeal as moot.
Dr. Ahmadian was retained by Appellee to create a life care plan. At deposition, Dr. Ahmadian acknowledged that he was not retained for the purpose of providing medical treatment or to serve as an independent medical expert. Both before and at trial, Appellants objected to the admissibility of Dr. Ahmadian's testimony on the need and costs of epidural steroid and facet joint injections on the basis that it lacked a proper foundation, because the injections were not recommended by one of Appellee's treating physicians.
Appellee argued that the testimony was admissible because it was based on Dr. Ahmadian's training and experience as a life care planner and neurosurgeon, his review of medical records, and his clinical evaluation of Appellee. He claimed that Dr. Ahmadian's medical background "informed" his decision making as a life care planner. Essentially, despite stipulating that Dr. Ahmadian acted solely as a life care planner, Appellee presented the doctor as a practicing neurosurgeon as well. Although he had no clinical relationship with Appellee, he did examine Appellee as a part of creating the life care plan, which Appellee argued informed his opinion. The trial court denied in part Appellants' motion in limine, allowing Dr. Ahmadian to testify about the injections.
The trial court notes in its order on Appellants' pretrial motion in limine Appellee's stipulations. The order states:
1. By stipulation of the parties, Dr. Ahmadian will not testify regarding causation, permanency, or to the need for, or cost of, future primary care doctor visits, neurologist visits, and durable medical equipment.
2. Dr. Ahmadian will not testify regarding his physical examination of the Plaintiff as he was disclosed only as a life care plan expert.
3. The remainder of Defendants' First Motion in Limine to Exclude Certain Trial Testimony of Plaintiff's Expert Dr. Ahmadian is DENIED.
At trial, Dr. Ahmadian testified regarding Appellee's future medical care and treatment needs and provided an estimate of the future medical costs over his life expectancy. Among other things, Dr. Ahmadian concluded that Appellee would require epidural steroid injections and facet joint injections annually for a combined total estimated cost of $682,555.00. There is nothing in the record suggesting that any of Appellee's treating physicians also recommended this treatment.
The jury found Appellants liable and awarded Appellee $1,638,523.50 in damages, encompassing $300,196.00 for future cervical epidural steroid injections and cervical and lumbar facet injections, and $41,082.00 for lumbar epidural steroid injections. Appellants filed motions for new trial and remittitur, restating their objection as to admissibility. The trial court denied the motions. This appeal followed.
A trial court's determination as to the admissibility of expert testimony is reviewed for an abuse of discretion. Baan v. Columbia Cnty., 180 So.3d 1127, 1131 (Fla. 1st DCA 2015) ("A trial court's exclusion of expert testimony is reviewed for an abuse of discretion.").
The question presented is whether an expert witness, offered as a life care planner, may infuse his or her own medical opinions in calculating certain costs of future medical care when such future care is not recommended by a treating physician or medical expert. We answer the question in the negative.
"An expert's opinion must be based on facts in evidence or within his knowledge." Stano v. State, 473 So.2d 1282, 1287 (Fla. 1985). Section 90.704, Florida Statutes, states:
The facts or data upon which an expert bases an opinion or inference may be those perceived by, or made known to, the expert at or before the trial. If the facts or data are of the type reasonably relied upon by experts in the subject to support the opinion expressed, the facts or data need not be admissible in evidence.
"Life care planners prepare comprehensive projections of future medical care and treatment needs to aid economists in calculating the present value of future medical care and treatment. In doing so, they necessarily rely on physicians' recommendations." Olges v. Dougherty, 856 So.2d 6, 8 n.1 (Fla. 1st DCA 2003) (citing Diamond R. Fertilizer v. Davis, 567 So.2d 451, 455 (Fla. 1st DCA 1990) (finding that trial court erred in adopting a life care plan which gave the planner "discretion to oversee and supervise [a workers' compensation] claimant's medical and nursing care" because "[t]he responsibility for establishing a treatment plan rests with a claimant's authorized physicians.")). Generally, "[t]he responsibility for establishing a treatment plan rests with a [party's] authorized physicians." Davis, 567 So. 2d at 455.
"[A]lthough `an expert may be qualified by experience,' it does not follow `that experience, standing alone, is a sufficient foundation rendering reliable any conceivable opinion the expert may express.'" Baan, 180 So. 3d at 1133 (quoting United States v. Frazier, 387 F.3d 1244, 1261 (11th Cir. 2004)). "When an expert is relying primarily on experience, the witness must explain how that experience leads to the opinion, why the experience is a sufficient basis for the opinion and how that experience is reliably applied to the facts." Charles W. Ehrhardt, 1 Fla. Prac., Florida Evidence § 702.4 (2022 ed.).
Here, Appellee is correct that an expert may rely on inadmissible facts or data where such information is of a type reasonably relied on by experts in the field. See Barber v. State, 576 So.2d 825, 832 (Fla. 1st DCA 1991). But Appellee fails to establish that life care plan experts typically perform a medical examination of plaintiffs as part of their calculations for future medical treatment, not otherwise recommended by a treating physician or medical expert. We acknowledge that Dr. Ahmadian has a medical degree and is a practicing neurosurgeon. However, he was not offered as a medical expert or as an expert acting in a dual capacity. Appellee tendered him as a life care planner. Prior to trial, the judge granted, in part, Appellants' motion in limine excluding Dr. Ahmadian from testifying about his medical examination. The fact that Dr. Ahmadian physically examined Appellee does not establish a proper factual basis for his opinion as a life care planner. See § 90.704, Fla. Stat. ("If the facts or data are of the type reasonably relied upon by experts in the subject to support the opinion expressed, the facts or data need not be admissible in evidence.").
The same can be said for Dr. Ahmadian's experience as a neurosurgeon. Nothing in the record indicates that life care plan experts typically use their experience as a physician to determine the future medical care needs of plaintiffs. Rather, life care planners rely on admissible evidence from medical experts or treating physician when creating the life care plan.
The opinions of Dr. Ahmadian, as a life care planner, regarding future epidural steroid injections and facet joint injections lacked a factual basis because they were not recommended by one of Appellee's treating physicians or another disclosed medical expert. The trial court abused its discretion when it denied, in part, Appellants' pretrial motion in limine regarding such testimony and in overruling Appellants' objections to admissibility of the same testimony from Dr. Ahmadian at trial. See Davis, 567 So. 2d at 455 (holding it was error for the JCC to adopt the life care plan where the life care plan was supported solely by the testimony of the life care planner "rather than the testimony of any treating physician or primary care physician").
Without Dr. Ahmadian's testimony, there is no reasonable evidence upon which the jury could award the challenged damages. Thus, we reverse the jury's award of $341,278.00 for the epidural steroid injections and facet injections, and remand to the trial court for entry of a final judgment consistent with this opinion. See Volusia Cnty. v. Joynt, 179 So.3d 448, 454-455 (Fla. 5th DCA 2015).
REVERSED and REMANDED.
Roberts, Bilbrey, and M.K. Thomas, JJ., concur.