TED STEWART, District Judge.
This matter is before the Court on Defendant's Motion to Exclude the Testimony of Plaintiffs' Experts that J.S.M. will need Twenty Additional Surgeries and Laser Therapy in the Future. For the reasons discussed below, the Court will grant the Motion in part and deny it in part.
Plaintiffs have retained Sheryl Wainwright, a registered nurse and certified life care planner, to develop a life care plan for J.S.M. and to estimate the costs of his future needs. That life care plan includes, in pertinent part, $740,669.60 for an additional twenty surgeries and $278,250.00 for laser therapy treatments after those surgeries. Defendant argues that no medical evidence supports these treatments and seeks exclusion of testimony related to them.
Federal Rule of Evidence 702 states:
Rule 702 imposes a gatekeeper obligation on the Court to "ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable."
"It is axiomatic that an expert, no matter how good his credentials, is not permitted to speculate."
Plaintiffs rely on five pieces of evidence in support of their contention that Ms. Wainwright should be permitted to opine that J.S.M. needs these surgeries: (1) Dr. Emily McLaughlin's opinion that J.S.M. is likely to need additional surgeries; (2) Dr. Judith Gooch's opinion in her report that J.S.M. will require multiple scar revision surgeries; (3) Ms. Wainwright's opinion that J.S.M. will require additional surgeries as he grows; (4) information relayed to J.S.M.'s parents concerning the need for additional surgeries; and (5) Dr. W. Bradford Rockwell's testimony that skin graft locations sometimes require multiple scar revision surgeries. The Court will discuss each piece of evidence in turn.
Dr. McLaughlin, Plaintiffs' plastic surgery expert, has opined that J.S.M. needs five surgeries.
Plaintiffs also point to the expert report of Dr. Gooch. In her report, Dr. Gooch stated that it was expected that J.S.M. will require ten to twenty additional surgeries for scar revisions.
Plaintiffs next rely on Ms. Wainwright's past experience working with burn patients. However, Ms. Wainwright is not sufficiently qualified to opine that J.S.M. will need twenty additional surgeries and has not been designated to give such an opinion. Rather, she has been designated to testify that J.S.M. will need additional surgeries "based on the recommendation of Dr. Emily McLaughlin."
Next, Plaintiffs rely on the statement made to J.S.M.'s parents that he will need additional surgeries. However, the source of this information and its content are simply too vague to support the conclusion that J.S.M. will need twenty additional surgeries. No one has identified the doctor who allegedly made this statement and this recommendation is not found in any of the medical evidence.
Finally, Plaintiffs point to the testimony of Defendant's expert who testified that skin graft locations sometimes require multiple scar revision surgeries. However, Dr. Rockwell has recommended just two additional surgeries for J.S.M. The possibility that complications could arise that would require additional surgeries is an insufficient basis to support Ms. Wainwright's testimony that J.S.M will require twenty surgeries. Therefore, the Court will preclude Ms. Wainwright from testifying that J.S.M. will need twenty additional surgeries.
That being said, there is evidence in the record that J.S.M. might need additional surgeries in addition to those recommended by the competing plastic surgery experts. The need for those surgeries could arise for a variety of reasons. Therefore, the Court will not preclude Ms. Wainwright from stating, based on that evidence presented at trial, that J.S.M. might require additional surgeries. In addition, the Court will permit Ms. Wainwright to testify about the costs associated with these possible future surgeries. But the Court will disallow any reference to a particular number of surgeries outside of those stated by the parties' experts. The jury can then determine what costs, if any, should be awarded for such potential surgeries.
Defendant also seeks to exclude evidence that J.S.M. will require laser therapy in the future. As noted, Ms. Wainwright has included $278,250.00 in her life care plan related to laser therapy treatments. This includes seven sessions of laser therapy treatment after each of the twenty surgeries. Ms. Wainwright claims that this treatment was recommended by Dr. McLaughlin.
Dr. McLaughlin's report stated that laser ablation therapy may be "[a]n option" for treating J.S.M.'s scarring.
It is therefore
ORDERED that Defendant's Motion to Exclude the Testimony of Plaintiffs' Experts that J.S.M. will need Twenty Additional Surgeries and Laser Therapy in the Future (Docket No. 71) is GRANTED IN PART AND DENIED IN PART.