Thursday, May 12, 2022

Trial Court Directs Defense Forensic Economist Expert To Issue An Amended Expert Report To Comport With Law on Damages or Be Precluded From Testifying At Trial

In the case of Van Auken v. Saud, No. 20-CV-4717 (C.P. Lacka. Co. April 29, 2022 Nealon, J.), the court addressed several Motion In Limine issues in a medical malpractice action.

This medical malpractice action arose out of a claim against an emergency room physician who allegedly failed to diagnose and treat a minor’s aortic dissection which caused the minor’s death one day later.

The Plaintiff’s filed a wrongful death action seeking damages for their own losses and, in that regard, the parents advanced a claim for the pecuniary value of the services that the decedent would have provided to them. In the survival action, the decedent’s estate sought to recover damages for the decedent’s loss of her future earnings, minus her personal maintenance expenses, during her estimated work life expectancy.

The Plaintiffs filed a Motion In Limine against the opinion of the Defendants Forensic Economists in that the expert excluded health insurance from the fringe benefits calculations for the decedent’s loss of future earnings based upon a rationale that the decedent’s family members did not lose health insurance as a result of the minor’s death. 

The Plaintiffs also objected to the defense forensic economist expert’s inclusion of transportation cost and personal care products and services cost in the estimation of the decedent’s personal maintenance expenses to be deducted against the decedent’s loss of future earnings. The Plaintiffs asserted that Pennsylvania law does not recognize those types of cost as components of a decedent’s personal maintenance expenses.

In addressing this Motion In Limine, the court found that the defense economist expert fundamentally misconstrued the damages recoverable under the Wrongful Death and Survival Act and, as such, the court directed the Defendant’s expert to issue an amended report that complies with Pennsylvania law by including health insurance benefits in the fringe benefits estimation and by excluding the cost for transportation and personal care products and services from the personal maintenance expenses computation. The court held that, if the Defendant failed to submit such an amended report, the expert would be precluded from testifying at trial.

On a separate Motion In Limine filed by the Plaintiffs, the Plaintiffs asserted that the defense medical liability expert witness who expressed opinions regarding the complexities of the treatment involved and the difficulty in recognizing an aortic dissection in pediatric patients, did not opined that any physician complied with or deviated from the applicable standard of care. As such, the Plaintiffs asserted that the medical liability expert witnesses opinions were not relevant to the issues presented.

The court rejected this Motion In Limine filed by the Plaintiff after finding that the opinions expressed and the observations made by the defense pediatric cardiothoracic surgeon were relevant to the medical issues to be considered by the jury. The court also found that this expert possessed the requisite qualification to testify on those medical issues presented. As such, the Plaintiff’s Motion In Limine in this regard was denied.

Anyone wishing to review a copy of this decision may click this LINK.

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