Life Care Planning Expert's Medication Cost Opinions Limited

This is a medical negligence case that concerns the allegedly negligent diagnosis, management, and treatment of Andy Ellis, Jr.'s spinal epidural abscess ("SEA") following implantation of a Medtronic external spinal cord simulator trial in April of 2022.

Defendant David Vecchione, M.D. filed three motions seeking to exclude or strike evidence: (1) motion to exclude certain opinions of Dr. Rafal M. Kedzierski; (2) motion to exclude certain opinions and testimony of Dr. Todd Cowen; and (3) motion to exclude opinions and testimony of Dr. Bill Brister.

Radiology Expert Witness

Dr. Rafal Mike Kedzierski is board-certified in radiology with considerable experience in all radiology modalities, including CT, MRI, sonography, nuclear medicine, mammography, and plain films. Kedzierski was the primary radiologist responsible for body, musculoskeletal, and neuroradiology MRI imaging for primary trauma hospitals in both Fort Worth, TX and Memphis, TN.

Get the full story on challenges to Rafal Kedzierski’s expert opinions and testimony with an in-depth Challenge Study.

Life Care Planning Expert Witness

Dr. Todd Duson Cowen is a Physical Medicine & Rehabilitation and Pain Medicine specialist who has practiced medicine in Louisiana since 1995.

He is a licensed physician in the State of Louisiana and is credentialed by the Louisiana State Medical Board and the American Board of Physical Medicine & Rehabilitation. He is also a Certified Life Care Planner (CLCP) as designated by the International Commission on Health Care Certification, and he is a Certified Physician Life Care Planner (CPLCP™) as designated by the Certified Physician Life Care Planner Certification Board.

Cowen earned a Doctor of Medicine and a Bachelor of Science from Louisiana State University.

Want to know more about the challenges Todd Cowen has faced? Get the full details with our Challenge Study report.

Economics Expert Witness

Bill Malcolm Brister is an economist with extensive experience in the field of forensic economics, including the calculation of economic damages in wrongful death cases.

Want to know more about the challenges Bill Brister has faced? Get the full details with our Challenge Study report.

Discussion by the Court

A. Vecchione's Motion to Exclude Certain Opinions of Rafal Kedzierski, M.D.

1. Kedzierski's Opinion Diagnosing Ellis with "Chronic Arachnoiditis"

Dr. Vecchione argued that Kedzierski's opinion as to the presence of "chronic arachnoiditis" set forth in his September 9, 2025 report failed to satisfy the basic requirements of Rule 702 and must be excluded. The Court agreed to a certain extent.

The Court found that Kedzierski is a board-certified radiologist, has reviewed approximately 40,000 MRI studies, and performed and interpreted approximately 100 MRIs and ten CT myelograms where he identified findings of arachnoiditis. Additionally, in this case, Kedzierski personally interpreted the February 2024 CT myelogram, in which he identified findings consistent with chronic arachnoiditis. Thus, Kedzierski is a qualified neuroradiologist with extensive experience and training in that regard.

Moreover, the Court argued that radiologists are not qualified to make clinical diagnoses; however, the role of a radiologist is to identify imaging findings and opine as to how they are inconsistent. In his motion, Vecchione made it clear that he is not contesting Kedzierski's ability to testify to his interpretation as a treating radiologist that the February 2024 CT includes "[m]ild thickening of few lumbar roots, can be seen with chronic arachnoiditis." Therefore, the Court found that Kedzierski, as a neuroradiologist, is qualified to opine that Ellis' imaging findings are consistent with arachnoiditis, and his expert opinion given at trial should be limited accordingly. However, Kedzierski is precluded from offering testimony diagnosing Ellis with chronic arachnoiditis at trial.

2. Kedzierski's Causation Opinion

Additionally, Vecchione argued that Kedzierski lacked sufficient facts or data to opine that Ellis' chronic arachnoiditis was caused by the SEA. In Ellis' response, he concedes that Kedzierski will not testify that the SEA caused Mr. Ellis' arachnoiditis. Accordingly, the Court found that Kedzierski's causation opinion should be excluded.

3. Kedzierski's Testimony Regarding a "Fourth Category" of Arachnoiditis Imaging Findings

Additionally, Vecchione argued that Kedzierski's opinion regarding a fourth classification of imaging findings associated with arachnoiditis should be excluded. The Court agreed and found that Kedzierski's opinion regarding the fourth classification of arachnoiditis imaging findings should be excluded on two independent grounds: (1) the opinion fails the reliability requirements of Fed. R. Evid. Rule 702 and Daubert, and (2) the opinion was not disclosed in Kedzierski's September 9, 2025 report as required by Federal Rule of Civil Procedure 26(a)(2)(B).

In his deposition, Kedzierski testified that there are three classifications of radiology findings associated with adhesive arachnoiditis, referred to as the Delamarter classifications, which he agreed are "well accepted within the field of radiology." Kedzierski also testified that "newer literature" attempts to identify a fourth classification of imaging findings associated with arachnoiditis. However, Kedzierski acknowledged that there is no generally accepted definition of the fourth classification, because it is still in the developmental stages. For those reasons, Vecchione argued that Kedzierski's opinion regarding the "fourth category" of arachnoiditis imaging findings should be excluded because it cannot assist the trier of fact to understand the evidence or to determine a fact in issue, and the testimony lacks sufficient facts or data.

In applying Rule 702 factors, the Court found that Kedzierski's opinion regarding a "fourth category" of arachnoiditis imaging findings is unreliable. Ironically, the most compelling evidence against admissibility comes from Kedzierski's own deposition testimony, in which he acknowledged that there is no generally accepted definition of the fourth classification because it is still in the developmental stages, and that it "is not yet generally accepted in the medical field as being a definitive classification of arachnoiditis...."

Moreover, Ellis' argument that the existence of the emerging classification in peer-reviewed literature satisfies the reliability threshold has some merit as a general proposition. Here, however, the record does not support treating the existence of such literature as independently establishing reliability. Kedzierski himself characterized the cited works as "newer literature" that merely "attempts to identify" a fourth classification, and he acknowledged that the field has not reached a generally accepted definition of that classification. Those concessions substantially undermine any contention that the peer-review factor, standing alone, establishes the reliability of the methodology employed in this case.

Furthermore, Ellis' contention that Kedzierski's reference to the developing literature on the fourth category is merely supplemental and contextual, rather than a primary opinion, is also unavailing under the reliability analysis.

Additionally, Kedzierski's fourth classification opinion should be excluded because it was not included in his September 5, 2025 expert report and was only first mentioned in his deposition. Here, Ellis concedes that the fourth category opinion was not in his September 9, 2025 report but advanced no justification for this omission. This is prejudicial to Vecchione because it does not allow "the opposing party to have all the relevant information in a timely fashion so that the opposing party may prepare to cross-examine the expert during his or her deposition."

However, the Court found that Kedzierski is permitted to give primary opinions grounded in the well-accepted Delamarter Types 1, 2, and 3 classification system, which remain independently supported by sufficient facts, reliable and accepted methodology, and are contained within the expert's timely disclosed report. Thus, Kedzierski's trial testimony should be limited to the scope of his September 9, 2025 expert report.

4. Kedzierski's Opinions Regarding Clumping, the October 22, 2022 MRI, and the Empty Thecal Sac Sign

a. "Clumping" on April 20, 2022 MRI

In Kedzierski's September 9, 2025 report, regarding the April 20, 2022 MRI, he stated "I would also note thickening of lumbar roots and arachnoiditis were present on this MRI." In his deposition, however, Kedzierski stated that "thickening and clumping can go together," and that on Series 17, Image No. 17 he observed thickening and clumping of nerve roots. Moreover, Kedzierski confirmed that "thickening" and "clumping" are separate radiographic findings and that he made no reference to clumping in his September 9, 2025 report.

Accordingly, Vecchione argued that because experts are held to the opinions disclosed in their reports, Kedzierski should be prohibited from offering any opinion at the trial of this case that the April 20, 2022 MRI reflects "clumping."

Here, the Court found that "clumping" constitutes a new opinion, rather than merely a description of the same pathological phenomena as "thickening of lumbar roots and arachnoiditis" using different terminology. This is evidenced by the fact that Kedzierski made no reference to "clumping" in his expert report and acknowledged in his deposition that "thickening" and "clumping" are separate radiographic findings. Thus, Ellis' argument that the report's reference to "thickening...and arachnoiditis" was intended to encompass the constellation of findings Kedzierski identified is unpersuasive.

In this case, Ellis failed to offer a substantial justification for omitting his opinion regarding "clumping" from his September 9, 2025 report. More significantly, the Court had specifically directed the parties to "submit amended expert reports that directly address the arachnoiditis issues, their significance, and their relationship to Ellis' injuries." However, instead of seizing this opportunity, Kedzierski did not supplement his September 9, 2025 report, but rather resubmitted it on January 20, 2026 without revision or amendment. This is not a case of inadvertent omission or newly discovered evidence; it is a failure to exercise an express court-granted opportunity to cure.

With regard to prejudice, the Court acknowledged that Ellis' argument that there was no unfair surprise or prejudice because Kedzierski's "clumping" testimony emerged during deposition taken approximately six months before trial, and Vecchione had the opportunity, and exercised that opportunity, to explore the finding extensively on cross-examination. Ordinarily, where the issue is merely a gap or deficiency in an expert disclosure, the resulting prejudice may be considered harmless. However, the circumstances in this case present a unique situation. The Court found that, after ordering the parties to supplement their expert reports on the issue of arachnoiditis, Kedzierski's failure to do so reasonably led Vecchione to conclude that Kedzierski would not offer an opinion regarding "clumping" at trial.

That said, the Court found that Kedzierski should be excluded from offering opinions regarding "clumping" at trial, because it is a distinct finding that required supplemental disclosure. However, Kedzierski is still permitted to describe his observations on the radiological images that were properly and timely disclosed in his expert report.

b. October 18, 2022 MRI

In Kedzierski's September 9, 2025 report, he referenced both Ellis' April 20, 2022 MRI and the February 12, 2024 post-myelogram CT. However, in his deposition, Kedzierski stated that he had reviewed the October 18, 2022 MRI, which was not mentioned in his expert report, and that the images showed "possible early nerve root thickening reappearing again." Vecchione argued that Kedzierski's opinion as to potential "nerve root thickening" on the October 18, 2022 MRI should be excluded because it was not timely disclosed in his expert report and he could only state his opinion in terms of possibilities, not probabilities.

In his response, Ellis conceded that Kedzierski's failure to reference the October 18, 2022 MRI in his report is "a legitimate basis for limiting his opinions at trial to the two studies identified in his report." The Court agreed.

Accordingly, Kedzierski's October 2022 MRI opinions shall be excluded from Ellis' direct examination; however, the Court retains discretion to permit redirect examination touching on the October 2022 MRI if, and only if, Vecchione opens the door by cross-examining Kedzierski about it. However, the Court made it very clear that Ellis may not use redirect as a backdoor avenue to present the October 2022 MRI opinion as substantive case-in-chief evidence.

c. Empty Thecal Sac Sign

Finally, Vecchione argued that Kedzierski's opinion as to an "equivocal" empty thecal sac sign should be excluded on two grounds: (1) Kedzierski made no reference to any such finding in his expert report and (2) Kedzierski cannot and did not state his opinion with respect to an empty thecal sac sign in terms of probabilities as opposed to possibilities. The Court agreed.

Kedzierski, in his deposition, stated, "you can question whether this is an empty sac sign or early empty sac sign on these images" regarding the April 20, 2022 MRI. Again, Kedzierski acknowledges that this opinion was not referenced in his report. The Court has discussed at length above Ellis' consequences for not ensuring that Kedzierski's report contains the opinions he wishes to present at trial.

The second and equally dispositive basis for exclusion is Kedzierski's inability to state his opinion regarding the empty thecal sac sign to a reasonable degree of medical probability. At his deposition, when Kedzierski was asked, "Are you able to state to a reasonable degree of medical probability that what you are showing me is an empty thecal sac?" he replied, "I can say equivocal empty sac sign." Kedzierski's use of the term "equivocal" shows uncertainty, not probability. Thus, the Court found that Kedzierski's inability to state his empty thecal sac opinion to a reasonable degree of medical probability amounts to mere speculation.

Notably, Ellis did not oppose a limitation preventing Kedzierski from affirmatively opining that a Type 2 empty thecal sac sign is present on the April 2022 MRI to a reasonable degree of medical probability. However, Ellis argued that Kedzierski should be permitted to describe what he observed on the images, including the appearance of nerve root displacement that is "consistent with" or raises the possibility of Type 2 findings, as part of his overall description of what the images showed. The Court disagreed. Ellis' limitation does not cure the issue that Kedzierski cannot state his opinion in probabilities, and allowing Kedzierski to frame his observation as "consistent with" or as raising a "possibility" to the jury would allow him to circumvent the probability standard through semantic reformulation. Accordingly, the Court excluded Kedzierski's opinion regarding an "equivocal" empty thecal sac sign in the April 2022 MRI.

B. Vecchione's Motion to Exclude Certain Opinions & Testimony of Todd Cowen, M.D.

1. Cowen's Cost Allocations for Medications Ellis was Taking Prior to the Alleged Injuries

Vecchione argued that Cowen's Catastrophic Life Care Plan ("LCP") lacked the requisite reliability and relevance under Rule 702 sufficient to assess damages for medical conditions that pre-date and are unrelated to Ellis' alleged injuries in this case. Vecchione sought to exclude Cowen's testimony and allocation for four medications: Lyrica, Prozac, Percocet, and Ultram.

Regarding Lyrica, the Court found that Cowen's testimony and allocation of funding for Lyrica should be excluded based on Ellis' acknowledgement and concession that Ellis cannot represent to this Court with the confidence that Daubert requires that the projected Lyrica costs are attributable solely to Ellis' post-injury condition rather than a continuation of preexisting use.

Regarding Prozac, Cowen, during his deposition, acknowledged that a record he had not reviewed reflects that Ellis had been diagnosed with mild depression in 2016 and was taking amitriptyline. Cowen also conceded that he had no knowledge as to the length of time Ellis continued to take that medication. Vecchione argued that the Court should preclude the LCP's allocation for Prozac because it is not based on sufficient facts or data.

In response, Ellis argued that the psychological impact of Ellis' spinal injuries constitutes an independent clinical basis for antidepressant therapy regardless of any prior mild depressive history and that this is a factual question for the jury. Ellis' argument simply misses the mark. Although the Court agreed that Ellis' spinal injuries could act as an independent basis for antidepressant medication, the issue lies in the fact that Ellis has failed to identify a patient-specific causation analysis by Cowen separating pre-existing medication needs from those allegedly caused by the SEA-related injuries. Cowen admitted that he did not attempt to parse out the medications Ellis was taking for pre-existing conditions when assigning costs for medications in the LCP.

Additionally, Cowen included an allocation for Percocet and Ultram (tramadol hydrochloride), which are both opioid pain medications. In his deposition, Cowen acknowledged that Ellis used Norco, an opioid pain medication, prior to the SEA and alleged injuries and admitted that he is unaware of whether Ellis used Ultram prior to his alleged injuries in 2022. However, Cowen admitted that he would defer to Ellis' pharmacy records, and these records did reflect that Ellis filled tramadol in 2016.

Vecchione argued that because Ellis used similar opioid pain medications prior to his alleged injuries, and Cowen did not reliably attribute Ellis' need for Percocet and Ultram to the incident at issue, the Court should preclude the LCP's allocation of those medications. Ellis argued that opioid pain management after a spinal cord injury is not equivalent to the pain management Ellis received for a musculoskeletal injury, and whether certain pain medications are now required to manage Ellis' pain post-injury is a credibility issue for the jury. Again, the Court found that Ellis' argument falls short. Ultimately, Ellis has failed to identify a patient-specific causation analysis by Cowen separating pre-existing medication needs from those allegedly caused by the SEA-related injuries. Thus, Cowen's medication allocations for these medications are not based on sufficient facts and a reliable application of his methodology to Ellis' medication history and should be excluded.

2. Cowen's Opinions on the Cost of Anticipated Future Medications

In regard to determining Ellis' future medication costs, Cowen's methodology consisted of surveying six Tupelo-area pharmacies, obtaining the generic pricing and brand-name pricing for each medication, and averaging all six prices. Additionally, Cowen's approach is consistent with the methodology established by the American Academy of Physician Life Care Planners, the professional organization whose standards govern certified life care planners. Cowen testified that this methodology has been subjected to peer review, accepted for continuing medical education credits, and broadly utilized within the life care planning profession. Cowen also testified that he does not have discretion to deviate from methodology supported by the American Academy of Physician Life Care Planners; however, he stated he was "sure some life care planners" do not use this methodology. Vecchione argued that Cowen's opinions as to Ellis' future medication costs are the product of an unreliable methodology, do not fit the facts, and likewise must be excluded.

However, the more substantial issue is whether Cowen reliably applied his methodology to the facts of this case. Cowen's reasoning for declining to price medications at generic-only rates was that medications evolve over time and Ellis' future pharmaceutical needs may include brand-name only medications not currently available in generic form. Notably, however, Cowen concedes that every medication Ellis currently takes and every medication for which he allocated costs in the life care plan already has a generic equivalent. The Court acknowledged that Cowen's premise is not anchored to any Plaintiff-specific evidence, any identified medication, or any credible clinical projection. Thus, although the Court found that Cowen's averaging methodology is reliable, applying it here based solely on a generalized and hypothetical scenario creates an analytical gap that should be scrutinized under Rule 702(d).

By his own admission, Cowen did not review Ellis' pharmacy records and acknowledged that only probable future expenses should be included in a life care plan.

The Court declined to exclude Cowen's medication cost opinions in their entirety, because his methodology itself is sufficiently reliable, and the challenge to it is most properly addressed through cross-examination and competing expert testimony. Additionally, Vecchione's arguments regarding Cowen's failure to review pharmacy records and brand-substitution data go to the weight and credibility of his testimony, which should be properly addressed at trial. However, the Court also elects to limit Cowen's opinion, precluding him from justifying the brand-name pricing component solely on the basis of hypothetical future brand-only medications, given that the current medications listed in the life care plan have a generic equivalent and no Plaintiff-specific evidence supports the brand-name premium.

3. Cowen's Opinions Concerning Lost Wages, Earning Capacity, & Ability to Engage in Avocational Activities

Vecchione argued that Cowen's LCP does not allocate damages for lost wages or opine that Ellis is unable to engage in certain work because of his alleged injuries; therefore, he should be precluded from offering such opinions at trial. This issue is largely moot because Ellis concedes that Cowen has not been designated to offer vocational opinions, has produced no such opinion, and will not offer such opinions at trial. Moreover, Ellis acknowledged that Cowen did not offer an independent lost-wages opinion or a vocational assessment, and the LCP contains no line item for lost wages or earning capacity.

Moreover, regarding Ellis' current work-capacity, Cowen admitted in his deposition that he did not analyze Ellis' ability to work, did not know what tasks were involved in Ellis' livestock business, and did not assess whether Ellis could perform work not involving the use of his legs. Pursuant to Rule 702, an opinion that is not based on sufficient facts or data and does not reflect a reliable application of methodology to the specific facts fails the admissibility standard.

In the LCP, Cowen stated that Ellis "is unable to do any of this [work] since November of 2020." In his response, Ellis argued that this is a clinical observation about functional limitations arising from his injuries, not a damages calculation, and contended that Cowen should be permitted to offer this observation. However, the Court agreed with Vecchione's argument that this constitutes a work capacity opinion, rather than a clinical observation. Thus, Cowen is precluded from offering opinions on lost wages, earning capacity, vocational disability, or inability to perform work; however, this limitation does not prevent Cowen from testifying about medical restrictions or physical limitations within his expertise if otherwise admissible.

With regard to Ellis' avocational activities, Cowen opined that Ellis' hobbies formerly included "hunting, swimming, horses, fishing, and hiking," but that he now only watches TV. However, Cowen admitted that he presumed this diminishment without further investigation. The Court reiterates that under Rule 702, an opinion that is not grounded in sufficient facts or data, and that is not the product of reliable methodology, is inadmissible.

That said, Ellis represents that Cowen assigned no monetary value to any diminished recreational capacity, characterizing it instead as a functional status observation. On that basis, Ellis argued that Vecchione's motion to exclude opinions on avocational activities is therefore largely moot. Regardless of the monetary value, or lack thereof, the Court precluded Cowen from offering any opinion concerning a loss of avocational capacity. Cowen failed to properly investigate whether Ellis' ability to engage in recreational activities was diminished before the alleged injuries and, if so, whether that ability was further diminished afterward. Instead, Cowen simply assumed that Ellis' recreational capacity was diminished before the alleged injuries and further diminished afterward.

4. Cowen's Opinions Regarding & Cost Allocations for Household Management Expenses

In the LCP, Cowen allocated $108,000 in damages for house cleaning, which is broadly defined to include household management. Vecchione argued that Cowen's opinions concerning household management expenses should be excluded as unreliable, speculative, and unsupported by the evidence. The Court acknowledged that the record and nature of Ellis' injuries do support allocation for household management expenses. At this time, the Court presumes that this figure ($108,000), which seems reasonable, will be substantiated at trial. Thus, the Court denied Vecchione's request to exclude Cowen's opinions regarding costs allocated for household management expenses, subject to proof at trial.

5. Cowen's Cost Allocations for Home Modifications

In the LCP, Cowen allocated $100,000 for home modification. In his deposition, when explaining how he determined the allocation, Cowen stated that in the absence of a contractor's estimate, life care planners often rely on the Department of Veterans Affairs' grant allowance for the cost of making a home accessible.

Ellis stated that the VA's $100,000 figure represents a professionally validated, government-derived estimate of the cost to bring a home into compliance with the accessibility needs of a wheelchair-bound individual and that using a government benchmark as a cost estimate is a reliable methodology.

Here, Ellis testified that his home already has sufficiently wide doorways, that he can currently access all areas of his home by wheelchair, aside from a few storage areas, and ramps have been installed, and handrails have been installed in the bathroom. Cowen's assumption that the home requires extensive modification simply because "not much has been done" ignores Ellis' own account of the accessibility of his home.

Even accepting that life care planners may sometimes reference VA housing grant data as a professional benchmark, Cowen's methodology as actually applied to this case is fatally flawed. The VA grant maximum represents a ceiling amount available to eligible veterans for making a home fully accessible. It does not represent a determination that any particular plaintiff's home requires that level of modification, nor that the cost to this plaintiff of whatever modifications are needed equals that ceiling figure. Cowen used the full $100,000 VA grant maximum as a single global allowance without: (1) identifying any specific modification needed in Ellis' home; (2) determining which areas, if any, remain inaccessible; (3) calculating or even estimating what any individual modification would cost; or (4) adding up specific allowances for necessary modifications. Thus, Cowen's allocation for home modification failed to meet the reliability requirement of Rule 702 and should be excluded.

C. Vecchione's Motion to Exclude Opinions & Testimony of Bill Brister, Ph.D.

1. Brister's Calculation of the Present Value of Cowen's Life Care Plan

In this motion, Vecchione argued that Brister's calculation of the present value of Cowen's LCP is unreliable and inadmissible and should be excluded based on two theories: (1) that Brister's opinions are independently, scientifically unreliable and cannot be reconciled with the facts of this case and (2) that his opinions are based upon separate opinions of Ellis' life care planning expert, Cowen, which Vecchione also sought to exclude via a separate motion.

As to the first theory, Vecchione argued that Brister's methodology for estimating the future costs of the expenses in Cowen's LCP is untested and unsupported by economic literature and is based on statistical data he acknowledges is "inherently arbitrary and demonstrably false." To project future inflation of Cowen's LCP, Brister applied a 10-year historical average from 2014 to 2024 of the medical care component of the Consumer Price Index ("CPI"). Based on this data, Brister calculated and applied a growth rate of 2.62% annually to Cowen's LCP. Ellis recognizes the Bureau of Labor Statistics' CPI for Medical Care as official government data, published by a nonpartisan federal agency and used by economists, actuaries, and policymakers throughout the United States.

The fact that Brister used official medical care CPI data does not, by itself, establish the reliability of his assumption that the inflation rate observed from 2014 through 2024 will continue throughout Ellis' remaining life expectancy.

In his motion, Vecchione points out that Brister assumes that this growth rate will repeat every 10 years for the remainder of Ellis' 28-year life expectancy at the same rate it did during the period from 2014 to 2024; however, in his deposition he admits that his methodology is based on untested assumptions and is unsupported by economic literature. Additionally, Brister conceded that he could not reference an economic study that would reinforce his selection of a 10-year period for calculating the medical care component from the CPI as a proper average for projecting future growth, and he admitted that there was not any particular guiding economic principle for why he thought a ten-year period was "better" than a five-year period. Those admissions directly implicate testing, peer review, governing standards, and acceptance in the relevant economic community, all permissible reliability considerations.

Here, the alleged deficiency is not merely that another expert selected a different historical period. In his deposition, Brister acknowledged that his calculation assumes repetition of the 2014-2024 growth rate, and he agreed that using historical CPI patterns to predict future inflationary patterns would be "inherently arbitrary and demonstrably false." Because those admissions undermine the inferential step connecting the selected historical data to the lifetime projection, the disagreement is not necessarily a jury question concerning which of two otherwise reliable estimates is more persuasive.

On the facts presented here, Brister's admissions leave no identified testing, literature, accepted economic principle, governing standard, or other objective validation supporting the critical choice to extrapolate the 2014-2024 rate across Ellis' purported life expectancy.

Brister's explanations delineate why he rejected a twenty-year period; however, they do not demonstrate that extrapolating the selected ten-year rate over Ellis' life expectancy satisfies Rule 702's reliability requirements. Accordingly, Brister's opinion calculating the present value of Cowen's Life Care Plan after increasing its costs annually by 2.62% shall be excluded.

Additionally, Vecchione argued that Brister improperly relied on Cowen's calculations of the price of Ellis' medications despite his admission that these calculations are not supported by economic principles and elected not to account for available data specific to Ellis.

In his deposition, Brister testified that he is not qualified to address healthcare pricing but acknowledged, based on economic behavior, it is logical that a consumer would choose the lower-priced drug if the brand-name drug and generic drug were absolutely equal. Additionally, Brister testified that he did not feel qualified to second-guess a life care planner's medical pricing decisions.

The Court agreed that Brister's statement that he is not qualified to change Cowen's numbers is not a methodological flaw; rather, it reflects the appropriate scope of an economist's role under Rule 703.

Brister also admitted he did not investigate Ellis' past medication purchasing habits or inquire whether Ellis chooses branded or generic medications. Vecchione's argument that Brister independently violated economic principles by accepting Cowen's averaged brand and generic pricing rather than applying the least cost consumer choice principle does not rise to the level of a Daubert exclusion. Vecchione's contention that Brister should have independently investigated Ellis' medication purchasing habits is precisely the type of weight and credibility challenge that is properly addressed through cross-examination and competing expert testimony, not exclusion.

The Court found Cowen's medication cost methodology sufficiently reliable to avoid wholesale exclusion and determined that the asserted failure to review pharmacy records and brand-substitution information goes to weight and not credibility. However, the Court elected to limit Cowen's opinion, precluding him from justifying the brand-name pricing component solely on the basis of hypothetical future brand-only medications, given that the current medications listed in the life care plan have a generic equivalent and no plaintiff-specific evidence supports the brand-name premium. Thus, Brister may not preserve through his economic calculation a substantive medication cost premise that the Court prohibits Cowen from using. The present-value calculation must therefore be revised, limited, or presented with an appropriate exclusion so that Brister does not capitalize or discount a brand-name premium justified solely by hypothetical future brand-only medications.

2. Brister's Calculation of Lost Household Services

Brister calculated the present value of Ellis' lost household services using "The Dollar Value of a Day," based on the American Time Use Survey (a government survey conducted by the U.S. Bureau of Labor and Statistics) and published by Expectancy Day. Additionally, Brister adjusted the national hourly rates downward to reflect Mississippi wage levels. Brister admitted that "The Dollar Value of a Day" is not peer-reviewed in the traditional academic sense. He also admitted that the publication does not include the raw government data from the American Time Use Survey, and he did not personally perform any calculations from the raw government data.

The publication's lack of traditional peer review, by itself, does not warrant exclusion. Nor does Brister's failure to independently reprocess the American Time Use Survey necessarily render the publication unreliable.

Although Ellis has not provided authority establishing the extent to which "The Dollar Value of a Day" is recognized and utilized by forensic economists, the Court's experience is that the publication is a widely used source of household services productivity metrics within the forensic economics community.

Vecchione also argued that Brister's methodology is unreliable because he assumed Ellis could not perform any household services, rather than determining which household tasks or activitiesEllis is capable or incapable of performing. It is evident in the record that Ellis sustained catastrophic spinal injuries requiring continued, full-time home health assistance. In light of the severity of these injuries and their resulting functional limitations, the Court found that Brister reasonably assumed that Ellis is unable to perform the household services he performed pre-injury. Thus, this assumption is not speculative.

Likewise, Vecchione argued that Brister double-counted by including a lost household services calculation while Cowen's LCP also includes housekeeping and home health aide expenses. In his deposition, Brister addressed this potential overlap. He testified that he deducted the "house cleaning" line item from Dr. Cowen's LCP to avoid double-counting. Additionally, he explained that home health aide costs in the LCP compensate for Ellis' need for personal care assistance due to his injuries, and the household services calculation compensates for the value of services Ellis would have provided to himself and his household members had he not been injured.

The Court found Vecchione's arguments tiresome in this regard. The Court declined to exclude Brister's calculation of Ellis' lost household services. Vecchione will have ample opportunity to present evidence and competing expert testimony concerning Ellis' actual physical capabilities and limitations, to establish the alleged value of Ellis' lost household services, and he will be given wide latitude to cross-examine Brister on these matters.

3. Brister's Calculation of Ellis' Lost Earnings

Vecchione argued that Brister's calculation of Ellis' lost earnings is the product of an unreliable methodology warranting exclusion of these calculations and opinions.

Brister calculated Ellis' lost earnings based on his 2021 income of $75,030 from Triple E Livestock (Auction) Sales, LLC. Based on this, Brister assumes Ellis, but for his injury, would have earned $75,030 annually throughout the remainder of his work life expectancy. Brister did not select this figure without an identified evidentiary basis. Brister chose Ellis' 2021 income from Triple E because it was the last full calendar year before Ellis' injury occurred in April 2022, and Ellis explained that this approach uses the earnings level he most recently demonstrated the capacity to achieve. This provides a discernible factual premise and economic rationale rather than a bare assurance that the projected earnings figure is reasonably accurate.

The Court acknowledged that Ellis' increase in income from $9,522 in 2019 and $26,960 in 2020 to $75,030 in 2021, regarding Triple E, provides grounds for questioning whether the selected year reliably represents Ellis' future earning capacity. However, an economic methodology need not be perfect to be admissible. Where it captures the relevant subject matter, any potential under-or over-inclusiveness may be tested through the adversarial process at trial rather than used as a basis for exclusion. Here, the Court found that the annual variation is an appropriate subject for cross-examination and competing calculations.

Vecchione argued that, in calculating Ellis' lost earnings, Brister should have offset approximately $34,000 in losses incurred by Ellis' livestock farming business. The Court found that Brister articulated a factual and economic reason for excluding the farm losses. In his deposition, Brister admitted that he excluded Ellis' livestock farming business losses from his calculations because he considered Ellis' auction business as a completely separate business from his farm business and stated, "they didn't depend on each other." Additionally, Ellis told Brister it was his recreation, and Brister considered it just that. Brister also admits that Ellis did sell some horses he had raised on his farm at his auction but for many years he had not. Brister stated that Ellis did not have to sell his horses at the auction and that Ellis had expressed to him that he could have easily done the auction without selling any of his horses.

Vecchione points out that Brister admitted he did not investigate whether certain expenses overlapped between both of Ellis' businesses. Thus, Vecchione argued that Ellis' auction and livestock farm were economically integrated and the farm losses should be netted against his auction income. However, the Court found that Brister's decision to treat the two businesses as separate entities has identified factual support.

Lastly, Brister's assumption that Ellis will have no post-injury earnings has a record basis. Ellis informed Brister that he was not working, his LCP projects that he will require continued home aide services daily, and Vecchione's experts also assumed Ellis had no post-injury earned income going forward. Vecchione will again be given ample opportunity at trial to explore on cross-examination, or offer competing expert testimony.

Held

The Court granted in part and denied in part Vecchione's motions to exclude or strike evidence: (1) motion to exclude certain opinions of Dr. Rafal Kedzierski; (2) motion to exclude certain opinions and testimony of Dr. Todd Cowen; and (3) motion to exclude the opinions and testimony of Dr. Bill Brister.

Key Takeaway

Expert assurances that a methodology is generally accepted are insufficient without objective, independent validation, although the proponent need not prove that the resulting opinion is correct.

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