Salgado v. Electric Insurance Company

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

JAMES SALGADO

CIVIL ACTION

VERSUS

NO. 18-522-JWD-EWD

ELECTRIC INSURANCE

COMPANY, ET AL

AMENDED RULING ON ELECTRIC INSURANCE COMPANY’S

DAUBERT MOTION IN LIMINE

Before the Court is Electric Insurance Company’s (“Defendant” or “Electric”) Daubert

Motion in Limine. (Doc. 42.) It is opposed by plaintiff Jamie Salgado (“Plaintiff” or “Salgado”).

(Doc. 47.) Defendant filed a reply brief. (Doc. 50.) The Court has carefully reviewed the motion

and associated memoranda, and, for the following reasons, the motion is denied.

I. BACKGROUND

This suit for personal injury damages arises out of an automobile accident which

occurred on June 6, 2017, on Interstate 10 in St. Martin Parish. (Doc. 42-1 at 2.) The facts of this

accident are not important for purposes of this motion. Plaintiff claims injuries to his right wrist

as well as his cervical and lumbar spine. He sought and received medical treatment from Dr.

Charles Schlosser (“Schlosser”), a pain management specialist with Louisiana Medical Clinic

(“LMC”). Plaintiff hired Robert Gisclair (“Gisclair”) to develop a life care plan (“Lifecare Plan”)

to establish the cost of Plaintiff’s future medical care. Dr. G. Randolph Rice, an economist, was

hired to calculate the present value of those future medical costs.

In preparing his report, Gisclair reviewed and evaluated Plaintiff’s medical records. In

addition, according to Defendant, Gisclair interviewed Plaintiff, interviewed Dr. Joseph Pritchett

(“Pritchett”), a chiropractor with LMC who treated Plaintiff, and interviewed Schlosser. (Doc.

42-1 at 5.) Gisclair issued his report on March 26, 2020. (Doc. 42-2 at 1–23.) He issued a

supplemental report on May 4, 2020 which did not change his conclusions. (Doc. 42-2 at 24–25.)

Gisclair’s Lifecare Plan was given to Rice who, on March 27, 2020, using the future medical

costs reported by Gisclair, issued his own report calculating the present value of the Lifecare

Plan. (Doc. 42-3.) Following the filing of this motion, Schlosser submitted an amended opinion

in the form of a declaration regarding Salgado’s need for future medical care. (Doc. 47 at 7

(citing Doc. 47-2).) The updated opinion was conveyed to Gisclair which prompted updated

reports from Gisclair and Rice. (Id. (citing Doc. 47-8).)

A central issue in this motion concerns Schlosser’s opinion that Salgado will need

periodic radiofrequency ablations (“RFAs”), pain management office visits and over-the-counter

medication, for the rest of his life to manage the effects of the injury suffered in the accident in

question. While Schlosser modified his opinion to reduce the estimated time for future RFAs to

once every two years for the next ten years (Doc. 47 at 6-8 (citing Doc. 47-2)), Defendant

persists in its challenge. (Doc. 50.)

II. ARGUMENTS OF THE PARTIES

In its motion, Electric moves to “limit the opinions” of Rice, Gisclair and Schlosser

“relating to the future medical expenses of plaintiff… that Dr. Schlosser contends [Plaintiff] will

require for his lifetime, or 35 years into the future…” (Doc. 42 at 1.)

Electric contends that much of the Lifecare Plan and Dr. Schlosser’s opinions

regarding Mr. Salgado’s future lifetime medical care on which the Lifecare Plan is

based are speculative at best, by no means inevitable or necessary and are not

supported by any scientific or medical research, or any other evidence sufficient to

meet the standards for expert opinion under Daubert and Kumho Tire, or required

by F. R. E. Rule 702. More particularly, there is no scientific support for Dr.

Schlosser’s opinions that Mr. Salgado will undergo bilateral cervical and lumbar

RFAs every year for the rest of his life at a total cost of $2,791,799.00, using Dr.

Rice’s adjustment for present value. Additionally, there is no evidentiary support

for the projected need for the cost of quarterly pain management office visits, the

use of Ibuprofen or the use of Biofreeze for life as is also contained in the Lifecare

Plan…

(Doc. 42-1 at 6 (citations omitted).)

In terms of the standard by which this Court should measure the sufficiency of a medical

expert’s opinions, Electric argues that “Rule 702… contemplates that medical expert opinion

enjoy some level of certainty.” (Doc. 42-1 at 9 (citing Black v. Food Lion, Inc. 171 F.3d 308 (5th

Cir. 1999)) (emphasis added).) Additionally, Electric argues “[L]ike Texas, Louisiana also

requires the plaintiff to prove that the expenses will be necessary and inevitable, and the

expenses must be established ‘with some degree of certainty.’” (Id. (quoting Mosbey v. Jefferson

Par. Sheriff’s Office, 18-69 (La. App. 5 Cir. 6/27/18), 250 So. 3d 1110 (emphasis added)).)

Schlosser’s opinions, argues Electric, fall short of that standard. “… Dr. Schlosser was

incapable of forecasting with greater than 50 percent medical certainty the number of RFAs Mr.

Salgado would actually need in the future. Stated another way, Dr. Schlosser could not testify

with medical certainty more likely than not how many RFA procedures would be required in Mr.

Salgado’s future.” (Id. at 12.) Because the opinions of Gisclair and Rice are ultimately founded

on Dr. Schlosser’s defective opinion, Electric maintains that these opinions are unsound and

should be precluded at trial.

Relying primarily on Brandner v. State Farm Mut. Auto Ins. Co., No. 18-982, 2019 WL

636423, at *8-9 (E.D. La. Feb. 14, 2018), Electric contends that Schlosser’s opinion regarding

Salgado’s need for long term and repeated RFAs lacks sufficient scientific testing and support to

pass Daubert muster. (Id. at 12–14.) In addition, Electric argues that the Lifecare Plan’s

inclusion of periodic pain management visits and over-the-counter medications Ibuprofen and

Biofreeze are similarly unsupported. (Id. at 15-16.) Finally, scattered throughout the

memorandum in support of its motion, Electric attacks the validity of some of Schlosser’s

assumptions. (See, e.g., Doc. 42-1 at 15 (questioning Schlosser’s opinion that Salgado would

need to return for follow-up appointments since the medication being suggested, Biofreeze, does

not require a prescription).)

Plaintiff counters that Electric’s “argument is factually inaccurate and articulates a higher

standard than that required by Daubert and the Federal Rules of Evidence.” (Doc. 47 at 3.)

Plaintiff emphasizes that the Daubert analysis is a “‘flexible’ one and ‘the factors identified in

Daubert may or may not be pertinent in assessing reliability, depending on the nature of the

issue, the expert’s particular expertise and the subject of his testimony.’” (Id. at 4 (quoting this

Court’s opinion in Pike v. Office of Alcohol and Tobacco Control of the La. Dep. of Revenue,

No. 14-511, slip op. at 39 (M.D. La. Jun. 15, 2016) attached as Doc. 47-1).)

Plaintiff emphasizes that Schlosser is well qualified to give the opinions rendered on

Plaintiff’s future medical needs and, in support of this contention, attaches his declaration (Doc.

47-2) and his curriculum vitae (Doc. 47-3). They show that Schlosser graduated cum laude from

the Virginia Commonwealth University where he earned a dual BS degree in Biology and

Psychology, and a Master of Science degree in Exercise Science. (Doc. 47-3.) He thereafter got

his medical degree from LSU Health Science Center. (Id.) He also completed his residency in

Physical Medicine and Rehabilitation there. (Id.) In 2008, he completed a Fellowship at the LSU

Health Science Center in Interventional Pain Management. This included specialized training in

radiofrequency ablations. (Id.) Schlosser has a double board certification in Pain Management

and Physical Medicine and Rehabilitation. (Id.) He is an Associate Professor at the LSU Health

Science Center/Touro Infirmary. (Id.)

Plaintiff maintains that the “science behind RFAs is generally accepted and reliable”

(Doc. 47 at 10) and is supported not only by Schlosser’s testimony but by “scientific and peer-

reviewed literature.” (Id. at 12.) In support of his contention, he attaches Schlosser’s Declaration

(Doc. 47-2); The International Spine Intervention Society Practice Guidelines for Spinal

Diagnostic and Treatment Procedures, 2nd Edition (Doc. 47-9); a pamphlet about the Spine

Intervention Society (“SIS”) (Doc. 47-10); excerpts from Schlosser’s deposition (Doc. 47-11);

and a 2010 article entitled “The Efficacy of Repeated Radiofrequency Medial Branch Neurotomy

for Lumbar Facet Syndrome” published in the Journal of Korean Neurosurgery (Doc. 47-12).

Plaintiff argues that since the time of Electric’s motion, Schlosser’s opinions have been

modified to reflect Plaintiff’s improving medical condition. As a result, Schlosser has reduced

his estimates for future left sided RFAs to once every two years for the next ten years, and

Gisclair prepared an amended Lifecare Plan to reflect this change. (Doc. 47 at 7 (citing Doc. 47-

8).) Rice also updated his report. (Id.)

In its reply, Electric contends that Gisclair’s updated report “is no more credible or

admissible than the original version.” (Doc. 50 at 2.) “The timing of the amended [L]ifecare

[Plan is as questionable as its contents.” (Id.) Electric points out alleged inconsistencies between

Gisclair’s amended Lifecare Plan and a timeline created by Electric. (Id. at 2–3.)

Electric repeats its contention that “Louisiana state law recognizes that an award of future

medical expenses is always somewhat speculative in nature so that plaintiff is required to prove

that the expenses will be necessary and inevitable, and the expenses must be established ‘with

some degree of medical certainty.’” (Id. at 4 (again citing Mosbey v. Jefferson Par. Sheriff’s

Office, 18-69 (La. App. 5 Cir. 6/27/18), 250 So. 3d 1110 (emphasis by Electric)).)

As to the medical literature attached by Plaintiff to his opposition, “Electric questions

whether it was properly presented and whether it should be considered by the Court at all, and

more importantly, Electric questions Mr. Salgado’s interpretation and statement of the cherry

picked contents of the excerpts as supporting Dr. Schlosser’s opinion.” (Doc. 50 at 6.) Electric

accuses Schlosser of providing a “sham affidavit” that is inconsistent with his prior deposition

testimony. (Id. at 7.)

III. DAUBERT STANDARD

Pursuant to Federal Rule of Evidence 702, “a witness who is qualified as an expert by

knowledge, skill, experience, training, or education may testify in the form of an opinion or

otherwise” if the rule’s preconditions are met.

Electric’s Motion is a Daubert challenge based principally on Schlosser’s alleged failure

to use an accepted methodology and his alleged lack of an adequate factual foundation to support

his opinions. See Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993). When

Daubert is invoked, a district court may, but is not required to, hold a hearing at which the

proffered opinion may be challenged. Carlson v. Bioremedi Therapeutic Sys., Inc., 822 F.3d 194,

201 (5th Cir. 2016). However, when no hearing is held, “a district court must still perform its

gatekeeping function by performing some type of Daubert inquiry.” Id. “At a minimum, a

district court must create a record of its Daubert inquiry and ‘articulate its basis for admitting

expert testimony.’” Id. (quoting Rodriguez v. Riddell Sports, Inc., 242 F.3d 567, 581 (5th Cir.

2001)).

The role of the trial court is to serve as the gatekeeper for expert testimony by making the

determination of whether the expert opinion is sufficiently reliable. As the Fifth Circuit has held:

[W]hen expert testimony is offered, the trial judge must perform a screening

function to ensure that the expert’s opinion is reliable and relevant to the facts at

issue in the case. Daubert went on to make “general observations” intended to

guide a district court’s evaluation of scientific evidence. The nonexclusive list

includes “whether [a theory or technique] can be (and has been) tested,” whether it

“has been subjected to peer review and publication,” the “known or potential rate

of error,” and the “existence and maintenance of standards controlling the

technique's operation,” as well as “general acceptance.” The [Supreme] Court

summarized:

The inquiry envisioned by Rule 702 is, we emphasize, a flexible one. Its

overarching subject is the scientific validity and thus the evidentiary relevance and

reliability-of the principles that underlie a proposed submission. The focus, of

course, must be solely on principles and methodology, not on the conclusions that

they generate.

Watkins v. Telsmith, Inc., 121 F.3d 984, 988–89 (5th Cir. 1997) (internal citations omitted).

Cases following Daubert have expanded upon these factors and explained that Daubert’s

listing is neither all-encompassing nor is every factor required in every case. See, e.g., Gen. Elec.

Co. v. Joiner, 522 U.S. 136, 142 (1997); Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir.

2004). Indeed, courts may look to other factors. Joiner, 522 U.S. at 146.

As this Court has explained:

The admissibility of expert testimony is governed by Federal Rule of Evidence 702

and Daubert v. Merrell Dow Pharmaceuticals, Inc., which provide that the court

serves as a gatekeeper, ensuring all scientific testimony is relevant and reliable.

This gatekeeping role extends to all expert testimony, whether scientific or not.

Under Rule 702, the court must consider three primary requirements in determining

the admissibility of expert testimony: 1) qualifications of the expert witness;

2) relevance of the testimony; and 3) reliability of the principles and methodology

upon which the testimony is based.

Fayard v. Tire Kingdom, Inc., 2010 WL 3999011, at *1 (M.D. La. Oct. 12, 2010) (internal

citations omitted) (citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999)).

This Court has broad discretion in deciding whether to admit expert opinion testimony.

See, e.g., Joiner, 522 U.S. at 138–39 (appellate courts review a trial court’s decision to admit or

exclude expert testimony under Daubert under the abuse of discretion standard); Watkins, 121

F.3d at 988 (“District courts enjoy wide latitude in determining the admissibility of expert

testimony.”); Hidden Oaks Ltd. v. City of Austin, 138 F.3d 1036, 1050 (5th Cir. 1998) (“Trial

courts have ‘wide discretion’ in deciding whether or not a particular witness qualifies as an

expert under the Federal Rules of Evidence.”).

“Notwithstanding Daubert, the Court remains cognizant that ‘the rejection of expert

testimony is the exception and not the rule.’” Johnson v. Samsung Elecs. Am., Inc., 277 F.R.D.

161, 165 (E.D. La. 2011) (citing Fed. R. Evid. 702 Advisory Committee Note (2000 amend.)).

Further, as explained in Scordill v. Louisville Ladder Grp., L.L.C.:

The Court notes that its role as a gatekeeper does not replace the traditional

adversary system and the place of the jury within the system. As the Daubert Court

noted, “[v]igorous cross-examination, presentation of contrary evidence, and

careful instruction on the burden of proof are the traditional and appropriate means

of attacking shaky but admissible evidence.” The Fifth Circuit has added that, in

determining the admissibility of expert testimony, a district court must defer to

“‘the jury’s role as the proper arbiter of disputes between conflicting opinions. As

a general rule, questions relating to the bases and sources of an expert’s opinion

affect the weight to be assigned that opinion rather than its admissibility and should

be left for the jury’s consideration.’”

No. 02-2565, 2003 WL 22427981, at *3 (E.D. La. Oct. 24, 2003) (Vance, J.) (internal citations

omitted) (relying on, among others, Rock v. Arkansas, 483 U.S. 44, 61 (1987), and United States

v. 14.38 Acres of Land, More or Less Sit. in Leflore Cty., Miss., 80 F.3d 1074, 1077 (5th Cir.

1996)).

The Supreme Court has recognized that not all expert opinion testimony can be measured

by the same exact standard. Rather, the Daubert analysis is a “flexible” one, and “the factors

identified in Daubert may or may not be pertinent in assessing reliability, depending on the

nature of the issue, the expert’s particular expertise, and the subject of his testimony.” Kumho,

526 U.S. at 150, cited with approval in Pipitone v. Biomatrix, Inc., 288 F.3d 239, 244 (5th Cir.

2002).

IV. DISCUSSION

A. Plaintiff’s Burden of Proof Regarding Future Medical Expenses

In a diversity case such as this one, the Court must apply Louisiana law. Jorge-Chavelas

v. Louisiana Farm Bureau Cas. Ins. Co., 917 F.3d 847, 850 (5th Cir. 2019) (citing Erie R. Co. v.

Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938)). Where the Louisiana Supreme

Court has spoken on an issue of Louisiana law, this Court is bound to follow it. “Except in

matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any

case is the law of the state. And whether the law of the state shall be declared by its Legislature

in a statute or by its highest court in a decision is not a matter of federal concern.” Erie R. Co. v.

Tompkins, 304 U.S. at 78, 58 S. Ct. at 822. See also 19 Charles Alan Wright & Arthur R. Miller,

Federal Practice and Procedure § 4507 (3d ed. 2020). It is only “the absence of a controlling

high court decision [which] requires us to make an ‘Erie guess’ about Louisiana law,” Jorge-

Chavelas, at 850, and in that case, a Federal Court is ‘not strictly bound’ by decisions of

Louisiana’s intermediate courts.” Id. at 850–51 (quoting Transcon. Pipe Line Corp. v. Transp.

Ins. Co., 953 F.2d 985, 988 (5th Cir. 1992)).

Underlying Electric’s arguments is its repeated insistence that in order to recover future

medical expenses, Louisiana law requires Plaintiff to prove that such expenses will be “necessary

and inevitable” and must prove their necessity and inevitability to “some degree of certainty,” or

to “some degree of medical certainty.” (See, e.g., Doc. 42-1 at 6, 9-10, 12, 13 (citing Mosbey v.

Jefferson Par. Sheriff’s Office, 18-69 (La. App. 5 Cir. 6/27/18), 250 So. 3d 1110, and Brandner

v. State Farm Mut. Auto Ins. Co., No. 18-982, 2019 WL 636423 (E.D. La. Feb. 14, 2019)).) A

review of Louisiana case law makes clear that, despite the occasional use of phrases like “some

degree of certainty,” the standard of proof is, plainly and simply, “more probable than not.”

Furthermore, while a plaintiff must prove that the future medical treatment is reasonably

necessary, a medical treatment’s “inevitability” need not be shown.

Like the present case, Jordan v. Travelers Ins. Co., 257 La. 995, 245 So. 2d 151 (1971)

involved a plaintiff who claimed damages allegedly arising from injuries caused by an

automobile accident. Pertinent to the issue here, plaintiff claimed damages for future medical

expenses. In affirming the district court’s refusal to award damages for future medical expenses,

the Court of Appeal stated: “With respect to plaintiff's claim for future medical expenses, we

also conclude that plaintiff has failed to show with reasonable certainty what these expenses will

be.” Jordan v. Travelers Ins. Co., 231 So. 2d 678, 687 (La. Ct. App.), writ issued, 256 La. 65,

235 So. 2d 95 (1970), and writ denied, 256 La. 68, 235 So. 2d 96 (1970), amended by 257 La.

995, 245 So. 2d 151 (1971) (emphasis added). The Louisiana Supreme Court reversed the Court

of Appeal on this issue and, as to the plaintiff’s claim for future medical expenses and future loss

of earnings, the court wrote:

In the present instance, the court of appeal held that the loss of earnings and the

future medical expenses were not proved with sufficient certainty. It therefore

denied recovery; even though it also held that the evidence did prove the plaintiff

to be permanently and totally disabled by a mental condition, and that this disability

had been caused or aggravated by the defendants' driver's tort.

In Louisiana tort cases, the plaintiff must prove by a preponderance of the evidence

both the negligence of the defendant and the damages caused by the latter's fault;

but proof need be only by a preponderance of the evidence, not by some artificially

created greater standard. This burden of proof may be met by either direct or

circumstantial evidence.

In describing burden of proof, the courts sometimes speak of proof to a ‘reasonable

certainty’ or to a ‘legal certainty’; or of proof by evidence which is of ‘greater

weight’ or ‘more convincing’ than that offered to the contrary; or (in the case of

circumstantial evidence) of proof which excludes other reasonable hypotheses than

the defendant's tort with ‘a fair amount of certainty’. Whatever the descriptive term

used, however, proof by direct or circumstantial evidence is sufficient to constitute

a preponderance, when, taking the evidence as a whole, such proof shows that the

fact or causation sought to be proved is more probable than not.

See: Town of Slidell v. Temple, 246 La. 137, 164 So.2d 276 (1964); Naquin v.

Marquette Casualty Co., 244 La. 569, 153 So.2d 395 (1963); Perkins v. Texas and

New Orleans Railroad Co., 243 La. 829, 147 So.2d 646 (1962). See also: Sanders,

The Anatomy of Proof in Civil Actions, 28 La. L. Rev. 297 (1968); James, Civil

Procedure, Section 7.6 at pp. 250—51 (1965); Prosser on Torts, Section 41 at pp.

245—46 (3d ed., 1964); McCormick on Evidence, Section 319 at pp. 676—77

(1954); Malone, Louisiana Workmen's Compensation, Section 252 at pp. 293—94

(1951).

Jordan v. Travelers Ins. Co., 257 La. 995, 1007–08, 245 So. 2d 151, 155–56 (1971).

In reversing the decision of the district court and Court of Appeal to award no future

medical expenses, the court applied the rule it had set out.

In our opinion, this evidence proves that, more probably than not, the plaintiff

Jordan will have to be placed in a nursing home from time to time due to his tort-

caused mental condition. On the other hand, the evidence does not preponderantly

show that this is necessary other than intermittently. Since there is a legal right to

recovery, although the damages cannot be exactly calculated, an award of seven

thousand five hundred dollars for this loss is appropriate under the circumstances,

including the plaintiff's twelve-year further life expectancy.

Id. at 1012–13, 245 So. 2d at 157.

More recently, the court in Menard v. Lafayette Ins. Co, 09-1869 (La. 3/16/10), 31 So. 3d

996, 1006, while again referring to “some degree of certainty,” reiterated that “[t]he proper

standard for determining whether a plaintiff is entitled to future medical expenses is proof by a

preponderance of the evidence the future medical expense will be medically necessary.” (citation

omitted). It appears to this Court that the phrase “some degree of certainty” is a non-sequitur

(since a proposition is either certain or not),1 seems to impose a higher standard than “more

probably than not,” and, at the very least, is potentially confusing. But again, the apparent riddle

is solved by reference to Jordan: “Whatever the descriptive term used, however, proof by direct

or circumstantial evidence is sufficient to constitute a preponderance, when, taking the evidence

as a whole, such proof shows that the fact or causation sought to be proved is more probable than

not.” Jordan, 257 La. at 1008, 245 So. 2d at 155.

The holding of Jordan that a plaintiff may satisfy his burden of establishing entitlement

to future medical expenses by proving, “more probably than not,” that they will be incurred (and

not requiring any “artificially created greater standard,”) id. at 1008, is also supported by the

1 Webster's Dictionary defines the word “certain,” in relevant part, as “fixed, settled” or “known or proven to be true.”

Merriam-Webster's Dictionary (2020), available at https://www.merriam-webster.com/dictionary/certain.

following: 1 Frank L. Maraist, Louisiana Civil Law Treatise, Civil Procedure, § 11:7 (2d ed.

2008) (“In civil actions, the proponent of a cause of action or defense generally must establish

the material facts to support it by a preponderance of the evidence, i.e., by a standard of more

probable than not.”); 18 H. Alston Johnson, III, Louisiana Civil Law Treatise, Civil Jury

Instructions § 2:4 (3d ed. 2020) (“As I mentioned to you at the start of the trial, the plaintiff has

to prove his case by a preponderance of the evidence. This means that the plaintiff must convince

you that when you have considered all of the evidence, the facts that plaintiff is trying to prove

are more probably true than not true.”); Billie Colombaro, John W. deGravelles, & David R.

Frohn, Louisiana Practice Series, Louisiana Civil Trial Procedure § 5:20 (2020); cf. Fifth

Circuit Pattern Jury Instructions (Civil) § 3.2 (2020) (“Plaintiff [name] has the burden of proving

[his/her/its] case by a preponderance of the evidence. To establish by a preponderance of the

evidence means to prove something is more likely so than not so.”).

The next issue is whether Plaintiff must prove by a preponderance of the evidence that

the future medical expenses are “necessary and inevitable” as suggested by Electric. The genesis

of this phrase seems to be a per curium grant of a writ application by the Louisiana Supreme

Court in Stiles v. K Mart Corp., 597 So. 2d 1012, 1013 (La. 1992). The entirety of the court’s

opinion follows:

The application is granted.

When the record establishes that future medical expenses will be necessary and

inevitable, the court should not reject an award of future medical expenses on the

basis that the record does not provide the exact value of the necessary expenses, if

the court can examine the record and determine from evidence of past medical

expenses and other evidence a minimum amount that reasonable minds could not

disagree will be required. La. Code of Civ. Proc. art. 2164.

The judgment of the court of appeal as to future medical expenses is set aside, and

the case is remanded to the court of appeal to fix an award for future medical

expenses which the medical evidence established that plaintiff, more probably than

not, will be required to incur.

Id.

There are two points of particular note as they affect the issue under consideration. First,

and most importantly, this language does not pretend to set the standard for a plaintiff’s burden

of proof to recover future medical expenses. Rather, the Court states that a plaintiff is relieved of

his burden to show the value of future medical expenses through expert testimony if he has

shown that they are “necessary and inevitable” and the record otherwise provides supporting

evidence of “a minimum amount that reasonable minds could not disagree will be required.” Id.

See also Hanks v. Seale, 04-1485 (La. 6/17/05), 904 So. 2d 662, 672 (“In such cases, a jury's

award of future medical costs will not be overturned merely for the lack of specific expert

medical testimony on delineating the malpractice victim's future medical costs. See Stiles, 597

So. 2d at 1013.”) Here, of course, there is expert testimony on the issue of future medical

expenses. Thus, this language does not, as Electric suggests, set the requirement of proof for

Plaintiff in this case. Second, the decision reaffirms a plaintiff’s actual burden, i.e. to prove the

“expenses which the medical evidence established that plaintiff, more probably than not, will be

required to incur.” Id.

In D’Ambrosia v. Lang, 07-298 (La. App. 5 Cir. 4/29/08), 985 So. 2d 800, 815, the court

considered the meaning of the phrase “necessary and inevitable” in the context of what a plaintiff

must prove to recover future medical expenses:

USAA argues Peter must prove the surgery was “inevitable,” relying on Gunn v.

Robertson, 01–347 (La. App. 5 Cir. 11/14/01), 801 So. 2d 555, 564, writs denied,

02–0170, 02–0176 (La. 3/22/02), 811 So. 2d 942. In Gunn, this court relied on

Hurts v. Woodis, 95–2166 (La. App. 1 Cir. 6/28/96), 676 So. 2d 1166, 1177, which

stated that the plaintiff must prove that these expenses will be necessary and

inevitable. The statement in Gunn stems from a pronouncement in the 1992

Louisiana Supreme Court case of Stiles v. K Mart Corp., 597 So. 2d 1012 (La.1992)

(per curiam). Recently, this court explained that the burden of proving entitlement

to future medical expenses is by a preponderance of the evidence. Dufrene v.

Gautreau Family, LLC, 07–467 (La. App. 5 Cir. 2/22/08), 980 So. 2d 68, 82.5 The

court cited Stiles, 597 So. 2d at 1013, for the following proposition:

When the record establishes that future medical expenses will be

necessary and inevitable, the court should not reject an award of

future medical expenses on the basis that the record does not provide

the exact value of the necessary expenses, if the court can examine

the record and determine from evidence of past medical expenses

and other evidence a minimum amount that reasonable minds could

not disagree will be required. La. C.C.P. art. 2164.

By reaffirming the “preponderance of evidence” standard, Dufrene did not indicate

that the Louisiana Supreme Court in Stiles intended to change the standard for

determining entitlement to future medical expenses.

Thus, we hold that the plaintiff bears the burden of proving entitlement to future

medical expenses by a preponderance of the evidence.

Id.

Despite the Louisiana Fifth Circuit’s clarification of this issue in D’Ambrosia, supra,

(and its specific disavowal of Gunn v. Robertson, supra, on this point), a different panel, without

overruling or even referring to D’Ambrosia, stated:

In order to recover future medical expenses, the plaintiff must prove the expenses

will be necessary and inevitable. Gunn v. Robertson, 01-347 (La. App. 5 Cir.

11/14/01), 801 So. 2d 555, 565, writ denied, 02–170, 02176 (La. 3/22/02), 811

So.2d 942. Future medical expenses must be established with some degree of

certainty and must be supported with medical testimony and estimation of probable

costs.

Mosbey v. Jefferson Par. Sheriff's Office, 18-69 (La. App. 5 Cir. 6/27/18), 250 So. 3d 1110,

1120.

In Hoskin v. Plaquemines Par. Gov't, the Louisiana Fourth Circuit Court of Appeal

acknowledged the confusion and dueling standards created by Stiles’ “necessary and inevitable”

language but, turning to its prior decision in Rice v. ABC Ins. Co., 95–2008, p. 3 (La. App. 4 Cir.

4/3/96), 672 So. 2d 1109, 1112, writ denied, 96–1113 (La. 6/7/96), 674 So. 2d 971, stated,

We follow the approach in Rice, which is in accord with the Supreme Court's intent

expressed in Stiles. Rather than adopt one paragraph of Stiles or the other, Rice

recognized that the Supreme Court intended that the standard of proof be

preponderance of the evidence and that evidence presented must indicate that the

future medical expenses would be medically necessary. Rice does not refer to

“inevitable,” which we reject. Thus, we hold that the proper standard to determine

whether a plaintiff is entitled to future medical expenses is proof by a

preponderance of the evidence that the future medical expenses will be medically

necessary.

Hoskin v. Plaquemines Par. Gov't, 97-61 (La. App. 4 Cir. 12/1/97), 703 So. 2d 207, 210–11, writ

denied, 98-0270 (La. 4/3/98), 717 So. 2d 1129, and writ denied, 98-0271 (La. 4/3/98), 717 So.

2d 1129.

This Court agrees with the courts in D’Ambrosia and Hoskin and rejects “inevitable” as a

requirement of proof for future medical expenses. The word “inevitable” (like the word

“certain”), has a fixed and unambiguous meaning: i.e. “incapable of being avoided or evaded.”

Inevitable, Merriam-Webster's Dictionary (2020), available at https://www.merriam-

webster.com/dictionary/inevitable. To impose a requirement that a plaintiff prove that his

medical expenses will be “inevitable” flies in the face of his actual burden, i.e. proving by a

preponderance of the evidence that the future medical expenses are medically necessary.

D'Ambrosia, at 815; Hoskin, at 210-11. See also Alston Johnson’s Civil Jury Instructions, which

correctly states the law on the issue of what a plaintiff must prove by a preponderance of the

evidence in order to recover past and future medical expenses.

In determining any award that you might make for past or future medical expenses,

you should consider the evidence, and the opinions of expert witnesses, to decide

the reasonable value or expense of medical, nursing and hospital care and treatment

which was or will be reasonable and necessary for plaintiff’s condition.

Johnson, supra § 18:5 (emphasis added). See also, e.g., Wendel v. Travelers Ins. Co., 14-2 (La.

App. 4 Cir. 10/8/14), 151 So. 3d 828, 836, writ denied, 14-2346 (La. 2/6/15), 158 So. 3d 818 (“In

order for plaintiff to receive an award for future medical expenses, he must prove they are

medically necessary by a preponderance of the evidence.”); Sadler v. Int'l Paper Co., No. 09-

1254, 2014 WL 1217954, at *8 (W.D. La. Mar. 24, 2014) (citing Hoskin, 703 So. 2d at 211)

(“To recover future medical expenses, a plaintiff must offer ‘proof by a preponderance of the

evidence that the future medical expenses will be medically necessary.’”); Gaunt v. Progressive

Sec. Ins. Co., 11-1094 (La. App. 4 Cir. 6/8/12), 92 So. 3d 1250, 1272, writ denied, 12-1646 (La.

11/16/12), 102 So. 3d 33, and writ denied, 12-1792 (La. 11/16/12), 102 So. 3d 37 (“The proper

standard for the trial court's determination of whether a plaintiff is entitled to future medical

expenses is proof by a preponderance of the evidence that the future medical expenses will be

medically necessary.”).

But regardless of the precise phraseology of Plaintiff’s burden of proof on the issue of

future medical expenses, the Court finds that Schlosser’s opinions pass Daubert muster.

B. Schlosser’s Methodology and Foundation

Electric complains that Schlosser’s opinion regarding the need for future medical care

fails the Daubert challenge because there “is neither scientific or medical research, nor studies

which support the opinion of Dr. Schlosser” that RFA’s will be needed for Plaintiff for the

duration of his lifetime. (Doc. 42-1 at 12.)

Specifically, Electric argues that

there is no scientific support for Dr. Schlosser’s opinions that Mr. Salgado will

undergo bilateral cervical and lumbar RFAs every year for the rest of his life…

[and] there is no evidentiary support for the projected need for the cost of quarterly

pain management office visits, the use of Ibuprofen or the use of Biofreeze for

life…

(Doc. 42-1 at 6.)

Ordinarily there is no requirement that a treating physician’s opinions be supported with

peer-reviewed research or articles as long as they are based on adequate education, training,

experience and reasoned medical analysis.2

A treating physician often forms an opinion about the cause of an injury or the

extent to which it will persist in the future based upon his examination of a patient.

Courts therefore have allowed doctors to “testify at trial concerning any medical

opinions that [they] formed during the course of ... treatment with respect to

[plaintiff's] injuries, their cause, and the extent of [plaintiff's] disability.”

Dr. Brown bases his opinions on a range of factors, including his education,

training, extensive clinical experience in treating patients, and his care and

treatment of plaintiff. Dr. Brown has testified that, in addition to his clinical

experience, he continues to review the current literature on physical medicine and

electromyography. As to defendant's argument that Dr. Brown did not provide the

specific articles supporting his opinions, his opinions appear to be based on

reasoned medical analysis. Further, the lack of the specific articles is not fatal and

goes to the weight, not the admissibility, of his testimony, as an expert may base

his opinion on experience alone. Defendant's motion, as to Dr. Brown, therefore

must be denied.

Cohen v. Lockwood, No. 02-2246, 2004 WL 763961, at *3 (D. Kan. Apr. 8, 2004); see also

Barnett v. Nat’l Continental Ins. Co., No. 17-153, 2019 WL 126732, at *4 (M.D. La. Jan.

8, 2019).

This was also the conclusion reached in Sigsby v. Cardinal Logistics Mgmt. Corp.,

No. 18-1597, 2019 WL 568671 (E.D. La. Feb. 12, 2019). There, the plaintiff challenged

defendant’s expert medical doctor under “Daubert and Rule 702 standards because, during

his deposition, Dr. Todd could not articulate any evidence or peer-reviewed studies

2 This is, at least in part, the reason treating physicians are not subject to the report requirement of Fed. R. Civ. P.

26(a)(2)(B). “Treating physicians commonly consider the cause of any medical condition presented in a patient, the

diagnosis, the prognosis and the extent of disability, if any, caused by the condition or injury. Opinions as to these

matters are encompassed in the ordinary care of a patient and do not subject the treating physician to the report

requirement of Rule 26(a)(2)(B). Numerous other courts who have considered this issue have reached similar

conclusions.” Shapardon v. W. Beach Estates, 172 F.R.D. 415, 416–17 (D. Haw. 1997).

supporting his assertion that RFAs are typically only administered, at most, five to seven

times.” Id. at *4. In rejecting this contention, the court stated:

[Plaintiff] requires too much: although he is permitted to question the foundation

of Dr. Todd's opinions and shed doubt on the validity of his testimony, such

challenges are better suited for cross-examination during trial. Dr. Todd has not

opined that treating Sigsby's pain with more than seven RFAs would be

inappropriate or that more than seven RFAs have never before been prescribed a

patient, and Sigsby is free to offer conflicting testimony from his treating physician

or expert witnesses. Dr. Todd's opinions are based on his personal knowledge,

training, and experience, all of which serve as an adequate and reliable basis for

his testimony. See Fed. R. Evid. 702 advisory committee's note to 2000 amendment

(“Rule 702 expressly contemplates that an expert may be qualified on the basis of

experience.”).

Id. (emphasis added).

However, Electric again points to Brandner in which the District Court excluded

Schlosser’s and another physician’s opinions regarding the need for a lifetime of future RFAs

because “Plaintiff has not met his burden of establishing the doctors’ experience qualifies them

to offer [their] opinion. Neither has Plaintiff shown that the doctors’ opinions are supported by

peer-reviewed studies[,] the results of which have gained general acceptance in the scientific

community.” Brandner, 2019 WL 636423, at *8-9.3

Plaintiff counters that, Schlosser’s opinions regarding long-term use of RFSs are based

on and supported by accepted medical literature (Doc. 47 at 8–10 (citing to Schlosser’s

declaration, Doc. 47-2 and Ex. 47-9–47-12)) but, in any event, based on a recent visit and

Plaintiff’s improved condition, Schlosser has modified his opinion to call for only one to two

RFAs per year for the next ten years. (Id. at 7 (citing Doc. 47-2).) Consequently, Gisclair’s and

Rice’s reports were also modified to reflect this change. (Id. (citing Doc. 47-8).) Finally, pointing

3 The Brandner court did permit Schlosser to testify, “based on [his] personal knowledge and experience treating

patients, and the studies cited examining RFA administration for seven to ten years that it is more probable than not

that Plaintiff will need and will benefit from up to ten annual RFAs.” Brandner, 2019 WL 636423, at *8.

the Court to Tyson v. Nat'l Specialty Ins. Co., No. 17-1427, 2020 WL 3547952, at *5 (W.D. La.

June 29, 2020), Plaintiff argues that Brandner is distinguishable since here, as in Tyson,

Schlosser’s opinions are supported. (Id. at 18–19.)

In its Reply, Electric questions whether the medical literature was properly presented and

whether it should be considered by the Court at all. (Doc. 50 at 6–7.) Electric accuses Schlosser

of providing a “sham affidavit” that is inconsistent with his prior deposition testimony. (Id. at 7.)

First, the Court finds that Schlosser’s declaration and supporting literature was properly

presented and not a “sham.” Electric issued a Daubert challenge to Schlosser’s testimony as

being unsupported and, in response, Plaintiff provided Schlosser’s declaration and additional

support for his opinions. Furthermore, the Court finds that Schlosser is highly qualified and

experienced in the area about which he is to testify. Schlosser graduated cum laude from the

Virginia Commonwealth University where he earned a dual BS degree in Biology and

Psychology, and a Master of Science degree in Exercise Science. (Doc. 47-3.) He thereafter got

his medical degree from LSU Health Science Center. (Id.) He also completed his residency in

Physical Medicine and Rehabilitation there. (Id.) In 2008, he completed a Fellowship at the LSU

Health Science Center in Interventional Pain Management which included specialized training in

radiofrequency ablations. (Id.) Schlosser has a double board certification in Pain Management

and Physical Medicine and Rehabilitation. (Id.) He is an Associate Professor at the LSU Health

Science Center/Touro Infirmary. (Id.)

In his declaration, Schlosser explains that, because of nerve regeneration following a

RFA, the RFA “can be effective anywhere between 6 months to 1 and a half years.” (Doc. 47-2

at 2.) “As the nerve branch regenerates, the transmission of pain signals begins to resume.” (Id.

at 3.) “Therefore, since Salgado has permanent pain, it is a possibility that he may need repeat

ablations indefinitely as the nerve branches will eventually regrow, returning Salgado’s pain

transmissions.” (Id.)

Schlosser’s declaration is supported not only by his education, training and experience

but by the literature which he references in his declaration (Doc. 47-2 at 2–3) and which is

attached thereto. (Docs. 47-9–47-12.) The supporting literature includes, but is not limited to,

Practice Guidelines for Spinal Diagnostic and Treatment Procedures of the International Spine

Intervention Society which includes the following excerpts relevant to Electric’s challenge.

Radiofrequency medial branch neurotomy is not curative. It does not resolve the

lesion that causes the pain from the zygapophysial joints. It does not permanently

destroy the medial branches of the dorsal rami. The cell bodies of these nerves

remain intact, and the nerves regenerate.

As they regenerate, the pain can recur. Nevertheless, on average, patients can

expect a period of about 400 days of complete relief of pain following an initial,

successful neurotomy….

[…]

There appears to be no limit to the number of times the neurotomy might be

successfully repeated.

Practice Guidelines for Spinal Diagnostic and Treatment Procedures of the International Spine

Intervention Society (Second Edition) (Ex. A, Doc. 47-2 at 10.)

Electric is, of course, free to disagree with these conclusions and challenge them by way

of vigorous cross examination and the introduction of its own expert evidence. Any alleged

inconsistencies between his declaration and deposition testimony can be similarly explored and

challenged. But for purposes of the present Daubert motion, the Court finds that Schlosser’s

challenged opinions regarding the need for future RFAs (whether in the original or modified

reports) and the downstream opinions of Gisclair and Rice, utilize an appropriate methodology

and are adequately supported.

The Court disagrees with Brandner’s premise that Schlosser’s expert education, training

and experience alone are inadequate to support his opinions regarding Plaintiff’s need for future

RFA treatment. See, e.g., Sigsby, at *4. But, in any event, Brandner, upon which Electric so

heavily relies, is readily distinguishable. The present case is much like the case of Tyson v. Nat’l

Specialty Ins. Co., where the court stated:

The Court agrees with Plaintiffs that Brandner is easily distinguished from the

instant case based on the quality of the evidence this Court has before it to decide

the Daubert issue versus the quality of evidence that was presented to the Brandner

court. Furthermore, “[a]s a general rule, questions relating to the bases and sources

of an expert's opinion affect the weight to be assigned that opinion rather than its

admissibility and should be left for the jury's consideration.” Viterbo v. Dow Chem.

Co., 826 F.2d 420, 422 (5th Cir. 1987).

No. 17-1427, 2020 WL 3547952, at *5 (W.D. La. June 29, 2020). Such is the case here.

V. CONCLUSION

Accordingly, for the foregoing reasons, Electric Insurance Company’s Daubert Motion in

Limine (Doc. 42) is DENIED.

Signed in Baton Rouge, Louisiana, on October 29, 2020.

S

JUDGE JOHN W. deGRAVELLES

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA