The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
BOBBIE VAUGHN CIVIL ACTION NO. 6:19-cv-00293
VERSUS JUDGE TERRY A. DOUGHTY
HOBBY LOBBY STORES, INC. MAG. JUDGE CAROL WHITEHURST
RULING
This is an action sounding in tort for personal injuries and damages brought by the
plaintiff, Bobbie Vaughn (“Vaughn” or “Plaintiff”), against the defendant, Hobby Lobby Stores,
Inc. (“Hobby Lobby” or “Defendant”) under La. R.S. 9:2800.6, Louisiana’s Merchant Liability
Act. Pending here is a Motion in Limine [Doc. No. 37] filed by Hobby Lobby. Vaughn has filed
an opposition [Doc. No. 45]. Hobby Lobby has filed a reply to the opposition [Doc. No. 59].
For the following reasons, Hobby Lobby’s motion is GRANTED.
I. FACTS AND PROCEDURAL HISTORY
This lawsuit arises out of an accident that occurred on December 2, 2017, at the Hobby
Lobby located in Lafayette, Louisiana. Vaughn contends that as she was shopping in the store,
Hobby Lobby employees (including the store manager) were stocking the top shelves of the aisle
adjacent to where she was shopping. As the employees were stocking items, they allegedly
pushed picture frames located on the top of the shelf, causing several frames to fall onto the other
side and strike Vaughn.
On November 20, 2018, Vaughn filed suit against Hobby Lobby in the Fifteenth Judicial
District Court, Parish of Lafayette, State of Louisiana. On March 7, 2019, the lawsuit was
removed to this Court [Doc. No. 1].
Vaughn asserts that she has suffered severe and life altering injuries as a result of this
accident. Specifically, she asserts that she has suffered significant injuries to her neck, including
radiating pain into her right arm, and, further, she has suffered from debilitating headaches and
anxiety since this accident.
Significant to the pending motion, Vaughn also asserts she will require $1,679,363.64
(pre-discounted amount) for future medical care as a result of this accident, as calculated by Dr.
Shelly Savant (“Dr. Savant”), Vaughn’s designated expert in life care planning/vocational
rehabilitation.
Hobby Lobby seeks to exclude Dr. Savant’s reports and opinions. The motion is fully
briefed, and the Court is prepared to rule.
II. Applicable Law and Analysis
A. Applicable Law
1. Motions in Limine
A motion in limine is a motion made prior to trial for the purpose of prohibiting opposing
counsel from mentioning the existence of, alluding to, or offering evidence on matters so highly
prejudicial to the moving party that a timely motion to strike or an instruction by the court to the
jury to disregard the offending matter cannot overcome its prejudicial influence on the jurors'
minds. Mathis v. Pinnacle Entm't, Inc., CIV.A. 11-2199, 2014 WL 2880217, at *5 (W.D. La.
June 23, 2014) (quoting Bocalbos v. Nat'l W. Life Ins. Co., 162 F.3d 379 (5th Cir. 1998)).
2. Relevancy Under the Federal Rules of Evidence
The essential prerequisite of admissibility is relevance. United States v. Hall, 653 F.2d
1002, 1005 (5th Cir. 1981) (Citing FED. R. EVID. 402). Rule 401 defines relevant evidence as
evidence having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the evidence.
FED. R. EVID. 401. Evidence which is not relevant is not admissible. FED. R. EVID. 402.
Implicit in the above definition are two distinct requirements: (1) the evidence must be probative
of the proposition it is offered to prove, and (2) the proposition to be proved must be one that is
of consequence to the determination of the action. Hall, 653 F.2d at 1005. Whether a
proposition is of consequence to the determination of the action is a question that is governed by
the substantive law. Simply stated, the proposition to be proved must be part of the hypothesis
governing the case a matter that is in issue, or probative of a matter that is in issue, in the
litigation. Id.
Moreover, pursuant to Rule 403 of the Federal Rules of Evidence, the Court may exclude
evidence that satisfies the above requirements for relevancy “if its probative value is
substantially outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” FED R. EVID. 403. “‘Unfair prejudice’ within its context means an undue
tendency to suggest decision on an improper basis, commonly, though not necessarily, an
emotional one.” FED R. EVID. 403, 1972 Advisory Committee Note.
3. Standard of Review
Federal Rule of Evidence 702 establishes the standards for admissibility of expert
testimony to assist a trier of fact in understanding evidence or determining a fact in issue. In
determining whether expert testimony is reliable and relevant, the district court’s role in applying
Rule 702 is that of a gatekeeper. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579, 597-598, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). However, as gatekeeper, the district
court is not intended to replace the adversary system: “Vigorous 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.” United States v. 14.38 Acres of
Land, More or Less Situated in Lefore County, Miss., 80 F.3d 1074, 1078 (5th Cir. 1996) (quoting
Daubert, 509 U.S. at 596).
In determining whether to allow expert opinion testimony, the Court must first decide
whether the witness is qualified as an expert by knowledge, skill, experience, training, or
education. See Moore v. Ashland Chemical, Inc., 126 F.3d 679, 684 (5th Cir. 1997). A district
court should refuse to allow an expert witness to testify if it finds that the witness is not qualified
to testify in a particular field or on a particular subject. Wilson v. Woods, 163 F.3d 935 (5th Cir.
1999).
If a witness is qualified to testify, the court must then determine whether the proffered
testimony is both relevant and reliable. “The expert testimony must be relevant, not simply in
the sense that all testimony must be relevant, FED. R. EVID. 402, but also in the sense that the
expert’s proposed opinion would assist the trier of fact to understand or determine a fact in
issue.” Bocanegra v. Vicmar Services, Inc., 320 F.3d 581, 584 (5th Cir. 2003) (citing Daubert,
509 U.S. at 591-92).
As to reliability, Rule 702 only authorizes the admission of expert testimony when “(1)
the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable
principles and methods, and (3) the witness has applied the principles and methods reliably to the
facts of the case.” FED. R. EVID. 702. Expert testimony requires more than “subjective belief
or unsupported speculation.” Daubert, 509 U.S. at 590.
B. Analysis
Dr. Savant was designated by Vaughn as an expert in life care planning/vocational
rehabilitation. Vaughn was thirty-eight years old at the time of this accident. Vaughn’s life
expectancy, according to Dr. Savant, is eighty-two years. As indicated above, Hobby Lobby seeks
to exclude the reports and opinion of Dr. Savant, including her opinion that Vaughn will require
$1,679,363.64 for future medical care as a result of this accident.
1. Hobby Lobby’s Contentions
Hobby Lobby does not attack Dr. Savant’s qualifications. Rather, Hobby Lobby submits
that Dr. Savant’s reports and opinions must be excluded or limited as they lack a reliable
foundation, are not based on sufficient facts or data, and are so speculative that they are the type
of testimony Daubert and the Federal Rules of Evidence are specifically designed to filter out.
More specifically, Hobby Lobby contends that Dr. Savant’s future care recommendations are not
supported by medical evidence from Vaughn’s treating physicians. Additionally, Hobby Lobby
argues that Dr. Savant’s testimony is excludable under Rule 403 because it is cumulative,
misleading to the jury, and confuses the issues.
Hobby Lobby asserts that, while she is a board-certified neurologist and psychiatrist, Dr.
Savant admits that she is not Vaughn’s treating physician and that she is not diagnosing or treating
Vaughn. Despite this disclaimer and having seen Vaughn only once, Dr. Savant originally prepared
a Life Care Plan (the “Plan”) dated May 4, 2020, that included several items of future medical care
supported solely by Dr. Savant. She based the remainder of her opinions on conversations that she
allegedly had with some of Vaughn’s treating physicians. Hobby Lobby contends these opinions
are not supported by the medical records and evidence in this matter.
Hobby Lobby further asserts that Dr. Savant’s November 3, 2020 deposition testimony
confirmed that she had essentially placed herself in the role of treating physician, while
maintaining that she is not one, stating it would be a “conflict” for her to play dual roles. [Dr.
Savant Depo., Doc. No. 37-4, pp. 39-45.] Hobby Lobby states that, in an apparent attempt to
remedy this situation, she then consulted with Vaughn’s treating orthopedist, Dr. Baronne, in
October 2020, and issued a revised Life Care Plan (the “revised Plan”) dated December 29, 2020
[Doc. No. 37-13]. The original Plan was reportedly adjusted in accordance with Dr. Savant’s
conversation with Dr. Baronne, an additional conversation with Mr. Jimmy Reaux (Vaughn’s
counselor), and changes in Vaughn’s medication since the issuance of Dr. Savant’s original report.
It is Dr. Savant’s revised Plan which states that Vaughn will require $1,679,363.64 worth of future
medical care.
Hobby Lobby points to two Louisiana federal district court opinions involving Dr. Savant’s
expert testimony. Hobby Lobby states that Judge Susan Morgan of the Eastern District of
Louisiana has cautioned that, as a life care planner, Dr. Savant may only testify as to a plaintiff’s
future healthcare needs if it is “predicated upon the testimony of treating physicians as to the
reasonable need for such care, and the cost of such care.” Snider v. N.H. Ins. Co., No. CV 14-2132,
2016 WL 3193473, at *2 (E.D. La. June 9, 2016) (excluding testimony of Dr. Shelly N. Savant if
she cannot point to testimony or a report of a treating physician demonstrating a need for the items
listed in the plaintiff’s life care plan). The Court stated that Dr. Savant “must specifically identify
the treating physician upon whose report or testimony she relies prior to testifying as to the need
for and future costs of that care.” Id. (emphasis added). The Court indicated that, without written
reports, medical records or deposition testimony supporting her opinions, Dr. Savant’s report and
opinions should be excluded. Id.
Hobby Lobby states that Judge Africk of the Eastern District of Louisiana has criticized
Dr. Savant’s lack of specificity of sources for similar recommendations made in a previous case.
See Lawrence v. Great Lakes Dredge & Dock Co., L.L.C. of Louisiana, No. CV 17-9775, 2019
WL 9045085, at *1 (E.D. La. Apr. 24, 2019) (“any projected needs and costs must be based on
evidence ‘demonstrating the treatment that [Lawrence] will probably need, not simply the
treatment that he might need.’”). Judge Africk was especially concerned with the fact that Dr.
Savant had Plaintiff’s treating physicians “endorse” her recommendations, after Dr. Savant issued
her report containing those recommendations. Judge Africk stated
Dr. Savant’s broad and conclusory assertions that Lawrence’s
treating physicians “endorsed” the entirety of her report, without
more (absent a few minor exceptions) will not suffice to make
Savant’s testimony admissible at trial. Savant cannot go from point
A to point B without explaining with some specificity how she
arrived at point B.
[Doc. No. 37-6].
Hobby Lobby asserts that Dr. Savant’s opinions here are equally baseless because she fails
to cite any written report, medical record, or deposition testimony that Vaughn will more probably
than not need the treatment that she recommends. For instance, Dr. Savant’s original Plan
independently recommended three spine intervention procedures (which she estimates will cost
$24,837) [Doc. No. 37-3]. Dr. Savant cited her analysis of the medical records of Dr. Franklin and
Dr. Sledge in support of these recommendations. [Id.] She admitted that she did not speak with
either physician in preparing her original report [Dr. Savant Depo., Doc. No. 37-4, pp. 25-26].
According to Dr. Sledge’s medical records, however, he only discussed the possibility of
cervical facet injections and shoulder injections but noted that Vaughn was unsure if she wanted
to proceed at that time and stated that she wanted to see how her symptoms would progress first
[Doc. No. 37-7]. Since that record dated August 2019, Vaughn had not returned for further
treatment as of the time Dr. Savant prepared the original Life Care Plan in April 2020. Yet, Dr,
Savant included those injections in the original Plan and testified that it was her own
recommendation and within the purview of a neurologist [Doc. No. 37-4, pp. 9-12]. Hobby Lobby
argues that, again, she chose to wear one hat as a purported treating neurologist when Vaughn
already has a treating neurologist (Dr. Weir), and then she took her own advice before wearing the
other hat as the Life Care Planner to include future injections in her itemized life care plan.
Hobby Lobby additionally asserts that Dr. Savant’s plan recommended spine surgeon
follow-up visits annually for five years as well as x-rays of her shoulder and cervical spine, which
Dr. Savant testified were based off Dr. Sledge’s records. Yet, Dr. Sledge’s last record, dated
08/05/19 only mentioned that she could follow-up as needed.
Dr. Savant also recommended 24 sessions of physical therapy every four years (at a total
cost of $72,003), based on records from Dr. Franklin and Dr. Sledge; the only mention of therapy
is from Dr. Franklin noting that he would extend her current physical therapy on 02/22/18.
Dr. Savant recommended MRIs of the cervical spine and right shoulder, and physiatrist
visits based off Dr. Franklin’s records; again, there is no indication in his records that these are
future recommendations and it appears that Vaughn has not followed up with Dr. Franklin since
02/22/18.
Hobby Lobby states that, after issuing her original May 2020 report, in October 2020, Dr.
Savant had Dr. Baronne, Vaughn’s new treating orthopedist, retroactively approve the foregoing
recommendations. This further demonstrates the unreliability of her opinions that she first reached
on her own, and then later attempted to support through Vaughn’s new orthopedist, according to
Hobby Lobby. Her updated report does not cite to any specific medical records from Dr. Baronne
to support that more probably than not, Vaughn will require any individual item of future care that
she recommends. Rather, she merely lists Dr. Baronne’s name in addition to her own as a “source”
for each line item that she had already independently recommended. As per Judge Africk, “the
endorsements say nothing about the factual predicate underlying Savant’s conclusions and
recommendations.” [Doc. No. 37-6].
Hobby Lobby further asserts that Dr. Savant’s Plan, which projects medical expenses over
a 43-year period can only be described as wildly speculative. For instance, only months after the
Life Care Plan, was originally prepared, Vaughn’s treating physicians already changed her
medications, necessitating a drastic reduction in the amount of medication that Dr. Savant believes
that Vaughn will need in the future. Hobby Lobby states that, given that Dr. Savant already had to
significantly revise her Life Care Plan months after it was prepared demonstrates exactly how
unreliable and speculative Dr. Savant’s predictions are regarding Vaughn’s medical care for the
next 43 years.
Hobby Lobby additionally asserts that Dr. Savant’s Life Care Plan is so over-inflated it
exceeds the bounds of reason. According to Vaughn’s own recapitulation of medical expenses, the
treatment undergone in the last three years since this accident occurred totals $32,627, which is on
average, $10,875 per year since the accident. And yet, prior to any discount to present value, Dr.
Savant’s total Life Care Plans call for treatment totaling $39,054-$41,851 each year. Hobby Lobby
argues that the Life Care Plan is so over-inflated compared to the medical treatment undergone to
date, is so wildly speculative and lacking in foundation, that it is nothing more than the very type
of “junk science” that Daubert is meant to exclude.
Finally, Hobby Lobby argues that Dr. Savant’s testimony is excludable under Rule 403
because it is cumulative, misleading to the jury, and confuses the issues. Hobby Lobby states that
this Court should exclude Dr. Savant as an expert because her recommendations address the same
injuries and treatment plan as Drs. Weir, Orazio and Baronne. Since those doctors are Vaughn’s
treating physicians, their testimony should be given deference. Any other experts addressing the
same or similar issues would be cumulative, create an unreasonable risk of misleading the jury and
could confuse the issues because they supplant and/or contradict the course of treatment described
by Vaughn’s treating physicians.
2. Vaughn’s Contentions
Vaughn responds that Dr. Savant relied upon the practices and principles applicable to life
care planners in creating her Plan, and further relied on Vaughn’s treating physicians’ input in
generating the Plan, which Vaughn intends to present at trial. Vaughn asserts, therefore, that any
arguments Hobby Lobby raises goes directly to Dr. Savant’s credibility and must be heard by the
jury. Vaughn further states that the Plan has been updated to reflect her treating physicians’
recommendations.
Vaughn submits that, while doctors are familiar with the future treatment a plaintiff may
require, they are not familiar with the costs of that treatment. It is for this reason that a life care
planner is helpful to the jury, as life care planners project the future costs of treatment determined
to be medically necessary by the plaintiff’s treating physician so that the jury may award an
appropriate amount of damages.
Vaughn contends that Dr. Savant’s life care plan was generated in a reliable manner. Dr.
Savant not only reviewed Vaughn’s medical records and other supporting documents, she
consulted with Vaughn’s treating physicians regarding her injuries and necessary treatment and
performed an independent medical examination of Vaughn which included a full neurological
exam. Dr. Savant then took the information she obtained from Vaughn’s treating physicians and
that which is contained in the medical records and drafted a life care plan with recommendations
based on the same. These recommendations were thereafter confirmed by Dr. Savant with
Vaughn’s treating physicians who were actively providing treatment during the generation of the
life care plan or were made based on the medical records generated by Vaughn’s treating
physicians.
With regard to the two Louisiana federal district court opinions cited by Hobby Lobby,
Vaughn asserts that in each of these cases, the Court deferred excluding any of the opinions or
recommendations of Dr. Savant, advising that each recommendation made should be supported by
medical records or the testimony of a treating physician at trial. Therefore, at trial, should Hobby
Lobby encounter an objectional recommendation after the presentation of evidence by Vaughn’s
treating physician, Vaughn contends that an objection can be made at that point. Any such
objections are now premature.
Vaughn additionally argues that Dr. Savant’s Plan is reliable as it has been consistently
updated. Further, with regard to Hobby Lobby’s contention that the Plan is overinflated, Vaughn
asserts that this argument is nothing more than a credibility argument Hobby Lobby can make to
the jury at trial
Finally, with regard to Hobby Lobby’s argument that Dr. Savant’s testimony is cumulative
because Vaughn’s treating physicians will testify at trial, Vaughn responds that Dr. Savant’s
testimony and opinions are far more likely to help the jury in determining what future care is or is
not necessary and is meant to be supported by the testimony of Vaughn’s treating physicians. Dr.
Savant’s opinions and recommendations are therefore not cumulative, and, in fact, are helpful to
the finder of fact, according to Vaughn.
3. Hobby Lobby’s Reply
Hobby Lobby replies that Vaughn’s argument that the Court should wait until the trial to
see if Vaughn has presented sufficient evidence for the basis of Dr. Savant’s opinions is meritless.
Hobby Lobby contends that Vaughn’s argument ignores the expert disclosure requirements set out
in Rule 26, which mandates that her expert report include the opinions and the “basis and reasons”
for such opinions. Hobby Lobby asserts that Dr. Savant has not pointed to any medical records or
medical testimony to support many of the opinions in her report.
Hobby Lobby argues that it is of no consequence whether Vaughn thinks that she will be
able to submit sufficient evidence to establish the basis of Dr. Savant’s opinions at trial. Hobby
Lobby concludes that any such disclosure of the basis for Dr. Savant’s opinions for the first time
at the trial is untimely pursuant to this Court’s scheduling order and Rule 26.
4. Court’s Ruling
The Court finds that Vaughn has failed to carry her burden of showing that Dr. Savant’s
testimony is based upon sufficient facts or data; or that Dr. Savant’s testimony is the product of
reliable principles and methods; or, that Dr. Savant has applied the principles and methods
reliably to the facts of the case. FED. R. EVID. 702.
Regardless of an expert’s qualifications, “expert testimony that relies on ‘completely
unsubstantiated factual assertions’ is inadmissible.” Moore v. Int'l Paint, L.L.C., 547 F. App’x 513,
515 (5th Cir. 2013) (quoting Hathaway v. Bazany, 507 F.3d 312, 319 n.4 (5th Cir. 2007)). Indeed,
when the proposed expert testimony “is ‘not based upon the facts in the record but on altered facts
and speculation designed to bolster [a party’s] position,’ the trial court should exclude
it.” Id. (quoting Guillory v. Domtar Indus. Inc., 95 F.3d 1320, 1331 (5th Cir. 1996)).
Here, Dr. Savant fails to cite with sufficient specificity any written report, medical record,
or deposition testimony that Vaughn will more probably than not need the treatment that Dr. Savant
recommends. In other words, Vaughn has failed to show that Dr. Savant’s proposed testimony is
predicated upon the testimony of treating physicians (other than herself), as to the reasonable need
for such care, and the cost of such care. Her own diagnoses of any disorder or condition or the
future medical costs related thereto is not sufficient.
This failure makes it impossible for the Court to make a determination, pre-trial, that Dr.
Savant’s testimony is the product of reliable principles and methods, or that Dr. Savant has applied
the principles and methods reliably to the facts of the case.
As to Vaughn’s request that the Court wait until trial to determine whether she has
submitted sufficient evidence to establish the basis of Dr. Savant’s opinion, the time for that
inquiry has passed. Vaughn had ample opportunity to provide the portions of the reports,
depositions, or other documentation upon which Dr. Savant relies to opposing counsel and to the
Court but failed to do so. Any such disclosure of the basis for Dr. Savant’s opinions for the first
time at trial is untimely pursuant to this Court’s scheduling order and Rule 26.
Further, the fact that Dr. Savant already had to significantly revise her Life Care Plan
months after it was prepared demonstrates how unreliable her predictions are regarding Vaughn’s
medical care for the next 43 years. Additionally, Dr. Savant’s Plan appears to be speculative and
significantly over-inflated. For example, as indicated above, although Vaughn’s medical expenses
in the last three years averaged $10, 875 per year, Dr. Savant opines that Vaughn’s future medical
expenses will total approximately $40,000 per year.
In short, Vaughn has failed to carry her burden of establishing the reliability of Dr. Savant’s
reports and opinion.
Wl. CONCLUSION
For these reasons, Hobby Lobby’s Motion in Limine [Doc. No. 37] to exclude the
testimony and opinions of Dr. Shelly Savant is GRANTED.
MONROE, LOUISIANA, this 25" day of May, 2021.
TERRW A\DOUGHTY
UNITED STATES DISTRICT J
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