Court Excludes Plaintiff’s Expert’s Opinion On Future Damages


The plaintiff filed a Complaint in the Fairfax County Circuit Court claiming the defendant injured her in an automobile accident.  After deciding not to use the first expert orthopedist she hired for the case, the plaintiff hired a second orthopedist.  The plaintiff designated the second doctor to testify that the accident caused a permanent injury to the plaintiff’s right hip.  Additionally, the second doctor would testify that the plaintiff’s injuries would include periodic flare-ups in the future, and that these flare-ups may involve treatment costing $2,000 to $3,000 per year.  The second doctor reached this opinion despite the fact that the plaintiff had not received any treatment for her alleged injuries since 2014.

During his trial testimony, the second doctor reaffirmed his opinion that each flare-up may require $2,000 of $3,000 of treatment.  However, the second doctor also embellished his previous opinion.  He testified that the plaintiff may actually have more than one flare-up per year, such that her total annual treatment could be in excess of $2,000 to $3,000.  On cross-examination, he also testified the plaintiff could experience less than one flare-up per year, causing her to incur less than $2,000 to $3,000 per year.  The plaintiff was only 33, so the discrepancy could be significant.

Defendant’s Motion

The defendant moved the Court to exclude the second doctor’s opinion on the grounds that the plaintiff did not properly designate it in discovery, that it lacked foundation, and that it invited speculation from the jury.  It invited speculation from the jury because the doctor could not say how many flare-ups the plaintiff would experience per year, how many of those flare-ups she would actually treat for, for how many years into the future the plaintiff would continue to experience flare-ups, or how much each flare-up would cost the plaintiff.

The Court excluded the second doctor’s testimony about the plaintiff’s future damages.  It agreed that the testimony forced the jury to speculate.  It also agreed that the second doctor’s trial testimony impermissibly departed from his designated opinion.

The Takeaway

Personal injury plaintiffs frequently claim they will require treatment far into the future.  In lower value cases, those claims are almost never accompanied with a life care plan and are not very well developed.  Many judges will allow claims for future damages in such cases to proceed despite the fact that they lack detail, on the belief that it’s best for the jury to hear the claim and take its shortcomings into consideration.  Despite this, it is often still a good idea to challenge the legal sufficiency of a claim for future damages.  If the motion succeeds, it can severely cap the amount of damages the plaintiff is allowed to present to the jury.  And even if the motion fails, it can educate the court on the defendant’s position, putting the defendant in a better position for a motion to strike at trial.