Defense Expert’s Opinion About Life Expectancy Was Properly Excluded in Washington Wrongful Death Case

Written on Wednesday, August 11th, 2021 by T.C. Kelly
Filed under: Expert Opinions, ExpertWitness

Doy Coogan operated an excavation business. During his lifetime, he repaired several cars, as well as industrial equipment that the business used. To make the car and equipment repairs, Coogan purchased brakes, clutches, and other asbestos-containing parts from local NAPA stores.

Coogan was diagnosed with mesothelioma, a disease that has only known cause: asbestos exposure. The cancer metastasized and Coogan’s condition deteriorated. After enduring severe pain as his organs progressively shut down, he died at the age of 67.

Coogan’s estate and his wife sued NAPA for wrongful death. The lawsuit was based on evidence that NAPA auto parts were the only source of Coogan’s asbestos exposure. After a 12-week trial, the jury found in favor of Coogan’s estate and awarded $81.5 million in damages. The verdict included $20 million for Coogan’s wife to compensate her for loss of consortium. The trial court denied a motion to overturn that verdict. 

The Washington Court of Appeals remanded the case for a new trial on damages. The court ruled that NAPA should have been allowed to introduce expert testimony regarding Coogan’s life expectancy if he had not been exposed to asbestos. It also concluded that the verdict was excessive because it “shocked the conscience.” 

The Washington Supreme Court ruled that the state Constitution places greater weight on the jury’s role in awarding damages than the court of appeals recognized. The supreme court concluded that the verdict was not unjust simply because it was substantial. In the absence of “some malign influence or egregious impropriety” that might have affected the jury’s verdict, the court of appeals had no basis for concluding that the verdict was the product of passion or prejudice. In Washington, the size of the verdict alone is not cause for substituting the court’s view of appropriate damages for the jury’s opinion.

Expert Testimony Regarding Life Expectancy

The court of appeals also concluded that the trial court erred by excluding the testimony proffered by one of NAPA’s expert witnesses. The appellate court’s remand for a new trial was based on the exclusion of that expert testimony.

The damages claim, including the loss of consortium claim, was premised on actuarial tables showing that a 67-year-old man has an average life expectancy of 15 years.  NAPA wanted to introduce the expert testimony of Dr. Gary Schuster that Coogan had a shorter life expectancy. Dr. Schuster is a specialist in internal medicine.

Dr. Schuster would have testified that Coogan had advanced cirrhosis of the liver due to a history of heavy alcohol use. In Dr. Schuster’s opinion, Coogan’s life expectancy was only 5 years.

The trial court excluded Dr. Schuster’s proposed testimony, finding it to be of “minimal probative value.” The court of appeals concluded that even if the probative value of Dr. Schuster’s opinion was minimal, it was admissible because it was probative of a central issue in the case: Coogan’s life expectancy.

Speculative Opinion Testimony

The Washington Supreme Court concluded that the trial court properly exercised its discretion in excluding Dr. Schuster’s testimony as “overly speculative.” Dr. Schuster based his opinion that Coogan suffered from cirrhosis (a stage 3 level of liver disease) on the fact that Coogan had ascites, or fluid buildup, around his liver and spleen. Dr. Schuster believed that ascites is indicative of cirrhosis because, in its absence, a patient is only at stage 2.

Schuster assumed that liver disease caused the fluid buildup. Coogan’s physicians, on the other hand, attributed the ascites to his mesothelioma. Dr. Schuster admitted that Coogan’s cancer was “a significant source” of the fluid buildup. He also admitted that there is no way to separate ascites caused by mesothelioma from ascites caused by liver disease. He acknowledged that whether liver disease caused zero percent or twelve percent or any specific percentage of the ascites was impossible to determine.

While Dr. Schuster opined that if Coogan’s enlarged spleen and large portal veins were indicative of cirrhosis, he admitted that those symptoms alone, in the absence of ascites, would not support a diagnosis of cirrhosis. Since he did not know the cause of the ascites, he could only speculate that the other symptoms supported a diagnosis of cirrhosis.

At Coogan’s age, a diagnosis of stage 2 liver disease would not have shorted his life expectancy. Dr. Schuster’s opinion that Coogan had only a 5-year life expectancy was dependent upon his assumption that Coogan had reached stage 3. While it is true that Coogan might have had cirrhosis, an expert opinion has little probative value when it is based on facts that might be true. It did not become more probative simply because it was rendered by an expert. Experts must base opinions on facts that are true or that the jury could reasonably believe to be true, not on speculation about facts that cannot be established.

The supreme court also concluded that the trial court was entitled to exclude Dr. Schuster’s opinion on the ground that it was more prejudicial than probative. Evidence that Coogan was a hard drinker might affect a jury’s view of Coogan for reasons that relate to his character. The evidence was only relevant to life expectancy.  To the extent that Coogan’s character was an issue in the case, it wasn’t an issue that could be proved by a doctor’s speculative testimony about the condition of his liver.

Expert Testimony Properly Excluded

The supreme court concluded that the court of appeals erred by substituting its judgment for the trial court’s reasoned decision. While the court of appeals decided that prejudice could have been avoided by barring any reference to Coogan’s alcohol consumption, the trial court’s disagreement with that assessment was not unreasonable. It is difficult to believe that some jurors, at least, would not associate cirrhosis with heavy drinking. 

In any event, it does not matter that the court of appeals would have admitted the evidence because admissibility must be decided by the trial court. The only question for the reviewing court is whether the trial court’s decision to bar the evidence was reasonable. The supreme court concluded that the decision was reasonable and that it should therefore have been affirmed.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.