Nolan Clayton and Gregory Smith became friends while working together at a Stacked Pickle bar. Smith volunteered to work during a special event at a Stacked Pickle in Indianapolis. He invited Clayton to attend the event as a guest.
Smith drove Clayton to the bar. Clayton began to drink. After about an hour, Smith decided there were enough employees to cover the event so he stopped working and joined Clayton. They both became intoxicated.
After the event ended, Smith was asked to leave. Clayton left with him. A Stacked Pickle employee locked the door and called a taxi to pick up the two men outside the bar.
For reasons that neither man recalls, Clayton drove Smith’s truck with Smith as a passenger. They were driving away from the bar as the taxi arrived. Clayton crashed the truck into a tree. Clayton had minor injuries but Smith’s neck was broken. He is now a quadriplegic.
A series of claims followed against various insurance companies. The insurer of Smith’s truck (Progressive) would not pay Smith, alleging that Smith’s policy did not cover injuries to Smith caused by another driver. Other insurers settled and Smith assigned his claims against Progressive to Allstate, a settling insurer that provided coverage through a policy issued to Clayton’s parents.
Smith eventually sued Clayton. Liability was largely conceded; the trial focused on comparative negligence and damages. The jury awarded Smith $35 million and found Clayton to be 60% responsible for Smith’s injuries. The trial court therefore awarded judgment for Smith in the amount of 60% of the verdict, or $21 million.
Clayton appealed, alleging that the trial court erred when ruling on the admissibility of expert testimony. In each case, the trial court allowed experts to testify over Clayton’s objections. Clayton appealed, and the Indiana Court of Appeals affirmed the trial court’s decision to admit the testimony of each expert.
Admissibility of Expert Testimony in Indiana
Indiana is not a strict Daubert state, although the state supreme court has concluded that Daubert provides “useful” guidance when courts apply Indiana’s rules of evidence. The state’s evidence code provides that expert scientific evidence “is admissible only if the court is satisfied that the expert testimony rests upon reliable scientific principles.”
Once the court determines that the expert has based testimony on sound principles, it is up to the jury to decide how much weight the testimony deserves. Unlike some federal and state judges who follow the Daubert rule, Indiana judges do not substitute their own assessment of the facts upon which the expert relies for the jury’s view of those facts.
Indiana courts wisely follow the traditional rule that vigorous cross-examination and competing evidence will expose flaws in an expert’s opinion, and that questions about the reliability of facts upon which an expert relied are best resolved by juries. If an expert has based testimony on sound principles, the accuracy of the expert’s opinion is typically a question that an Indiana jury should determine.
Smith’s Vocational Expert
Smith moved to exclude the expert testimony of Sara Ford, a vocational economist. Ford testified that Smith’s lifetime income loss would exceed $2.1 million. She based that calculation on the understanding that Smith is totally disabled for occupational purposes.
Clayton complained that Ford did not have an adequate foundation for her belief that Smith was 100% occupationally disabled because she relied on “outdated” medical records and ignored the fact that Smith wanted to work. Clayton also argued that Ford did not consider the local job market and that she used “boilerplate” language in her expert report.
The court noted that Ford assigned a 100% disability rating to Smith because he was unable to perform manual tasks with his hands. Her disability rating was supported by medical testimony that Smith is a quadriplegic, that he only retained some function in his biceps, and that his prognosis for improvement was poor. The foundation for her opinions was subject to vigorous cross-examination and the jury was entitled to determine how much weight the opinions deserved.
The appellate court concluded that “the breadth of Ford’s research, the methodology used to forecast lost wages, and the purported lack of corroboration of her definitive conclusion” regarding Ford’s disability were matters for the jury to determine. The appellate court did not explicitly address the “boilerplate” argument, presumably because professionals, including lawyers and judges, typically rely on boilerplate language when it is suitable for a particular document.
Smith’s Medical Expert
Dr. Ralph Buschbalter testified about Smith’s current medical condition and poor prognosis, including a probable 20-year reduction in his life span. He also testified about nine future health conditions for which Smith was “at risk,” including renal failure, heart disease, and deep vein thrombosis.
Clayton asked to exclude Dr. Buschbalter’s testimony about future health risks on the ground that the testimony was speculative. However, Dr. Buschbalter candidly testified that the risk of each condition developing was either low or impossible to predict.
The fact that a future complication is unlikely to be relevant does not mean that the risk is speculative and does not make testimony about the risk irrelevant to an assessment of damages. The appellate court found that the trial court appropriately exercised its gatekeeper function by allowing Dr. Buschbalter’s testimony. How much weight to give the risks he described when awarding damages was for the jury to decide.
Smith’s Life Care Planner
Finally, Clayton asked the trial court to exclude the expert testimony of Debra Berens, a life care planner. Clayton complained that Berens had no foundation for opinions that rested on economic projections, given that she was not an economist.
Berens reviewed Smith’s medical records to determine his limitations, then researched the cost of meeting his future needs and coping with his disability. She noted modifications of his home that were needed to make it wheelchair-accessible, considered the future cost of wheelchair replacements, and estimated the expense of future medical care, massage therapy, medications, psychological services, and transportation.
As life care planners commonly do, Berens relied on national databases to determine some of those costs. She examined data compiled by the Veterans Administration to estimate the cost of wheelchair replacement. Since experts in life care planning routinely rely on those sources, Berens was entitled to consider them in forming an expert opinion.
Some of the future expenses were not reduced to present value. In other cases, she relied on an economist to perform a present value calculation. Clayton complained that her testimony lacked foundation because no economist testified in support of her calculations and because not all of her calculations were reduced to present value.
Estimates of future costs are necessarily uncertain because interest and inflation rates change as economic conditions change. A thousand dollars invested today might be worth more than a thousand dollars a year from now if the investments are prudent. On the other hand, a wheelchair that costs a thousand dollars today might cost more than a thousand dollars in the future because of inflation. Present value (the amount of money that should be invested today to create a targeted amount of money on a future date) is a problematic concept because interest and inflation rates are offsetting, at least to some degree.
The appellate court held that juries generally understand the concepts of interest and inflation. The court held that expert testimony is not necessarily required for a jury to decide whether to accept cost estimates that are not reduced to present value, since juries are entitled to give such weight to those estimates as the jury thinks they deserve.
Although the court did not say so, the general rule is that the defendant has the burden of introducing evidence to reduce a future loss to its present value. If Clayton wanted to argue that the jury should award a present value rather than the full future cost of Smith’s life care requirements, Clayton should have called his own expert to present that calculation to the jury.