This short series examines a few discovery issues that arose in a case I handled in the last few years. As before, I have removed names from the posts because they are irrelevant to the blog’s purpose.
The Background Facts
Mistress meets Husband and they start an affair. Mistress states she did not know Husband was married. Regardless, Wife finds out about the affair and confronts Mistress. Longer story short, Mistress denies the affair. Wife finds out that isn’t true when Mistress decides to come clean and forwards to Wife a sext that Husband sent to Mistress. Wife confronts Husband, Husband goes to Mistress’s to confront her. While there Husband commits suicide. Mistress sues third-party and alleged post traumatic stress disorder.
The Economic Opinion
Mistress disclosed an economic opinion that relied upon a work-life expectancy methodology. The witness testified this methodology assumed Mistress’ post-traumatic stress was permanent. He testified this is a fundamental assumption that must be true for his analysis because if, “at some point, she, for example, was released with no symptomatology, no problems, then, at that point, there would be no loss.”
An economics expert is unqualified to offer a medical opinion about permanency. However, the expert was specifically, repeatedly asked at his deposition what medical evidence he reviewed that indicated permanency, but he could not cite any.
Mistress’ treating psychologist was later specifically testified her post-traumatic stress is not permanent.
Q. And is this the type of condition that would be permanent?
A. No. I mean, it’s – the myth is that PTSD is permanent. You know, you talk about Vietnam vets that 40 years later still have PTSD. It’s permanent if you don’t address it, but it’s not permanent if you get proper treatment and you age with it. It’s like severe grief, you know. God forbid your parents pass away or your child even passes away, the grief is not permanent if you address it. If you try to pretend it’s not there, the grief will follow you. Same thing with PTSD.
That testimony deprived the economic expert of the very foundational evidence he stated was necessary. The district court then excluded the sizable economic opinion from trial.