Is the Evidence that the Medical Damages were Reasonable Admissible?

A prior post discussed the importance of having evidence as to whether medical damages are reasonable.  This post discusses whether that evidence is admissible when using a retained expert. It might be, but with caveats.

For instance, assume if the plaintiff is somehow injured in Las Vegas but then returns home to the east coast where she lives.  All of the treatment occurs there.  Presumably as a cost saving measure, the plaintiff hires a local physician in Las Vegas as a retained medical expert.  In the report the physician declares, for each set of medical records reviewed, “[m]edical bills were reviewed and [dollar amount] was found to be reasonably, customary, and directly related to the injury.”  Is that enough for plaintiff to meet her burden of proof?

I can think of two arguments why this would not be sufficient.  First, if the retained expert practices only in Nevada and all treatment was on the east coast, then what basis does the expert have to determine whether a charge was reasonable?  There needs to be a factual basis upon which the expert can be qualified to offer the opinion?

Second, if the sentence above is all the expert wrote on the topic, then that may not be enough to pass the retained expert report threshold because the expert offers no scientific theory, technique, or methodology to explain how he reached those opinions.  “The expert’s report is required to state ‘how and why’ the expert reached the particular conclusion(s).”[1]  “Bald conclusions or brief statements of ultimate conclusions with no explanation of the basis and reasons therefor, or the absence of a statement of how the facts support the conclusions, do not satisfy Rule 26(a)(2)(B) requirements.”[2]

Locally Pham v. Wal-Mart previously considered this in the context of medical bills where a party moved to exclude a medical pricing expert.[3]  In that case the expert used a “Bill Audit Methodology” that the court concluded this reference was insufficient.  In response to the motion to exclude, the expert submitted an affidavit indicating she used “the National Fee Schedule.”  This too was insufficient. 

There is no explanation as to what this National Fee Schedule is, who authored it, or on what basis it constitutes an authoritative source of reasonable fees. Nor does Ms. Fraser provide any explanation regarding the basis for using a geographic modifier to arrive at a reasonable and reliable medical fee schedule for a particular region, state or city.

The expert was not excluded only because discovery had been extended for other purposes.  The lesson was to show your work to support the analysis.

What is sufficient to meet a plaintiff’s burden of proof on reasonableness?  I suspect more than was discussed in this post.


[1] Pham v. Wal-Mart Stores, Inc., No. 2:11-cv-1148, 2012 U.S. Dist. LEXIS 88062, 2012 WL 2417605 (D. Nev. June 26, 2012).

[2] Oliner v. Kontrabecki (In re Cent. European Indus. Dev. Co., LLC), 427 B.R. 149, 156 (Bankr. N.D. Cal. 2009).

[3] Supra, note 1.