Attenuated Expert Testimony Should Be Inadmissible

In the majority of personal injury cases, treating physicians will often testify as experts regarding the current and future costs of treatment for a Plaintiff. While this is not out of the ordinary, the problem with these types of experts can arise when the expert is a treating physician who has not treated the plaintiff in what the court deems as a “long time” prior to trial. This creates a situation where the expert’s testimony could be barred because it is too attenuated to be reliable.

An expert’s opinion is only as valid as the basis and reasons for the opinion.  Soto v. Gaytan, 313 Ill.App.3d 137, 146 (2^nd Dist. 2000).  The Trial court is not required to accept an expert’s assertions that his testimony is an adequate foundation, but, rather, must look behind the expert’s conclusion and analyze the adequacy of the foundation.  Id.  The factors that guide a Trial court’s rulings include the complexity of the subject involved, the purpose for which their opinion is offered, its relation to the ultimate issue to be determined and the danger of undue prejudice.  Id.  The decision to allow an expert to testify in matters of opinions is within the discretion of the trial court. Id. 

The test, when the admissibility of proposed opinion testimony regarding permanency is challenged, is the totality of the circumstances.  Soto, 313 Ill.App.3d at 147.  While not exhaustive, among the factors to be considered are the following: 

                        (1)        The length of time since the last examination;

                        (2)        The length of time the patient was in treatment with the

                                    treator whose proposed testimony is at issue;

(3)               The nature of the patient’s injuries or condition;

(4)               The type of treatment received by the patient;

(5)               Whether a substantial change in the patient’s condition

            has occurred between the time of the last exam and the

            date of trial.  Id.

The Illinois Supreme Court has consistently backed the approach taken by the court in Soto, expressing their approval of Soto‘s gatekeeping approach to the admission of expert testimony. Decker v. Libell, 193 Ill.2d 250, 254, 250 Ill.Dec. 1, 737 N.E.2d 623 (2000). The court noted, “[t]rial courts routinely bar evidence because it is irrelevant or unreliable, and we see no reason to apply a different rule in this context. Under this approach, the trial judge serves in a familiar role as `gatekeeper,’ barring testimony that is not sufficiently relevant or reliable to be admitted into evidence.” Decker v. Libell, 193 Ill.2d at 254, 250 Ill.Dec. 1, 737 N.E.2d 623.

An expert witness’s opinion cannot be based upon mere conjecture and guess. Jawad, 326 Ill.App.3d at 152, 259 Ill.Dec. 941, 759 N.E.2d 1002. An expert’s opinion is only as valid as the reasons for the opinion, and the trial court is not required to blindly accept the expert’s assertion that his testimony has an adequate foundation. Turner v. Williams, 326 Ill.App.3d 541, 552-53, 260 Ill.Dec. 804, 762 N.E.2d 70 (2001). Rather, the trial court must look behind the expert’s conclusion and analyze the adequacy of the foundation. Soto v. Gaytan, 313 Ill.App.3d 137, 146, 245 Ill.Dec. 769, 728 N.E.2d 1126 (2000). 

Remember to check the dates of treatment. If the expert hasn’t examined plaintiff in quite some time, there may be a case to be made for an attenuation exclusion.