Life time: to minimize damages, defendants often use numbers, not medical evidence, to forecast a short life expectancy for a catastrophically injured plaintiff. Combat this defense by showing that your client is more than a statistic.
Since the late 1980s, defendants have increasingly relied on a growing cadre of experts who base their forecasts on the so-called statistical approach. Experts employing this approach tend to rely for support on a few published sources, all by Richard Eyman, a biostatistician. (1) Other experts are publishing articles with increasing fervor in an attempt to gain legitimacy. (2)
At first blush, the statistical approach appears to represent a formidable blend of statistics and the medical sciences. In fact, many defense experts in this area are becoming so bold as to suggest that doctors are unqualified to testify on the issue of life expectancy, and that only insurance company actuaries and statisticians are properly qualified to do so.
For example, the following quote comes directly from an article by two purported life-expectancy experts, David Strauss and Robert Shavelle, and is posted on their Web site.
At least privately ... most physicians will admit--or even emphasize--that predicting longevity is not their expertise. The situation is much like that of setting a life insurance premium: you go to a physician for a physical examination, and the results are transferred to the insurance company's actuaries. Actuaries are the people with the expertise to turn the medical report into an estimate of mortality risk, and hence to determine the cost of the insurance policy. (3)
Plaintiffs as numbers
In general, the authors of the studies using the statistical approach base their forecasts on a control group of subjects. Often, people served by the California Department of Developmental Services have been used for this purpose. The subjects selected have varying levels of physical and mental disabilities.
The authors categorize the subjects based on certain characteristics (depending on the study), including mobility, hand use, arm use, toileting skills, eating skills, tube feeding, and ambulation. By determining the number of people living to a particular age with given characteristics and disabilities, the authors use statistics to estimate how many such people will probably survive beyond that particular age.
Proper cross-examination of adverse expert witnesses who use this approach requires a thorough understanding of the methodology and classifications that lead to the probability of remaining life. Counsel must review, early in a case, each relevant study involving a catastrophically injured individual.
The statistical approach can be persuasive to a jury:
* It dehumanizes the injured plaintiff, who ceases to exist as a living, breathing, human being with needs. Instead, he or she becomes a statistic to be compared with other statistics purportedly representing other people in similar circumstances.
* The defense expert may garner credibility with the jury by "humbly" conceding that while he or she cannot predict the exact life expectancy of the plaintiff, the probabilities derived from the statistical approach reflect a greater population and are, therefore, more accurate and trustworthy than other, more individualized approaches.
* The plaintiff attorney who rushes to emphasize the client's tragic injuries may unwittingly lend credibility to the defense expert's forecast of shortened life expectancy.
Attacking the statistical approach
First, counsel must carefully scrutinize the data relied upon. Since most of the experts using them are statisticians and not medical doctors, the subjects' characteristics are often obtained from reports that have little or no medical utility.
For example, in the Eyman studies, subjects were obtained from "client development evaluation reports" compiled by the California Department of Developmental Services. These reports were used for placement purposes, among other things, not for medical treatment or even biostatistics.
From these reports, the experts derive virtually all the information they use--such as age, sex, race, toileting skills, eating skills, mobility, and degree of brain damage--to categorize a particular person in a table of projected life expectancy.
Since an agency of the state of California compiled the information for internal placement purposes, no experts testifying at trial had any role in gathering or reviewing the raw data, or comparing the data with the reports and patients themselves. Indeed, it is doubtful that any expert using those studies will ever have talked with or examined the patients, or even reviewed their medical records.
Indeed, one 1998 study found considerably higher life expectancies--in many instances in excess of 60 percent--for individuals placed in categories identical to those Eyman used. (4) Improved medical management of the individuals in residential care settings was part of the cause for the improved rates, but the study clearly displayed a much more comprehensive and detailed analysis of the medical history of the subjects. This study emphasizes and validates the importance of personal patient and medical record review in estimating expected remaining life.
Counsel should also examine the expert regarding the total number of subjects actually used to compile the life expectancy table. In many cases, the numbers sound impressive but in fact may be much lower, rendering the expert's life expectancy forecast unreliable.
For example, about 100,000 subjects were reviewed in two of the Eyman studies, but the authors excluded all those who could walk, reducing the study population to about 7,000. The 7,000 were divided into various categories, according to characteristics, and some subjects did not fit in any category. They were simply excluded.
Counsel must carefully read the articles that support the statistical approach to determine whether the causes of catastrophic injury--whether trauma or progressive metabolic disease--have been identified. Most articles fail to identify the causes of an injury itself. Obviously, if the injury was caused by progressive, untreatable metabolic disease, shortened life could be expected.
It is also important to closely scrutinize whether the studies address any cause-and-effect relationship between the disabilities and death. Often the authors fail to determine the ultimate causes of death for the subjects involved. Clearly, if a subject's death was in no way related to his or her disability, that person is not useful in predicting a plaintiff's life expectancy.
Plaintiffs as people
Humanizing the plaintiff is an essential aspect of any case. Defendants hate it. They would much rather the jury forget the needs of the individual plaintiff and, in fact, forget that the plaintiff is human at all.
Defense experts are usually not doctors and will probably not examine the plaintiff. Instead, they grab characteristics from reports, not medical records, and neatly categorize the plaintiff into one of the life expectancy tables contained in articles written by their colleagues.
The plaintiff's expert should be a physician. He or she must review all medical records and physically examine the client. The expert must discuss the plaintiff's individual attributes, including respiratory problems, feeding issues, mobility, and so forth.
By thoroughly understanding all the medical nuances and ramifications of the client's case, counsel will have an upper hand in forcing the defendant's statistician to concede that the plaintiff lies outside the characteristics defined in the tables.
This concession should be gained during pretrial deposition, and in many instances it is not difficult to obtain. By gaining this concession during deposition, counsel will make significant progress in neutralizing the statistician at trial. Because of the limited number of subjects actually used to compile the tables, the authors of the studies concede that certain subjects don't fit.
Attacking the expert's credibility
At the outset, it is important that plaintiff counsel recognize the bias of any expert who uses the statistical approach. For example, during a 1991 jury trial in Illinois, Eyman, testifying for the defense, admitted that the first draft of his article The Life Expectancy of Profoundly Handicapped People with Retardation listed use in medical negligence lawsuits as one of its purposes. (5) Eyman went on to testify that this purpose was dropped from the final version of the published article. (6)
And the Web site featuring Strauss and Shavelle provides more evidence that such experts lack objectivity: It includes a step-by-step outline for defense lawyers to use when cross-examining the plaintiffs life-expectancy expert during deposition or trial. (7)
Since the expert pool adopting the statistical approach is still relatively small, counsel should fully explore the amount of medical-legal work the expert performs and how often the expert is retained by defendants. Perhaps more so than in any other area, experts adopting the statistical approach appear tied to the defense.
As with all experts, counsel must investigate the witness's qualifications. Is he or she a biostatistician? An internist? A computer programmer? A pediatric neurologist? The expert's qualifications alone may determine the admissibility of the statistical approach.
The use of this approach to determine life expectancy of catastrophically injured plaintiffs has been misplaced. Biostatisticians and defense experts who use it draw statistical significance from a pool of specially selected subjects--without providing acceptable reasons for the exclusion of others. They also draw conclusions that are suspect because qualified medical personnel did not review the underlying data.
A jury's adoption of the wrong forecast of remaining life will deprive the plaintiff of the funds he or she may need the most. Tragically, this may cause a true reduction in the client's life. Without the funds available for medical care, the plaintiff will almost certainly be institutionalized--and the public, not the errant party, will pay the bill.
With good medical care, many catastrophically injured people stand a strong chance of a reasonably long life. By discrediting the statistical approach, counsel can ensure that their clients' needs will be met for a lifetime.
(1.) See, e.g., RICHARD K. EYMAN ET AL., LIFE EXPECTANCY AND MENTAL RETARDATION: A LONGITUDINAL STUDY IN A STATE RESIDENTIAL FACILITY (Am. Ass'n on Mental Deficiency, Monograph No. 7, 1987); Richard K. Eyman et al., The Life Expectancy of Profoundly Handicapped People with Mental Retardation, 323 NEW ENG. J. MED. 584-89 (1990); Richard K. Eyman et al., Survival of Profoundly Disabled People with Severe Mental Retardation, 147 AM. J. DISEASES CHILD. 329 (1993).
(2.) David J. Strauss et al., Long-Term Survival of Children and Adolescents After Traumatic Brain Injury, 79 ARCHIVES PHYSICAL MED. & REHABILITATION 1095 (1988); Robert Shavelle & David Strauss, Comparative Mortality of Adults with Traumatic Brain Injury in California, 1988-97, 32 J. INS. MED. 163 (2000).
(3.) David Strauss & Robert Shavelle, Everything You Always Wanted to Know About Life Expectancy (But There Was No One to Ask), ABA TIPS (Tort & Insurance Practice Section) MED. & L. COMMITTEE NEWS, Spring 1998, at 1, available at www.lifeexpectancy.com/articles/le2.pdf (last visited Dec. 23, 2002).
(4.) Audrius V. Plioplys et al., Survival Rates Among Children With Severe Neurologic Disabilities, 91 S. MED. J. 161 (1998).
(5.) Eyman et al., supra note 1.
(6.) Woodward v. Trupin, No. 88-L-251 (Ill., Champaign County Cir. Ct. Sept. 19, 1991).
(7.) David Strauss & Robert Shavelle, Doctors Are Not Experts on Life Expectancy, EXPERT WITNESS, Summer 1998, at 11, available at www.lifeexpectancy.com/articles/lel.pdf (last visited Dec. 23, 2002).
Randall H. Scarlett practices with the Scarlett Law Group in San Francisco.