Thursday, March 9, 2017

Expert dies, now what?

McDowell v Mo Dept of Transportation
2017 MOWCLR Lexis 24
March 3, 2017

The Commission addressed an interesting problem:  what happens when someone submits an expert opinion by 287.210.7 motion and the expert dies before a party performs a cross exam?

In August 2014 claimant submitted a motion to submit a report of Dr. Stillings, his expert, into evidence. Dr. Stillings had assessed disability for a mood and pain disorder following an ankle injury. Dr. Stillings died in March 2015.   Employer concedes it had 7 months to schedule the cross-examination but postponed the deposition until the employer obtained its own expert opinion.  The employer concurred claimant's accident caused a psychiatric condition but stated that it resolved without causing a permanent condition.

The commission affirmed the decision to over-rule to objection and allow the report into evidence.

The commission declined to consider the constitutional challenge that allowing the report without cross examination   denied a right to cross exam under 491.070.  The commission found 287.210.7 required only a reasonable opportunity after motion to depose the expert, and 7 months was reasonable. On appeal, the commission enhanced the psychiatric award from 2% to 10%. 

In a prior case, the ALJ had allowed admission of a report by a deceased expert. 

Claimant's expert died 6 years after an IME depriving the employer of an opportunity for cross exam.  The ALJ admitted  the report  and relied upon it as a basis to award permanent and total disability benefits.   Graham v LATCO Contractors Inc., 2014 MO WCLR Lexis 52.