State legal reform efforts are a critical part of efforts to control the current litigation climate. Future medical expenses comprise a key component of nuclear verdicts, and they are an appropriate target for reform efforts. Future medical expense damages get inflated by the use of life care planning experts that price projected treatment needs using an undiscounted chargemaster rate. Existing legal concepts, however, lay the foundation for bringing future medical expense damages awards back down to earth. These include drawing on the requirement that a plaintiff's medical expenses be reasonable, addressing the plaintiff's duty to mitigate their damages, and the availability of healthcare insurance under the ACA despite the existence of pre-existing conditions. 

Using these components, certain states including Montana, Florida and New York have recently adopted new statutes that limit future medical expense recoveries or at least provide avenues toward additional jury-friendly arguments supporting more modest awards. Additionally, the 2023 amendment to Federal Rule of Evidence 702 has re-invigorated court gatekeeping of expert testimony and signals that courts should apply a more rigorous analysis before allowing opinion testimony. A majority of state follow an approach to expert testimony that closely tracks Federal Rule 702, but only a handful of states have thus far adopted the version reflected in the 2023 amendments. Expanding the range of states that follow FRE 702 would open the door to more pointed challenges to the admissibility of plaintiffs' life care planning experts who rely on inflated chargemaster valuations in developing their future medical expense damages opinions.

Speaker