Plaintiff Azzine Kali alleged that while driving for Lyft on February 17, 2023, he was seriously injured in an automobile accident caused by the negligence of Defendant Erasmo Lopez, who at the time was operating his vehicle on behalf of Defendant J Bermudez Trucking, Inc.
Plaintiff produced the report of vocational rehabilitation expert John Dieckman, an assistant vocational services director at Proto-Worx, Inc. Defendants filed a motion to exclude Dieckman’s testimony.
Vocational Rehabilitation Expert Witness
John W. Dieckman, MS, CRC, CDMC has been a licensed vocationalist since 1983. He has been qualified as an expert vocationalist numerous times in both state and federal courts.
Discussion by the Court
A. Reliability
Defendants asserted that Dieckman’s opinion on Plaintiff’s future lost earnings should be excluded because it is speculative, subjective and unsupported by any published or unpublished sources.
Highlighting that Plaintiff cited no authority for his contention that vocational experts “routinely” employ BLS data, Defendants specify that in any event the issue here is that Dieckman did not apply a reliable methodology when he replaced Plaintiff’s actual job earnings as a rideshare driver with the government figure even though at his deposition he was unable to identify any literature or studies supporting this decision and admitted that “[t]here’s no particular way to confirm” that the selected Bureau of Labor Statistics (BLS) classification applies to Plaintiff.
The Court agreed with Defendants that Dieckman’s methodology in reaching his opinion regarding Plaintiff’s future lost wages was unreliable. Although Plaintiff’s earnings for his years as a rideshare driver for which Dieckman had complete information at the time of his report (2020 to 2023) ranged within a reasonably narrow band of a few thousand dollars each year, Dieckman jettisoned this data based on actual income in favor of the much higher (approximately 73 percent more than Plaintiff’s best year) BLS figure, despite the fact that he admittedly lacked key information regarding the applicability of the relevant BLS occupational classification, including what constituted “full-time” under it, the average number of days and hours worked, and whether the classification even covered rideshare drivers like Plaintiff.
B. “Fit”
Defendants asserted that Dieckman’s opinion that Plaintiff is limited to 50 percent of a normal workload (and thus 50 percent of his earning capacity) did not fit the facts of this case because his post-injury 2023 and 2024 tax records showed no diminution in his income.
The Court again agreed with Defendants. Dieckman’s findings are predicated upon the notion that Plaintiff will permanently remain able to work only half of a full workload, with an attendant 50 percent cut in earnings. However, after being injured in February 2023, Plaintiff went on to earn more as a rideshare driver that year than he did the year before and only $1,284 less than his all-time high from the year before that. Indeed, in 2024 (the most recent year for which there appears to be earning information), Plaintiff earned approximately 69 percent more than in 2022, the last full year before his injury. Yet Plaintiff asked the Court to permit Dieckman to testify that Plaintiff will never again reach more than 50 percent of his former earning capacity.
Held
The Court granted Defendants’ motion to exclude the testimony of Plaintiff’s expert, John Dieckman.
Key Takeaway
It is doubtful that Dieckman’s hypothesized final calculation is “testable” as to accuracy given that his choice of the BLS figure reflects a lack of “the existence and maintenance of standards controlling the technique’s operation.”
Case Details:
| Case Caption: | Kali V. Lopez Et Al |
| Docket Number: | 2:24cv4197 |
| Court Name: | United States District Court, Pennsylvania Eastern |
| Order Date: | March 05, 2026 |
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