Expert Witness Profiler

Category: Vocational Rehabilitation Expert Witness

  • Lost Earning Capacity Opinions of Vocational Rehabilitation Expert Witness Fails to Satisfy Rule 702

    Lost Earning Capacity Opinions of Vocational Rehabilitation Expert Witness Fails to Satisfy Rule 702

    A district judge in Colorado limited the opinion of a vocational expert  because the injuries were obscure and a loss of future earnings capacity could not be deduced from the same.

    This case arises from a car accident that occurred on July 7, 2020, between Plaintiff and a person who was operating a commercial semi-truck while in the course and scope of his employment with Defendant. The semi-truck collided with Plaintiff’s vehicle causing Plaintiff to suffer various claimed physical and cognitive injuries. Plaintiff has sued Defendant under theories of respondeat superior and agency liability. Defendant admitted the semi-truck driver was operating the vehicle within the course and scope of his employment at the time of the accident and has admitted liability. The parties, however, disputed the nature and extent of Plaintiff’s alleged injuries, damages, and losses.

    In his Rule 26(a)(2)(B) disclosures, Plaintiff Timothy Korbe disclosed Daniel B. Best, a certified vocational rehabilitation counselor, to offer opinions regarding his calculations of Plaintiff’s past and future wage losses. Defendant Doug Andrus Distributing LLC filed a motion to preclude these opinions under Federal Rule of Evidence 702.

    Vocational Rehabilitation Expert Witness

    Daniel B. Best is a Certified Rehabilitation Counselor (CRC) with a Master of Arts in vocational rehabilitation counseling and vocational evaluation that he obtained in 1989. For numerous years of his career he has engaged in providing services which include labor market analysis, job analysis, counseling, earning capacity, vocational exploration, and job development and placement. These services sometimes require Best to analyze a worker’s earnings at different points in time.

    Throughout his career, since 1989, Best has testified as an independent vocational expert in over 10,000 Social Security disability hearings and has been qualified as an expert in vocational rehabilitation counseling and vocational evaluation in over 250 workers compensation cases, approximately 20 to 25 divorce proceedings, and over 50 personal injury and other cases throughout the state courts of Colorado, administrative courts, and this United States District Court.

    Get the full story on challenges to Daniel Best’s expert opinions and testimony with an in-depth Challenge Study. 

    Discussion by the Court

    The Defendant argued that Best was not qualified to opine on Plaintiff’s past wage loss, his methodology was unreliable, and his opinions would not assist the fact finder. 

    Best’s Past Wage Loss Opinion

    Considering his education, training, and experience, the Court found Best qualified to opine on Plaintiff’s past wage loss. But the Court noted the Defendant’s concern over his methodology for calculating that loss.

    Best calculated Plaintiff’s past wage loss using simple math, considering a one year period when Plaintiff was placed on medical leave from work purportedly due to his accident-related injuries. He took the amount Plaintiff made the prior year—$85,463—and opined that “during the year off work . . . I believe [Plaintiff] lost $85,463 minus any wage replacement provided to him.”

    The Court held that grounding in reliable facts and tie to Best’s expertise is what saved the opinion.

    Plaintiff’s social security statement showed he made $85,463 in 2019. The accident in this case occurred on July 6, 2020. Plaintiff’s employer placed him on medical leave in August 2020 due to the severe headaches and “sensory overload” he experienced when he tried to return to work. Plaintiff eventually returned from leave and worked 40 hours a week beginning July 6, 2021.  These are reliable and verifiable facts upon which Best based his past wage loss opinion. And while his methodology for calculating those damages is uncomplicated, Rule 702 neither expressly nor impliedly requires an expert’s mathematical calculations to be complex. To sum it up, the Court refused to strike Best’s opinions regarding Plaintiff’s past wage loss.

    Best’s Lost Earning Capacity Opinion

    Best Lacked Qualifications to Testify about Plaintiff’s Lost Earning Capacity

    The Court held that Best’s qualifications to render an opinion on Plaintiff’s lost earning capacity were suspect. Black’s Law Dictionary defines “lost earning capacity” as “a person’s diminished earning power resulting from an injury.” While Best has experience calculating wage losses, there is little in his background to suggest his experience determining a person’s earning capacity, determining the extent of a reduction in that capacity, and then placing a monetary value on that diminution. 

    Best testified that calculating economic losses falls within his expertise from only “a basic standpoint.” 

    Best’s calculation of these damages is not based on sufficient facts or reliable principles or methods

    Best’s opinion here is not based on any medical professional opining that it is probable Plaintiff will be unable to work in the future due to his accident-related injuries. It is instead based on the Plaintiff’s view that he “likely” will have to stop working before retirement age. 

    The Court, citing Parra v. Atchison, Topeka & Santa Fe Ry. Co., 787 F.2d 507, 509 (10th Cir. 1986), held that where the injury is obscure, a loss of future earnings capacity must be established by expert medical testimony in order to avoid pure speculation on the part of the jury.

    Plaintiff’s injuries are of the obscure variety. His injuries involve diagnoses of traumatic brain injury, sequelae, mild neurocognitive disorder, post-concussion syndrome, and he suffers from cervicogenic headache, posttraumatic headache of an unspecified chronicity pattern, visual disturbance, and other issues. 

    Because Best’s lost earning capacity calculation was not based on any factual predicates from a medical expert regarding the extent of his injuries and their probable effect on his ability to work at all in the future, the Court held that Best’s opinion in this regard failed to satisfy Rule 702.

    Held

    The Court granted in part and denied in part the motion to strike Daniel Best’s opinions. Plaintiff met his burden to show that Best’s past wage loss opinions satisfied the requirements of Fed. R. Evid. 702, but he did not meet his burden to show that Best’s lost earning capacity opinions did the same.

    Key Takeaways:

    • There is no implicit requirement in Fed. R. Evid. 702 for the proffered expert to make complicated mathematical calculations.
    • Where injuries complained of are of such character as to require skilled and professional persons to determine the cause and extent thereof, they must be proved by the testimony of medical experts.

    Case Details:

    Case Caption: Korbe V. Manchester Et Al
    Docket Number: 1:23cv1145
    Court: United States District Court, Colorado
    Order Date: May 23, 2024

  • Testimony of Vocational Rehabilitation Expert Witness Held to Emphasize on Relevant Factors

    Testimony of Vocational Rehabilitation Expert Witness Held to Emphasize on Relevant Factors

    Defendant Amazon.com Services, Inc. (“Amazon.com”) initially hired Marcellus McMillian as a seasonal fulfillment associate and then promoted him to fulfillment associate in the make on demand department. Defendants employed him for more than a year, starting on January 11, 2017. McMillian’s back was injured in an unrelated car accident on or around August 3, 2017, and he went on medical leave. McMillian accused the Defendants of discriminating against him because of his disability and requests for accommodation.

    Defendants’ vocational rehabilitation expert, William B. Skilling, testified that he formed an opinion that McMillian was “highly employable” because McMillian’s skills were allegedly “transferable to many different occupations.” Skilling testified that he created a chart in his report where he identified “appropriate” positions for McMillian as a part of his transferable skills analysis. He then went on to testify that he formed an opinion that the occupations listed on the chart in his report are “substantially similar” to McMillian’s position with the Defendants. He testified that he made assumptions about McMillian’s rate of pay based on his job description, and was unable to testify as to how many hours McMillian worked, or what, if any benefits McMillian received. Skilling’s report also makes a reference to other positions being “substantially similar” to McMillian’s position with the Defendants.

    Plaintiff requested the Court to preclude reference to and testimony of any legal conclusions from Skilling, including references in his report, and his testimony that other positions were “substantially similar” to McMillian’s position during his employment with the Defendants.

    Vocational Rehabilitation Expert Witness

    William B. Skilling has worked in the field of rehabilitation for more than 45 years. Since 1973, he has completed more than 5,000 assessments and has testified as an expert in his field on nearly 500 occasions in state and federal courts.

    Between 1982 and 1992, Skilling was under contract as a Vocational Expert by the Social Security Administration Office of Disability Adjudication and Review, while at the same time providing vocational rehabilitation services to injured workers through private contracts in Washington, Oregon, California, and Alaska.

    Discussion by the Court

    Plaintiff argued that Skilling was not qualified to opine on other employment opportunities because he made assumptions about McMillian’s rate of pay based on his job description. He was, hence, unable to testify as to how many hours McMillian worked, or what, if any benefits McMillian received. He also did not know how long McMillian’s commute was and did not interview McMillian.

    Plaintiff also argued that pursuant to FRE 702(1) Skilling’s testimony, and conclusory, unfounded opinion that other positions identified in his report were substantially similar to McMillian’s position, would not help the trier of fact understand the evidence or decide an issue of fact.

    There are certain factors that a jury can consider when determining whether other positions were “substantially similar”, including salary, benefits, hours of work per day, hours of work per year, locality, and availability of a merit-based system. One of the agreed upon jury instruction regarding Defendants’ affirmative defenses pertaining to migration, identified that the jury must determine whether “employment substantially similar to Marcellus McMillian’s former job was available to him.” While evidence of other jobs can reasonably be admitted as evidence, the question of whether the jobs are substantially similar is one for a jury to decide.

    Defendants argued that Skilling’s analysis focused more heavily on some of the other relevant factors, such as locality and the required skill, background, or experience. The Court found that the Plaintiff’s counsel forced the “substantially similar” usage on the expert witness in order to bring this Motion. To the extent Plaintiff objected to Skilling’s conclusion or believed his conclusion were unsupported, Plaintiff was free to elicit such weaknesses during cross-examination. 

    Held

    The Court denied Plaintiff’s motion to exclude reference to and testimony of any legal conclusions from Defendant’s expert William Skilling.

    Key Takeaway:

    The test under Daubert  is not the correctness of the vocational rehabilitation expert witness’s conclusions but the soundness of his methodology. Attacks to the factual underpinnings of an expert’s opinions bear on the weight of the opinion, not its admissibility.

    Case Details:

    Case Caption: McMillian v. Golden State FC LLC
    Docket Number: 2:19cv2121
    Court: United States District Court, California Central
    Order Date: February 6, 2024