Vocational Rehabilitation Expert Testimony Excluded For Lacking Basis In Industry-Specific Data

ByZach Barreto

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Updated onMay 11, 2022

Vocational Rehabilitation Expert Testimony Excluded For Lacking Basis In Industry-Specific Data

Court: United States District Court for the Eastern District of Virginia, Alexandria Division
Jurisdiction
: Federal
Case Name
: Antekeier v. Lab. Corp. of Am.
Citation
: 2018 U.S. Dist. LEXIS 158130

In this wrongful termination case, the plaintiff retained a vocational rehabilitation expert to opine on how long the plaintiff could expect to be unemployed. The vocational rehabilitation expert calculated an estimated timeframe based on average national employment statistics. However, the expert failed to reference any data particular to the plaintiff’s industry and skill set in his calculations. Thus, the court ruled that the expert’s testimony was inadmissible under Daubert.

Facts

The plaintiff, a former salesperson for the defendant, Laboratory Corporation of America, took two periods of Family and Medical Leave Act (FMLA). The plaintiff took her first period of leave after having sinus surgery, and took a subsequent period after collapsing due to a brain aneurysm. According to the plaintiff, the defendant illegally interfered with her leave by contacting her for work-related requests. The plaintiff also claimed that her employer terminated her in retaliation for taking FMLA leave. The motion before the court was whether or not to exclude the testimony of the plaintiff’s vocational rehabilitation expert.

The Expert

The plaintiff retained a vocational rehabilitation expert with both a Ph.D. and a CRC. The vocational rehabilitation expert opined that it would take the plaintiff approximately 12-18 months to be rehired in a comparable position. This estimate was based on the expert’s calculation that the annual job turnover rate is equal to about 10% and that an additional 5% can be attributed to retirements. Thus, the expert opined, 2-3 job openings would open up per week in the plaintiff’s industry that required her specific qualifications.

The Danger Of Assumption

The defendant argued that the expert’s opinion was nothing more than an assumption and was not based on sufficient facts or data as required by Rule 702 of the Federal Rules of Evidence and Daubert. The defendant pointed out that the vocational rehabilitation expert did not cite any data related to the specific turnover rate for sales management jobs in support of his conclusion. The expert stated that he relied entirely on his professional judgement in order to render his opinion as there was no data on turnover rates in the plaintiff’s specific industry.

Held

The court concluded that an expert’s professional judgment, standing alone and without any supporting facts or data, was insufficient to support opinion testimony. The expert himself admitted reliable data or facts regarding turnover rates in the plaintiff’s industry did not exist. Thus, it was deemed that his conclusions about how long it would take the plaintiff to be rehired were nothing more than unsupported speculation. Accordingly, defendant’s motion in limine to exclude Bussey’s opinions about plaintiff’s vocational rehabilitation and damages was granted.

What We Can Learn From This Case

Even career experts must ensure that their opinions are formed based on reliable data and methodologies. When it comes to expert witness conclusions, an expert’s career-long experience is not enough to justify speculation and professional judgment.

About the author

Zach Barreto

Zach Barreto

Zach Barreto is a distinguished professional in the legal industry, currently serving as the Senior Vice President of Research at the Expert Institute. With a deep understanding of a broad range of legal practice areas, Zach's expertise encompasses personal injury, medical malpractice, mass torts, defective products, and many other sectors. His skills are particularly evident in handling complex litigation matters, including high-profile cases like the Opioids litigation, NFL Concussion Litigation, California Wildfires, 3M earplugs, Elmiron, Transvaginal Mesh, NFL Concussion Litigation, Roundup, Camp Lejeune, Hernia Mesh, IVC filters, Paraquat, Paragard, Talcum Powder, Zantac, and many others.

Under his leadership, the Expert Institute’s research team has expanded impressively from a single member to a robust team of 100 professionals over the last decade. This growth reflects his ability to navigate the intricate and demanding landscape of legal research and expert recruitment effectively. Zach has been instrumental in working on nationally significant litigation matters, including cases involving pharmaceuticals, medical devices, toxic chemical exposure, and wrongful death, among others.

At the Expert Institute, Zach is responsible for managing all aspects of the research department and developing strategic institutional relationships. He plays a key role in equipping attorneys for success through expert consulting, case management, strategic research, and expert due diligence provided by the Institute’s cloud-based legal services platform, Expert iQ.

Educationally, Zach holds a Bachelor's degree in Political Science and European History from Vanderbilt University.

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