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The Impact of the Daubert Decision and its Effect on Expert Testimony Robert H. Taylor, M.A.,C.R.C.,C.D.M.S.,C.P.C.,C.L.C.P. Vocational Diagnostics, Inc. Phoenix, AZ The Daubert decision has had a profound influence on the role of a vocational rehabilitation, life care planning and economic experts in cases involving civil litigation. Daubert has mandated professional accountability by damages experts, specifically, vocational rehabilitation, life care planning and economic experts. Daubert has drawn the distinction requiring "scientific, technical, and other specialized knowledge" in the development and offering of expert witness opinions in civil litigation. In this paper we will discuss not only the impact of Daubert and the subsequent case, Kumho, but preferred methodologies and strategies to be employed in the evaluation of cases where claims for diminished earning capacity and future care needs (development of Life Care Plans) is necessary. The Basic Daubert Standard: Under Daubert vs. Merrill Dow Pharmaceuticals (1993), federal judges have been designated more of a "gatekeeper" role in determining the admissibility of scientific expert testimony. More and more state courts have also adopted the Daubert standards. Daubert mandates that a trial judge make an independent assessment of an expert's qualifications and methodology utilized in the development of their opinion(s). Rule 702 of the Federal Rules of Evidence is the threshold standard for defining the role and obligations of such an expert witness. Under Daubert, the trial judge is asked to perform more rigorous scrutiny of the expert's testimony and foundation for testimony including the following:
Frye vs. United States (1923) established the standard for admissibility of an expert's scientific testimony which lasted for more than 70 years before Daubert. The Frye test of admissibility was based on a logical conclusion that scientific evidence should be generally accepted in the specific field of knowledge involved. Although effective, though, Frye tended to preclude the admissibility of uncommon or unusual scientific evidence in all Federal and many state courts. Under Frye, it was noted that expert testimony must be based upon a "scientific principle or discovery.... initially established to have gained acceptance in the particular field in which it belongs." One of the more interesting dilemmas when considering expert witness testimony by forensic vocational rehabilitation, life care planning and economic experts, though, is the fact that the Daubert court was silent on the matter of the social sciences in which vocational rehabilitation, life care planning and economic experts would be placed. Psychological research, for instance, can range from exquisitely designed, highly controlled experimental work to mere theory which barely rises above the definition of speculation. Distinguishing lines between good, bad, and non-science are hazy, at best. Still, there exists proven methodologies customarily relied upon by vocational rehabilitation, life care planning and economic experts which are reliable and provide for valid analysis of damage claims in civil litigation. I. Evaluation of Lost Wage and Lost Earning Capacity Claims Before discussion of lost wages and diminished earning capacity can take place, the terms must first be defined. Lost Wages: The monetary value of an individual's lost ability to work and earn wages at the time of a specific event up to the date that the evaluation of damages occurs; Earning Capacity: The ability of one to sell his or her services in the open labor market. The economic value associated with the individual's: A - Access to (jobs in) the labor market; P - Placeability; E - Earnings; L - Labor force participation rate and work life expectancy. Factors that determine earning capacity are:
Diminished earning capacity is typically the result of diminished labor market access, that is, the number of jobs in the competitive labor market for which an individual is qualified and for which he may now compete as a result of an impairment and resultant functional limitations. At times, rehabilitation strategies can be employed to regain labor market access. Examples of such strategies can include:
Work Life Expectancy: In all cases involving claims for diminished earning capacity, the work life expectancy of the subject must be established. There are a number of resource publications which can be relied upon for this purpose, inclusive of the following:
There has been much discussion recently with regard to projecting worklife expectancy, specifically, considering the alleged effect of disability. For this purpose, some experts rely upon Federal statistics that can be obtained from the U.S. Department of Commerce, Bureau of the Census in the Current Population Survey series of documents. These studies, however, are not reliable in support of such claims, typically made by plaintiffs, that the presence of a disability automatically results in a reduction of worklife expectancy. The reason for this rejection of such an argument comes from the Federal studies, themselves, specifically, the intent of the information gathering done by the Federal government to begin with. The Federal government's purpose in developing this data was strictly to determine future funding needs for various entitlement programs for which many people with disabilities can qualify. The purpose of the data collection was not to establish that all individuals with disabilities automatically have diminished worklife expectancy compared to their non-disabled counterparts. Any conclusions reached by forensic vocational rehabilitation or economic experts along these lines are inappropriate and should be firmly criticized. There is another study that has been developed by a forensic rehabilitation economist and published as the "New Work Life Expectancy Tables." Any reliance on these tables, in my opinion, would also be inappropriate as they have been found to be unreliable. The author of the tables has taken certain Federal data designed for one purpose and created new data which allegedly support his opinions that individuals with disabilities automatically have diminished worklife expectancy. This methodology, in fact, has resulted in the manufacture of scientifically unreliable data. Any conclusions reached utilizing such data, therefore, should be viewed as speculative and unscientific. Roles of Various Experts: In evaluating lost wage and lost earning capacity claims, the roles of certain experts must be established. There is the common tendency on the part of attorneys to, when faced with the need to either establish or rebut the claim for lost wages and diminished earning capacity, to immediately retain a forensic economist to accomplish this task. This retention, however, fulfills only a partial need to evaluate such claims. In fact, there is the need for both a vocational rehabilitation expert and an economic expert to fully evaluate such claims. The reasons lie in the definition of the essential functions of each job according to the U.S. Department of Labor: Vocational Rehabilitation Counselor:
Unless the forensic economist is also qualified, by virtue of education and training, to address the former issues, any conclusions rendered by the forensic economist pertaining to either pre- or post-injury jobs or career paths would be incompetent. Applying Daubert standards, any testimony along these lines by the forensic economist would be speculative and unscientific. When evaluating claims for diminished earning capacity, therefore, the involvement of both a vocational rehabilitation expert and a forensic economist is necessary for a competent evaluation. The only exception to this is in a case where a specific expert has qualifications in both areas. It is not uncommon, for instance, for a vocational rehabilitation expert to qualify as an economic expert if they can demonstrate such expertise in performing economic calculations pertaining to present day values. There are essentially three components that are necessary to perform a forensic economic evaluation related to diminished earning capacity once the specific job(s) have been identified. These are as follows:
The attorney retaining damage experts, though, may want to utilize separate vocational rehabilitation and economic experts at time of trial. For case evaluation and settlement purposes, though, it may very well be possible to have a vocational rehabilitation expert qualified in performing present day value calculations perform both roles. It would not be acceptable, though, to utilize a forensic economist in this manner as without the specific training in vocational rehabilitation, the forensic economist would not be able to identify the most suitable jobs for which an individual might otherwise be qualified. This might result, then, in an artificially low annual earnings figure over time, which would result in an inaccurate assessment of total damages. Formula for Establishing Diminished Earning Capacity: A relatively simple formula is utilized to establish the possibility of diminished earning capacity. This is as follows: Impairment + functional limitations = disability (and potentially earning capacity disability). Definitions of these terms follow: Impairment: A medical term referring to any anatomic or functional loss; Functional Limitations: An individual's residual functional capacity as a result of an impairment. This typically involves an individual's ability to sit, stand, walk, bend, stoop, squat, kneel, lift, carry, reach, climb, and drive (in the case of a physical impairment) and ability to follow instructions, respond appropriately to supervision, relate to co-workers, perform tasks consistently, and other factors in the case of a psychiatric or emotional disability. * The establishment of functional limitations must be made by a medical doctor (physical impairment) or psychiatrist or psychologist (psychological or emotional impairment); Disability: A non-medical term referring to an alteration of one's ability to engage in gainful activity because of an impairment and functional limitations; Earning Capacity Disability: A disability that results in an alteration in one's ability to work and earn wages, specifically affecting labor market access, placeability, and earnings. A common error made by attorneys in their development of a case where a damages claim is being made typically involves solicitation of opinions from physicians, especially in an Independent Medical Examination (IME). Attorneys typically ask physicians for opinions related to causation of a specific condition and whether or not permanent impairment exists. The vocational rehabilitation expert, however, cannot determine if earning capacity disability exists unless the physician is also asked as to the specific functional limitations that arise from the impairment, assuming that an impairment exists. Absent the presence of permanent impairment, no functional limitations can result. Without the presence of functional limitations, there can be no finding of disability, specifically, earning capacity disability. Therefore, if a consulting or evaluating physician is of the opinion that no permanent impairment arises from a particular event, there can be no alteration in one's ability to work and earn wages, hence no finding of diminished earning capacity. When deposing other physicians who may have conflicting opinions, it is, again, insufficient to merely make inquiries pertaining to causation and permanent impairment. Specific functional limitations must be solicited from the physician before an evaluation of earning capacity disability can be made. Functional Capacity Evaluations: Over the years, there has been an increasing trend towards utilizing functional capacity evaluations as a means to establish one's residual functional capacity arising from injuries sustained in a certain accident. In the last year or so, however, functional capacity evaluations have been increasingly challenged in the courts as being speculative and unscientific. The reason for this lies in the fact that very few functional capacity evaluation methodologies have been determined to be scientifically reliable. Without reliable methodology, the results of functional capacity evaluations cannot be valid. At best, they may measure one's ability to perform certain material handling tasks at the time of an evaluation in the manner in which the examinee has been instructed by the examiner. Functional capacity evaluations have also strongly relied upon the subjective opinions of the examiner without consideration for the scientific reliability of the tasks that are being presented to the subject to perform. The August 1998 Edition of Physical Therapy magazine offers two articles related to functional capacity evaluation. Both are critical of this process. "A Critical Review of Functional Capacity Evaluations," Phyllis M. King, Nicola Tuckwell and Tanya Barrett, stated that, Medical legal credibility must be compatible with the development of more efficient, clear, and safer FCE's. This article went on to demonstrate that of 10 recognized functional capacity evaluation methodologies, only 4 had established measurements of reliability and validity. If an examiner administers a functional capacity evaluation and does not follow the methodology to the letter, the results of the evaluation cannot be valid. "Detecting Sincerity of Effort: the Summary of Methods and Approaches," Deborah E. Lechner, Sam F. Bradbury, and Lawrence A. Bradley, concluded that little has been written summarizing literature addressing the reliability and validity of measurements to detect the sincerity of patient's efforts in clinical assessment. The entire article casts even greater doubt as to the scientific validity of the results of functional capacity evaluations. Regardless of whether or not a functional capacity evaluation is performed to ostensibly establish the residual functional capacity of a plaintiff as a result of injuries sustained in the subject accident, the final finder of fact in this regard is the medical doctor. Functional capacity evaluations are merely a tool. It is the medical doctor who may choose to accept or reject the findings of a functional capacity evaluation and offer his opinion of one's residual functional capacity based on his specific training, expertise, and knowledge of the relationship between an impairment, the human body, and overall physical functioning. Where possible, consulting or treating physicians should be relied upon to establish the subject's residual functional capacity and not an occupational therapist or physical therapist who has merely administered a series of (possibly random) exercises under the guise of a functional capacity evaluation. Importance of Pre-Injury Earning Capacity in Determining Loss of Earning Capacity: Although many vocational rehabilitation experts focus on a plaintiff's residual functional capacity arising from injuries sustained in a subject accident as the most important factor in determining diminished earning capacity, the key to this evaluation lies in an accurate determination of one's pre-injury earning capacity. A number of points must be made:
Some claimed injuries should be "automatic" triggers for consultation with a vocational rehabilitation expert. These would include, but not be limited to, catastrophic injuries such as traumatic brain injury, spinal cord injury, amputation, or multiple trauma. Correlation of the severity of these injuries with the plaintiff's functional status at the time of the accident are also excellent predictors of future claims by the plaintiff. Individuals suffering even minor injuries and who are employed in the construction trades or occupations requiring driving, such as truck drivers, are likely individuals to make lost earning capacity claims. Similarly, severe injuries to children or adolescents invariably ensure these claims for damages. Pre-Existing Injuries and Their Impact on Pre-Injury Earning Capacity: It is critical to determine the presence of pre-existing injuries and resultant functional limitations that could have affected plaintiff's earning capacity at the time of the subject accident. If medical records or other records obtained through discovery suggest the presence of pre-existing medical problems, the following information should be obtained:
Plaintiffs typically argue that they were "whole" on the date of the subject accident and that date of accident earnings are presumptive of earning capacity. This is a common fallacy which is easily rebuttable if appropriate records can be obtained. No qualified vocational rehabilitation specialist would dare suggest that someone with documented functional limitations work in a job where the functional exertional demands would exceed the individual's residual functional capacities. Therefore, one cannot have an earning capacity based upon work that they are physically or emotionally unable to perform. Establishment of a realistic pre-injury earning capacity allows for an accurate assessment of post-injury earning capacity. Assessment of Post-Injury Earning Capacity: The evaluation of post-injury earning capacity is done in the same manner utilized to establish pre-injury earning capacity. In the post-injury earning capacity scenario, though, the individual's residual functional capacity attributable to injuries sustained in the subject accident is carried out. In order to do this, the vocational rehabilitation expert must have information from attending, consulting, and/or evaluating physicians. The specific impairment and functional limitations arising from the subject accident must be established before determining residual employability. One of the common techniques used to establish residual employability is transferable skills analysis. This process first involves review of the individual's work history to determine the skills obtained from past jobs. In the event that there has been a documented alteration in one's functional capacity as a result of injuries incurred in this specific accident, it is necessary to determine whether these past work skills can be applied to other jobs for which the individual is otherwise qualified by virtue of the same factors identified earlier in this paper. There are three levels of work skills that are required to perform the essential functions of all jobs that exist in the competitive labor market. These definitions are established by the U.S. Department of Labor as follows:
Once the appropriate skill levels have been identified, labor market research can be identified to determine suitable jobs for the individual as well as wage patterns. When determining labor market access, that is, the jobs to which an individual can now reasonably be expected to work, both current and future earnings in a particular position should be identified. Vocational rehabilitation specialists are qualified to address the typical "career ladder" issues which applies to all workers. It is, therefore, possible to determine that although a job(s) to which one might be qualified to return to work immediately following an accident might not pay wages comparable to those which have been determined to best represent the plaintiff's pre-injury earning capacity, over time, it may very well be that the earnings in the post-injury job(s) for which the plaintiff is now qualified will exceed the wages he could have expected in the pre-injury scenario. This issue should be addressed by the vocational rehabilitation expert and is a very important issue to consider. A short period of lost wages may result before the post-injury earnings exceed those the plaintiff could have expected pre-injury. Evaluation of Wrongful Death Cases: The use of a vocational rehabilitation expert is very important when evaluating the earning capacity of a decedent in a wrongful death case. Although the common rule employed by attorneys here, again, is to retain only an economist, this is not always appropriate. Depending on the sector of employment filled by the decedent at the time of death and one's specific job within that sector, "automatic" assumptions pertaining to the lost future earnings stream of a decedent may not be reasonable. For instance, it is not uncommon for plaintiffs to have the decedent reaching what might appear to be unrealistic levels of future employment. Such levels will, obviously, result in unrealistic future earnings. Vocational rehabilitation specialists can determine if the individual was qualified for these jobs. An economist, alone, should not be utilized to evaluate future earnings that a decedent would have expected but for his death. Establishment of Future Earnings: There have typically been two methods of establishing future earnings in the post-injury scenario:
Depending on the individual(s) contacted at a particular employer, information obtained may not be accurate. Furthermore, the size of the survey sample will, of course, affect the validity of the conclusions. It is simply not possible to obtain information from every employer contact. This is because many employers are unwilling to disclose information sought for purposes of our analysis. The reliance on established studies is, therefore, preferred and would withstand the scrutiny of Daubert more easily than a methodology which relied exclusively on anecdotal information obtained from a number of employers. Putting Together the Final Opinions on Residual Employability: There are typically two options that will ultimately be considered in determining post-injury employability:
If the vocational rehabilitation expert has had the opportunity to interview the plaintiff in a clinical interview and administer a vocational test battery to help clarify plaintiff's academic levels of achievement, aptitudes, and interests, alternate employability through occupational retraining can be considered. It is not possible for the defense expert to interview the plaintiff and perform vocational testing, if testing has been performed by an expert retained by the plaintiff, assuming the battery was administered using standardized tests relied upon by vocational rehabilitation professionals, the results of these tests could be utilized by the defense expert. Transferable skills analysis and correlation with available retraining options in a specific geographic area would then be carried out. Employability at wages expected in the industry in which retraining occurred will then be established. Occupational retraining either in a realistic or hypothetical sense can be a most effective way of mitigating future damages related to diminished earning capacity as it usually is the best way to enhance one's post-injury earning capacity. Evaluation of Diminished Earning Capacity in Children and Young Adults without an Established Earning Capacity: Evaluation of children and adolescents who have not worked for substantial periods of time or have just entered the work force can be a challenging task. Yet, there exists a reliable methodology that can be utilized in evaluating such claims which will meet the standards of Daubert. In evaluating the earning capacity of a child, we must first determine the level of academic outcome that was most probable for the child. Once this is determined, the child's labor market access as an adult can be determined, that is, the positions the child would probably have had available to him in the future when he entered the work force. Once this is done, a determination can be made as to what specific positions in the competitive labor market the child would probably have been likely to pursue. Familial and environmental influences are factors in determining academic and vocational outcome. The levels of academic outcome of the parents and/or those individuals who would most likely serve as influences on the child are guiding forces to the child. In terms of vocational outcome, the research indicates that a child tends to model either or both of their parents and/or any other close influences that the child is exposed to during the developmental years. The general tendency is for children to pursue the same skill level of job, although not necessarily the same job, as held by either or both of the parents or other close influences. There are, of course, exceptions to this general rule, however, vocational rehabilitation specialists deal with probabilities and not possibilities. Environmental factors, in addition to familial factors, also play a role in determining future academic and vocational outcome. Since vocational outcome is to a large extent a product of one's academic levels of achievement, access to skilled, usually high-paying jobs may be accessible only to individuals whose environmental influences expect that such positions will ultimately be obtained. This excludes, however, the fact that skilled trades, typically high-paying jobs, may be accessible to individuals with lower levels of academic achievement. It is important, therefore, to obtain as much information as possible pertaining to the family background and influences of the child or adolescent. Very often plaintiff's experts may attempt to overstate academic and vocational outcome of the child or youngster without a work history. Although it is certainly possible to have a greater academic and occupational outcome than might otherwise be expected utilizing this methodology, it is important to note that we, as vocational rehabilitation experts, must concern ourselves with probabilities as opposed to possibilities. Other Thoughts: Although vocational rehabilitation is defined as a social science and is technically exempt from the Daubert standard, the methodologies generally employed by qualified vocational rehabilitation experts are recognized and accepted. These methodologies include an accurate assessment of the pre-injury earning capacity, acknowledgement of permanent impairment and residual functional capacity from injuries related to the subject accident, transferable skills analysis and the resultant assessment of labor market access, placeability, earnings and labor force participation. There are some experts, however, who arbitrarily draw conclusions pertaining to diminished labor force participation without proper scientific foundation. This has previously been discussed to some extent. There are others who purport to evaluate diminished earning capacity claims but do not address the issues that we have discussed here. Such experts, I submit, are probably unqualified to offer the opinions that they are offering. These experts should be closely questioned at time of deposition as to their methodology, the reliability of same and the resultant validity of their findings. A vocational rehabilitation expert can be used effectively as a consultant to help prepare the attorney to question the opposing expert at deposition or trial. II. Evaluation of Future Cost of Care - Life Care Planning: Daubert also has application in the methodology utilized to evaluate future care needs of people with disabilities. This process, commonly referred to as life care planning, while in its relative infancy, is becoming well-respected and increasingly necessary in the field of forensic rehabilitation. Life Care Plan: a published methodology for assessing future care needs (lifetime costs) of individuals with chronic and/or catastrophic disability. The method is designed to solicit information from appropriate medical and other professionals to comprehensively plan for the care of the individual. The life care plan is a living document and can be updated as required to reflect current needs. While life care plans have traditionally been utilized in catastrophic cases involving spinal cord injury, traumatic brain injury, burns and amputations, it is also an appropriate methodology to consider when projecting future care needs related to other conditions such as joint replacement, future surgery, or medical costs. There is still the tendency for lawyers to attempt to rely upon medical doctors to establish the costs of future care made necessary as a result of a disability. This tactic is inappropriate under Daubert. While doctors are trained to provide medical care and determine how to treat certain conditions and what future treatment will be required, most doctors are not trained in the methodology of life care planning as well as what the future care will actually cost. Physicians are best trained to practice medicine. If we were to do a survey of physicians, we would probably find that, especially in this day and age of managed care, most physicians cannot concern themselves with the operations of their offices. They, instead, rely upon other administrative employees to take care of such issues as billing and record keeping. Physicians are also usually not well versed in the interrelationship of the different components that may be required to comprehensively provide for the future care needs of a person with a disability. In a relatively simple case involving a total hip arthroplasty, for instance, there may be a number of non-medical components in the total future care plan. This can include a short period of in-home nursing care or homemaker assistance, physical therapy, the use of durable medical equipment such as a walker, raised toilet seat and/or grab bars for a shower as well as the medical-related costs of the surgery itself, hospitalization, x-rays and medications. In my experience, physicians will either significantly overstate or understate the total costs associated with a future care plan. Either way, this would result in an inappropriate calculation. Even more egregious is the physician who attempts to identify and quantify all of the future care needs attributable to a catastrophic injury such as a spinal cord injury or traumatic brain injury. In children, we may see pediatricians offering determinations of future care once the disabled child "graduates" to the point where his care must be provided by a general practitioner, internist, or other specialty physician who treats adults. There now exists national certification for life care planners through the Commission on Disability Examiner Certification. A Certified Life Care Planner is an individual who has completed at least 125 hours of specific, post-graduate education related to life care planning, has taken and passed an examination related to life care planning methodology and who has submitted a life care plan for peer review and withstood the scrutiny of his peers. Whereas some other individuals without this certification may be qualified to develop a life care plan, it is the certified life care planner who has demonstrated the highest credentials in the field of life care planning and can best withstand the scrutiny of Daubert. Content of Life Care Plans: There are many areas of service that may be considered in the development of a life care plan. These areas are determined by the specific disability and may include, but not be limited to, the following:
Foundation for Content of Life Care Plan: One of the common areas of dispute in a life care plan concerns the foundation for its components. In order to withstand scrutiny under Daubert, the foundation for many life care plan items must be obtained from attending or consulting physicians or psychologists. The life care planner is typically qualified to identify non-medical areas of need in the plan such as aids for independent function, wheelchairs, wheelchair maintenance, projected evaluations and other non-medical needs. In establishing the need for future medical care and psychological counseling, however, the life care planner must rely upon a medical doctor or psychologist unless he, himself, is also qualified in those areas. Review of research is typically carried out for the life care plan in order to understand the nature of disabling conditions and future care needs made necessary as a result of the condition. Because of the individualized nature of a life care plan, however, future care needs established through research in a general sense may not be applicable to a specific individual. Therefore, more specific foundation is usually required in order to establish the need for certain items in a life care plan pertaining to a specific individual. This is usually the case when considering future medical care, surgeries, hospitalizations, diagnostic tests and psychological counseling. Strategies for Evaluation of Life Care Plans: Attorneys should never accept the content of one party's life care plan without the involvement of a life care planner of their own. In order for a life care planner to accurately evaluate the other party's life care plan, the following information should be obtained:
It may not be possible for a life care planner retained by the defendant to have in-person contact with the subject of the life care plan. If this is the case, it remains even more critical to obtain the opposing expert's file to obtain source documents in support of the plaintiff's life care plan. It would then be very important to solicit the input of consulting and attending physicians to offer foundation for the defendant's position. As deposition testimony would be one of the key means of obtaining such information from attending physicians, consultation with the life care planner for the defendant in advance of the time for such depositions should be carried out. Tying It All Together: A life care plan, be it for a catastrophic injury or if it is intended simply to set forth the cost of future medical care related to a specific surgical procedure, is a technical process which requires specific expertise. Physicians alone are generally not qualified to develop a life care plan. The professional standard for evaluating and developing life care plans is the Certified Life Care Planner credential awarded by the Commission on Disability Examiner Certification. A life care plan can be a very important component to a case involving damages. It is also a source of continued problems for experts, attorneys and triers of fact. The greatest problem that typically exists in the development of a life care plan remains the foundation for its content. It is this area that should be most closely scrutinized by opposing experts and attorneys. References:
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