by guest author Deborah J. Gander
Personal injury cases often include claims for lost wages in the past and for lost earning capacity in the future. Sometimes the injury leaves the victim unable to work, or unable to work in his previous capacity. Other times, it leaves a family member unable to continue in full-time employment because of the overwhelming needs of the injury victim. A specialist in vocational rehabilitation can help explain to the jury why your plaintiff or family member has a claim for lost wages, lost earning capacity, or both.
When to Call
Call your vocational rehabilitation expert first to set the stage for the economist, who will be testifying to wage losses projected by the vocational rehabilitation expert. If the jury has not yet heard from the vocational rehabilitation expert, the economist’s numbers and opinions lack context.
Your life care planner and vocational rehabilitation specialist often will be the same witness. If, however, you are using two individuals to present this testimony, it is a good idea to call the life care planner first so that the jury has a solid understanding of the injured person’s medical limitations and needs before the vocational rehabilitation specialist begins testifying about his work limitations or how his medical limitations prevent a family member from working at her normal capacity.
Here are the six essential areas you’ll want to cover on direct examination, generally in this order:
- Preliminary background information. Have your Vocational Rehabilitation expert explain his background, education and experience, including both formal education and any service programs he has worked with or operated through the years. Next, have him explain how he met your client (almost universally from a referral from your office or a government organization) and what testing or evaluations of your client he conducted. He should explain that he has spoken or corresponded with your client’s prior employers or professors to ascertain their opinions of your client’s education and work potential.
- Client’s limitations and effect on his or family member’s ability to work. Have your expert explain in detail why certain jobs are now ruled out for your client based on his limitations, and why the limitations of one person (for example, a child) can limit or completely prevent another person (such as a parent) from participating in the work force. For example, the average juror probably does not understand why a parent who has full-time nursing care for her child (after you win your case) would not be able to return to work full-time with a normal salary. Your vocational rehabilitation specialist can explain that, statistically, parents of disabled children miss far more work than nonparents or parents of healthy children, and that parents of disabled children often are so consumed with and distracted by their child’s needs that they are not able to focus on a job the way someone else would be. They are less likely to be able to work overtime, or even a full 40 hour week. All of these things lead to inability to get and retain work at higher salaries, and to advance at the same pace as their coworkers who do not have the same difficulties at home.
- Hypothetical questions based on opposing expert’s opinion. Pose hypothetical questions to your expert based on the opinions of your opponent’s expert, and ask whether those recommendations realistically take into account your client’s limitations and special needs. Many defense experts will cite the Americans with Disabilities Act and make the blanket statement that it is illegal to discriminate against a person based on his disabilities, and therefore a disabled person will have the same opportunities in the work force as a nondisabled person. While this argument is patently flawed, you need to debunk it head on. Your vocational rehabilitation specialist can cite studies and statistics, and describe personal experiences of other clients, that prove disabled individuals have fewer work opportunity and advance at much slower rates than non-disabled individuals.
- Recommendations in your expert’s report. Have your expert explain everything about the recommendations in his report so that a jury will understand the work limitations of your seriously disabled client that will remain even with all of the medical care and assistance you are asking that he receive. Otherwise, your opponent likely will be able to suggest that if your client gets the requested medical care, he will be able to return to the work force, and if the medical care will not enable him to return to the work force, then it is pointless and he does not really need it anyway. Be sure your vocational rehabilitation expert explains that even with all of the services you are requesting on behalf of your client, he will nonetheless have a lifetime of measurable, economic limitations for which he should be compensated.
- Before and after employment prospects. Have your expert give a range of jobs that your client likely would have been able to hold had he not been injured. Your expert also must provide a basis for his conclusions: your client’s scholastic records, his parents’ education and employment history, any particular physical or academic abilities or disabilities that your client had pre-accident, and the like.Next, your expert must explain what the job market likely holds for your client now, and why. He should explain that even if your client is able to attain employment in a certain field, his opportunity for advancement within that field likely is diminished because disabled individuals miss more work than their non-disabled counterparts and typically retire at an earlier age, which makes it more difficult to ascend the corporate ladder and to spend significant amount of time at their peak earning level. These are concepts that a jury may not be aware of or understand unless your expert explains that they do happen, and why.
- Neutralize opposing expert’s opinions. Many courts do not permit experts to testify about or comment on the credibility of other experts. Usually, however, you still can have your expert comment on the sources your opposing expert has relied upon, or on the opinions that he has rendered. Just do not ask your expert to comment directly about the defense expert. You can get around the prohibition and ask the question in a permissible manner by asking it in the form of a hypothetical.
Q: “Doctor, I want you to assume that someone has testified or will testify that Johnny would only have been expected to achieve a high school diploma and enter a blue collar job had he not been injured. Is that opinion based on credible evidence of the type relied upon by experts in your field in reaching opinions?”
A: “No, it is not. The best indicator of the level of education and resulting employment that an individual is likely to achieve is to look at the level of education and employment of his or her parents. In Johnny’s case, his mother has a Ph.D. in Economics and is a tenured professor at a state university. His father has an M.B.A. and works for a private import/export company. Johnny, absent any specific issues such as learning disabilities or behavior problems that might have made academics more difficult for him, would be expected to achieve a similar level of education and employment as his parents.”
Q: “Do the pre-accident school records of Johnny demonstrate any concerns regarding his academic abilities or the appropriateness of his behavior?”
A: “Not at all. I have reviewed Johnny’s school records and they show him to have been in the top five percent of his class academically, to have had no discipline problems, and to have participated in numerous team sports, which shows he generally gets along well with others.”
You can and should ask a similar series of questions for the most important opinions that will be rendered by your opponent’s expert, and that you need to neutralize or rebut. Note that you are not simply asking your expert to disagree with your opponent’s ultimate opinions. Rather, you are asking him to explain why the underlying bases of those opinions are wrong.
Stop Inappropriate Questions from Opposing Counsel
Be prepared to stop your opponent from asking inappropriate questions of your expert, such as whether he knows, is familiar with, or has an opinion about their expert. This line of questioning is usually an attempt to have your expert say something nice and diplomatic about their expert, particularly if they run in the same circles and it would be socially or professionally awkward for your expert to criticize theirs. Case law generally prohibits this line of questioning. Have it handy at trial, and circumvent the issue by moving in limine on it before trial. The case law is clear that testimony such as this has no place in the courtroom; neither do the questions even if they are objected to and go unanswered.
About the Author
Deborah J. Gander is a partner at Colson Hicks Eidson in Coral Gables, Florida. A board certified civil trial attorney, she practices in the areas of wrongful death, medical negligence, serious personal injury, and insurance bad faith. She has obtained more than ten verdicts exceeding $1 million.
Ms. Gander can be reached at:
(305) 476-7400 (phone)