The Impact of a Vocational Expert in a Motor Vehicle Accident Case

Vocational experts add value to personal injury verdicts involving motor vehicle accidents that cause disabling injuries. A recent case from Tennessee illustrates how vocational experts support verdicts for loss of earning capacity.

Car Accident Case Study

Julius Malone and Irvin Taylor were involved in a motor vehicle accident on a Memphis freeway. Both vehicles were traveling in the same direction. Mr. Taylor was driving a truck. He came up behind Mr. Malone’s car, then pulled into the adjacent lane to pass. Before completing the pass, Mr. Taylor attempted to merge back into the lane occupied by Mr. Malone’s car. The passenger side of Mr. Taylor’s truck car struck the driver’s side of Mr. Malone’s, forcing Mr. Malone’s car to spin out of control and causing it to strike two other vehicles.

After he traveled home, Mr. Malone told his wife that he had pain in his left leg. Mr. Malone’s wife insisted that he visit an emergency room for an examination. He was released from the emergency department with instructions to see a physician if his pain persisted.

 Five days later, he went to a clinic and complained of leg and back pain.

Mr. Malone was started on a course of physical therapy that continued for the next month. Several months after the accident, he had surgery on his leg.

About two-and-a-half years after the car accident, an orthopedist assessed Mr. Malone’s condition. He concluded that Mr. Malone suffered from back pain related to a bulging disk and degenerative disk disease with acquired scoliosis and spinal stenosis. He attributed those conditions to the car accident. He also concluded that Mr. Malone’s leg pain was radiating from that back injury. The orthopedist determined that Mr. Malone would need physical and occupational therapy as well as medication to control his pain.

Two other physicians concluded that Mr. Malone suffered a traumatic brain injury in the collision. That conclusion, like much of the other medical evidence, was contested by Mr. Taylor’s insurance company. The insurer contended that any cognitive impairment was caused by “normal aging.”

The parties disputed whether Mr. Malone suffered from a permanent injury. Mr. Malone’s treating physician concluded that he had a permanent impairment due to concussive syndrome, cervical strain, and aggravation of preexisting spinal stenosis. The appellate court concluded that the evidence supported the jury’s finding that Mr. Malone suffered from a permanent injury.

A jury awarded Mr. Malone more than $2.3 million in damages. The award was reduced to about $1.5 million because Tennessee law caps damages for non-economic harm, including pain and suffering. The damages award included $375,000 for loss of earning capacity.

Loss of Earning Capacity

Mr. Malone testified that he suffers from anxiety and fear, loss of memory, and loss of orientation. He is afraid to travel in a car. He walks with a cane and experiences constant pain in his lower back that radiates down his leg. Those conditions interfere with his ability to work.

Three witnesses testified that Mr. Malone had no difficulty walking before the collision. The same witnesses testified that Mr. Malone suffered from no mental impairment prior to the collision.

At the time of the accident, Mr. Malone was 55 years old. He was a full-time warehouse worker. He consistently worked overtime. Before he found a job that gave him regular overtime hours, he worked two jobs simultaneously to maximize his earnings.

Mr. Malone’s warehouse job ended about two months before his accident. He quickly found a new warehouse associate position that paid $14 an hour. He was scheduled to begin that job about a week after the car accident. He was also looking for a second job to increase his earnings.

After the accident, Mr. Malone was unable to find employment. The evidence established that Mr. Malone had been a hard worker and a former Marine. While the defense argued that Mr. Malone was malingering, the appellate court concluded that the evidence supported the jury’s finding that Mr. Malone’s earning ability was impaired by the accident.

Tennessee follows the general rule that loss of earning capacity, unlike loss of future earnings, need not be proved with mathematical precision. The injury victim must prove to a reasonable certainty that the injury will diminish the ability to earn income but is not required to prove the amount by which earning capacity is diminished with certainty. Having proved that earning ability is diminished to any extent, the plaintiff is only required to present evidence that will allow the jury to make a fair and reasonable assessment of that loss.

Lost earning capacity is typically proved by comparing what the plaintiff would have been capable of earning but for the injury with what the person is capable of earning after the injury. If the injury is permanent, that amount is projected over the injury victim’s work life expectancy, and the result is discounted to its present value.

Vocational Expert Testimony

Mr. Malone called a vocational expert to establish his damages for loss of earning capacity. Relying on medical records, work history, and educational history, the vocational expert assessed Mr. Malone’s earning ability before and after the collision.

The vocational expert concluded that Mr. Malone’s earning capacity before the accident allowed him to make $34,000 to $40,000 per year performing warehouse work, assuming he worked 50 to 60 hours per week, as had been his habit.

The vocational expert testified that Mr. Malone experienced a complete loss of earning capacity. His limited ability to walk and his use of a cane ruled out future employment performing the kinds of manual labor that he had performed in the past. His emotional injuries precluded employment in other jobs, given his inability to meet the sustained demands of income-producing work.

Based on a complete loss of earning capacity, the vocational expert projected a future loss until Mr. Malone became eligible for Social Security of $377,520 to $446,160. An economist projected the future value of Mr. Malone’s lost benefits and concluded that Mr. Malone’s total loss of earning capacity had a value of $427,000 to $505,000. The jury’s award of $375,000 was well supported by the vocational expert’s testimony.