The Impact of a Vocational Expert in a Personal Injury Case

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A Maryland jury in a personal injury case awarded a young man $1.2 million in economic damages and more than $800,000 in noneconomic damages. The large award for economic damages was supported by the testimony of a vocational expert and an economist. The award was affirmed on appeal.

Facts of the Case

For the first four years of his life, Daquantay Robinson lived in a Baltimore row house. Lead-based paint on the walls of the residence was chipping, peeling, and flaking. About a dozen years after Robinson’s family moved out of the residence, an environmental services company detected lead-based paint on many of the walls.

Robinson was exposed to lead-based paint chips. Robinson’s blood-lead level was tested multiple times during his first four years of life. While there is no safe level of lead exposure, Robinson’s test results were in a range that experts regard as potentially unsafe. 

Robinson, through his mother, sued the property owner for negligence. Robinson contended that the owner had a duty to remove all lead-based paint before renting the property to tenants. Robinson’s mother contended that exposure to lead caused Robinson to suffer from a personal injury that affected his cognitive ability and employability.

Robinson designated a vocational expert to provide opinions about Robinson’s future employability. He also designated an economist to quantify his loss of earning capacity.

Vocational Expert Testimony

The vocational expert rendered an opinion about Robinson’s employability in the absence of cognitive impairments and his employability in light of his cognitive impairments. The vocational expert relied upon a neuropsychological evaluation which found impairments of Robinson’s performance on tests that measure attention, visual/spatial and visual/motor skills, motor abilities and memory. 

Testing also showed an impairment of his brain’s executive functions. Those functions are required for self-control, behavior management, flexible thinking, focus, and the ability to plan and strategize. The neuropsychological evaluation found no evidence that any factor other than lead exposure — including emotional factors and fatigue — had any impact on the test results. 

The vocational expert also reviewed Robinson’s record of high school achievements. Based on her review of academic records, the vocational expert noted that Robinson had poor reading comprehension and poor math skills. Robinson’s performance in high school was affected by behavioral problems associated with a bad temper. He could not focus his attention and could not follow through on tasks. 

The vocational expert concluded that Robinson’s Low Average IQ would probably allow him to graduate from high school, although he might need to participate in a bridge program to achieve passing scores in some subjects. The expert opined that Robinson’s executive function impairments and his attention deficit would likely limit his employment opportunities to jobs that are routine and repetitive.

Robinson’s employability would depend to some degree on his ability to control his anger, a key executive function of the brain. While the vocational expert could not predict the future, she based one set of conclusions on the assumption that Robinson would not have substantial anger management issues. She concluded that, at best, his earnings would be the equivalent to the lower range of earnings by unskilled high school graduates. She also expressed the opinion that Robinson’s earnings would be below that range if he could not control his anger.

Robinson told the vocational expert that he wanted to attend college. She did not think he would be accepted into a four-year degree program without first completing non-credit coursework. Even if Robinson did so, based on his academic performance in high school, the vocational expert thought it was unlikely that Robinson would finish college and earn a degree.

If the impairments revealed by neuropsychological testing did not exist, the vocational expert believed that Robinson would have achieved better grades. He would have experienced the same motivation to attend college. With somewhat better academic performance and the ability to control his anger, she concluded that Robinson would probably have been able to complete at least two years of college or graduate from a technical school. He would likely have had the same earnings as other individuals with that level of education.

The vocational expert determined the average earnings of individuals with a high school education who perform unskilled, repetitive work. An economist used those earnings to project lifetime earnings reduced to present value of $1.7 million if Robinson was able to control his anger and $1.2 million if he was not. 

Based on the vocational expert’s estimate of average earnings of workers who complete two years of college or technical school, the economist determined that Robinson’s lifetime earnings, reduced to present value, would have been $2.8 million in the absence of a brain injury. The economist concluded that the present value of Robinson’s income loss was either $1.1 million or $1.6 million, depending on whether Robinson will be able to control his temper.

Admissibility of Vocational Expert Testimony

The landlord asked the trial court to exclude the opinions of Robinson’s vocational expert and economist on the ground that they were not qualified to render medical opinions about Robinson’s impairment. Objections of that nature are routinely made in personal injury cases and are rarely successful. 

The court concluded that the vocational expert was qualified by her education and experience to render vocational opinions. She had conducted more than 100 vocational evaluations of young adults. To make a comparison of earning capacity with and without medical impairments, the vocational expert was entitled to rely on the opinions of a neuropsychologist who was qualified to assess brain injuries. The vocational expert did not render medical opinions; she rendered vocational opinions based on medical evidence that was relevant to her opinions. Whether the medical evidence was credible was for the jury to determine after hearing the neuropsychologist testify.

The court concluded that the vocational expert was entitled to rely on medical opinions in forming her vocational opinions. The court also rejected the argument that the vocational expert’s opinions were speculative. She based her opinions on the kind of information that experts in her field routinely rely upon, including statistics and government databases.