The Impact of a Vocational Expert in a Wrongful Death Case

A suit for wrongful death seeks compensation for intentional or negligent conduct that causes a death without legal justification. In a minority of states, a wrongful death claim belongs to the deceased party’s estate. In most states, it belongs to a surviving spouse and other close relatives who are specified by state law. When relatives are entitled to bring a wrongful death action, the estate is usually permitted to sue on the decedent’s behalf to recover damages for the decedent’s pain and suffering prior to death.

Damages available in wrongful death cases vary from state to state. The extent to which plaintiffs can sue for noneconomic damages varies considerably. In most states, family members can sue to recover their own economic damages caused by a close relative’s death. Economic damages typically consist of a loss of financial support and the value of household services the deceased relative would have provided. In states that require the estate to sue rather than surviving relatives, the estate can usually recover the present value of the lost earnings that the decedent would have accrued during the decedent’s normal worklife expectancy.

When damages turn on the economic support an accident victim would have provided or the victim’s loss of future earnings, a vocational expert provides vital evidence. At the same time, defendants use vocational experts to provide their own view of economic damages. A recent federal district court decision from Kentucky provides a case study of the role vocational experts play in wrongful death cases.

Facts of the Case

Samuel Commins’ estate and surviving children sued Genie Industries for wrongful death. Commins was employed as an electrician helper by Kellogg Brown & Root (“KBR”). Commins and another KBR employee were using a boom lift to install supports and conduit beams at a facility. Genie Industries manufactured the boom lift.

Commins was working at night with the help of a co-employee. Shortly after midnight, the co-employee left for 30 minutes. When he returned, he discovered that Commins was pinned between the control panel in the boom’s basket and an overhanging beam. Commins was 23 feet in the air. He died from crush injuries.

The wrongful death suit alleged that Genie should have equipped its boom lift with a physical barrier or alert system to prevent an operator working in the basket from becoming pinned between the basket and an obstruction. Commins’ children and estate argued that the boom lift’s defective design caused Commins’ death.

Admissibility of Vocational Expert Testimon

The Commins’ children and estate retained a vocational expert to provide an opinion about Commins’ lost earning capacity. Genie did not challenge the admissibility of that opinion. Genie did, however, challenge the substance of that opinion by retaining a vocational expert and an economist as rebuttal experts. The Commins’ children argued that the rebuttal experts’ opinions were not admissible.

Genie’s vocational expert determined that Commins’ earning ability was limited. She considered his age, education, job history, and military training. She concluded that his combat training and experience in the military was not transferable to the civilian workforce. She also detailed Commins’ physical and mental ailments that resulted from his military service.

Commins’ employment by KBR as an electrician helper was his first civilian job. She assessed his “pre-morbid functional capacity,” including a detailed examination of all of the physical and mental ailments Decedent experienced during his military service. She also analyzed Commins’ vocational attributes. She concluded that his earnings at KBR represented his best earning capacity.

In making that assessment, the vocational expert compared Commins to other males of the same age and educational level who suffered from similar disabilities. Although she did not offer an opinion about the extent to which disabilities reduced Commins’ earning capacity, she did not need to do so to make that comparison.

Genie’s vocational expert faulted the plaintiffs’ expert for not considering Commins’ disabilities in analyzing his earning capacity. Commins’ children and estate, in turn, faulted Genie’s expert for not comparing Commins to members of the labor force who had the same disabilities as Commins. 

Genie’s expert relied on government statistics that addressed adult workers with permanent partial disabilities that were not severe. The court decided that Genie’s methodology was sound and that her decision to compare Commins to a particular part of the labor force, like the decision of the plaintiffs’ expert to compare Commins to the relevant labor force regardless of disability, went to the weight of their opinions, not their admissibility. The court, therefore, declined to exclude Genie’s expert testimony.

Expert Economist

Vocational experts often work together with expert economists. The defense typically has the burden of discounting lost earnings to present value. Either the plaintiff or the defendant may want to use an expert economist to make that calculation.

Genie’s economic expert criticized the plaintiffs’ vocational expert for assuming that Commins had the earning capacity of a nondisabled worker. The parties’ dispute focused on a factual question — the extent of Commins’ disabilities. Genie’s economist relied on its vocational expert’s conclusion that Commins would be unable to earn as much as a nondisabled worker because he had frequent migraine headaches, post-traumatic stress disorder, hearing loss, and a history of injuries to his shoulder, ankle, and knee. Whether those conditions were sufficiently disabling to affect earning capacity was a question for the jury to resolve. The economist was therefore entitled to rely on Genie’s vocational expert and to question the validity of the plaintiffs’ vocational expert’s opinions.

Commins’ co-worker testified in a deposition that Commins was moody and irritable, motivating other workers to stay away from him at certain times. Genie’s vocational expert and economist were entitled to base opinions on facts that might have made it difficult for Commins to remain employed.

Value of Vocational Expert in Wrongful Death Litigation

Both parties in the Commins case recognized the importance of vocational expert testimony. Economic damages hinge, in large part, on proof of lost earning capacity. The plaintiffs relied on a vocational expert to prove that loss. The defense wisely countered with a vocational expert of its own in an effort to reduce its exposure to a large wrongful death verdict.