The Role of a Vocational Expert’s Testimony in Personal Injury Cases

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Since Kerner v. Flemming, 283 F.2d 916 (2d Cir. 1960), Vocational Expert Testimony has been offered in Social Security Disability cases to formulate vocational opinions about specific job opportunities available to a person based on their age, education, background, work experience, and medical condition in response to an Administrative Law Judge’s hypothetical questions.

The Vocational Experts who provide this testimony are professionals educated, trained, and skilled in job placement and knowledgeable about labor market conditions, as well as the impact medical conditions can have on an injured person’s employability.

The initial Vocational Experts soon realized that they had the skills and competency to offer vocational opinions in Personal Injury cases and to testify as to an injured person’s employability and earning capacity. Vocational Testimony is given based on the expert’s education, training, experience, and information contained in various traditional vocational sources including private, federal, and state government publications.  The current knowledge and methods used in the field of forensic vocational rehabilitation are applied in determining an injured person’s employability and earning capacity.

Vocational Experts should know the law, i.e. whether the case is being heard in state or federal court. This will determine the content of the report, the methodology used, and the qualifications required to testify. The expert should be knowledgeable of the differences between Frye, Daubert, and Kumho standards for testimony.

The Vocational Expert must be credentialed. At the minimum, they should be certified vocational rehabilitation counselors, have a Master’s Degree in Rehabilitation Counseling and have at least 5-10 years of practical experience working with disabled persons. Many Vocational Experts have served as experts for the Social Security Disability program where the only issue at hand is the employability of injured persons.

A Vocational Expert never stops learning. They should attend local and/or national conferences to obtain the latest information in the field, as well as keep current with professional publications.  The expert should be knowledgeable of the scope of practice and ethics in their field.

In order to reach their opinion, Vocational Experts should utilize a standard methodology.  This methodology should be accepted and used by their peers. The name of the methodology should be stated in the expert report and explained at the time of testimony. Using a well-accepted approach, method and procedure will make the vocational expert’s opinions more defensible.

Experienced Vocational Experts know they must be proficient in their area of expertise. They know they are not physicians, neurologists, psychiatrists, psychologists, psychiatrists, or economists. The Vocational Expert knows they must stay within their area of expertise.

The Vocational Expert must relate their testimony to the facts of the specific case. Their testimony must reflect the expert’s understanding of the case.

Lastly, the vocational opinions must be based on acceptable clinical practice for injured persons, not just for litigation.

In conclusion, many personal injury attorneys overlook some of the above factors in selecting a Vocational Expert for their Personal Injury cases. Without an understanding of the expert’s qualifications and testimony experience, the Personal Injury attorney takes a risk that their expert’s testimony may not be accepted by the court.

Occupational Assessment Services has been involved as Vocational Experts in some of the largest verdicts in the United States, including Escobar vs the State of New Jersey which received a verdict of $166,000,000 and Verni vs Armark which received a $105,000,000 verdict. With the use of the OAS Life Care Plan Charts, these large verdicts may not have been achieved.

OAS is a Nationwide Vocational Expert service with offices in NJ, NY, FL, TX, CT, and CA. To see how OAS Life Care Planners and Vocational Experts can assist you in documenting the damages in your Personal Injury cases, consult or call 800-292-1919 for a proposal containing the expert’s professional qualifications, fee schedule, and a sample report.