Plaintiffs’ lawyers sometimes try to prove the loss of future earning capacity through the testimony of a treating physician. A recent decision from a federal court in the Eastern District of Pennsylvania illustrates the risk that lawyers take when they fail to retain a vocational expert to provide opinions about an injury victim’s vocational prospects.
Facts of the Case
Jennifer Diawara was on a family vacation with her husband and children. A Postal Service truck crashed into the rear of their van while they were stopped at a red light in Missouri. There was no dispute that the Postal Service driver was negligent.
Ms. Diawara was taken to the hospital for treatment of back and shoulder pain. She was given medication and a splint for her arm. The family then continued on its vacation. While they were in Florida, Ms. Diawara obtained additional treatment for her shoulder pain at an urgent care center.
Ms. Diawara’s ability to move her shoulder was limited. Ms. Diawara obtained a medical examination after her family returned to Pennsylvania. About six months after the accident, Ms. Diawara had rotator cuff surgery. She was unable to work for about two months while she recovered from the surgery. When she returned to work, she divided her time between working in the office and working from home.
During the next two years, Ms. Diawara was treated by orthopedic surgeons, neurologists, primary care physicians, and pain management physicians. She worked for part of that time but began a short-term disability leave about 17 months after her rotator cuff surgery. A month later, her employer decided that it could no longer accommodate her disability and ended her employment.
Ms. Diawara had a cervical fusion. She applied for Social Security Disability Insurance benefits. Almost four years after the collision, the Social Security Administration determined that she was occupationally disabled. Her prognosis is that she will never work again.
Ms. Diawara made an administrative claim against the Postal Service. When that claim was denied, she sued the United States pursuant to the Federal Tort Claims Act. When she first filed her claim, she asked for $850,000 in damages. Before the case went to trial, she amended her claim to request damages of $2,850,000.
Challenge to Vocational Testimony
Ms. Diawara did not retain a vocational expert or provide a vocational expert report. She instead elected to present vocational testimony through her treating neurologist. The government moved to strike her neurologist’s expert report to the extent that it departed from opinions related to neurology.
The government argued that “vocational rehabilitation determinations should be left to vocational rehabilitation experts, who typically require a specialized education and skillset.” While the government did not dispute that the neurologist was qualified to diagnose Ms. Diawara’s neurological limitations, it argued that a neurologist cannot determine how those limitations impact her employability. The government supported its argument with the decision of a Pennsylvania Court of Common Pleas judge who permitted the same neurologist to offer expert opinions about injuries and physical limitations in a different car accident case but precluded him from testifying as a vocational expert.
Ms. Diawara responded that the neurologist was qualified to testify that Ms. Diawara is permanently disabled from employment. The court rejected that argument because the neurologist’s opinion about employability was “speculative and beyond the scope of his specialized knowledge.”
The speculative nature of the neurologist’s opinion was revealed by answers that he gave in his deposition. The neurologist testified that Ms. Diawara’s pain “inhibits her ability to work as a very high-level person as a business analysist. I could imagine it’s very high-level employment that requires her to be alert and not distracted from her pain.” An expert should not “imagine” that facts are true; an expert should investigate the facts and determine whether they are true or not.
Similarly, the neurologist testified that he “can’t imagine that she would not have to sustain greater than 15 minutes [sitting] at a time in that job.” According to the court, the neurologist “did not present any experience or expertise to support his conclusions about the various demands of Mrs. Diawara’s employment.”
The court agreed that Ms. Diawara’s neurologist was qualified to provide expert testimony “related to her neurological treatment, neurological injuries, and any ways in which those neurological injuries cause her various limitations.” However, the court concluded that the neurologist was not qualified “to offer an opinion on how those neurological symptoms or limitations impact her employability.” The court therefore declined to permit the neurologist’s testimony about Ms. Diawara’s employability or “vocational prospects.”
How a Vocational Expert Would Have Made a Difference
While the neurologist was not qualified to testify about Ms. Diawara’s prospects for future employment, the court recognized that the opinions he gave “are of the sort that should be left to the judgment of a vocational expert.” The court cited precedent from a federal court in Pennsylvania that allowed a vocational expert to testify about the plaintiff’s vocational prospects.
Ms. Diawara’s case illustrates why lawyers should not count on medical experts to provide vocational testimony. Medical experts certainly have a role in proving the loss of future earning capacity. A medical expert can testify about physical or mental limitations that a plaintiff will likely endure in the future. The neurologist’s opinion about how long Ms. Diawara can sit without pain, or how long Ms. Diawara would be able to concentrate before pain impaired her ability to think, are well within the bounds of a medical expert’s opinion.
A vocational expert builds upon medical testimony. While the neurologist could only speculate about whether Ms. Diawara could perform her job in light of her physical limitations, a vocational expert would investigate the requirements of her job and would determine whether she could perform the work in light of her physical limitations. A vocational expert would also determine whether jobs existed in the marketplace that Ms. Diawara could perform and, if so, how wages in those jobs compared to her earnings history.
Vocational experts do not testify that they “imagine” certain facts to be true. Vocational experts use their training and experience to conduct the research needed to testify about facts that support their opinions. As Ms. Diawara’s case illustrates, trying to prove the loss of earning capacity without using a vocational expert is not likely to be met with success.