Court: United States District Court for the District of South Carolina, Charleston DivisionJurisdiction: FederalCase Name:Moore v. BPS Direct, LLCCitation: 2019 U.S. Dist. LEXIS 112320
The defendants argued the expert’s testimony was unreliable because it was speculative.
The court denied the defendants’ motion to exclude the expert’s testimony, finding the objections affected weight, not admissibility.
Fact
The plaintiff filed a product liability suit against the defendants. The plaintiff claimed he sustained injuries while using a product manufactured and sold by the defendants. He retained a vocational expert to offer testimony on the loss of vocation sustained by him due to the injury. The defendants moved to exclude the vocational expert’s testimony.
The Plaintiff’s Vocational Expert Witness
The vocational expert witness was certified as a Rehabilitation Counselor. She obtained a Bachelors in Secondary Education and a Masters in Rehabilitation Counseling. Additionally, the expert had experience testifying as a vocational expert in over a thousand administrative hearings regarding social security disability.
The defendants made two arguments against the inclusion of her testimony as a vocational expert. First, her testimony about the plaintiff needing to retain a replacement supervisor due to the effects of his injury was mere speculation. Second, she relied on a welding instructor working at a local technical college to calculate the likely hourly rate the supervisor would have charged. The defendants argued this reasoning rendered her testimony impermissible, as it was not based on reliable methodology.
Discussion
The court noted that the plaintiff’s vocational expert witness’s training, in conjunction with her knowledge, qualified her to opine. The court further observed how the vocational expert depended on medical records from the physician who treated the plaintiff. Furthermore, the vocational expert witness also used the plaintiff’s orthopedic surgeon’s evaluative report of the plaintiff’s physical capacities. The report listed specified limitations the plaintiff faced while walking, lifting, and standing.
The expert also relied on a commonly cited publication, the Dictionary of Occupational Titles. By using this publication, the expert determined what jobs would be available to the plaintiff considering his limitations. The court noted that “a vocational expert, relied on an interview and his review of several medical records in reaching his conclusions, and is not simply restating her own opinions. This testimony is relevant to establishing whether [plaintiff] can return to work, and, therefore, relevant to the damages she suffered,” citing Garrett v. Albright. The reference pointed out that courts have allowed vocational experts to testify when their reports were based on similar sources.
The court held that the vocational expert’s testimony was not speculative. The expert relied on medical reports to determine the portions of his work that would require a supervisor. Moreover, the expert opined on how that would reduce his earnings as he ran his own business. The court observed that the vocational expert depended on the plaintiff’s hourly rates. Furthermore, the expert relied on the Bureau of Labor’s rates and consulted the welding instructor. The defendants and their vocational experts’ objections regarding her methodology affected the weight of her testimony and not its admissibility.
Ruling
The court denied the defendants’ motion to exclude the testimony of the plaintiff’s vocational expert.
Key Takeaways for Experts
When it comes to product liability cases, it’s important to rely on medical documents when possible to create a reliable methodology. In this case, the defendants argued the expert’s testimony was purely speculative. However, the court disagreed because the vocational expert not only on medical records but also on a report about the plaintiff’s physical abilities. Before coming to a conclusion, you should look over medical records and reports to give an accurate and reliable opinion. By using several kinds of supporting material, such as industry publications and resources, the expert provides a comprehensive evaluation that considers all angles. This is a great way to make sure your expert testimony holds strong against challenges.
About the author
Zach Barreto
Zach Barreto is a distinguished professional in the legal industry, currently serving as the Senior Vice President of Research at the Expert Institute. With a deep understanding of a broad range of legal practice areas, Zach's expertise encompasses personal injury, medical malpractice, mass torts, defective products, and many other sectors. His skills are particularly evident in handling complex litigation matters, including high-profile cases like the Opioids litigation, NFL Concussion Litigation, California Wildfires, 3M earplugs, Elmiron, Transvaginal Mesh, NFL Concussion Litigation, Roundup, Camp Lejeune, Hernia Mesh, IVC filters, Paraquat, Paragard, Talcum Powder, Zantac, and many others.
Under his leadership, the Expert Institute’s research team has expanded impressively from a single member to a robust team of 100 professionals over the last decade. This growth reflects his ability to navigate the intricate and demanding landscape of legal research and expert recruitment effectively. Zach has been instrumental in working on nationally significant litigation matters, including cases involving pharmaceuticals, medical devices, toxic chemical exposure, and wrongful death, among others.
At the Expert Institute, Zach is responsible for managing all aspects of the research department and developing strategic institutional relationships. He plays a key role in equipping attorneys for success through expert consulting, case management, strategic research, and expert due diligence provided by the Institute’s cloud-based legal services platform, Expert iQ.
Educationally, Zach holds a Bachelor's degree in Political Science and European History from Vanderbilt University.
