Vocational Rehabilitation Expert Testimony Excluded For Lacking Basis In Industry-Specific Data

    Vocational Rehabilitation Expert

    Court: United States District Court for the Eastern District of Virginia, Alexandria Division
    Jurisdiction: Federal
    Case Name: Antekeier v. Lab. Corp. of Am.
    Citation: 2018 U.S. Dist. LEXIS 158130

    In this wrongful termination case, the plaintiff retained a vocational rehabilitation expert to opine on how long the plaintiff could expect to be unemployed. The vocational rehabilitation expert calculated an estimated timeframe based on average national employment statistics. However, the expert failed to reference any data particular to the plaintiff’s industry and skill set in his calculations. Thus, the court ruled that the expert’s testimony was inadmissible under Daubert.


    The plaintiff, a former salesperson for the defendant, Laboratory Corporation of America, took two periods of Family and Medical Leave Act (FMLA). The plaintiff took her first period of leave after having sinus surgery, and took a subsequent period after collapsing due to a brain aneurysm. According to the plaintiff, the defendant illegally interfered with her leave by contacting her for work-related requests. The plaintiff also claimed that her employer terminated her in retaliation for taking FMLA leave. The motion before the court was whether or not to exclude the testimony of the plaintiff’s vocational rehabilitation expert.

    The Expert

    The plaintiff retained an vocational rehabilitation expert with both a Ph.D. and a CRC. The vocational rehabilitation expert opined that it would take the plaintiff approximately 12-18 months to be rehired in a comparable position. This estimate was based on the expert’s calculation that the annual job turnover rate is equal to about 10% and that an additional 5% can be attributed to retirements. Thus, the expert opined, 2-3 job openings would open up per week in the plaintiff’s industry that required her specific qualifications.

    The Danger Of Assumption

    The defendant argued that the expert’s opinion was nothing more than an assumption and was not based on sufficient facts or data as required by Rule 702 of the Federal  Rules of Evidence and Daubert. The defendant pointed out that the vocational rehabilitation expert did not cite any data related to the specific turnover rate for sales management jobs in support of his conclusion. The expert stated that he relied entirely on his professional judgement in order to render his opinion as there was no data on turnover rates in the plaintiff’s specific industry.


    The court concluded that an expert’s professional judgment, standing alone and without any supporting facts or data, was insufficient to support opinion testimony. The expert himself admitted reliable data or facts regarding turnover rates in the plaintiff’s industry did not exist. Thus, it was deemed that his conclusions about how long it would take the plaintiff to be rehired were nothing more than unsupported speculation. Accordingly, defendant’s motion in limine to exclude Bussey’s opinions about plaintiff’s vocational rehabilitation and damages was granted.

    What We Can Learn From This Case

    Even career experts must ensure that their opinions are formed based on reliable data and methodologies. When it comes to expert witness conclusions, an expert’s career-long experience is not enough to justify speculation and professional judgment.