Vocational Economics Inc.
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Case Bibliography


From Daubert to some more obscure court decisions, these opinions provide guidance on expert testimony and application of techniques critical in the determination of lifetime earnings.  Links to decisions or other case information have been provided when possible.  Cases are categorized as follows:

  • Admission of Expert Testimony - Provides some decisions giving guidance on the proper standard for the admission of expert testimony.  

  • Worklife Expectancy - These decisions specifically address use of The New Worklife Expectancy Tables in determining loss of lifetime earnings.  

  • Other Economic Methodology - These decisions address broader issues related to the determination of lost earnings.  

  • Other - Other decisions relevant to vocational economic testimony.  

Admission of Expert Testimony

Daubert v. Merrell Dow Pharmaceuticals, Inc. (509 U.S. 579, 113 S.Ct. 2876; 1993; US Supreme Court)

In this decision, the Supreme court held that the "general acceptance" doctrine for admission of expert testimony established in Frye (below) had been superseded by the Federal Rules of Evidence in 1975.  As such, the burden for determining the acceptability of the testimony shifted from the expert's peers to the trial judge as the "gatekeeper."  A two-pronged test of relevance and reliability was identified, and the judge is given flexible guidelines for determining whether or not the principles and methodology (not the conclusions) behind the expert testimony is reliable.  These include whether or not the theory or technique 1) can be or has been tested, 2) has been subjected to peer review, 3) has a known error rate and standards controlling its operation, and 4) has been generally accepted within the relevant scientific community.  

Frye v. United States (54 App. D.C. 46, 47, 293 F. 1013, 1014; 1923; Court of Appeals D.C. Circuit)

This decision established that, for expert testimony to be allowable, it must be generally accepted by the relevant scientific community.  As determined in Daubert (above), it was superseded by the Federal Rules of Evidence in 1975.

General Electric Company, et al. v. Robert K. Joiner (522 U.S. 136; 1997; US Supreme Court)

This decision affirmed that the trial judge is to act as the gatekeeper for admission of expert testimony, and that for this decision to be overturned on appeal, abuse of discretion must exist.  Appellate courts are not to otherwise reevaluate the trial judge's decision.

Kumho Tire Company, Ltd., v. Patrick Carmichael (526 U.S. 137; 1999; US Supreme Court) 

This decision confirms that the Federal Rules of Evidence as interpreted in the Daubert decision apply to all expert testimony - not just scientific.  As stated in Daubert, the reliability guidelines were intended as flexible, and capable of being adjusted on a case-by-case basis.

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Worklife Expectancy

Elcock v. Kmart Corporation (No. 98-7472; Court of Appeals for the Third Circuit)

This case is erroneously noted as one that disallows use of The New Worklife Expectancy Tables, when, in fact, it does not mention them.  The decision notes that Daubert hearings are the proper method of determining the admissibility of expert testimony and remands the case back to the trial court.  

Hough-Scoma v. Wal-Mart (99-7518 (L), 99-7592 (XAP); 96-CV-707(S); 1999; Court of Appeals for the Second Circuit; District Court for the Western District of New York)

This decision disallowed use of The New Worklife Expectancy Tables by the expert witness.  An insufficient foundation was laid for inclusion of The Tables, and there was inadequate medical evidence for supporting a claim of future lost wages.  

Michels v. USA (No. 4-91-CV-30096; 1993; District Court, S.D. Iowa, C.D.)

This decision disallowed use of The New Worklife Expectancy Tables by the expert witness.  In this case, there was no support from the rehabilitation expert for the economist's determination of a reduced worklife expectancy.  The court objected The Tables because the edition used was published before passage of the Americans with Disabilities Act.  In addition, the court misunderstood the Census Bureau's definition of work disability used in The Tables.  

Nilavar v. Osborn (C.A. No. 99-CA-53, T.C. No 96-CV-0343; 2000; Court of Appeals of Ohio, Second District, Clark County Ohio)

In this case, the court determined that The New Worklife Expectancy Tables were relevant and able to assist the trier of fact in determining the plaintiff's loss.  It further concluded as reasonable the trial court's finding that the expert used the tables in a manner consistent with the theory behind them and "in a manner likely to yield an accurate result."  

Phillips v. Industrial Machine (No. S-97-1263. 597 N.W.2d 377; 257 Neb. 256; 1999; Supreme Court of Nebraska)

This decision disallowed use of The New Worklife Expectancy Tables by the expert witness.  In this case, there was inadequate medical evidence for a determination of work disability.  The court also objected to the broad definition of work disability used by the expert in determining post-injury worklife expectancy.  

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Other Economic Methodology

Garland v. Rossknecht (2001 SD 42; 2001; South Dakota Supreme Court)

This case involves the calculation of lost earnings for a man injured in a vehicular accident.  The SD Supreme Court decided that the abuse of discretion standard held and that the expert should not have been allowed to testify.  The economic expert developed a reduced worklife based upon an interview with the plaintiff, with no statistical support (such as the CPS data used to develop The New Worklife Expectancy Tables).  His opinion was determined to be unreliable as he did not have the proper foundation to make such an adjustment.

Jones and Laughlin Steel Corporation v. Howard E. Pfeifer (462 U.S. 523; 1983; US Supreme Court)

This decision discusses the methodology for determining damages in federal court.  It also notes that since it is impossible to predict a future loss with complete confidence, the award must be a "rough and ready" estimate of lost earnings.  

O'Shea v. Riverway Towing Company (No. 81-1924; 1982; Court of Appeals for the Seventh Circuit)

This decision addresses the proper method of determining the lost earnings of the plaintiff.  As part of the decision, the court notes that the probability of employment by year should be considered.  The court also notes that the economic testimony should avoid the illusion of "delusive exactness."  

Schieber v. City of Philadelphia (No. 98-5648; 2000; U.S. District Court for the Eastern Division of Pennsylvania)

This decision addresses the calculation of lost earnings following the death of a 23-year-old woman.  Among other issues, the defendant objected to examination of possible earnings by the plaintiff at the age of 81.  The court decided that, since the LPE method used by the economic expert accounts for a very low probability of participating in the work force at age 81, that the expert would be allowed to testify on this issue.  

Trevino v. U.S.  (804 F.2d 1512; US Court of Appeals for the Ninth Circuit; 1987)

This decision supports consistency in tax calculations; if taxes are considered for earnings, they must also be considered for interest earned from investment of the award.  It also supports use of "best and safest investments" and use of long historical periods for estimating future rates.

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Other

Toyota Motor Manufacturing, Kentucky v. Williams (No 001089; 534 U.S. ____; 2002; US Supreme Court)

In this decision, the court determined that the plaintiff did not meet the definition of disability as defined in the Americans with Disabilities Act because her disability, while affecting her ability to perform some job-related tasks, did not affect her ability to perform other manual tasks that are of "central importance to most people's daily lives," such as personal hygiene.  

 

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