Deposing & examining the labor market expert

AuthorTod F. Schleier
A. Use of Vocational Experts on Mitigation Issue
1. Defendant-Employer’s Perspective
§8:01 When and Why to Retain Vocational Expert
§8:02 Anticipated Testimony: Establish Plaintiff’s Failure to Mitigate
2. Plaintiff-Employee ’s Perspective
§8:03 As a Consulting Expert
§8:04 As a Testifying Expert Witness
[§8:05 Reserved]
B. Vocational Experts in ADA Cases
§8:06 Plaintiff Is “Disabled”
§8:07 Plaintiff Is Substantially Limited in Major Life Activity of Working
§8:08 Reasonable Accommodation
[§8:09 Reserved]
C. FRCP 35 Vocational Examinations
§8:10 Scope of Rule 35
§8:11 Employer’s Arguments Supporting Exam
§8:12 Plaintiff’s Arguments Opposing Exam
D. Admissibility of Vocational Expert Testimony
§8:13 Daubert Analysis Applies
§8:14 Grounds for Attack—Generally
§8:15 Challenge Expert’s Qualif‌ications
§8:16 Challenge Reliability of Opinion
[§§8:17 – 8:19 Reserved]
§8:20 Education/Training
§8:21 Work Experience
§8:22 Resources
§8:23 Sources of Information on This Case
§8:24 Document Review, Interviews, Testing
§8:25 Transferable Work Skills Analysis
§8:26 Labor Market Survey
§8:27 Job Search
§8:28 Additional Aspects of Case Preparation
§8:29 Disability Cases
§8:30 Damages
Deposing & Examining Employment Witnesses 8-2
§8:31 Opinion
[§§8:32 – 8:34 Reserved]
A. Mitigation
1. Direct Examination of Defendant’s Vocational Expert—Mitigation
§8:35 Key Facts
§8:36 Strategy
§8:37 Checklist
§8:38 Model Direct Examination
§8:38.1 Establish Expert ’s Credentials
§8:38.2 Establish First Contact With Counsel; Scope of Assignment
§8:38.3 Results of Expert ’s Analysis: Dozens of Jobs Available to Plaintiff
§8:38.4 Individual Factors (e.g., Pregnancy; Medical Condition)
no Barrier to Plaintiff’s Employment
[§8:39 Reserved]
2. Cross-Examination of Defendant’s Vocational Expert—Mitigation
§8:40 Key Facts
§8:41 Strategy
§8:42 Angles of Attack
§8:43 Model Cross-Examination
§8:43.1 Expert Has Testif‌ied for This Defendant Previously
§8:43.2 In All Preceding Cases, Expert Reached Same Conclusion:
Plaintiff Failed to Mitigate
§8:43.3 Expert ’s Opinion Only as Good as Information on Which It Is Based
§8:43.4 Effor ts to Find Other Work Affect Expert’s Mitigation Analysis
§8:43.5 Defendant Failed to Provide Expert With Information re:
Plaintiff’s Job Search Efforts
§8:43.6 Expert Knows Nothing About Plaintif f’s Job Search Efforts
§8:43.7 Expert Relied on Computer Program That Analyzed Data in a Vacuum
§8:43.8 Expert Did Not Follow Computerized Research With Field Research
§8:43.9 Expert Did Not Inter view Plaintiff or Review Discovery Documents
§8:43.10 Individualized Analysis Would Have Revealed Plaintiff Had Limited
Employment Opportunities
[§8:44 Reserved]
B. ADA Cases
1. Direct Examination Checklist—Plaintiff ’s Expert
§8:45 Preliminary Questions
§8:46 Knowledge of ADA
§8:47 Plaintiff Is Disabled under ADA
§8:48 Plaintiff’s Job; Reasonable Accommodation
§8:49 Plaintiff’s Ability to Work
[§8:50 Reserved]
2. Cross-Examination Checklist—Plaintiff’s Expert
§8:51 Plaintiff Is Not Disabled Under ADA
§8:52 Job Functions; Ability to Work
§8:53 Reasonable Accommodation
8-A Motion to Compel Rule 35 Vocational Examination
8-B Motion in Limine to Exclude Testimony of Labor Market Expert
8-C Defendant’s Motion in Limine to Exclude Opinion and Testimony of Plaintiff’s Labor Market Expert
8-D Plaintiff’s Opposition to Defendant’s Motion to Conduct Independent Vocational Rehabilitation Examinations
8-E Motion In Limine to Preclude Labor Market Testimony on Mitigation of Damages
8-F Plaintiff’s Motion for Partial Summary Judgment re: Mitigation of Damages and Motion to Disqualify
Defendants’ Expert under Daubert
8-G Response to Motion in Limine to Preclude Labor Market Testimony on Mitigation of Damages
8-H Plaintiff’s Daubert Motion to Exclude Defendant’s Labor Market Expert (Alternative Mitigation Issues)
8-3 Deposing & Examining the Labor Market Expert §8:01
“All wealth is the product of labor.” John Locke
“Temperance and labor are the two true physicians of man.” Jean Jacques Rousseau
“Employment is nature’s physician, and is essential to human happiness.” Galen
Labor market and vocational rehabilitation experts (“vocational experts”) provide testimony in a number
of different types of legal and administrative proceedings. Administrative Law Judges may use these experts
in hearings to determine whether an individual is entitled to disability benef‌its under the Social Security Act.
In workers’ compensation claims, vocational experts are used to determine if an individual can return to his
prior job or do any other type of work. Insurance companies that provide long-term disability benef‌its also
rely on vocational experts to assess the vocational issues involving their insureds.
Vocational experts are often called to testify in discrimination cases on issues related to the aff‌irmative
defense of mitigation of damages (e.g., did the plaintiff seek substantially equivalent employment). In cases
brought under the American with Disabilities Act, 42 U.S.C. §§12101 et seq., they are used to establish a
variety of necessary elements of a prima facie case (e.g., the threshold issue of whether the plaintiff is “dis-
abled”) or a defense (e.g., whether the plaintiff is able to perform the essential functions of a particular job).
These experts also can testify regarding transferability of job skills. This chapter will analyze the decisions of
various courts when a defendant requests that a plaintiff submit to an evaluation by a vocational expert under
Rule 35 of the Federal Rules of Civil Procedure. A sample Motion to Compel Rule 35 Examination is included.
See Form 8-A. Then, using the guiding principles of Daubert, some of the more frequently raised arguments
and objections to vocational experts’ testimony will be examined. A sample Motion in Limine to exclude the
opinions of a labor market expert is included. See Form 8-B. The remainder of the chapter contains pattern
deposition, direct examination and cross-examination questions to ask the vocational expert during deposition
or trial. Practical strategies, examples, tactics, and tips for successfully working with and against vocational
experts and their testimony are discussed throughout the chapter.
A. Use of Vocational Experts on Mitigation Issue
1. Defendant-Employer’s Perspective
§8:01 When and Why to Retain Vocational Expert
Ιν εµπλοψµεντ δισχριµινατιον λιτιγατιον, τηε παρτιεσ οφτεν ωιλλ ρελψ υπον ϖοχατιοναλ εξπερτσ το εσταβλιση ορ ρεβυτ τηε
αππεαρ το βε αυτηοριτατιϖε το τηε ϕυρψ, α ϖοχατιοναλ εξπερτ µαψ λενδ συβσταντιαλ συππορτ ανδ χρεδενχε το τηε δεφενσε αργυ
No established set of credentials for vocational expert.
A “vocational expert” may take many forms. Certif‌ied rehabilitation counselors, certif‌ied vocational evaluators
and members of organizations such as the American Board of Vocational Experts all might be qualif‌ied to provide
vocational expert testimony in employment litigation. Although the educational background of these experts will
vary, many have educational and experiential backgrounds in counseling, psychology and social work.

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