Summary: Vocational Evaluation & Rehabilitation Expert Witness allowed to testify despite the defendant’s assertion that he did not explain how he reached his conclusions about pre-injury earning capacity.
Facts: This case (Kinnerson v. Arena Offshore L P et al – United States District Court – Western District of Louisiana – June 21st, 2019) involves a personal injury claim. The plaintiff alleges that he sustained injuries while being transferred by a crane in a personal basket and that the basket violently struck a railing. The plaintiff has hired Glenn Hebert, a Vocational Evaluation & Rehabilitation Expert Witness to provide testimony. The defendant has filed a motion to exclude this expert from testifying.
Discussion: The defendants argue that Hebert doesn’t explain how he reached his conclusion about the plaintiff’s pre-injury earning capacity. Hebert calculated the plaintiff’s pre-injury earning capacity based on the earnings of a Level III tester when plaintiff was only a Level II tester. The defendants claim that Hebert’s opinions and conclusions are based on information gathered from websites that could not be verified.
In addition, the defendants argue that Hebert did not consider or review the plaintiff’s IRS or Social Security earnings records when making his conclusions.
Also, according to the defendants, Hebert did not follow the specific, four step method for determining wage loss, set forth in caselaw.
The plaintiff alleges that Hebert’s opinions should not be excluded because he used explanations and facts to back up his conclusions.
Also, Hebert explains that he utilized a Level III tester’s income because “Chapter 6 of A Guide to Rehabilitation indicates that when someone is under the age of 30 at the onset of their disability, they have not yet reached their earning capacity.”
Thus, the plaintiff’s loss of earning capacity ‘must be measured based on Plaintiff’s potential to earn and not Plaintiff’s actual pre-injury earnings,” Hebert argues.
The court opines that it will deny the defendants’ motion to exclude Hebert’s report. The court notes that Hebert cite to multiple treatises which govern his profession as well as government data in his report.
In addition, the court notes that Hebert cites to factually substantial sources, but he does explain in detail how he comes to his conclusions using these resources.
Thus, the court opines that Hebert’s opinions will be allowed.
Conclusion: The motion to exclude the expert witness opinions of Glenn Hebert is denied.