Vocational Disability Expert Witness Testimony Excluded as Outside of Medical Expertise

 

In Ashford v. Wal-Mart Stores, LP the US District Court for the Southern District of Mississippi has ruled that a neurosurgeon expert witness was not qualified to testify about a plaintiff’s occupational opportunities. The Court reasoned that:

 

It is not apparent that Dr. McCloskey’s experience as a neurosurgeon qualifies him to make Social Security and workers’ compensation disability benefit determinations. It is even less apparent that his medical expertise qualifies him to opine that Ms. Ashford is totally and permanently unemployable based on factors such as her age, weight, educational background, and the economy. Dr. McCloskey’s opinions in this regard “simply lack[ ] the foundation and reliability necessary to support expert testimony.” Viterbo v. Dow Chem. Co., 826 F.2d 420, 424 (5th Cir.1987). “Without more than credentials and a subjective opinion, an expert’s testimony that ‘it is so’ is not admissible.” Id. Dr. McCloskey’s conclusion that Ms. Ashford is permanently and totally unemployable does not comport with the reliability requirements of Fed.R.Evid. 702, and should be excluded as impermissible ipse dixit testimony. Kumho, 526 U.S. at 157. For the same reason, Dr. McCloskey’s opinion that Ms. Ashford will likely be awarded permanent total Social Security disability benefits but not permanent total workers’ compensation disability benefits should also be excluded.

 

III. CONCLUSION

 

Plaintiffs have not proven by a preponderance of the evidence that Dr. McCloskey’s opinion that Ms. Ashford is permanently and totally unemployable meets the reliability requirements of Fed.R.Evid. 702. They have also not proven by a preponderance of the evidence that Dr. McCloskey’s opinion that Ms. Ashford will likely be awarded permanent total Social Security disability benefits but not permanent total workers’ compensation disability benefits is reliable. Dr. McCloskey’s opinions, in this regard, should be excluded at trial.