In the past Vocational Expert Testimony as based on Frye however that changed in 1993. Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786, 2795 (1993), the United States Supreme Court held that the Federal Rules of Evidence superseded Frye and provided the standard for admitting expert scientific testimony. Among others, the Supreme Court referenced Rule 702 of the Federal Rules of Evidence, which requires scientific expert testimony to be reliable (based on scientific knowledge, methods and procedures) and relevant (testimony which will assist the Trier of Fact).
Specifically, under Daubert, a judge will consider:
A. The expert’s qualifications.
B. Reliability and scientific validity of the expert theories and methodologies. This involves modification of the Frye test of general acceptance in the scientific community to include the application of factors discussed or implied in Daubert, including, but not limited to:
1. The extent to which theories, methods and procedures used by the experts have been, or can be, tested.
2. Whether the theories, methods and procedures have been subjected to peer review or publication.
3. The potential error rate (frequency of erroneous results).
4. The existence and maintenance of Standards.
5. Whether expert theories, methods, procedures and instrumentation have been generally accepted by the relevant scientific community.
Admissibility of Vocational Expert Testimony- Daubert/ Kumho
The attorney should take steps to ensure that the vocational expert is qualified to testify and that his or her opinions are admissible. To be qualified to testify, the vocational expert should possess knowledge or experience beyond the common
knowledge of the fact-finder but need not have an academic or scientific background. Although the trial court has wide discretion to admit or exclude an expert, in some instances, the trial court’s refusal to qualify an expert has been held erroneous as a matter of law.The court may preclude testimony where the vocational expert seeks to testify outside established areas of expertise or where the substance of the expert’s testimony is a matter of dispute within the expert’s field.In Commonwealth v. Lanigan, 419 Mass. 15, 26, 641 N.E.2d 1342, 1349 (1994), the Supreme Judicial Court accepted “the basic reasoning” of the United States Supreme Court’s opinion inDaubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Both of these opinions indicate that the trial judge has a “gatekeeper” role to preclude expert testimony when “the process or theory underlying a scientific expert’s opinion lacks reliability.”Lanigan, 419 Mass. at 25-26. In federal court, this rule has not been restricted to “scientific” experts. Kumho Tire Co. v. Carmichael, — U.S. — (1999). In determining “reliability” the court may consider whether the community of scientists in the field generally accepts the theory or practice underlying the expert’s opinion, but even if the general acceptance test is not satisfied, the opinion may be admitted if the underlying theory or practice is reliable, or if it can be or has been tested or has been subjected to peer review or publication.
A vocational expert once qualified, the court may still exclude the expert’s testimony because an improper foundation has been laid to support her testimony. The Supreme Judicial Court has refused to adopt the approach to foundation evidence suggested in proposed Mass. R. Evid. 703 that the expert be allowed to testify on the basis of those sources “reasonably relied upon by those in the field.”Instead, the court has permitted an expert “to base an opinion on facts or data not in evidence if the facts or data are independently admissible and are a permissible basis for an expert to consider in formulating an opinion.” A voir dire may be used to determine whether the underlying facts are admissible and are of the sort that experts in the field reasonably rely on in forming opinions.
Counsel should consider whether the proposed foundation evidence is properly admissible. If the vocational expert is asked
to testify on the basis of hypothetical questions, the assumption must be supported by independently admissible evidence. An adverse party should object to a hypothetical question that is based on unsupported assumptions, and should use cross-examination to question the expert as to the impact of material facts that were omitted from the hypothetical questions that were asked during direct examination.
Vocational Expert Job Search Software – Daubert-
One general expectation is that the instruments used by vocational experts to assess disabilities and predict their consequence will need to be reliable (provide consistent results) and valid (measure what it is expected to measure) and have known acceptable error estimates (accuracy of predictions).
Vocational Experts are using a lot more Job Search Software programs represent trait-factor job-person matching systems. Their main task is accomplished through the use of the specialized database management system that stores and retrieves information. Employability search inputs for specific client include past relevant work history and a Worker Qualifications Profile. Outputs typically include potential job title matches, transferable skills, expected earning capacity/wage potential and links to lists of likely employers.