Anthony M. Gamboa, Jr. of Vocational Econometrics Inc. (VEI) has produced a new edition of his New Worklife Expectancy Tables (the Tables), which purport to show, using statistical averages, how much work loss an injury will cause over the injured person’s lifetime. The Tables are used almost exclusively by plaintiffs to establish damages, especially plaintiffs who have been injured and expect to return to work, or who have missed no work at all at the time of trial.
Previous editions of the Tables have been vehemently criticized as unreliable. Several critics have published exhaustive analyses concluding, convincingly, that previous Tables fail numerous tests of reliability (see, for example, Skoog, Gary R., and David Toppino, “Disability and the New Worklife Expectancy Tables From Vocational Econometrics, 1998: A Critical Analysis,” Journal of Forensic Economics, 1999 12 (3), 239-254).
Perhaps the most compelling criticism of the Tables centers on the fact that the data on which the tables are based are not appropriate for measurement of disabled worklife. Those data are derived from the Current Population Survey (CPS). The CPS, produced by the Bureau of Labor Statistics and the Bureau of the Census, is a monthly survey of U.S. households. It measures various labor-force characteristics such as employment, earnings and work hours. Its primary purpose is to help legislatures and government agencies formulate and evaluate policies and programs.
Now, however, VEI claims that the 2006 edition of the Tables incorporates new data from the Census Bureau’s American Community Survey (ACS) and that these new data “help experts present a more accurate analysis.” (Berla, Edward P., Donald E. Missun, David S. Gibson, “Critiquing Vocational Reports,” Trial, February 2006 42(2))
Indeed, the ACS, unlike the CPS, considers several areas specific to disability and time missed from the workforce. VEI’s inclusion of this data from the ACS does not, however, remedy the problems critics have noted with previous editions of the Tables. While the ACS asks more specific questions regarding disability, the survey still fails to capture data that are useful in accurately assessing lost worklife of people who have been injured.
Below are some of the reasons the new Tables are vulnerable to a challenge, notwithstanding new data from the ACS:
The ACS, like the CPS, is a cross-sectional survey. It simply provides a “snapshot” of the survey population in a particular year. The experiences of participants are not tracked over time. Therefore, the ACS does not capture those who might be considered disabled who lost some amount of work for whatever reason but subsequently returned to the workforce (the specific population that the Tables purportedly measure), or those who missed no work but may or may not miss work in the future. Neither the CPS data nor the ACS data capture any changes in condition.
The Tables tacitly assume that any disability the plaintiff might suffer is the direct result of the tort at issue and that the disability is permanent. The Tables fail to account for any disability that might have been present prior to the tort at issue. Similarly, the Tables ignore the possibility that the plaintiff may suffer a future injury unrelated to the tort.
The ACS, like the CPS, relies on self-reporting of a disability. Respondents themselves report whether or not they are “disabled.” Self reporting is a notoriously unreliable method of gathering data on disability. (See Bound, John, “Self Reported Versus Objective Measures of Health and Retirement,” Journal of Human Resources 26(1) pp. 106-138)
The ACS considers only broad categories of physical and mental problems, not specific, sharply defined conditions. Respondents are asked if they experience 1) blindness, deafness, severe hearing or sight impairment; 2) limitations on basic physical activities such as walking, climbing stairs, reaching lifting or carrying; 3) difficulty learning, remembering or concentrating due to a disability lasting six months or more; or 4) difficulty dressing, bathing or getting around inside the home due to a disability lasting six months or more.
“Work” in the ACS is vaguely defined. Specific job requirements are not considered.
The 2006 edition, like previous editions, encourages users to “mold” estimates of lost worklife, subjectively, to “fit” the particular plaintiff’s “degree of disability.” As many critics have noted, this allows for any interpretation of lost worklife the user desires.
HOW THE TABLES ARE APPLIED
Testimony based on the New Worklife Expectancy Tables can add a substantial amount to an economic loss claim. They often are used where the plaintiff has missed little or no work due to the injury caused by the alleged tort. Loss is calculated as a simple function of time lost from the workplace. Assume that the plaintiff is a 38-year-old retail manager making $40,000 per year prior to the tort, a slip-and-fall requiring knee surgery. The 1998 edition of the Tables indicates that 1) the average non-disabled 38-year-old male with 12 years of education will work 21.8 more years and 2) the average “not-severely-disabled” 38-year-old male with 12 years of education has a worklife expectancy of 15.9 years. The difference is 5.9 years, so the loss would be calculated as 5.9 x $40,000, or $236,000.
The Tables’ author suggests that a vocational specialist using the Tables as a basis for testimony make a subjective assessment as to exactly where on a “continuum” of disability the particular plaintiff’s disabilities might fall (perhaps halfway between “severely disabled” and “not severely disabled”), then adjust the loss claim accordingly. As one critic of the Tables has observed, “This kind of vocational assessment becomes little more than an informed ‘gut feeling.'” (Corcionne, Frank P. Book Review: New Worklife Tables, Revised 1995 Journal of Forensic Economics, 8(3) 1996, p. 342.)
RESPONDING TO TESTIMONY
Many courts have rejected testimony based on the Tables as unreliable, but the testimony has been allowed by many other courts. One court that did reject the testimony on the basis that the Tables were unreliable was the Supreme Court of Nebraska in Phillips v. Industrial Machine, 257 Neb. 265; 597 N.W.2d 377 (1999).
In this case, the trial court had accepted testimony from a vocational specialist on the worklife expectancy of a woman who had not been determined to be disabled by any medical specialists. The only indication of “disability” was a determination by one medical specialist that the plaintiff’s cervical sprain injury was chronic. There was no medical determination that the injury restricted the plaintiff’s ability to work. Nevertheless, the vocational specialist, using the Tables, determined that the plaintiff’s worklife expectancy was to age 38.9, while a healthy person in the plaintiff’s age, sex and educational cohort could expect a statistical worklife to age 54.2.
The trial court, granting a defense motion for a new trial, concluded that the vocational specialist was not qualified to render what amounted to expert medical testimony. The trial court also noted that the broad definition of “disability” in the Tables rendered the vocational specialist’s conclusions valueless to the jury.
The Nebraska Supreme Court upheld that lower court’s rejection of the testimony, noting that a person with a permanent medical condition is not necessarily disabled, and that the vocational specialist was not qualified to make that assertion. The court also noted that the New Worklife Expectancy Tables do not distinguish between minor and more serious disabilities, nor do they take into consideration whether such disability affects an individual’s ability to work.
A concurring opinion in this case includes a wide-ranging analysis of admissibility standards for expert testimony. The concurring opinion held that the testimony as to worklife lacks validity required under Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) and Nebraska law.
“The Tables measure and average together the experiences of individuals within a tremendously diverse range of occupations and injuries such that, for statistical purposes, a police officer with a broken arm is equivalent to an attorney who develops a hearing impairment, who is in turn equivalent to a surgeon who becomes paraplegic. The flaw in this methodology is apparent. The degree of an individual’s unique disability obviously has an effect on how long that individual will remain in the work force… A statistical average of such a broad range of disabilities, applied to an equally broad range of occupations, renders the result almost meaningless when attempting to determine what effect a disability will have on an individual person under particular circumstances,” the concurring opinion notes.
A motion in limine to have testimony based on the Tables barred or impeached should be successful if the motion stresses the unreliable nature of the underlying data on which the Tables are based. It would also help to point out to the court that, problems with data aside, the Tables’ methodology suffers from significant conceptual shortcomings. These include:
Inappropriate, irrelevant basis on which to determine loss. The average of all disabled persons has little or nothing to do with a particular individual with a particular injury, or even the population of individuals with a specific disability.
Subjectivity. The consultant determines, after examining the plaintiff or not, where on the spectrum of disability the plaintiff falls — severe or not severe — without supplying any objective rationale for what is a quantitative assessment.
Blanket assumptions. The methodology assumes that any injury will result in lost worklife.
A careful, accurate and clear presentation of the problems inherent in the Tables, focusing on their reliance on inappropriate data and the conceptual shortcomings of the Tables, should convince a court that the Tables are insufficiently reliable as a basis for damages testimony.
This article is reprinted, with permission, from the August 2006 edition of Medical Malpractice Law & Strategy, Copyright © 2006 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.