ESTABLISHING A FORMAL TRAINING PROGRAM TO PREPARE REHABILITATION COUNSELORS FOR EXPERT TESTIMONY DISSERTATION

Transcription

1 ESTABLISHING A FORMAL TRAINING PROGRAM TO PREPARE REHABILITATION COUNSELORS FOR EXPERT TESTIMONY DISSERTATION Presented in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy in the Graduate School of The Ohio State University By Craig Johnston ***** The Ohio State University 2005 Dissertation Committee: Professor Bruce Growick, Adviser Professor Michael Klein Professor Gerald Kosicki Approved by: College of Education

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3 ABSTRACT Vocational experts are increasingly being called upon to provide testimony in a variety of legal arenas. To ensure that experts possess appropriate qualifications and apply valid and reliable methodologies, courts have introduced strict standards to prevent incompetent professionals from testifying on forensic matters. Despite the recent growth of the field, no formal training program exists that is designed to prepare individuals for providing vocational testimony. Further, no universally accepted certification exists specifically for vocational witnesses which attest to their attained status as an expert in the field. Professionals in the field of vocational testimony were surveyed to assess the need for formal training and certification. Four primary questions were posed to identify the need for training, the content to be included, the means of disseminating training, and whether certification should be required of the field. Results indicate that a training program is indeed desired, with a variety of topics offered through a blend of on-site and web-based instruction. It was further found that certification remains a controversial topic, with mixed support for the creation of a valid certification process, currently seen as lacking in the field. This dissertation makes recommendations for the creation of a formal training program and certification process for professionals testifying on vocational matters in a court of law. ii

4 To my wife and children, my inspiration iii

5 ACKNOWLEDGMENTS I wish to thank my adviser, Bruce Growick, for his guidance and encouragement throughout the doctoral program, and for his continuing support in my professional career. I thank Gerald Kosicki and Michael Klein for their participation on my doctoral committee, and for their time and valuable recommendations that made the completion of this project possible. I am grateful to James Surles of Texas Tech University for analyzing my data, and helping me to comprehend the statistical portion of this dissertation. I also wish to thank Vince Fell of Texas Tech University Health Sciences Center, who provided computer support allowing me to distribute the electronic survey instrument and collect data from participants. Finally, I would like to thank my family and friends, whose words of encouragement kept me going through hard times. iv

6 VITA Bachelor of Arts, Psychology Bowling Green State University Masters in Rehabilitation Counseling Bowling Green State University 2000-present..Doctoral Candidate for the Degree of Philosophy The Ohio State University Graduate Teaching and Research Associate The Ohio State University 2001-present..Vocational Expert Johnston Vocational Consulting 2004-present. Assistant Professor, Department of Rehabilitation Counseling, Texas Tech University PUBLICATIONS 1. Johnston, C. S., & Klein, M. A. (2002). Ethical dilemmas for the vocational expert: pathways to resolution. Journal of Forensic Vocational Analysis, 4 (1), Johnston, C. S., & Growick, B. S. (June 17, 2002). Using vocational experts in employment bias cases. Ohio Lawyers Weekly Growick, B. S., & Johnston, C. J. (2002). Reaction to Caragonne s The concept of peer review: purpose, use and standards. In Field, T. F. & Stein, D. B. (Eds.), Scientific vs. non-scientific and related issues of admissibility of testimony by rehabilitation consultants. (87-89). Athens, GA: Elliott & Fitzpatrick. 4. Johnston, C. S., & Growick, B. S. (2003). Utilizing vocational experts in employment discrimination cases. Journal of Forensic Vocational Analysis, 6(1), Johnston, C. S. (December 9, 2002). The vocational expert in workers compensation litigation. Ohio Lawyers Weekly. v

7 6. Johnston, C. S. (July/August/September 2003). Vocational Experts and Standards of Admissibility: Evaluating Loss of Earnings Capacity. The Rehabilitation Professional, 11(3), Johnston, C.S., & Growick, B.S. (2003). The use of vocational experts by the Ohio Industrial Commission: Building a better employability assessment. Journal of Forensic Vocational Analysis, 6(2), Major Field: Education FIELDS OF STUDY vi

8 TABLE OF CONTENTS Page Abstract.ii Dedication.iii Acknowledgments iv Vita...v List of Tables ix Chapters 1. Introduction Significance of the Study Purpose of the Study Literature Review Evolution of Vocational Expert Testimony Qualifications & Methodology under Daubert The Various Legal Arenas Critical Skills Areas The Current State of Certification and Training Distance Education in Institutions of Higher Learning Methods Research Design Procedure Data Collection Data Analysis Results Demographic Information Statistical Analysis Research Hypothesis Research Hypothesis Research Hypothesis Research Hypothesis Combining the Questions 100 vii

9 Chapters Page The Issue of Certification Descriptive Statistics Training Issues Program Dissemination Summary of Results Conclusions, and Recommendations for Further Study Discussion The Need for Training of Vocational Experts Recommended Content for Formal Vocational Expert Training Delivering Training to the Field of Vocational Experts Certification For The Practice of Vocational Testimony Recommendations for Training Vocational Experts Limitations of Study Recommendations for Further Study Summary 135 References.137 Appendix A Survey Instrument Appendix B Tables B viii

10 LIST OF TABLES Table Page 3.1 Questions requesting demographic information Questions addressing work background and perceived means of expertise Questions addressing content respondent believes should be included in training program Questions addressing need for a formal training program Questions addressing issues of formal training program Respondents by professional organization affiliation Respondents by highest level of attained education Respondents by number of years in forensic practice Respondents by reported income from forensic practice Respondent s by types of referrals Summary of responses grouped by educational level Expected orderings for hypothesis 1 The higher the level of achieved education an individual possesses, the less likely they will perceive themselves to require formal training, and the more likely they will perceive others in the field to require formal training Summary of responses grouped by experience Expected orderings for hypothesis 2 The more years of work experience an individual possesses, the less likely they will perceive themselves to require formal training, and the more likely they will perceive others in the field to require formal training Summary of responses grouped by affiliation 96 ix

11 Table Page 4.11 Expected orderings for hypothesis 3 Individuals who are members of both ABVE and IARP will be less likely they require formal training when compared to members who are in IARP only Correlations between Perceived Need for Training, Desire for Training, and Self-Confidence Combined questions for hypothesis 1, sub-hypothesis 1 The higher the level of achieved education an individual possesses, the less likely they will perceive themselves to require formal training Combined questions for hypothesis 1, sub-hypothesis 2, The higher the level of achieved education an individual possesses the more likely they will perceive others in the field to require formal training Combined questions for hypothesis 2, sub-hypothesis 1 The more years of work experience an individual possesses, the less likely they will perceive themselves to require formal training Combined questions for hypothesis 2, sub-hypothesis 2 The more years of work experience an individual possesses, the more likely they will perceive others in the field to require formal training Combined questions for hypothesis 3 Individuals who are members of both ABVE and IARP will be less likely they require formal training when compared to members who are in IARP only Means, standard deviations, and p-values for for educational level Means, standard deviations, and p-values for experience Means, standard deviations, and p-values for affiliation Hypotheses, sub-hypotheses, and whether supported or not supported 107 x

12 Table Page B.1 Sources identified as contributing to respondents status as a 'vocational expert'? B.2 Years of forensic practice until self-identified as a 'vocational expert'.163 B.3 Training needed by individual case type.164 B.4 Training needed by individual skill area.164 B.5 Training needed by occupational resource/database B.6 I believe participating in mock trials with attorneys would improve my testimony ability B.7 I have encountered at least one opposing expert who I feel was NOT qualified to sit as a vocational expert 165 B.8 I know of at least one currently practicing vocational expert who I believe is in need of formal training B.9 I was fully prepared to handle the first forensic case I ever received..166 B.10 The field of vocational expert testimony needs more formal and intensive training B.11 I have interest in engaging in a formal rehabilitation training program for vocational experts 167 B.12 I would be more likely to engage in a formal training program for vocational experts if certification was awarded upon completion.167 B.13 To be considered valid, a training program for vocational experts should be administered by which of the following organizations 167 B.14 To be considered valid, a training program for vocational experts should be endorsed by which of the following organizations 168 xi

13 Table Page B.15 A training program should be administered via which of the following means..168 B.16 If a training program involved an on-site component, I would be willing to travel how many times per year..169 B.17 I understand the similarities and differences between on-line and on-site education programs.169 B.18 On-line, distance education programs are a viable option for the training of Masters level rehabilitation students..169 B.19 On-line, distance education programs would be a viable option for the training of Vocational Experts..170 B.20 Interaction between students in on-line training programs is significantly less than traditional on-site programs.170 B.21 On-line programs require less time from the student than traditional on-site programs 170 B.22 The Council on Rehabilitation Education (CORE) does not recognize rehabilitation training programs that are administered via distance learning.171 B.23 I would expect to have less satisfaction learning through an on-line program than an on-site program.171 xii

14 CHAPTER 1 INTRODUCTION The use of vocational experts (VEs) in courtroom testimony continues to gain popularity and expand to a variety of legal arenas. These opinion witnesses, originally retained by the Social Security Administration (SSA), have seen their utility extend to other areas of disability determination including the veterans administration and workers compensation (Johnston, 2003; Van de Bittner, 2003), and in the quantification of damages in personal injury cases (Dillman, 1998b), medical malpractice, employment discrimination (Heitzman, 2000; Johnston & Growick, 2003b), and divorce litigation (Smith & Growick, 1999). Most of these experts are, by nature, primarily rehabilitation counselors with knowledge of medical impairment and the impact of disability on employment potential. Although no specific qualifications are required to testify, VEs are generally expected to possess education and training in forensic issues (Janikowski & Riggar, 1999; Havranek & Brodwin, 2004a; Tansey & Smart, 2004). Currently training is available through professional conferences and those rehabilitation training programs offering introductory coursework. However, no intensive, formal training programs specific to VE practice currently exists. 1

15 Experts providing vocational testimony have emerged from the field of rehabilitation counseling and other related allied health occupations. Even then, the use of rehabilitation counselors in providing forensic testimony is a relatively recent trend, having emerged in the mid 1980s (Janikowski & Riggar, 1999). In fact, the subject of vocational testimony was not even considered an essential function of rehabilitation counselors until 1987 (Leahy, Shapson, & Wright, 1987; Janikowski & Riggar, 1999). Today, VEs are an integral and common contributor to evaluating an individuals ability to hold employment, and are generally accepted in courtrooms to assist the trier of fact (judge or jury) in the determination of damages or disability. Despite this increased acceptance, rehabilitation training programs (RTPs) offering Master s Degrees have been slow to introduce coursework in forensic issues. Although doctoral programs allow those students interested in forensic issues to tailor their educational program to include coursework in expert testimony, few VEs actually seek advanced degrees, instead relying on professional conferences and work experience to augment their knowledge base. These conferences typically provide quality programming on a variety of topics, but do not offer in-depth training on any specific content area. The result is a lack of formal training which would otherwise prepare individuals to advise the courts, and which potentially undermines the credibility of the field. To protect against unqualified experts from providing testimony, the Supreme Court decided in Daubert v. Merrill Dow (1993) that experts be qualified by education, training, and experience, and use relevant, reliable, and consistent methodology in rendering opinions. 2

16 Despite the increased use of VEs, and the impact created with the Daubert v. Merrill Dow (1993) ruling on standards of admissibility, training specific to the development of these witnesses has yet to emerge. Forensic coursework is currently offered in a small number of graduate programs, and professional organizations such as the American Board of Vocational Experts (ABVE) and International Association of Rehabilitation Professionals (IARP) which offer biannual conferences and scholarly publications pertinent to VE testimony. There remains, however, an absence of any broad training program for rehabilitation practitioners seeking to enter the field of vocational forensic practice (Janikowski & Riggar, 1999) or interested in improving on their current information base. The dearth of training opportunities has resulted in many first-time experts being ill-equipped to offer testimony in a court of law. As the use of VEs in assessing employability and rebutting testimony remains attractive to legal counsel, many more novices can be expected to enter courtrooms, some of whom will be lacking the proper foundation to offer testimony. As opposing attorneys become familiar with the role of the expert, and begin to develop the skill to attack VE testimony, the lack of formal training will be revealed. Even the experienced witness may lack proper training, instead having relied on years of adherence to theories learned from otherwise unqualified mentors. These potentially erroneous theories and methodologies, passed from generation to generation, will eventually be exposed as lacking foundation. For this reason, tested and proven tactics should be incorporated into a formal education program, designed 3

17 to improve consistency in testimony, accuracy in method, while the Daubert trilogy standards are satisfied. The field of rehabilitation counseling currently offers a variety of credentials to reflect areas of practitioner competence. Rehabilitation professionals providing general vocational services most often obtain the designation of Certified Rehabilitation Counselor (CRC). This credential requires a Master s degree from a Council on Rehabilitation Education (CORE) accredited institution, successful passing of a comprehensive examination, and 100 hours of continuing education each five-year period (Commission on Rehabilitation Counselor Certification, 2005). As this certification is required to work in most rehabilitation settings, a majority of Master s programs, influenced by CORE, tailor their programs to prepare students for this examination. Forensic issues have not previously been included on the CRC examination, and therefore academic institutions have little motivation to include this focus in their curricula. Beyond the CRC examination, programs are also restricted by the number of required courses mandated by CORE. There are currently ten CORE mandated competency areas which, along with practicum and internships, may encompass as many as 45 hours in a 48 hour program, leaving students with little opportunity to take courses in specialty areas of rehabilitation. Furthermore, elective courses often are limited to an introduction of the topic as opposed to providing intense, in-depth, study. This includes coursework on forensic issues. In addition to the CRC designation, certification exists attesting to specialized knowledge within the field of rehabilitation counseling. The designation of 4

18 Certified Vocational Evaluator (CVE) reflects advanced skill in testing and assessment. Like the CRC, the CVE designation requires coursework available through Master s programs, and successful passing of a comprehensive examination. Certified Life Care Planners (CLCP) are skilled in identifying the future medical services and costs associated with catastrophic injuries. Contact hours obtained through conferences and a limited number of training programs, such as Capital University in Columbus, Ohio, prepare the individual to take a national examination. And rehabilitation professionals can focus on a variety of other designations, including Certified Disability Management Specialist (CDMS), Certified Case Manager (CCM), and Certified Work Adjuster (CWA), to name just a few. Each attests to unique skill attainment. Although an absence of these titles does not preclude an individual from practicing in the respective specialty area, these designations speak to the advanced level of training an individual has received, and are intended to promote recognition among legislators, human services personnel, employers, and various third party payers. Although courts do not require any particular designation for vocational expert witnesses, a formal, universally accepted credential attesting to the professional s area of expertise and level of training may be beneficial. The introduction of the Daubert trilogy suggests stricter standards for admitting individuals offering expert testimony. In the vocational arena, required competence would appear to center on the ability to assess the impact of medical impairment on earnings capacity and to present testimony in a persuasive manner. With no formal training program teaching skills related to forensic testimony, rehabilitation counselors must rely on conferences and topical seminars, on peers 5

19 who themselves may lack understanding, or on the unfortunate trial-and-error method to develop and hone their skills, or on peers who themselves may have learned from informal sources. A formal, intensive, training program offering certification may be one option for polishing the rehabilitation practitioners ability to offer testimony, while providing courts with documentation of their achieved level of expertise. If support for training and certification exists, then the means of delivering a comprehensive educational program to a relatively small field spread throughout the United States and Canada would need to be addressed. Significance of the Study The increased demand for vocational opinions has resulted in a greater need for competent rehabilitation professionals to provide or rebut expert testimony. To prevent unqualified professionals from flooding courtrooms, the courts established the standards of competence among opinion witnesses (Daubert v. Merrill Dow, 1993; General Electrical Company v. Joiner, 1997; Kumho Tire v. Carmichael, 1999). Although stopping short of outlining specific qualifications, the Supreme Court empowered judges to serve as gatekeepers in admitting experts. Education and training reflecting acceptable standards of practice are now weighed in the decision to accept a witness, and thus crucial to the survival of the vocational expert community. Prior to these decisions (and to an extent, even today), most witnesses testifying on vocational matters relied on their past experience as rehabilitation counselors and vocational evaluators as evidence of their qualifications to provide testimony. Skills associated with the role of rehabilitation counselor include coordination, vocational counseling, assessment and planning, personal adjustment counseling, case management, job placement, group and behavior techniques, 6

20 professional and community involvement, consultation, job analysis, and assessment administration (Emener & Rubin, 1980; Herschenson, 1990; Jenkins, Patterson, & Syzmanski, 1998; Leahy, Syzmanski, & Linkowski, 1993). Skills associated with vocational evaluation include counseling, assessment, and interpretation (Leahy, Shapson, & Wright, 1987). Noticeably absent in this list are functions related to providing vocational opinions in a court of law. Where discussion on the roles and functions specific to VEs does exist, it has primarily been conceptual rather than data-based (Janikowski & Riggar, 1999). Most theoretical literature agrees that a VE should possess a combination of the following (Blackwell, 1992; Havranek, 1997; Johnston & Klein, 2001; Williams & Reavy, 1993): - graduate degrees in behavioral sciences or vocational rehabilitation offered by CORE-accredited institutions; - specialized training in vocational rehabilitation and test administration; - professional certification and/or licensure administered by recognized rehabilitation groups including ABVE and IARP; - continuing education credits; - demonstrated evidence of expertise through teaching, lectures, and publication; - association with professional organizations; - work experience in vocational assessment, job analysis, and job placement; - familiarity with current literature; - knowledge of vocational references and resources; - communication skills to convey opinions in court; and 7

21 - adherence to an ethical code. Additionally, the VE should possess the following skills (Janikowski & Riggar, 1999): - critical review of case-related documents; - vocational diagnostic interviewing; - identification of critical vocational behaviors; - application of residual functional capacities; - test selection and administration; - knowledge of transferable skills; and - effective communication. In 2004, The Journal of Forensic Vocational Analysis published a special issued devoted to the education and training required of VEs (Havranek & Brodwin, 2004a). Articles included examination of the roles of the VE within the SSA (Havranek & Brodwin, 2004b; Marini, Feist, & Miller, 2004; Drew & Growick, 2004), the level of preparedness of VEs (Donnell, Reyes, Cogdal, & Porter, 2004), the existence of training programs for VEs, and recommendations for expanding the training of VEs (Tansey & Smart, 2004). Even though the Havranek and Brodwin article included a survey of VEs in an effort to examine the essential functions of the field, no formal role and functions study was a part of this special issue. Also, a detailed discussion of the impact of Daubert on vocational testimony was absent. Although this special issue was a valuable addition, the dearth of literature overall in relation to the core competencies of VE practice, which would be expected to include testifying on issues of loss of earnings capacity (LOEC), labor market trends, statistical analysis of vocational 8

22 tests, life care planning, and calculation of work life expectancy, among others, is alarming. Further, there is a lack of text exploring the need for the formal training of VEs, potentially offered through a CORE accredited institution or professional organization, and in conjunction with a recognized authoritative body, such as the Commission on Rehabilitation Counselor Certification (CRCC) or Social Security Administration (SSA). Not surprisingly then, discussion on disseminating training to a relatively small group of individuals spread throughout the United States and Canada has yet to be broached. This study intends to ignite serious dialogue among practicing VEs on the need for formal training and certification to enhance credibility within and outside of the field. Purpose of the Study This study addresses the need for, and feasibility of, a formal training program for vocational experts. Although literature exists outlining the generic qualifications needed to serve as a vocational expert in different venues, there is no existing discourse tackling the necessity of a formal training program designed to offer in depth study on forensic issues. For training to be deemed feasible, a need must first be established. To identify this need, individuals identifying themselves as vocational experts were surveyed. These individuals, familiar with their own sources of training, are in the best position to judge the necessity of a formal, intensive training program offering certification. The introduction of preconference training sessions, offered the day before the start of a schedule conference and offering specialized study, as well as the emergence of focused learning tracts in forensic conferences offered through ABVE and IARP, also 9

23 reflect a demand for emphasis on specific forensic topics. Current practitioners, in conjunction with legal experts and policy makers, are also suited to identify the content areas that would be included in a formal training program. Additionally, past conference subject matter designed to meet the needs of the field could be taken into consideration in the formulation of content modules of any formal training program. While this dissertation is not intended as a formal role and functions study, this analysis examines subject matter deemed critical to any didactic program for vocational experts. The current study seeks to identify the desire of experts to participate and the means of delivering a training program. An increasing number of academic institutions are utilizing web-based learning, allowing for individuals spread throughout the country to engage in the same program without the costs or time considerations of travel. Other programs offer on-site instruction, while still others offer a combination of on-site and web-based instruction. Specifically, this study sets out to answer four questions: RQ 1: Is there a perceived need by existing experts for a formal training program? RQ 2: What learning modules would be included in such a training program? RQ 3: By what means would an education program be implemented and offered? RQ 4: Is a formal certification needed in the field of vocational expert testimony? 10

24 From four questions, four hypotheses were proffered: Hypothesis 1: The higher the level of achieved education an individual possesses, the less likely they will perceive themselves to require formal training, and the more likely they will perceive others in the field to require formal training. Hypothesis 2: The more years of work experience an individual possesses, the less likely they will perceive themselves to require formal training, and the more likely they will perceive others in the field to require formal training. Hypothesis 3: Individuals who are members of both ABVE and IARP will be less likely to believe they require formal training when compared to members who are in IARP only. Hypothesis 4: The higher an individual s confidence in their abilities as a Vocational Expert, the less likely they will perceive themselves to require formal training, and the more likely they will perceive others in the field to require formal training. 11

25 CHAPTER 2 LITERATURE REVIEW Evolution of Vocational Expert Testimony The use of VEs for litigious purposes is rooted in the Social Security Act of Along with its subsequent amendments, this Act provided benefits to permanently disabled individuals over the age of 50 who were deemed unable to resume competitive employment (Erlanger & Roth, 1985). This decision initially allowed Hearing Officers (today known as Administrative Law Judges) to deny benefits on the mere theoretical ability to engage in substantial gainful activity. When this method was found inadequate (Kramer v. Flemming, 1960), the burden of proof fell to the SSA to determine what, if any, alternative employment an individual could physically, mentally, and vocationally perform when a return to the original line of work was no longer medically permissible (Johnston & Growick, 2003a). Initially, Hearing Examiners cited published labor market information to demonstrate the availability of employment to the claimant. This methodology was subsequently rejected, and the SSA turned to VEs to assess employability (Harper, 1985). Based on the success of this model, the use of VEs has expanded to other areas of disability determination including workers compensation, veterans administration, and railroad retirement. In these cases, the VE is called on to 12

26 identify the claimant s employment options in light of physical or mental disability, with no regard for wages or loss of earning capacity. Recognizing the value of VEs in assessing employability, attorneys began to use VEs to lay a foundation for the calculation of monetary damages. In cases involving personal injury, employment discrimination, wrongful death, and divorce litigation, the VE is called upon not only to gauge the impact of physical, mental, and cognitive disability on employability, but to gauge to what extent the plaintiff is precluded from accessing their labor market. This determination is used to identify damages in monetary terms, or in vocational vernacular, loss of earnings capacity (Johnston, 2003). Qualifications & Methodology under Daubert A particular concern among courts in this expansion of expert testimony is the potential for admitting unqualified rehabilitation professionals to provide testimony. To defend against incompetent witnesses, the Supreme Court introduced standards of admissibility of scientific evidence. These standards had its onset in 1923 (Frye v. United States), were fortified with the 1984 Federal Rules of Evidence, and ultimately capped by a trilogy of decisions consisting of Daubert v. Merrell Dow (1993), General Electric v. Joiner (1997) and Kumho Tire v. Carmichael (1999). The Frye Test The Frye test stipulates that scientific evidence is admissible when there is a general acceptance in the particular field of science for the methodology employed. To gauge conformity, courts begin by identifying the field in which testimony will be provided and then determine whether scientists within this field generally accept the methods and principles associated with the opinion (Matson, 1999). The Frye test sought to minimize 13

27 the inclusion of junk science. States utilizing the Frye standard rely on cross-examination to assess the level of general acceptance of methodology. In this way, judges do not have to serve the gatekeeper role, but instead the scientific community theoretically polices itself. While Frye sought to eliminate faux science, it also swept aside novel methods and theories in its broad interpretation. With science undergoing a constant evolution, many emerging ideas that would otherwise assist courts were ruled inadmissible, if for no other reason than they had not yet had sufficient time to gain general acceptance (Feldbaum, 1999). In turn, research and development of new vocational tests and theories were stifled, and the scientific community bogged down under the Frye restrictions. Nonetheless, the Frye standard found widespread acceptance over the years. Although the Daubert standard of admissibility is maintained at the federal level today, several states continue to employ the Frye standard. To these states, the idea that scientific evidence should be generally accepted within its field of practice to be admissible is logical (Feldbaum, 1999). Some states go beyond Frye and adhere to what can be termed as Frye Plus, in which pre-trial hearings allow judges to test the soundness of an expert s methods even when the underlying science is already accepted. These states have been reluctant to adapt Daubert for fear that courtrooms may become flooded with novel and unsound testimony. Where applied appropriately, the Frye test may be as effective in keeping out faux evidence as Daubert (Sorett, 2000). Federal Rules of Evidence The general acceptance standard held until 1975, when the Federal Rules of Evidence (FRE) were introduced (Field & Stein, 2002). These Rules attempted to expound on the general acceptance rule of Frye. The key message behind Rules were the allowance of all relevant evidence that could assist in determining fact to be admissible, 14

28 unless its probative value was outweighed by the potential to prejudice or mislead the trier of fact. Rules clarified confusion over what constituted an expert witness. Under Rule 702, expert testimony does not solely have to be based on scientific methods. Rather, if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise (FRE 702). Unfortunately, while the FRE superseded Frye, resolution of the general acceptance rule was not fully clarified (Gianelli & Imwinkelried, 1993). Daubert would provide illumination on this issue. Finally, prior to FRE, experts were not allowed to present evidence that would decide the ultimate issue of a case, because it was considered to usurp the role of the jury. Rule 704 provides leeway for the witness to present testimony in the form of an opinion or inference that will allow the trier of fact to ultimately decide the issue. This does not allow the expert to provide unlimited opinion however. Rule 702 still mandates that testimony must assist the trier of fact to understand the evidence of the case, while Rule 403 prohibits evidence that may cause unfair prejudice of the jury or which may simply be a waste of the court s time. Further, opinions are not admissible if they take the form of a legal opinion as they may be unreliable, misleading, and may usurp the court s function of instructing the jury on applicable law (Thomason & Broderick, 2001). Qualifications under Daubert Seeking to eliminate incompetent witnesses, the Supreme Court affirmed its belief in the need for experts to be qualified and provide opinion based on reliable and valid principles, methods, and techniques (Weed, 2000b). The Daubert ruling did not identify any specific combination of factors necessary to admit an expert, only that a witness is 15

29 qualified as an expert by knowledge, skill, experience, training, or education (FED R. EVID. 702). Daubert provides judges with the authority to determine who satisfies these criteria; although most literature suggests some combination of specialized skills, education, training, experience, licensure, memberships, and publication in peer reviewed journals are needed (Blackwell, 1992; Williams & Reavy, 1993; Havranek, 1997, Johnston & Klein, 2001). With qualified expert now a criteria for admittance, Judges began applying stricter standards in deciding whether to admit expert evidence (Dixon & Gill, 2001) and attacks on witnesses from opposing counsel, designed to exclude the expert from testifying, have increased (Waldorf v. Shuta, 1998; French v. Wal-Mart, 1999; as cited in Babington, 2002). As a result, no longer can just any vocational counselor or consultant to be allowed to testify in court (Johnston & Growick, 2003b). In response to these challenges, courts allow experts to be qualified by a judge at either a pre-trial hearing or at the trial itself. The process of examining the witness to establish the extent and limit of the witness s expertise is known as voire dire (Barker & Branson, 2000). There are five primary goals to for the attorney and VE to achieve during this process (Deutsch, 1990): 1) Establish the basic credentials of the expert; 2) Establish the general knowledge base held by the expert; 3) Set the parameters of the witness expertise in a manner which can be understood by both judge and jury; 4) Communicate to the judge and jury the nature of the experts profession and; 5) Clarify of any miscellaneous issues, such as payment, percentage of referrals from plaintiff vs. defense, and frequency of the expert s participation in testimony. 16

30 Methodology under Daubert In addition to scrutinizing qualifications, Daubert also requires the expert to offer opinions based on reliable, valid, and consistent methodologies (Weed, 2000b). Prior to Daubert, the method for determining the admissibility of expert evidence varied between relevance and general acceptance. Critics attacked these standards by noting that relevance could allow for the inclusion of junk science, while general acceptance could exclude novel science (Gianelli, 1994). Although this type of methodology is still accepted in some states under the Frye standard, Daubert is the standard of admissibility at the federal level and in majority of states. Under Daubert the Supreme Court identified a four-pronged test to determine the admissibility of scientific evidence: whether or not the theory or technique can or has been tested; whether or not the theory or technique has been subjected to peer review and publication; whether or not there is a known or potential rate of error in the theory or technique; and the level of acceptance of the theory or technique in the scientific community (Field, 2002b). To survive a Daubert challenge to methodology, the expert must demonstrate that they are presenting testimony based on scientific knowledge, and have opinions that will assist the jury. A potential concern for vocational experts is their reliance on what is generally considered a soft science, and whether this jeopardizes testimony. Under FRE 702 however, expert testimony does not have to be solely based on scientific methods, but may include technical and specialized knowledge as well. Additionally, the four-pronged test is not rigid, allowing the judge, as gatekeeper, to apply any combination of the four tests to determine admissibility. Within the field of rehabilitation are principles and methodologies which can be categorized as scientific, technical or specialized knowledge. For many judges, distinguishing between these three categories is a burden (Feldbaum, 1997). 17

31 Perhaps because of this, Daubert hearings for admissibility of testimony remain infrequent (Brodsky, 1999). The Courts role as gatekeeper was affirmed and extended by two subsequent Supreme Court decisions. In General Electric Company v. Joiner (1997), the Supreme Court concluded that appellate courts should not overturn the admissibility decision of a trial court unless the trial court had abused its discretion (Berger, 2000). Next, it established that the conclusions of the expert must match the findings of the data upon which he or she relied, known as the abuse of discretion standard (Hoffman & Gralen, 2000). Finally, it evaluated scientific evidence based on the Daubert standard, lending further support. In 1999, the Supreme Court ruled in Kumho Tire Co. v. Carmichael that trial judges would have considerable leeway in determining the relevance and reliability of testimony of the expert, whether scientific, technical, or specialized (Field, 2000). The Court also indicated that the Daubert factors should be considered by judges in evaluating reliability but are neither mandatory nor exhaustive (Berger, 2000). In December 2000, an amendment to FRE 702 went into effect mandating that for expert testimony to be admissible, it must be based on sufficient facts or data, it must be the product of reliable principles and methods, and it must involve reliable application of the principles and methods to the facts of the case (Dixon & Gill, 2001). The Daubert trilogy (Daubert, Kumho, and Joiner) has diminished the power of the scientific community to police themselves, and established the federal courts as substantive gatekeepers in determining whether evidence is admissible (Miller, Rein, & McDonald, 2000). As a gatekeeper, the judge does not have to determine whether the expert is right or wrong, only that the expert has used reliable and relevant methods (Oldknow, 2002). The Daubert trilogy instructed judges to consider the methodology behind expert evidence 18

32 and to admit only evidence that is both relevant and reliable. No longer could judges rely on the expert community to weed out junk science, or leave the jury to determine these factors (Dixon & Gill, 2001). The Supreme Court, in rendering the Daubert decision, affirmed that trial court judges have not only the power but the obligation to act as a gatekeeper (Berger, 2000). For VEs, pressure has now increased to demonstrate qualifications to provide testimony and scrutiny has emerged in the methodology employed in formulating vocational opinion. In Elcock v. Kmart Corp. (2000, as cited in Griess, 2002), the plaintiff s VE was dismissed when he was unable to explain the methodology behind his opinion and was only able to identify a list of factors used to arrive at his conclusions. The court found this tactic subjective and therefore unreliable based on its inability to be tested or reproduced. Although the court acknowledged that vocational rehabilitation is not a hard science, the process employed by the expert must be capable of replication. The court also found the expert to have taken two individually sound methodologies and combined them into a third scheme. The expert explained his methodology to be a combination of assessing pre-post injury labor market access with rendering a clinical judgment. While the defense did not dispute that the two individual approaches were accepted techniques in the vocational field, they did argue the level of general acceptance for the combination of the two methodologies into this third, novel approach. Because the expert was unable to explain the rationalization of this hybrid approach, the court excluded his testimony. Other cases reflect a tougher stance by the courts under Daubert. In United States EEOC v. Rockwell International Corporation (1999), the court outlined several inadequacies in the expert s methodology, including failure to follow the methods that he normally used and preferred (as cited in Griess, 2002). In Phillips v. Industrial Machine 19

33 (1999), the VE was excluded from testifying on appeal when the court ruled that the witness was not qualified by knowledge, skill, experience, training, or education to provide what amounted to a medical opinion (Babington, in Field & Stein (Eds.) 2002). In Boucher v. US Suzuki (1996), the VE testified that the plaintiff, who had previously had a sporadic work history with long spells of unemployment, low benefits, and having earned $6.00 per hour, would have been, but not for his sustained injuries, capable of full time work, with full benefits, and regular pay increases. The appellate court found the VE testimony, which in part led to an award of $180,000 in past and future wage loss, to be unrealistic and speculative and dismissed the experts testimony. Potential Impact of Formal Training on Qualifications & Methodology of the Vocational Expert Although cases involving inadmissible vocational testimony have been rare, Elcock, Phillips, and Boucher may be evidence of the need for formal training to establish consistent and accepted methodology and qualifications. Many Master s level rehabilitation programs require coursework on statistics and the development and history of test measures, both core concepts of methodology. However, they also may neglect training on the forensic issues which impact methodology. The VE can expect to be asked by the court or on cross-examination questions as to both the application and the origin of the method employed. Establishing the method as both reliable and accepted in the field will be necessary to meet the standard accepted by the respective court. Further, the expert must be able to educate a jury on how the employability and LOEC are derived from the employed methods. Without proper understanding of their utilized technique, the VE is more susceptible to attacks from opposing attorneys on cross-examination. 20

34 Training on these specific issues serves a dual purpose of augmenting the qualifications of the VE. With documentation of training specific to forensic issues, the VE can more easily demonstrate to the court that they are qualified to provide testimony, and more likely to convince the jury that they are the most credible source of vocational opinion. Whereas Master s programs typically prepare the student for work as a rehabilitation counselor, a formal training program may be the only source of demonstrating participation in an educational program specifically designed towards forensic expertise. As Daubert requires evidence of qualifications based on education, training, and experience, a formal training program may serve to satisfy two-thirds of the Daubert criteria. The Various Legal Arenas in which the Vocational Expert Serves VEs provide opinion on both the extent of vocational disability as well as its impact on earnings capacity. The VE must be aware of the parameters in which they can provide testimony. Even within the same venue, variables exist which can result in two experts arriving at different conclusions based on the same factual evidence. It is imperative for the rehabilitation counselor to understand the purpose of vocational testimony in the various legal venues, including the major arenas of SSA, workers compensation, personal injury and medical malpractice, and employment discrimination. While courts overseeing social security and workers compensation are interested in levels of disability, those adjudicating personal injury, medical malpractice, and employment discrimination are concerned with the additional component of loss of earnings capacity (LOEC). The VE must understand in what way they are being asked to educate the trier of fact, and what 21

35 rules govern their testimony. A closer look at each of these venues and variables is warranted. The SSA, having introduced the VE into testimony, provides a logical base from which to understand the core roles and functions of these witnesses. Social Security Administration The use of rehabilitation consultants as VEs was born out of the Social Security Act of 1956 and its subsequent amendments. In 1977 a national registry of VEs was created to assist Administrative Law Judges (ALJ) with identifying the prevalence of jobs in the national economy (Dunleavy, 1999), and over 600 VEs have registered and served since (SSA, 2004). Individuals chosen to work as VEs on behalf of the SSA require no set qualifications. Instead, it is up to each ALJ to examine the merits of the VEs work experience, education, and professional affiliation when determining VE eligibility to serve as a witness. Unlike intentional tort cases, the VE in social security hearings acts as an independent and impartial witness. The VE is not retained to advocate for the claimant, nor to defend the SSA, but rather to assist the judge in the fact-finding process (Lillios, 1999). Title II of the Social Security Act covers old-age, survivors, and disability insurance benefits for wage earners and their dependents (Field & Huberty, 1997). Specific to Social Security Disability Insurance (SSDI), where VEs will typically practice, the claimant must meet two basic requirements: sufficient earnings with payments into social security and a finding of disability. It is this second part of the eligibility definition where the expert contributes to determining eligibility, assessing whether the claimant s physical or mental impairments are of such severity as to render them, in combination with their age, education, and work history, unable to access or perform any gainful work that exists in the national economy. This definition is 22

36 significant because unlike workers compensation or most intentional tort cases, the national economy, as opposed to the claimant s local economy, is the yardstick for determining employability. To receive SSDI, the claimant must first apply, then meet the definition of disability, and also progress through as many as 5 steps. A complete look at the Social Security system is not warranted here, but it is important to note that at any step the claimant can be found qualified or not qualified to receive benefits. At each step the claimant can appeal, and at step 5, the VE is called in to assess residual functional capacity in conjunction with their age, education, and work experience to determine employability (Field & Huberty, 1997). The VE serving within this arena must be familiar with several important concepts that separate the SSA with other areas of disability determination. First, the Medical-Vocational Guidelines, or Grids, which reflect the claimant s ability to engage in sedentary, light, or medium work, were designed to provide consistency to disability determinations (Marini et al., 2004) and are unique to the SSA. These Grids take into account non-medical factors including age, education, and work experience, and can result in the claimant achieving eligibility status on these factors alone. Yet these Grids have not been updated in over 30 years, during a period where life expectancy has increased almost 5 years for both men and women (Life Tables for the United States Social Security Area, ) and need to reflect medical advances and social and economic changes impacting impairment (GAO, 2002). The VE can assist the ALJ in understanding situations in which the Grids do not accurately reflect employability. With the desire of the 23