The United States District Court for the Northern District of Illinois-Eastern Division denied defendants’  Rule 702 Daubert motion to strike the testimony of David Gibson, president of Vocational Economics, Inc.  The case is Rossi v. Groft, Case No.10 C 50240 (U.S.D.C. ND April 16, 2013). 

This case arose out of an incident in which plaintiff, a bank loan officer, sustained serious injuries.  Prior to the accident, plaintiff had never made more than $10,000 per year.  Plaintiff was 27 years old and had completed two semesters of college at the time of the incident.  Plaintiff testified at his deposition that he had not applied for any jobs since the accident because the income he could earn with his limitations would be equivalent to paying child care, and he was looking to re-enter a physical rehabilitation program.  At the time of the incident, plaintiff was in the process of applying for a position at the Cook County Sheriff’s Office as a deputy sheriff. 

Plaintiff retained expert vocational economist David Gibson to opine as to plaintiff’s loss of earning capacity due to his injuries.  Mr. Gibson opined that plaintiff had a loss in lifetime earning capacity in the range of $957,000. 

To reach that conclusion, Mr. Gibson compared plaintiff’s pre-injury earning capacity and work life expectancy with his post injury earning capacity and work life expectancy using data from the U.S. Census Bureau’s American Community Survey.  Mr. Gibson used a “proxy” upon which he based both his pre and post injury earning opinions.

Defendants moved to bar Mr. Gibson from testifying under Fed. R. Evid. 702.  Defendants did not challenge Mr. Gibson’s credentials.  The Court found it noteworthy that Mr. Gibson and his colleagues at Vocational Economics had been permitted by Court to testify as experts using work life expectancy tables to determine diminished earning capacity.  See Goesel v. Boley Intl. (H.K) Ltd., No. 09 C 4595 2012 WL 5306284 @ *1-2 (N.D. Ill. October 26, 2012); and Thakore v. Universal Mach. Co. of Pottstown, Inc., 670 F. Supp. 2nd 705, 729‑31 (N.D. Ill. 2009).  Rather, defendants argued that Mr. Gibson’s use of average age earning progression of the median male with Rossi’s educational level “utilizes certain generalities clearly contradictory to the facts proffered in this case.”  Specifically, defendants complained that Mr. Gibson had failed to consider plaintiff’s earning history, his slim prospects of employment with the Cook County Sheriff’s Office, and plaintiff’s home life.  Defendants further urged the Court to bar Mr. Gibson asserting that Gibson’s use of “median person” to assess plaintiff’s earning capacity because plaintiff’s income before the accident was substantially below what Mr. Gibson’s chart showed what would be expected of the median person. 

The court reviewed Mr. Gibson’s report which laid out why he believed that the median person he hypothesized was a reasonable proxy for plaintiff.  In his report, Mr. Gibson explained, “younger workers rarely have earnings that reasonably represent an average life time earning capacity.” 

Defendants also attacked Mr. Gibson’s consideration of plaintiff’s application to the sheriff’s office, and provided the court with an affidavit from the deputy director of the Cook County Sheriff’s Office Merit Board showing that plaintiff may not have been hired by the sheriff’s office because of plaintiff’s prior arrest and history of drug use.  Mr. Gibson testified, however, that he did premise his analysis on whether plaintiff would have been hired by the sheriff’s office finding that plaintiff’s application supported Mr. Gibson’s belief that plaintiff would have been actively employed or actively seeking employment similar in nature.

The court found that Mr. Gibson’s opinions were based on sufficient facts and data to be admissible provided that plaintiff presented evidence that his earning capacity has been impaired by the injury.  Accordingly, defendants’ motion to strike Mr. Gibson’s report and bar his testimony was denied.