Testimony of Vocational Rehabilitation Expert Witness Held to Emphasize on Relevant Factors

Defendant Amazon.com Services, Inc. (“Amazon.com”) initially hired Marcellus McMillian as a seasonal fulfillment associate and then promoted him to fulfillment associate in the make on demand department. Defendants employed him for more than a year, starting on January 11, 2017. McMillian’s back was injured in an unrelated car accident on or around August 3, 2017, and he went on medical leave. McMillian accused the Defendants of discriminating against him because of his disability and requests for accommodation.

Defendants’ vocational rehabilitation expert, William B. Skilling, testified that he formed an opinion that McMillian was “highly employable” because McMillian’s skills were allegedly “transferable to many different occupations.” Skilling testified that he created a chart in his report where he identified “appropriate” positions for McMillian as a part of his transferable skills analysis. He then went on to testify that he formed an opinion that the occupations listed on the chart in his report are “substantially similar” to McMillian’s position with the Defendants. He testified that he made assumptions about McMillian’s rate of pay based on his job description, and was unable to testify as to how many hours McMillian worked, or what, if any benefits McMillian received. Skilling’s report also makes a reference to other positions being “substantially similar” to McMillian’s position with the Defendants.

Plaintiff requested the Court to preclude reference to and testimony of any legal conclusions from Skilling, including references in his report, and his testimony that other positions were “substantially similar” to McMillian’s position during his employment with the Defendants.

Vocational Rehabilitation Expert Witness

William B. Skilling has worked in the field of rehabilitation for more than 45 years. Since 1973, he has completed more than 5,000 assessments and has testified as an expert in his field on nearly 500 occasions in state and federal courts.

Between 1982 and 1992, Skilling was under contract as a Vocational Expert by the Social Security Administration Office of Disability Adjudication and Review, while at the same time providing vocational rehabilitation services to injured workers through private contracts in Washington, Oregon, California, and Alaska.

Discussion by the Court

Plaintiff argued that Skilling was not qualified to opine on other employment opportunities because he made assumptions about McMillian’s rate of pay based on his job description. He was, hence, unable to testify as to how many hours McMillian worked, or what, if any benefits McMillian received. He also did not know how long McMillian’s commute was and did not interview McMillian.

Plaintiff also argued that pursuant to FRE 702(1) Skilling’s testimony, and conclusory, unfounded opinion that other positions identified in his report were substantially similar to McMillian’s position, would not help the trier of fact understand the evidence or decide an issue of fact.

There are certain factors that a jury can consider when determining whether other positions were “substantially similar”, including salary, benefits, hours of work per day, hours of work per year, locality, and availability of a merit-based system. One of the agreed upon jury instruction regarding Defendants’ affirmative defenses pertaining to migration, identified that the jury must determine whether “employment substantially similar to Marcellus McMillian’s former job was available to him.” While evidence of other jobs can reasonably be admitted as evidence, the question of whether the jobs are substantially similar is one for a jury to decide.

Defendants argued that Skilling’s analysis focused more heavily on some of the other relevant factors, such as locality and the required skill, background, or experience. The Court found that the Plaintiff’s counsel forced the “substantially similar” usage on the expert witness in order to bring this Motion. To the extent Plaintiff objected to Skilling’s conclusion or believed his conclusion were unsupported, Plaintiff was free to elicit such weaknesses during cross-examination. 

Held

The Court denied Plaintiff’s motion to exclude reference to and testimony of any legal conclusions from Defendant’s expert William Skilling.

Key Takeaway:

The test under Daubert  is not the correctness of the vocational rehabilitation expert witness’s conclusions but the soundness of his methodology. Attacks to the factual underpinnings of an expert’s opinions bear on the weight of the opinion, not its admissibility.

Case Details:

Case Caption:	McMillian v. Golden State FC LLC
Docket Number:	2:19cv2121
Court:	United States District Court, California Central
Order Date:	February 6, 2024