Vocational Evaluation Expert Allowed to Opine on Lost Earning Capacity

This litigation arises from Plaintiff Raymond Flanks’ (“Plaintiff”) wrongful conviction for first-degree murder in 1985. Plaintiff alleged that the Orleans Parish District Attorney’s Office (“OPDA”) secured his wrongful conviction in violation of his constitutional rights by withholding material exculpatory evidence.

Brandy Bradley is a vocational evaluator retained by Plaintiff to estimate the earnings he lost while incarcerated. Defendants contended that Bradley’s proposed testimony is unreliable and irrelevant.

Vocational Evaluation and Rehabilitation Expert Witness

Brandy E. Bradley is a rehabilitation counselor licensed by the State of Louisiana. She is also a certified life care planner and certified vocational evaluator; and she is a vocational expert for the Department of Health and Human Resources, Social Security Administration, and Office of Disability Adjudication and Review. She holds an undergraduate degree in psychology, a graduate degree in rehabilitation counseling, and a post-graduate certification in life care planning.

Want to know more about the challenges Brandy Bradley has faced? Get the full details with our Challenge Study report.

Discussion by the Court

Based on Plaintiff’s education during his incarceration and his post-incarceration vocational testing scores, Bradley opined that Plaintiff “could have established a career path had he not been incarcerated.”

Bradley assumed that had Plaintiff not been convicted of first-degree murder in 1985, he would have been released on parole in 1991, after serving half of his fifteen-year sentence for a separate armed robbery conviction. Bradley concluded that Plaintiff “had the potential to earn” wages equal to the annual mean wage for Black males with GEDs/high school diplomas from 1991 to 2022.

Bradly provided two alternative lost earning capacity calculations––$393,692.00 if Plaintiff had earned minimum wage from 1991 through 2022 or $975,578.00 if Plaintiff had earned the annual mean wage for a Black male with a GED or high school diploma.

Defendants’ Arguments in Support of the Motion

Defendants argued that it is not reasonable to assume that the Plaintiff would have maintained continuous, full-time employment at any wage, absent evidence that the Plaintiff had obtained and maintained such employment before the injury complained of in his lawsuit.

Next, Defendants argued that the calculation of lost wages is unreliable because it does not deduct the expenses Plaintiff would have incurred had he not been out of prison earning minimum wage.

Finally, Defendants argued that the calculation of lost wages is unreliable and irrelevant because it is based on the unreliable premise that Plaintiff would have been released on good time parole after serving 7.5 years in prison for the armed robbery conviction.

Analysis

The Court held that Plaintiff should be free to make an argument to the jury that he could have earned more than his pre-incarceration income suggests.

Presumably, Defendants will present testimony to show that Plaintiff would have earned even less than $393,692.00, because he was not earning minimum wage at the time of his incarceration. Defendants can question Bradley on this issue, and they are free to present evidence showing how much Plaintiff earned in the years preceding his incarceration. If the jury finds for Plaintiff on liability, it will then be for the jury to decide how much Plaintiff would have earned had he not been wrongfully incarcerated.

Consistent with prior cases on this issue, the Court will require Bradley to amend the report to reduce the lost wages/benefits numbers to account for expenses that Plaintiff would have sustained had he been out of prison.

Finally, Defendants contended that Bradley’s testimony should be excluded because it is based on the incorrect premise that Plaintiff would have been released from prison in 1991 on the armed robbery conviction.

The Court will instruct the jury on the applicable law regarding “good time” release. If the jury finds for Plaintiff on liability, it will then be tasked with the factual determination on when Plaintiff would have been released from prison absent the allegedly wrongful conviction. Based on that determination, the jury will then decide how much income Plaintiff lost from the time he would have been released until his actual release in 2022. This is not a basis for exclusion of Bradley’s testimony.

Held

The Court denied the Defendants’ motion to exclude the testimony of
Brandy Bradley.

Key Takeaway:

The Defendants have not shown that Bradley’s opinions were so irrelevant and unreliable as to require exclusion pursuant to the Court’s gatekeeping obligation under Daubert and its progeny.

Case Details:

Case Caption:	Flanks V. City Of New Orleans
Docket Number:	2:23cv6897
Court Name:	United States District Court, Louisiana Eastern
Order Date:	December 01, 2025