Vocational Rehabilitation Expert Partly Allowed to Testify Despite Credibility Concerns

This is an insurance bad faith case arising from a car accident. But the issue currently before the Court is several degrees removed from the claims and defenses in the case. The current issue arises from a defensive polemic Defendant's vocational rehabilitation expert, Aubrey A. Corwin, sent directly to Plaintiff's vocational rehabilitation expert, Reg Gibbs, after Gibbs criticized Corwin's experience or qualifications in his expert report and deposition testimony.

Plaintiff argued that Corwin's rebuke threatens a civil suit for libel and slander against Gibbs "as well as reports to their shared credentialing body based upon his opinions rendered in this case." Plaintiff further contended that Corwin's conduct in sending the invective is akin to witness tampering or an attempt to influence the testimony of, or otherwise intimidate, an opposing expert witness. Plaintiff asked the Court to employ its inherent authority to sanction litigation abuses by striking Corwin, or in the alternative, giving an adverse inference instruction at trial.

Vocational Rehabilitation Expert Witness

Aubrey Alicia Corwin is a Certified Rehabilitation Counselor and Certified Life Care Planner. In addition to being a C.R.C. and C.L.C.P, she is a member of the Forensic Section and the International Academy of Life Care Planning (IALCP) Section of the International Association of Rehabilitation Professionals (IARP). She was the Co-Chair of the Forensic Section; was the Past Co-Chair of the Forensic Section; and was the Forensic Representative to the IARP International Board. She is also a member of the American Board of Vocational Experts (ABVE), the American Association of Nurse Life Care Planners (AANLCP), the Academy of Economic and Financial Experts (AAEFE), and the National Association of Forensic Economics (NAFE).

Want to know more about the challenges Aubrey A. Corwin has faced? Get the full details with our Challenge Study report.

Discussion by the Court

Corwin's broadside can reasonably be read to threaten Gibbs with litigation or reporting him to licensing or other governing authorities. After accusing Gibbs of violating "CRC Codes of Ethics" and of libeling and slandering her, she threatens that he should "consider this letter formal notice that multiple courses of action are available to me in response to your unprofessional and tactless conduct."

The fact she doesn't mention a lawsuit doesn't nullify a threat of litigation when reading the letter as a whole. And while she takes issue with Gibbs' attacks on her credentials—attacks she takes personally—his commentary emanates from his expert report(s) and the opinions he offers in this case. In other words, the letter is not completely detached from Gibbs' opinions in this case despite any long-standing beef between these experts.

It is not unusual in litigation for a rebuttal expert to offer an opinion on the relevance of the opposing expert's qualifications or experience. Which makes Corwin's conduct all the more peculiar and concerning. But because Corwin acted alone, the Court is hard pressed to exercise its inherent power with a sanction that penalizes Defendant for the conduct of a retained expert who went rogue.

A testifying witness's credibility is always at issue. Corwin has been qualified as an expert witness in vocational rehabilitation, loss of earning capacity or life care planning, in at least 15 different state and federal courts. And she has testified in deposition or trial in at least 86 cases. The fact that she, as an experienced retained expert witness, would react in this fashion to an opposing expert based on opinions he expressed in his report(s) or deposition in the middle of litigation, impugns her credibility.

A jury may consider evidence of a witness's prior conduct when that conduct has a logical tendency to bear on the witness's credibility—such as by demonstrating a concrete reason to doubt the accuracy or truthfulness of the testimony. Here, the lengths to which Corwin went—in the middle of litigation—to safeguard her reputation provides a basis for the jury to infer a self-interested motive in avoiding blame and portraying events in a manner favorable to herself, and consequently, to consider that motive in assessing the credibility of her testimony. Striking her as a witness or instructing the jury on an adverse inference would unfairly penalize Defendant, who was unaware of her unorthodox actions. The Court will instead allow Plaintiff to use Corwin's letter during her cross-examination at trial to impeach her credibility. The parameters of that use will need to be discussed before her testimony.

Held

The Court granted in part and denied in part the Plaintiff's motion to strike Defendant's retained expert Aubrey Corwin, or, in the alternative, for a jury instruction regarding her attempted interference with Plaintiff's expert witness.

Key Takeaway

The parties' remaining reliability and relevance disputes must be decided by the jury—preferably based on the litigants': presentation of contrary evidence, such as testimony from the litigant's own expert witness providing both contrary opinions and criticism of the opposing expert's qualifications and the inaccuracy or unreliability of his or her opinions.

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