What would Daubert say about those damages? 12.01.05
The situation
Plaintiff is discharged from a job. Ten months later, the plaintiff obtains a substantially equivalent position. After 3 months in the new position, plaintiff voluntarily resigns. There is no reason to believe the plaintiff would not have been able to remain in the job indefinitely. Plaintiff's attorney wants to argue that the earnings in the second job are not mitigating earnings, since the plaintiff resigned?
Does this make sense? What would Daubert say?
Some economists and vocational experts think so:
Voc. Expert and Economist #1 Says:
"I would think that the plaintiff's claims may have merit. Just being hired for a job (placeability) has little to do with the ultimate ability to complete the job tasks and be successful in this position (employability). A comprehensive vocational evaluation would suggest jobs in which the plaintiff could expect long-term success and these positions would be mitigating in nature.
Success on the job is a combination of having the appropriate skills to complete the essential job tasks required in that position AND a general liking of the job and all that it entails...I imagine that there are many jobs for which I would qualify but that I would have a total disgust of doing. In my opinion, it is not the responsibility of the plaintiff to mitigate losses by working in a position which may contribute to long-term frustration, stress, etc.
Voc Expert and Economist #2 Says:
I believe vocational experts can make a strong argument that interests and temperaments should be taken into account in evaluating losses and appropriate mitigation.
Stress (or properly, unhealthy reaction to stress)is the secret killer in our economy. It results from a poor match between work and worker. Chronic pain, either physical or emotional, is a contributor. Previously embedded triggers need to be identified and taken into account in the selection of mitigating employment. Without such analysis we may set the plaintiff up for failure.
Plaintiff is discharged from a job. Ten months later, the plaintiff obtains a substantially equivalent position. After 3 months in the new position, plaintiff voluntarily resigns. There is no reason to believe the plaintiff would not have been able to remain in the job indefinitely. Plaintiff's attorney wants to argue that the earnings in the second job are not mitigating earnings, since the plaintiff resigned?
Does this make sense? What would Daubert say?
Some economists and vocational experts think so:
Voc. Expert and Economist #1 Says:
"I would think that the plaintiff's claims may have merit. Just being hired for a job (placeability) has little to do with the ultimate ability to complete the job tasks and be successful in this position (employability). A comprehensive vocational evaluation would suggest jobs in which the plaintiff could expect long-term success and these positions would be mitigating in nature.
Success on the job is a combination of having the appropriate skills to complete the essential job tasks required in that position AND a general liking of the job and all that it entails...I imagine that there are many jobs for which I would qualify but that I would have a total disgust of doing. In my opinion, it is not the responsibility of the plaintiff to mitigate losses by working in a position which may contribute to long-term frustration, stress, etc.
Voc Expert and Economist #2 Says:
I believe vocational experts can make a strong argument that interests and temperaments should be taken into account in evaluating losses and appropriate mitigation.
Stress (or properly, unhealthy reaction to stress)is the secret killer in our economy. It results from a poor match between work and worker. Chronic pain, either physical or emotional, is a contributor. Previously embedded triggers need to be identified and taken into account in the selection of mitigating employment. Without such analysis we may set the plaintiff up for failure.
Labels: Damage awards, Daubert
posted by The Experts @ 10:54 AM
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