Role of Expert Witnesses in Employment Law Matters

Employment litigation is often complex. Expert witnesses are often put on retainer to assist with these types of cases. Understanding the role that these experts serve is important so that you can see if you need an expert in your case.

Need for Expert Witnesses

Expert witnesses may be necessary for many reasons. An expert witness is necessary in more complicated cases, especially when there is a dispute regarding damages. Expert witnesses may be necessary for certain subjects, such as in whistleblower claims in which the expert will need to explain the particular state or federal whistleblower law applies or whether the whistleblower should be entitled to a certain amount of recovery based on reporting a violation, such as under the Dodd-Frank Act or Sarbanes-Oxley Act. Expert witnesses may be necessary to explain how the employee’s termination is against public 
policy. He or she may need to explain different accounting methods, damages or the extent of the plaintiff’s emotional distress. 

Types of Expert Witnesses

The role of the expert witness also depends on the type of expert witness that he or she is. There may be several different types of expert witnesses used in employment-related cases, including the following:

Mental Health Experts

Mental health experts in the employment context can help provide testimony about the extent of emotional distress that an employee has sustained. For example, if he or she was a victim of sexual harassment and continues to experience anxiety about this, the expert witness may testify to these matters. Especially when the plaintiff has emotional distress damages that are severe, a mental health expert may be necessary. In some instances, the mental health expert is treating the plaintiff. There can be advantages to using an expert witness in this context because he or she can provide specific information about treatment and impact. However, some states prohibit a treating healthcare provider from serving as an expert witness. Also, public policy may lean against this practice to avoid disclosing private health information from public disclosure. 

Economic Experts

A common area that expert witnesses may be called upon to testify is on economic damages. An expert witness may need to calculate how much an employee has been damaged by a particular employment action, such as termination. In workers’ comp cases, the economic expert may need to determine the amount of compensation that a person lost due to a work-related accident. In personal injury cases, an expert witness may need to compute what the injured victim likely would have received in earnings had the accident not occurred and then compare this to the person’s earning power after the accident. These evaluations are important because they often serve as a component of the victim’s damage award. 

An expert witness may allege damages for the loss of future pay or earnings. The expert witness in this situation must usually explain to a jury how these damages are calculated and how to convert future earnings to their present value. In cases involving projecting how much a person would have received in earnings based on two different conditions, the expert witness may have to explain how to calculate the compensation the victim would have earned had he or she stayed in the same position in comparison to how much he or she is likely to receive given the new situation. 

Expert witnesses may provide testimony at a civil trial. They may also provide important information prior to this point, such as during a summary judgment motion or to present an amount for a demand letter to an insurance carrier or employer. 

Vocational Rehabilitation Experts

Vocational rehabilitation experts can provide testimony regarding whether a plaintiff can return to the same line of work, to the same employer in a different role or to a job with a new employer. They can also testify as to whether the plaintiff has made sufficient attempts to find new employment. Expert witnesses can use reliable sources to provide this important information to juries, insurance adjusters and employers. 

Contact an Expert Witness

If your employment case requires the use of an expert witness, it is important to contact several and vet them. You will want to know what type of expert witness you need and what they will need to testify about, such as the ability to return to the workforce, mental health problems or economic assessments. Screen prospective expert witnesses and ask them about the type of information and assistance that they may be able to provide after fully evaluating the situation.