What is the evidentiary standard for a vocational expert to opine about a plaintiff’s future lost wages?
In determining whether scientific evidence is reliable under Indiana Evidence Rule 702(b), the trial court must determine whether such evidence appears sufficiently valid or trustworthy to assist the trier of fact. The trial court must make a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and whether that reasoning or methodology properly can be applied to the facts in issue. The proponent of expert testimony bears the burden of establishing the reliability of the scientific tests upon which the expert’s testimony is based. In satisfying Indiana Evidence Rule 702(b), there is not a specific test or set of prongs, which must be considered. The Indiana Courts may consider the five factors set out in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993): (1) whether the theory or technique at issue can be and has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the technique’s operation; and (5) whether the technique is generally accepted within the relevant scientific community. While Daubert is not binding upon the determination of issues under Indiana Evidence Rule 702, the Indiana courts have acknowledged the utility of applying the five factors. In these cases, the expert witness must testify as to their methodology for determining lost income which must be generally accepted in the field of economics with reference to any peer-reviewed publications and/or authority that supports the applied methodology as generally accepted in their field. If the expert fails to make such a showing, then the expert will not be allowed to testify.