Meeting the Daubert-Kumho Challenge
The admissibility of testimony by experts (including rehabilitation professionals) has become an important consideration in the formulation of opinion involving litigated cases. Renewed emphasis is placed on reliable and relevant methodology as the basis for developing and offering expert opinion in legal settings. Taking into account the criteria, as set forth in Daubert v. Merrill Dow Pharmaceutical, and further discussed in Kumho v. Carmichael and the Federal Rules of Evidence (i.e., Rule 702), a rehabilitation professional should be very cognizant of these rulings when developing testimony (Field, et al., 2000). In this context, the following observations are presented as a guideline when employing transferable skills analysis as a method or approach to casework.
Standards of Practice
Transferability is a time honored and generally accepted approach with roots established by decades of rules, regulations, and practice of the Social Security Administration disability program. The same general method is also used by professionals in state VR agencies, workers’ compensation programs, and in legal cases (Weed & Field, 2001). This approach, as outlined in the seven steps discussed in Strauser’s book (2012 – In preparation), enjoys general and widespread acceptance in the broad rehabilitation community.
While TSAs cannot meet the strict requirements of scientific method and statistical error, the method does require technical and other specialized knowledge on the part of the practitioner. In light of General Electric Company v. Joiner (1997), and Kumho v. Carmichael (1998), the Court held that the Daubert standards apply flexibly to all expert testimony – at the discretion of the trier of fact. Adopting and utilizing an accepted method for TSAs is critical to the development of expert testimony.
Countless papers, technical manuals, government guidelines, and journal articles have been published since the 1950s on general and specific topics related to the transferable process. The degree of use and wealth of publications serve to substantiate the efficacy of methodologies related to transferable skills analysis. See a bibliography at www.skilltran.com/TSAReferenceList.htm
Reliability and Validity
Reliability is established by the degree of consistency that is inherent in any method; any of the computer programs (consisting basically of algorithms) can easily demonstrate reliability. The issue of validity is basically established by the nature and content of the resources that are used in the TSA process. A criterion reference for the TSA process is the CFR (20 CFR 404.1568(d)). The method or approach in finding similar or new jobs for a person following injury or illness, when accommodating previous work experiences and skills, is referred to as transferable skills analysis. This method is a process, requiring technical and specialized knowledge on the part of the professional. The process requires the review, organization, and synthesis of much information as a means to arrive at a conclusion. The DOT is the primary source of information used in the TSA process, including any of the DOT-based computer job-matching programs. The concern about the DOT being obsolete (Mariani, 1999) or inadequate (Miller et al, 1980) certainly raised questions regarding its validity. However, the SSA Policy Interpretation (SSR-00-4p), at least for the near future, seems to suspend or neutralize this concern. In either case, clinical judgment and experience of the professional should prevail in all decisions regarding TSAs.Strauser, D. R. (Ed.). (2013). Career development, employment, and disability: From theory to practice. Book in preparation.
Author Note: This article was written by Dr. Tim Field in collaboration with Jeff Truthan for their co-authored Chapter 15 in:
Strauser, D. R. (Ed.). (2014). Career development, employment, and disability in rehabilitation: From theory to practice. New York, NY: Springer Publishing Company, LLC.