Vocational Expert Testimony Regarding Mitigation of Damages

In most lawsuits that involve economic harm, a plaintiff has a duty to mitigate damages. That rule is often expressed as a duty to use reasonable effort to avoid further harm caused by another person’s wrongful conduct.

The doctrine that requires mitigation of damages imposes different duties in different kinds of cases. In landlord-tenant law, for example, a landlord usually has a duty to make reasonable efforts to rent property to another tenant after an existing tenant breaks a lease. The landlord cannot simply sit on his hands and collect damages for back rent when the landlord is not trying to reduce his loss by renting the property to someone else.

The failure to mitigate damages is often raised as a defense in cases involving loss of employment. The loss may be alleged in a negligence case when an injury victim claims an inability to pursue future employment. It may also be alleged in a wrongful termination case when a plaintiff claims to have lost income after a discriminatory or otherwise unlawful discharge.

Vocational experts can help a plaintiff prove that attempts to mitigate damages have been reasonable. Conversely, vocational experts can help defendants prove that reasonable efforts to mitigate damages would have been successful if they had been undertaken.

Mitigation of Damages for Unskilled Workers

When personal injuries are disabling, they typically impair the ability to work. When injuries are catastrophic — traumatic brain injuries or spinal cord damage, for example — they might make it impossible to do any work at all. Most injury victims can nevertheless perform some kind of work, even if they cannot return to their former jobs.

When the accident victim was an unskilled manual laborer before the injury occurred, the default position in many jurisdictions is that the victim should at least be able to earn minimum wage performing sedentary or light work if the victim can do any work at all. Most courts (in the words of a federal judge in New York) do not demand that an injury victim “enroll in college or pursue a new career path of speculative financial reward” to mitigate his damages. That same judge noted, however, that a laborer who formerly performed heavy labor should be expected to look for lighter work.

Courts have often held that an unskilled injury victim failed to mitigate damages when the victim conducted no job search and failed to apply for available jobs. Whether a job search would have produced employment depends upon the kinds of work that the injury victim is able to perform and the availability of those jobs in the local labor market. Vocational experts can evaluate the injury victim’s job history and capacity for work can survey the labor market and can offer opinions about available jobs an injury victim might be able to perform.

Courts have recognized that a job search may be futile in some circumstances. Some plaintiffs have the kind of background that makes them unlikely to find work even if they perform a diligent job search. Age, a history of poor work performance, and physical scarring that reduces the likelihood of being hired are among the factors that a vocational expert will consider in deciding whether a job search would be futile.

There may also be reasons to believe that an unskilled injury victim could find employment that pays more than minimum wage. A vocational expert can determine whether the plaintiff has transferrable skills that would allow the plaintiff to find and perform a higher paying job.

Mitigation of Damages for Skilled Workers

When injury victims were performing skilled employment before their injury, courts are more reluctant to apply a default rule that demands the employee take a minimum wage job to mitigate damages. When a worker has invested time and money in education or professional training, courts often deem it reasonable for the worker to limit a job search to positions that are comparable to the job the worker was performing before the injury. To rule otherwise would condemn a high-skilled worker to low-skilled employment, making it difficult for the worker to conduct future searches for jobs that are commensurate with the worker’s skills.

Some jurisdictions apply the “professional standard” to the mitigation of damages for all skilled workers. That standard asks whether the injury victim’s job search was reasonable in light of the kind of work that the worker is capable of performing given the worker’s training, education, and past employment. That standard would not fault a person with a PhD from turning down minimum wage janitorial work.

Mitigation of Damages in Employment Cases

Federal courts generally apply the professional standard in cases involving employment discrimination and other job losses caused by unlawful termination. As the Supreme Court explained, employees must make reasonable efforts to find work after an unlawful termination, but they cannot be required to “go into another line of work, accept a demotion, or take a demeaning position.”

Victims of an unlawful employment termination may lose their right to receive back pay if they refuse a job that is “substantially equivalent” to the job they lost. Vocational experts can compare jobs and offer opinions as to the equivalence of various jobs regarding compensation, prestige, job duties, and other factors.

Using Vocational Experts to Meet the Burden of Proof

Courts generally treat the failure to mitigate damages as an affirmative defense. Mitigation rules in some jurisdictions, as well as the mitigation requirements in some statutes (including the Federal Employers’ Liability Act), require defendants to prove that jobs are actually available that the injury victim could perform. Those jobs must generally be in the same geographic area where the injury victim lives. 



It is difficult for defendants to carry their burden of proving a mitigation defense without relying on expert testimony. Vocational experts base opinions about job availability on labor market surveys and their own research to identify available and comparable jobs that a plaintiff would be able to perform. That analysis gives defendants a factual basis for meeting the burden of proving that a plaintiff failed to mitigate damages.