Author Archives: T.C. Kelly

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.

Failure to Produce Expert Medical Witness Dooms Lawsuit Alleging Harm from Mislabeled Pills

David Sutton alleged in a lawsuit that he took acetaminophen that had been manufactured by Advance Pharmaceutical. He claimed that the product had been mislabeled as baby aspirin. He intended to take baby aspirin and contended that he experienced severe health problems as the result of taking acetaminophen.

Advance Pharmaceutical packages over-the-counter medications for distribution to wholesalers. It contended that the medications are intended for sale to hospitals, nursing homes, and pharmacies, and are not packaged for sale to the public. Advance Pharmaceutical admitted that it recalled baby aspirin in 2013 after a pharmacist noticed that a bottle of baby aspirin actually contained acetaminophen.

Sutton represented himself in the lawsuit. He appealed an order that dismissed the suit after he failed to pay a monetary sanction. The Michigan Court of Appeals concluded that the sanction was improper and ordered the trial court to reinstate the lawsuit.

The trial court again dismissed the lawsuit, this time because Sutton refused to sign forms authorizing the release of medical records so that Advance Pharmaceutical could determine whether he was taking other medications that might have caused his symptoms. Sutton again appealed and the court of appeals again reversed the dismissal.

Since Sutton had not produced a treating physician as a witness, the court of appeals concluded that he did not waive physician-patient privilege. The trial court therefore erred in holding that Advance Pharmaceutical had the right to view his medical records.

On remand, the trial court granted summary judgment to Advance Pharmaceutical, effectively dismissing the lawsuit a third time. Sutton brought a third appeal. A key issue on appeal was whether Sutton could prevail in his lawsuit without using an expert witness. The court of appeals agreed with the trial court that he could not.

Proof of Causation

Sutton alleged that he experienced a variety of symptoms from taking acetaminophen when he believed he was taking baby aspirin. His proof that Advance Pharmaceutical caused his harm was hampered by his inability to produce the allegedly mislabeled bottle.

Sutton testified that he destroyed the bottles that contained the pills as well as the pills he did not take. The appellate opinion does not explain how Sutton hoped to prove that the pills he took were manufactured by Advance Pharmaceutical or that the pill bottle (assuming it came from Advance Pharmaceutical) was mislabeled.

The trial court determined that Sutton’s documentary evidence was unverified by a records custodian. The appellate opinion does not make the nature of the records clear, but the court agreed that the records failed to prove he suffered harm caused by the ingestion of acetaminophen.

Lack of Expert Evidence

Sutton admitted that he never saw a doctor for treatment of the symptoms that he attributed to taking mislabeled acetaminophen. Failing to see a doctor allowed him to invoke physician-patient privilege as to his medical records, but it doomed his efforts to prove causation.

Sutton could rely on his own testimony to establish that he took pills he believed to be baby aspirin. He could also rely on his own testimony about the symptoms he experienced after taking the pills. But his own testimony was insufficient to prove that the pills caused those symptoms.

The court of appeals determined that neither Sutton nor his roommate, who would have confirmed that Sutton took the pills, could prove causation. Expert evidence was therefore needed to prove that acetaminophen caused the symptoms Sutton experienced.

The court of appeals concluded that Sutton could testify as a lay witness about his own actions, but his opinion about the cause of the cause of his injuries was speculative. Only a medical expert could give admissible testimony to connect the symptoms Sutton experienced to the acetaminophen he allegedly swallowed.

The decision stands as a reminder that in most cases alleging a physical injury caused by ingestion of a drug, expert medical testimony is needed to prove that the drug caused the injury. Ordinary jurors do not typically understand the potential side effects of taking a common over-the-counter medication. Without an expert witness to educate them, the jury has no basis to determine causation. Plaintiffs who proceed without an expert witness face the risk of a judgment that dismisses their case without a trial.

Gavel and scales

Incomplete Expert Report Leads to New Trial

Different states take different approaches to the potential liability of homeowners when someone slips and falls on ice that accumulates on a sidewalk outside the home. In New Jersey, commercial property owners have a duty to keep sidewalks that abut their property safe. Residential homeowners, on the other hand, only have a duty to avoid creating an unsafe condition on a sidewalk.

The underlying issue in McBride v. Fair-Willoughby was whether a homeowner was liable for allowing water to run onto the sidewalk from a downspout. Expert witnesses disagreed about the feasibility of using a drainage system that would have avoided the runoff. The issue on appeal from a verdict in the homeowner’s favor was whether the defense expert improperly testified about his observations of neighboring houses when he had not mentioned those observations in his expert report.

Facts of the Case

April McBride and Stephanie Fair-Willoughby lived on the same street in Jersey City. On a Sunday morning in January, McBride decided to take advantage of a break in the rain to walk her dog. The sidewalk looked wet but she had no trouble walking. When she reached Fair-Willoughby’s home, she slipped on a patch of ice and fell, breaking her ankle.

McBride called her husband, who walked to her location to assist her. He observed that the entire sidewalk was wet and that the condition of the sidewalk in front of Fair-Willoughby’s house seemed no different. After making a closer inspection, however, he realized that that portion of the sidewalk was covered with black ice, a transparent sheet of ice that blends with the surface it covers.

Expert Testimony

Michael Natoli, a professional engineer, testified as a liability expert for McBride. In his opinion, melting water from the roof accumulated in Fair-Willoughby’s gutters, then traveled through a downspout to her driveway. Because of the driveway’s pitch, the water then flowed across the sidewalk.

Natoli contended that ice on the sidewalk was formed from the water that exited the downspout. Natoli suggested a couple of methods that a homeowner can use to prevent water from a downspout from flowing onto a sidewalk.

Fair-Willoughby’s only witness was also a professional engineer. David Behnken wrote a report two years after the accident occurred. He testified that Natoli’s suggestions for avoiding the problem of water drainage were not practical because Fair-Willoughby’s lot was too small.

At trial, Behnken was asked whether there was “anything improper” about the construction of the downspout on Fair-Willoughby’s property. He testified that there was not. He then added that the neighbors on both sides of Fair-Willoughby’s house had “the exact same conditions.”

Behnke’s expert report made no mention of inspecting neighboring properties or comparing Fair-Willoughby’s downspouts to those of her neighbors. Behnke based the opinions he expressed in his expert report on photographs of the accident scene. The report did not suggest that he personally inspected neighboring homes.

McBride objected that Behnken was testifying about facts that he had not mentioned in his expert report. The trial judge overruled the objection. The trial judge concluded that Behnke was merely testifying to “his observation” and that he “isn’t tied to the corners” of his report. The jury returned a verdict for Fair-Willoughby and McBride appealed.

Deviations from Expert Reports in New Jersey

Under New Jersey law, a trial judge may exclude expert testimony that comes as a surprise to the opposing party if the testimony would be prejudicial. There was no dispute that McBride was surprised by Behnke’s reference to neighboring houses.

Experts in New Jersey are typically confined to testifying only about opinions that have been disclosed in an expert report, but are generally allowed to testify about logical predicates for, and conclusions drawn from, statements made in the report.

Appellate Opinion

The trial judge’s ruling assumed that it was fair for Behnke to discuss neighboring houses because that testimony was related to his opinion that the way Fair-Willoughby’s downspout was situated was “the proper way to do it.” The appellate court concluded that the trial judge misunderstood Behnke’s testimony. Behnke’s opinion that there was nothing improper about the construction of the downspout did not establish that it is “proper” to situate a downspout to pour water onto a sloped driveway and allowing it to flow onto a sidewalk.

More importantly, Behnke’s testimony about other houses was not a logical predicate for his opinion about Fair-Willoughby’s house. Since Behnke made no mention of examining those houses, McBride had no reason to believe that he would testify about them. McBride was prejudiced by the surprise testimony because she had no opportunity to inspect the neighbors’ homes so she could verify that the testimony was accurate.

Finally, the appellate court noted that Behnke’s testimony about what other homeowners did had no relevance. He essentially invited the jury to conclude that Fair-Willoughby was not negligent because her neighbors had similar drainage systems. The question was whether Fair-Willoughby was negligent. “Everybody does it that way” was not a defense. The potential negligence of other homeowners does not absolve a negligent homeowner of liability.

The court decided that, absent the improper testimony, the jury verdict could have gone either way. Since the improper testimony may have influenced the verdict, McBride was entitled to a new trial.

Lessons Learned

The McBride case illustrates the importance of disclosing all facts in an expert report that form the basis of an expert’s opinion. Of course, the appellate court concluded that the omitted facts were not relevant. Disclosing them might have prompted a pretrial ruling that the expert could not testify about those facts. Still, it is better to resolve evidentiary issues before trial than to face a second trial after a verdict is reversed on appeal.

Experts should always take care to discuss the facts thoroughly in their reports. If lawyers intend to ask experts about facts that are not included in a report, they should make that decision before the report is submitted so that the expert has an opportunity to revise the report by including those facts.

North Carolina

Appellate Court in NC Malpractice Case Rejects Challenges Based on Expert Testimony

The North Carolina Court of Appeals was asked to decide whether expert testimony justified an “intervening cause” jury instruction when two procedures by different surgeons may have negligently caused a patient’s harm. The court was also asked to decide whether a defense expert gave improper standard of care testimony. The appellate court in Hampton v. Hearn rejected both challenges and affirmed a defense verdict.

Facts of the Case

Delacy Miles had an angioplasty and stent placement. The procedure unblocked a vein that was likely blocked because of catheter placements related to her dialysis. Dr. Andrew Hearn performed the surgery.

Dr. Hearn placed the stent in the innominate vein. Part of the stent protruded into the superior vena cava, the main blood vessel that enters the heart from the right side.

Three days later, Miles needed a permacath placement to create new access for her dialysis treatments. Dr. Gregory Schnier passed a catheter through the superior vena cava. He was unaware that Dr. Hearn had placed a stent at the junction of the innominate vein and the superior vena cava.

The procedure pushed the stent into the chamber of Miles’ heart known as the right ventricle. Miles began to experience a rapid heartbeat (tachycardia) during the procedure. Doctors discovered the broken stent in her right ventricle and transferred her to a different hospital, where a fractured piece of the stent was removed from her heart.

Miles was hospitalized for about a week as she recovered from the surgery. About a week after her discharge, she was hospitalized for a few more days to treat bleeding from the dialysis site. She then entered a nursing home, where she died from unrelated causes.

Miles’ estate sued Dr. Hearn and other parties for medical malpractice. Dr. Hearn was the only defendant at the time of trial.

Expert Testimony

Miles’ estate called Dr. Michael Dahn as its standard of care expert. Dr. Dahn testified that Dr. Hearn breached the standard of care by allowing the stent to protrude too far into the superior vena cava. He agreed that it is acceptable for a stent to extend into the superior vena cava, but considered it problematic for the stent to be positioned more than one or two millimeters into that blood vessel.

Dr. Dahn testified that Dr. Hearns’ stent placement breached the standard of care that applies to the procedure. Dr. Dahn also testified that the stent was sheared in half during the catheter insertion, causing the broken stent to enter Miles’ heart. In Dr. Dahn’s opinion, that harm was caused by Dr. Hearns’ breach of the standard of care.

Two standard of care witnesses, Dr. Steve Powell and Dr. Ray Workman, testified for Dr. Hearn. They both testified that Dr. Hearns followed an appropriate standard of care. The depositions of two other defense experts, one of whom testified as to causation, were also offered as evidence.

Intervening Negligence

A key issue in the case was whether Dr. Schnier was negligent and whether his intervening negligence absolved Dr. Hearn of blame. Two defense experts opined that Dr. Hearn could not have foreseen that part of the stent would sheer off if another doctor passed a catheter through the superior vena cava.

While Dr. Dahn testified that another doctor’s decision to pass a catheter through the superior vena cava was foreseeable, he also testified that Dr. Schnier breached the standard of care by failing to determine the position of the stent before passing a catheter through the vein.

Based on that expert testimony, the court instructed the jury that it should not find Dr. Hearn negligent if the harm was solely caused by a subsequent, intervening act of negligence. The appellate court found no error in giving that instruction.

Causation Expert Testimony

Miles’ estate objected to the expert testimony of Dr. Michael Rinaldi. Although Dr. Rinaldi was designated as a causation expert, he was not designated as a standard of care expert. The estate contended that he gave impermissible testimony about the standard of care when he was asked if there was “anything unusual” about the stent placement. Dr. Rinaldi responded that the stent was placed pursuant to a “normal procedure” that he had followed himself.

The appellate court did not decide whether the testimony was erroneously admitted — it clearly was, since Dr. Rinaldi gave an opinion about the method of stent placement normally used by surgeons like himself — but concluded that any error was cured by the court’s instruction. Before playing the video of Dr. Rinaldi’s testimony, the judge instructed the jury that Dr. Rinaldi was not providing an opinion about the standard of care.

Why the judge did not simply excise the objectionable testimony from the video is unclear. Perhaps the judge was not asked to do so. That would have been a more effective means of assuring a fair verdict than reliance on a presumption that juries follow the instructions provided by the court. The presumption is contrary to human experience, but appellate courts invoke it routinely.

Satisfied that the jurors dutifully disregarded the improper standard of care testimony, the court of appeals affirmed the verdict in favor of Dr. Hearn. This was ultimately a case of experts who disagreed. Given the court’s rulings, the jury was entitled to credit the defense experts.

 

Court Dismisses Product Case Based on Failure to Offer Expert Testimony

Johnson & Johnson has won and lost cases alleging that it markets talc-based products, including baby powder, that cause cancer. The lawsuits typically rely on expert evidence that the talc used to manufacture those products is contaminated with asbestos, a known carcinogen.

The company insists that nothing in its products is carcinogenic, a claim that was undermined by the FDA’s recent confirmation of asbestos in a bottle of J&J baby powder purchased online. That testing prompted J&J to recall a single lot of its baby powder. The testing also triggered a vigorous effort by J&J to discredit the FDA’s findings. The FDA stands behind its test results.

Relying largely on documents produced by J&J, Ann Gibbons contended that she was exposed to asbestos when she used Shower-to-Shower and Johnson’s Baby Powder. Gibbons developed mesothelioma. Asbestos exposure is the only known cause of that disease. J&J contends that her husband worked in construction and that he may have exposed her to asbestos fibers as a result of his employment.

Gibbons sued J&J for causing her mesothelioma. The California Court of Appeals affirmed a trial court decision to grant summary judgment in J&J’s favor. The question on appeal was whether Gibbons’ failure to present expert evidence was fatal to her claim.

J&J Documents

The company’s credibility has been damaged by stunning evidence that it knew for decades about the risks posed by talc contamination, but hid that information from regulators and the public. Reuters also uncovered evidence that J&J funded research that was designed to discount the risk of asbestos contamination in its products, while carefully avoiding research that might have documented asbestos contamination.

Nobody claims that every bottle of talc-based products is contaminated by asbestos, but tests showing some bottles from a particular lot to be uncontaminated do not mean that other bottles are free of asbestos contamination. Unfortunately, only a small fraction of marketed products containing talc are ever tested for asbestos contamination.

J&J’s Expert

Ann Gibbons used Shower-to-Shower and Johnson’s Baby Powder for two decades. She sued Johnson & Johnson on the theory that those products caused her mesothelioma.

J&J moved for summary judgment. It submitted an expert opinion that its products were free from asbestos contamination and for that reason could not have caused her disease.

J&J’s expert, Matthew Sanchez, is a geologist. His declaration described his expertise in testing talc and identifying asbestos. He suggested that some minerals are easily misidentified as asbestos. Based on his review of J&J’s testing and various other research, he concluded that the talc sourced from the Vermont mines that produced the products used by Gibbons were asbestos-free. He also concluded that the geology of the mines was “not favorable for the formation of asbestos.”

Gibbons’ Opposition to Summary Judgment

Gibbons presented no expert testimony to counter Sanchez. Since experts have testified in successful lawsuits that allege contamination of J&J products by asbestos, the failure to use expert testimony in Gibbons’ case is surprising.

Gibbons instead relied solely on the declaration of her lawyer, who attached hundreds of pages of exhibits. Most of the exhibits were documents created by J&J. Some of the documents addressed asbestos in different mines or were created before Gibbons began using J&J talc products.

Gibbons made no challenge to Sanchez’ qualifications. Nor, for the most part, did she challenge the methodology that supported his opinions.

Trial Court Ruling

Sanchez’ opinion that the talc products used by Gibbons were not contaminated by asbestos created a defense to Gibbons’ lawsuit. The trial court concluded that Gibbons could not overcome that defense because she failed to challenge Sanchez’ opinion with expert testimony.

The trial court concluded that documents alone would not allow a jury to draw an inference that Gibbons used J&J products that were contaminated by asbestos. At the very least, an expert was needed to interpret the documents and to explain why they supported her claim and refuted Sanchez’ opinion.

Gibbons moved for reconsideration. In support of that motion, she offered new evidence of a geologist who reviewed recently acquired data from the U.S. Geological Survey. The geologist concluded that asbestos was likely present in the Vermont mines. The trial court denied the motion and granted summary judgment to J&J.

Appellate Court Ruling

The California Court of Appeals rejected Gibbons’ argument that Sanchez relied on inadmissible hearsay. While a party cannot rely on hearsay to prove its case, an expert can identify the source of the expert’s opinion, even if that source is hearsay. A party cannot have an expert quote hearsay documents in order to defeat the hearsay rule, but Sanchez merely identified the documents that provided a basis for his opinion.

Under California law, when a party makes a prima facie showing that no facts supporting a judgment are in dispute, the burden shifts to the opposing party to present evidence showing that material facts are disputed. The Sanchez declaration was sufficient to shift the burden, since his opinion that J&J’s products were asbestos-free would, if uncontradicted by other evidence, entitle J&J to summary judgment.

With the ball in her court, Gibbons was required to introduce evidence that her use of J&J products exposed her to asbestos and that the exposure caused her mesothelioma. The fact that she has mesothelioma is strong evidence that she was exposed to asbestos, and her testimony was sufficient to establish her use of J&J products containing talc.

Whether J&J’s products were contaminated with asbestos, on the other hand, could not be proved without expert testimony. Unlike products that are intentionally manufactured with asbestos, J&J’s products are not formulated to include asbestos. While talc and asbestos deposits are often found in proximity, talc is not inevitably contaminated with asbestos whenever it is mined.

The court cited an appellate decision that reversed summary judgment for a cosmetic company because the plaintiff presented expert evidence that its talcum powder contained asbestos. While the company offered expert evidence that its product was asbestos-free, an expert geologist confirmed the presence of asbestos in the mines that produced the company’s talc and in the products themselves. Gibbons relied on no comparable expert testimony

While Gibbons relied on documents produced by J&J that arguably support her position, the appellate court determined that those documents are “highly technical.” Without expert assistance, a jury could not be expected to understand the significance of findings that might support her case or to place those findings in context. Accordingly, in the absence of expert evidence to dispute Sanchez’ expert opinions, Gibbons could not meet her burden of proving that she used J&J products that were contaminated with asbestos. Summary judgment for J&J was therefore affirmed.

 

Justice Scales

Eighth Circuit Reverses Exclusion of ADA Expert

Although expert testimony is not always necessary, it is often used in disability discrimination cases to prove that an employee is disabled. In a case recently decided in the Eighth Circuit, the question was whether an employer regarded an employee as being disabled. Whether she had an actual disability made no difference to her theory of the case.

Expert testimony was nevertheless important to prove that the employer relied on a pretext when it claimed to have fired the employee for poor job performance. An expert witness who worked in the same field as the plaintiff opined that the plaintiff performed according to professional standards. The district court’s exclusion of that opinion was reversed on appeal.

Facts of the Case

Paula Babb, a certified registered nurse anesthetist (CRNA), was employed by Maryville Anesthesiologists in Tennessee. After she had worked for a month, one of the physician-owners of the business that employed her asked her why she was placing her face so close to the computer screen. Babb told him that she had a degenerative retinal condition that made it difficult to read certain medical records.

The physician-owners began to discuss Babb’s future. One of them expressed the concern that Babb would be blind within the next ten years, although Babb denies she ever said that. Rather, Babb assured her employers that her condition did not affect her ability to perform her job.

Two physician-owners nevertheless held a meeting with Babb to discuss her condition. She explained that she had been diagnosed with a degenerative eye condition but that the condition was currently stable. The physicians told her that she was a good fit and was doing her job well. They then instructed her to obtain an update from an ophthalmologist and to report back. One of the physicians, expressing the concern that she had a disability, asked her if she had disability insurance.

The physicians asked Babb to have another CNRA confirm her reading of medical records if she had any doubt about their content. When she followed that instruction, the physicians viewed her occasional request for assistance as evidence that her vision problems were becoming more acute.

By email exchange, the physicians discussed their fear that no ophthalmologist would clear Babb to perform her work. They also discussed the need to get legal advice. Babb’s annual evaluation noted her vision problems (without documenting any impact they had on her work) and suggested that those problems were causing surgeons and other professionals not to “accept” her.

Evidence in the record suggested that any lack of acceptance resulted not from her job performance but from gossip within the hospital where her employers customarily practiced. Gossip that reflects prejudice against disabled people is not a legitimate basis upon which to base an employment termination.

Perhaps in reliance on legal advice, the physicians also documented job performance errors, although they could only find two. Neither error related to Babb’s vision, neither caused any harm, and one was entirely speculative. The physicians then decided to fire Babb on the ground that she could not provide safe patient care.

Disability Lawsuit

Babb sued her employers for violating the Americans with Disabilities Act (ADA). The ADA prohibits firing a qualified employee because of a disability. The ADA defines a disability as including an employer’s perception that the employee is disabled.

A significant impairment of vision can be a disability. When an employer fires an employee because it regards the employee as being disabled, whether the employee actually has a disability is irrelevant.

Babb argued that she was not actually fired for poor job performance, but because she was regarded as being disabled. When an employer gives a reason for discharging an employee that a jury could reasonably regard as pretextual, the jury can view the employer’s reliance on a pretext as evidence that the employer is trying to mask an unlawful motive for the firing.

Babb offered evidence that her job performance posed no threat to patients and that her employer relied on a pretext to conceal its discriminatory motive. She relied on emails and evidence from witnesses to prove that the physicians were actually motivated by the perception that Babb suffered from a disabling condition affecting her vision.

In addition, Babb offered an email written by another CNRA at the direction of a physician-owner. The email makes reference to complaints about Babb’s deteriorating vision and strongly implies that Babb was fired for that reason.

Finally, Babb relied on an expert witness. Taken together, all of the evidence should have entitled Babb to a jury trial. But many federal judges favor employers in discrimination cases and look for reasons to toss out their cases on summary judgment so that the employee will never have a chance to present evidence to a jury.

One legal scholar cites studies indicating that “judicial hostility” to civil rights claims is a continuing problem. Hostility to expert witnesses who help plaintiffs prove their cases may be a corollary to that problem.

In Babb’s case, notwithstanding fairly obvious evidence that would allow a jury to rule in Babb’s favor, the trial judge granted summary judgment in her employer’s favor. The judge excluded her expert evidence and decided that the remaining evidence was unconvincing. Babb appealed.

Expert Testimony

It is not discriminatory to fire an employee for a legitimate reason, but when an employer fabricates an excuse to justify an employment termination, the employer’s reliance on a pretext can be taken as proof that the employer is concealing a discriminatory intent. To prove that the doctors were relying on a pretext, Babb offered the opinion of an expert witness concerning her job performance.

Jennifer Hultz, an experienced CNRA, offered the opinion that the two job performance errors asserted by Babb’s employer were not errors at all. According to Hultz, even if Babb’s job performance was exactly as the doctors described, Babb did not violate the standard of care that applied to CNRAs. Hultz provided specific information about why Babb’s alleged errors were not errors, but were consistent with the way CNRAs are trained to do their jobs.

Rule 702 of the Federal Rules of Evidence requires a trial judge to decide whether an expert witness is qualified to render an opinion, whether her opinion is relevant, and whether the opinion is reliable. The trial judge did not reject Hultz’ testimony on the basis of her qualifications or reliability. Rather, the judge thought Hultz’ opinion would not assist the jury.

The judge ruled that Hultz was expressing improper opinions about the credibility of other witnesses. The judge also concluded that Hultz’ opinion invaded the province of the jury by telling the jury what result it should reach. The court of appeals rejected both grounds for excluding Hultz’ expert testimony.

Appellate Analysis

While the Court of Appeals found fault with Hultz’s opinions, it concluded that the trial court “used a sledgehammer, when the law required that it only use a scalpel.” In other words, the court erred by excluding all of Hulz’s testimony when only a few of her statements were objectionable.

The Court of Appeals agreed that some of Hultz’s statements were nothing more than attacks on the memories of the physician-owners, and thus improper attacks upon their credibility. Yet Hultz also assumed the truth of the statements made by the physician-owners and explained why, even if their memories were accurate, Babb’s actions could not reasonably be viewed as clinical errors. That testimony was relevant to the question of pretext and should not have been excluded.

The Court of Appeals rejected entirely the District Court’s conclusion that Hultz was telling the jury to conclude that the employer-based Babb’s employment termination on a pretext. That may have been the logical conclusion for the jury to draw, but the Court of Appeals recognized the important distinction between expressing an opinion on the ultimate question of liability and stating opinions that guide a jury to a particular conclusion about liability. The former is impermissible; the latter is not.

Hultz did not opine that the employer discriminated against Babb because it perceived her to be disabled. She did not use the specialized language of discrimination law, including the term “pretext,” in her report. Rather, she testified about the standard of care and whether Babb’s performance was consistent with that standard. Those were factual, not legal conclusions, and they did not invade the jury’s ultimate power to decide whether Babb was the victim of discrimination. Accordingly, Hultz’s expert testimony was admissible.

After deciding that the trial court erred by striking Hultz’s expert report, the appellate court concluded that ample evidence would allow a jury to find that Babb’s employer believed that her vision was impaired. The evidence would also allow a jury to find that the employer fired Babb for that reason. Since that evidence would allow a jury to conclude that Babb’s employer violated the ADA, she was entitled to a trial.

 

Expert Witness in Criminal Case

Expert Opinion in Patent Case Rejected as Conclusory

TQ Delta owns patents for technology that reduces the power consumed by certain systems that transmit electronic signals, including DSL systems. The technology reduces the probability of data loss that must otherwise be addressed with costly equipment.

Several providers of communications equipment or services, including Cisco Systems, Verizon, Time Warner Cable, and Dish Network (collectively “Cisco”), challenged the patents. They contended that TQ Delta’s technology was not original and thus could not be patented. Rather, they contended that knowledge publicly available prior to the patents made the TQ Delta technology obvious to anyone with ordinary skill in the field of signal transmission. To defeat the patent, Cisco also needed to prove that a person with knowledge would have been motivated to create the same technology.

The challenge was filed with the United States Patent and Trademark Office (PTO). Relying on expert testimony offered by Cisco, the PTO agreed that the patents were not valid. The Court of Appeals for the Federal Circuit held that the PTO erred by relying on expert testimony that the appellate court regarded as conclusory.

Cisco’s Expert Testimony

Administrative agency decisions must be affirmed if they are supported by substantial evidence. A decision is supported by substantial evidence if a reasonable factfinder could reach the same conclusion based on the evidence before the agency.

Expert opinions can provide substantial evidence, but only if the opinions are not conclusory. Rather, the expert’s opinion must be supported by reasoning that takes account of relevant facts. An unexplained opinion does not constitute substantial evidence to support an agency’s conclusion.

Cisco relied on the expert opinion of Dr. Jose Tellado. Dr. Tellado identified technology that was similar to TQ Delta’s and opined that a person with ordinary skill in the same field would have recognized that using that technology to solve the transmission problem in the way patented by TQ Delta “would have been a relatively simple and obvious solution.”

The appellate court concluded that Dr. Tellado provided an insufficient link between existing technology and the adaptation of that technology patented by TQ Delta. Dr. Tellado did not explain why the adaptation of the technology would have been “relatively simple.” Nor did he explain his “unsupported and conclusory” assertion that a person with ordinary skill in the field would have been motivated to make the patented adaptation at the time the patent was obtained.

The fact that another inventor could have created the same invention does not prove that the other inventor would have been done so in the same way as the patented invention. Dr. Tellado’s conclusory declaration therefore failed to provide substantial evidence to support the PTO’s decision that the patented technology was obvious. For that reason, the appellate court reversed the decision.

Lessons Learned

What may seem like a logical conclusion to an expert might be regarded as a conclusory opinion to an appellate court. Dr. Tellado needed to explain why an ordinarily skilled inventor would recognize a solution to a problem offered by existing technology and why that inventor would implement the solution in the same way it was implemented by the inventor of the patented technology. That is a daunting task.

Dr. Tellado and Cisco’s lawyers undoubtedly viewed his opinion as more than conclusory. The appellate court’s decision should encourage experts in patent litigation to justify the conclusion that an ordinary inventor would see patented technology as an obvious solution to a problem. Experts cannot work with the benefit of hindsight — the fact that one inventor devised a solution to a problem does not establish that other inventors at the time would have regarded the solution as obvious — but must offer a detailed explanation of the way in which existing technology made the adaptation of that technology in the patented invention an obvious solution to a problem.

An expert who says too much in a report might create fodder for cross-examination, but an expert who says too little risks having an opinion labeled as “conclusory.” The TQ Delta decision sends the message that the more explanation an expert provides, the less likely it is that the expert’s opinion will be dismissed as unhelpful.

 

Courtroom

Should Elected Officials Be Permitted to Testify as Experts in Community Standards?

In an ideal world, elected officials would be experts in public policy. Since no politician can have in-depth knowledge about every policy issue that might come before the government, even the most informed officials rely on information provided by experts to guide their decisions.

In the real world, elected officials need no policy expertise at all. They only need to know how to get elected. To win an election, however, politicians need to have a sense of how voters feel about issues that are significant in the community. Does the ability to win elections make elected officials experts on a community’s beliefs?

Ocean City, a resort town in Maryland, is relying on its mayor and a member of the town council as experts in “community sensibilities.” Plaintiffs who filed a lawsuit challenging a town ordinance contend that winning an election is not a sufficient qualification to testify as an expert witness.

Lawsuit Against Ocean City

In June 2017, Ocean City’s elected officials enacted an emergency ordinance prohibiting females, but not males, from going topless on beaches and in other public areas. While the nature of the emergency is not entirely clear, the ordinance was swiftly challenged by gender equality advocates who contend that women have just as much right as men to uncover their upper bodies when they visit the beach.

Most laws that require women to wear a top target clubs that feature nude dancing. Courts have recognized that dancing is a form of expression that enjoys First Amendment protection, although the Supreme Court has upheld narrow bans against nude dancing that are not intended to curtail expressive conduct.

Challenges to laws banning women from exposing their upper bodies in public areas, as opposed to private clubs, have been premised on the argument that the ordinances infringe “a women’s constitutional right not to be discriminated against on the basis of gender.” Proponents of the ordinances counter that women are anatomically different from men. They contend that female breasts, unlike their male counterparts, are inherently sexual. They accordingly argue that a traditional understanding of morality allows communities to impose anatomically-based restrictions on women that do not apply to men.

Legal challenges to bans on appearing topless in public have met with mixed results. In 1992, New York’s highest court applied the accepted rule that laws may only treat genders differently if the differential treatment serves an important governmental interest. The court noted that the prosecution offered no evidence that a topless ban served an important governmental interest, but ducked the constitutional question by ruling that the law did not apply to women in public places.

A district court in Colorado granted a preliminary injunction against a Fort Collins ordinance that prohibited women from exposing their breasts to public view. The Court of Appeals for the Tenth Circuit affirmed that decision because no governmental interest advanced by the city was sufficiently important to override the right to equality. The fact that some people are bothered when women exercise the same rights as men is not, in the court’s view, a legitimate reason to treat women unequally.

The Court of Appeals for the Fourth Circuit, addressing the question in less depth than the Tenth Circuit, concluded that the differential treatment of men and women served an important governmental interest by “protecting the moral sensibilities” of a “substantial segment of society.” For much the same reason, several state and federal district courts have upheld ordinances that required women, but not men, to cover their breasts in public.

The Fourth Circuit decision and others like it have been criticized for elevating the values of an unmeasured “segment of society” above the ability of women to exercise the same rights as men. Regardless of an individual’s own view of toplessness, court decisions that uphold topless bans depend on the assumption that community sensibilities are offended by breast exposure. The parties in the Ocean City lawsuit therefore turned to expert witnesses to define those sensibilities.

Plaintiff’s Expert Witness

The challengers to the Ocean City ordinance are making their case with the help of Dr. Debra Herbenick, a professor and director of the Center for Sexual Health Promotion at Indiana University-Bloomington. Dr. Herbenick prepared an expert report that criticizes the rationale underlying the ordinance.

According to Dr. Herbenick, Ocean City failed to account for significant similarities between male and female breasts. The primary biological difference is the ability of the female breast to manufacture milk.

Dr. Herenick opined that Ocean City overstated the “sexualization” of female breasts, given the absence of any biological distinction that makes female breasts any more sexual than male breasts. That opinion tracks the Tenth Circuit’s observation (and Judge Rovner’s dissenting opinion in a Seventh Circuit case) that arguments about public sensibility “boil down to a desire to perpetuate a stereotype” about the sexualization of female breasts.

Citing peer-reviewed studies, Dr. Herbenick noted that public sensibilities have changed and that topless women are less likely to be regarded as shocking to public sentiment than was true in the past. However, Dr. Herbenick relied on nationwide studies of thousands of people. She did not survey town residents, whose sensibilities could be more prudish than the nation’s as a whole.

Finally, Dr. Herbenick pointed out that restricting the freedom of women when that same freedom is granted to men may cause harm to girls and women by unduly focusing their attention on characteristics that society regards as sexual.

Challenge to Ocean City Experts

Ocean City filed a motion for summary judgment, asking the court to rule that the ordinance does not violate the Constitution. The plaintiffs responded by asking the court to exclude the testimony of three individuals who expressed opinions about public sensibilities in Ocean City. Two of those, the mayor and a city council member, are elected officials. The third was the president of the local Chamber of Commerce.

The plaintiffs argued that town’s witnesses are not qualified to provide expert evidence. Unlike Dr. Herbenick, who relied on peer-reviewed studies of public perceptions, the town’s three witnesses based their testimony on impressions that they formed by speaking to town residents. They took no surveys and adopted no methodology to assure that the residents with whom they spoke represented a fair cross-section of the community.

In the end, neither the plaintiffs nor the town presented evidence that statistically documents the specific sensibilities of town residents. Neither Dr. Herenick’s reliance on nationwide surveys nor the anecdotal evidence offered by the elected officials can be viewed as a reliable measurement of public opinion in Ocean City.

It seems likely that the judge will rule that politicians are situated to give lay opinions about public sentiment and that those opinions are admissible, even if they are not expert evidence. Based on the judge’s decision denying a motion for a preliminary injunction, it seems likely that the court will rule that public sentiment is a justification for treating women differently from men. If he does so, he will probably rely on testimony from town politicians in ruling that the ordinance is constitutional because it serves an important governmental interest.

 

side view of empty hospital bed

Mississippi Rejects Standard of Care Expert Testimony

Mary Thomas sought medical assistance for extreme back pain. A doctor diagnosed severe spinal cord compression. Two days later, she consulted with Dr. Adam Lewis, a neurosurgeon, who recommended surgery to fuse her cervical vertebrae.

After Dr. Lewis performed the surgery, Thomas suffered from quadriparesis, a condition characterized by weakness, but not complete paralysis, in all four limbs. Dr. Lewis performed a second surgery in an effort to relieve the condition, but the effort failed to restore full functionality to her arms and legs.

Thomas sued Dr. Lewis for malpractice. Thomas alleged that Dr. Lewis failed to manage her blood pressure, negligently allowing it to drop during the first surgery. She contended that a drop in her arterial blood pressure caused her quadriparesis. She also alleged that Dr. Lewis’ decision to perform the second surgery was negligent.

Standard of Care Evidence

Thomas based her proof on the expert testimony of a neurosurgeon, Dr. Neil Wright. Dr. Wright identified the appropriate standard of care and testified that Dr. Lewis departed from that standard.

Before the jury heard from Dr. Wright, the defense made a Daubert challenge to the admissibility of his testimony. The trial judge allowed the defense to question Dr. Wright outside the presence of the jury. The judge then decided that Dr. Wright’s testimony as to the standard of care concerning the first surgery was unreliable. The judge therefore excluded that testimony.

The judge allowed Dr. Wright to testify that the decision to perform the second surgery was negligent. After listening to that testimony, however, the judge decided that the evidence failed to establish a breach of the standard of care. The judge therefore directed a verdict in favor of Dr. Lewis.

Daubert in Mississippi

Mississippi follows the usual rule that requires a plaintiff alleging medical malpractice to present expert evidence that establishes a breach of the appropriate standard of care. The question before the Mississippi Supreme Court was whether the trial judge erred by excluding the standard of care evidence offered by Dr. Wright.

The application of Daubert to medical malpractice continues to challenge courts. Unlike chemistry and physics, medical science is inexact. The applicable standard of patient care is a matter of evolving consensus. It is not determined by experimental outcomes with known error rates.

In an earlier case, the Mississippi Supreme Court ruled that “when an expert (no matter how qualified) renders an opinion that is attacked as not accepted within the scientific community, the party offering that expert’s opinion must, at a minimum, present the trial judge with some evidence indicating that the offered opinion has some degree of acceptance and support within the scientific community.” That ruling is a clear departure from Daubert and its progeny, which rejected the concept that acceptance within the scientific community controls the admissibility of expert opinions.

The Daubert standard focuses on reliability, not on whether other experts agree with a proffered expert. A departure from generally accepted opinions is relevant to a reliability analysis, but not dispositive. The Mississippi Supreme Court did, however, note that there is no requirement that an expert’s opinion be supported by peer-reviewed articles, although it appears to have made an exception to that rule when an opposing position is arguably supported by peer-reviewed literature. In that situation, the flexible reliability analysis fashioned in Daubert seems to be trumped by a rigid requirement that an expert’s opinion must be supported by peer-reviewed literature.

Court’s Daubert Analysis

In the Thomas decision, the state supreme court first addressed a claim that the defense should have filed a Daubert motion before trial, rather than ambushing Thomas by asking to voir dire Dr. Wright during the trial before his testimony began. While the procedural rules in some jurisdictions require Daubert issues to be resolved in a more orderly fashion, Mississippi allows defendants to reserve their challenges to expert testimony until the expert is poised to testify. The supreme court’s analysis of that rule amounts to “that’s how we do it in Mississippi.”

Moving to the merits, the court concluded that Dr. Wright’s standard of care testimony regarding the first surgery was unreliable because it was “inconsistent with the medical literature.” The court did not identify that literature, so the conclusion is difficult to evaluate.

The court noted that Dr. Wright relied on literature of his own — an article published in Neurosurgery Focus — but the court concluded that the article did not establish a standard of care for managing blood pressure during neurosurgery. While the court focused on the authors’ conclusion that more studies are needed, the article’s abstract identifies several “treatment options, including maintenance of mean arterial blood pressure > 80 mm Hg,” that are designed to improve treatment outcomes. The court’s focus on the article’s statement that no “ideal” mean arterial blood pressure has been identified hardly supports its conclusion that the article identifies no standard of care.

Dr. Wright opined that articles discussing mean arterial blood pressure relied upon by the defense are irrelevant because they address surgeries involving spinal cord injuries, not surgeries involving spinal cord compression. The supreme court’s dismissive view of that opinion illustrates a key problem that arises when courts try to second-guess experts under the guise of “gatekeeping.” Dr. Wright is a neurosurgeon. He is in a better position to evaluate medical literature than state supreme court justices who have no medical training. There is, in fact, no reason to think that judges are better than jurors at evaluating medical evidence.

The court also rejected Thomas’ argument that Dr. Wright’s opinion was supported by a treating physician’s testimony that higher blood pressure is required to force blood into the confined space caused by a cervical disc herniation with stenosis. The court determined that expert testimony by the treating physician was “improper,” but whether or not it was improper, the trial court admitted it, making it evidence in the case.

More importantly, information that confirms the reliability of an expert’s opinion does not need to come in the form of admissible evidence. The state supreme court confused the concept of admissible testimony with the concept of information that supports or refutes the reliability of an expert’s opinion. After all, the articles that the supreme court found to be helpful were inadmissible hearsay, but the court relied on them anyway.

In the end, the court’s contention that Dr. Wright’s conclusions are not “reliable,” despite his reasoned explanation of those opinions and the existence of evidence to support them, amounts to a conclusion that Dr. Wright’s testimony was less credible than competing evidence. But even in Mississippi, credibility determinations are for juries, not judges, to make. Unfortunately, juries can only undertake that function when judges let them hear relevant expert testimony. When judges instead protect the medical industry from malpractice claims, juries are denied the opportunity to consider the valuable guidance that medical experts provide.

 

Lab Analysts May Be Required to Testify in Person in Criminal Trials

Failure to Hire DNA Expert Leads to New Trial

A bloody sneaker was the only physical evidence introduced in the murder prosecution of Nicholas McGuffin. The blood belonged to the crime victim, Leah Freeman. Thanks to a crime lab analyst who chose not to reveal the facts, the jury never learned that DNA belonging to an unknown male — not McGuffin — was also found on the sneaker.

The jury found McGuffin guilty of the lesser crime of manslaughter. After McGuffin completed most of his 10-year sentence, a judge ruled that a diligent defense attorney would have hired a DNA expert to review the crime lab’s file and thus would have discovered the omission. The judge granted McGuffin a new trial based on his counsel’s failure to retain an expert witness.

Facts of the Case

Fifteen-year-old Leah Freeman disappeared in June of 2000. She had been dating McGuffin, who dropped her off at her best friend’s house on the day she disappeared. Freeman later stormed out of the house after arguing with her friend. No witness saw her with McGuffin again.

The police department in Coquille, Oregon assumed that the high school student ran away from home. The police came to that conclusion despite the absence of any evidence that Freeman ran away.

On the day of her disappearance, a county employee found a tennis shoe in the road. The shoe apparently resembled tennis shoes that he had recently purchased for his child, so he picked it up and brought it home. After determining that the shoe was not his child’s, he paid no attention to it until Freeman’s disappearance was publicized.

About a week after Freeman disappeared, the county employee brought the tennis shoe to the police, who had a DNA test conducted. The test showed that the shoe belonged to Freeman.

The next day, the matching shoe was discovered by a Coos County Sheriff’s deputy in “a spot often used by local teens as a place to drink and hang out.” That spot was about ten miles from the location where the first shoe was found. During a casual conversation with a Coquille police officer, the deputy realized that the two shoes formed a pair.

Freeman’s blood was on the bottom of both shoes. The DNA of the deputy who found the second shoe was present on that shoe. The DNA of an unknown male was also found on the second shoe, but the state crime lab employee who wrote the report failed to include that critical fact.

About a month after the discovery of the second shoe, Freeman’s body was found. The body was badly decomposed. The medical examiner concluded that Freeman died from “homicidal violence” of some kind, although he could not identify a more specific cause of death.

McGuffin’s Trial

Having no evidence that pointed to a particular suspect as Freeman’s murderer, the Coquille police allowed the investigation to languish. The Coos County district attorney was displeased that an unsolved murder had occurred on his watch, but his efforts to light a fire under the police chief were unsuccessful.

Nine years later, the district attorney persuaded the new police chief to reopen the investigation. He then discovered that the police had collected a large body of evidence that he had never seen. From that evidence, he developed a list of a dozen suspects. McGuffin was on that list because he had been dating Freeman and their relationship was reportedly troubled.

The police eliminated all of the suspects but McGuffin, so the district attorney unwisely decided to charge McGuffin with the crime. “We can’t eliminate this person as a suspect” is a poor basis for subjecting someone to the risk of a criminal conviction. Most teen relationships are troubled, but the fact that a boy argues with his girlfriend falls well short of proof of guilt.

At McGuffin’s trial, the district attorney emphasized that no DNA pointed to the existence of an alternative suspect. He relied on the DNA report as evidence that no other male had touched McGuffin or her clothing.

A jury convicted McGuffin on a vote of 10-2. Oregon is the only state that permits a criminal verdict to be less than unanimous. Fortunately, every other state recognizes that wrongful convictions are less likely to occur when all twelve jurors agree on a defendant’s guilt.

Failure to Hire Defense Expert

McGuffin’s defense attorney asked for the crime lab file. The district attorney told the press that he assumed the defense lawyer would have an expert witness review the file. Apparently, the district attorney did not review the file either, perhaps on the assumption that the crime lab employee included all relevant information in her report.

Data about the unknown male’s DNA appeared in the bench notes contained in the file but, since it wasn’t in the report, the district attorney contends that neither lawyer was aware of that DNA at the time of trial. Both lawyers should be faulted for failing to pay more attention to the contents of the file, as opposed to the filtered contents of an analyst’s report.

The Oregon Innocence Project reviewed the case in 2015. Innocence Project lawyers reviewed the crime lab file, consulted with an expert, and determined that McGuffin never knew that DNA on Freeman’s shoes belonged to an unknown male. A new analysis discovered that the unknown male had left DNA on both shoes.

Since the shoes were discovered at different times in different locations by different people, the likelihood is that the unknown male is the actual killer. The judge who considered McGuffin’s request for a new trial found that “the DNA is not from the various males associated with the case.” That finding undercuts the district attorney’s unsupported speculation that the same ungloved police officer might have handled both shoes.

The failure to disclose the existence of DNA that was known to the crime lab was compounded by the misleading testimony of crime lab employee Kathy Wilcox, who told the jury “that the only DNA evidence found on Freeman’s blood-spattered Nike sneakers belonged to the victim and to a sheriff’s deputy who had handled the evidence.” That testimony was blatantly untrue.

The judge did not fault the district attorney, who claims he was unaware of state crime lab protocols that purportedly gave analysts discretion to ignore small DNA samples. Whether that is a correct statement of the crime lab protocol is a disputed fact that the judge did not resolve. If that protocol existed, it allowed (and perhaps encouraged) crime lab employees to ignore evidence that was inconsistent with the prosecution’s theory of guilt.

Lessons Learned

The judge ultimately decided that McGuffin was deprived of his constitutional right to the effective assistance of counsel. A reasonably prudent lawyer would have hired an independent DNA expert to review the crime lab report. Had counsel done so, the jury may well have concluded that McGuffin was innocent.

Given the propensity of some state crime lab employees to slant their testimony to favor the police and prosecutors, defense counsel should always hire an independent expert whenever forensic results of crime lab investigations are important to a criminal prosecution. McGuffin’s case illustrates the important role that independent experts play in the criminal justice system.

Fortunately for McGuffin, the district attorney has decided not to seek a retrial. The independent experts who were belatedly retained on McGuffin’s behalf thus helped him win his freedom and restored his opportunity to live his life.

 

Medical Expert

When Is an Expert Needed to Prove an ADA Disability Claim?

Medical experts often provide evidence that helps injury victims prove their damages. In some litigation, including medical malpractice cases, medical evidence is also needed to prove liability.

Is medical evidence needed to prove a claim under the Americans with Disabilities Act? A decision of the Court of Appeals for the Tenth Circuit explains that the answer depends on the nature of the plaintiff’s alleged disability.

Facts of the Case

Empire Marketing Strategies (EMS) employed Jonella Tesone as a product merchandiser. Her job duties included changing product displays in grocery stores. When it hired Tesone, EMS was aware that she could not lift more than 15 pounds.

EMS gave Tesone a performance review after she stayed an additional night in Colorado to complete a time-consuming project. Tesone did not obtain permission to stay an extra night at the hotel. During the review, Tesone explained that she needed extra time to finish the project because of her lifting limitation.

For the first time, EMS requested documentation of the limitation. Four months later, after repeated requests, Tesone supplied a doctor’s recommendation that her chronic back pain be accommodated by limiting her job duties so that she would not be required to lift more than 15 pounds or to lift anything above her head.

Tesone presented evidence that EMS suddenly began to make subjective complaints about her job performance. It then terminated Tesone’s employment for “consistent violations of company policies.”

Complaints about job performance that only arise after the employee asks the employer to follow the law are inherently suspicious. Tesone argued that the performance concerns were invented as pretexts to mask her employer’s desire to fire her rather than to accommodate her lifting restriction.

The ADA Accommodation Requirement

Under the Americans with Disabilities Act (ADA), employers must provide reasonable accommodations that will allow disabled employees to perform their essential job functions if the employer can do so without undue hardship. Federal court decisions consistently undermined the remedial purpose of the 1990 law until Congress revitalized the ADA in 2008. New legislation was enacted that year that eliminated many of judicial interpretations of the ADA that undercut its effectiveness.

The ADA defines a disability as an impairment of body or mind that substantially limits (or that an employer regards as limiting) a major life activity. Under the current version of the ADA, an individual whose major life activities are significantly limited as compared to the general population has a “substantial” limitation.

Major life activities include such ordinary functions of daily living as standing, walking, sleeping, breathing, seeing, hearing, and working. The impairment of a bodily organ or system is also defined as the impairment of a major life activity.

Many federal judges denied discrimination claims advanced by disabled employees prior to 2008 after concluding that the employees failed to prove that they were disabled. Judges often required employees to prove that their disabilities were severe and long-lasting, notwithstanding the absence of any language in the ADA that limited the ADA’s protections to a small subset of disabled employees.

When Congress amended the ADA in 2008, it made clear that proving the existence of a disability should not be an onerous burden. Courts should instead focus on whether an employer met its legal obligation to accommodate a disabled employee who was capable doing the work with an accommodation.

Failure to Designate Expert

The district court entered a scheduling order that set a deadline for disclosing expert witnesses. Tesone failed to meet that deadline. Counsel for EMS told Tesone that she could not prevail without an expert. A Magistrate Judge expressed that same opinion during a settlement conference.

After the settlement conference, Tesone filed a motion to enlarge the time for naming an expert. She also moved to amend her complaint to allege that she was discriminated against because of a perceived disability. Since an employer’s perception that an employee is disabled does not require proof that the employee is actually disabled, no expert testimony would be needed to support that claim.

The district court decided that Tesone waited too long to file her motions. The court concluded that nothing prevented Tesone from complying with the scheduling order’s deadlines for amending the complaint and designating an expert witness. Since Tesone failed to act with reasonable diligence, she could not demonstrate good cause to extend the deadlines.

The district court next concluded that expert testimony is necessary to establish the existence of a disability. Since Tesone could not produce that testimony, the court granted summary judgment in favor of EMS. Tesone appealed.

When Is Expert Testimony Required to Prove an ADA Claim?

The court of appeals agreed with the district court that Tesone failed to show good cause to amend her complaint to allege claims of discrimination on the basis of perceived disability or retaliation. While complaints must generally allege facts rather than legal theories, the case is a reminder to lawyers that they may be out of luck if a complaint fails to put a defendant on notice as to each legal theory the plaintiff might pursue.

The court of appeals disagreed, however, that summary judgment necessarily followed from the failure to name an expert. It should be self-evident that juries do not always need a medical opinion to prove that a plaintiff is disabled. A plaintiff who is confined to a wheelchair, for example, can easily establish the existence of a disability through his or her own testimony.

Expert testimony may nevertheless be helpful in establishing the existence of a disability. The regulations interpreting the ADA make clear that parties are not prohibited from relying on expert evidence to prove their claims or defenses. However, the regulations also state that a comparison of a plaintiff’s ability to perform a major life activity to the general population’s ability to perform the same activity “usually will not require the presentation of scientific, medical, or statistical analysis.”

In some cases, expert evidence may be critical. It is doubtful, for example, that most people are capable of self-diagnosing a psychological disorder. The existence of many physical disorders, on the other hand, produce obvious disabling symptoms.

The symptoms of a disabling health condition may be sufficiently recognizable to make it unnecessary to use an expert to prove that they substantially limit the performance of major life activities. Notably, the ADA does not require an employee to prove the cause of a disability (which may require a medical diagnosis), but only that the disability exists and that it impairs a major life activity.

The ultimate question is whether a health condition would be so outside the realm of a typical juror’s experience that an expert diagnosis is required to prove its existence. The court of appeals cited the example of a rare condition that causes the death of bone tissue because of a deficient blood supply. Since most jurors would not be familiar with that condition, expert evidence is needed to prove that it meets the definition of a disability.

Appellate Court’s Ruling

The court of appeals recognized that some heath conditions can be readily understood on the basis of a lay juror’s own observations and experience. As an example, the court cited a knee injury that impairs an injury victim’s ability to walk normally. The court cited other cases addressing arm, neck, and back injuries. A victim’s own testimony, describing how those injuries limit the victim’s activities, is often sufficient to prove the injuries are disabling. All of those conditions are familiar to lay jurors, many of whom will have experienced (or at least observed) similar impairments, even if the symptoms that the jurors experienced were less severe than the plaintiff’s.

Tesone’s condition — back pain that is exacerbated by lifting — is neither rare nor of a character that can only be understood by a medical professional. Lay jurors are capable of understanding that severe back pain can be disabling. Tesone should therefore have been allowed to prove she is disabled by testifying about the ways in which her back pain limited her major life activities.

Since nothing in the ADA requires expert testimony to prove the existence of a disability, the district court committed legal error by holding that expert testimony is always necessary to establish a plaintiff’s case. The court did not decide whether Tesone’s own testimony was sufficient to prove her disability but remanded the case to the district court to decide that question using the correct legal standard.

Lessons Learned

Back pain might or might not be disabling, depending on its severity. The case will likely turn upon whether Tesone described the limitations she experienced in sufficient detail to permit a jury to conclude that her pain substantially limits the major life activity of lifting.

Her case would have been stronger, and this controversy could have been avoided, if Tesone had submitted admissible expert evidence of her back condition and the lifting restriction that it caused. The case stands as a reminder that even when expert testimony is not necessarily required, experts can help parties make a more convincing case.