Justice Scales

Eighth Circuit Reverses Exclusion of ADA Expert

Written on Thursday, February 6th, 2020 by T.C. Kelly
Filed under: ExpertWitness

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.


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.

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.