JOHN W. DeGRAVELLES, District Judge.
Before the Court are two motions to exclude expert testimony filed by Louisiana Health Service and Indemnity Company d/b/a Blue Cross and Blue Shield of Louisiana ("Defendant" or "Blue Cross"): one to exclude the report and testimony of expert witness Jane Bernhardt offered by plaintiff Catherine Jones ("Jones" or "Plaintiff") and the other to exclude the report and testimony of Plaintiff's expert witness Louis Lipinski (Docs. 22 and 23, respectively). For the reasons which follow, both motions are granted in part and denied in part.
Plaintiff was a Medical Review Nurse hired by Blue Cross. In July 2013, she suffered a stroke. As a result of the stroke, she suffered, among other things, a specific kind of partial vision loss called right homonymous hemianopsia in which the right side of her field of vision is completely void.
Plaintiff returned to work at Blue Cross in August 2013. In December 2014 she resigned; she sought reinstatement, but her request was denied. Plaintiff claims that Blue Cross failed to reasonably participate in the interactive process, failed to provide her with reasonable accommodations and constructively discharged her, all in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. Blue Cross denies these claims and insists that it acted legally at all times and complied with its obligations under the ADA.
Janet Bernhardt is a Certified Low Vision Therapist whose report is attached to Blue Cross's motion (Doc. 22-1). Portions of her February 16, 2017 deposition are found at Docs. 22-4 and 25-6.
In her report, Bernhardt describes the documents she reviewed, the test that she performed and describes the "visual affects" of Plaintiff's right homonymous hemianopsia. She also lists 14 symptoms from which Plaintiff suffers which are listed on Low Vision Centers of Indiana's homonymous hemianopsia symptom checklist as well as another "cluster of deficits" associated with this condition. Among other conclusions reached, Ms. Bernhardt states that "if Ms. Jones would have had the following after her vision loss, she would have been able to keep up with productivity and retain her job . . ." and then lists eight actions, with sub-parts, which allegedly could have been taken to ameliorate the effects of Plaintiff's condition.
In its motion, Blue Cross seeks to exclude Ms. Bernhardt's report and testimony for the following reasons:
Doc. 22-7 at 16-17.)
In addition, in briefing, Blue Cross adds another complaint:
The Court will address each of these issues separately.
Pursuant to Federal Rule of Evidence 702, "a witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise" if the rule's preconditions are met.
Blue Cross's motion is a Daubert challenge based principally on Bernhardt's alleged failure to use an accepted methodology and her alleged lack of an adequate factual foundation. See Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993). When Daubert is invoked, a district court may, but is not required to, hold a hearing at which the proffered opinion may be challenged. Carlson v. Bioremedi Therapeutic Sys., Inc., 822 F.3d 194, 201 (5th Cir. 2016). However, when no hearing is held, "a district court must still perform its gatekeeping function by performing some type of Daubert inquiry." Id. "At a minimum, a district court must create a record of its Daubert inquiry and `articulate its basis for admitting expert testimony.'" Id. (quoting Rodriguez v. Riddell Sports, Inc., 242 F.3d 567, 581 (5th Cir. 2001)).
The role of the trial court is to serve as the gatekeeper for expert testimony by making the determination of whether the expert opinion is sufficiently reliable. As the Fifth Circuit has held:
Watkins v. Telsmith, Inc., 121 F.3d 984, 988-89 (5th Cir. 1997) (internal citations omitted).
Cases following Daubert have expanded upon these factors and explained that Daubert's listing is neither all-encompassing nor is every factor required in every case. See, e.g., Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142 (1997); Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004). Indeed, courts may look to other factors. Joiner, 522 U.S. at 146.
As this Court has explained:
Fayard v. Tire Kingdom, Inc., 2010 WL 3999011 at *1 (M.D. La. Oct. 12, 2010) (internal citations omitted) (citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999)).
This Court has broad discretion in deciding whether to admit expert opinion testimony. See, e.g., Joiner, 522 U.S. at 138-39 (appellate courts review a trial court's decision to admit or exclude expert testimony under Daubert under the abuse of discretion standard); Watkins, 121 F.3d at 988 ("District courts enjoy wide latitude in determining the admissibility of expert testimony."); Hidden Oaks Ltd. v. City of Austin, 138 F.3d 1036, 1050 (5th Cir. 1998) ("Trial courts have `wide discretion' in deciding whether or not a particular witness qualifies as an expert under the Federal Rules of Evidence.").
"Notwithstanding Daubert, the Court remains cognizant that `the rejection of expert testimony is the exception and not the rule.'" Johnson v. Samsung Elecs. Am., Inc., 277 F.R.D. 161, 165 (E.D. La. 2011) (citing Fed. R. Evid. 702 Advisory Committee Note (2000 amend.)). Further, as explained in Scordill v. Louisville Ladder Grp., L.L.C.:
2003 WL 22427981 at *3 (E.D. La. Oct. 24, 2003) (Vance, J.) (internal citations omitted) (relying on, among others, Rock v. Arkansas, 483 U.S. 44, 61 (1987), and United States v. 14.38 Acres of Land, More or Less Sit. In Leflore County, Miss., 80 F.3d 1074, 1077 (5th Cir. 1996)).
The Supreme Court has recognized that not all expert opinion testimony can be measured by the same exact standard. Rather, the Daubert analysis is a "flexible" one, and "the factors identified in Daubert may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert's particular expertise, and the subject of his testimony." Kumho, 526 U.S. at 150, cited with approval in Pipitone v. Biomatrix, Inc., 288 F.3d 239, 244 (5th Cir. 2002).
In that vein, the Fifth Circuit has concluded that "soft sciences" involve "necessarily diminished methodological precision" when compared to other scientific disciplines like mathematics and engineering. United States v. Simmons, 470 F.3d 1115, 1123 (5th Cir. 2006) (quoting Jenson v. Eveleth Taconite Co., 130 F.3d 1287, 1297 (8th Cir. 1997)).
Id. (internal citations omitted) (relying on Pipitone, 288 F.3d at 247).
Ms. Bernhardt is a certified Low Vision Therapist who has a B.S. in elementary education and obtained her certification in low vision therapy from the Pennsylvania College of Optometry. (Doc. 22-7 at 6.) She has testified as Low Vision Expert in a New Jersey court and acted as a consultant to U.S. Department of Justice in an investigation of a New Mexico school for the blind that did not provide Braille instruction. (Id. at 14.) She has attended workshops in which the ADA and an employer's obligation to accommodate an employee were covered as a subject. She has not testified as an expert in an ADA case.
Plaintiff argues that, while Blue Cross attacks Bernhardt's qualifications to render an opinion about "reasonable accommodations" or "essential job functions," Ms. Bernhardt never uses those terms. Plaintiff also argues that Ms. Bernhardt is well-qualified to give the opinions posited in her report.
Federal Rule of Evidence 702 requires that an expert be properly qualified. Generally, if there is some reasonable indication of qualifications, the court may admit the expert's testimony and then leave to the jury the extent of those qualifications. Rushing v. Kansas City S. Ry. Co., 185 F.3d 496, 506 (5th Cir. 1999), superseded by statute on other grounds. The Supreme Court in Kumho Tire, 526 U.S. at 148-149, 156, and Daubert, 509 U.S. at 592, endorsed expert testimony based on personal observation and experience.
If the expert's testimony does not rest on traditional scientific methods, the court may permit testimony "where a proposed expert witness bases her testimony on practical experience rather than scientific analysis." Davis v. Carroll, 937 F.Supp.2d 390, 412 (S.D.N.Y. 2013). "In such cases . . . courts recognize that experts of all kinds tie observations to conclusions through the use of what Judge Learned Hand called `general truths derived from . . . specialized experience.'" Id. at 412 (quoting Kumho Tire, 526 U.S. at 149-50); see also Maiz v. Virani, 253 F.3d 641, 669 (11th Cir. 2001). ("[T]here is no question that an expert may still properly base his testimony on `professional study or personal experience.'" (emphasis added)); Watson v. Snap-On Tools, Inc., 2006 WL 2114558 at *5 (W.D. La. July 26, 2006).
The Court finds that Bernhardt's qualifications are sufficient to allow her to testify as to the opinions in her report. She is formally trained in her field and certified, has acted as consultant for the Department of Justice, and been accepted as an expert witness. The fact that she has relatively little experience as an expert witness is not grounds for disqualification. The courts have rejected the notion that the Federal Rules of Evidence require an expert to have previously opined on a specific issue to be "qualified" as an expert on that issue. See, e.g., BP Exploration & Prod., Inc. v. Callidus Techs, L.L.C., 2003 WL 26118097 at *1-2 (E.D. La. Apr. 8, 2003). Furthermore, "Rule 702 does not mandate that an expert be highly qualified in order to testify about a given issue. Differences in expertise bear chiefly on the weight to be assigned to the testimony by the trier of fact, not its admissibility." Carlson, 822 F.3d at 199 (quoting Huss v. Gayden, 571 F.3d 442, 452 (5th Cir. 2009).
Bernhardt conducted an in-person assessment of Plaintiff which included an interview and "low vision assessment," including various vision tests. She also reviewed Plaintiff's medical records. While Bernhardt's report is bare bones, to say the least, when viewed together with her deposition,
Blue Cross criticizes Bernhardt's support for her opinions, suggesting that, for instance, she "did not bother to check and determine whether the accommodation she claims Blue Cross should have provided was even accommodation that Blue Cross could provide." Blue Cross points to Bernhardt's inability to "name a single person" who suffers from Plaintiff's condition who has been provided the accommodations by Louisiana Rehabilitation Services she claims Plaintiff should have been given. Blue Cross also criticizes Bernhardt for recommending the use of Kurzweil, a text-to-speech software, even though she admitted having no experience training people with vision loss in the use of the software.
"As a general rule, questions relating to the bases and sources of an expert's opinion affect the weight to be assigned that opinion rather than its admissibility and should be left for the jury's consideration." United States v. 14.38 Acres of Land More Or Less Situated in Lefore County, Miss., 80 F.3d at 1077 (quoting Viterbo v. Dow Chemical Co., 826 F.2d 420, 422 (5th Cir. 1987)); see also Imperial Trading Co. v. Travelers Property Cas. Co. of America, 2009 WL 2356292 at *3 (E.D. La. July 28, 2009). Furthermore, "[m]atters left for the jury's consideration include the alleged miscalculations, erroneous assumptions, and inconsistencies that plaintiffs object to." Imperial Trading, 2009 WL 2356292 at *3 (citing Southwire Co. v. J.P. Morgan Chase & Co., 258 F.Supp.2d 908, 935 (W.D. Wis. 2007)). Here, Blue Cross's attack goes to the weight, not admissibility, of Bernhardt's testimony and, no doubt, will be the subject of vigorous cross-examination by counsel for Blue Cross where the sufficiency of this testimony should properly be tested.
However, there are two opinions Bernhardt gives which deserve closer evaluation. The first is that, had certain actions been taken by Blue Cross, Plaintiff "would have been able to keep up with productivity and retain her job." In its briefing, Blue Cross points out that "Bernhardt admitted she did not review [P]laintiff's job description for a Medical Review Nurse at Blue Cross prior to rendering her opinion in the report dated January 3, 2017. Importantly, she was made aware that there were certain production standards applicable to Plaintiff's employment; however, Ms. Bernhardt does not know what the standards were." (Doc. 22-7 at 15.) But, in looking closely at Bernhardt's actual testimony, she states that she did not need this information because, given Plaintiff's condition and what the suggested rehabilitation modalities would have been able to accomplish, "I know that she [could have] perform[ed] anything on a computer. She [could have] do[ne] any of those activities if she [had been] provided the proper equipment and the training that goes along with that equipment." (Doc. 22-4 at 16.) Thus there is a basis for her opinion and the sufficiency of that basis will be left to the jury.
Second, Bernhardt opines that "[i]f [Plaintiff] had received the proper referral, equipment and training she would be living a life much like the one she had before her stroke and vision loss." There is evidence that Plaintiff has medical issues that go far beyond those associated with vision loss. Bernhardt is not qualified to opine on how rehabilitation therapies would have allowed Plaintiff to resume her pre-stroke life as it pertains to medical conditions other than vision loss. To that extent, Blue Cross's motion is granted.
Blue Cross charges that Bernhardt gives "unsubstantiated legal opinions," but it fails to identify specific legal opinions to which it objects. Presumably it is referring to a related charge that Bernhardt opines on "what constitutes a reasonable accommodation, a disability, or an essential job function." (Id. at 16.) But, as Plaintiff points out, Bernhardt does not use the terms "reasonable accommodation" or "essential job functions."
Federal Rule of Evidence 704 provides that "[a]n opinion is not objectionable just because it embraces an ultimate issue." However, the Fifth Circuit has "repeatedly held that this rule does not allow an expert to render conclusions of law." Snape-Drape, Inc. v. C.I.R., 98 F.3d 194, 198 (5th Cir. 1996); see also Owen v. Kerr-McGee Corp., 698 F.2d 236, 240 (5th Cir. 1983).
"The task of separating impermissible questions which call for overbroad or legal responses from permissible questions is not a facile one." Owen, 698 F.2d at 240. In Owen, the Fifth Circuit explained:
Id.
Blue Cross has pointed the Court to no specific "legal conclusion" that it argues Bernhardt makes. The Court, therefore, denies this portion of the motion but will entertain objections to any specific question at trial which asks for a legal conclusion.
Blue Cross's final argument concerning Bernhardt is based on Federal Rule of Evidence 403, namely that any probative value of Bernhardt's testimony is outweighed by the danger of unfair prejudice or waste of time. The Court disagrees. The Court has reviewed the arguments, Bernhardt's report, and the attachments to the briefing, and the Court does not believe that these risks substantially outweigh the probative value of Bernhardt's opinion. Blue Cross is free to vigorously cross-examine Bernhardt and offer its own expert testimony on the issues in this case. It will be the jury's decision as to how much weight and value to give to the respective opinions.
Blue Cross also moves to Exclude Evidence (Report) and Testimony of Plaintiff's Expert Louis Lipinski (Doc 23), attaching the report at issue as Doc. 23-1.
Lipinski is a Certified and Licensed Rehabilitation Counselor. (Doc. 23-1 at 5.) He conducted a vocational evaluation of Plaintiff which consisted of reviewing Plaintiff's medical records and employment records, conducting a client interview, contacting the Job Accommodations Network and performing research regarding the ADA. (Id. at 1.) He reached the following conclusions:
attacking Bernhardt's opinions, namely:
The standard used by the Court in evaluating this challenge is the same as articulated in connection with the Bernhardt challenge and will not be repeated here.
Blue Cross "does not dispute Mr. Lipinski's qualifications as a psychologist or vocation rehabilitation counselor or his ability to render opinions as such." (Doc. 23-5 at 12.) However, according to Blue Cross, Mr. Lipinski is "not qualified to render the opinions he has proffered in this case regarding whether Plaintiff is qualified to perform the job duties of a Medical Review Nurse and meet production standards, the essential functions of . . . Plaintiff's job, that Plaintiff is disabled under the Americans with Disabilities Act, what constitutes a reasonable accommodation or whether Blue Cross properly engaged in the interactive process." (Id.) However, other than to attack the merits of his report, e.g., by claiming that Lipinski "makes no mention of the fact that Plaintiff stated she considered herself unable to perform any job duties as a result of her worsening health issues," (Id. at 11), Blue Cross generally does not explain why it feels that Mr. Lipinski is not qualified to render his opinions. Moreover, as the Court previously explained in ruling on Bernhardt's report, attacks on the merits of an expert's opinion are not properly the subject of a Daubert challenge and are the province of the jury. Mr. Lipinski is a well-qualified and very experienced vocational rehabilitation analyst and his opinions are well within the range of his expertise. Blue Cross's challenge in this regard is rejected.
Blue Cross attacks Lipinski's methodology "because it is devoid of any supporting methodology or analysis." That simply is untrue. On the first page of Lipinski's report, he explains that he "conducted a vocational evaluation that consisted of review of medical information, review of employment records, client interview, contact with the Job Accommodations Network and research regarding the Americans With Disabilities Act."(Doc. 23-1 at 1.) As mentioned earlier, "soft sciences" involve "necessarily diminished methodological precision" when compared to other scientific disciplines like mathematics and engineering. Simmons, 470 F.3d at 1123. As stated by the Fifth Circuit in Simmons,
Id. (citing Pipitone, 288 F.3d at 247).
Such is the case here. Mr. Lipinski uses standard methodology utilized by vocational rehabilitation experts conducting such inquiries, and the Court concludes that it is sufficiently reliable to withstand a Daubert challenge. This aspect of Blue Cross's challenge is rejected.
Blue Cross challenges Lipinski's conclusions that Plaintiff was able to perform the "essential functions" of her job; that Blue Cross "did not engage in an interactive process designed to explore accommodation options"; and that Plaintiff was terminated because of her disability." Blue Cross argues that these conclusions invade the province of the jury or are legal conclusions. As mentioned in connection with the ruling on Blue Cross's challenge to Bernhardt's testimony, the Fifth Circuit has made it clear that expert witnesses may not render "legal conclusions." However, the Advisory Notes and case law demonstrate that distinguishing between forbidden and permissible conclusions is not always easy and depends upon the specific questions that an expert is asked. As the Middle District of Pennsylvania observed in Orner v. Nat'l Beef Packaging Co., "jurors in ADA cases require a certain contextualization of the applicable law and the vocational practices the ADA has spawned, yet the ultimate determination as to liability must remain the jury's and the jury's alone." 2015 WL 8334544 at *7 (M.D. Pa. Dec. 9, 2015).
For reasons previously discussed, it is impossible to rule in advance on every possible question and formulation, but the Court provides this non-exclusive guidance. Mr. Lipinski will be allowed to give his opinion as to whether Plaintiff's condition disabled her from her job at Blue Cross and the manner in which it did. He will be allowed to describe the concept of "accommodation" and the interactive process and compare Blue Cross's conduct to it. He will be able to opine as to what accommodations Blue Cross might have made in Plaintiff's case and whether, with those accommodations, Plaintiff would have been able to perform her duties as a Medical Review Nurse. He will not be allowed to give his opinion as to whether Blue Cross engaged in good faith in the interactive process or offered Plaintiff reasonable accommodations within the meaning of the ADA.
The Court finds, with the restrictions imposed, Lipinski's report and testimony provide relevant information for the jury's consideration which is not outweighed by risks of unfair prejudice, confusion or waste of time.
To summarize, Blue Cross's motions in limine concerning the expert reports of Bernhardt and Lipinski (Docs. 22 and 23) are granted to the limited extent that Bernhardt may not opine that, "[i]f [Plaintiff] had received the proper referral, equipment and training she would be living a life much like the one she had before her stroke and vision loss," and Lipinski may not opine on whether Blue Cross engaged in good faith in the interactive process or offered Plaintiff "reasonable accommodations" within the meaning of the ADA. In all other respects, these two motions are denied without prejudice to objections to specific questions during trial.
