Equal Employment Opportunity Commission v. Western Trading Company, Inc.

Filing 134

ORDER Plaintiff EEOCs Motion Pursuant to Federal Rule of Evidence 702 to exclude the Opinions of Donna Ferris and Richard Hughes ECF No. 88 is DENIED, Judge William J. Martinez on 2/19/2013.(ervsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 10-cv-02387-WJM-MJW
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
and
TYLER RILEY,
Plaintiff-Intervenor,
v.
WESTERN TRADING COMPANY, INC.,
Defendant.

ORDER DENYING PLAINTIFF EEOC’S MOTION PURSUANT TO FEDERAL
RULE OF EVIDENCE 702 TO EXCLUDE THE OPINIONS OF
DONNA FERRIS AND RICHARD HUGHES
Plaintiffs Equal Employment Opportunity Commission (“Plaintiff”1) and PlaintiffIntervenor Tyler Riley bring claims against Defendant Western Trading Company, Inc.
for disability discrimination, failure to accommodate, and unlawful co-mingling of
personnel and medical records, all in violation of the American with Disabilities Act.
(ECF No. 1.)
Before the Court is Plaintiff’s Motion Pursuant to Federal Rule of Evidence 702
to Exclude the Opinions of Donna Ferris and Richard Hughes (“Motion”). (ECF No. 88).

1

The Court notes that Tyler Riley, the Plaintiff-Intervenor in this case, has not joined in
the Motion. Thus, the Court’s reference to “Plaintiff” for purposes of the instant Motion includes
only the EEOC.

For the reasons set forth below, the Motion is denied.
I. LEGAL STANDARD
A district court must act as a “gatekeeper” in admitting or excluding expert
testimony. Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1232 (10th Cir. 2004). Admission
of expert testimony is governed by Rule 702, which provides:
If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise, if (1)
the testimony is based upon sufficient facts or data, (2) the
testimony is the product of reliable principles and methods,
and (3) the witness has applied the principles and methods
reliably to the facts of the case.
Fed. R. Evid. 702.
The proponent of the expert testimony bears the burden of proving the
foundational requirements of Rule 702 by a preponderance of the evidence. United
States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009).
II. ANALYSIS
Plaintiff moves to exclude the testimony of Defendant’s proposed expert
witnesses: Donna Ferris & Richard Hughes. The Court will discuss each in turn below.
A.

Donna Ferris
Donna Ferris was designated by Defendant as an expert in “rehabilitation

counseling, vocational counseling, vocational education, and vocational rehabilitation”
and was retained to “take a look at Mr. Riley’s ability to work generally”. (ECF No. 88 at
3.) Based on her expert report and her deposition testimony, Ms. Ferris will likely opine

-2-

that: (1) Mr. Riley can do the type of work he has historically performed; (2) he could
have made more effort to find work after his separation; and (3) he could have
remained working in jobs he had previously held after his separation.
Plaintiff moves to exclude all of Ferris’s opinions on the following bases: (1) they
are not reliable; (2) they are on topics which do not require expert testimony; and/or (3)
they are prejudicial and confusing. Having reviewed all of the arguments and the
evidence, the Court finds that Plaintiff’s arguments go to the weight of the evidence
rather than its admissibility.
Vocational and/or rehabilitation counselors are routinely permitted to testify in
cases involving an individual with a disability. See, e.g., E.E.O.C. v. Picture People,
Inc., 684 F.3d 981, 999 (10th Cir. 2012). Plaintiff does not dispute that Ms. Ferris has
the educational background and the necessary experience to form the opinions which
Defendant intends to proffer in this case. The Court finds that Ferris’s testimony could
assist the finder of fact in determining the extent to which Riley was able to work and
whether his job search was reasonable. Thus, the Court finds that Ferris’s testimony is
admissible for purposes of Rule 702.
The Court’s decision will not preclude Plaintiffs from cross-examining Ms. Ferris
at trial regarding the information she reviewed in this case, and the rigor with which she
applied such information, in order to sway the jury regarding the weight to be accorded
her testimony. See Lovato v. Burlington N. & Santa Fe Ry. Co., No. CIV.A.
00–RB–2584, 2002 WL 1424599, at *4 (D. Colo. June 24, 2002) (finding expert
sufficiently qualified, and stating, “Whatever shortcomings [the defendant] may perceive
in [plaintiff’s expert’s] academic or professional background are more properly
-3-

addressed in cross-examination. [The defendant’s] challenge to [his] qualifications go
to the weight of the witness’s testimony, and not to its admissibility.”).
Plaintiff also contends that much of Ferris’s export report contains information
that is not material to any of her conclusions, such as Riley’s medical history. The
Court agrees that, when testifying, Ms. Ferris must adhere to the requirement in Rule
702(b) that she base her opinions on sufficient facts or data. If, as Plaintiff contends,
Riley’s medical history did not affect her opinion, she should omit any reference to the
same. See Fed. R. Evid. 702 Advisory Committee’s Note (“If the witness is relying
solely or primarily on experience, then the witness must explain how that experience
leads to the conclusion reached, why that experience is a sufficient basis for the
opinion, and how that experience is reliably applied to the facts.”). Thus, the Court will
require Ms. Ferris to offer a basis for any expert opinion to which she testifies at trial, at
the peril of its exclusion under Federal Rule of Evidence 702.
With respect to the information contained in Ferris’s report which has now been
ruled inadmissible by the Court, such as Riley’s drug and alcohol history and his receipt
of Social Security benefits, the Court notes that Ferris’s report is not admissible at trial
so the Court need not be concerned with redaction. However, Defendant is on notice
that the Court will not permit Ferris to testify about subjects that it has excluded from
the trial. Counsel should inform Ferris of the Court’s ruling and ensure that she does
not testify about any inadmissible aspects of Riley’s background.
B.

Dr. Richard Hughes
Dr. Hughes is a physician that specializes in neurology. Defendant intends to

proffer at trial his opinions about the course and nature of Mr. Riley’s epilepsy as well
-4-

as general precautions for epileptic patients. Plaintiff does not challenge Hughes’s
ability to testify about Riley’s medical condition or anything related to neurology. (ECF
No. 88 at 14-16.)
The only opinion that Plaintiff challenges is Hughes’s opinion that Defendant
acted “appropriately” when it repeatedly asked for medical releases indicating that Riley
could climb ladders. (ECF No. 88 at 14.) Plaintiff contends that Hughes is not an
expert on the ADA and, therefore, is not qualified to opine about what is “appropriate”
for purposes of complying with the ADA’s requirements. Plaintiff argues that allowing
Hughes to testify about the appropriateness of Defendant’s actions would confuse the
jury.
Defendant contends that it is not offering Hughes as an expert in the ADA.
Rather, Defendant argues that Dr. Hughes’s opinion was based on his medical
expertise in that, given the dearth of medical information provided by Riley in the
releases he gave to Defendant, it was medically reasonable for Defendant to follow up
regarding Riley’s condition and work restrictions. (ECF No. 94 at 13-14.)
The Court finds that Dr. Hughes is entitled to opine that, based on his medical
training, it is “appropriate” for an employer to take certain actions with respect to
requests for additional information. The Court acknowledges that there is some risk of
confusion in that the jury will ultimately be tasked with deciding whether Defendant
acted “reasonably” for purposes of the ADA and the terms “reasonable” and
“appropriate” have some overlap in the common sense. However, the Court will not
preclude Dr. Hughes from using the terms “appropriate” or “reasonable” simply because
they may be relevant to the legal inquiry in this case. Rather, Plaintiff is free to cross-5-

examine Dr. Hughes on his training (if any) with respect to the ADA and point out that
Dr. Hughes’s understanding of what is “appropriate” or “reasonable” from a medical
perspective may be different than what is considered “reasonable” for purposes of the
ADA. Additionally, upon request, the Court will also consider giving a limiting instruction
clarifying that Dr. Hughes is not an expert in the ADA and that “reasonable” can have
different meanings in different contexts.
The Court finds that Dr. Hughes is qualified to act as a expert opinion in this case
and that his testimony is likely to assist the jury. Thus, the Court denies Plaintiff’s
request to exclude Dr. Hughes from testifying about the reasonableness of Defendant’s
medical inquiries.
III. CONCLUSION
For the reasons set forth above, Plaintiff EEOC’s Motion Pursuant to Federal
Rule of Evidence 702 to Exclude the Opinions of Donna Ferris and Richard Hughes
(ECF No. 88) is DENIED.
Dated this 19th day of February, 2013.
BY THE COURT:

William J. Martínez
United States District Judge

-6-