Equal Employment Opportunity Commission v. Western Distributing Company

Filing 957

ORDER ON 702 MOTIONS FILED IN CONJUNCTION WITH SUMMARY JUDGMENT BRIEFING. Defendant's Motion to Exclude Opinions and Testimony of Plaintiff's Expert Arthur Gutman, Ph.D. 884 is GRANTED in part, DENIED in part, and DENIED AS MOOT in part . Defendant's Motion to Exclude Opinions and Testimony of Plaintiff's Expert Catherine L. Schelly 888 is GRANTED in part, DENIED in part, and DENIED AS MOOT in part. Plaintiff's Motion to Exclude Opinions and Testimony of Defense Expert Jimmy Sill 890 is DENIED. SO ORDERED by Judge William J. Martinez on 11/22/2022.(trvo, )

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 16-cv-1727-WJM-STV
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
v.
WESTERN DISTRIBUTING CO.,
Defendant.

ORDER ON 702 MOTIONS FILED IN CONJUNCTION
WITH SUMMARY JUDGMENT BRIEFING

In this case, the Equal Employment Opportunity Commission (“EEOC” or
“Plaintiff”) sues Western Distributing Company (“Western Distributing” or “Defendant”)
on behalf of 57 aggrieved individuals, alleging a pattern or practice of discrimination
against employees with disabilities, in violation of the Americans with Disabilities Act of
1990, as amended, 42 U.S.C. §§ 12101, et seq., (“ADA”).
Before the Court are the following motions, brought under Federal Rule of
Evidence 702 and submitted in conjunction with the parties’ summary judgment briefing,
as required by WJM Revised Practice Standards III.H.2:
•

Defendant’s Motion to Exclude Opinions and Testimony of Plaintiff’s Expert
Arthur Gutman, Ph.D. (“Gutman Motion”) (ECF No. 884);

•

Defendant’s Motion to Exclude Opinions and Testimony of Plaintiff’s Expert
Catherine L. Schelly (“Schelly Motion”) (ECF No. 888); and

•

Plaintiff’s Motion to Exclude Opinions and Testimony of Defense Expert

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Jimmy Sill (“Sill Motion”) (ECF No. 890).
Each motion is ripe for disposition.
For the reasons set forth below, the Gutman Motion is granted in part, denied in
part, and denied as moot in part; the Schelly Motion is granted in part, denied in part,
and denied as moot in part; and the Sill Motion is denied.
I. BACKGROUND1
Both parties have retained several experts for this litigation. Among them are
Arthur Gutman, Ph.D., who Plaintiff retained as an expert on industrial and
organizational psychology and personnel selection (ECF No. 883-2 at 2); Catherine L.
Schelly, who Plaintiff retained as an expert on occupational therapy (ECF No. 886-1 at
2); and Jimmy Sill, who Defendant retained as an expert on the ground transportation
industry (ECF No. 889-1 at 2). Each expert provided an expert report and has been
deposed.
A.

Dr. Gutman
Dr. Gutman is Professor Emeritus at Florida Institute of Technology, where he

was a member of the faculty for 35 years. (ECF No. 883-2 at 2). He is a Fellow of the
Society of Industrial and Organizational Psychology, and his work was among the top
2% of cited publications in the field of industrial and organizational psychology as of
2017. (Id. at 2, 2 n.2.) He has authored or co-authored more than 50 articles on
industrial and organizational psychology, published a frequently cited book on personnel
selection practices and equal employment opportunity laws, and authored or coauthored numerous book chapters. (ECF No. 883-2 at 2–4.) He has served as an
1

All citations to docketed materials are to the page number in the CM/ECF header,
which sometimes differs from a document’s internal pagination.

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expert consultant in over 20 cases in federal court. (Id. at 5.)
Defendant challenges four of Dr. Gutman’s opinions as inadmissible on the basis
that he is unqualified to offer them or that they are otherwise unreliable. (ECF No. 884.)
Those opinions are:
•

Opinion 1: Defendant’s “actual policies and practices” do not prohibit
disability discrimination. (Id. at 1.)

•

Opinion 2: Defendant “rarely engaged in any interactive process with
employees on medical leave.” (Id. at 2.)

•

Opinion 3: Defendant’s Director of Human Resources, Jennifer Maddox,
was unqualified. (Id.)

•
B.

Opinion 4: Not all job functions are essential. (Id.)

Schelly
Schelly is an occupational therapist and Fellow of the American Occupational

Therapy Association. (ECF No. 886-1 at 2.) From 1987 until 2017, Schelly worked at
the Center for Community Partnerships at Colorado State University (“CSU”), serving as
Director beginning in 1992. (Id.) As Director, Schelly oversaw a large staff of
occupational therapists and human services professionals who worked with individuals
with disabilities, injuries, or medical challenges seeking employment, returning to work
after an injury, or pursuing education. (Id.) Schelly was also a faculty member at CSU,
conducting research and teaching graduate occupational therapy courses. (Id.) Schelly
has conducted training courses on the ADA for employees of CSU and the City of Fort
Collins. (Id.) In her work with the City of Fort Collins, she provided guidance on
employment challenges and accommodations for employees with disabilities,

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recommendations on appropriate ADA-driven job announcements, essential job
functions documentation, and interviewing and hiring protocols. (Id.)
Defendant challenges three of Schelly’s opinions on the basis that she is
unqualified to offer them, or that they are an improper legal conclusions. (ECF No.
888.) Those opinions are:
•

Opinion 1: Loading and unloading the vehicle are marginal job functions,
because they are rarely done by the driver; and the attachment of snow
chains is rarely necessary, and drivers can carry/pull one 25-pound chain at a
time, discrediting Defendant’s 50-pound lifting requirement. (Id. at 2.)

•

Opinion 2: ErgoMed, a company Defendant hired to perform physical capacity
testing, did not accurately measure the physical demands of certain positions.
(Id.)

•

Opinion 3: A long-handed mirror can be used to look underneath a vehicle
when performing inspections required by the Department of Transportation
(“DOT”). (Id.)

C.

Sill
Sill has over 20 years of experience in the trucking and warehouse industries and

more than 10 years of operational and production experience with Fortune 500
companies. (ECF No. 889-1 at 2.) Sill has assisted motor carriers in more than 100
compliance reviews and has been a testifying witness or subject-matter consultant in
more than 75 cases. (Id.) Sill is a professional safety consultant and trainer in the
transportation industry, preparing curricula and conducting seminars and workshops on
industry standards, regulations, safety practices, and procedures in the ground

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transportation industry. (Id.) Sill has held roles as Lead Safety Consultant and Senior
Risk Manager for companies specializing in regulatory compliance, industry standards,
and best practices in the industry. (Id. at 3.) Over the last 20 years, Sill has also been
involved in evaluating essential job functions in driving and non-driving positions within
the ground transportation industry, developing job descriptions, performing job hazard
analysis, and developing pre-duty, work-hardening, and return-to-work physical
requirement guidance. (Id. at 4.)
Plaintiff challenges Sill’s opinions concerning five assistive devices on the basis
that he is unqualified to offer them or that they are otherwise unreliable. (ECF No. 890.)
Those opinions are:
•

Opinion 1: Snow socks are less durable and more expensive in the long
term than snow chains, have worse traction in certain environments
compared to snow chains, and are generally inappropriate for commercial
use. (Id. at 3.)

•

Opinion 2: Traction sanders require consistent loading of sanding material
and frequent inspections and cleaning and are not designed for consistent
or sustained use. (Id. at 4.)

•

Opinion 3: Automatic snow chains were originally intended for intermittent
use and not in “serious inclement weather,” may not be a substitute for
traditional snow chains when weather requires chains under “Chaining
Laws,” are a financial burden causing undue hardship for employers, and
frequently break. (Id. at 4–5.)

•

Opinion 4: Hood lift devices are cost prohibitive and unjustifiably

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burdensome for employers, are not readily available, are unproven
science and not generally accepted, lead drivers unfamiliar with them to
damage their rigs, and contribute to accidents. (Id. at 5.)
•

Opinion 5: Automatic decouplers are cost prohibitive and unjustifiably
burdensome, frequently fail (especially in colder climates), are often
damaged by drivers unfamiliar with them. (Id. at 5–6.)
II. LEGAL STANDARDS

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. 2005).
Expert opinion testimony is admissible if it is relevant and reliable. See Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579, 589, 594–95 (1993). The opinions are relevant
if they would “assist the trier of fact to understand the evidence or to determine a fact in
issue.” Fed. R. Evid. 702. They are reliable if (1) the expert is qualified “by knowledge,
skill, experience, training, or education,” (2) the opinions are “based upon sufficient facts
or data,” and (3) they are “the product of reliable principles and methods.” Id. The
proponent of expert testimony has the burden to show that the testimony is
admissible. United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009).
Federal Rule of Evidence 401 provides that evidence is relevant if: (a) it has any
tendency to make a fact more or less probable than it would be without the evidence;
and (b) the fact is of consequence in determining the action.
Federal Rule of Evidence 402 provides that relevant evidence is admissible
unless any of the following provides otherwise, including the United States Constitution;
a federal statute; these rules; or other rules prescribed by the Supreme Court. Further,

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Rule 402 provides that irrelevant evidence is not admissible.
III. ANALYSIS
The Court considers the challenged opinions of each expert in turn.
A.

Dr. Gutman
1.

Opinion 1

Defendant argues that Dr. Gutman offers the impermissible opinion that
Defendant’s “purported policy of terminating employees after 12 weeks of leave violates
the ADA.” (ECF No. 884 at 3.) It also argues that he “mischaracterizes” Defendant’s
return-to-work policy as requiring “no medical restrictions.” (Id.) Defendant
characterizes Dr. Gutman’s conclusion as being that Defendant’s policies are
“inadequate from an HR and IO [industrial and occupational] perspective, as well as
[under] the ADA rules.” (Id. (quoting ECF No. 883-1 at 13).)
Defendant argues Dr. Gutman is not qualified to offer these opinions because he
never studied equal employment opportunity policies prior to being retained for this
lawsuit; has no formal education in the ADA, business, or human resources; has never
previously studied what companies have in their handbooks on the ADA; and was not
aware that an employer may fire an employee after they exhaust 12 weeks of leave if
their request for additional leave is indefinite. (Id. at 4.) Defendant also argues Dr.
Gutman’s answer to one of counsel’s questions at his deposition proves Plaintiff did not
provide adequate information to Dr. Gutman for him to form his opinions. (Id.)
Defendant next argues that Dr. Gutman’s opinion is unreliable because it was
based on a review of only “12 or 13” of the aggrieved individuals in this case. (Id.)
Defendant argues it is “alarming” that Dr. Gutman did not know how many aggrieved
individuals there are in this case and suggests Plaintiff skewed his opinions by only
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providing him with the most egregious examples. (Id. at 4–5.) Defendant further argues
Dr. Gutman’s opinion rests upon insufficient, cherry-picked data. (Id. at 5.) Defendant
criticizes Dr. Gutman’s focus on a subset of the aggrieved individuals in this case; his
interpretation of Defendant’s policies in practice rather than as described in writing; the
factual basis for his opinion that Defendant has a lot of resources; his failure to initially
consider the leave and return-to-work policies in connection with other policies at
Defendant or Maddox’s deposition testimony; his failure to consider certain DOT
regulations; and his failure to apply the job analysis methodology. (Id. at 8–9.)
Defendant also takes issue with Dr. Gutman’s methodology. At his deposition,
Dr. Gutman testified that he formed his opinions in this case via “systematic
observation,” which he described as a “general term” used in “experimentation and in
scholarly inquiring.” (Id. at 6.) Defendant contrasts this with a reference to “job
analysis” in Dr. Gutman’s report, emphasizing that job analysis is peer reviewed, but
systematic observation is not. (Id.) Dr. Gutman described job analysis as making
systematic observations and comparing the employer’s actions with what he believes
the law requires. (Id.) Defendant argues, had Gutman performed job analysis as he
should have, the resulting opinions would be impermissible because the method results
in an expert offering improper legal conclusions. Defendant argues Dr. Gutman in fact
offers many legal conclusions as expert opinions, including that Defendant’s policies did
not meet “ADA or professional standards” and that Defendant “violated ADA standards.”
(Id. at 6–7.)
Plaintiff responds that Defendant’s argument regarding Dr. Gutman’s
qualifications focuses entirely on certain aspects of his deposition testimony while

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ignoring that his curriculum vitae, report, and deposition testimony as a whole
demonstrate his “extensive training, experience, and expertise in EEO, ADA, HR, and
personnel selection issues relevant to this case.” (ECF No. 894 at 7.) Plaintiff argues
that the examples from Dr. Gutman’s deposition where he said he could not provide an
answer without more information or because he is not a lawyer do not call his
qualifications into question. (Id.) If anything, Plaintiff contends, Dr. Gutman’s refusal to
respond to “complicated, incomplete hypotheticals” with definitive answers
demonstrates Dr. Gutman’s “respect[ for] the fact-specific nature of ADA issues,” and
his refusal to answer complicated legal questions demonstrates his “awareness of the
appropriate boundaries of his expert opinion.” (Id.)
With respect to Defendant’s argument that Dr. Gutman did not consider sufficient
facts or data, Plaintiff responds that Defendant’s “argument hinges largely on
Western[ Distributing’s] mistaken argument that the EEOC must prove its pattern-orpractice case using statistics or anecdotes.” (Id. at 7–8.) Instead, Plaintiff argues that
Dr. Gutman’s report is clear that he is analyzing and opining on Defendant’s policies
and practices directly, and he testified in his deposition that counter examples from
Defendant would have “no impact on his conclusions about the individuals whose facts
he reviewed.” (Id. at 8.) Plaintiff argues that Defendant’s assertion Dr. Gutman should
have considered DOT regulations is “not legally accurate” and ignores that “the parties
have hired other experts to opine on DOT issues.” (Id.) Plaintiff points out that Dr.
Gutman reviewed Defendant’s written policies contained in its policy manuals and
argues that it was appropriate for him to consider both the written policies and what
Defendant did in practice. (Id. at 10–11.) In Plaintiff’s view, Defendant’s arguments go

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to the weight the jury should assign Dr. Gutman’s opinions, suggesting Defendant “is
free to argue at trial that Dr. Gutman should have reviewed even more facts and data.”
(Id. at 8, 11.)
Plaintiff further argues Dr. Gutman’s methodology is adequate. It asserts that
Defendant’s argument conflates his testimony in response to Defendant’s questions at
his deposition and the actual analysis he performed in this case. (Id. at 8.) Plaintiff
argues that Dr. Gutman was not asked to, and in fact did not, perform a job analysis,
and therefore, job analysis methodology is “irrelevant.” (Id.) In Plaintiff’s view, Dr.
Gutman has sufficient expertise and experience to explain the relevant human
resources industry standards, compare them with the facts of this case, and opine that
Defendant’s conduct fell short of those standards. (Id.)
Plaintiff also contests Defendant’s characterization of Dr. Gutman’s opinions as
legal conclusions. “Dr. Gutman’s expertise is in advising HR and related professionals
on what the appropriate industry standards are, and those standards inherently involve
reference to the ADA and to operating within the law.” (Id. at 9.) In a footnote, Plaintiff
requests that if the Court finds some of Dr. Gutman’s opinions in this vein are legal
conclusions, that it offer guidelines for what Dr. Gutman can and cannot opine on, rather
than simply excluding these opinions wholesale. (Id. at 10 n.3.)
In its reply, Defendant merely reiterates the arguments it made in its initial
motion. (ECF No.897 at 1–4.)
After considering the parties’ arguments and reviewing Dr. Gutman’s expert and
supplemental expert reports (ECF Nos. 883-1, 883-2), the Court finds Dr. Gutman is
qualified to offer most of the objected-to opinions styled by Defendant as “Opinion 1.”

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Dr. Gutman’s career in industrial and organizational psychology spanned more than
three decades, during which he authored numerous articles and book chapters on
topics including personnel selection and equal employment opportunity, age
discrimination, and nepotism, in addition to teaching various topics related to personnel
selection and statistics. (ECF No. 883-2 at 2–5.) The Court agrees with Plaintiff that
Dr. Gutman has “extensive training, experience, and expertise” in human resources and
personnel selection issues relevant to this case. (ECF No. 894 at 7.) Further, the Court
agrees that “job analysis” is not necessary for Dr. Gutman to opine that Defendant’s
policies substantially differ from standards in the human resources industry, which is the
core of Opinion 1. Rule 702 does not require an expert to employ a scientific
methodology—or even something like a scientific methodology. It is common, and
expressly permitted by Rule 702, for experts to opine based on their training and
experience. Nacchio, 555 F.3d at 1241.
In fact, performing job analysis in the way that Dr. Gutman describes the method
may well have resulted in him offering impermissible opinions.2 At his deposition, Dr.
Gutman described job analysis as “making systematic observations[ and] comparing
what was done to what [he] believe[s] the law required” under those circumstances.
(ECF No. 882-3 at 21.) While it is permissible for an expert to testify to “ultimate
issue[s],” Fed. R. Evid. 704, and the U.S. Court of Appeals for the Tenth Circuit’s case
law permits experts to “refer to the law in expressing their opinion,” experts are still
prohibited from usurping the function of the finder of fact. United States v. Schneider,
704 F.3d 1287, 1294 (10th Cir. 2013) (quoting United States v. Bedford, 536 F.3d 1148,
As noted above, Defendant’ argues that performing job analysis yields legal
conclusions. (See also ECF No. 884 at 6.)
2

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1158 (10th Cir. 2008)) (internal quotation marks and alteration omitted). Determining
whether a set of facts gives rise to a violation of the law is the exclusive province of the
jury, see id., but that is precisely the task Dr. Gutman described when he explained job
analysis to defense counsel at his deposition. Wisely, Dr. Gutman generally stopped
short of applying the law to the facts and instead only performed the first part of job
analysis—systematic observation of the facts—in forming his opinions in this case.
(ECF No. 882-3 at 21.)
Some of Dr. Gutman’s opinions, however, do apply facts to law and therefore
improperly usurp the duty of the jury. For instance, despite Plaintiff’s assertion that
understanding and applying industry standards in human resources and personnel
selection requires some intersection with the law, opinions that Defendant “did not
meet” or “violated ADA standards” go further. (ECF No. 884 at 6–7.) These opinions
compare Dr. Gutman’s understanding of the facts with what he believes federal law
requires and, as such, are impermissible legal conclusions. Specht v. Jensen, 853 F.2d
805, 808 (10th Cir. 1993). Dr. Gutman may testify as to industry standards in human
resources and personnel selection, that Defendant violated those standards, and that
federal laws such as the ADA shape those standards, but he may not testify that
Defendant violated ADA standards or violated the ADA.
With respect to Defendant’s other arguments that Dr. Gutman had insufficient or
biased information, did not seek out or review additional information, and has not
received formal education and training in or performed research on various subjects
Defendant believes are relevant, the Court finds that they go to the weight the jury
should give to such testimony, and not to the admissibility of Dr. Gutman’s opinions. To

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the extent these arguments have merit, they are more appropriate for crossexamination.
Therefore, with respect to Opinion 1, the Gutman Motion is granted in part and
denied in part.
2.

Opinion 2

Defendant argues Opinion 2 is impermissible because it is based on insufficient
information, Dr. Gutman was unqualified to offer it, and it is otherwise unreliable. (ECF
No. 884 at 10–12.) Defendant echoes its argument above, claiming that Dr. Gutman’s
opinion is based on insufficient facts because he failed to review Maddox’s deposition.
(ECF No. 884 at 10–11.) It argues Dr. Gutman is unqualified to offer Opinion 2 because
it is based in part on his assessment of whether Defendant properly considered the
availability of various assistive devices, despite not being an expert on the trucking
industry or DOT requirements. (Id. at 11.) And it argues that Dr. Gutman’s opinion that
Defendant could have accommodated one of the aggrieved individuals’ weight
limitations via a hydraulic ramp is irrelevant because it is not tied to the specific facts of
this case. (Id. at 12 (citing Hobdy v. Wells Fargo Bank, 2019 WL 132137, *2–3 (D.
Colo. Jan. 8, 2019).)
Plaintiff responds that Dr. Gutman does not in fact offer Opinion 2, and does not
opine at all on the “frequency of Western [Distributing] engaging in the interactive
process.” (ECF No. 894 at 11.) For this reason, Plaintiff offers no response to
Defendant’s arguments. (Id.) Instead, Plaintiff clarifies that Dr. Gutman opines that
Defendant’s policies “do not provide for and preclude the interactive process.” (Id. at 11
n.4.) All of Defendant’s other arguments, Plaintiff contends, goes to the weight this
testimony should be given, rather than to its admissibility. (Id. at 11 n.5.)
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Defendant argues Plaintiff has “effectively withdrawn Opinion 2” and seeks an
order precluding Dr. Gutman from expressing “any opinion about
Western[ Distributing’s] engagement in the interactive process” or “as to any assistive
device, as these opinions were connected to Opinion 2.” (ECF No. 897.)
The Court will hold Plaintiff to its representation and not permit Dr. Gutman to
testify as to the frequency with which Defendant engaged in the interactive process.
This portion of Defendant’s Motion is therefore moot.
Further, the Motion is granted in part in that, consistent with the Court’s ruling on
Opinion 1, Dr. Gutman will not be permitted to opine on whether Defendant’s policies or
conduct violated “ADA standards.” The Court agrees with Plaintiff, however, that
Defendant’s other arguments go to weight rather than admissibility, and further notes
that its reliance on Hobdy (a decision issued by the undersigned) is misplaced. In
Hobdy, the expert opined that voice recognition software was available and a
reasonable accommodation, which was found to be improper because he had not
investigated whether such software would have been compatible with hardware or
software necessary for the plaintiff to do her job. 2019 WL 132137, at *2–3. Dr.
Gutman expresses no opinion on whether a hydraulic ramp was available or a
reasonable accommodation; he simply notes that an aggrieved individual testified that a
hydraulic ramp would have accommodated his weight restriction, and Dr. Gutman
opined that Defendant did not properly consider the availability of such an
accommodation. (ECF No. 883-2 at 12.)
Therefore, with respect to Opinion 2, the Gutman Motion is granted in part,
denied in part, and denied as moot in part, as set forth above.

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3.

Opinion 3

Defendant argues Opinion 3 is inadmissible for several reasons already
discussed above: (1) Dr. Gutman did not review HR Director Maddox’s deposition; (2)
Dr. Gutman has no formal education in business or human resources; (3) and Dr.
Gutman used “no methodology” to form Opinion 3. (ECF No. 884 at 13.) Defendant
also argues Dr. Gutman is unqualified to offer Opinion 3 because he has never served
as an expert on whether someone is qualified to serve in a human resources position
and because Maddox’s qualifications to serve as HR director is not an element of
Plaintiff's claims. (Id.)
Plaintiff responds that Dr. Gutman is qualified to offer this opinion because of his
writing, research, and teaching experience, that Maddox’s qualifications for her role are
relevant because Defendant “asserts that Maddox was responsible for
Western[ Distributing’s] reasonable accommodation process, and Defendant’s other
arguments go to weight rather than admissibility. (ECF No. 894 at 12.)
The Court finds Dr. Gutman qualified to offer Opinion 3 and further finds that
opinion relevant to this case. The parties focus on whether Maddox’s “qualifications,”
generally, are relevant. (ECF No. 884 at 13; ECF No. 894 at 12; ECF No. 897 at 5.)
The Court finds that whether Maddox is qualified to be an HR Director generally
speaking is irrelevant, and Dr. Gutman will be precluded from offering such an opinion.
But the substance of Dr. Gutman’s opinion is not that Maddox should not be the HR
Director—his opinion is that Maddox’s lack of training and unfamiliarity with the ADA
contributes to a pattern discrimination, which is precisely the subject of this litigation.
(See ECF No. 883-2 at 13–14.) Therefore, Dr. Gutman may opine whether Maddox is
deficient on a matter relevant to compliance with the ADA due to a lack of expertise,
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training, or education.
As discussed above in Section III.A.1, Defendant’s other arguments go to the
weight of the testimony, and not to its admissibility. Therefore, with respect to Opinion
3, the Gutman Motion is granted in part and denied in part.
4.

Opinion 4

Defendant argues Opinion 4 is inadmissible because Dr. Gutman failed “to
employ the ‘job analysis’ methodology” and his opinions are impermissible legal
conclusions. (ECF No. 884 at 13.) Plaintiff argues that “not all job functions are
essential” is “a permissible statement of law” and Dr. Gutman “does not opine on which
job functions are essential.” (ECF No. 894 at 12.) In light of this “concession,”
Defendant request an “order precluding [Dr.] Gutman from expressing any opinion as to
essential job functions.” (ECF No. 897 at 6.)
The Court will hold Plaintiff to its representation and preclude Dr. Gutman from
offering any opinions about which job functions are essential and nonessential; this
portion of the Motion is therefore moot. Dr. Gutman may, however, refer to the law that
“not all job functions are essential” in contextualizing his other permissible opinions.
Therefore, with respect to Opinion 4, the Gutman Motion is denied in part and
denied as moot in part.
B.

Schelly
1.

Opinion 1

Under the umbrella of Opinion 1, Schelly offers several opinions on: which job
functions were essential or nonessential to particular jobs, the frequency with which
certain tasks were required to perform particular jobs, whether certain individuals had a
disability, whether Defendant’s conduct violated the ADA, whether Defendant engaged
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in good faith in the interactive process, and whether certain accommodations were
“reasonable.” (ECF No. 888 at 4–7.)
Defendant seeks exclusion of all of these opinions on the basis that they are
improper legal conclusions. (ECF No. 888 at 4–7; ECF No. 898 at 1–2.) Defendant
argues that each of the issues upon which Schelly opines are committed to the finder of
fact. (ECF No. 888 at 4.) Plaintiff argues Defendant’s arguments are “more suited for
credibility examination at trial.” (ECF No.896 at 8.)
The Court finds Defendant has the better argument. As discussed above, supra
Section III.A.1, whether Defendant violated the ADA is an impermissible legal
conclusion. Plaintiff apparently acknowledges that this opinion is an impermissible legal
conclusion and represents that it will not elicit testimony from Schelly that Defendant
violated the ADA. (Id. at 11.) The Court will hold Plaintiff to this representation and
exclude any such testimony from Schelly to that effect. As such, the Schelly Motion is
moot with respect to the opinion that Defendant “violated the ADA.”
Despite this concession, Plaintiff argues Schelly should be able to offer the other
opinions within the umbrella of Opinion 1. (Id. at 10–11.) The Court ruled above, supra
Section III.A.4, that Dr. Gutman’s statement that not all job functions are essential is a
permissible statement of law, but deciding which functions are essential is a question for
the finder of fact. Consistent with this ruling, Schelly’s opinions on which job functions—
like loading or unloading a truck—are essential (or not) are impermissible legal
conclusions. Schelly’s other opinions rely heavily on terms with specialized meaning
within the law; “disability,” “interactive process,” and “reasonable accommodation” are
all such terms. See United States v. Schneider, 704 F.3d 1287, 1294 (10th Cir. 2013

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(“[W]hen an expert uses a specialized legal term [she may] usurp[] the jury’s function”).
Schelly’s opinions are presented in this legal language and directly tell the finder of fact
how to find on those issues. This is a usurpation of the factfinder’s role and is
impermissible. See Specht, 853 F.2d at 808 (“[T]estimony which articulates and applies
the relevant law, however, circumvents the jury’s decision-making function by telling it
how to decide the case.”) Therefore, Schelly will not be permitted to offer these
opinions.
Schelly’s opinion on the frequency with which certain tasks must be performed is
not a legal opinion; rather, it is the factual basis for Schelly’s (inadmissible) opinion that
particular job functions are not essential. Neither this opinion nor any similar factual
opinions will be excluded.
Therefore, with respect to Opinion 1, the Schelly Motion is granted in part, denied
in part, and denied as moot in part.
2.

Opinion 2

Defendant seeks to exclude Opinion 2 on the bases that Schelly is unqualified
because she is not a medical doctor and that the opinion is unreliable because she
never spoke with any representative of ErgoMed. (ECF No. 888 at 7–8.) Defendant
argues Schelly’s opinion is unreliable because it is based on her understanding that
ErgoMed depended on Defendant to get information on what was required for certain
job functions. (Id. at 7.)
Plaintiff responds that Defendant misstates Schelly’s testimony. Plaintiff argues
Schelly’s opinion is that Ergomed did not validate that the functionality tests they
performed aligned with the requirements of particular jobs, thus undercutting their
usefulness. (ECF No. 896 at 15.) Plaintiff asserts that because Schelly’s testimony is
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corroborated by ErgoMed’s owner, Defendant has no good-faith basis for challenging
Schelly’s opinion. (Id.)
In its reply, Defendant argues that Schelly cannot offer an opinion she is not
qualified to offer merely because it is supported by other areas of the record. (ECF No.
898 at 4–5.) Defendant further emphasizes that Schelly’s opinion is simply based on
her “understanding,” and there is nothing in the record indicating that she independently
verified her understanding with anyone from ErgoMed.
The Court finds Schelly is qualified to give Opinion 2. Defendant does not
explain why Schelly needs to be a medical doctor to criticize ErgoMed’s testing—it
simply states that she is not one and takes it as a given that being a doctor is required.
(ECF No. 888 at 7.) The Court does not agree with this assessment. For 30 years
Schelly was responsible for assessing the ability of people with disabilities to perform
certain jobs and assisting in placing them in appropriate jobs in the community. (ECF
No. 886-1 at 2; ECF No. 896 at 5.) Assessing what a person with a disability is and is
not able to do at work may sometimes require medical training, but it will not always.
See Tesone v. Empire Mktg Strategies, 942 F.3d 979, 996 (10th Cir. 2019). Even a
doctor who performs a test correctly may be performing the wrong test, and identifying
whether the correct test has been performed will not necessarily be a matter of medical
opinion. Schelly attended the deposition of Defendant’s corporate representative,
attended a two-day training at Defendant’s facility, observed Defendant’s employees
performing job duties for multiple positions, and reviewed numerous documents. (ECF
No. 886-1 at 3-4.) Based on this, Schelly can opine on what kinds of tasks Defendant’s
employees perform, and the factfinder can determine whether ErgoMed’s testing

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appropriately fits those tasks. All of Defendant's other arguments go to weight and not
admissibility.
Therefore, with respect to Opinion 2, the Schelly Motion is denied.
3.

Opinion 3

Defendant argues Schelly is not qualified to offer Opinion 3 and that Opinion 3 is
unreliable and irrelevant. (ECF No. 888 at 8.) Defendant argues that Schelly does not
have sufficient knowledge, skill, experience, training, or education to opine on “assistive
devices purportedly available in the commercial trucking industry” because she had no
exposure to them prior to this litigation and “only generally familiarized herself with
[them] by conducting online research, interviewing claimants, or reading claimants’
deposition transcripts.” (Id. at 8.) The devices Defendant argues Schelly is not
qualified to opine on are: snow socks, traction/wheel sanders, automatic snow chains,
automatic hood releases, automatic pin pulls, and lifting devices. (Id. at 8–10.)
Defendant also argues that Schelly’s opinions are unreliable. First, Defendant
argues she did not “maintain or provide citations to or copies of the websites she
visited” in forming her opinions and is unable to “recall anything specific about what she
supposedly reviewed.” (ECF No. 888 at 11.) Second, Defendant argues Schelly’s
opinions are based on insufficient facts and data because she did not properly consult
with people familiar with the assistive devices to learn how they function and determine
if they would be compatible with Defendant’s trucks. Nor did Schelly test whether a
long-handled mirror would be “an adequate or safe substitute for inspecting the
undercarriage of a truck during DOT-required pre-trip inspections.” (Id.) Therefore,
Defendant argues this opinion is not “sufficiently tied to the facts of [this] particular
case.” (ECF No. 888 at 12 (citing Hobdy, 2019 WL 132137, at *3).)
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Defendant asserts Opinion 3 is also irrelevant because there “is no evidence”
that any aggrieved individual requested snow socks, automatic snow chains, or
automatic hood openers or that the aggrieved individual Schelly suggests a longhandled mirror would have assisted ever requested a long-handle mirror. (ECF No. 888
at 12–13.) Because an employee must demonstrate that they requested a plausibly
reasonable accommodation, these parts of Opinion 3 are irrelevant. (Id. at 12.)
Plaintiff responds that Schelly does not need to be a trucking-industry expert to
offer Opinion 3. During her 30-year career, Schelly used her professional expertise to
learn the requirements of specific jobs in various industries and match people with
disabilities to jobs they can perform with or without reasonable accommodations “using
her functional-based methodology.” (ECF No. 896.) Plaintiff asserts that Schelly does
not need to be an expert in every industry in which she is evaluating a job
accommodation for a person with a disability. (ECF No. 897.) Plaintiff cites Jones v.
Blue Cross Blue Shield of La., 2018 WL 585543 (M.D. La. Jan. 29, 2018), in which a
vocational expert who used a similar methodology was permitted to offer similar
opinions as Schelly. Id. at *8–9.
Plaintiff argues Hobdy is inapposite because, unlike the expert in that case,
Schelly’s reports “are individually tailored to a specific [aggrieved individual] and the
specific positions relevant” to them. (ECF No. 896 at 14.) Further, Schelly used an
accepted methodology that “was published, taught, and used by Colorado State
University since the 1980s.” (Id.)
Plaintiff argues that any prejudice to Defendant due to Schelly’s failure to list
various websites in her report was capable of being cured and therefore, the error was

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harmless. (ECF No. 896 at 13.) In Plaintiff’s view, Defendant “obtained the website
information during Schelly’s deposition and also afterwards” in Plaintiff’s supplemental
interrogatory responses. Plaintiff argues Defendant’s decision to never seek a second
deposition of Schelly is evidence of the lack of prejudice. (Id.)
As for whether Schelly can opine on assistive devices that were not specifically
requested by an aggrieved individual, Plaintiff argues that Defendant is “simply incorrect
on the law.” (Id. at 14.) Plaintiff asserts that Defendant “must do its own research on
potential accommodations” and cannot simply reject employees’ requests. (Id. (citing
Woodman v. Runyon, 132 F.2d 1330, 1345 (10th Cir. 1997).)
Defendant’s reply mostly restates its previous arguments with respect to Opinion
3. It does, however, respond to Plaintiff's arguments that Schelly’s failure to include
certain websites in her report is harmless error and that Defendant must “do its own
research on potential accommodations.” (ECF No. 898 at 6–7.) Defendant argues the
factors that supposedly cure Schelly’s error are inadequate and incurable prejudice
exists because “[i]n large part, Schelly could not remember what source she reviewed in
forming her opinions.” (Id. (emphasis omitted).) Therefore, it is impossible for Schelly
to provide an accurate updated list of the sources she consulted. (Id.) Defendant
contests that it must do its own research on accommodations, arguing that under the
Tenth Circuit law, it “cannot have failed to provide reasonable accommodations to
individuals who did not request the same.” (Id. at 6–7 (citing cases).)
The Court finds Schelly is qualified to offer the opinions under the umbrella of
Opinion 3. Schelly’s expertise is in determining reasonable accommodations for people
with disabilities and is not limited to particular industries. (ECF No. 886-1 at 2.) She is

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experienced in familiarizing herself with various industries and specific jobs within them
and suggesting potential accommodations based on her wealth of experience and the
functional-based methodology. (See id.) The Court is not convinced by Defendant’s
attempt to unilaterally limit the kinds of expertise that are relevant. Just because
experience in the trucking industry is potentially relevant or might be helpful to the finder
of fact does not mean that it is the only such experience that is relevant or helpful.
Schelly applied her functional-based methodology by learning how the jobs are
performed at Defendant, observing job tasks being performed, and researching
accommodations that might allow specific aggrieved individuals to perform their job
duties. (Id. at 2–4.)
The Court agrees with Plaintiff that Defendant cannot merely reject its
employees’ specific requests and avoid liability under the ADA. Defendant cites Tenth
Circuit law holding that an employer’s duty to provide a reasonable accommodation or
participate in the interactive process is not triggered until the employee informs it of the
accommodation he or she wishes to receive. (ECF No. 898 at 7.) What these cases do
not hold is that accommodations potentially available to an employee are limited to the
specific accommodations requested, nor do they hold that the subject matter of the
ensuing interactive process is limited to those specific accommodation requests. Punt
v. Kelly Servs., 862 F.3d 1040, 1048 (10th Cir. 2017) (“[A]ssuming the employee has
provided notice to the employer of her disability, any limitations which result therefrom,
and the accommodation she wishes to receive, then the employer’s failure to provide a
reasonable accommodation” can result in liability for failure to accommodate.); Koessel
v. Sublette Cnty. Sheriff’s Dep’t, 717 F.3d 736, 745 (10th Cir. 2013) (“It is not the

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employer’s responsibility to anticipate the employee’s needs and affirmatively offer
accommodation if the employer is otherwise open to such requests.”); EEOC v. C.R.
England, 644 F.3d 1028, 1049 (10th Cir. 2011) (holding that an employer’s duty to
participate in the interactive party is triggered by an employee’s adequate notice that
informs the employer of the disability and requests accommodation). Endorsing the
limitation that Defendant argues is the law would neuter the “interactive” aspect of the
process mandated by the ADA.
With respect to Defendant’s argument that Schelly could not remember the
sources for her opinion, this argument is more appropriately considered with respect to
the weight the finder of fact should give to her opinions. The Court finds that
Defendant’s entire argument on this point is based on a misstatement of Schelly’s
deposition testimony. Schelly testified that she was not sure from which source she first
learned of a particular assistive device, not that she did not log or could not remember
her sources generally. (ECF No. 885-1 at 19.) This, combined with the supplemental
interrogatory responses and the availability of Schelly for a second deposition, leads the
Court to conclude that even if Schelly’s inadequate disclosures prejudiced Defendant,
this was or could have been cured. This argument and Defendant’s other arguments
above go to the weight not admissibility of Opinion 3.
Therefore, with respect to Opinion 3, the Schelly Motion is denied.
C.

Sill
1.

The Scope of Plaintiff’s Motion Is Not Improper

The Court first addresses the parties’ mistaken understanding of its Revised
Practice Standards, which is the leading argument in Defendant’s response to Plaintiff’s
motion to exclude Sill’s opinions. (ECF No. 892 at 1–3.) Each of the motions
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addressed in this Order were filed contemporaneously with the summary judgment
briefing in this case. And, in each of these motions, the parties say in footnotes that
they have limited their arguments to opinions cited by the other party in the summary
judgment briefing and claim to reserve the right to file additional motions relating to the
same witnesses seeking exclusion of other opinions not cited in the summary judgment
briefing. (ECF No. 884 at 1 n.1; ECF No. 888 at 1 n.1; ECF No. 890 at 2 n.1.)
The parties rely on WJM Revised Practice Standards III.H.2.a in explaining their
approach and asserting their “rights” to future motions under Rule 702. WJM Revised
Practice Standards III.H.2 reads:
The following deadlines apply to any motion made under
Federal Rule of Evidence 702, including under Daubert and
related cases, regardless of how the motion is styled (i.e.,
whether styled as a motion to strike, a motion to exclude, or
otherwise):
WJM Revised Practice Standards III.H.2. WJM Revised Practice Standards III.H.2.a
reads:
In civil cases, such motions must be filed no later than 70 days
(10 weeks) before the Final Trial Preparation Conference,
unless the motion challenges expert evidence submitted in
support of summary judgment briefing, in which case the
motion must be filed contemporaneously with the summary
judgment response or reply, as appropriate.

WJM Revised Practice Standards III.H.2.a. These provisions, on their face, concern
deadlines. As relevant here, WJM Revised Practice Standards III.H.2.a moves up the
deadline for Rule 702 motions relating to “expert evidence submitted in support of
summary judgment briefing.” Id. What is does not say is that the opinions a party
seeks to exclude are limited to the opinions cited by the party offering the expert. And it
certainly does not provide for additional Rule 702 motions for such experts.

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The Court can only speculate on how the parties came to this understanding.
The best it can do is assume the parties read these additional provisions into the phrase
“submitted in support of summary judgment briefing.” WJM Revised Practice Standards
III.H.2.a. But Revised Practice Standards III.H.2 very clearly lays out deadlines—that is,
the timing and not the substance of Rule 702 motions—and the undersigned cannot
remember an instance in which the parties read its Revised Practice Standards any
differently.
Therefore, the Court will not consider Defendant’s argument that the scope of
Plaintiff’s motion is improper because it addresses opinions Defendant does not cite in
its summary judgment briefing.
2.

Sill is Qualified to Opine on the Use of Assistive Devices in the Trucking
Industry

Plaintiff argues Sill is not qualified to offer the five opinions identified above
because he is not an expert on assistive devices and he “is not qualified to opine on
everything related to trucking merely because he asserts general trucking experience.”
(ECF No. 890 at 9.) Nor does Sill’s “alleged expertise in the broad categories safety
and industry best practices . . . qualify him to opine on the five specific devices at issue.”
(Id.)
Defendant argues Sill is qualified to offer these opinions based on his “twenty
years of experience working within the trucking industry in safety and fleet
management, risk management, and safety compliance.” (ECF No. 892 at 3.)
Defendant asserts Sill is an expert in the challenged topics, which “all relate to how to
safely operate an over-the-road trucking business in a legally compliant and efficient
manner.” (Id. at 3.) This includes expertise in

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Federal Motor Carrier Safety Administration standards,
industry best practice and process implementation, motor
carrier’s duty for safe operations (employees and general
public), driver qualifications and hiring practice, process,
policy and regulations, driver training practice, process,
policy, and regulations, and behavior-based safety
performance, process, policy, and implementation.
(Id. at 3–4.) In other words, Sill is familiar with various aspects of running a trucking
business, like Defendant. And Defendant argues that Plaintiff’s motion ignores this
experience and its relevance in favor of an “unreasonably narrow” interpretation of the
qualifications required to offer the opinions Sill offers in his report. (Id. at 5.) In
Defendant’s view, Plaintiff’s argument goes to weight and not admissibility. (Id. at 10.)
Plaintiff disagrees that its argument goes to weight rather than admissibility
because Sill’s offered testimony is not “within the reasonable confines of his subject
area.” (ECF No. 899 at 3 (citing Ralston v. Smith & Nephew Richards, Inc., 275 F.3d
965, 970 (10th Cir. 2001).)
The Court disagrees with Plaintiff that the use of various assistive devices is
outside the reasonable confines of Sill’s expertise. Sill is in part a rebuttal witness,
offered for the purpose of giving the jury an understanding of whether the assistive
devices described by Schelly would impose an undue burden on Defendant’s business.
(See ECF No. 889-2 at 3–4.) While Schelly is an expert on researching assistive
devices that might be suitable for someone with a disability (including someone in the
trucking industry), Sill is an expert on the operations of trucking businesses who can
offer valuable opinions on whether a particular assistive device is a reasonable
accommodation or would impose an undue burden within the specialized context of the

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trucking industry.3 Plaintiff’s arguments go to weight, and it is welcome to make them
during cross-examination.
3.

Sill’s Opinions are Reliable

Plaintiff also argues that Sill’s opinions are unreliable on the bases that he offers
“scientific” opinions without conducting a scientific inquiry, and he lacks personal
experience with the specific devices he opines on. (ECF No. 890 at 9–10.) Plaintiff
argues that four of the opinions Sill offers are “capable of scientific testing by
established methodologies.” (Id. at 10.) Because Sill neither performed nor reviewed
scientific testing in forming those opinions, Plaintiff argues they are unreliable and
should be excluded. (Id.) Sill’s other opinions—which Plaintiff designates “his nonscientific opinions”—are not based on Sill’s “experience, direct or otherwise, indicating
he has studied, installed, repaired, or operated any of the five devices about which he
opines.” (Id. at 10.)
Defendant argues that Sill does not need to be a scientist to offer the challenged
opinions because they are based on his industry experience, research of Defendant’s
business, and discussions with Defendant’s representatives. (ECF No. 892 at 7.)
Defendant criticizes Plaintiff’s “inexplicabl[e]” division of Sill’s opinions into scientific and
non-scientific opinions given that Sill’s report and deposition make clear that his
opinions are based on his industry experience and research into Defendant’s business
operations. (Id. at 7–10.) Again, Defendant asserts that Plaintiff’s argument goes to
weight and not admissibility. (Id. at 10.)
3

This is not to say that Sill can testify to the ultimate legal conclusion that any particular
assistive device or process imposes an undue burden, rendering it an unreasonable
accommodation. But like Schelly, Sill can provide the factual basis undergirding such a
conclusion and allow the finder of fact to decide that issue.

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In its reply, Plaintiff insists that “Sill’s opinions are unreliable because his reports
do not explain how his experience led to his opinions.” (ECF No. 899 at 3.) In Plaintiff’s
view, Defendant offers “nothing except the ipse dixit of Sill to connect his opinions to
this case.” (Id. at 4.) Plaintiff argues this goes to admissibility, and Sill’s opinions
should be excluded.
The Court finds Sill’s opinions are reliable because they are based on the
application of his training and experience to the contemplated use of the five assistive
devices in the context of Defendant’s trucking business. Plaintiff points to no law
indicating that opinions “capable” of scientific evaluation must in fact be scientifically
evaluated, and the Court will not impose such a requirement here. The Court finds
Plaintiff’s arguments all go to the weight the jury may give to the testimony and not to its
admissibility.
Therefore, the Sill Motion is denied.
IV. CONCLUSION
For the foregoing reasons, the Court ORDERS:
1.

Defendant’s Motion to Exclude Opinions and Testimony of Plaintiff’s
Expert Arthur Gutman, Ph.D. (ECF No. 884) is GRANTED in part,
DENIED in part, and DENIED AS MOOT in part;

2.

Defendant’s Motion to Exclude Opinions and Testimony of Plaintiff’s
Expert Catherine L. Schelly (ECF No. 888) is GRANTED in part, DENIED
in part, and DENIED AS MOOT in part; and

3.

Plaintiff’s Motion to Exclude Opinions and Testimony of Defense Expert
Jimmy Sill is DENIED (ECF No. 890).

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Dated this 22nd day of November, 2022.
BY THE COURT:

______________________
William J. Martinez
United States District Judge

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