Equal Employment Opportunity Commission v. Wesley Health System, LLC
Filing
113
ORDER granting in part and denying in part 101 Motion in Limine. The Court grants the motion in part and denies it in part. Moseley will not be permitted to provide any opinions or testimony not timely disclosed to Defendant, as specifically provided herein. Signed by District Judge Keith Starrett on 12/12/18. (cb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
v.
PLAINTIFF
CIVIL ACTION NO. 2:17-CV-126-KS-MTP
WESLEY HEALTH SYSTEM, LLC
DEFENDANT
ORDER
Defendant filed a Motion in Limine [101] to exclude all opinions and testimony
of Plaintiff’s expert, Trey Moseley, that were not disclosed during discovery. Defendant
anticipates that Plaintiff will attempt to elicit testimony from Moseley on several topics
that were not disclosed in Moseley’s designation, expert report, or deposition, because
they were mentioned in Plaintiff’s brief in response to Defendant’s Daubert motion. In
response, Plaintiff contends that the disputed testimony was disclosed during discovery
Rule 26 provides that “a party must disclose to the other parties the identity of
any witness it may use at trial to present” expert testimony. FED. R. CIV. P. 26(a)(2)(A).
“Unless otherwise stipulated or ordered by the court, this disclosure must be
accompanied by a written report – prepared and signed by the witness – if the witness
is one retained or specially employed to provide expert testimony in the case . . . .” FED.
R. CIV. P. 26(a)(2)(B). The report must contain:
(i)
a complete statement of all opinions the witness will express and
the basis and reasons for them;
(ii)
the facts or data considered by the witness in forming them;
(iii)
any exhibits that will be used to summarize or support them;
(iv)
the witness’s qualifications, including a list of all publications
authored in the previous 10 years;
(v)
a list of all other cases in which, during the previous 4 years, the
witness testified as an expert at trial or by deposition; and
(vi)
a statement of the compensation to be paid for the study and
testimony in the case.
FED. R. CIV. P. 26(a)(2)(B). “A party must make these disclosures at the times and in
the sequence that the court orders.” FED. R. CIV. P. 26(a)(2)(D). This Court’s local rules
provide that a “party must make full and complete disclosure as required by FED. R.
CIV. P. 26(a) and L.U.Civ.R.26(a)(2)(D) no later than the time specified in the case
management order.” L.U.Civ.R. 26(a)(2).
“The parties must supplement these disclosures when required under Rule
26(e).” FED. R. CIV. P. 26(a)(2)(E). “[A] party is required to supplement its expert
disclosures if the court so orders or if ‘the party learns that in some material respect
the information disclosed is incomplete or incorrect and if the additional and corrective
information has not otherwise been made known to the other parties during the
discovery process or in writing.” Sierra Club, Lone Star Chapter v. Cedar Point Oil Co.,
73 F.3d 546, 570 n. 42 (5th Cir. 1996) (quoting FED. R. CIV. P. 26(e)(1)). “[T]he party’s
duty to supplement extends both to information included in the report and to
information given during the expert’s deposition. Any additions or changes to this
information must be disclosed by the time the party’s pretrial disclosures under Rule
26(a)(3) are due.” FED. R. CIV. P. 26(e)(2). While Rule 26(a)(3) provides that pretrial
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disclosures must be made at least thirty days before trial, it adds the following caveat:
“[u]nless the court orders otherwise . . . .” FED. R. CIV. P. 26(a)(3). Local Rule 26
provides that a “party is under a duty to supplement disclosures at appropriate
intervals under FED. R. CIV. P. 26(e) and in no event later than the discovery deadline
established by the case management order.” L.U.Civ.R. 26(a)(5).
Plaintiff’s deadline to designate experts was April 2, 2018. If Plaintiff intended
to supplement its experts’ reports, the supplements were due by the discovery deadline
of August 16, 2018. However, Plaintiff had no duty to supplement if the opinions or
information were otherwise made known to Defendant during the discovery process.
FED. R. CIV. P. 26(e). Therefore, the Court must examine each disputed area of
testimony and determine whether it was disclosed in Plaintiff’s designation, Moseley’s
expert report, or during his deposition.
A.
Standard Business Practices
First, Defendant argues that Plaintiff did not disclose that Moseley would
provide testimony regarding “the standard business practices typically implemented
to facilitate the interactive process through which employees can make ADA requests.”
In response, Plaintiff argues that this area was covered in Moseley’s supplemental
expert report. See Exhibit C to Response, EEOC v. Wesley Health Sys., LLC, No. 2:17CV-126-KS-MTP (S.D. Miss. Sept. 28, 2018), ECF No. 84-3. According to Plaintiff,
Moseley addressed this issue by reciting the Department of Labor’s definition of a
reasonable accommodation. But the paragraph in question does not address the
interactive process, standard business practices, or ADA requests.
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Next, Plaintiff argues that Moseley provided his opinions on these matters
during his deposition, but the testimony highlighted by Plaintiff concerns training
Moseley has received. See Exhibit B to Response at 29-30, EEOC v. Wesley Health Sys.,
LLC, No. 2:17-CV-126-KS-MTP (S.D. Miss. Sept. 28, 2018), ECF No. 84-2. He did not
mention the interactive process, ADA requests, or the standard business practices
concerning such.
Therefore, Plaintiff has not shown that it disclosed Moseley’s opinions on such
matters to Defendant. Accordingly, the Court finds that Plaintiff did not comply with
its disclosure requirements with regard to Moseley’s opinions regarding “the standard
business practices typically implemented to facilitate the interactive process through
which employees can make ADA requests.”
B.
Treatises and EEOC Guidance
Next, Defendant argues that Plaintiff did not disclose Moseley’s opinions related
to “the leading treatises and related EEOC guidance upon which employers and
experts generally rely.” In response, Plaintiff argues that Moseley listed the EEOC
guidance and treatises he relied on in forming his opinions. Plaintiff is correct in that
Moseley listed numerous publications as references in his expert report. Exhibit C [843], at 9. He also cited some publications during his deposition. Exhibit B [84-2], at 3738. Therefore, he may refer to these publications at trial and cite them as support for
his opinions. However, to the extent Moseley intends to refer to any additional
publications or treatises, Plaintiff did not comply with its disclosure requirements.
C.
Typical Considerations
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Defendant argues that Plaintiff did not disclose Moseley’s opinions regarding
“the typical considerations that experts and employers use to determine whether a
requested accommodation is reasonable or would pose a direct threat in a given
workplace.” In response, Plaintiff argues that Moseley addressed this topic in his
supplemental expert report by reciting the Department of Labor’s definition of a
reasonable accommodation. Exhibit C [84-3], at 2. Plaintiff also notes that during
Moseley’s deposition, he cited his own “knowledge of what RN’s do and the job
description provided in the Dictionary of Occupational Titles,” as well as Cooper’s own
assessment of her lifting ability. Exhibit B [84-2], at 86.
Plaintiff disclosed Moseley’s own considerations in determining whether a
requested accommodation is reasonable, but it did not disclose a set of criteria that
experts and employers generally consider – an industry standard, in other words.
Moreover, Moseley never discussed how experts and employers determine whether an
accommodation poses a threat in a particular workplace. Therefore, Moseley may refer
to his own considerations and cite them as support for his opinions, but, to the extent
Moseley contends that these are “the typical considerations that experts and employers
use,” the Court finds that Plaintiff did not comply with its disclosure requirements.
Likewise, the Court finds that Plaintiff did not disclose Moseley’s opinions as to how
experts and employers determine whether a requested accommodation poses a threat
in the workplace.
D.
Case-Specific Factors
Defendant argues that Plaintiff did not disclose Moseley’s opinions regarding
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“the range of case-specific factors used to determine whether an accommodation
constitutes an undue hardship.” Defendant also argues that any testimony on this topic
would be irrelevant because it did not assert undue hardship as an affirmative defense.
Defendant is correct. “Undue hardship” is an affirmative defense on which
Defendant would bear the burden of proof. Johnson v. Gambrinus Company/Spoetzl
Brewery, 116 F.3d 1052, 1058 (5th Cir. 1997); Riel v. Electronic Data Sys. Corp., 99
F.3d 678, 684 (5th Cir. 1996). But Defendant did not assert “undue hardship” as an
affirmative defense. Therefore, any evidence on this topic is irrelevant to the issues for
trial.1
E.
General Practices
Defendant argues that Plaintiff did not disclose Moseley’s opinion regarding “the
working conditions, physical requirements, and level of exertion generally practiced
by RN’s in dealing with less mobile patients.” In response, Plaintiff contends that
Moseley’s report included information regarding the manner in which RN’s lift less
mobile patients with assistance of other staff or lifting devices, Cooper’s vocational
classification in the Dictionary of Occupational Titles, and the use of the buddy system
or mechanical lifting devices at Defendant’s facility. Defendant does not deny that
Moseley’s report and deposition testimony include information and opinions on these
1
Defendant first made this argument in reply, and the Court generally does
not address arguments first made in reply. Wallace v. County of Comal, 400 F.3d
284, 292 (5th Cir. 2005). But the Court assumes that Plaintiff does not object to the
Court preventing Defendant from now asserting an affirmative defense that was
not pleaded. Regardless, if Plaintiff believes that this topic is relevant to an issue
for trial, it is free to raise the issue again at trial.
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specific areas of interest concerning Cooper’s practices at Wesley. Rather, Defendant
argues that Moseley did not address general practices in dealing with less mobile
patients.
The Court agrees with Defendant. Moseley cited information provided to him
concerning practices at Defendant’s TCU, Cooper’s typical practice, and even some
practices at a nursing home and different hospital. But he did not provide any opinions
regarding “the working conditions, physical requirements, and level of exertion
generally practiced by RN’s in dealing with less mobile patients.” In other words, he
did not provide any generalized opinions as to best practices in these areas across the
industry.
F.
Buddy System
Finally, Defendant argues that Plaintiff did not disclose Moseley’s opinion
regarding “the practical pros and cons of using the buddy system to lift patients.” In
response, Plaintiff contends that Moseley discussed the use of the buddy system and
mechanical lifting devices in Defendant’s facility in his report. Plaintiff also notes that
Moseley noted that a friend of his who is an administrator of a nursing home said that
RN’s “utilized team lifting . . . .” Exhibit B [84-2], at 62-63. Moseley also asked Cooper
about how much and how she lifted patients in Defendant’s facility. Id. at 86-87.
Moseley may have cited information about the buddy system’s use in
Defendant’s facility, but Plaintiff has not directed the Court to his opinions about “the
practical pros and cons of using the buddy system to lift patients.” The Court agrees
with Defendant. Plaintiff did not disclose any opinion testimony from Moseley on this
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topic.
G.
Rule 37
“If a party fails to provide information or identify a witness as required by Rule
26(a) or (e), the party is not allowed to use that information or witness to supply
evidence on a motion, at a hearing, or at trial, unless the failure was substantially
justified or is harmless.” FED. R. CIV. P. 37(c)(1); see also L.U.Civ.R. 26(a)(2). When
determining whether to exclude an expert’s testimony for a party’s failure to properly
disclose it, the Court considers the following factors:
(1)
the importance of the witnesses’ testimony;
(2)
the prejudice to the opposing party of allowing the witnesses to
testify;
(3)
the possibility of curing such prejudice by a continuance; and
(4)
the explanation, if any, for the party’s failure to comply with the
discovery order.
Sierra Club, 73 F.3d at 572 (citing Bradley v. United States, 866 F.2d 120, 125 (5th Cir.
1989)); see also Reliance Ins. Co. v. La. Land & Exploration Co., 110 F.3d 253, 257 (5th
Cir. 1997) (citing Geiserman v. MacDonald, 893 F.2d 787, 791 (5th Cir. 1990)).
For the purpose of addressing the current motion, the Court will assume that
these are important topics.2 But Plaintiff has not provided any legitimate explanation
for why it failed to disclose Moseley’s opinions on these issues. In fact, it appears that
2
One topic – the range of case-specific factors used to determine whether an
accommodation constitutes an undue hardship – is not important because it is not
relevant to this case.
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Plaintiff is trying to fix problems with Moseley’s testimony that were highlighted in
Defendant’s Daubert motion, which is not a legitimate explanation for its failure to
timely supplement its disclosures.
It would be quite prejudicial to Defendant for the Court to permit Moseley to
provide opinions at trial that have never been disclosed. In fact, Defendant still does
not know what Moseley’s opinions are on these topics. Plaintiff cites the sources of
information Moseley consulted in forming his opinions, but Plaintiff has not directed
the Court to the opinions themselves. Defendant is not required to infer Moseley’s
opinions from the information provided in his report and during his deposition.
There is not sufficient time to cure the prejudice to Defendant. To cure the
prejudice, the Court would have to permit Defendant to re-depose Moseley. The Court
would also have to permit Defendant to designate rebuttal experts or, at the very least,
supplement its current designations. The Court will not reopen discovery to that extent
on the eve of the final pretrial conference. Moreover, the Court’s calendar has changed
insofar as the criminal case that was previously scheduled for trial in January and
February of 2019 has been continued.
H.
Conclusion
For these reasons, the Court concludes that Plaintiff will not be permitted to
introduce any of the opinion testimony discussed above that was not timely disclosed
to Defendant. The Court grants in part and denies in part Defendant’s Motion in
Limine [101] regarding the expert testimony of Trey Moseley. Specifically:
•
Moseley may not provide any testimony or opinions regarding “the
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standard business practices typically implemented to facilitate the
interactive process through which employees can make ADA
requests.”
•
Moseley may refer to and cite the publications, guidances, and
treatises listed in his report and mentioned during his deposition,
but he may not refer to any additional publications, guidances, or
treatises.
•
Moseley may not provide any testimony regarding “the typical
considerations that experts and employers use to determine
whether a requested accommodation is reasonable or would pose
a direct threat in a given workplace.” Likewise, he may not provide
any opinions regarding whether a requested accommodation poses
a threat in the workplace, and how one determines such a threat.
But Moseley may refer to his own considerations in determining
whether an accommodation is reasonable and cite them as support
for his opinions.
•
Moseley may not provide any opinion or testimony regarding “the
range of case-specific factors used to determine whether an
accommodation constitutes an undue hardship” because it is not
relevant to any issue before the jury.
•
Moseley may not provide any opinion or testimony regarding “the
working conditions, physical requirements, and level of exertion
generally practiced by RN’s in dealing with less mobile patients.”
•
Moseley may not provide any opinion or testimony regarding “the
practical pros and cons of using the buddy system to lift patients.”
SO ORDERED AND ADJUDGED this 12th day of December, 2018.
/s/ Keith Starrett
KEITH STARRETT
UNITED STATES DISTRICT JUDGE
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