U.S. Equal Employment Opportunity Commission v. Dragon Rig Sales & Service, LLC, et al
Filing
113
MEMORANDUM AND ORDER granting in part and denying in part 64 Sealed Motion to exclude defendants' expert witness and 66 Motion to exclude the testimony of plaintiff's expert. Signed by District Judge Marcia A. Crone on 3/25/2024. (KMH)
UNITED STATES DISTRICT COURT
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff,
versus
THE MODERN GROUP, LTD., and
DRAGON RIG SALES & SERVICE, LLC,
Defendants.
EASTERN DISTRICT OF TEXAS
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CIVIL ACTION NO. 1:21-CV-451
MEMORANDUM AND ORDER
Pending before the court is Plaintiff Equal Employment Opportunity Commission’s
(“EEOC”) Motion to Exclude Defendants’ Expert Witness (#64), in which the EEOC seeks to
exclude the testimony of Dr. Andre Chen (“Dr. Chen”), the expert witness retained by Defendants
The Modern Group, Ltd. (“Modern”) and Dragon Rig Sales & Service, LLC (“Dragon Rig”)
(collectively, “Defendants”). Defendants filed a response (#82), and the EEOC filed a reply
(#94). Also pending before the court is Defendants’ Motion to Exclude the Testimony of
Plaintiff’s Expert (#66), in which Defendants seek to exclude the testimony of Dr. Douglas Wayne
Martin (“Dr. Martin”), the rebuttal expert witness retained by the EEOC. The EEOC filed a
response (#79), Defendants filed a reply (#88), and the EEOC filed a sur-reply (#100). Having
considered the pending motions, the submissions of the parties, the record, and the applicable law,
the court is of the opinion that the EEOC’s motion should be granted in part and denied in part,
and Defendants’ motion should be granted in part and denied in part.
I.
Background
The EEOC filed this lawsuit on behalf of Alexander Dare (“Dare”), alleging that
Defendants discriminated against Dare in violation of the Americans with Disabilities Act of 1990
(“ADA”), 42 U.S.C. § 12112(a), when they revoked his conditional offer of employment. On
February 27, 2019, Dare, who had previously worked as a welder, applied for a welding position
with Dragon Rig at its main location in Victoria, Texas. Dragon Rig is a manufacturer and service
company that constructs and provides oilfield service equipment.1 After interviewing Dare,
Dragon Rig conditionally offered him a position as a welder and requested that he complete a
mandatory pre-employment drug screen, which was administered by a third-party testing facility.
Dare disclosed to the drug testing facility that he had prescriptions for both methadone and Xanax.
Dare suffers from opioid use disorder and is prescribed methadone as part of a medically assisted
therapy (“MAT”) program. Dare is also prescribed Xanax to treat his anxiety disorder. At the
time he applied for a welding position with Dragon Rig, Dare was prescribed 90 milligrams per
day of methadone and 8 milligrams per day of Xanax.
Defendants’ Medical Review Officer (“MRO”), Dr. J. Taylor Starkey (“Dr. Starkey”),
reviewed Dare’s drug screen and prescriptions. Dare’s drug screen indicated quantities of
methadone and Xanax above the confirmation cutoff quantities for both medications. Dr. Starkey
marked Dare’s drug screen as “negative: has prescriptions” but included the following note: “His
drug screen is negative but both the methadone and especially the high dose Xanax are
1
Dragon Rig is a subsidiary of Modern. The EEOC alleges that both Defendants are liable for
discriminating against Dare because the two business entities operated as an “integrated enterprise.”
Defendants’ Motion for Summary Judgment (#63) disputes that they operated as an integrated enterprise
and asserts that Modern is not a proper defendant and accordingly should be dismissed.
2
SEDATING so he cannot work in a safety sensitive position or operate equipment.” Dr. Starkey
did not communicate with or examine Dare before submitting the drug screen results and his
appended note to Dragon Rig. Subsequently, Dragon Rig rescinded Dare’s conditional offer of
employment.
Dare later filed a charge of discrimination with the EEOC. On September 8, 2020, the
EEOC issued Defendants a Letter of Determination finding reasonable cause to believe that they
had violated the ADA. After the EEOC and Defendants were unable to resolve the matter through
informal methods of conciliation, the EEOC filed this lawsuit in August 2021.
In September 2022, Defendants designated Dr. Chen as their expert witness on various
topics, including the uses and risks of treatment with methadone and alprazolam,2 the interaction
between methadone and alprazolam, the risks and safety concerns of combining high doses of
methadone and alprazolam, the safety concerns related to Dare’s working in a safety-sensitive
position or operating heavy machinery, the duties of an MRO to alert an employer of a safety
concern, the medical support for and reasonableness of Dr. Starkey’s opinion and warning that
Dare not be permitted to work in a safety-sensitive position or with heavy machinery, and the
reasonableness of Dragon Rig’s heeding Dr. Starkey’s warning and withdrawing Dare’s
conditional offer of employment. The EEOC now moves to disqualify Dr. Chen under Federal
Rule of Evidence 702, arguing that he is not qualified to testify as an expert because he lacks the
experience, expertise, and specialized knowledge necessary to opine on the relevant issues. The
EEOC further contends that Dr. Chen’s conclusions are unreliable because they lack proper
scientific, factual, and legal bases and ignore or improperly apply the relevant facts. Lastly, the
2
Alprazolam is the generic name for Xanax.
3
EEOC invokes Federal Rule of Evidence 403 to argue that several of Dr. Chen’s opinions should
be excluded because they are more prejudicial than probative.
In November 2022, the EEOC designated Dr. Martin as its rebuttal expert.3 Defendants
seek to exclude Dr. Martin’s testimony under Rule 702, asserting that he is not qualified to opine
on matters relating to pain and addiction medicine and the consequences of Dare’s medications.
They insist that, “[a]t most, Dr. Martin’s testimony should be limited to his understanding of the
role of the MRO and the duties and responsibilities of an MRO.” Defendants also claim that many
of Dr. Martin’s opinions are not the product of reliable principles and methods, are not based upon
sufficient facts or data, and result from his failure to apply the facts of this case properly.
Defendants also cite Rule 403 to argue that one of Dr. Martin’s statements should be stricken
because it may “confuse or unduly prejudice” the trier of fact.
II.
Analysis
The admission or exclusion of expert witness testimony is a matter that is left to the
discretion of the district court. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999); see
United States v. Herman, 997 F.3d 251, 269 (5th Cir. 2021); Hicks-Fields v. Harris County, 860
F.3d 803, 810 n.22 (5th Cir.), cert. denied, 583 U.S. 1014 (2017); Huss v. Gayden, 571 F.3d
442, 452 (5th Cir. 2009), cert. denied, 559 U.S. 1006 (2010); Nano-Proprietary, Inc. v. Cannon,
Inc., 537 F.3d 394, 399 (5th Cir. 2008). Pursuant to Rule 702 of the Federal Rules of Evidence:
3
In particular, Dr. Martin states that his opinions rebut the following conclusions reached by Dr.
Chen: (1) “There are no circumstances where an individual such as Mr. Dare, who is ‘concurrently taking
high-dose methadone and high-dose alprazolam could be cleared to work in a safety-sensitive position’
such as a welder”; (2) “[Dr. Starkey] acted appropriately in reporting out the results of Mr. Dare’s drug
test and recommending that he not be hired”; and (3) “Defendants’ decision to immediately follow this
recommendation was reasonable and justified.”
4
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 proponent
demonstrates to the court that it is more likely than not that: (a) the expert’s
scientific, technical, or other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue; (b) the testimony is based
on sufficient facts or data; (c) the testimony is the product of reliable principles and
methods; and (d) the expert’s opinion reflects a reliable application of the principles
and methods to the facts of the case.
FED. R. EVID. 702; accord Kumho Tire Co., 526 U.S. at 152; Daubert v. Merrell Dow Pharms.,
Inc., 509 U.S. 579, 588 (1993). Prior to admitting expert testimony, “[d]istrict courts must be
assured that the proffered witness is qualified to testify by virtue of his ‘knowledge, skill,
experience, training, or education.’” Wellogix, Inc. v. Accenture, L.L.P., 716 F.3d 867, 881 (5th
Cir. 2013) (quoting Wilson v. Woods, 163 F.3d 935, 937 (5th Cir. 1999)), cert. denied, 573 U.S.
904 (2014); accord FED. R. EVID. 702; Albert v. City of Petal, 819 F. App’x 200, 202 (5th Cir.
2020). Accordingly, “[t]o qualify as an expert, ‘the witness must have such knowledge or
experience in [his] field or calling as to make it appear that his opinion or inference will probably
aid the trier in his search for truth.’” United States v. Hicks, 389 F.3d 514, 524 (5th Cir. 2004)
(quoting United States v. Bourgeois, 950 F.2d 980, 987 (5th Cir. 1992)), cert. denied, 546 U.S.
1089 (2006); accord United States v. Cooks, 589 F.3d 173, 179 (5th Cir. 2009), cert. denied, 559
U.S. 1024 (2010); Henderson v. Atmos Energy, 496 F. Supp. 3d 1011, 1015 (E.D. La. 2020).
“The burden is on the proponent of the expert testimony to establish its admissibility by
a preponderance of the evidence.” Robles v. Eminent Med. Ctr., 619 F. Supp. 3d 609, 647 (N.D.
Tex. 2022) (citing Daubert, 509 U.S. at 592 n.10; Johnson v. Arkema, Inc., 685 F.3d 452, 459
(5th Cir. 2012)); see Sandifer v. Hoyt Archery, Inc., 907 F.3d 802, 809 (5th Cir. 2018) (“The
proponent need not prove to the judge that the expert’s testimony is correct, but she must prove
5
by a preponderance of the evidence that the testimony is reliable.” (quoting Moore v. Ashland
Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998), cert. denied, 526 U.S. 1064 (1999))).
The trial court possesses considerable flexibility in assessing the reliability of expert
testimony. Kumho Tire Co., 526 U.S. at 141; United States v. Schaffer, 439 F. App’x 344, 346
(5th Cir. 2011) (citing Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004)); United
States v. Valencia, 600 F.3d 389, 424 (5th Cir.), cert. denied, 562 U.S. 893 (2010); Alpizar v.
John Christner Trucking, LLC, 568 F. Supp. 3d 714, 717-18 (W.D. Tex. 2021). In Daubert, the
United States Supreme Court articulated a nonexhaustive set of factors that courts may consider
when evaluating whether the reasoning or methodology underlying an expert’s testimony is
reliable: (1) whether the expert’s theory or technique can be or has been tested; (2) whether the
theory or technique has been subjected to peer review and publication; (3) the known or potential
rate of error of the challenged method; and (4) whether the theory or technique is generally
accepted in the relevant scientific community. 509 U.S. at 593-94; United States v. Arthur, 51
F.4th 560, 574 (5th Cir. 2022) (quoting United States v. Hodge, 933 F.3d 468, 477 (5th Cir.
2019), cert. denied, 141 S. Ct. 131 (2020)), cert. denied, 143 S. Ct. 846 (2023).
Given the diverse contexts in which expert testimony is offered, however, the application
of specific factors may not be appropriate in any individual case. Schaffer, 439 F. App’x at 346;
Stolt Achievement, Ltd. v. Dredge B.E. Lindholm, 447 F.3d 360, 366 (5th Cir. 2006) (citing
Kumho Tire Co., 526 U.S. at 147-49). Indeed, “Daubert’s list of specific factors neither
necessarily nor exclusively applies to all experts or in every case. Rather, the law grants a district
court the same broad latitude when it decides how to determine reliability as it enjoys in respect
to its ultimate reliability determination.” Kumho Tire Co., 526 U.S. at 141-42; accord Hicks, 389
6
F.3d at 525. The overarching goal “is to make certain that an expert, whether basing testimony
upon professional studies or personal experience, employs in the courtroom the same level of
intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho Tire
Co., 526 U.S. at 152; Certain Underwriters at Lloyds, London v. Axon Pressure Prods. Inc., 951
F.3d 248, 269 (5th Cir. 2020); Roman v. W. Mfg., Inc., 691 F.3d 686, 693 (5th Cir. 2012); Wells
v. SmithKline Beecham Corp., 601 F.3d 375, 378 (5th Cir. 2010).
To determine whether expert testimony is sufficiently reliable, the court may consider
“[w]hether experts are ‘proposing to testify about matters growing naturally and directly out of
research they have conducted independent of litigation or whether they have developed their
opinions for the purposes of testifying.’” FED. R. EVID. 702 advisory committee’s note to 2000
amendment (quoting Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1317 (9th Cir.), cert.
denied, 516 U.S. 869 (1995)). Courts have “warned that when ‘an expert becomes an advocate
for a cause, he therefore departs from the ranks of an objective expert witness, and any resulting
testimony would be unfairly prejudicial and misleading.’” Betts v. Gen. Motors Corp., No.
3:04-CV-169-M-A, 2008 WL 2789524, at *12 (N.D. Miss. July 16, 2008) (quoting Viterbo v.
Dow Chem. Co., 646 F. Supp. 1420, 1425 (E.D. Tex. 1986), aff’d, 826 F.2d 420 (5th Cir.
1987)). Nevertheless, the fact that an expert is paid for his testimony “does not necessarily cast
doubt on the reliability of his testimony,” as few experts do their work for charitable purposes.
Id. (quoting Daubert, 43 F.3d at 1317).
The court plays the role of a gatekeeper, determining the admissibility of “all types of
expert testimony, not just scientific testimony.” United States v. Ebron, 683 F.3d 105, 139 (5th
Cir. 2012) (citing Pipitone v. Biomatrix, Inc., 288 F.3d 239, 244 (5th Cir. 2002)), cert. denied,
7
571 U.S. 989 (2013); accord Gibson Brands, Inc. v. Armadillo Distrib. Enters., Inc., 534 F.
Supp. 3d 694, 696 (E.D. Tex. 2021). In this role, “trial courts make ‘a preliminary assessment
of whether the reasoning or methodology underlying the testimony is scientifically valid and of
whether that reasoning or methodology properly can be applied to the facts in issue.’” McGill v.
BP Expl. & Prod., Inc., 830 F. App’x 430, 433 (5th Cir. 2020) (quoting Daubert, 509 U.S. at
592-94); Hathaway v. Bazany, 507 F.3d 312, 318 (5th Cir. 2007). The district court should
approach this task “with proper deference to the jury’s role as the arbiter of disputes between
conflicting opinions.” United States v. 14.38 Acres of Land, 80 F.3d 1074, 1077 (5th Cir. 1996)
(quoting Viterbo v. Dow Chem. Co., 826 F.2d 420, 422 (5th Cir. 1987)); accord United States
ex rel. Montcrieff v. Peripheral Vascular Assocs., P.A., 507 F. Supp. 3d 734, 746 (W.D. Tex.
2020).
The trial court’s role as a gatekeeper “is not intended to serve as a replacement for the
adversary system: ‘Vigorous cross-examination, presentation of contrary evidence, and careful
instruction on the burden of proof are the traditional and appropriate means of attacking shaky but
admissible evidence.’” Primrose Operating Co. v. Nat’l Am. Ins. Co., 382 F.3d 546, 562 (5th
Cir. 2004) (quoting 14.38 Acres of Land, 80 F.3d at 1078); accord Puga v. RCX Sols., Inc., 922
F.3d 285, 294 (5th Cir. 2019); Dearmond v. Wal-Mart La. LLC, 335 F. App’x 442, 444 (5th Cir.
2009) (“Cross-examination at trial . . . is the proper forum for discrediting testimony, and
credibility determinations are, of course, the province of [the fact finder].”). “The Daubert
analysis should not supplant trial on the merits.” Mathis v. Exxon Corp., 302 F.3d 448, 461 (5th
Cir. 2002) (citing Pipitone, 288 F.3d at 250). Rather, “[t]he focus . . . must be solely on
principles and methodology [of the expert witness], not on the conclusions that they generate.”
8
Hodge, 933 F.3d at 477 (quoting Daubert, 509 U.S. at 594-95); Watkins v. Telsmith, Inc., 121
F.3d 984, 989 (5th Cir. 1997); see Valencia, 600 F.3d at 419. Indeed, “it is the role of the
adversarial system, not the court, to highlight weak evidence.” Primrose Operating Co., 382 F.3d
at 563. Thus, “[w]hile the district court must act as a gatekeeper to exclude all irrelevant and
unreliable expert testimony, ‘the rejection of expert testimony is the exception rather than the
rule.’” United States v. Perry, 35 F.4th 293, 330 (5th Cir.) (quoting Puga, 922 F.3d at 294),
cert. denied, 143 S. Ct. 463 (2022).
Ultimately, the trial court’s role as a gatekeeper is intended to ensure that only reliable and
relevant expert testimony is presented to the jury. Puga, 922 F.3d at 293; United States v. John,
597 F.3d 263, 274 (5th Cir. 2010); Dearmond, 335 F. App’x at 444; Rushing v. Kan. City S. Ry.
Co., 185 F.3d 496, 506 (5th Cir. 1999) (citing Daubert, 509 U.S. at 590-93), cert. denied, 528
U.S. 1160 (2000). The United States Court of Appeals for the Fifth Circuit has held that “[a]
district court should refuse to allow an expert witness to testify if it finds that the witness is not
qualified to testify in a particular field or on a given subject.” Wilson, 163 F.3d at 937; Prejean
v. Satellite Country, Inc., 474 F. Supp. 3d 829, 833 (W.D. La. 2020); Floyd v. Hefner, 556 F.
Supp. 2d 617, 642-43 (S.D. Tex. 2008).
A.
Dr. Chen
1.
Dr. Chen Is Qualified to Testify
a.
Dr. Chen’s Qualifications to Testify About Methadone and Xanax
The EEOC first asserts that Dr. Chen is not qualified to testify as an expert regarding
methadone, Xanax, and the interaction between the two drugs. Primarily, the EEOC takes issue
with the fact that Dr. Chen has never worked in an opioid treatment program, is not authorized
9
to prescribe methadone for the treatment of addiction, rarely prescribes Xanax, and “admits to
having very limited experience with patients taking both medications, so he has not made clinical
observations of the effects of the combination to support his opinions.” The EEOC also points
out that Dr. Chen has not published any articles or conducted any research on the two medications.
Finally, the EEOC emphasizes that Dr. Chen has not previously opined as an expert witness on
the use of methadone or the interaction between methadone and Xanax.
In response, Defendants detail Dr. Chen’s extensive experience as a physician specializing
in addiction medicine and opioid stewardship. In his current position as an Addiction Medicine
Specialist at Advanced Pain Care, the largest interventional pain management practice in Texas,
Dr. Chen treats patients with substance use disorders and regularly prescribes opioids, including
methadone, for purposes of pain management. In fact, for the last eleven to fourteen years,4 Dr.
Chen has held a waiver from the Drug Enforcement Administration (“DEA”) to treat up to 275
active patients—the maximum number of patients for which the DEA will issue a waiver—for
opioid use disorder. Dr. Chen’s primary role is to provide opioid stewardship consultations,
which involve evaluating and treating “patients for whom the use of prescription opioids carries
a high risk due to aberrant medication-taking behavior, history of substance abuse, co-morbidities,
concurrent prescriptions of controlled medications, [and] prescription medication dependence.”
Although Dr. Chen is not authorized to prescribe methadone for the treatment of addiction—as
only an opioid treatment program or MAT may issue such prescriptions—he prescribes methadone
for the treatment of pain and has treated patients who have been enrolled in MATs. Furthermore,
while Dr. Chen “rarely” prescribes Xanax due to what he perceives as “accepted knowledge
4
Dr. Chen testified that he first obtained this waiver “around 2010” or “around maybe 2013.”
10
among practitioners that prescribe controlled substances . . . that opiates and benzodiazepines5 are
a very problematic combination,” he “treat[s] patients with opiates and benzo[diazepine]s” “every
day.”
In fact, he “spend[s] most of [his] day . . . prescribing opiates and reviewing
benzodiazepines.”
The court is thus of the opinion that Dr. Chen’s work history and education provide him
with an adequate basis from which to testify about methadone and Xanax. The court rejects the
notion that Dr. Chen must have specific experience and training matched precisely to the
circumstances at issue. See Pride v. BIC Corp., 218 F.3d 566, 577 (6th Cir. 2000) (noting that
the requirements of Rule 702 should be applied liberally); In re Paoli R.R. Yard PCB Litig., 35
F.3d 717, 741 (3d Cir. 1994) (citing Hammond v. Int’l Harvester Co., 691 F.2d 646, 652-53 (3d
Cir. 1982)) (“We have eschewed imposing overly rigorous requirements of expertise and have
been satisfied with more generalized qualifications.”), cert. denied, 513 U.S. 1190 (1995);
Wagoner v. Exxon Mobil Corp., 813 F. Supp. 2d 771, 800 (E.D. La. 2011) (“Rule 702 ‘embodies
a liberal policy towards qualification as an expert.’”); Rondout Valley Cent. Sch. Dist. v. Coneco
Corp., 321 F. Supp. 2d 469, 475 (N.D.N.Y. 2004) (“Rather than relying upon rigidity,
demanding that an expert’s qualifications match perfectly with the issues at hand, liberality and
flexibility in evaluating qualifications should be the court’s guide.”); see also Van Winkle v.
Rogers, 82 F.4th 370, 379 (5th Cir. 2023) (“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.” (quoting Huss, 571 F.3d
at 452)). As the Supreme Court has admonished, “Rule 702 [does not create] a schematism that
5
The term “benzodiazepines” refers to the class of medication to which Xanax belongs.
11
segregates expertise by type while mapping certain kinds of questions to certain kinds of experts.
Life and the legal cases that it generates are too complex to warrant so definitive a match.”
Kumho Tire Co., 526 U.S. at 151.
Moreover, the fact that Dr. Chen has not published any articles or conducted any research
on methadone or Xanax does not prevent him from being qualified as an expert. Although the
EEOC accurately states that the fact of publication (or lack thereof) in a peer-reviewed journal is
a relevant consideration in assessing the scientific validity on which an opinion is premised, such
a consideration guides the court’s evaluation of the reliability of an expert’s opinion, not a
determination of whether he is qualified to offer expert testimony. See Daubert, 509 U.S. at 594
(“The fact of publication (or lack thereof) in a peer reviewed journal thus will be a relevant,
though not dispositive, consideration in assessing the scientific validity of a particular technique
or methodology on which an opinion is premised.”); Perry, 35 F.4th at 329 (explaining that
Daubert set out several factors, including “whether the technique has been subject to peer review
and publication,” that courts “should consider when . . . making their preliminary assessments of
whether the reasoning underlying expert testimony is scientifically valid and can properly be
applied to the facts in issue”). Defendants also correctly note that Rule 702 does not require a
witness to publish articles or conduct research in order to qualify as an expert. See generally FED.
R. EVID. 702; see also Van Winkle, 82 F.4th at 379 (“Experience alone can provide a sufficient
foundation for expert testimony.” (citing FED. R. EVID. 702 advisory committee’s note to 2000
amendment)).
As for the EEOC’s contention that Dr. Chen is unqualified because he has not previously
testified as an expert regarding the use of methadone or the interaction between methadone and
12
Xanax, Dr. Chen’s “lack of experience as an expert witness is no bar to his testimony. An expert
witness must be an expert in a given field, not an experienced witness.” Johnson v. BAE Sys.
Land & Armaments, L.P., No. 3:12-CV-1790-D-BH, 2014 WL 1714487, at *31 n.25 (N.D. Tex.
Apr. 30, 2014) (quoting Rolls-Royce Corp. v. HEROS, Inc., No. 3:07-CV-0739-D, 2010 WL
184313, at *5 (N.D. Tex. Jan. 14, 2010)); see Sexton v. Exxon Mobil Corp., 484 F. Supp. 3d 321,
334 (M.D. La. Sept. 4, 2020) (“[C]ourts 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.”). Accordingly, the court determines that Dr. Chen is qualified to offer
expert testimony about methadone and Xanax.
b.
Dr. Chen’s Qualifications to Testify About the Role of an MRO
The EEOC also argues that Dr. Chen is not qualified to testify about the responsibilities
of an MRO, including whether Defendants’ MRO, Dr. Starkey, appropriately reported Dare’s
drug screen results (including the warning about Dare’s medications) to Defendants. The EEOC
points out that, although Dr. Chen is certified as an MRO,6 he has never worked as a vocational
MRO. The EEOC also contends that, although Dr. Chen references the eleventh edition of the
American Association for Medical Review Officers (“AAMRO”) Handbook in his supplemental
report, “he has no understanding of the publication or its applications” because he misapplied the
United States Department of Transportation’s (“DOT”) drug-testing guidelines to the facts of this
case. The EEOC further notes that Dr. Chen failed to take into account that both MRO-certifying
6
The EEOC also notes that Dr. Chen’s curriculum vitae (“CV”) does not list his MRO
certification. Nevertheless, Dr. Chen testified during his deposition that he had been certified as an MRO
for approximately five years. The EEOC cites no authority for the proposition that the court must
disbelieve that an expert holds a certification merely because it is not listed on his CV. Accordingly, the
absence of a reference to an MRO certification on Dr. Chen’s CV does not render Dr. Chen unqualified
to testify.
13
bodies, AAMRO and the Medical Review Officer Certification Council (“MROCC”), “warn
against an employer and an MRO making automatic determinations that an applicant has an
impairment or is unfit for the job based on his prescription medications.”7 Finally, the EEOC
emphasizes that Dr. Chen acknowledged during his deposition that he is unfamiliar with the ADA
and its requirements. According to the EEOC, as a result, Dr. Chen “cannot testify with any
knowledge, expert or otherwise, that Defendants’ withdrawal of the job offer in response to Dr.
Starkey’s admonition [was] reasonable.”
In response to the EEOC’s assertion that Dr. Chen is not qualified to testify about an
MRO’s responsibilities because he has never served as an MRO in a vocational setting, Defendants
point out that while Dr. Chen “does not in the strict sense serve in that capacity [of an MRO] for
employers, Dr. Chen, nevertheless, routinely performs all the functions of an MRO in his
practice,” in that he “reviews the results of medical toxicology reports,” “interprets drug screens
and results,” and “review[s] drug test[s] every day . . . .” On occasion, Dr. Chen is also “asked
to give an opinion as to whether a patient can perform a certain duty on the medication that they
are being prescribed.” In other words, Dr. Chen’s deposition testimony indicates that he is
familiar with an MRO’s responsibilities and carries out various duties comparable to those of a
vocational MRO in his practice. Thus, the court finds that, despite Dr. Chen’s lack of experience
7
Notably, however, the paragraph of Dr. Martin’s rebuttal report that the EEOC cites to support
this proposition relies on the following quote from the MROCC Guide to Drug Testing: “[D]rug tests are
generally unreliable measures of drug related impairment” (emphasis added). The word “generally”
indicates that there are some specific circumstances where drug tests may be reliable measures of
impairment. As the court discusses in more detail below, Dr. Chen is apparently of the opinion that such
a circumstance arises where a drug test presents high-dosage quantities of both Xanax and methadone, as
he states that he “cannot envision any circumstance where an individual who is concurrently taking
high-dose methadone and high-dose alprazolam could be cleared to work in a safety-sensitive position.”
Therefore, after reviewing the EEOC’s support for this argument, the court is unconvinced that Dr. Chen’s
opinion is unreliable on these grounds.
14
in the precise role of a vocational MRO, Dr. Chen is nevertheless sufficiently qualified to testify
about the responsibilities of an MRO by virtue of his knowledge, experience, and training,
including his MRO certification and his analogous duties in his medical practice.
As for the EEOC’s contention that Dr. Chen “has no understanding” of the AAMRO
Medical Review Officers Handbook because he applies a DOT regulation8 that is not applicable
to the welding position for which Dare applied,9 the court declines to find that Dr. Chen is
unqualified on this ground. Indeed, Dr. Starkey—Defendants’ MRO who reviewed Dare’s drug
test results—acknowledged in his deposition that the welding position at issue is not subject to
DOT regulations. Nevertheless, Dr. Starkey explained that he “consider[s] DOT guidelines to be
sort of, the gold standard in occupational medicine” because he “feel[s] like you could always be
on solid footing if you’re following federal guidelines” and he strives to avoid implementing a
“double standard” for non-DOT positions. Besides a vague assertion that Dr. Starkey “had a duty
to not disclose [personal medical] information,” the EEOC fails to explain why an MRO may not
apply a “higher” standard (such as the DOT regulations) when reviewing drug test results and
reporting potential safety concerns.10 The EEOC thus does not clarify how an MRO’s reliance on
8
See 49 C.F.R. § 40.327(a) (“As the MRO, you must . . . report drug test results and medical
information you learned as part of the verification process to third parties without the employee’s consent
if you determine, in your reasonable medical judgment, that: (1) The information is likely to result in the
employee being determined to be medically unqualified under an applicable DOT agency regulation; or
(2) The information indicates that continued performance by the employee of his or her safety-sensitive
function is likely to pose a significant safety risk.”).
9
See 49 C.F.R. § 40.1(b) (“This part concerns the activities of transportation employers,
safety-sensitive transportation employees . . ., and service agents.”).
10
The only sources that the EEOC cites to the contrary are Dr. Martin’s statements in his report
and deposition testimony that MROs are prohibited from providing specific information about potential
safety issues due to “concerns about HIPAA [the Health Insurance Portability and Accountability Act of
1996, Pub. L. No. 104-191, 110 Stat. 1936 (1996)] and the ADA.” The EEOC does not expound upon
15
DOT regulations when assessing an applicant for a non-DOT position is improper. As such, the
EEOC fails to demonstrate how Dr. Chen’s so-called “misapplication” of the DOT guidelines
renders him unqualified to testify. Ultimately, the court is convinced that, given Dr. Chen’s
certification as an MRO for about five years, his consultation of the AAMRO Medical Review
Officers Handbook, and his experience with handling responsibilities paralleling those of a
vocational MRO, Dr. Chen is qualified to serve as an expert on the role of an MRO.11
2.
Dr. Chen’s Opinions Are Reliable
a.
Dr. Chen Does Not Disregard the Treating Physicians’ Opinions
The EEOC next argues that Dr. Chen’s testimony is unreliable because he ignores medical
science contradicting his opinions. Specifically, the EEOC asserts that Dr. Chen’s generalization
that he “cannot envision any circumstance” where an individual “concurrently taking high-dose
methadone and high-dose alprazolam could be cleared to work in a safety-sensitive position” is
improper because a medical determination of whether an individual can perform the essential
functions of a job must be made on an individualized basis. The EEOC cites the testimony of its
rebuttal expert, Dr. Martin; Dare’s treating physicians, Dr. John Hopper (“Dr. Hopper”) and Dr.
Natalie Carroll (“Dr. Carroll”); and Dare’s MAT counselor, Magdalene Mata (“Mata”), to
this issue. Essentially, this dispute pits one expert’s opinion (Dr. Martin’s) on what information may
properly be disclosed against another expert’s opinion (Dr. Chen’s, whose opinion aligns with Dr.
Starkey’s).
11
The EEOC also insists that Dr. Chen is unqualified because he admitted that he is unfamiliar
with the ADA and its requirements. Dr. Chen, does not, however, purport to opine about the ADA.
Rather, his opinions discuss “the medical support for and reasonableness of Dr. Starkey’s opinion and
warning . . . and the reasonableness of Dragon Rig heeding Dr. Starkey’s warning . . . .” It is unclear
to the court how Dr. Chen’s unfamiliarity with the ADA disqualifies him from testifying about this subject
matter. Accordingly, whereas Dr. Chen is, by his own admission, not qualified to testify about the ADA,
the court determines that Dr. Chen is sufficiently qualified to testify about the role of an MRO.
16
support a number of propositions that Dr. Chen purportedly ignores, including the range of typical
dosages for both Xanax and methadone, the factors that can impact whether a patient experiences
side effects from these medications, the fact that patients’ tolerances for medications can vary, and
the fact that individuals taking both medications can perform safety-sensitive jobs, including
welding. According to the EEOC, Dr. Chen’s disregard for Dare’s treating physicians’ opinions
“demonstrates flaws inherent in [his] application of scientific principles and methodology.”12
Defendants emphasize that Dr. Chen’s reports explicitly note that he reviewed Dare’s
medical records, as well as the depositions of Dr. Carroll, Dr. Hopper, Mata, and Dr. Martin.
They also note that Dr. Chen relied on the testimony of Defendants’ MRO, Dr. Starkey, who cited
multiple medical sources himself.
Lastly, Defendants retort that Dr. Chen’s opinions are
supported by multiple medical, governmental, and MRO sources that are cited in his reports.13
12
The EEOC also asserts that Dr. Chen’s opinions in his reports are unreliable because they “are
contradicted by his own deposition testimony.” In particular, the EEOC contends that Dr. Chen
contradicted his conclusion that he “cannot envision any circumstance” where an individual “concurrently
taking high-dose methadone and high-dose alprazolam could be cleared to work in a safety-sensitive
position.” The EEOC notes that Dr. Chen “admitted” in his deposition testimony that: not everyone who
takes the two medications together will have the side effects he attributed to the medications; the side
effects of the medications will vary based on certain factors, including a patient’s tolerance level; being
prescribed a benzodiazepine can assist a patient taking methadone with his addiction recovery; he could
not recall any patients who were taking both medications and exhibited the potential symptoms that he
identified; he has never assessed whether someone on both medications is capable of operating heavy
machinery; and individuals taking both medications can operate vehicles.
The court does not agree, however, that Dr. Chen contradicted himself. For one matter, during
his deposition, Dr. Chen never withdrew or expressly disavowed the aforementioned conclusion.
Moreover, Dr. Chen’s so-called “admissions” during his deposition do not necessarily negate his
conclusion. Dr. Chen can recognize that side effects will vary among patients while simultaneously
maintaining the opinion that no person taking methadone and Xanax at the dosages prescribed to Dare
could be cleared to work in a safety-sensitive position. Similarly, Dr. Chen can agree that a
benzodiazepine can lower a patient’s anxiety and assist with addiction recovery while still holding the
opinion that an individual prescribed methadone and Xanax cannot perform a safety-sensitive job. Thus,
the court is unpersuaded that Dr. Chen’s deposition testimony “contradicts” the opinions in his reports.
13
Specifically, Dr. Chen relied on various letters and medical records from Dare’s treating
physicians; Dare’s drug screen test and results; the eleventh edition of AAMRO’s Medical Review Officer
17
To the extent the EEOC argues that Dr. Chen’s conclusions are unreliable because they
differ from its own experts’ opinions, the court declines to strike Dr. Chen’s opinion on such a
basis. As the court explained above, “[t]he focus . . . must be solely on principles and
methodology [of the expert witness], not on the conclusions that they generate.” Hodge, 933 F.3d
at 477 (quoting Daubert, 509 U.S. at 594-95). Indeed, “[w]hile the party offering the expert bears
the burden of showing that the testimony is reliable, it ‘need not prove to the judge that the
expert’s testimony is correct . . . .’” Estech Sys., IP, LLC v. Carvana LLC, No. 2:21-CV-00482JRG-RSP, 2023 WL 2934920, at *2 (E.D. Tex. Apr. 13, 2023) (quoting Johnson, 685 F.3d at
459). In fact, the Advisory Committee on Evidence Rules recently noted that “[i]t will often occur
that experts come to different conclusions based on contested sets of facts. Where that is so, the
Rule 104(a)14 standard does not necessarily require exclusion of either side’s experts. Rather, by
deciding the disputed facts, the jury can decide which side’s experts to credit.” FED. R. EVID. 702
advisory committee’s note to 2023 amendment. Accordingly, the court rejects the EEOC’s
argument that Dr. Chen’s testimony is unreliable on this basis.15
Handbook; a June 2011 article published in the journal PAIN MEDICINE, entitled An Analysis of the Root
Causes for Opioid-Related Overdose Deaths in the United States; remarks from the president of the Texas
Medical Board (“TMB”) at the 14th Annual Texas Pain Society Scientific Conference in October 2022;
and multiple websites, including the Substance Abuse and Mental Health Services Administration’s website
(SAMHSA.gov), MedlinePlus.gov, the DEA’s website (DEA.gov), RxList.com, and the United States
Food and Drug Administration’s (“FDA”) website (FDA.gov).
14
Under Federal Rule of Evidence 104(a), “[t]he court must decide any preliminary question about
whether a witness is qualified . . . or evidence is admissible.” FED. R. EVID. 104(a).
15
The EEOC also asserts that Dr. Chen’s testimony is unreliable because his opinions are not
based on personal observations. The court agrees with Defendants that “an expert is permitted wide
latitude to offer opinions, including those that are not based on firsthand knowledge or observation.”
Daubert, 509 U.S. at 592 (citing FED. R. EVID. 702, 703). As a result, “[n]umerous courts have held that
an expert witness need not personally examine a plaintiff in rendering his opinion” in personal injury cases.
Lacara v. Kohl’s Inc., No. 21-2321, 2023 WL 5508082, at *2 (E.D. La. Aug. 25, 2023) (quoting
Mendoza v. Lafarge N. Am., Inc., No. 15-1257, 2016 WL 153952, at *3 (E.D. La. Jan. 13, 2016)).
18
b.
Dr. Chen Does Not Impermissibly Rely on His Own Ipse Dixit
The EEOC also contends that Dr. Chen’s opinion that no one taking Dare’s dosages of
medications could be cleared to work in a safety-sensitive position is “fundamentally unsupported”
and “connected to existing data only by [Dr. Chen’s] ipse dixit.”16 The court disagrees. For one
matter, an expert may properly rely upon his own experience when offering an opinion. During
his deposition, Dr. Chen testified that he has treated patients taking Xanax and methadone together
and that he evaluates the combination of opiates and benzodiazepines “dozens of times a day.”
He is also occasionally asked “to give an opinion as to whether a patient can perform a certain
duty on the medication that they are being prescribed.” In fact, Dr. Chen has “declined to
furnish” letters stating that a patient could drive or operate heavy machinery if he is
“uncomfortable with the medications [the patient is] taking and what [the patient is] asking to be
cleared to do.” Although Dr. Chen could not recall furnishing (or declining to furnish) such a
letter for a patient who was prescribed methadone, Xanax, or both medications, he is nevertheless
familiar with the practice of assessing a job description and determining whether a patient’s
prescriptions would inhibit that patient from performing the requisite duties.
The Supreme Court has recognized that “[t]rained experts commonly extrapolate from
existing data,” with the caveat that “courts are free to reject a theory based on extrapolation when
“Instead, ‘review of a plaintiff’s medical records, combined with the expert’s medical experience, is
sufficient to ensure the reliability of that expert’s testimony’” about the causation of the plaintiff’s injuries.
Id. (quoting Gonzales v. Charlotte Pipe & Foundry Co., No. 6:19-cv-00181-ADA-JCM, 2020 WL
13609936, at *6 (W.D. Tex. June 23, 2020), adopted by No. 6-19-CV-00181-ADA, 2020 WL 13610359
(W.D. Tex. July 23, 2020)). The court sees no reason why the same principle should not apply in this
ADA case, particularly given that neither the EEOC’s expert nor Defendants’ expert personally examined
Dare. Accordingly, Dr. Chen’s lack of personal observation does not render his opinion unreliable.
16
“Ipse dixit” refers to “something asserted but not proved.”
DICTIONARY (11th ed. 2019).
19
Ipse Dixit, BLACK’S LAW
‘there is simply too great an analytical gap between the data and the opinion proffered.’” Johnson,
685 F.3d at 460-61 (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)). Such an
analytical gap does not exist here because Dr. Chen has experience with both treating patients
taking methadone and Xanax and assessing patients’ ability to perform certain job tasks. The court
concludes that Dr. Chen’s experience with prescribing opiates, evaluating patients taking both
opiates and benzodiazepines, and evaluating patients’ abilities to perform certain job duties when
taking other medications, coupled with his knowledge of the common side effects of prescribing
opiates and benzodiazepines together, demonstrate that his opinion on this subject is, more likely
than not, reliable. While there may be certain limitations on Dr. Chen’s experience, in that he
could not recall any patients who were taking both medications and exhibited the potential side
effects that he identified and he has never assessed whether a patient taking methadone, Xanax,
or both medications could perform certain job duties, such limitations impact the weight of his
opinions, not their admissibility.
The EEOC may properly elucidate these issues on
cross-examination.
Additionally, although the EEOC criticizes Dr. Chen’s remark that it is “just accepted
knowledge among practitioners that prescribe controlled substances that opiates and
benzodiazepines are a very problematic combination,” Rule 702 explicitly states that an expert
may be qualified by, inter alia, his “knowledge.” Furthermore, one of the relevant considerations
when determining whether an expert’s opinion is admissible is whether the expert’s “specialized
knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.”
FED. R. EVID. 702. Thus, Rule 702 plainly contemplates that an expert may properly rely upon
his knowledge, including generally accepted knowledge in his field. As explained above, Dr.
20
Chen cites several medical resources that support his opinion, including the “black box warnings”
attached to methadone and Xanax, which advise that the two medications should be used together
with caution. Dr. Chen also references the TMB president’s recent remarks, delivered at the
Texas Pain Society Scientific Conference in October 2022, that the TMB expressly frowns upon
prescribing opiates and benzodiazepines together. This statement certainly indicates that the
importance of exercising caution in prescribing methadone and Xanax together is, in fact,
“accepted knowledge” among pain management physicians like Dr. Chen. Dr. Chen may properly
rely on such common knowledge in his field.
c.
Dr. Chen’s “Publicly Available Sources” Are Not Unreliable
The EEOC further argues that Dr. Chen’s testimony is unreliable because he bases his
opinion upon “publicly available” information that is “available to any lay person online,”
including “black box warnings” for the medications, the FDA website, the DOT’s commercial
driver’s license requirements, and overdose statistics from the National Institutes of Health.
Besides emphasizing that these sources are publicly available, the EEOC identifies no reason why
these sources are unreliable and cites no authority for the proposition that an expert cannot consult
publicly available sources. In fact, as Defendants point out, Rule 702 does not require an expert
to rely only on sources in a written, journal format. See Glossip v. Gross, 576 U.S. 863, 890
(2015) (concluding that a pharmacist’s expert testimony “may not be disqualified simply because
one source (drugs.com) warns that it ‘is not intended for medical advice’” and observing that
“[m]edical journals . . . typically contain similar disclaimers”).
Furthermore, although the EEOC may disagree with Dr. Chen’s conclusions or question
the sources he used to reach his conclusions, those contentions go to the weight rather than the
21
admissibility of the evidence. See Puga, 922 F.3d at 295-96 (explaining that “[i]f [the expert]
missed any important facts, the oversight should go to the weight of his opinion, not its
admissibility”); Hodge, 933 F.3d at 478 (“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 . . . .” (quoting 14.38 Acres of Land, 80 F.3d at 1077)); Cantu v. Wayne Wilkens
Trucking, LLC, 487 F. Supp. 3d 578, 584 (W.D. Tex. 2020) (“[Q]uestions relating to the bases
and sources of an expert’s opinion affect the weight of the evidence rather than its admissibility,
and should be left for the finder of fact.” (citing Viterbo, 826 F.2d at 422)); Hargrave v. Blake
Drilling & Workover Co., Inc., No. 07-985, 2008 WL 2625524, at *3 (E.D. La. Feb. 12, 2008)
(concluding that a party’s objection to expert’s use of assumptions in his calculations attacked the
credibility rather than the admissibility of the expert’s testimony). Nevertheless,
this does not mean, as certain courts have held, that arguments about the
sufficiency of an expert’s basis always go to weight and not admissibility. Rather
it means that once the court has found it more likely than not that the admissibility
requirement has been met, any attack by the opponent will go only to the weight
of the evidence.
FED. R. EVID. 702 advisory committee’s note to 2023 amendment.
Here, the court finds that it is more likely than not that the admissibility requirement has
been met as to Dr. Chen based on his experience discussed above, as well as the medical resources
he relies upon to support his opinion. See Williams v. Manitowoc Cranes, L.L.C., 898 F.3d 607,
625 (5th Cir. 2018) (“As long as there are ‘sufficient indicia’ that an individual will ‘provide a
reliable opinion’ on a subject, a district court may qualify that individual as an expert.” (quoting
Huss, 571 F.3d at 455-56)). Thus, while the EEOC may cross-examine Dr. Chen about his
sources, the EEOC’s criticisms of the same do not warrant the exclusion of his testimony.
22
3.
Dr. Chen’s Opinions Properly Apply the Facts in This Case
The EEOC next claims that Dr. Chen improperly applies the facts in this case because he
incorrectly asserts that Dare’s “prescribing physicians . . . expressed significant concern about the
safety of [Dare’s medication] regimen.” It also takes issue with Dr. Chen’s statement that “[n]one
of [Dare’s] treating clinicians had, or have, full knowledge of the medications prescribed to or
taken by [Dare].” Although the EEOC is correct that an expert’s opinions must be “sufficiently
tied to the facts of the case,” Daubert, 509 U.S. at 591, the court is satisfied that Dr. Chen’s
conclusions are sufficiently linked to the facts.17 Indeed, Dr. Chen’s opinions are supported by
the deposition testimony of Dare’s psychiatrist, Dr. Hopper, who testified that “[i]t could concern
[him] regarding the patient’s response to [Xanax and an opioid] together. Some people will report
they can’t function because of sedation or confusion or incoordination . . . .”
Furthermore, while the EEOC is also correct that Dr. Hopper testified elsewhere that he
understood that Dare was taking methadone “sometimes” and that, in any event, “[Dare’s] mental
status was always very good,” “[t]here were never any signs of [Dare’s] taking too much opioid,”
and even knowing Dare’s methadone dosage, he “would not hesitate to prescribe exactly” Dare’s
current Xanax dosage because “[c]linically [Dare] was responding and doing well,” such
statements do not negate his assertion that, in a general sense, the potential side effects of a patient
taking both Xanax and an opioid “could concern [him].” Accordingly, the court is not inclined
to strike Dr. Chen’s opinion for “improperly applying” the facts in this case. To the extent Dr.
17
The EEOC also alleges that Dr. Chen’s statement that “[i]t is difficult or impossible to determine
how an individual is affected by their prescription medication based on a few office encounters as their
presentation will largely depend on the most recent dosing of medications and vary from hour to hour”
improperly implies that Dare’s physicians could not have accurately assessed his clinical presentation. It
is unclear how this assertion “improperly applies the facts in this case.” Rather, this statement seems to
be Dr. Chen’s personal opinion based on his experience with assessing patients in a clinical setting.
23
Chen’s opinion portrays only some of the facts or fails to paint a full picture of the facts, the
EEOC will have an opportunity to illuminate these purported flaws through cross-examination.
4.
The EEOC’s Objections to Certain Conclusions in Dr. Chen’s Reports
a.
“Reasonable and Justified”
The EEOC also contends that Dr. Chen “cannot testify with any knowledge, expert or
otherwise, that Defendants’ withdrawal of the job offer in response to Dr. Starkey’s admonition
[was] reasonable” because he admitted that he is unfamiliar with the ADA and its requirements.
The EEOC further argues that such an opinion is inadmissible because an expert may not express
an opinion that amounts to a legal conclusion.
Once allowed to testify as an expert, an expert witness may assert opinions that “embrace
an ultimate issue to be decided by the trier of fact.” Sting Soccer Operations Grp. LP v. JP
Morgan Chase Bank, N.A., No. 4:15-CV-127, 2016 WL 4141118, at *3 (E.D. Tex. Aug. 4,
2016) (quoting FED. R. EVID. 704(a)). Although Rule 704 permits expert witnesses to offer
testimony as to ultimate issues of fact, an expert may not offer opinions that amount to legal
conclusions. McBroom v. Payne, 478 F. App’x 196, 200 (5th Cir. 2012) (quoting United States
v. Izydore, 167 F.3d 213, 218 (5th Cir. 1999)); DHI Grp., Inc. v. Kent, 397 F. Supp. 3d 904, 917
(S.D. Tex. 2019); Kipp Flores Architects, LLC v. Mid-Continent Cas. Co., No. 4:14-CV-02702,
2016 WL 1212067, at *9 (S.D. Tex. Feb. 29, 2016) (“Indeed, despite its permissive language,
Rule 704 ‘does not allow an expert to render conclusions of law.’” (quoting Snap-Drape, Inc. v.
Comm’r of Internal Revenue, 98 F.3d 194, 197-98 (5th Cir. 1996), cert. denied, 522 U.S. 821
(1997))), adopted by No. H-14-2702, 2016 WL 1246096 (S.D. Tex. Mar. 30, 2016), aff’d, 852
F.3d 405 (5th Cir. 2017). Indeed, while expert witnesses are given wide latitude, including the
24
ability to offer opinions that are not based on firsthand knowledge or observation, this freedom
is not limitless. See Kumho Tire Co., 526 U.S. at 148; Daubert, 509 U.S. at 592. Neither Rule
702 nor 704(a) of the Federal Rules of Evidence permits expert witnesses to offer legal opinions.
See FED. R. EVID. 702, 704(a); C.P. Ints., Inc. v. Cal. Pools, Inc., 238 F.3d 690, 697 (5th Cir.
2001); Owen v. Kerr-McGee Corp., 698 F.2d 236, 240 (5th Cir. 1983); Sapp v. MHI P’ship, Ltd.,
199 F. Supp. 2d 578, 589 (N.D. Tex. 2002). “[A]llowing an expert to give his opinion on the
legal conclusions to be drawn from the evidence both invades the court’s province and is
irrelevant.” Owen, 698 F.2d at 240. Moreover, expert testimony expounding upon what the law
requires is “unnecessary and improper.” Neutrino Dev. Corp. v. Sonosite, Inc., 410 F. Supp. 2d
529, 545-46 (S.D. Tex. 2006); see Owen, 698 F.2d at 239-40.
As an initial matter, Dr. Chen’s conclusion regarding the reasonableness of Defendants’
actions does not purport to opine on the ADA or its requirements. Rather, he merely opines from
his own medical and factual perspective that Defendants’ reliance on Dr. Starkey’s
recommendation was reasonable; he offers no legal opinion as to whether Defendants’ actions
were sanctioned by the ADA. As a result, the court declines to strike this conclusion in Dr.
Chen’s report on merely because he is, by his own admission, unfamiliar with the ADA and its
requirements.
The EEOC similarly fails to persuade the court that the question of whether Defendants
acted reasonably in withdrawing Dare’s conditional offer of employment calls for a legal
conclusion. For one matter, the sole case that the EEOC relies upon in support of this argument
is inapposite. See Est. of Sowell v. United States, 198 F.3d 169, 171-72 (5th Cir. 1999)
(upholding the district court’s exclusion of expert testimony on the issue of whether an estate
25
executor had acted reasonably because it was, “for all practical purposes, the only issue for the
jury in this case to decide”). Moreover, the question of whether an employee or potential
employee poses a “direct threat” requires “an individualized assessment of the individual’s present
ability to safely perform the essential functions of the job” that is “based on a reasonable medical
judgment . . . .” 29 C.F.R. § 1630.2(r) (emphasis added). Notably, the question of whether the
medical professional’s judgment was reasonable is distinct from the issue of whether the employer
itself acted reasonably in relying upon the medical judgment. Here, Dr. Chen does not state in
a conclusory fashion that Dr. Starkey’s medical judgment of Dare’s capabilities was reasonable.
Instead, Dr. Chen opines that, from a medical and factual perspective, Defendants’ decision to
follow Dr. Starkey’s recommendation was reasonable because “this particular MRO was intimately
familiar with the company’s job positions because he regularly performed the drug screens, fitness
for duty determinations, and return-to-work evaluations for the company since the company
began.” Thus, Dr. Chen’s opinion concerning Defendants’ reasonableness does not constitute an
impermissible legal conclusion.
The court is concerned, however, that Dr. Chen’s opinion that Defendants’ reliance on Dr.
Starkey’s opinion was “justified” crosses the line into a legal conclusion. See United States v.
Warren, No. 10-154, 2010 WL 11623588, at *5 (E.D. La. Nov. 8, 2010) (striking an expert’s
opinion that a law enforcement officer “was justified in firing his weapon” because it was
“unmistakably [a] legal conclusion[ ]”); Interplan Architects, Inc. v. C.L. Thomas, Inc., No.
4:08-cv-03181, 2010 WL 4065465, at *20 (S.D. Tex. Oct. 9, 2010) (determining that an expert
could not “offer [a] legal conclusion[ ]” that the defendant “was justified” in his interpretation of
who owned the copyrighted work at issue in a copyright infringement case); see also Justifiable,
26
BLACK’S LAW DICTIONARY (11th ed. 2019) (defining “justifiable” as meaning “[l]egally or
morally acceptable for one or more good reasons” (emphasis added)). Accordingly, the court
strikes the phrase “and justified” from Dr. Chen’s report. Dr. Chen likewise may not testify at
trial that Defendants’ reliance on Dr. Starkey’s recommendation was “justified.”
b.
Dare’s Possible “Diversion” of Medication
Finally, the EEOC asserts that Dr. Chen’s opinion that Dare might be “diverting” his
medications, including by selling them illicitly, is inadmissible because it is irrelevant and there
are no facts to support this conclusion. According to his reports, Dr. Chen based this opinion on
Dare’s statement during his July 2022 deposition that he sometimes does not take either methadone
or Xanax for several days in an effort to wean himself off the medications, thereby leaving
“[s]ignificant quantities of controlled medications that [Dare] routinely skips . . . unaccounted
for.” Referencing the “high street value” of these drugs and Dare’s testimony about his “financial
hardships,” Dr. Chen opines that “the possibility of diversion of controlled medications must be
considered” because “illicit prescription pills are an ever-present hazard in certain types of
workplaces.” Dr. Chen admitted, however, that he has no personal knowledge that Dare is either
stockpiling or selling his medications. Defendants do not specifically respond to these arguments.
Here, the court agrees with the EEOC that Dr. Chen’s opinion regarding possible diversion
is not relevant to the issues in this case, which concerns whether Defendants violated the ADA
when they rescinded Dare’s conditional job offer. As the EEOC points out, Dr. Chen discusses
only potential behaviors in which Dare might have been engaging at the time of his deposition in
July 2022, not at the time he applied for employment with Defendants in February 2019, which
is the relevant time period for purposes of this case. No facts in Dare’s deposition testimony or
27
otherwise indicate that he was deviating from taking his medications at the time of his application.
Thus, it is unclear how Dr. Chen’s conclusion that Dare might have been diverting his medications
in 2022 will assist the jury as the trier of fact with “understand[ing] the evidence” or
“determin[ing] a fact in issue.” FED. R. EVID. 702; see Nucor Corp. v. Requenez, 578 F. Supp.
3d 873, 888 (S.D. Tex. 2022) (“Expert testimony which does not relate to any issue in the case
is not relevant and, ergo, non-helpful.” (quoting Daubert, 509 U.S. at 591)). Moreover, even if
such an opinion was somehow relevant, it is certainly more prejudicial than probative. See FED.
R. EVID. 403 (permitting the court to “exclude relevant evidence if its probative value is
substantially outweighed by a danger of . . . unfair prejudice . . . .”); see also Nucor Corp., 578
F. Supp. 3d at 888 (“The Court scrutinizes proposed expert testimony more searchingly than lay
witness testimony for its pertinency and potential prejudice.”); Fetty v. City of Baton Rouge, 518
F. Supp. 3d 923, 928 (M.D. La. 2021) (“[E]ven if the proposed expert testimony satisfies each
of the elements set forth in [Rule 702], the testimony may still be excluded pursuant to the
discretionary provisions of [Rule 403] . . . .”). Accordingly, Dr. Chen may not testify about
Dare’s possible diversion of his medication, and the corresponding conclusions are stricken from
his reports.
B.
Dr. Martin
1.
Dr. Martin Is Qualified to Testify
Turning now to Defendants’ motion to exclude the testimony of the EEOC’s rebuttal
expert, Dr. Martin, Defendants first assert that Dr. Martin is unqualified to rebut various aspects
of Dr. Chen’s testimony because: he is not board certified in occupational medicine; he is not a
pain and addiction specialist; he did not complete fellowships in addiction or pain management
28
medicine; and he has little experience treating patients using or abusing Xanax and/or
methadone.18 Defendants also claim that, because only 3-4 percent of Dr. Martin’s patients are
welders, he is unqualified to opine about Dare’s ability to work as a welder while taking
“high-dose” prescriptions of methadone and Xanax. Finally, Defendants contend that Dr. Martin
is unqualified because none of his publications relate to methadone, Xanax, opioid use disorder,
or anxiety; he has never served as an expert in a case involving methadone or Xanax; and he has
provided expert testimony about the MRO process on only one occasion about twelve years ago.19
In response, the EEOC highlights Dr. Martin’s medical education, career, training, and
experience. Before assuming his current role as the Medical Director for Occupational Medicine
at the Center for Neuroscience Orthopedics and Spine, Dr. Martin served as the Medical Director
for UnityPoint Health in Occupational Medicine for over 23 years. Previously, in addition to
completing a residency in family medicine, Dr. Martin participated in the Occupational Medicine
Comprehensive Training Course. He has also completed other training on various subjects,
including disability evaluation, MRO certification, and American Medical Association guidance
18
Specifically, Defendants believe that Dr. Martin is not qualified to opine about:
(1) medical practices involving addiction and addiction medicine; (2) the uses and risks
of methadone maintenance treatment and the interaction between methadone and
alprazolam (Xanax); (3) the risks and safety concerns of combining high-dose methadone
and high-dose alprazolam, and (4) the safety concerns relating to Dare working in a
safety-sensitive position or operating heavy machinery and [the] basis for reaching the
opinion that Dare could not safely do either.
Defendants concede, however, that Dr. Martin is qualified to testify about the role of an MRO.
19
As the court previously discussed in relation to Dr. Chen, neither a lack of pertinent publications
nor inexperience as an expert witness renders an expert unqualified to testify. See Van Winkle, 82 F.4th
at 379 (citing FED. R. EVID. 702 advisory committee’s note to 2000 amendment); Sexton, 484 F. Supp.
3d at 334. Accordingly, the court rejects Defendants’ arguments on these grounds.
29
certification, and he obtained a certification as an Evaluator of Disability Impairment Rating from
the International Academy of Independent Medical Examiners.
In terms of his relevant
experience, “Dr. Martin has performed many post-job-offer and return-to-work fitness-for-duty
examinations and determinations where the safe use of medications or a combination of
medications was an issue; and he has performed hundreds of drug screens where he reported a
‘potential safety-sensitive issue’ involving the use of medications, including opioids.”
Nevertheless, Defendants argue that Dr. Martin is unqualified to opine about addiction
medicine; Xanax, methadone, and their concurrent effects; and the safety concerns of Dare’s
working as a welder because such testimony about addiction medicine is “outside of his specialty.”
Defendants observe that the American Board of Medical Specialties has recognized addiction
medicine as a unique subspecialty since 2015, emphasizing that their own expert, Dr. Chen, is an
addiction medicine specialist.20 They contend that Dr. Martin lacks the specialized expertise that
this case allegedly requires because he has never worked as a methadone provider and does not
treat patients for drug addiction; he does not treat patients for anxiety or anxiety-related disorders
except in short-term, injury-recovery situations; he has rarely prescribed Xanax; and his
occasional prescriptions of Xanax are limited to short-term, post-injury recovery situations that
are distinct from concurrently taking high-dose methadone and high-dose Xanax. In particular,
Defendants cite a Texas Supreme Court case for the proposition that, while “expert qualifications
should not be too narrowly drawn,” “given the increasingly specialized and technical nature of
medicine, there is no validity, if there ever was, to the notion that every licensed medical doctor
20
Notably, however, “the Daubert standards are flexible, and the most important question is not
whether one party’s expert is more qualified than the other’s, but rather, whether an expert’s testimony
is reliable.” Williams, 898 F.3d at 625 (quoting Huss, 571 F.3d at 455).
30
should be automatically qualified to testify as an expert on every medical question.” Larson v.
Downing, 197 S.W.3d 303, 303-05 (Tex. 2006) (excluding the plaintiff’s expert witness because
he had not performed the particular surgery at issue in the case in fifteen years).
As an initial matter, Larson—a non-binding, state court case—is readily distinguishable.
First, Larson arose from a medical malpractice action. Id. at 303. As a result, the Texas Supreme
Court’s analysis centered on a Texas statute that governs expert testimony in medical malpractice
actions and is inapplicable to this ADA case.21 See id. Second, as a state court case, Larson
naturally did not apply Federal Rule of Evidence 702.22 See generally id.
Moreover, while the court agrees that a medical degree alone does not unequivocally
qualify a doctor as an expert—particularly in cases involving nuanced medical issues—Dr.
Martin’s education, training, and experience qualify him to testify in the case at bar. Indeed, as
the EEOC emphasizes, Dr. Martin is not testifying outside of his specialty. Instead, Dr. Martin’s
testimony concerns duties that he performs on a regular basis as an MRO and when performing
fitness-for-duty evaluations. The EEOC also points out that Defendants’ own expert, Dr. Chen,
has several of these so-called deficiencies that Defendants maintain should disqualify Dr. Martin.
For example, like Dr. Martin, Dr. Chen is not licensed to prescribe methadone for the treatment
of addiction and has never worked in an MAT program.23 Dr. Chen likewise acknowledged that,
21
See TEX. CIV. PRAC. & REM. CODE ANN. § 74.401(c)(2) (West 2003) (directing courts to
consider, among other things, “[i]n a suit involving a health care liability claim against a physician for
injury to or death of a patient . . . whether, at the time the claim arose or at the time the testimony is given,
the witness . . . is actively practicing medicine in rendering medical care services relevant to the claim.”).
22
In fact, Larson does not cite Texas Rule of Evidence 702, the state’s analogue to Federal Rule
of Evidence 702. See generally id.
23
For that matter, Defendants’ MRO, Dr. Starkey, is similarly not licensed to prescribe methadone
for addiction treatment and has never worked in an MAT program.
31
akin to Dr. Martin, he “lacks experience with prescribing Xanax regularly, prescribing methadone
for addiction treatment, or prescribing the two medications together,” and he also “rarely”
prescribes Xanax. Taking all of this into account, as discussed above in relation to Dr. Chen, the
court rejects the notion that Dr. Martin must have specific experience and training matched
precisely to the situation at issue. See Van Winkle, 82 F.4th at 379.
Furthermore, while Dr. Martin does not practice addiction medicine, he demonstrates
sufficient familiarity with various issues in addiction medicine. For example, since 2018, Dr.
Martin has been a member of the Opioid Member Advisory Group for the American Academy of
Family Physicians, and he previously served on the Opioid Task Force for the American College
of Occupational & Environmental Medicine (“ACOEM”). Dr. Martin also has experience with
treating patients taking both Xanax and methadone, confirming during his deposition testimony
that he “[has] several patients that are currently doing safety-sensitive position work that are on
those two medications [Xanax and methadone].” Furthermore, the EEOC posits, and the court
agrees, that Dr. Martin’s deposition testimony illustrates his knowledge of Xanax and its effects,
including: the conditions that Xanax is prescribed to treat; the effects of Xanax, including sedating
effects and depressing effects on the central nervous system; dosing ranges for Xanax; and
Xanax’s interactions with other drugs with similar depressant-type effects, including opioids like
methadone. See #79-7 at 112:1-117:11; 118:15-121:5. Thus, Defendants’ reliance on Larson fails
to persuade the court that Dr. Martin is unqualified to provide expert testimony in this case.24
24
Defendants also argue that, “[l]ike the physician-expert excluded in Tanner [v. Westbrook, 174
F.3d 542, 547-48 (5th Cir. 1999)],” another medical malpractice case, Dr. Martin lacks the “more fitting
background” and “specialized knowledge” that is required in order for him to be qualified to opine on the
specific questions that this case presents. As detailed above, Dr. Martin’s experience demonstrates that
he has a sufficiently “fitting background” that qualifies him to opine on the issues in the present case.
32
Defendants next assert that Dr. Martin is unqualified because he conceded that only 3-4
percent of his patients are welders.25 The EEOC responds that defense counsel directed Dr.
Martin to consider only the number of welders that he treats for “[i]njury care alone.” Thus, the
EEOC explains, Dr. Martin’s estimation “pertains only to the work-related injury or illness
component of his practice, and not to the services he provides as [an] MRO and in performing
fitness-for-duty determinations.” In any event, for the reasons stated above, as well as Dr.
Martin’s testimony that he treats other patients who take Xanax and methadone while working in
safety-sensitive occupations—including construction workers, meat-packing workers, and a
transport driver—the court remains convinced that Dr. Martin is qualified to testify in this case.
2.
Dr. Martin’s Opinions Are Reliable
a.
Dr. Martin’s Testimony Does Not Contradict His Opinions
Next, Defendants assert that Dr. Martin’s testimony should be excluded because, for
various reasons, his opinions are not the result of reliable principles and methods. In particular,
Defendants take issue with a number of opinions in Dr. Martin’s report and addendum, asserting
that these conclusions are either inconsistent with or contradicted by Dr. Martin’s deposition
testimony. For example, Defendants claim that Dr. Martin’s opinions that “[i]t is not possible for
a[n] [MRO] to make a determination of fitness for duty” and “[t]he fact here that the MRO seemed
to make a judgment with regard to the fitness for duty is something that is not standard practice
for a[n] [MRO] to undertake” are unreliable because he contradicted these conclusions when
testifying: “[A]s an MRO, we have the ability to evaluate somebody’s fitness for duty.”
25
The court notes that Dr. Martin estimated that the percentage was “4 or 5 percent.”
33
Here, the court agrees with the EEOC that Defendants’ argument “misconstrue[s]” Dr.
Martin’s testimony. Indeed, in the sentences immediately following the portion of Dr. Martin’s
deposition testimony that Defendants highlight, Dr. Martin elaborates:
The MRO works as a forensic function. It’s not a medical function. It’s not a
fitness-for-duty determination. In order to make a fitness-for-duty determination,
[you] have to look at the individual’s history and the individual’s physical
examination findings vis-a-vis the job description to make the determination of
whether they’re fit for that job or not, and it’s not something that you can decide
just based upon an MRO interview.
After examining the entire paragraph, the court determines that Dr. Martin was merely explaining
that while a physician who is an MRO could evaluate a potential employee’s fitness for duty, the
MRO would need to perform the requisite steps of a fitness-for-duty evaluation in order to do so.
In other words, in Dr. Martin’s opinion, merely completing the usual duties of an MRO cannot
supplant a fitness-for-duty evaluation.
Thus, considering the full context of Dr. Martin’s
testimony, the court is unconvinced that Dr. Martin contradicted himself in this instance.
Defendants also assert that Dr. Martin’s statement that the decision of whether to report
a potential safety-sensitive concern is “based on the likelihood of the event and the potential
magnitude of harm” is unreliable because he provides no support for this opinion.26 Defendants
also claim that Dr. Martin contradicts this opinion in his testimony discussing the identification
of safety-sensitive situations, the MRO’s duty to report safety-sensitive concerns, the MRO’s duty
to report medically accurate information, and the lack of rules or guidelines prohibiting the MRO
26
The EEOC retorts that Dr. Martin’s opinion is not unsupported because he cites to MROCC
guidance regarding whether to report a “potential safety sensitive concern.” Indeed, while Dr. Martin’s
report does not directly attribute the aforementioned opinion to MROCC, he states in his report:
“[MROCC] for example suggests that the MRO should not report every possible concern. Doing so would
unnecessarily inconvenience donors and employers and infringe on the donors’ privacy.” The court
accordingly detects no reason to determine that this opinion is unsupported.
34
from disclosing safety-sensitive concerns. The court, however, agrees with the EEOC that Dr.
Martin’s testimony does not contradict his written opinions. In fact, Dr. Martin’s testimony
provides an example of an MRO evaluating “the potential magnitude of harm,” as he explains that
“[t]here also can be medications that are disclosed . . . that potentially could rise to the level of
a safety sensitive concern, not only just the name of the medication, but in some cases, the dosage
and the interactions that may exist between multiple different medications that are disclosed.”
Here, Dr. Martin describes certain factors, like dosages and interactions with other medications,
that can influence his determination of whether a potential safety-sensitive concern exists. Thus,
Dr. Martin’s deposition testimony clarifies, rather than contradicts, his written opinion.
Defendants further assert that Dr. Martin’s deposition testimony regarding reporting
safety-sensitive concerns is contradicted by his written opinion.27 In response, the EEOC notes
that while Dr. Martin acknowledged the “duty of an MRO to report out that there is a ‘potential
safety concern,’” he did not condone an MRO’s reporting of confidential information. In fact, Dr.
Martin explained that when he has “indicated a potential safety-sensitive issue on hundreds of drug
tests, if not a thousand,” “[his] language has always been consistent that there was identified a
potential safety-sensitive issue or concern.” Although he explained that an MRO may become
aware of a potential safety concern based on information he learns about the patient’s medication
dosages and interactions, Dr. Martin never stated that he then discloses the patient’s medications
and dosages when reporting a potential safety concern. In other words, Dr. Martin’s deposition
testimony merely clarified that, while he adheres to his duty to report potential safety concerns,
27
Specifically, Defendants object to Dr. Martin’s opinion that “[t]he proper way for this to be
reported out to the [employer] would be ‘negative-potential safety sensitive concern identified.’”
35
he does not provide other, confidential medical information to employers. Thus, rather than
undermining his opinion about the proper method for reporting potential safety concerns, Dr.
Martin’s deposition testimony instead bolsters and expands upon his written opinion.
Defendants next take issue with Dr. Martin’s opinion that “the largest error that has
occurred here” was Defendants “ma[king] an automatic determination that just because this
gentleman was on a prescription medication of methadone that somehow that was directly a link
to not being fit for the job and having some level of impairment.” Defendants assert that this
opinion is inconsistent with Dr. Martin’s acknowledgment that drug testing can alleviate concerns
about the dangers of meat-packing facilities by making workplaces healthier and safer. The court
is unpersuaded by this argument. Dr. Martin merely stated that drug-testing programs could play
“a role” and “help with” “mak[ing] workplaces healthier and safer,” not that he believes that
relying entirely on drug tests (and making automatic determinations based on their results) is the
only method that will ensure that these facilities remain safe. Thus, the court declines to find that
Dr. Martin’s aforementioned opinion is unreliable on this basis.
Defendants also object to Dr. Martin’s opinions that “many individuals who have been
prescribed methadone for methadone maintenance purposes are actually able to do quite well in
a variety of physically and mentally demanding occupations,” and “[o]ne should not automatically
make an erroneous assumption that just because the individual is on these medications that this
would necessarily be an automatic disqualifier.” Specifically, Defendants claim that these
opinions are unreliable because Dr. Martin also admitted that: (1) combining Xanax with drugs
with similar depressant-type effects such as narcotics-opioids, including methadone, poses a
36
medical concern; and (2) the depressing effects arising from the interaction between Xanax and
narcotics-opioids “would be not necessarily just additive but potentially exponential.”
The court, however, is unconvinced that Dr. Martin’s opinion and deposition testimony
are inconsistent. Rather, Dr. Martin’s testimony explains why concurrent prescriptions of
methadone and Xanax can be concerning, but he later elaborates on factors that he would consider
when evaluating a patient taking 8 milligrams of Xanax and 90 milligrams of methadone a day:
So I think it depends on variabilities in the circumstances. So if somebody had just
recently started those medications, I think I would be more concerned compared
to somebody that has been on those medications for a number of years. I also
would be concerned about any other medications besides those two that might be
more of a short-term more of an acute type of situation, and, again, that has to do
with regards to the metabolism of the medications and how the body handles those
things, so obviously there’s some variability with that, but the general concerns
would be . . . depressing effects but then the timing as far as how long they’ve
been on the prescriptions, if there’s been any dosing changes recently. . . .
In other words, Dr. Martin’s elaboration in his deposition testimony supported, rather than
contradicted, the assertion that he would not automatically report a potential safety concern based
merely on knowledge of a prescription of either Xanax or methadone (or both). He testified that,
instead, he would consider various factors, including how long the patient has been taking the
medication(s), whether other medications are involved, the patient’s metabolism, and whether the
patient’s dosages had been adjusted recently. Thus, Dr. Martin’s testimony establishes that, while
he recognizes why there might be cause for concern when examining a patient taking both Xanax
and methadone, rather than making an automatic determination about the patient’s ability to
37
perform the work in question, he relies on a holistic approach that considers multiple variables
specific to that patient.28 Such testimony is, accordingly, consistent with his written opinion.
Additionally, Defendants claim that Dr. Martin’s opinions are unreliable because he
illustrated his alleged “unfamiliarity” with pain and addiction medicine by purportedly
contradicting himself when testifying about Xanax dosages. In particular, Defendants point to a
section of Dr. Martin’s deposition testimony where he stated that “most of the
recommendations . . . [are] to start with a lower dose, .25 milligrams, . . . and then most of the
recommendations . . . suggest[ ] that you have to titrate that up,” but then he later added that,
according to “the guidance documents,” “[t]herapeutic doses [of Xanax] . . . typically go
anywhere from 1 milligram up to 10 milligrams per day . . . .” In response, the EEOC retorts
that Dr. Martin’s testimony establishes his understanding of “the need to start some medications
at sub-therapeutic doses and then titrate up to the correct therapeutic dose.” Pertinently, Dr.
Martin prefaced the testimony at issue by stating that he can describe “what the recommendations
are in starting medication and then how one eventually gets to a therapeutic dose,” thereby
indicating that there is (or may be) a distinction between a nontherapeutic starting dose and an
eventual therapeutic dose. Viewing Dr. Martin’s testimony in this light, it seems clear that he
states that .25 milligrams is a common nontherapeutic starting dose for Xanax, whereas therapeutic
28
Contrary to Defendants’ assertion, Dr. Martin did not testify that he had “significant concerns”
about a patient taking the dosages of Xanax and methadone prescribed to Dare at the time he applied for
the position with Defendants. Instead, Dr. Martin explicitly stated that his concerns would “depend[ ] on
variabilities,” as described above.
38
doses typically begin at 1 milligram. The court is thus unpersuaded that this testimony presents
an inherent contradiction or that Dr. Martin’s opinion is unreliable.29
b.
Dr. Martin’s References to MRO Materials, HIPAA, and DOT
Regulations Do Not Render His Opinions Unreliable
Defendants also generally contend that several of Dr. Martin’s opinions30 are unreliable
because he did not rely on medical publications or literature other than his “general knowledge
of the [MRO’s] handbook and the training documents and MRO syllabus.”31 Defendants assert
29
Defendants also assert that Dr. Martin’s testimony that an employer could reasonably expect an
MRO to provide medically accurate results and information is unreliable because it is inconsistent with his
written opinion. Similarly, Defendants assert that Dr. Martin’s acknowledgment that he takes certain steps
to ensure that his patients do not misuse or abuse Xanax “further undermin[es]” Dr. Martin’s testimony.
Defendants do not, however, explain their arguments regarding either statement. Without more
information, the court cannot conclude that these statements contradict or undermine Dr. Martin’s opinion.
30
In particular, Defendants take issue with Dr. Martin’s opinions discussing the information that
an MRO should and should not disclose, as well as his opinion that an MRO’s longstanding relationship
with an employer does not affect the employer’s duty to conduct an individual assessment of a prospective
employee. Defendants also challenge Dr. Martin’s assertion that, according to organizations like the
ACOEM, it is not “standard practice” for an MRO to make a judgment about an individual’s fitness for
duty, as well as his opinion that it is not “scientifically possible to make a determination of impairment
based upon an MRO interview as this would require an in-person evaluation, which would look into the
individual’s history and perhaps even look[ ] at other medical records in order to make that determination.”
31
In a similar vein, Defendants argue that Dr. Martin’s opinion that Dr. Starkey’s “MRO review
documentation seems to be somewhat substandard” should be stricken because he does not cite a document
or specific standard. Specifically, Dr. Martin’s report states that the MRO documentation appears
“substandard” because he “cannot tell when there was an attempt to contact from the MRO to the donor
himself for the typical MRO review of the laboratory positive case nor does it say where the information
that is written on the MRO interpretation was obtained.” Despite Defendants’ assertions otherwise, Dr.
Starkey’s note that Dare “has prescriptions” fails to clarify how or when Dr. Starkey obtained this
information about Dare’s prescriptions.
Moreover, Dr. Martin’s opinion is not, as Defendants contend, merely based on his own subjective
opinion or ipse dixit. Dr. Martin has significant experience as a certified MRO—indeed, he has been
certified as an MRO since 1994. In his deposition testimony, Dr. Martin also elaborates that “most of the
MRO training and most of the recommendations suggest that the MRO should have a direct conversation
with the donor . . . . [T]he current recommendation for most best practices on MRO review is to actually
call the pharmacy and talk to the pharmacist to verify the prescription . . . .” Based on this information,
as well as Dr. Martin’s other experience that is discussed in more detail below, the court will not strike
Dr. Martin’s opinion that the MRO documentation in this case appears “somewhat substandard.”
39
that such vague references are supported by nothing more than Dr. Martin’s own ipse dixit, and
they criticize him for failing to attach his sources or provide specific citations. Notably,
Defendants cite no authority for the proposition that an expert lacks reliability when he fails to
attach or provide specific citations to his sources.32
As the court noted when discussing Dr. Chen’s opinions, Rule 702 states that an expert
may be qualified by, inter alia, his “knowledge.” Furthermore, when determining whether an
expert’s opinion is admissible, the court considers whether the expert’s “specialized knowledge
will help the trier of fact to understand the evidence or to determine a fact in issue.” FED. R.
EVID. 702(a). Thus, Rule 702 plainly contemplates that an expert may properly rely upon his
knowledge, including generally accepted knowledge in his field of practice.
The EEOC
emphasizes that Dr. Martin has extensive knowledge of the role of an MRO due to his experience
as a practicing certified MRO, as well as his service as a former president of the ACOEM, a
teacher and author of resources related to the MRO role, and a member of the MROCC board of
directors. The EEOC further responds that, “in addition to his vast knowledge and experience,”
32
Indeed, Federal Rule of Civil Procedure 26(a)(2)(B), which governs expert witness reports,
contains no such requirement. See 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.”).
Defendants cite Burleson v. Texas Department of Criminal Justice, 393 F.3d 577, 587 (5th Cir.
2004) (quoting General Electric Co., 522 U.S. at 146) for the proposition that “[a] court may rightfully
exclude expert testimony where a court finds that an expert has extrapolated data, and there is ‘too great
an analytical gap between the data and the opinion proffered.’” The court agrees with the EEOC that
Burleson—which involved the exclusion of a toxicologist because his opinion “was based on speculation,
guesswork, and conjecture”; his theory had never been submitted to peer review; and the potential rate
of error for his theory was high and the theory was not generally accepted within the scientific
community—bears no resemblance to the case at bar. See id.
40
Dr. Martin’s opinions are “premised on professional and medical publications, including the
MROCC handbook and other professional resources he has been involved with drafting,
overseeing, and teaching.” Indeed, as the EEOC notes, Dr. Martin consulted the MROCC
handbook during his deposition. The court is accordingly satisfied that Dr. Martin’s opinions are
reliable, given his references to relevant source material and his intimate familiarity with an
MRO’s role and responsibilities through his knowledge and experience as a practicing MRO, a
leader in MRO-related organizations, and an author of MRO resources.
Defendants further complain that Dr. Martin’s opinions relying on the American Pain
Society (“APS”) and the American Academy of Pain Medicine’s (“AAPM”) position statement
regarding opioid users’ fitness for duty, ADA recommendations on individualized assessments of
fitness for duty, and ADA and DOT references to a worker’s medication use and fitness for duty
are unreliable and unsupported by any factual basis or indicia of scientific reliability. Defendants
claim that these opinions are unreliable because Dr. Martin did not, in fact, rely on the sources
upon which he purports to rely in drafting his report. To support this argument, Defendants point
to a statement in Dr. Martin’s deposition testimony where, when asked if he relied on “any type
of medical publications or literature” in drafting his report, he responded: “Just my general
knowledge of what is in the medical review officer’s manual and just my general knowledge of
MRO training course information.”
The court notes that because counsel for Defendants questioned Dr. Martin exclusively
about “medical publications or literature,” it is possible that Dr. Martin did not reference the ADA
and DOT recommendations in his response because he did not consider these resources to be
included in the category of “medical publications or literature.” Moreover, Dr. Martin explains
41
in his report that “[m]any of these recommendations and guidances” provided by MROCC and
AAMRO “are taken from the Federal Government DOT procedures that govern drug testing,” so
it is plausible that Dr. Martin’s reliance on “the medical review officer’s manual” included some
or all of the DOT recommendations mentioned in his report. Because the EEOC has established
that it is “more likely than not” that Dr. Martin’s testimony “is based on sufficient facts or data,”33
while the court acknowledges that Defendants’ arguments about the vagueness of Dr. Martin’s
sources may provide fodder for cross-examination,34 the court declines to strike Dr. Martin’s
opinions on this basis.
Defendants also challenge Dr. Martin’s opinion that an MRO “should never disclose to an
outside entity or party that the donor is taking prescriptions due to privacy concerns. This is fairly
consistent with the HIPAA privacy rule wherein the MRO should limit disclosure of personal
health information to the minimum necessary to accomplish the intended purposes.” Defendants
argue that this opinion is unreliable because Dr. Martin “did not rely on the HIPAA privacy rule”
33
In fact, it is not as if Defendants claim that Dr. Martin’s sources are fabricated or do not support
his opinions. For example, the court located an article discussing the results of a study where the APS and
the AAPM “commissioned a systematic review of the evidence on chronic opioid therapy [(“COT”)] for
chronic noncancer pain.” Roger Chou et al., Clinical Guidelines for the Use of Chronic Opioid Therapy
in Chronic Noncancer Pain, 10 J. OF PAIN 113, 113 (2009). In relevant part, the article concluded that,
“[i]n the absence of signs or symptoms of impairment, no evidence exists to suggest that patients
maintained on COT should be restricted from driving or engaging in most work activities.” Id. at 122.
Additionally, 49 C.F.R. § 40.141—a regulation dictating the steps an MRO must take when verifying drug
test results for an employee or potential employee subject to DOT regulations—supports Dr. Martin’s
statement that the DOT “encourage[s] dialogue between the clinician doing the assessment and the
prescriber . . . .” See 49 C.F.R. § 40.141(b)(1) (“If the employee asserts that the presence of a drug or
drug metabolite in his or her specimen results from taking prescription medication . . . . You may contact
the employee’s physician or other relevant medical personnel for further information.”).
34
See FED. R. EVID. 702 advisory committee’s note to 2023 amendment (“[O]nce the court has
found it more likely than not that the admissibility requirement has been met, any attack by the opponent
will go only to the weight of the evidence.”).
42
and “did not sufficiently review the HIPAA privacy rule to form the basis of his opinion.” The
EEOC responds that this argument is “nonsensical” because “[e]very licensed physician is
required to know the requirements of HIPAA and the applicability of the st[a]tute to their
practice.” The court observes that Dr. Martin’s opinion does not purport to describe HIPAA and
its requirements, but instead merely references HIPAA as an illustrative example when discussing
the limitations on the information that an MRO may disclose. Accordingly, the court detects no
basis to deem this opinion unreliable.
Finally, Defendants criticize Dr. Martin’s opinions regarding the limitations on the medical
information that an MRO may disclose to an employer as being “likely inconsistent with the
recommendations and guidance of MROCC and AAMRO, upon which Dr. Martin relies, that
incorporate the [DOT] procedures governing drug testing.” Defendants also rebuke Dr. Martin
for opining that MROs are subject to the limitations of HIPAA because HIPAA does not apply to
MROs acting under 49 C.F.R. § 40.327, a DOT regulation that is incorporated in the MROCC
and AAMRO guidance. According to Defendants, this so-called “conflict” between Dr. Martin’s
opinions and the sources he relies upon should result in the exclusion of his opinions.
In response, the EEOC maintains that 49 C.F.R. § 40.327 is inapplicable because “[t]he
welder position at issue in this case was not a DOT-regulated position.”35 Moreover, Dr. Martin
acknowledged that he is familiar with the requirements of disclosing medical information under
§ 40.327, but he noted that the circumstances warranting disclosure are “extremely rare.”36 In
35
As noted above, the regulation appears to be limited to certain transportation employers and
employees. See 49 C.F.R. § 40.1(b) (“This part concerns the activities of transportation employers,
safety-sensitive transportation employees . . ., and service agents.”).
36
Under 49 C.F.R. § 40.327(a), an MRO “must . . . report drug test results and medical
information you learned as part of the verification process to third parties without the employee’s consent
43
fact, in his 29 years of serving as an MRO, Dr. Martin has never disclosed medical information
pursuant to § 40.327. The EEOC also emphasizes that Dr. Martin is well-versed in the role of
an MRO, including determining when DOT regulations do or do not apply to a particular position.
The court is accordingly unconvinced that the parties’ dispute over the applicability of DOT
regulations to this case renders Dr. Martin’s opinions unreliable.
c.
Dr. Martin’s Opinions Are Not “Unsubstantiated”
Defendants next contend that Dr. Martin’s personal experience and observations cannot
lend sufficient support to render his opinions reliable. Defendants specifically object to Dr.
Martin’s opinion that “many individuals who have been prescribed methadone for methadone
maintenance purposes are actually able to do quite well in a variety of physically and mentally
demanding occupations,” as well as his closely related opinion that there are “many examples
historically where individuals who are or were taking these types of medications were or are able
to operate quite well within the context of a safety sensitive job.” They emphasize that Dr.
Martin’s opinions are based solely on his “experience with a few individuals” and that he does not
reference any specific articles or publications that support these opinions. Defendants cite
non-binding authority—Chapman v. Maytag Corp., 297 F.3d 682, 688 (7th Cir. 2002)—for the
proposition that “[p]ersonal observation is not a substitute for scientific methodology and is
insufficient to satisfy Daubert’s most significant guidepost,” insisting that Dr. Martin’s opinions
“amount to nothing more than unverified statements unsupported by scientific methodology.”
if you determine, in your reasonable medical judgment, that: (1) The information is likely to result in the
employee being determined to be medically unqualified under an applicable DOT agency regulation; or
(2) The information indicates that continued performance by the employee of his or her safety-sensitive
function is likely to pose a significant safety risk.” 49 C.F.R. § 40.327(a).
44
At the outset, the court has already rejected the notion that experience alone cannot render
an expert’s opinion reliable, and Defendants’ citation to Chapman does not convince the court
otherwise. In Chapman, the plaintiff filed a wrongful death lawsuit after a defective kitchen range
electrocuted and killed her husband. Id. at 684. The pertinent issue in the case arose when the
plaintiff’s expert posited a theory about electrical “shorts,” despite the expert’s limited electrical
engineering qualifications, his failure to “conduct any scientific tests or experiments in order to
arrive at his conclusions,” and his inability to demonstrate “that the scientific community
recognizes the concept of [his theory] or the principles on which this purported phenomenon is
based.” Id. at 687. The United States Court of Appeals for the Seventh Circuit concluded that,
because the expert failed to satisfy the “Daubert guideposts for reliability” in that he “presented
no proof that his theory is generally accepted in the scientific community” and “his theory [was]
novel and unsupported by any article, text, study, scientific literature or scientific data produced
by others in his field,” the district court erred in admitting his testimony. Id. at 688.
As the EEOC points out, however, Dr. Martin’s reliance on his clinical observations of
his patients who work in safety-sensitive occupations does not involve asserting a novel, unproven
theory that is “the only basis for establishing a methodology.” Rather, Dr. Martin’s opinion that
individuals with prescriptions akin to Dare’s can work in safety-sensitive positions is rooted not
only in his own experience with his patients, but is also, as the EEOC states, “supported by the
numerous resources he has studied, authored, taught, and overseen.”37 In short, Dr. Martin’s
37
Indeed, Dr. Martin’s report includes the following quote from the MROCC Guide to Drug
Testing: “[D]rug tests are generally unreliable measures of drug related impairment. Impairment is
dependent upon the drug use, the dose, time since last use, route of administration, and is subject to
individual variability among other factors.” While not specifically referencing the ability to work in a
safety-sensitive position, this statement demonstrates that a patient’s impairment is based upon
45
statement regarding his experience with patients who are taking medications like Dare’s and able
to perform in safety sensitive positions is not a “theory” that remains to be proven. The court is
thus unpersuaded by Defendants’ arguments that Dr. Martin’s references to his own experience
render his opinions unreliable.38 For the reasons discussed above, the court is satisfied that Dr.
Martin has provided a sufficient explanation of the bases for his experience-based testimony such
that the court is not merely “taking [his] word for it.” Andrews v. Rosewood Hotels & Resorts,
LLC, 575 F. Supp. 3d 728, 734-35 (N.D. Tex. 2021) (internal citations omitted) (quoting FED.
R. EVID. 702 advisory committee’s note to 2000 amendment).
In a similar vein, Defendants cite Ueland v. United States, 291 F.3d 993, 997 (7th Cir.
2002), to assert that Dr. Martin’s testimony is inadmissible because he “has no rational baseline
from which to work other than his subjective beliefs based upon his limited knowledge of the
individualized factors. Thus, it indicates that mere knowledge of prescriptions is insufficient to evaluate
the patient’s level of impairment. In turn, the concept that determining a patient’s level of impairment
requires an individualized assessment of his unique characteristics supports Dr. Martin’s conclusion that
some patients may be able to work in safety-sensitive positions despite taking certain medications.
38
Defendants also rely on O’Conner v. Commonwealth Edison Co., 13 F.3d 1090, 1107 (7th Cir.),
cert. denied, 512 U.S. 1222 (1994), which is cited in Chapman. O’Conner similarly bears little relevance
to the case at bar, beyond the fact that it involved a physician who was designated as an expert witness.
Id. at 1094. Like Chapman, the expert witness in O’Conner articulated a theory—specifically, that he
could conclude, simply by observing the characteristics of the plaintiff’s cataracts, whether the cataracts
were caused by exposure to radiation—that the court determined was devoid of support, based on the
expert’s paucity of “personal study or experiments” and the fact that his method and conclusion were not
supported by the authors on which he claimed to rely. Id. at 1106-07. The court further reasoned that
the expert’s treatment of five patients with radiation-induced cataracts over his twenty years of practice
was insufficient to support his theory. Id. at 1107 n.19. In other words, the mere fact that the expert had
previously treated patients whose cataracts had been caused by radiation did not logically confirm that he
could determine the causation of the cataracts based upon nothing more than observing their characteristics.
Unlike O’Conner, however, in this case, Dr. Martin’s “theory” is confirmed by the fact that he has
actually treated patients who were or are taking both methadone and Xanax while working in
safety-sensitive positions as construction workers, meat-packing workers, and transport drivers. In short,
there is no aspect of Dr. Martin’s statement that remains “unproven” based upon his experience with his
own patients.
46
objective medical evidence in Dare’s medical record.” In Ueland, a personal injury case arising
from an automobile collision, the Seventh Circuit concluded that expert testimony regarding the
causation of the plaintiff’s injuries was not sufficiently reliable because neither expert had personal
knowledge of the plaintiff’s medical condition before the collision. Id. at 998. The court clarified
that the experts’ testimony about the plaintiff’s medical condition prior to the collision would be
admissible “only if based on sufficient facts, analyzed using medically appropriate methods by a
person competent to give an opinion.” Id. While the appellate court noted that one of the
plaintiff’s purported experts—a college-dropout-turned-acupuncturist—would likely “flunk[ ] this
test” when the case was remanded for a new trial, the plaintiff’s other expert, a physician, “may
or may not pass, depending on what evidence he gathered and whether his fields of expertise
include back and soft-tissue injuries.” Id.
Importantly, Ueland does not stand for the proposition that a medical expert may never
offer reliable testimony based upon medical records, as Defendants seem to suggest. Rather,
applying the parallels of Ueland to this ADA case, Dr. Martin may opine as an expert so long as
his testimony is “based on sufficient facts, analyzed using medically appropriate methods.” Id.
As the EEOC notes, Dr. Martin’s opinions are supported by the facts of this case, as found in
Dare’s medical records and the testimony of Dare’s treating physicians. The EEOC asserts that
these facts are “of the type usually relied upon by experts.”39 Accordingly, the court is satisfied
39
Although the EEOC does not provide support for the proposition of what experts in Dr. Martin’s
position “usually rely upon,” Defendants likewise cite no germane authority indicating that Dr. Martin’s
sources are inadequate or that his methodology is unreliable. In fact, as a general matter, “[a]
methodology often allowed under the Daubert rubric is for an expert to base his or her opinion on a review
of records supplied by others (including other expert reports) and, based on the expert’s professional
training and knowledge, render an expert opinion within his or her area of expertise.” Rushing v.
Yeargain, No. 19-653-JWD-SDJ, 2022 WL 4545612, at *10 (M.D. La. June 10, 2022).
47
that Dr. Martin’s consultation of Dare’s medical records, the treating providers’ testimony, and
his own experience provide a “rational baseline” from which he may testify.40
d.
Dr. Martin Does Not “Parrot” Dare’s Treating Physicians
Defendants also argue that Dr. Martin’s “opinions regarding Dare’s psychological or
physical abilities to work as a welder in a safety sensitive position at Dragon Rig” are unreliable
because he impermissibly “parrots” Dare’s treating providers. The EEOC disagrees with these
assertions, insisting that “Dr. Martin does not rely primarily or exclusively on the opinions of
Dare’s treating physicians” and “he certainly does not ‘parrot’ them.”
“[E]xpert testimony based solely or primarily on the opinions of other experts is inherently
unreliable.” Hunt v. McNeil Consumer Healthcare, 297 F.R.D. 268, 275 (E.D. La. 2014). “It
is only when the expert undertakes some independent investigation of the underlying opinions that
his testimony may be considered reliable.” Id. Simply put, a testifying expert may not “act as
a mere conduit” for another expert’s opinion. Ramirez v. Escajeda, No. EP-17-CV-00193-DCG,
2021 WL 1131721, at *14 (W.D. Tex. Mar. 24, 2021). The “[l]ack of [Dr. Martin’s] originality
is not dispositive,” but “[t]he crucial issue is whether [he] independently evaluated or verified the
opinions upon which he relies.” United Servs. Auto. Ass’n v. Wells Fargo Bank, N.A., No.
2:18-CV-00366-JRG-RSP, 2019 WL 6896674, at *3 (E.D. Tex. Dec. 18, 2019) (quoting Hunt,
297 F.R.D. at 275). An expert cannot parrot the opinions and conclusions of other experts whose
testimony is not subject to cross-examination. Hunt, 297 F.R.D. at 275.
40
Moreover, as explained in more detail below, Dr. Martin does not purport to offer a definitive
opinion that Dare himself could unquestionably be cleared to work in a safety-sensitive position as a
welder.
48
As an initial matter, it is unclear precisely which opinions Defendants accuse Dr. Martin
of “parroting.” Indeed, his report does not discuss Dare’s “psychological or physical abilities to
work as a welder in a safety sensitive position at Dragon Rig.” Instead, Dr. Martin cautions that
“[o]ne should not automatically make an erroneous assumption that just because the individual is
on these medications that this would necessarily be an automatic disqualifier.” Such a generalized
statement clearly does not comment on Dare’s particular abilities.
Dr. Martin also opines in his addendum that “[i]t is possible” for a patient to take both
methadone and Xanax and “not experience any of the above-listed side effects or, at least, not
experience them to any significant degree.” He continues: “From the records, and Dr. Hopper’s
testimony, this appears to be the case with Mr. Dare . . . .” These statements, however, are not
parroting.
While Dr. Martin relies on Dr. Hopper’s testimony, he demonstrates that he
independently evaluated Dr. Hopper’s statement by also consulting Dare’s medical records. In
fact, his report states that he reviewed Dare’s “medical documentations.”
Moreover, Dr. Martin’s opinion also explicitly relies on his own experience as an
occupational medicine physician and licensed MRO, stating that “[t]here are many examples
historically where individuals who are or were taking these types of medications were or are able
to operate quite well within the context of a safety sensitive job.” He elaborated in his deposition
testimony that he has treated patients who worked in safety-sensitive positions—specifically,
construction workers, meat-packing workers, and a transport driver—while concurrently taking
such medications. Thus, Dr. Martin’s testimony confirms that the statements in his report do not
result from merely “taking Dr. Hopper’s word for it.” Rather, Dr. Martin references his personal
experience with his own patients to corroborate his opinion.
49
Lastly, while Dr. Martin notes that “Dr. Hopper specifically testified that he believed
[Dare] could perform the work of a welder while taking both alprazolam and methadone at the
dosages he was prescribed in 2019 and 2022,” nowhere does Dr. Martin authoritatively claim that
Dare can work as a welder. In fact, Dr. Martin acknowledges that in order to determine whether
Dare could perform the essential functions of the welder position, a “medical professional must
at a minimum examine [Dare], review his history, discuss with him the medication use and
evaluate the potential effects of the medication(s).” Thus, applying the standard that he espouses,
because he has not personally examined Dare, Dr. Martin would not consider himself qualified
to opine definitively on Dare’s psychological or physical abilities to work as a welder. The court
is unconvinced that Dr. Martin contravenes his own protocol by unreservedly endorsing Dr.
Hopper’s opinion.41 In short, Dr. Martin does not appear to “recite” or “parrot” Dr. Hopper’s
opinions (or those of Dare’s other providers).42 In sum, the court is satisfied that Dr. Martin’s
opinions have sufficient indicia for reliability. See Williams, 898 F.3d at 625.
3.
Dr. Martin’s Opinions Properly Apply the Facts in This Case
Next, Defendants argue that Dr. Martin improperly ignores certain factual evidence.
Specifically, they argue that Dr. Martin’s opinions fail to account for the following facts: (1) Dare
41
Indeed, when asked if he would have disclosed a safety concern in this case, Dr. Martin replied:
I’m not sure I can answer that question because I have not done an MRO interview with
Mr. Dare, so if I would have gone through that process, I would have asked him more
questions about those medications, for example, how long have you been using them, do
you have any issues with them, et cetera, et cetera. I simply can tell you that I may or
may not have made a safety-sensitive potential issue concern raised to the employer
representative.
42
Notably, neither Dr. Martin’s report nor his addendum explicitly references Dr. Carroll, the
medical director at Best Recovery Healthcare, or Mata, Dare’s counselor at his MAT program.
50
was concurrently taking high-dose methadone and high-dose Xanax; (2) these drugs have sedating
effects and, when taken concurrently, can have an exponential effect; (3) Dr. Starkey could not
clear Dare to work in a safety-sensitive position; (4) the job description and work requirements
for a welder; (5) Dragon Rig’s pre-employment drug screening protocol; and (6) the fact that
Dragon Rig’s conditional offer of employment was contingent upon Dare’s successfully passing
a drug screen.
The court is unpersuaded by this argument. It is apparent from Dr. Martin’s opinion and
testimony, including specific portions discussed above, that he is keenly aware of Dare’s
prescriptions and their potential effects. As for Dr. Starkey’s inability to clear Dare to work in
a safety-sensitive position, Dr. Martin explicitly testified that an MRO’s “forensic” role is distinct
from a fitness-for-duty evaluation, demonstrating that he is cognizant of the limitations of Dr.
Starkey’s role as an MRO. Next, while it is unclear whether Dr. Martin specifically reviewed
Dragon Rig’s job description, Dr. Martin nevertheless testified that he has treated welders in his
practice, so his opinion appears to be supported by sufficient facts regarding the sort of physical
labor that welding entails. Lastly, it is not evident that Dr. Martin “fail[ed] to accurately account
for” either Dragon Rig’s drug screening protocol or its stipulation that Dare’s employment was
contingent on successfully passing a drug screen. Indeed, in a technical sense, Dare “passed” the
drug screen, in that Dr. Starkey specifically marked his drug screen as “negative:
has
prescriptions.”43
43
Defendants similarly assert that Dr. Martin’s opinion should be excluded because he “takes into
account legal conclusions regarding Dare’s status as [a] ‘qualified individual’ and Dragon’s judgment as
to what functions of a job are essential.” The statement that Defendants identify, however, contains no
conclusions regarding Dare’s qualifications or the essential functions of the position.
Defendants also condemn Dr. Martin for failing to support this opinion with “reasons why it could
not be concluded that it was just as possible that [Dragon Rig] was justified in withdrawing the conditional
51
Defendants also argue that Dr. Martin’s opinion is not based on sufficient facts because he
“cherry pick[s]” and “adopt[s]” the opinions of Dare’s treating providers despite the fact that Dr.
Carroll has never met Dare; Mata is not a physician, cannot prescribe medication, and admittedly
has little knowledge of Xanax; and Dr. Hopper “did not know that Dare was taking methadone
or why he was taking methadone.”44 Defendants further argue that Dr. Martin “disregards the
work by Dr. Starkey as an MRO to come to his recommendation and the deposition testimony of
Dr. Starkey, who also cites multiple medical sources to support his decisions as an MRO.” As
an initial matter, there is no indication that Dr. Martin ignores this evidence. A review of the
record reveals that he does not rely solely on either Dr. Carroll’s or Mata’s opinions, specifically
also referencing a portion of testimony proffered by Dr. Hopper—who is a physician and had met
with and examined Dare multiple times—that he “believed [Dare] could perform the work of a
welder while taking both alprazolam and methadone at the dosages he was prescribed in 2019 and
2022.”
Furthermore, Dr. Martin does not appear to “disregard” Dr. Starkey’s work as an MRO
or his deposition testimony. Indeed, Dr. Martin’s opinion demonstrates that he considered these
factors, given that he observes in his report:
offer of employment,” stating vaguely that excluding this opinion is “required by Daubert.” It is unclear
to the court upon which aspect of Daubert Defendants rely. The court accordingly rejects this argument.
44
While Defendants make much of Dr. Hopper’s initial unawareness of Dare’s methadone
prescription, they neglect to mention that Dr. Hopper also testified that, even if he had known that Dare
was prescribed 90 milligrams of methadone per day, he would not have altered Dare’s Xanax prescription
because “[c]linically [Dare] was responding and doing well,” and “[a]s a matter of fact, his clinical picture
improved over the years . . . .” Defendants also inaccurately state that Dr. Hopper admitted that, if he
had known Dare was taking methadone, he would have encouraged Dare to take less Xanax. Instead, Dr.
Hopper stated that concurrent dosages of Xanax and methadone “could concern [him]” because “[s]ome
people will report they can’t function because of sedation or confusion or incoordination[;] other people
do well. . . . So the clinical picture varies quite—quite greatly.”
52
[T]he MRO review documentation seems to be somewhat substandard insofar as
I cannot tell when there was an attempt to contact from the MRO to the donor
himself for the typical MRO review of the laboratory positive case[,] nor does it
say where the information that is written on the MRO interpretation was obtained.
As for Dr. Starkey’s deposition testimony, it is undeniable that Dr. Martin and Dr. Starkey have
differing opinions as to the role of an MRO and the types of medical information that an MRO has
the discretion to disclose. Dr. Martin’s disagreements with Dr. Starkey on these grounds do not
persuade the court that Dr. Martin’s opinions improperly apply the facts in this case.45
4.
Dr. Martin’s Opinions Are Relevant
Defendants assert that several of Dr. Martin’s opinions should be excluded as irrelevant.
Specifically, Defendants criticize Dr. Martin’s references to the APS and the AAPM’s position
statement on opioid users and fitness for duty, ADA recommendations on individualized
assessments of fitness for duty, and ADA and DOT references to a worker’s medication use and
fitness for duty. Defendants claim that these opinions are irrelevant because “[t]he relevant
concern is the concurrent use of high-dose Methadone and Xanax and the ability to perform a
safety sensitive position as a welder at Dragon.” The court is unpersuaded by this argument. On
the contrary, the views of certain medical societies, the ADA, and the DOT regarding how opioid
prescriptions affect individuals’ fitness for duty appear directly relevant to “help[ing] the trier of
45
Defendants also claim that Dr. Martin’s testimony should be stricken because his preparation
was de minimus, and his opinions accordingly lack a sufficient factual basis. Specifically, Defendants
complain that “he did not sufficiently review any relevant medical information concerning pain
management, addiction medicine, or the effects of concurrent use of high-dose methadone and high-dose
Xanax.” Here, the court agrees with the EEOC that there is no evidence that Dr. Martin’s preparation
was de minimus. Indeed, Defendants cite no portion of Dr. Martin’s reports or testimony to support this
contention. Furthermore, as the EEOC points out, Defendants and Dr. Chen fail to identify the “relevant
medical information” that they insist Dr. Martin was required to review. The court thus rejects this
argument.
53
fact to understand the evidence” or “determin[ing] [the] fact in issue” of whether Defendants acted
properly in revoking Dare’s conditional offer of employment. FED. R. EVID. 702(a).
Defendants also argue that Dr. Martin’s opinions concerning the role and scope of an MRO
are irrelevant because they “do[ ] not make any of the required elements of [the EEOC’s] prima
facie case for disability discrimination under the ADA any more or less true”; “do not make the
only legally relevant question—whether Dragon Rig withdrew Dare’s conditional offer of
employment because of his disability or record of disability—more or less true”; and “do[ ] not
address whether Dragon Rig’s decision was objectively reasonable based upon the information
before it.” In response, the EEOC contends that Defendants themselves “have repeatedly put this
issue front and center in this case by claiming that Dr. Starkey ‘acted reasonably’ or that his
actions were ‘rational.’” The court agrees that understanding the role and scope of an MRO will
assist the jury with “understand[ing] the evidence” regarding Dr. Starkey’s assessment of Dare’s
drug screen and the role his assessment played in precipitating the present litigation. Because the
role and scope of an MRO are pertinent to understanding how the facts of this case developed, the
court rejects Defendants’ argument that Dr. Martin’s opinions on these topics are irrelevant.
5.
Defendants’ Objections to Certain Conclusions in Dr. Martin’s Reports
Defendants also raise objections to specific conclusions in Dr. Martin’s report and
addendum. First, Defendants contend that Dr. Martin’s statement that “[i]n this particular case,
what we have is a laboratory positive report of the presence of methadone” is unreliable because
it fails to indicate accurately that Dare’s drug screen result was positive for the presence of
concurrent high doses of methadone and Xanax. Defendants express concern that this statement
will confuse or unduly prejudice the trier of fact. The court agrees that this statement is
54
incomplete because it omits that Dare also tested above the confirmation cutoff quantity for Xanax.
While the court declines to find that Dr. Martin’s entire opinion and testimony are unreliable as
a result of this omission—indeed, it is evident from other sections of Dr. Martin’s report, as well
as his testimony, that he is aware that Dare was prescribed both methadone and Xanax and that
both medications were indicated on Dare’s drug screen—the court shares Defendants’ concern that
this singular statement is misleading and could confuse the fact-finder. Such a statement certainly
will not “help the trier of fact to understand the evidence,” FED. R. EVID. 702, and the court may
exclude evidence “if its probative value is substantially outweighed by a danger of . . . confusing
the issues” or “misleading the jury.” FED. R. EVID. 403. As a result, the court concludes that
the particular statement recited above should be stricken from Dr. Martin’s report.46
In addition, Defendants maintain that Dr. Martin’s opinion is unreliable “because there is
too much of an analytical gap to transform Dr. Starkey’s safety concern guidance into a
determination of fitness for duty.” Although Defendants do not identify the specific opinion that
this argument references, the court infers that Defendants are concerned with Dr. Martin’s
statement in his report that “[t]he fact here that the MRO seemed to make a judgment with regard
to the fitness for duty is something that is not standard practice for a [MRO] to undertake.”
The court is unconvinced that an analytical gap exists with regard to this issue. The court
has already described Dr. Martin’s qualifications to opine on the role of an MRO, including his
46
Defendants further allege that Dr. Martin’s definition of “safety sensitive” is “fundamentally
inconsistent with [his] opinion.” Defendants do not elaborate on this argument. To the extent Defendants
contend that Dr. Martin’s definition of “safety sensitive” encompasses the welding position at issue, such
a concept does not undermine Dr. Martin’s opinion. Indeed, he specifically states that it is possible for
an individual with Dare’s prescriptions to perform in a safety-sensitive position. Accordingly, the court
declines to strike Dr. Martin’s opinion based on this argument.
55
three decades as a licensed MRO and his extensive experience with teaching, writing, and serving
in leadership positions concerning the role of MROs. Indeed, Defendants concede that Dr. Martin
is qualified to testify about “his understanding of the role of the MRO and the duties and
responsibilities of an MRO.” Furthermore, Dr. Martin has multiple facts at his disposal that
support his opinion, namely, that Dr. Starkey did not merely communicate a “potential safety
concern” to Defendants—as Dr. Martin explains is the standard practice for an MRO—but Dr.
Starkey instead provided Defendants with considerably more information, including the precise
medications that Dare was prescribed, their sedating effects, and a warning that Dare “cannot
work in a safety sensitive position or operate equipment.” Dr. Martin also explains that a
fitness-for-duty determination involves assessing multiple types of information “to make the
determination of whether [an employee or potential employee is] fit for that job or not.”
Thus, it is not too removed from the facts of this case for Dr. Martin to state that Dr.
Starkey’s warning seemed to constitute a judgment about Dare’s fitness for duty, or a
“determination of whether [Dare was] fit for that job or not.” Importantly, Dr. Martin does not
assert that Dr. Starkey conducted a formal fitness-for-duty evaluation or made an official
fitness-for-duty determination; rather, Dr. Martin merely opines that Dr. Starkey “seemed to make
a judgment” or “made a judgment” about Dare’s fitness for duty. Accordingly, this statement
does not suffer from an “analytical gap” that renders Dr. Martin’s opinion unreliable.
Defendants next take issue with Dr. Martin’s assertion that, in comparison to Dr. Chen’s
opinion that no one prescribed Dare’s particular types and dosages of medications could be cleared
to work in a safety-sensitive position, “[m]ore weight should be given to Dr. Hopper, Mr. Dare’s
psychiatrist’s testimony.” Defendants complain that this is “an unsupported, conclusory statement
56
that impermissibly invades the province of the jury with empty rhetoric.” In response, the EEOC
retorts that it is a “logical conclusion that Dare’s treating physicians are in a better position to
assess his medication needs and symptoms and side effects than Dr. Chen.”
Although not addressing this precise scenario, Fifth Circuit precedent makes clear that “[i]t
is uniquely within the jury’s province to weigh the evidence and make credibility determinations.”
Wackman v. Rubsamen, 602 F.3d 391, 404 n.5 (5th Cir. 2010) (citing United States v. Parker,
505 F.3d 323, 331 (5th Cir. 2007), cert. denied, 552 U.S. 1221 (2008); Brennan’s Inc. v. Dickie
Brennan & Co., Inc., 376 F.3d 356, 362 (5th Cir. 2004)); see Nale v. Finley, 505 F. Supp. 3d
635, 645 (W.D. La. 2020) (“As a general rule, an expert may not opine on another witness’s
credibility because this testimony does not help the trier of fact, who can make its own credibility
determinations.” (quoting Nagle v. Gusman, No. 12-1910, 2016 WL 541436, at *4 (E.D. La.
Feb. 11, 2016))). Indeed, “the jury acts as arbiter of the weight assigned to conflicting opinions.”
Julius v. Luxury Inn & Suites, LLC, 535 F. Supp. 3d 600, 604 (S.D. Miss. 2021) (quoting Adams
v. Ethyl Corp., 838 F. App’x 822, 831-32 (5th Cir. 2020)). Bearing this standard in mind, the
court agrees that Dr. Martin’s statement that “[m]ore weight should be given to Dr. Hopper”
improperly encroaches on the jury’s responsibility to weigh the evidence. Accordingly, this
statement must be stricken from Dr. Martin’s report.
Lastly, Defendants argue that Dr. Martin’s opinion that “there is no indication from the
records [he] reviewed that either Best Recovery Healthcare or Dr. Hopper treated Mr. Dare or
monitored his medication use in a manner that was inconsistent with best medical practices or
standards of patient care” is unreliable because “it fails to state, include, or otherwise articulate
or establish the medical practices or standards of patient care referenced by Dr. Martin,” and
57
“expert testimony is generally required to prove the applicable standard of care.” Quijano v.
United States, 325 F.3d 564, 567 (5th Cir. 2003). The EEOC explains in response that Dr.
Martin’s statement was merely intended to rebut Dr. Chen’s criticisms of Dare’s treating
physicians in his own report. The EEOC further elaborates that testimony regarding the standard
of medical care that Dare received from his treating providers is unnecessary because “the ADA
required Defendants to consider Dare’s ability to perform the job regardless of the nature of his
disabilities or his treatment.” The court agrees. Therefore, because Dr. Martin’s statement
merely counters an opinion that was first mentioned in Defendants’ own expert’s report, and the
salient issues in this ADA case do not implicate questions of the appropriate standard of medical
care, the court will not strike Dr. Martin’s opinion on this basis.47
6.
Defendants’ Complaint that Dr. Martin Asserts Legal Conclusions
Finally, Defendants complain that the following statements in Dr. Martin’s report
constitute impermissible legal conclusions: (1) “It is therefore not scientifically possible to make
a determination of impairment based upon an MRO interview as this would require an in-person
evaluation . . . .”; (2) “[t]he ADA recommends individualized assessments of fitness for duty.
Both the [ADA] and the [DOT] encourage dialogue between the clinician doing the assessment and
the prescriber about the worker’s medication use and fitness for duty issues”; and (3) “This
47
Defendants also complain that Dr. Martin’s opinion that “[t]here are many problems with respect
to the MRO review, how it was interpreted as well as the decision process that was made here,” should
be stricken as a bare conclusion. The court disagrees with Defendants’ characterization. In the paragraphs
following this statement, Dr. Martin elaborates on the issues that he perceives with Dr. Starkey’s MRO
review, specifically criticizing: the lack of documentation regarding how and when Dare’s prescription
information was obtained; Dr. Starkey’s disclosure of Dare’s prescriptions; Dr. Starkey’s deviation from
“standard practice” by “seem[ing] to make a judgment with regard to [Dare’s] fitness for duty”; and
Defendants’ making “a determination of impairment based upon an MRO interview.”
58
longstanding relationship also does not alter or negate the potential employer’s duties to
individually assess the prospective employee under the [ADA].”
The EEOC responds that the first statement is not a legal conclusion, but “a medical and
factual conclusion” that Dr. Martin is qualified to make. The court agrees that this statement is
an opinion drawn from Dr. Martin’s extensive experience with conducting both MRO interviews
and fitness-for-duty evaluations.
The court accordingly declines to strike this statement.
The remaining two statements, however, are more dubious. While the EEOC asserts that
these statements are “based on both [Dr. Martin’s] experience and his knowledge of the applicable
laws and MRO procedures,” the court is nevertheless concerned that these opinions stray too far
into the territory of improperly expounding legal conclusions, specifically regarding whether the
ADA requires individualized assessments and whether and to what extent an employer’s duty
under the ADA is affected by its relationship with its MRO. “[T]he Fifth Circuit has made clear
that while experts can opine on factual issues, ‘our legal system reserves to the trial judge the role
of deciding the law for the benefit of the jury.’” Babin v. Plaquemines Parish, 421 F. Supp. 3d
391, 397 (E.D. La. 2019) (quoting Askanase v. Fatjo, 130 F.3d 657, 673 (5th Cir. 1997)). The
court accordingly agrees that Dr. Martin’s second and third opinions, as stated above, should be
stricken as impermissible legal conclusions.
III.
Conclusion
In accordance with the foregoing analysis, the EEOC’s Motion to Exclude Defendants’
Expert Witness (#64) is GRANTED in part and DENIED in part. Dr. Chen may continue as an
expert witness, but he may not testify that Defendants’ reliance on Dr. Starkey’s recommendation
was “justified.” The court accordingly strikes the corresponding phrase from Dr. Chen’s report.
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Additionally, Dr. Chen may not testify regarding Dare’s possible diversion of his medication, and
the corresponding conclusions are stricken from his reports.
Likewise, Defendants’ Motion to Exclude the Testimony of Plaintiff’s Expert (#66) is
GRANTED in part and DENIED in part. Dr. Martin may continue as an expert witness, but his
statements that “[i]n this particular case, what we have is a laboratory positive report of the
presence of methadone” and “[m]ore weight should be given to Dr. Hopper” are stricken from
his report. Additionally, Dr. Martin may not testify as to the following legal conclusions, and
they are accordingly stricken from his reports: “[t]he ADA recommends individualized
assessments of fitness for duty. Both the [ADA] and the [DOT] encourage dialogue between the
clinician doing the assessment and the prescriber about the worker’s medication use and fitness
for duty issues”; and “This longstanding relationship also does not alter or negate the potential
employer’s duties to individually assess the prospective employee under the [ADA].”
SIGNED at Beaumont, Texas, this 25th day of March, 2024.
________________________________________
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE
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