Expert Witness Blog
Plaintiff sued defendant under the Americans with Disabilities Act. Plaintiff hired an Optometry Expert Witnesses to provide expert witness testimony. The defendant filed a motion to exclude, which was granted in part and denied in part.
Facts: This case (Jones v. Blue Cross Blue Shield Of Louisiana – United States District Court – Middle District of Louisiana – January 28th, 2018) involves a claim of violation of the American with Disabilities Act. The plaintiff worked for the defendant as a Medical Review Nurse and, as a result of a stroke, suffered from vision loss. The plaintiff claims that after she sought reinstatement to work, her request was denied. The plaintiff claims that the defendant did not reasonable participate in the interactive process, did not provide her with reasonable accommodations, and constructively discharged her. The plaintiff hired Optometry Expert Witnesses Janet Bernhardt to provide expert witness testimony and the defendant countered to a motion to exclude.
Discussion: Bernhardt is a certified Low Vision Therapist with a B.S. in elementary education and a certification in low vision therapy. The defendant argues that she is not qualified to offer an opinion about reasonable accommodations or essential job functions. The plaintiff argues that Ms. Bernhardt never used those terms in her report and alleges that Ms. Bernhardt is qualified to offer an opinion in this case. The court opines that Ms. Bernhardt is qualified to offer an opinion in this case and the fact that she has little experience as an expert witness is not grounds to disqualify her.
Regarding methodology and the foundation for her opinion, Bernhardt conducted an in-person assessment of the plaintiff which included a law vision assessment. The plaintiff argues that her report, together with her deposition, the methodology and analysis used to reach her conclusions are enough to pass muster under Daubert.
The defendant criticizes her support for her methodology stating that she did not check to see whether the accommodation she suggests would actually be one that the defendant could provide. In addition, the defendant argues that Bernhardt did not name any person who suffers from plaintiff’s condition who had been provided the same accommodation she claims should have been given to the plaintiff. In addition, the defendants also criticizes Bernhardt’s recommendation of the use of a text-to-speech software, even though she admitted having no experience training people on the use of the software. The court opines that these arguments go the the weight of the evidence, not their admissibility and will no doubt be the subject of rigorous cross examination.
The court did, however, grant the defendant’s motion on two other grounds.
Last, the defendant argues that Bernhardt provides unsubstantiated legal opinions which should be excluded, but fails to identify any specific legal conclusions to which it objects.
Conclusion: The motion to exclude the expert witness testimony of Janet Bernhardt is granted in part and denied in part