United States District Court, M.D. Louisiana
SCOTT J. BUTLER
STATE OF LOUISIANA, LOUISIANA DEPARTMENT OF SAFETY AND CORRECTIONS, ET AL
RULING AND ORDER
BRIAN A. JACKSON, Chief Judge.
Before the Court is Defendants' Daubert Motion to Exclude the Testimony of Dr. James C. Patterson and Theresa Stewart (Doc. 66), filed by the State of Louisiana, Louisiana Department of Safety and Corrections, Louisiana State Police, and Captain Tom Madden, seeking an order from this Court excluding the testimony of Dr. James C. Patterson and Theresa Stewart. The motion is unopposed.
Also before the Court is Defendants' Motion in Limine to Exclude Hearsay Statements from Timothy Gray, Mark Keogh, and Eric Schonfarber (Doc. 86), filed by the State of Louisiana, Louisiana Department of Safety and Corrections, Louisiana State Police and Captain Tom Madden, seeking an order from this Court limiting testimony of Plaintiff's witnesses regarding hearsay evidence. The motion is unopposed.
Finally, also before the Court is Plaintiff's Motion in Limine to Restrict the Testimony of Dr. Cary Rostow (Doc. 85), filed by Scott J. Butler, seeking an order from this Court prohibiting any testimony by Dr. Cary Rostow concerning the January 2013 fitness for duty examination. Defendants oppose the motion. (Doc. 90).
This is an employment discrimination action brought by Scott J. Butler ("Plaintiff") against his former employer, the State of Louisiana, Louisiana Department of Safety and Corrections, Louisiana State Police, and against his supervisor, Captain Tom Madden, (collectively, "Defendants") pursuant to the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. (Doc. 9, Doc. 36). Specifically, Plaintiff alleges that Defendants violated the ADA by ordering him to undergo two unwarranted fitness for duty evaluations - the first in February of 2011 and the second in January of 2013 - and later terminating his employment after he refused to submit to the second FFDE in January of 2013 because of a perception that he was disabled. (Doc. 9, Doc. 36). Plaintiff has also sued for violations of the Louisiana Peace Officer's Bill of Rights, La. R.S. 40:2531 et seq., and his right to privacy. (Doc. 1-3, Doc. 36). Plaintiff seeks declaratory and injunctive relief, including damages for back pay, lost future earnings, lost benefits, lost future benefits, and reinstatement, as well as costs and attorney's fees. (Doc. 1-3, Doc.9, Doc. 36). Defendants deny all liability. (Docs. 3, 10, 40).
A. Defendants' Daubert Motion to Exclude Testimony of Dr. James C. Patterson and Theresa Stewart
Under Federal Rule of Evidence 702, courts are assigned a gatekeeping role to determine the admissibility of expert testimony. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-93 (1993) ("before certifying an expert and admitting his testimony, a district court must ensure that the requirements of Federal Rule of Evidence 702 have been met."); see also Paz v. Brush Engineered Materials, Inc., 555 F.3d 383, 388 (5th Cir. 2009). The court must find that the evidence is both relevant and reliable before it may be admitted. Daubert, 509 U.S. at 592-93.
To do so, the court must evaluate whether the reasoning and methodology underlying the testimony is valid and can be reliably applied to the facts of the case. Id. Ultimately, the district court must strive to ensure that the expert, "whether basing testimony on 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." Valencia, 600 F.3d 389, 424 (5th Cir. Tex. 2010) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999)).
Here,  Defendants argue that Daubert should be applied to exclude Dr. James C. Patterson's ("Dr. Patterson") and Theresa Stewart's ("Nurse Stewart") testimony concerning their medical opinions of Plaintiff's fitness for duty on the grounds that neither has specialized knowledge of FFDEs in the law enforcement context, and neither considered the functions of a state trooper in making their assessment. (Doc. 66-1 at pp. 5-7). Defendants further contend that there is no evidence in the record regarding the methodologies or principles used by Dr. Patterson or Nurse Stewart in their examination.
In their motion, Defendants anticipate that Plaintiff will assert that "Patterson's and Stewart's role at trial is simply to authenticate their reports and introduce them into evidence." (Doc. 66-1 at p. 5). Plaintiff has not filed an opposition to the instant motion, nor did he submit expert reports for either witness. ( See Doc. 66-5 at pp. 1-2).
Assuming then that Defendants are correct that Plaintiff will call Dr. Patterson and Nurse Stewart solely for authentication purposes, Defendants' motion is not properly the subject of a Daubert inquiry. The testimony of treating medical professionals and the authentication of documents prepared as a response to or in the course of treatment is not subject to the strict requirements of Rule 702 and Daubert. Those more exacting standards are justified because experts are typically "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). Testimony offered by a treating physician made pursuant to firsthand knowledge or observation is of a different caliber.
Treating physicians are not required to submit an expert report under Rule 26. See Fed.R.Civ.P. 26(a)(2)(B) advisory committee's notes, 1993 Amendments (treating medical professionals may be "called to testify at trial without any requirement for a written report"). See, e.g., Boudreaux v. J.P. Morgan Chase & Co., No. 07-555, 2007 WL 4162908, at *2 (E.D. La. Nov. 21, 2007); Knorr v. Dillard's Store Servs. Inc., No. 04-3208, 2005 WL 2060905, at *3 (E.D.La. Aug. 22, 2005) ("A treating physician may testify to his opinions about a plaintiff's injuries if his testimony is based on knowledge acquired during the course of his treatment of the plaintiff.... A written report is therefore not required for a treating physician whose testimony and opinions derive from information learned during actual treatment of the patient, rather than from subsequent evaluation as a specially retained expert."). See also See Salas v. United States, 165 F.R.D. 31, 33 (W.D.N.Y. 1995) ("The relevant question is whether... treating physicians acquired their opinions as to the cause of the plaintiff's injuries directly through their treatment of the plaintiff."); Mangla v. Univ. of Rochester, 168 F.R.D. 137, 139 (W.D.N.Y. 1996) ("Experts are retained for purposes of trial and their opinions are based on knowledge acquired or developed in anticipation of litigation or for trial. A treating physician's testimony, however, is based on the ...