Neurology expert witness testimony admitted in employment discrimination case

Knitted NeurologyDisability discrimination occurs when an employer or other entity covered by Americans with Disabilities Act or the Rehabilitation Act treats a qualified individual with a disability who is an employee or applicant unfavorably because she has a disability. The Wisconsin District Court recently came across one such case (EEOC v. Rexnord Industries LLC) where a neurology expert witness testimony was admitted to back up the EEOC claim.

Facts of the case

This case was filed by the Equal Employment Opportunity Commission (EEOC) on August 2011, alleging that Defendant Rexnord Industries, Inc. fired their employee, Danielle M. Sullivan, either because of her disability (migraines) or because it regarded her as disabled (by a seizure disorder). In terminating Sullivan, Defendant relied on the report of Dr. Andrew Seter who concluded Sullivan had an active seizure disorder. Defendant asserted that by relying on the fitness for duty report of Dr. Seter, it assessed that Sullivan was a direct threat on a reasonable medical judgment that relied on the most current medical knowledge and/or best available objective evidence.

Battle of the experts

EEOC presented evidence from its neurology expert witness, Dr. George Morris, who opined that Dr. Seter relied on improper methodology in diagnosing Sullivan’s condition.

Defendant countered by saying it was Dr. Morris’ opinion which consisted of express, inadmissible speculation; that it lacked foundation in reliable methodology or evidence; and that it would not assist the trier of fact. Defendant also argued that Dr. Morris, as a doctor specializing in epilepsy, had no training in occupational medicine and thus should not opine on the reasonableness of Defendant’s reliance on Dr. Seter’s evaluation of Sullivan as a direct threat. That ADA was not a medical malpractice statute and the case was not about the standard of care of epileptologists in diagnosing seizure disorders was their concluding statement.

What does the Statute say?

The Americans with Disabilities Act (ADA) prohibits an employer from discriminating against a qualified individual with a disability. An individual is not qualified if she presents a “direct threat” to her own health and safety or that of others. See 42 U.S.C. § 12112(a); Bekker v. Humana Health Plan, Inc., 229 F.3d 662, 669 (7th Cir.2000). The pertinent regulatory provision provides that:

Direct threat means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. The determination that an individual poses a “direct threat” shall be based on an individualized assessment of the individual’s present ability to safely perform the essential functions of the job. This assessment shall be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence. In determining whether an individual would pose a direct threat, the factors to be considered include: (1) The duration of the risk; (2) The nature and severity of the potential harm; (3) The likelihood that the potential harm will occur; and (4) The imminence of the potential harm.

Assessment by the Court

The question before the Court was whether Dr. Morris’ opinion constituted expert testimony which would assist the jury on the question of whether Defendant had the most current medical knowledge and/or the best available objective evidence in making its direct threat determination.

Firstly the Court noted that based on his training, experience, and education, Dr. Morris was qualified to render an opinion. Secondly, it found that in producing his expert report, Dr. Morris had reviewed Sullivan’s medical records; Dr. Seter’s fitness for duty report; and deposition transcripts of several other medical experts.  He had also laid out many different potential diagnoses that met Sullivan’s symptoms. This was especially important because unlike some medical conditions in which a negative diagnostic test can exclude a disease, seizures and epilepsy do not function that way. Thus the reasoning and methodology underlying his testimony was held scientifically reliable.

Ultimately the Court ruled that Dr. Morris’ testimony would assist the jury in understanding the evidence and in determining the objective reasonableness of Defendant’s reliance on Dr. Seter’s evaluation. Although Defendant was correct in saying that this was not a medical malpractice case, and that Dr. Morris was not an occupational specialist, the applicable regulations and interpretive caselaw required the evaluation of professional opinions upon which the employer relied.


Dr. Morris’ expert report and related testimony was found to be admissible under Daubert and Rule 702 and consequently Defendant’s motion in limine was denied.

**Written for the web by the EWG Editorial Team

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