Sleep Apnea Expert Witnesses

In a recent case, a plaintiff claimed that his former employer discriminated against him under the Americans with Disabilities Act (ADA). The employer required him, and all the company’s truck drivers with a body mass index (“BMI”) of 33 or above to take a sleep study in continuation to work for the company. However, the employer regarded the Plaintiff’s impairment, in result the plaintiff was “out of service” when he refused to comply with the medical-examination requirement.

Plaintiff filed a motion in limine to exclude the testimony of Defendant’s sleep apnea expert under Daubert. Defendant filed a motion for summary judgment and a motion in limine to limit the opinion testimony of Plaintiff’s disclosed sleep expert and medical provider, a PA-C (certified physician’s assistant).

Defendant is in the over-the-road trucking business that operates throughout the continental 48 U.S. All of Defendant’s drivers were required to meet the minimum physical qualifications and examinations of drivers of CMVs in interstate commerce. Defendant’s drivers were required to comply with its legal policies and procedures, one of which was the Department of Transportation Physical Policy. Defendant’s Sleep Apnea Policy and Program stated that “Drivers who have a Body Mass Index (BMI) of 33 or greater as determined from the DOT physical completed by a Company physician may be required to complete a sleep study.” Plaintiff acknowledged that he received this notice and agreed to abide by this policy.

Under Defendant’s sleep apnea program, a diagnosis of obstructive sleep apnea (“OSA”) may disqualify a driver from operating a truck unless the condition is treated appropriately. Defendant’s stated purpose of its sleep apnea policy was “to comply with the DOT regulations prohibiting the certification of a driver with a disqualifying condition, i.e., respiratory dysfunction, and to address the significant safety concerns associated with OSA and fatigued drivers of CMVs.” Defendant implemented its sleep apnea program in reliance on DOT regulations and recommendations by the Federal Motor Carrier Safety Administration.

Plaintiff was scheduled for a sleep study “because of his size,” and required to take a sleep study as a condition of continuing his employment.

Plaintiff’s medical provider diagnosed Plaintiff with fatigue, weight gain, and sleep disturbance, and reported a concern of sleep apnea. At that time, Plaintiff’s weighed 311 pounds and was 6’5” tall, equating to a 36.9 BMI.

Plaintiff objected to taking the sleep study and refused to complete a study because he thought it was unlawful. Defendant’s Vice-President of Safety and Compliance at Defendant, called Plaintiff and told him if he would not submit to the sleep study, he would be out of service and assigned no hours. This suit followed.

Defendant’s sleep apnea expert in sleep medicine was a professor of medicine at a university and was board-certified in sleep medicine, internal medicine, and pulmonary and critical care medicine. He was co-director of a center for sleep disorders, an accredited sleep laboratory, and he interpreted more than 700 sleep studies a year, including many of commercial drivers. He lectured, taught, and wrote many texts and articles for peer-reviewed journals on the relationship between obesity and sleep apnea.

Plaintiff’s expert in sleep medicine received her master’s degree in physician assistant studies from the University Medical Center and has practiced since that time. She testified that she does not hold herself out as an expert on sleep apnea, nor did she submit a CV or expert report. However, she is certified to perform DOT fitness-for-duty examinations for truckers who seek to keep their commercial driver’s licenses, and she was Plaintiff’s treating healthcare provider.

The certified physician’s assistant indicated to the Plaintiff that she didn’t feel it was medically necessary for Plaintiff to have a sleep study. There was no indication in the note that PA-C was conducting a DOT certification evaluation on the Plaintiff or evaluating Plaintiff according to Defendant’s program and no indication that she conducted a sleep study. In fact, she provided no reasoning for her opinion, and her opinion did not confirm or rule out a diagnosis of OSA. Plaintiff submitted this prescription to Defendant.

Nonetheless, Defendant stopped giving Plaintiff work and placed him on “out of service” status because of his unwillingness to comply with the sleep apnea program. Plaintiff was on personal leave with Defendant until it learned that he had been employed with another company for some time, leading Defendant to conclude that Plaintiff resigned. Plaintiff later participated in a Commercial Driver Fitness Determination examination, which found that Plaintiff met the federal standards and qualified for a two-year certificate. The report noted, “No concerns with Health History. No Limitation. No medications.”

As far as the sleep medicine experts in this case, Senior Judge Richard G. Kopf Senior of the U.S. District Court for the District of Nebraska held that by virtue of his specialized knowledge in the field of obesity and obstructive sleep apnea, his creation and review of a significant amount of peer-reviewed scientific literature, his extensive training in the field, and his observations in reading 700 sleep studies annually qualify Defendant’s sleep specialist as an expert and provided more than adequate foundation for his opinions. Plaintiff argued that there may be studies supporting a contrary position, “but it is not the province of the court to choose between the competing theories when both are supported by reliable scientific evidence,” the judge noted, citing precedent.

Because of her alleged lack of education, training, and experience, Defendant objected to the opinion testimony of Plaintiff’s designated “expert” witness—the physician’s assistant—on sleep apnea, driver fatigue, the sleep apnea program, and the medical necessity for Plaintiff to undergo a sleep study. The expert had master’s degree in physician assistant studies and had practiced since that time. She testified by deposition that she didn’t hold herself out as an expert on sleep apnea, nor did she submit an expert report or a CV. The judge held that, while clearly not an “expert” on sleep apnea, she was Plaintiff’s treating medical provider and was qualified to provide information about his examination, prescriptions, and medical history, as well as medical information she knew from her education, training, and experience as a physician’s assistant. Further, since the time she examined Plaintiff, the expert had been certified to perform DOT examinations of CMV drivers, enabling her to testify about the requirements of those examinations and how OSA relates to DOT regulations.

The judge held that both motions to exclude the testimony of the expert witnesses were denied.

Parker v. Crete Carrier, 2016 WL 259286 (D.Neb. 2016)