Mature woman with eye patch from vision lossA federal district court in Louisiana recently heard a motion to exclude expert testimony of a Certified Low Vision Therapist in an ADA (Americans with Disabilities Act) action.

The plaintiff was a medical review nurse hired for the defendant insurance company. In July 2013, she suffered a stroke. As a result, she experienced, among other things, a specific kind of partial vision loss called right homonymous hemianopsia that left the right side of her field of vision completely void.

Plaintiff returned to work in August 2013. She resigned in December 2014 and sought reinstatement, but her request was denied. Plaintiff claimed Defendant failed to reasonably participate in the interactive process, failed to provide her with reasonable accommodations, and constructively discharged her—all in violation of the ADA.

Plaintiff’s expert witness was a Certified Low Vision Therapist. In her report, she described the documents she reviewed, the tests she performed, and the “visual effects” of Plaintiff’s right homonymous hemianopsia.

She also listed 14 symptoms from which Plaintiff suffered that were listed on Low Vision Centers of Indiana’s homonymous hemianopsia symptom checklist as well as another “cluster of deficits” associated with this condition. Among other conclusions reached, the vision expert stated that “if [Plaintiff] would have had the following after her vision loss, she would have been able to keep up with productivity and retain her job . . . ” and then listed eight actions, with sub-parts, which allegedly could’ve been taken to ameliorate the effects of Plaintiff’s condition.

Defendant sought to exclude the vision expert’s report and testimony. Their motion was a Daubert challenge based principally on the vision expert’s alleged failure to use an accepted methodology and her alleged lack of an adequate factual foundation.

Judge John W. deGravelles noted in his opinion that the Supreme Court found the inquiry envisioned by Rule 702 was a flexible one. Its overarching subject is the scientific validity and thus the evidentiary relevance and reliability of the principles that underlie a proposed submission. The focus, he wrote, must be solely on principles and methodology, not on the conclusions that they generate.

The judge wrote that the court has broad discretion in deciding whether to admit expert opinion testimony, and that the Supreme Court has recognized that not all expert opinion testimony can be measured by the same exact standard. He noted that “the factors identified in Daubert may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert’s particular expertise, and the subject of his testimony,” and that the Fifth Circuit concluded that “soft sciences” involve “necessarily diminished methodological precision” when compared to other scientific disciplines like mathematics and engineering.

In such instances, Judge deGravelles stated that other indicia of reliability are considered under Daubert, including professional experience, education, training, and observations. Because there are areas of expertise, such as the “social sciences in which the research theories and opinions cannot have the exactness of hard science methodologies,” trial judges are given broad discretion to determine “whether Daubert‘s specific factors are, or are not, reasonable measures of reliability in a particular case.”

The Court explained that the expert was a certified Low Vision Therapist who had a B.S. in elementary education and obtained her certification in low vision therapy from the Pennsylvania College of Optometry. She testified as Low Vision Expert in a New Jersey case and acted as a consultant to U.S. Department of Justice in an investigation of a New Mexico school for the blind that didn’t provide Braille instruction. She also attended workshops in which the ADA and an employer’s obligation to accommodate an employee were covered as a subject. But she hadn’t testified as an expert in an ADA case.

Plaintiff argued that, while Defendant attacked the vision expert’s qualifications to render an opinion about “reasonable accommodations” or “essential job functions,” the vision expert never used those terms. Plaintiff also argued that the vision expert was well-qualified to give the opinions in her report.

Judge deGravelles found that the vision expert’s qualifications were sufficient to allow her to testify as to the opinions in her report. She was formally trained in her field and certified, had acted as a consultant for the Department of Justice, and had been accepted as an expert witness in other cases. The fact that she had relatively little experience as an expert witness wasn’t grounds for disqualification—the judge said that courts 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.

The certified Low Vision Therapist conducted an in-person assessment of Plaintiff which included an interview and “low vision assessment,” including various vision tests. She also reviewed Plaintiff’s medical records. While the vision expert’s report was “bare bones, to say the least,” Judge deGravelles found that when viewed together with her deposition, the methodology and analysis used by the expert to reach her conclusions could be ascertained.

Defendant criticized the vision expert’s support for her opinions and for recommending the use of a text-to-speech software, even though she admitted having no experience training people with vision loss in the use of the software. But the judge responded that 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 and should be left for the jury’s consideration.”

Here, Defendant’s attack went to the weight, not admissibility, of the vision expert ‘s testimony. It could be subjected to vigorous cross-examination by counsel for Defendant where the sufficiency of this testimony should properly be tested, the judge said.

However, Judge deGravelles took issue with two opinions given by the vision expert. One was that, had certain actions been taken by Defendant, Plaintiff “would have been able to keep up with productivity and retain her job.” Defendant argued that “the vision expert admitted she didn’t review [P]laintiff’s job description for a Medical Review Nurse at the company prior to rendering her opinion in the report. While the expert was made aware that there were certain production standards applicable to Plaintiff’s employment, she didn’t know what those standards were. However, in examining the vision expert’s actual testimony, she stated that she didn’t need this information because, given Plaintiff’s condition and what the suggested rehabilitation modalities would’ve been able to accomplish, “I know that she [could have] perform[ed] anything on a computer. She [could have] do[ne] any of those activities if she [had been] provided the proper equipment and the training that goes along with that equipment.” Thus, the court held, there was a basis for her opinion and the sufficiency of that basis should be left to the jury.

Next, the vision expert opined that “[i]f [Plaintiff] had received the proper referral, equipment and training she would be living a life much like the one she had before her stroke and vision loss.”

There was evidence that Plaintiff had medical issues that went far beyond those associated with vision loss. Thus, the vision expert wasn’t qualified to opine on how rehabilitation therapies would have allowed Plaintiff to resume her pre-stroke life as it pertained to medical conditions other than vision loss.

To that extent, Defendant’s motion to exclude the testimony was granted.

 

Jones v.  Blue Cross Blue Shield of La., 2018 U.S. Dist. LEXIS 13545 (M.D. La January 29, 2018)