A female school custodian employed by a community school brought claims for violation of the Americans with Disabilities Act (ADA) and retaliatory harassment and discrimination, as well as other state-law claims, alleging that she was sexually assaulted by a co-worker. The Defendant filed a motion for summary judgment, to forgo a full trial, and motion to strike the Plaintiff’s expert and exhibits in opposition to summary judgment.
After the assault, the Plaintiff began to suffer panic attacks, and she filed a workers’ compensation claim. Prior to her returning to work, the Plaintiff’s workers’ compensation mental health treatment provider drafted a letter. The letter stated that the Plaintiff had been experiencing Post-Traumatic Stress Disorder symptoms since the incident. The provider wrote a letter to the Defendant saying the Plaintiff was referred to her by a medical case manager, nurse life care planner, and legal nurse consultant, and the Plaintiff’s mental health expert “concurred with the diagnosis that was made from the [Employee Assistance Program] counseling service, Post-Traumatic Stress Disorder (PTSD).”
U.S. District Court Judge Jon E. Deguilio wrote in his opinion that he needed to address the Defendant’s objection and motion to strike the Plaintiff’s Summary Judgment Exhibits A and B (letters from Plaintiff’s mental health expert, her workers’ compensation mental health treatment provider). The Defendant argued that the exhibits must be excluded because the Plaintiff should have disclosed the identity of an expert and an expert report, and because they were unauthenticated, contained hearsay, and had inconsistent and confusing dates.
Exhibit A was a letter from her mental health expert that was dated February 22, 2012—but referred to “the incident” at school occurring “last September 2012.” The Plaintiff said that she testified about the letter during her deposition with enough specificity to render it admissible, and that the reference to the incident occurring in September 2012 was a typographical error by the author of the document. Additionally, the Plaintiff contended that “[i]ssues concerning relevancy of exhibits, expert witness status, hearsay contained within exhibits, and lack of proper foundation could easily have been discussed and resolved by the parties even during the course of the deposition itself,” and argued that because the Defendant failed to raise these issues then, it waived its right to object. Exhibit B was a second letter from the mental health expert dated May 7, 2012, but wasn’t signed by the expert until September 10, 2012. Plaintiff again argued that the inconsistency had nothing to do with relevance.
Judge Deguilio cited Rule 56(c)(2), with regard to a motion for summary judgment, that “[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” (emphasis added). Also citing court precedent, the judge wrote that “the Court must determine whether the material can be presented in a form that would be admissible at trial, not whether the material is admissible in its present form.” The Seventh Circuit specifically noted that “the Federal Rules of Civil Procedure allow parties to oppose summary judgment with materials that would be inadmissible at trial so long as facts therein could later be presented in an admissible form.” Therefore, Judge Deguilio held that, to the extent the motion to strike challenged the exhibits as containing hearsay, that objection was denied as the Plaintiff should be granted an opportunity to attempt to present those facts at trial in an admissible form.
Regarding authentication, the Plaintiff gave substantial testimony during her deposition to satisfy the requirements of Rule 901. Consequently, the exhibits weren’t excluded on the basis of authenticity.
The Defendant also objected to the two letters because the Plaintiff did not disclose any expert opinions or submit any expert reports. However, the judge explained that only those retained or specially employed to provide expert testimony must submit an expert report complying with Rule 26(a)(2)(B). The Plaintiff contended the expert was a treating physician, and the exhibits merely contain her conclusions and recommendations. The Court found that the expert was not retained or employed to provide expert testimony—she was the workers’ compensation therapy provider. Therefore, the Plaintiff did not need to file an expert report for the mental health expert.
Judge Deguilio explained that motions to strike are heavily disfavored, and usually only granted in circumstances where the contested evidence causes prejudice to the moving party. Here he granted the Plaintiff the opportunity to oppose summary judgment with materials that were currently inadmissible because she could later present them at trial in an admissible form. As a result, the motion to strike was denied.
Viewing the facts relevant to the Plaintiff’s condition in the light most favorable to her, and assessing those facts under the new, less stringent analysis called for by the ADA amendments, Judge Deguilio held that there was sufficient evidence to permit a reasonable jury to find that the Plaintiff has a disability under the ADA, which was supported in part by the Plaintiff’s mental health expert letters.
The Motion for Summary Judgment was denied as to the reasonable accommodation claim under the ADA, and likewise, the Objection and Motion to Strike was denied.
Rodgers v. Gary Community School Corporation, — F.Supp.3d —-, 2016 WL 795890 (N.D. Ind. March 1, 2016)