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Equal Employment Opportunity Commission v. Brown-Thompson General Partnership

United States District Court, W.D. Oklahoma

August 23, 2019

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
BROWN-THOMPSON GENERAL PARTNERSHIP D/B/A 7-ELEVEN STORES, Defendant.

          ORDER

          PATRICK R. WYRICK, UNITED STATES DISTRICT JUDGE

         Before the Court are two motions to strike by Defendant: first, Defendant's Motion to Strike Declarations in Plaintiff's Motion For Partial Summary Judgment (Dkt. 196) filed February 20, 2019, and second, Defendant's Motion to Strike Declarations in Plaintiff's Response to Defendant's Motion For Summary Judgment (Dkt. 221) filed April 17, 2019. Plaintiff responded in opposition to these motions on March 1, 2019 (Dkt. 206), and May 7, 2019 (Dkt. 227), respectively, and Defendant filed replies on March 8, 2019 (Dkt. 209), and May 14, 2019 (Dkt. 228), respectively. For the reasons set forth below, the Court strikes Plaintiff EEOC's Motion For Partial Summary Judgment (Dkt. 187) and Plaintiff EEOC's Opposition to Defendant's Motion For Summary Judgment (Dkt. 214).

         In both motions to strike, Defendant argues that declarations of the claimants' treating physicians submitted as evidence to support Plaintiff's relevant summary judgment filings should be stricken because they contain expert testimony.[1] This is improper, Defendant contends, because Plaintiff failed to identify these physicians as expert witnesses as required by Fed.R.Civ.P. 26(a)(2), [2] and as a result, Plaintiff is not allowed to use this expert testimony in support of its motion.[3] Plaintiff, on the other hand, argues the testimony of these physicians is permissible lay testimony because it “is based on their own medical records and their personal and professional knowledge as it relates to their observation and treatment of each respective Claimant.”[4] In any event, Plaintiff asserts that it complied with the expert disclosure requirements.[5]

         Analysis

         Disclosure of Experts

         Fed. R. Civ. P. 26 mandates the disclosure of “the identity of any witness [a party] may use at trial to present [expert testimony per] Federal Rule of Evidence 702, 703, or 705.”[6] In addition, an expert disclosure generally “must be accompanied by a written report, ”[7] or, if none is required, “the disclosure must state . . . the subject matter on which the witness is expected to present evidence . . . and . . . a summary of the facts and opinions to which the witness is expected to testify.”[8]

         Expert v. Lay Testimony

         Because a witness could be qualified as an expert and offer expert testimony does not mean that he or she cannot also-or only-offer lay testimony.[9] Such lay testimony is governed by Fed.R.Evid. 701, which allows the admission of opinion testimony by a nonexpert witness where the testimony is “rationally based on the witness's perception, ” “helpful to clearly understanding the witness's testimony or to determining a fact in issue, ” and “not based on scientific, technical, or other specialized knowledge within the scope of [Fed. R. Evid.] 702.”[10] Where a witness offers only lay testimony, then, a party need only disclose to the opposing party the witness's name and contact information, along with the subjects of the information held by the witness “that the disclosing party may use to support its claims or defenses.”[11]

         Accordingly, non-expert physicians “are limited to testimony based on personal knowledge and may not testify beyond their treatment of a patient.”[12] “[W]hen a treating physician's testimony is based on a hypothesis, not the experience of treating the patient, it crosses the line from lay to expert testimony, and it must comply with the requirements of [Fed. R. Evid.] 702 and the structures of Daubert.”[13]

         The distinction between expert and lay testimony is crucial here because the physician declarants were not properly designated as expert witnesses by Plaintiff pursuant to Fed.R.Civ.P. 26(a)(2).[14] Thus, if their declarations contain expert testimony, then Fed.R.Civ.P. 37(c) prohibits the use of that testimony in support of a motion or at trial unless Plaintiff's failure to disclose is substantially justified or harmless.[15]

         The declarations of the treating physicians contain expert testimony.

         The Court agrees with Defendant that some portions of the non-expert physician declarations contain expert testimony. For example, in the Declaration of Dr. Tehseen Khan M.D. (Dkt. 187-3), Dr. Khan states that “[i]n the absence of treatment, it is likely that Ms. Knapp's MS, and associated symptoms, would worsen and become more debilitating.”[16] This is clearly expert testimony; it exceeds the scope of Dr. Khan's personal knowledge and treatment of the patient, and offers a speculative prediction as to what may happen to the patient's medical condition under certain circumstances. Similarly, paragraphs 3 (except for the portion of paragraph 3 preceding the first comma), 4, and 5 cross the line from lay to expert testimony.[17] These paragraphs read like excerpts from medical textbooks and are based on specialized knowledge; they are not at all confined to Dr. Khan's treatment of the patient.

         Conversely, the remainder of this declaration is lay testimony. Dr. Khan's statements about when Ms. Knapp became his patient and what happened at a couple of appointments with him in 2013, for example, describe his personal knowledge regarding his treatment of Ms. Knapp.[18]

         Permissibility of Expert Testimony Absent FRCP 27 Compliance

         All of the complained-of physician declarations contain a similar mixture of possibly impermissible expert testimony[19] and permissible lay testimony as described above. The declarations are only permissible in their entirety, then, if Plaintiff's failure to disclose is substantially justified or harmless under Fed.R.Civ.P. 37.[20] To make this determination, the Court considers “‘(1) the prejudice or surprise to the party against whom the testimony is offered; (2) the ability of the party to cure the prejudice; (3) the extent to which introducing such testimony would disrupt the trial; and (4) the moving party's bad faith or ...


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