Occupational Therapy Expert Witness Allowed to Opine on the Suitability and Necessity of the Health Center Policy for Firefighters
Posted on September 19, 2024 by Expert Witness Profiler
Jeremy Knorr (“Plaintiff”) worked as a firefighter for the Daisy Mountain Fire District (“the District”) from 1992 until 2019, when he was terminated at least in part due to his inability to comply with a new fitness policy (“the Health Center Policy”), adopted by the Daisy Mountain Fire District Board (“the Fire Board”) in late 2017, that required all District firefighters to take a yearly treadmill test and receive a Metabolic Equivalent Task (“MET”) score—which is a measure of cardiorespiratory and aerobic fitness—of at least 12.
In this action, Plaintiff has sued the District, the Fire Board, and the individual members of the Fire Board (together, “Defendants”) for age discrimination and retaliation in violation of the Age Discrimination in Employment Act (“ADEA”) and for disability discrimination in violation of the Americans with Disabilities Act (“ADA”).
Defendants retained Mark Hyland to “review and analyze the necessity for, and the requirements of, the Health Center Policy at the Daisy Mountain Fire
District and to explain the various tests offered by the District to measure cardiovascular and aerobic fitness ability” while Plaintiff retained Michael Stokes to “calculate and revise the present value of the loss of earnings, income and fringe benefits sustained by Plaintiff.”
Plaintiff moved to exclude the opinions of Hyland while Defendant filed a motion to exclude the opinions of Stokes.
Occupational Therapy Expert Witness
Mark Hyland is a licensed occupational therapist, is “certified in functional capacity evaluation,” has been the director of clinical operations at STI for nearly 30 years, has “performed extensive research and analysis into the health and fitness needs of local business in various industries” including “the Phoenix, Glendale, Goodyear, Prescott and Tempe Fire Departments,” has “consulted on the subject of various government rules, regulations, and laws, including the [ADA] and OOSHA compliance,” and has testified as an expert in multiple occasions since 2001.
Economics Expert Witness
Michael J. Stokes earned a Master’s in Business Administration from the Isenberg School of Management at the University of Massachusetts Amherst with a focus in entrepreneurship. He is a partner at Beta Business, a leading consulting firm throughout the Southwest. Beta Business provides economic analysis reports, research and expert testimony for economic damage claims involving personal injury, wrongful death, employment (loss of earning capacity) and more.
Discussion by the Court
Mark Hyland
Hyland opined that the “the District has a legitimate interest and duty to determine and ensure its employees can perform their duties safely.”
Plaintiff moves to preclude Hyland from testifying on the grounds that “1) Hyland is not medically qualified to testify regarding several areas and 2) the few areas he may have experience with do not require expert testimony.”
Hyland is not medically qualified to testify regarding several areas
Plaintiff’s primary objection to Hyland’s remaining opinions is that Hyland is unqualified to render them because they call for medical expertise but Hyland is not a doctor and did not play a direct role in administering the treadmill tests at STI. Although this challenge is not frivolous, the Ninth Circuit has emphasized that Rule 702 “is broadly phrased and intended to embrace more than a narrow definition of qualified expert.”
The Court is satisfied that this background, training, and experience as the director of clinical operations provides the necessary “minimal foundation” for Hyland to be qualified to opine on the the suitability and necessity of the Health Center Policy for firefighters; whether Plaintiff’s inability to comply with the Health Center Policy precluded Plaintiff from performing the functions of his job; the differences between the treadmill test, the walking test, and the bike test; and how Plaintiff would have fared on the latter two tests.
Nor is there any merit to Plaintiff’s contention that Hyland’s opinions on these topics should be excluded because they are contradicted by other evidence. As the Ninth Circuit has repeatedly emphasized, “[s]haky but admissible evidence is to be attacked by cross examination, contrary evidence, and attention to the burden of proof, not exclusion.”
The few areas Hyland may have experience with do not require expert testimony
As an initial matter, Plaintiff argues in his motion that several of Hyland’s proffered opinions should be excluded as irrelevant and unfairly prejudicial because they relate to obvious, undisputed issues that do not require expertise.
However, Defendants make no effort to respond to these arguments in their response. Instead, they contend— incorrectly—that “the only opinions [Plaintiff] challenges are Hyland’s opinions regarding the fitness tests provided to the District’s employees, the suitability and availability of other tests, and [Plaintiff’s] overall health and fitness levels” and then proceed to offer a defense of those opinions. It follows that Defendants have forfeited any defense of the subset of Hyland’s opinions challenged on relevance/403 grounds and have thus not met their burden of establishing the admissibility of those opinions.
Accordingly, the Court excluded Hyland’s first (“Firefighters require a high standard of physical fitness for safe and efficient job performance for their essential job demands.”), second (“The District had a legitimate interest and duty to determine and ensure its employees can perform their duties safely and that its employees are not a danger to themselves, their coworkers, and members of the public”), and fifth (“Cardiovascular standards are necessary for firefighters to adequately perform their job and for the health and safety of the firefighters, their coworkers, and the public.”) opinions.
Hyland’s opinions are not based on methods and procedures of science, but rather on subjective belief or unsupported speculation
Plaintiff’s motion also raises a fleeting challenge to the reliability of Hyland’s opinions but Hyland explains in his report that the Health Center Policy “was developed and based upon National Fire Protection Association (‘NFPA’) 1500 & 1582,” which “standards include, among other factors, spirometry pulmonary function screening and sub-maximal ECG performance tests”; that Hyland has also reviewed “[r]esearch with firefighters [that] indicates that a minimum aerobic capacity of 12.0 METS . . . is necessary for safe fire ground operations.” The Court held that Hyland has adequately explained how his opinions are “grounded in an accepted body of learning or experience in the expert’s field” and has also adequately “explain[ed] how the conclusion is so grounded.”
Hyland’s opinions are not subject to exclusion based on late disclosure
As background, under the scheduling order in this case, expert opinions were subject to a staggered disclosure schedule—the “party with the burden of proof on an issue” was required to provide expert disclosures by a certain date and the “responding party (not having the burden of proof on the issue)” was required to provide expert disclosures about a month later. Both sides were subject to the same deadline for completing expert depositions, which was about a month after the responding party’s disclosure deadline.
Plaintiff’s hyper-technical argument, raised for the first time in his reply, is that because Defendants have now clarified that Hyland’s opinions are intended to support Defendants’ affirmative defenses (as opposed to being used to undermine Plaintiff’s claims), they should have been disclosed by the first expert disclosure deadline in the scheduling order rather than the second, slightly later one. But even assuming this is correct, the Court held that the fact that Hyland’s opinions were disclosed about one month late would not automatically compel their exclusion.
As per Rule 37, any late disclosure was harmless because Plaintiff still received Hyland’s report more than a month before the expert-deposition deadline and was, in fact, able to depose him by that deadline.
Michael Stokes
Stokes calculated the present value of the loss of earnings, income and fringe
benefits sustained by Plaintiff as $749,041. When doing so, Stokes assumed that but for Plaintiff’s termination, Plaintiff would have worked for an additional 13.5 years as a firefighter. Stokes also used Plaintiff’s past earnings as a firefighter as the foundation for his assumptions about what Plaintiff would have earned during this 13.5-year period.
Defendants argued that Stokes’ opinions should be excluded because they are based on the false assumption that Plaintiff would have worked for another 13.5 years as a firefighter but-for his termination. According to Defendants, this assumption is false because Plaintiff successfully applied for disability benefits in 2020, with a disability onset date of February 20, 2019. Defendants conclude: “Stokes’ did not know [Plaintiff] is disabled. This fundamental error permeated throughout Stokes’ entire analysis, including wrongfully relying upon a ‘normal work life expectancy’ rather than a disability work expectancy, and wrongfully assuming no disability exists in his calculation of [Plaintiff’s] claimed economic damages.”
Stokes’ opinion is based upon incorrect and incomplete facts
Stokes assumed, for purposes of his calculations, that Plaintiff would have worked for another 13.5 years as a firefighter (until the age of 64.6) and also used Plaintiff’s past earnings as a firefighter as the foundation for his assumptions about what Plaintiff would have earned during this 13.5-year period. If it were undisputed that Plaintiff became permanently disabled as of 2019, such that Plaintiff was thereafter unable to hold any paying job, there is a strong argument that Stokes’ assumptions would simply be too untethered to reality to permit the admission of his opinions.
However, Plaintiff retained the ability to continue working and earning wages and will continue to work until the age of 64.6, just as Stokes assumed. Furthermore, although the disability finding may eliminate the possibility that Plaintiff could have held one particular job—his previous job as a firefighter—following his termination, this at most means that Stokes’ assumptions about the amount of wages Plaintiff would have earned from his 13.5 years of posttermination work are incorrect. The Court held that the possibility that Stokes’ calculated damages figure may need to be reduced, because it is based on an inaccurate assumption, is not a reason to categorically exclude Stokes from testifying.
Held
- The Court granted in part and denied in part the Plaintiff’s motion to exclude Mark Hyland.
- The Court denied the Defendants’ motion to exclude Michael Stokes.
Key Takeaway:
Despite Hyland’s lack of medical expertise, the real reason the Court limited his opinions was that the Defendants forfeited any defense of the subset of Hyland’s opinions challenged on relevance/403 grounds, and therefore, they did not meet their burden of establishing the admissibility of those opinions.
Stokes did not know that the Plaintiff is disabled but his testimony was admitted despite this fundamental error.
Case Details:
| Case Caption: | Knorr V. Daisy Mountain Fire District Et Al |
| Docket Number: | 2:22cv608 |
| Court: | United States District Court for the District of Arizona |
| Order Date: | September 18, 2024 |
