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In dispute over revised fitness-for-duty program, railroad must provide info on its new color vision test

By Kathleen Kapusta, J.D.

The employees in this ADA/GINA class action claimed that over 7,000 workers were subjected to a FFD evaluation and, as a result, at least 3,145 were designated as not cleared to return or were issued work restrictions.

In a putative class action suit by six former Union Pacific employees asserting claims under the ADA and GINA based on the railroad’s Fitness-for-Duty (FFD) program, a federal court in Nebraska, overruling a magistrate judge, found the railroad was not entitled to a protective order and required it to answer interrogatories regarding its new color vision field test. Under the FFD program, Union Pacific allegedly required employees in certain positions to disclose specific health conditions, pulled those who disclosed these conditions from their jobs, and then required them to have FFD evaluations. Addressing several motions in limine, the court also denied the railroad’s motion to exclude portions of the employees’ expert’s opinion and ruled that the railroad’s doctor could testify despite opinions that were not clearly expressed or easily identified (Harris v. Union Pacific Railroad Co., February 1, 2019, Bataillon, J.).

Changes made in 2014 by Union Pacific to its FFD program required employees in certain positions to disclose certain conditions to the railroad and then obtain an FFD examination. Further, employees were required to stay off work until the evaluation was conducted and they were deemed fit for work; to notify their supervisors that they had a reportable health event and could not work; and to notify health and medical services that they had to complete an FFD. FFDs were also required for some employees who transferred jobs.

Routinely found not fit. The FFD records, the employees claimed, were sent to the railroad’s doctor, who ignored the medical opinions of outside doctors and routinely found employees not fit for duty and that their medications kept them from returning to their jobs. They alleged they were disqualified from employment with Union Pacific despite, in most cases, their treating physicians having cleared them for work.

Protective order. After Union Pacific moved for a protective order shielding it from answering two interrogatories and all future inquiries about its color vision testing, a magistrate judge granted its motion. The test, developed in-house and known as a “Light Cannon” test, replaced the railroad’s prior test based on train signals in the field. The doctor responsible for making FFD determinations relating to color vision testified that “the majority fail” the new test. He also testified that employees who failed the test suffered adverse employment actions.

Relevant. Objecting to the magistrate’s ruling, the employees’ expert pointed out that “[t]here is no rigorous scientific study published in a peer-reviewed scientific or medical publication that demonstrates the CV Light Cannon is valid, reliable and a comparable test for visual capacity” as required by the Federal Railroad Administration (FRA). Finding the railroad was not entitled to the protective order, the court explained that at this point in the lawsuit—the discovery phase—Union Pacific had to answer the interrogatories and disclose the requested information: The employees were requesting the total number of railroad employees subjected to the light cannon test from 2010 to the present and the number of those employees who failed that test, as well as the number of employees subjected to a color vision field test other than the light cannon test during the same time period and the number of employees who failed that test. Union Pacific failed to show good cause or hardship and its argument that this was without relevance was incorrect, said the court, finding that the employees’ allegations clearly encompassed vision testing as it was included in the FFD program.

Employees’ expert. Union Pacific also moved to exclude portions of the employees’ expert’s opinion, arguing he went beyond the specifics of the 12 individuals he reviewed in his expert report. The employees countered that he was a board-certified occupational medicine doctor who was regularly involved with FFD determinations and he reviewed the railroad’s documentation. Further, they argued, the data confirmed that over 7,000 Union Pacific employees had been subjected to an FFD evaluation due to a “reportable health event” from September 2014 to the present and that at least 3,145 were designated as not cleared to work or were issued work restrictions as a result of the FFD determinations. Finding no basis to exclude the testimony, the court noted that he was a qualified expert, he was not offering a statistical opinion, he was testifying in his area of expertise, and his testimony was relevant.

Expert report of railroad’s doctor. For their part, the employees moved to strike the expert report of the railroad’s doctor, arguing that it was only two pages with 2,900 pages of exhibits and contained no statement of his opinions. The doctor’s opinions, said the court, were not expressed as clearly as possible nor were they easily identifiable. However, given the amount of discovery that had already occurred, the court found that while he could testify, if he tried to testify on matters not contained in his expert report, the employees could object and the court would take up the matter at that time.

Other expert witnesses. And while the railroad argued that an expert witness for the employees was not qualified to opine on railroad industry standards because he was a safety consultant with the trucking industry, the court observed that the railroad agreed it adopted and then modified some of the Federal Motor Carrier Safety Administration (FMCSA) standards, at least to some extent. As a result, the witness’s testimony was relevant and he was qualified to give limited opinions regarding those standards. Accordingly, the court permitted the employees to lay foundation showing that Union Pacific adopted these standards in part. If they are able to do so, then his testimony, at least in part, becomes relevant.

As to the railroad’s motion to exclude the expert report of a witness whose opinions revolved around railroad employers that use disability programs to rid employees from their payrolls, the court was concerned that the testimony was not specific to Union Pacific. The employees argued that he worked his entire career for the Railroad Retirement Board (RRB) and that his opinions would relate to why Union Pacific revised its FFD policies. They asserted that they would present evidence showing this was done to exclude individuals with disabilities and would show that the workplace shrunk by about 10 percent from 2014 to 2016 after the FFD program was implemented and incentives were built into the RRB system.

Here, the court allowed the witness to testify as to the RRB occupational disability annuity process as set forth in his report. The RRB could testify as to any defenses of mitigation or damages or estoppel. The witness could not, however, testify regarding his general knowledge absent some connection to Union Pacific’s practices.