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Medical expert not always required to prove employee’s ADA disability

By Ronald Miller, J.D.

Whether medical evidence is necessary to support a disability claim is a determination that must be made on a case-by-case basis.

A federal district court erred when it held that an expert must be used to prove a disability in discrimination cases brought under the ADA and granted summary judgment in favor of an employer because the employee did not have a medical expert witness to prove she suffered from lower back pain that substantially interfered with her ability to lift. The Tenth Circuit disagreed that the ADA always requires an expert. On the other hand, the appeals court affirmed the district court’s denial of the employee’s motions to enlarge the time to designate an expert witness and amend her complaint to add perceived disability and retaliation claims (Tesone v. Empire Marketing Strategies, November 8, 2019, Matheson, S.).

Lifting restriction. As a merchandiser, the employee’s duties including changing retail displays in grocery stores. At the time the employee was hired in 2012, she informed the employer that she had back problems and could not lift more than 15 pounds. In October 2016, she was assigned to complete a display in Gunnison, Colorado. Because she anticipated that the display would require long hours, she prearranged to stay in Gunnison for an additional night. She did not seek the employer’s approval for this extension.

Requests for documentation. Shortly after the trip, the employer met with the employee to discuss the unapproved hotel stay and “general performance issues.” During this meeting, the employee referred to her “lifting limitation.” The employer requested a doctor’s note documenting the limitation. The employee did not immediately provide a note. The employer renewed its request at least four times. Four months after the initial meeting, the employee provided a letter from a doctor. She had not met or consulted with the doctor about her health before obtaining the note. The letter stated that the employee had “certain limitations related to muscle weakness” and “chronic lower back pain,” and recommended a 15-pound lifting restriction.

Termination. Between December 2016 and February 2017, the employer spoke with the employee multiple times about various workplace issues, including “her communication with coworkers.” On February 27, 2017, the employer terminated the employee, citing “consistent violations of company policies.”

Litigation. The employee filed a charge of discrimination with the EEOC, checking only the “disability” box and leaving the “retaliation” box blank. She also provided a statement describing her working environment and discharge, and the lifting restriction. After receiving a right to sue letter, the employee filed this action, asserting three claims: (1) disability discrimination under the ADA, (2) interference with contract and prospective business advantage, and (3) intentional infliction of emotional distress.

The district court issued a scheduling order setting a number of deadlines, including a January 22, 2018, deadline to amend pleadings, and a February 5, 2018, deadline to disclose expert witnesses. Then the district court dismissed the IIED and tortious interference claims, leaving only the ADA claim.

Lack of expert report. On July 20, 2018, the employer moved for summary judgment, arguing in part that the employee could not establish a prima facie case of discrimination because she offered no expert report establishing that her impairment limited a major life activity. During a settlement conference on November 1, 2018, a magistrate judge informed the employee that she could not prevail without an expert witness. That same day, she filed a motion to extend the time to designate an expert witness. Six days later, the employee filed a motion to amend her complaint to add ADA claims for discrimination on the basis of perceived disability and retaliation.

The district court denied the employee’s motions; it also granted the employer’s motion for summary judgment after determining that the employee had not established a prima facie case of discrimination because she “presented no expert medical evidence that any of her major life activities have been substantially limited by her alleged disability.”

Scheduling order deadlines. On appeal, the Tenth Circuit affirmed the district court’s denial of the employee’s motions to enlarge the time to designate an expert witness and amend her complaint to add perceived disability and retaliation claims. As to the scheduling order, the Tenth Circuit observed that she filed her motion on November 1, 2018—nine months after the February 2018 expert disclosure deadline, seven months after indicating her intent to file, and three months after the employer filed a motion for summary judgment.

As to her motion to amend her complaint, the appeals court observed that the employee filed her motion on November 7, 2018—nearly ten months after the January 2018, deadline for amending pleadings. Because the employee had not shown “good cause” under Rule 16(b)(4) to extend the scheduling order or regarding why she should allowed to amend after the scheduling order deadline, the appeals court concluded that the lower court did not abuse its discretion.

Forfeiture. With regard to the district court’s grant of summary judgment, the employee argued that she was not required to establish her disability through expert medical evidence and that her failure to provide an expert witness did not entitle the employer to summary judgment. As an initial matter, the appeals court rejected the employer’s contention that it could not address this issue because the employee raised it for the first time on appeal. Rather, the appeals court noted that the general rule that an appellant has forfeited an issue raised for the first time on appeal does not apply when the district court relied on that issue to rule against the appellant.

Expert not always required. Turning to the merits, the appeals court determined that the district court erred in granting summary judgment based on the employee’s failure to present expert evidence to establish her disability. The lower court focused on the first element of a prima facie case—the statutory definition of “disability.” Expert medical testimony may be used to establish a plaintiff’s disability. But no language in the ADA or implementing regulations states that medical testimony is required, and there is no general rule that medical testimony is always necessary to establish disability. Rather, whether medical evidence is necessary to support a disability claim is a determination that must be made on a case-by-case basis.

Courts generally require expert evidence when “a condition would be unfamiliar to a lay jury and only an expert could diagnose that condition.” By contrast, when a plaintiff alleges an impairment “that a lay jury can fathom without expert guidance,” court generally “do not require medical evidence” to establish an ADA disability.

Thus, the appeals court found that the district court’s grant of summary judgment was legally erroneous because expert medical evidence is not required to establish a disability in all ADA cases, and it remanded the case.