This case arises from a trip and fall Plaintiff, Vivian Conerly, experienced on June 27, 2022 in the Hobby Lobby store in Hattiesburg, Mississippi. As she entered the store’s vestibule and rounded a display table, her shin struck a metal cart, and she fell face first onto the store’s concrete floor.
Plaintiffs designated Dr. Jaime Jiménez as an expert. Jiménez is expected to testify that Conerly’s fall at Hobby Lobby caused the tributary branch retinal vein occlusion (“BRVO”) in her left eye and that she will require retinal injections as future treatment for this condition.
However, Hobby Lobby sought to exclude his causation opinion on the grounds that it is unreliable because his opinion is based on facts he did not ask, examine, or otherwise determine from his treatment of Conerly.
Ophthalmology Expert Witness
Dr. Jaime Jiménez-Agosto is a board-certified ophthalmic surgeon. He is also fellowship-trained in vitreoretinal surgery. He has performed over fifteen thousand vitrectomies and more than fifty thousand retinal procedures.
Hobby Lobby asserted that Jiménez’s opinion is unreliable because Jiménez admitted that he does not know whether Conerly performed a Valsalva maneuver and instead relies on the assumption that she did because he personally holds his breath when he falls.
Having reviewed the record evidence, the Court found that Jiménez’s opinion that the fall caused Conerly’s tributary BRVO is not based on assumptions or ipse dixit. Instead, Jiménez reviewed Conerly’s history; he reviewed her deposition and noted that after the fall she immediately complained of pain in her eye and exhibited symptoms consistent with a tributary BRVO; he personally examined her and ran tests that showed the retinal swelling had gotten worse; and, most importantly, he watched the video that showed her falling rapidly and hitting the ground with the left side of her face, which arguably could be better evidence than Conerly’s own recollection. These are the types of records, documents and materials commonly relied on by medical experts.
Hobby Lobby is asking the Court to assign significance to Jiménez’s “lack of factual knowledge” based on unestablished supposition of what is required for a tributary BRVO to occur. The record is not clear—could hitting one’s eye with significant force be enough? Would only compressing the abdominal area be enough? Without knowing exactly what is required, it is further unclear whether Conerly performing a “Valsalva maneuver” is even necessary. Similarly, as for Jiménez’s not knowing what delta-v force occurred presupposes that there must be a specific delta-v force experienced before a tributary BRVO can occur. Given the state of the record, the Court found that these are issues to be addressed on cross-examination.
B. Future Treatment Opinion
Moreover, Hobby Lobby sought to exclude any opinion regarding future treatment on the grounds that it is too speculative.
Jiménez is one of Conerly’s treating physicians. He has testified about the healing process of a tributary BRVO—that it must be monitored and that treatment for swelling is provided when needed. With BRVO treatment, “you stretch it out as much as you can, but it’s very frequent to have relapses.”
He treated Conerly on a regular basis throughout 2025. Basically, his ongoing evaluations provided him with additional clinical observations and data to refine his opinions.
Therefore, the Court found that Jiménez’s opinion as a treating physician regarding future medical treatment was admissible.
Held
The Court denied Defendant’s motion to exclude or limit the testimony of Dr. Jaime Jiménez.
Key Takeaway
An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. As a general rule, questions relating to the bases and sources of an expert’s opinion affect the weight to be assigned to that opinion rather than its admissibility and should be left for the jury’s consideration.
Case Details:
Case Caption:
Conerly V. Hobby Lobby Stores, Inc.
Docket Number:
2:24cv118
Court Name:
United States District Court, Mississippi Southern
Plaintiff Raymond Dean Brown, a federal inmate confined at the Federal Correctional Center in Terre Haute, Indiana (“FCC Terre Haute”), brought this action against the Defendants, Dr. Elizabeth Trueblood, Dr. William E. Wilson, and Dr. David Lukens, alleging that they were deliberately indifferent to his serious medical conditions in violation of his Eighth Amendment rights.
Brown’s expert witness, Charles Howard, testified that Brown’s February 15, 2019, optometrist visit that indicated he had potentially suffered a stroke “should have immediately resulted in a hospital trip because these complaints had already occurred several times. Brown clearly was experiencing clots thrown from his atrial fibrillation.”
According to Brown, other practitioners viewed Wilson’s actions as falling far short of the standard of care.
Defendants argued that Howard’s opinions are unreliable because (1) Howard cannot provide legal conclusions or opinions on causation; (2) Howard is not qualified in cardiology, pulmonology, or neurology, and he therefore cannot testify as to these specialists’ determinations for Brown’s care; and (3) Howard provides no reliable scientific methodology for his opinions.
Ophthalmology Expert Witness
Charles Howard, MD, MMM, is retired from the Federal Bureau of Prisons (BOP), having served twenty (20) years as a Medical Officer. He joined the US Department of Justice Federal Bureau of Prisons as a Medical Officer and National Ophthalmology Consultant in 2002 at the Federal Medical Center in Devens, Massachusetts.
Moreover, Howard earned a Master of Medical Management degree (MMM) from the HJ Heinz School of Public Management at Carnegie Mellon University in Pittsburgh. He is a Board-Certified Fellow of the American Board of Quality Assurance and Utilization Review Physicians (FABQAURP) and a Fellow of the American Institute of Health Care Quality Management (FAIHCQM).
In this case, Howard is a trained ophthalmologist and served as a Medical Director for the BOP, the same role Wilson held when supervising the care of inmates with complex medical conditions like Brown. He need not be a specialist in cardiology or neurology to review the care Brown holistically received just as Wilson would have done.
Specifically, the Court found that Howard is sufficiently qualified to give opinions regarding Brown’s holistic care under Wilson as a Clinical Director and ophthalmological care involving Lukens.
Moreover, Howard’s medical opinions are not based on ‘junk science,’ but more than twenty years of medical experience. Although the Defendants contended that Howard did not have a firm foundation for basing his opinions regarding the appropriate standard of care, the Seventh Circuit has found that a doctor can rely on medical history, including a review of medical records.
Defendants filed a separate motion to exclude Howard’s opinions at trial, which the Court denied as moot. The Court considered Howard’s testimony and evidence in connection with Defendants’ summary judgment motions. Ultimately, the Court granted those motions, and final judgment was entered in favor of the Defendants.
Held
The Court denied the Defendants’ partial motion to strike the testimony Charles Howard.
Key Takeaway:
Brown has therefore established by a preponderance of evidence that Howard meets the prerequisites of admissibility to offer a reliable opinion on the standards of care within his report and testimony.
And due to his specific knowledge of the circumstances and experience in the field, Howard’s testimony and report will assist the Court in understanding the evidence and determining the facts at issue in this case.
David Badagliacco, a Skokie, Illinois police officer, sued Safariland, LLC, alleging his exposure to pepper spray during their training course was the reason he suffered from an eye infection necessitating cornea replacement surgery. Badagliacco contended that the negligent, willful and wanton operation of the training course caused his injuries.
Plaintiff David Badagliacco retained expert witness Patrick Schuerman, an inspector for the Illinois Occupational Safety and Health Administration to testify regarding the standard of care for provision of a decontamination station when training for use of a substance like pepper spray.
Badagliacco’s treating physician, Ali Djalilian, an ophthalmologist and corneal specialist, offered an opinion about whether pepper spray can cause the injury Badagliacco suffered.
Safariland argued that there is insufficient evidence for a reasonable jury to find that any breach of Safariland’s duty with respect to provision of a decontamination station caused Badagliacco’s injuries. Specifically, Safariland argued that neither: (1) the OSHA inspector, Patrick Schuerman; nor (2) Badagliacco’s treating physician, Ali Djalilian, are qualified to offer an opinion regarding the causation of the injuries to Badagliacco’s eyes.
Occupational Safety and Health Administration Expert Witness
Patrick Schuerman is a member of Midwest Safety Consultants LLC. He has expertise in workplace safety, accident investigations, and State and Federal Standards as it relates to Occupational Health and Safety. He has had 30 years of Safety and Risk Management Experience. In addition, he has been an instructor at Illinois Valley Community College, teaching industrial safety since 2012.
Ali R. Djalilian is a recognized authority on immunologic issues in corneal/limbal stem cell transplantation and the surgical management of severe ocular surface disease. He has developed innovations in surgical techniques that substantially improve the surgical efficiency and the patient outcomes. Djalilian bridges his clinical experience with his basic science and translational research projects, which have been funded in part by the National Eye Institute/NIH and Research to Prevent Blindness. He joined the department in 2005. He is board certified in ophthalmology.
The Court agreed that Schuerman lacked the necessary expertise to testify about the cause of an eye injury. However, Schuerman’s testimony is intended to address the standard of care for provision of a decontamination station, not causation of Badagliacco’s eye injury. The Court does not understand Badagliacco to be offering Schuerman’s testimony to prove causation. Safariland had not challenged his qualification on the standard of care issue, and the Court found him qualified for that limited purpose. The causation of Badagliacco’s eye injury, however, implicates the physiology of the human eye, and Badagliacco has not argued that Schuerman has any expertise in that subject area, so the Court barred him from testifying about it.
Djalilian has treated Badagliacco’s eye injuries, and therefore was qualified to offer an opinion about whether pepper spray can cause the injury Badagliacco suffered.
The Court rejected Safariland’s argument that Djalilian was not qualified to opine on whether the “pepper spray could injure the eye such that an infection could develop” because he is not a toxicologist or epidemiologist. Toxicologists or epidemiologists are generally not experts in the physiology of the eye.
The Court held that this argument concerned the weight of Djalilian’s testimony, not its admissibility.
Held
While there is nothing about Patrick Schuerman’s expertise that would qualify him to offer an opinion about the cause of an eye injury, the Court found him qualified to testify about the standard of care for provision of a decontamination station.
As for Ali Djalilian, the Court held that he is an expert in the functioning of the human eye, and thus qualified to offer an opinion about whether pepper spray can cause the injury Badagliacco suffered.
Key Takeaway:
A treating physician’s opinion about causation is admissible without disclosure as opinion evidence pursuant to Federal Rule of Civil Procedure 26(a)(2), as long as the physician made the determination about the cause of the injury “in the course of providing treatment.”
Djalilian testified that in the course of his treatment of Badagliacco’s injuries he determined that they were caused by the pepper spray.
Case Details:
Case Caption:
Badagliacco v. Safariland, LLC
Docket Number:
1:21cv2424
Court Name:
United States District Court for the Northern District of Illinois, Eastern Division
Plaintiff Mark Walker (“Walker”) worked as a locomotive engineer for Defendant Union Pacific Railroad Company (“Union Pacific”) from approximately 2005 through 2019. After the Court dismissed Walker’s claim under the Americans with Disabilities Act (“ADA”) alleging failure to accommodate, Walker’s remaining claims allege disparate treatment and disparate impact in violation of the ADA. Walker contends that Union Pacific “regarded” Walker as disabled by having a color vision deficiency.
Plaintiff alleged that Union Pacific violated the ADA by requiring Walker to take a secondary color vision field test (“CVFT”), Union Pacific’s proprietary “Light Cannon” test, even though Walker had just passed a scientific color vision test, the “Ishihara” test. Walker also alleged that Union Pacific violated the ADA because the specific version of Union Pacific’s proprietary Light Cannon test that was administered to Walker in July 2019 did not effectively assess an employee’s ability to read and interpret railroad signals because that test screens out qualified individuals who do not, in fact, have color vision deficiencies but whom the test, and thus Union Pacific, wrongfully “regards” as being color vision deficient.
Walker was hired by Union Pacific in 2003, and he passed the Ishihara at that time. He was certified as an engineer in 2005 and he again passed the Ishihara. In 2007 he passed the Ishihara again as part of his recertification as an engineer. In 2010, Walker failed the Ishihara test after incorrectly identifying two plates. Walker was recertified as an engineer, however, after he passed Union Pacific’s then-current wayside signal CVFT. In 2013, Walker again failed the Ishihara by incorrectly identifying two plates. Again, Walker was recertified after passing Union Pacific’s wayside signal CVFT. Walker passed the Ishihara on June 20, 2016. He again passed the Ishihara on June 21, 2019.
Challenges to Expert Testimony
Walker moved to exclude or limit the testimony of Union Pacific’s expert witnesses Steven Fender and Jeff Rabin, O.D., Ph.D. He argued that Fender is not qualified to provide expert testimony on any subject relevant to this case and that Fender’s testimony is irrelevant and unreliable. Walker contended that because he passed the Ishihara test, is a qualified employee as a matter of law, and the Light Cannon is only a qualification standard, Fender’s testimony about regulatory standards is irrelevant. He also argued that Fender is unqualified to render any opinion outside of regulatory standards, such as the efficacy of the Light Cannon test, and his opinions about the efficacy of the Light Cannon test are unreliable and unhelpful to the jury.
Walker also moved to limit Rabin’s testimony to what is contained in his non-reporting witness disclosure under Rule 26(a)(2)(C) of the Federal Rules of Civil Procedure.
Union Pacific moved to exclude the testimony of Walker’s expert witness Jay Neitz, Ph.D. as misleading, confusing, unreliable, and unhelpful to the jury. Union Pacific argued that Neitz’s testimony is misleading because he misinterprets federal regulations by construing the Light Cannon test as a “scientific” test instead of a “field” test.
Railroad Expert Witness
Steven Fender is a Railroad Transportation and Safety Consultant who has worked in the industry for 45 years. He worked for 31 years at the FRA. He is highly qualified in the fields of railroad operations, safety, and regulations.
Jeff C. Rabin is a tenured Professor of Optometry and Assistant Dean for Research, Assessment and Graduate Studies at the University of the Incarnate Word Rosenberg School of Optometry, where he teaches courses in vision science, optics and binocular vision. Rabin received his Bachelor of Science in Physiological Psychology with highest honors from the University of California at Santa Barbara, and Doctor of Optometry, Masters of Science and Doctor of Philosophy Degrees in Physiological Optics from the University of California at Berkeley.
Jay Neitz is the E.K. Bishop Endowed professor in Ophthalmology at the University of Washington in Seattle. He has been a research scientist and an educator for 30+ years. He is an expert in all aspects of disorders of the eye and their effect on visual performance.
Under the regulations of the Federal Railroad Administration (“FRA”), railroad companies must test railroad engineers at least every three years for, among other things, color vision acuity. The initial test must be one of a set of scientific tests approved by the FRA, including, as relevant here, the Ishihara 14-plate test (“Ishihara”). If an engineer fails the initial, or primary, test, the examinee may undergo a secondary test, which may consist of an [“o]phthalmologic referral, field testing, or other practical color testing.”
A.Development of Union Pacific’s Light Cannon Test
Union Pacific began developing the Light Cannon test in 2015. In October 2015, Dr. Jeff Rabin and Dr. Douglas J. Ivan, M.D., reviewed the Light Cannon test and testing protocol. The 2015 device contained four eight-inch LED lights, in two rows of two, that flashed four colors—red, yellow, green, and white—for five seconds each, and required each color light to be manually turned on and off. The examinee was located one-quarter mile away from the device, with a nurse taking down responses and Union Pacific staff at either end managing the test.
Rabin and Ivan issued their “draft” final report on January 25, 2016. This report identified that the Light Cannon test had “a number of critical short comings in its current design and within the proposed test administrative procedures.”
Union Pacific nevertheless implemented the Light Cannon test on April 1, 2016, with only the few modifications previously described and no further validation studies having been performed. Rabin was hired in approximately mid-2018 to conduct further studies to evaluate the efficacy of the Light Cannon. Rabin testified at deposition, and confirmed at the hearing, that based on the new testing protocols and other changes made to the Light Cannon test after his 2016 report, he believes the 2020 version of Light Cannon test is a valid field test. He noted, however, that for people with color deficiencies, he believes the change in testing protocols did not make a statistically significant difference.
B. Plaintiff Walker
On July 3, 2019, Union Pacific’s Associate Medical Director, Dr. Donald Richard Lewis, stated that Walker had met the FRA’s vision requirements and was approved for recertification. Nonetheless, two days later, Walker’s file was flagged as “not approved” for safety sensitive work. Dr. John Holland, M.D., Union Pacific’s former Chief Medical Office had intervened to require Walker to undergo secondary testing with Union Pacific’s Light Cannon test, based on Walker’s previous Ishihara failures in 2010 and 2013. On July 8, 2019, Walker took and failed Union Pacific’s Light Cannon test. Based on this failure, Union Pacific determined that Walker could not work in a position requiring accurate color signal recognition, and thus he could not work in his current position.
In April 2016, after Union Pacific implemented the Light Cannon test, Walker was an employee who had “failed the primary color vision field testing on [his] last medical certification exam” (his 2013 Ishihara test), but Union Pacific did not retest him using the Light Cannon test despite the recommendation of the NTSB. Indeed, when Walker passed the Ishihara in June 2016, Union Pacific still did not make Walker take the Light Cannon secondary field test. Not until Walker failed the Ishihara in June 2019 did Union Pacific require him to take the Light Cannon secondary CVFT.
i. Walker’s Motion Challenging Fender
Fender’s opinion that the Light Cannon test is in compliance with the rules and regulations of the FRA is irrelevant
Walker argued that Fender’s opinion that the Light Cannon test “complied” with the FRA regulations is irrelevant. He also contended that with this opinion out as irrelevant, Fender is not qualified to opine about his remaining opinions, particularly about the “efficacy” of the Light Cannon test. Walker also asserted that Fender’s opinions other than those related to the FRA regulatory framework (which are irrelevant) are unreliable and not helpful to a jury.
Walker contended that Fender’s opinion that the Light Cannon test is in compliance with the rules and regulations of the FRA is irrelevant to this case because the Court ruled at summary judgment that Union Pacific did not have to subject Walker to the Light Cannon test under FRA regulations, and may even have been precluded from doing so under the regulations.
The Court can instruct the jury as to the legal requirements of the FRA, to the extent they are relevant. Further, whether the Light Cannon is “compliant” with the FRA, to the extent that may be relevant, is a legal conclusion and not a proper topic for expert testimony. Therefore, to the extent Fender’s testimony is intended to explain FRA rules and regulations regarding color vision acuity testing to the jury or opine that the Light Cannon was compliant with FRA rules and regulations, such testimony is improper.
The Court held that Fender may not opine about how Walker’s case compares to cases presented to the Locomotive Engineer Review Board or the Operating Crew Review Board, or that the Light Cannon test is in compliance with FRA rules and regulations per the decisions of those review boards. Such a discussion is of minimal relevance and is unduly prejudicial and potentially confusing to the jury.
Fender is qualified to opine as to whether the Light Cannon test was “valid” as that term is used in the Best Practices
Walker argued that Fender is unqualified to render an opinion regarding the efficacy of the Light Cannon test, and that the opinion is unreliable and unhelpful. Fender spent decades working in railroad operations and safety. He explained at the hearing that he had frequent exposure to railroad signals. He also saw the Light Cannon test in operation. The Court held that Fender is qualified to opine as to whether the Light Cannon test was “valid” as that term is used in the Best Practices—meaning that the test reasonably matched real world operating or working conditions.
Fender opined generally in his report that the Light Cannon test is “employee friendly” because it shows all four lights to orient the examinee and is “a practical, well-developed, and implemented test which replicates real world conditions.” During Walker’s 2019 test, he was not given the 2016 protocol (or the 2019 protocol as it is identified in Rabin’s testing); nor was he given the modified 2020 protocol. Nonetheless, the experts’ opinions about the efficacy of the Light Cannon test after the 2020 changes were implemented provide some probative value to the test taken by Walker, which involved a hybrid protocol between the 2016 and 2020 testing protocols.
The Court found that Fender’s opinion about the efficacy of the 2020 Light Cannon test, even though he repeatedly emphasized the importance of all four colors first being shown to the examinee, is somewhat helpful to the jury. It also is reliable because Fender has decades of related experience in the industry and personal experience viewing the Light Cannon test.
The remaining aspects of Fender’s opinion also are reliable and potentially helpful to the jury based on Fender’s experience and the issues in this case regarding railroad safety and the need for color vision acuity
The Court held that Fender may testify to Union Pacific’s general rail business and rail infrastructure, its importance in the supply chain, and its importance to national security and the military. He also may testify generally to the complexity and business of the rail lines and Union Pacific’s rail lines, in particular. Fender further generally may describe safety concerns, signaling systems, and the importance of color vision acuity to signaling systems and safe rail operations.
Walker’s Motion Challenging Rabin
Rabin is a limited expert witness disclosed under Rule 26(a)(2)(C) of the Federal Rules of Civil Procedure. Accordingly, he did not provide (and was not required to provide) an expert report. As an initial matter, the Court holds that, as with Fender, Rabin may not testify that the Light Cannon test complies with or is valid under the FRA’s rules and regulations.
Walker sought to ensure that Union Pacific does not attempt to have Rabin testify regarding anything specific to Walker—his color vision acuity, the application of the Light Cannon test with respect to Walker, or his ability to perform his job safely. The Court agreed that these issues are outside the scope of Rabin’s disclosed testimony.
The Court concluded, however, that Union Pacific has sufficiently disclosed its intention to elicit testimony from Rabin regarding his 2019-20 study of the Light Cannon test.
Counsel for Union Pacific also argued that there should be no temporal distinction between Rabin’s testimony regarding the 2016 and 2020 Light Cannon tests because Rabin noted that both versions of the test nearly equally captured persons with color vision deficiencies. This case, however, is about an employee who alleges that he does not have any color vision deficiency but instead was regarded as having such a deficiency because of his earlier failures of the Ishihara test.
Although Rabin’s opinion regarding the effectiveness of the Light Cannon is based on the modified 2020 test and testing protocols, like Fender’s opinion it still has some probative value and is thus somewhat helpful to the jury. This is because Walker did not receive the 2016 testing protocol. Thus, the Court held that Rabin may testify as to the efficacy of the 2020 Light Cannon and whether it accurately mimics actual operating or working conditions in the field.
Union Pacific’s Motion Challenging Neitz
Neitz mistakenly opined that the Light Cannon test must be validated as a scientific test instead of a field test
Union Pacific first argued that Neitz mistakenly opined that the Light Cannon test must be validated as a scientific test instead of a field test. They designed the Light Cannon as a field test, not a scientific test. It is intended to match newer LED signals. Regardless of the dispute about the validity of the Light Cannon test, the Court agreed that it is a field test and not a scientific test. Walker argued, however, that because the Light Cannon does not use any actual equipment from the field, it cannot be a field test.
That, however, goes to the “validity” of the field test, not to whether it is a field test. The Court will preclude, as irrelevant and misleading, Neitz from testifying that the Light Cannon test was required to undergo rigorous scientific study or peer review or must meet the standards of a scientific test to be a valid secondary field test.
Union Pacific also challenged the helpfulness of Neitz’s opinion because he does not provide a test that would suffice under the regulations. Neitz, however, discussed the advantages and disadvantages of several available tests. The Court held that this challenge goes to the weight of his opinion, not its admissibility.
Neitz’s opinion is unreliable because it relies on Rabin’s 2019-20 testing regarding the Light Cannon test
Finally, Union Pacific argued that Neitz’s opinion is unreliable because it relied on Rabin’s 2019-20 testing regarding the Light Cannon test without considering Rabin’s later deposition testimony regarding the validity of the Light Cannon test after the 2020 changes had been implemented and because Neitz has never seen the Light Cannon test.
The Court held that Neitz may focus on the pre-2020 test, which is more similar to the test given to Walker than the 2020 test, and Union Pacific can challenge through cross examination why Neitz did not further consider Rabin’s evaluation of the Light Cannon post-changes, and whether Neitz is moved by Rabin’s change of heart after the 2020 changes to the Light Cannon were implemented.
The Court held that Neitz is highly qualified regarding color vision acuity examinations, has reviewed Walker’s examinations and medical records, has reviewed the 2019-20 test data about the Light Cannon, understands color vision acuity testing in general, and offers a variety of opinions that are helpful to the jury on these topics. His opinions specific to the Light Cannon test do not necessarily require that he have seen the device, because he differentiates the pre- and post- 2020 protocols and relies on the underlying data from Rabin’s testing.
In other words, Neitz is not improperly “parroting” the opinion of another expert, but has independently reached his own opinions, relying on the facts and data gathered by another testifying expert.
Most of Neitz’s unchallenged testimony is unrelated to whether the Light Cannon test must undergo vigorous scientific testing
Finally, Union Pacific does not specifically challenge most of Neitz’s proposed testimony, other than generally to assert that because it is “based on” his misunderstanding that the Light Cannon test is not a field test, it must be excluded. The Court disagrees. Most of this unchallenged testimony is unrelated to whether the Light Cannon test must undergo vigorous scientific testing.
This includes:
(a) color vision acuity in general
(b) persons may not pass the primary color vision FRA test but still may safely work as a locomotive engineer or conductor because they have sufficiently color vision acuity to safely perform their duties
(c) how the majority of anomalous trichromats who fail the Ishihara can recognize and distinguish between railroad signals and the need for a valid test to separate out those who cannot
(d) Rabin’s 2019-20 study demonstrated that the Light Cannon test cannot screen anomalous trichromats who are perfectly capable of reading colored signals from those who cannot
(e) Rabin’s 2019-20 study showed that the Light Cannon was not a test that was reliable or valid (e.g., reasonably matched actual operating or working conditions), and reinforced he and Ivan’s 2016 report reaching the same conclusion
(f) a discussion of Walker’s past test results, including improper grading
(g) a discussion of Walker’s medical history and how it related to his color vision acuity
(h) a description of how Walker had consistently passed the color vision tests sufficient to show adequate color acuity.
The Court finds that all of this testimony is reliable and would be helpful to the jury.
Held
The Court granted in part and denied in part Plaintiff’s motion to exclude the testimony of Steven Fender and Jeff Rabin, and Defendant’s Daubert motion to exclude the testimony of Jay Neitz.
Key Takeaway:
Fender’s opinion about the efficacy of the 2020 Light Cannon test, even though he repeatedly emphasized the importance of all four colors first being shown to the examinee, is somewhat helpful to the jury. It also is reliable because Fender has decades of related experience in the industry and personal experience viewing the Light Cannon test.
Although Rabin’s opinion regarding the effectiveness of the Light Cannon is based on the modified 2020 test and testing protocols, like Fender’s opinion it still has some probative value and is thus somewhat helpful to the jury. This is because Walker did not receive the 2016 testing protocol. Thus, the Court held that Rabin may testify as to the efficacy of the 2020 Light Cannon and whether it accurately mimics actual operating or working conditions in the field.
Neitz is not improperly “parroting” the opinion of another expert, but has reviewed Walker’s examinations and medical records, has reviewed the 2019-20 test data about the Light Cannon, understands color vision acuity testing in general, and offers a variety of opinions that are helpful to the jury on these topics.
Railroad companies were obligated to ensure that locomotive conductors met federal standards of visual acuity, including color vision, before they were permitted to conduct trains, in accordance with 49 C.F.R. § 240.121(c). To comply with these regulations, conductors underwent testing approximately every three years to confirm adherence to the specified vision standards. The federal regulations provided a range of acceptable testing methods, outlined in 49 C.F.R. App. F(4), to assess a conductor’s ability to differentiate between the colors of railroad signals. In cases where a conductor did not pass the test chosen by their employer, they had the option to request further testing, often in the form of a field test, to ascertain their fitness for duty.
Union Pacific Railroad Company initiated its color vision test process by conducting an Ishihara fourteen-plate color vision test, known for its high sensitivity to color-vision deficiencies. If a conductor successfully passed this initial test, recertification to operate trains was granted without any complications. However, if a conductor failed the test, the usual course of action involved progressing to a field test. This field test aimed to assess whether the conductor could safely operate trains despite any color vision deficiency. If the conductor passed the field test, Union Pacific would similarly recertify them for train operation.
Monte Mills (“Mills”), the Plaintiff, served as a conductor for Union Pacific Railroad Company (“Union Pacific”), the Defendant, for a period exceeding twelve years. Throughout this duration, Union Pacific conducted vision tests on Mills on at least three occasions. In the first two tests, Mills did not pass the Ishihara due to a color-vision deficiency. Nevertheless, on both occasions, Mills successfully cleared Union Pacific’s subsequent field test and was recertified.
In 2016, Union Pacific conducted another round of color vision testing for Mills. Once again, Mills did not pass the Ishihara and underwent a subsequent field test. However, by 2016, Union Pacific had introduced a new field test called the Light Cannon. Mills did not pass the Light Cannon test, leading to Union Pacific denying him recertification. Consequently, this denial marked the conclusion of Mills’ employment as a conductor at Union Pacific, despite his history of incident-free work.
On March 21, 2022, Mills initiated a lawsuit against Union Pacific, alleging unlawful discrimination based on disability, contravening § 12112 of the Americans with Disabilities Act (ADA). The legal proceedings advanced through discovery and the presentation of proposed expert witnesses. Subsequently, Mills filed a Motion in Limine, urging the Court to exclude testimony from Union Pacific’s expert witness Steven Fender. Union Pacific, in response, sought summary judgment and submitted a Motion to Strike Testimony from Mills’ Experts Jay Neitz and Kevin Tranngle. Furthermore, on October 10, 2023, Mills filed a Notice of Supplemental Authority, to which Union Pacific objected, promptly requesting the Court to strike the Notice from the record.
Railroad Expert Witness
Steven J. Fender is a seasoned Railroad Transportation/Safety Consultant, bringing an extensive 45 years of experience in the railroad industry. His expertise led him to frequent participation in rule and regulation review and development teams, as well as diverse roles within multi-modal and multi-discipline public safety evaluation teams, task forces, and industry-related projects and programs. Presently, Fender holds the position of Principal at Fender Rail Transportation and Safety Consulting Services, LLC. Prior to this, he served as the Railroad Administrator at the Federal Railroad Administration, where his principal responsibility involved providing guidance and direction for the Federal Railroad Administration (FRA) and the US Department of Transportation (the “DOT”) transportation safety policy and organizational operations. Fender’s educational background includes multiple learning institutions nationwide, attended at various locations, further solidifying his comprehensive knowledge and qualifications in the field.
Occupational Medicine Expert Witness
Dr. Kevin Trangle has over 40 years of experience as a board-certified physician in internal medicine, occupational medicine, and preventive medicine. He obtained his M.D. from the University of Minnesota Medical School and also holds an MBA in Healthcare Management from Case Western Reserve University. His experience encompasses all aspects of occupational medicine including diagnosis and treatment of work-related injuries, disability evaluations, return to work assessments, corporate wellness programs, and substance abuse programs. Trangle is currently a Senior Clinical Instructor at Case Western Reserve University and is the Associate Staff Member at Euclid General Hospital.
Ophthalmology Expert Witness
Dr. Jay Neitz is the E.K. Bishop Endowed Professor in Ophthalmology at the University of Washington in Seattle, boasting a career spanning over 30 years as a research scientist and educator. He obtained B.A. from San Jose State University and then earned his Ph.D. from the University of California, Santa Barbara. With comprehensive expertise in all facets of eye disorders and their impact on visual performance, Neitz has made significant contributions to the field. His extensive research encompasses a focus on color vision deficiencies, where he has not only developed but also refined various tests and methods for identifying such deficiencies.
Discussion by the Court
Mills moved to exclude the testimony of Union Pacific’s expert, Steven Fender, who served as a Railroad Transportation and Safety Consultant. Fender has a background of working in various positions for the Federal Railroad Administration (FRA) over numerous years. The dispute between the parties revolved around Fender’s proposed testimony, specifically focusing on his evaluation of the Light Cannon as a field test.
Mills argued that Fender’s testimony was neither relevant nor based on a reliable foundation, advocating for its exclusion. Union Pacific countered, asserting that Fender’s testimony was both reliable and relevant. Additionally, Union Pacific contended that Fender’s testimony was crucial as it was seen as dispositive, emphasizing that employers should not face liability for adhering to federally imposed safety guidelines.
The federal regulations in question aimed to ensure train conductors could “recognize and distinguish between the colors of railroad signals.” While providing a list of acceptable color-vision tests, the Federal Railroad Administration (FRA) acknowledged that individuals failing these tests might still be qualified for the role. Notably, the regulations did not mandate specific follow-up tests for those who failed the specified tests, granting railroad companies discretion in evaluating conductor fitness within a defined framework.
After establishing a prima facie case under the ADA, an employer could avoid liability for an alleged discriminatory qualification standard by invoking affirmative defenses such as business necessity or direct threat. Successfully asserting a business necessity defense required the employer to demonstrate that the challenged standard was both job-related, consistent with business necessity, and that reasonable accommodation would not enable performance.
The FRA stipulated that a railroad company’s field test must be “valid, reliable, and comparable” for assessing a person’s ability to safely perform as a locomotive engineer or conductor. Mills argued that determining the validity of the Light Cannon required a medical, scientific inquiry, asserting that Fender lacked the necessary medical background. Despite acknowledging that testimony based on medical or scientific assessment might be more persuasive, the Court did not find Fender’s expertise wholly inappropriate for evaluating the Light Cannon. Fender’s extensive professional history in railroad safety suggested he was well-suited to assess whether a field test mimicked the conditions faced by train operators and whether use of the Light Cannon is at least permissible under federal regulations. While Fender lacked a medical or scientific background, the Court deemed these limitations not severe enough to warrant his disqualification, allowing Mills to address them through cross-examination.
The central issue in this case was whether Union Pacific’s decision not to recertify Mills amounted to disability discrimination under the ADA. Another critical aspect was Union Pacific’s ability to establish an affirmative defense to disability discrimination, potentially involving the determination of business necessity. Fender’s testimony regarding the Light Cannon’s compliance with federal regulations could provide insight for the fact finder on this matter. Mills expressed concerns about potential confusion caused by Fender’s testimony. Despite acknowledging a remote possibility of confusion, the Court was confident that any such issues could be addressed through cross-examination, thus deeming the testimony admissible.
Union Pacific asserted that Fender’s testimony was not only relevant and reliable but also dispositive under Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 573-74 119 S. Ct. 2162, 144 L. Ed. 2d 518 (1999). The Court acknowledged the relevance and reliability of Fender’s testimony but disagreed with Union Pacific’s interpretation of Albertson’s, finding it a stretch. In Albertson’s, the Supreme Court allowed an employer to insist on a specific federal safety regulation, and Union Pacific argued for a similar discretion. However, the Court noted significant differences in the facts, emphasizing that Union Pacific couldn’t opt out of conducting follow-up tests as per governing regulations.
While recognizing railroad companies’ discretion in choosing follow-up tests, the Court clarified that it must align with federal laws, including the ADA. Consequently, Fender’s testimony on the Light Cannon’s compliance with federal regulations was deemed relevant but not dispositive. Mills’ Motion to Exclude Fender’s Testimony was denied. The Court clarified that although federal regulations do not mandate the use of the Light Cannon, Fender’s testimony on the matter is not considered dispositive.
Union Pacific moved for summary judgment, asserting four main contentions: (1) Mills’ claims were time-barred, (2) Mills did not qualify as a “qualified individual” under the ADA and relevant caselaw, (3) Union Pacific had legitimate, non-discriminatory, and non-pretextual reasons for denying Mills return to the conductor position, and (4) Mills could not establish a disparate impact claim.
Union Pacific argued that Mills received a notice of his right to sue in January 2021, citing Mills’ deposition testimony where he affirmed receiving it on or around January 21, 2021. Union Pacific also presented the notice letter from the Equal Employment Opportunity Commission (the “EEOC”), dated January 21, 2021, as evidence. According to Union Pacific, since Mills filed his lawsuit on March 31, 2022, well beyond the ninety-day limit from the alleged notice date, the claim should be considered time-barred.
In contrast, Mills contested receiving the notice and claimed uncertainty during his deposition about what a notice of right to sue entailed. He believed he had received various documents from the EEOC and assumed the notice letter was among them. Mills and his counsel, upon closer examination, could not locate the letter in the EEOC’s file on Mills, raising doubts about its existence and delivery. Both Mills and his counsel submitted sworn declarations supporting their findings.
The Court noted the absence of evidence from Union Pacific demonstrating that the notice letter was indeed mailed to Mills, as required by the mailbox rule. Consequently, the Court concluded that there was insufficient evidence to deem Mills’ claim time-barred.
Union Pacific contended that Mills’ claims should be legally barred as he did not qualify as a “qualified individual” under the Americans with Disabilities Act (ADA). A qualified individual, as per the ADA, is someone possessing the necessary skills, experience, education, and other job-related requirements for the disputed position and can perform its essential functions with or without reasonable accommodation.
Union Pacific argued that since the Federal Railroad Administration (FRA) had approved its administration of the Light Cannon, anyone failing this test did not meet the job-related requirements of the position and, therefore, could not be considered qualified. The Court, however, determined that the issues of whether Mills possessed the required qualifications to be a conductor and if he could perform the essential functions of the role were factual questions.
The Court highlighted Mills’ extensive work history of successfully passing color-vision field tests and accurately identifying railroad signals. Based on these facts, the Court concluded that a jury could reasonably find Mills to be a qualified individual. Consequently, the Court deemed summary judgment on that basis inappropriate.
The Court recognized that being a train conductor is a high-stakes occupation, where some degree of color-vision discernment is deemed important. However, the question of whether Mills’ specific disability is pertinent to the job requirements of a train conductor remained a disputed material fact. Consequently, the Court concluded that summary judgment on that basis was inappropriate.
Union Pacific claimed that Mills could not establish a disparate impact claim for three reasons: (1) lack of statistical evidence supporting his claim, (2) Mills was only “regarded as” having a disability, not having an “actual disability,” and (3) Union Pacific’s use of the Light Cannon was justified by business necessity. The Court determined that the primary purpose of the Light Cannon was to screen out individuals with color vision deficiency, making it unnecessary and wasteful to demand statistical evidence confirming its intended function. Therefore, Mills was not obliged to provide statistical evidence for his disparate impact claim.
Regarding the argument about Mills being “regarded as” disabled, Union Pacific acknowledged this, and since Mills asserted his disability, the Court deemed Union Pacific’s contention insufficient to warrant summary judgment.
In the broader context, Union Pacific failed to conclusively demonstrate that the Light Cannon accurately measured Mills’ actual ability to perform essential job functions or that no reasonable accommodation existed to address any performance deficiency. Consequently, the Court deemed summary judgment on the basis of a business-necessity defense inappropriate.
In his response to Union Pacific’s Motion for Summary Judgment, Mills briefly mentions the Independent Medical Record Review (“the Report”) conducted by two expert witnesses, Jay Neitz and Kevin Trangle (the “Doctors”). Trangle, a Doctor of Occupational Medicine, and Neitz, a Professor of Ophthalmology specializing in color vision and vision disorders, were retained by Mills’ counsel to assess whether the Light Cannon screens out individuals with color vision deficiency who could still safely perform conductor duties.
Union Pacific moved to strike the Independent Medical Record Review Report from the record and any references to it in Mills’ Response. According to Union Pacific, the Report functions as a transmitter of testimonial hearsay, violating Fed. R. Evid. 703, and the opinions expressed by the Doctors lack a proper foundation, constituting baseless speculation in contravention of Fed. R. Evid. 702.
The opinion presented by the Doctors in the Report is partially based on a scientific study conducted by Dr. Jeff C. Rabin. The Doctors interpret Rabin’s study to suggest that the Light Cannon fails many individuals who could safely operate trains.
Union Pacific contends that the Doctors, rather than forming independent conclusions, have merely repackaged Rabin’s report and presented it as their own opinion. To support this assertion, Union Pacific highlights that neither Doctor had conducted personal research on the Light Cannon nor even witnessed the administration of a Light Cannon test.
The Court asserted that expert testimony is not required to be founded on personal knowledge but can rely on information that experts in a specific field would consider. Therefore, the Doctors were not obligated to personally study or observe the Light Cannon in operation. Additionally, since Union Pacific did not present any evidence or argument questioning the reliability of Rabin’s study, the Court tentatively concluded that experts in the field of color-vision testing could reasonably rely on the study.
Upon thorough consideration, the Court determined that the Doctors did apply their training and experience to the available sources, reaching an independent judgment. While the Doctors integrated Rabin’s study findings into their analysis, they also conducted an exhaustive review of Mills’ color vision tests history and Union Pacific work safety records. The Court noted that the Doctors’ application of their own expertise is evident in their broader discussion of color-vision testing and their interpretation of Mills’ test results. Consequently, the Court rejected Union Pacific’s first challenge, asserting that the Doctors’ opinions are not mere transmissions of testimonial hearsay.
Union Pacific contended that the Doctors’ conclusions lack a sufficient factual basis for admissibility under Rule 702. The Doctors, in their Report, assert that the Light Cannon, as administered to Mills, “fails anomalous trichromats (individuals with slight color vision defects) who can safely perform their railroad duties”. Additionally, they opined that Mills can “safely distinguish colors necessary” for railroad work. Union Pacific argued that these conclusions lack an appropriate factual foundation.
In addition to the standards outlined earlier, the Court underscored that, in addressing Daubert challenges, its role was not to determine the correctness of the expert’s opinions but to assess whether the testimony held substance and would be beneficial to a jury, as established in Alaska Rent-A-Car, Inc. v. Avis Budget Grp., Inc., 738 F.3d 960, 960-70 (9th Cir. 2013). Moreover, the Ninth Circuit affirmed that the facts or data required under Rule 702 could encompass the specialized knowledge and experience of the testifying expert, as indicated in Elosu v. Middlefork Ranch Inc., 26 F.4th 1017, 1024 (9th Cir. 2022).
The Doctors’ opinion on the Light Cannon’s tendency to fail anomalous trichromats, despite their qualification for railroad duties, was grounded in their examination of Rabin’s study, their assessment of Mills’ medical and work history, and their specialized knowledge of anomalous trichromats. Although this factual foundation was subject to potential challenges through cross-examination and opposing evidence, it undeniably existed, contrary to Union Pacific’s assertions. The Court determined that such testimony possessed sufficient substance to be beneficial to a jury, even if it did not conclusively resolve the central issues in the case.
The validity of the Doctors’ opinions on Mills’ color vision remains consistent. Union Pacific contends that the evidence reviewed by the Doctors lacks relevance with regard to Mills’ color vision in 2016. However, the Report clarifies that the Doctors diligently examined Mills’ comprehensive history of color vision testing at Union Pacific. While acknowledging the potential for changes or deterioration in one’s vision over time, the Court determined that Mills’ test history remained pertinent. When coupled with an assessment of Mills’ accident-free work record and the Doctors’ individual expertise in ophthalmology and occupational medicine, the factual foundation for their testimony was evidently sufficient. Any perceived methodological flaws by Union Pacific could be addressed through cross-examination.
On October 10, 2023, Mills filed a Notice of Supplemental Authority with the Court, attempting to bring attention to a federal complaint filed by the EEOC against Union Pacific in Minnesota. The complaint, similar to Mills’ case, alleged that Union Pacific’s use of the Light Cannon violated the ADA. Union Pacific objected to this filing shortly thereafter. The Court, noted that the filing of a complaint did not provide guidance on how to handle Mills’ case, sustained Union Pacific’s objection. Consequently, Mills’ Notice was stricken from the record.
Held
The Court determined that Steven Fender’s testimony could provide relevant information to the fact finder, rendering it admissible. Consequently, Mills’ Motion in Limine was denied. Recognizing unresolved questions of material fact that precluded summary judgment, the Court also denied Union Pacific’s Motion for Summary Judgment. The Court further concluded that Mills’ experts had appropriately applied their expertise to the available materials, establishing a sufficient factual basis to withstand preclusion under Rules 702 and 703. Therefore, Union Pacific’s Motion to Strike was denied. Additionally, the Court sustained Union Pacific’s objection to Mills’ proffer of a recently filed suit against Union Pacific, considering it did not qualify as supplemental authority. As a result, the Notice was stricken from the record.
The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.
Key Takeaways
In the legal dispute between Monte Mills and Union Pacific, the admissibility of expert testimony played a pivotal role, particularly regarding the compliance of Union Pacific’s Light Cannon color vision test with federal regulations. The Court addressed Mills’ motion to exclude testimony from Union Pacific’s expert, Steven Fender, and allowed its admissibility, deeming it relevant but not dispositive.
Union Pacific’s attempt to strike testimony from Mills’ expert witnesses, Jay Neitz and Kevin Trangle, was rejected by the Court. The Court asserted that expert testimony need not be based on personal knowledge and deemed the Doctors’ opinions sufficiently grounded in their review of studies, Mills’ test history, and their specialized knowledge.
Union Pacific sought summary judgment on multiple grounds, including the timeliness of Mills’ ADA claims, his qualification as a “qualified individual,” and the failure to establish a disparate impact claim. The Court dismissed Union Pacific’s arguments, allowing the case to proceed to trial. Lastly, Mills’ attempt to introduce a Notice of Supplemental Authority regarding a similar EEOC complaint in Minnesota was stricken from the record.
