Expert Witness Profiler

Tag: Accommodate

  • Anesthesiology Expert’s Testimony on the Value of Promotion Admitted

    Anesthesiology Expert’s Testimony on the Value of Promotion Admitted

    Plaintiff, Dr. Sheldon Goldstein, a former physician in the Department of Anesthesiology quit his employment when in 2021, he did not receive a
    promotion to Professor on the Clinical Educator Track, the same promotion he did not attain the year prior.

    Goldstein alleged that he was subjected to discrimination and harassment because of his disability in violation of the Americans with Disabilities Act of 1990 (“ADA”), the New York State Human Rights Law (“NYSHRL”) and the New York City Human Rights Law (“NYCHRL”). He asserted these claims against Montefiore Medical Center, and Dr. Mattias Eikermann. Montefiore hired Plaintiff on September 30, 2013 as a full-time physician and Professor in the Department of Anesthesiology at Albert Einstein College of Medicine (“Einstein”) while Defendant Eikermann served as the Chairman of Anesthesiology at Montefiore and Plaintiff’s supervisor.

    Plaintiff offered Dr. Edward A. Ochroch as a medical school promotions expert. Defendants filed a motion to exclude the testimony of Ochroch, who opines on Plaintiff’s qualifications for promotion, the propriety of Plaintiff’s exclusion from the promotion process, and the relative value of a promotion to clinical professor.

    Anesthesiology Expert Witness

    Dr. Edward Andrew Ochroch, M.D. is a board-certified anesthesiologist and has worked exclusively as a faculty member at the University of Pennsylvania in the Department of Anesthesiology for the past nineteen years. In that time, Ochroch has served as chair of the Departmental Committee on Appointments and Promotions, overseeing and serving on “numerous committees on appointments and promotions.”

    Want to know more about the challenges Edward Ochroch has faced? Get the full details with our Challenge Study report. 

    Discussion by the Court

    I. Background and Opinion of Ochroch

    Ochroch opined that: (1) “Plaintiff met all the requirements set forth on the Clinical Educator Checklist for promotion to Clinical Professor in 2021”; (2) Plaintiff “should have been recommended by the Departmental Committee on Appointments and Promotions if Eikermann had not interfered”; (3) “Eikermann’s interference” in the promotion process “was a violation of the Suggested Guidelines for Promotion to Senior Rank”; and (4) given the value of promotion, “by preventing [Plaintiff] from being considered for promotion . . .Eikermann diminished [Plaintiff’s] reputation, limited his employment opportunities, excluded him from consideration for administrative positions, and precluded him from receiving a significant annual increase in wages.” 

    II. Ochroch’s Qualifications

    Defendants argued that Ochroch is unqualified to serve as an expert witness because “being an anesthesiologist does not make him an expert in the promotion process at Montefiore”; that his experience with the academic promotion process is limited to his employment at the University of Pennsylvania; and that “the promotion process at the University of Pennsylvania [is not] an area of expertise.”

    The Court found that Ochroch’s experience as a member and chair of the University of Pennsylvania’s committee on appointments and promotion is reasonably closely related to the promotion process at Einstein.

    III. Reliability of Ochroch’s Opinions

    A. Assessment of Goldstein’s Qualifications for Promotion

    As to Ochroch’s opinion that Goldstein met Einstein’s requirements for a promotion to Clinical Professor in 2021, Defendants noted that, in assessing Plaintiff’s qualifications, Ochroch relied exclusively on his experience, the Clinical Educator Checklist published by Einstein, and Plaintiff’s CV and teaching portfolio. Defendants contended that this opinion is unreliable because Ochroch provided no analysis, did not ground the conclusion in facts or a reliable methodology, and impermissibly substituted his own views for those of the promotion committee.

    In light of Ochroch’s thirty years of experience, the Court found Ochroch’s opinion that Goldstein had met Einstein’s qualifications for promotion reliable.

    B. Assessment of Eikermann’s Role

    As to Ochroch’s opinion that Eikermann “contaminated the entire process” in deciding Plaintiff was not eligible for promotion in 2021, Defendants suggested that Plaintiff improperly sought to use Ochroch to present the factual narrative from Plaintiff’s perspective. 

    Here, Ochroch offered no support beyond his own speculation that Eikermann’s decision to not consider Plaintiff for promotion in 2021 reflected a purposeful effort to exclude Plaintiff.

    The Court found Ochroch’s opinion on Eikermann’s role in the failure to promote Plaintiff in 2021 unreliable.

    C. Assessment of the Value of a Promotion and Effects of Being Denied a Promotion

    As to Ochroch’s opinions on the value of a promotion to Clinical Professor and the negative consequences of not being promoted, Defendants argued that Ochroch lacked the necessary knowledge and experience to testify on these topics.

    However, Ochroch provided data on the benefits associated with a promotion to Clinical Professor: he explained that promotion to that level at the University of Pennsylvania comes with an “added six percent of salary or approximately $25,000” in addition to increased retirement benefits; and he noted that “other institutions pay as much as $30,000 annually for a promotion to Clinical Professor.”

    Ochroch also described the less easily quantified professional ramifications of promotion to Clinical Professor: more job opportunities, eligibility for “internal and external administrative positions” such as department chair, and additional opportunities to lecture and publish.

    And Ochroch discussed the “negative consequences of not being promoted,” stating a physician who fails to be promoted within ten years is presumed “inferior or incompetent or both”; Ochroch concluded that because Plaintiff was not promoted to Clinical Professor, his reputation suffered, his employment opportunities were limited, he was ineligible for administrative positions, and he did not receive significant annual wage increases. 

    The Court found Ochroch’s opinions on the value of promotion to the rank of Clinical Professor and the professional harm Plaintiff suffered due to being denied the promotion reliable.

    IV. Relevance of Ochroch’s Opinions

    With respect to Ochroch’s opinions on Goldstein’s qualifications for promotion, Defendants argued that Plaintiff has failed to show that these opinions are based on the witness’ expertise as opposed to matters that the factfinders could understand without an expert’s help.

    Ochroch recited Plaintiff’s credentials and opined that, based on Einstein’s promotion rubric, Plaintiff was qualified for promotion.

    Defendants’ argument that the factfinders could reach the same conclusion or not on their own therefore has some force. However, Plaintiff’s explanation that the factfinders would require assistance to understand “the world of academic medicine promotions” was also persuasive. The Court concluded that the factfinders would benefit from an explanation of how Goldstein’s professional accomplishments fit within Einstein’s promotion rubric and therefore that Ochroch’s opinions on this subject are relevant and admissible. 

    V. Ochroch’s Opinions and Rule 403

    The Court found that Rule 403 provided an additional basis for finding Ochroch’s opinions on Eikermann’s motivation for and role in the failure to promote Plaintiff in 2021 to be inadmissible to the extent that they are unreliable. 

    Held

    The Court granted in part and denied in part the Defendants’ motion to exclude the testimony of Plaintiff’s expert Edward A. Ochroch.

    Key Takeaway:

    Defendants were correct that a party may not present an expert to make “simple inferences drawn from uncomplicated facts,” which do not help the jury and serve only to buttress Plaintiff’s case.

    Ochroch, in opining on Eikermann’s role in Einstein’s decision not to consider Plaintiff for promotion, performed just that impermissible function. Jurors can rely on the additional industry context provided by Ochroch to reach their own conclusions about whether Eikermann contaminated the promotion process. Additionally, an expert may not opine on “motivation or intent” without “dispositive support.” 

    Case Details:

    Case Caption: Goldstein V. Montefiore Medical Center Et Al
    Docket Number: 1:22cv6723
    Court Name: United States District Court for the Southern District of New York
    Order Date: September 25, 2025
  • Infectious Disease Expert’s Testimony on Vaccine Hesitancy Admitted

    Infectious Disease Expert’s Testimony on Vaccine Hesitancy Admitted

    This case arises out of Plaintiff Cheyanne Dixson’s 2022 termination as a police officer with the Issaquah Police Department after Defendant, the City of Issaquah, determined it could not accommodate Plaintiff’s religious exemption to vaccination against SARS-CoV-2, an employment requirement implemented by Defendant during the COVID-19 pandemic. Dixon was a patrol officer in the City’s Police Department.

    Defendant produced the expert report of John Lynch, M.D., a board-certified physician in infectious disease. Lynch’s proffered testimony includes background information on the COVID-19 pandemic and the development of the first COVID-19 vaccines. Plaintiff filed a motion to exclude all testimony by Lynch.

    Infectious Disease Expert Witness

    John B. Lynch is a board-certified physician in infectious disease. He currently works as an Associate Medical Director of Harborview Medical Center and a Professor of Medicine at the University of Washington (UW) and actively practices medicine as an infectious disease clinician.

    His work at Harborview included serving as the medical director for the occupational health program, and he also served on the Board of Directors of the Infectious Diseases Society of America from 2019 to 2022. 

    Lynch earned his Doctor of Medicine (“MD”) from the UW School of Medicine in 2002 and his Master’s in Public Health (“MPH”) in epidemiology and global health from the UW School of Public Health in 2011.

    Want to know more about the challenges John Lynch has faced? Get the full details with our Challenge Study report. 

    Discussion by the Court

    Plaintiff asserted that Lynch is not qualified to opine as an expert except on the “efficacy of [CV-19] vaccines,” that his opinions are irrelevant and unreliable, and that his testimony and report will confuse the issues and should be excluded.

    A. Rule 702 Challenge

    1. Lynch’s Qualifications

    The Court held that Lynch is abundantly qualified by both experience and training to render the opinions he offered. Plaintiff has not produced evidence to negate these qualifications.

    2. Relevance of Opinions

    Defendant offered Lynch’s testimony in support of its “undue hardship” defense to Plaintiff’s claim, under the Washington Law Against Discrimination, that Defendant discriminated against her by failing to accommodate her sincerely held religious belief.

    To prevail on its undue hardship defense, Defendant will need to establish that the accommodation sought by Plaintiff—here, remaining unvaccinated and fulfilling her usual job duties but submitting to twice-weekly COVID-19 tests, masking during work hours while in the presence of others, and eating her meals in her car, outdoors, or off site—would result in “substantial increased costs in relation to the conduct of [Defendant’s] particular business.”

    Plaintiff repeatedly asserted that information about vaccines and safety risks is irrelevant but does not explain how the health-and safety-related cost Plaintiff’s unvaccinated status imposed on Defendant can be evaluated without this information. 

     The one argument that Plaintiff presented as to why these topics are irrelevant—”because the Plaintiff was exempt from the vaccine requirement . . . .” —would appear to foreclose any consideration of health risks or other intrinsic “costs” of waiving an employment requirement for an objecting employee. But it is hard to see how an undue burden defense could ever be adjudicated without information about the purpose and value of the employment requirement from which a Plaintiff is exempt or seeking exemption.

    3. Reliability of Opinions

    Lynch explained in his declaration that his opinions were formed based on knowledge gained in “decades of working in clinical infectious diseases, infectious disease research, public health, and epidemiology,” the medical studies and public health data he cited in his declaration and report, his review of over a dozen documents from this case, and a visit to the Issaquah Police Department.

    Though Defendant provided extensive case law on medical expert testimony in its response, Plaintiff offered no reply. Accordingly, the Court found that Lynch’s opinions have “a reliable basis in the knowledge and experience of the relevant discipline.”

    Further, where the particular facts of the case are relevant to Lynch’s opinions, he considered them with specificity. For example, he considers Plaintiff’s work duties, the settings in which she worked, and the people with whom she interacted in her role as a police officer. 

    4. Plaintiff’s Other Arguments

    Repeatedly, in support of her arguments on both relevance and reliability, Plaintiff argued for exclusion based not on opinions Lynch has offered but opinions he has not offered, mostly related to Plaintiff’s preferred framing of “the key issue” in this case: how could masking and testing be safe and effective from October to February and then unsafe or ineffective starting February 16, 2022.

    Plaintiff also faults Lynch for not being able to precisely quantify “the residual risk of acquisition and transmission” by an unvaccinated person with Plaintiff’s accommodations and not opining on the actual incidence of breakthrough infections among Defendant’s employees or Defendant’s reliance on recommendations by the Centers for Disease Control and Prevention.

    Assuming for the sake of argument that these “missing” opinions are relevant and otherwise admissible, the Court held that their absence is a subject for cross-examination, not a basis for exclusion of Lynch’s testimony under Rule 702.

    B. Rule 403 Challenge

    5. Testimony on Vaccine Development and Approval

    Plaintiff objected to Lynch testifying about the development and Federal Drug Administration (“FDA”) approval of vaccines on the grounds that such testimony is both irrelevant and prejudicial, contending that “the introduction of these facts is more likely to prejudice the trier of fact by implying that [Plaintiff] contests vaccines and FDA approval and/or importance or efficacy. This is simply not true and the inclusion is prejudicial.”

    As to the relevance of these issues, the Court agreed with Defendant that “[t]his data provides relevant background information about options available to the City and others to control the spread of COVID-19 in the workplace in late 2021 and early 2022.”

    As to any potential undue prejudice, Plaintiff explained neither how facts about vaccine history and development imply anything at all about Plaintiff’s personal opinions, nor how such an implication could be prejudicial when the very basis of this case arises out of Plaintiff’s religious objection to a workplace vaccination requirement.

    6. Opinions on Vaccine Hesitancy and Misinformation

    Plaintiff also objected to a section of Lynch’s report entitled “Vaccine Hesitancy and Misinformation,” on the grounds that it “is likely to be more prejudicial than beneficial to the inquiry.” Besides this assertion, however, Plaintiff offered no argument on this topic.

    According to the Court, this alone is a sufficient basis to reject Plaintiff’s unreasoned request for exclusion.

    The Court noted, moreover, that most of the opinions Lynch offered in the challenged section are directly responsive either to specific statements in Plaintiff’s complaint or to arguments advanced by Plaintiff during this litigation.

    7. Purported Opinion Regarding Temporary Accommodation

    Finally, Plaintiff argued that Lynch’s purported opinion that Defendant should not have accommodated Plaintiff even temporarily “will likely confuse the trier of fact, not assist them.” The Court need not consider the likelihood of confusion because Plaintiff presented no evidence that Lynch has ever expressed this opinion.

    The other testimony cited by Plaintiff arose from a question about why Defendant would have accommodated her; Lynch responded that he was neither a human resources person nor involved in the conversations. Lynch tried to discern the rationale by reading the documents with which he was presented and responded that accommodating Plaintiff was a policy decision by human resources. Nowhere in the referenced material did he opine that Defendant should not have accommodated Plaintiff.

    These exchanges, viewed along with their mischaracterization here by Plaintiff’s counsel (who also deposed Lynch), create the impression that counsel, not having solicited the deposition testimony she wanted from Lynch, decided to distort his testimony beyond recognition. The Court will give counsel the benefit of the doubt and assume that this was an honest mistake rather than a willful misrepresentation.

    Held

    The Court denied the Plaintiff’s motion to exclude the opinions of Defendant’s expert John Lynch.

    Key Takeaway:

    In ignoring the applicable standards, Plaintiff presented no clear argument that Lynch’s experience did not support his conclusions (and the Court finds that it does); that his reasoning is circular, speculative, or otherwise flawed (and the Court finds that it is not); or that his reasoning is not adequately explained (and the Court finds that is is).

    Lynch explained in his declaration that his opinions were formed based on knowledge gained in “decades of working in clinical infectious diseases, infectious disease research, public health, and epidemiology,” the medical studies and public health data he cites in his declaration and report, his review of over a dozen documents from this case, and a visit to the Issaquah Police Department. This is clearly consistent with the types of sources typically relied on by medical professionals.

    Case Details:

    Case Caption: Rosa V. City Of Issaquah Et Al
    Docket Number: 2:24cv1673
    Court Name: United States District Court for the Western District of Washington
    Order Date: September 15, 2025
  • Expert Testimony on Human Resources Practices Limited

    Expert Testimony on Human Resources Practices Limited

    Plaintiff Brian Kniffen brought claims against Defendant East Wenatchee Water District under the Washington Law Against Discrimination, the federal Americans with Disabilities Act, and the Washington common law tort of wrongful discharge in violation of public policy.

    Kniffen was a Utility Field Inspector (“UFI”), and his job consisted, at least in part, of inspecting various entities served by the water district, which involved opening and closing water valves. In May 2019, Kniffen experienced an on-the-job injury to his back while torquing a valve.

    After the injury, Kniffen was restricted with respect to lifting, squatting, and crawling. In August of 2019, he underwent an extraforaminal discectomy, a procedure on his lower back, and continued to work on a light duty basis, including the assistance of another employee to turn valves. In June of 2020, Kniffen called for assistance with a water valve, but no one was available, and he reinjured his back while twisting. As a result, he reopened his original worker’s compensation claim from May 2019.

    Defendant sought to exclude Plaintiff’s expert witness, Allison West‘s testimony on its human resources practices.

    Human Resources Expert Witness

    Allison Kracov West received a Bachelor of Arts from the University of Colorado, Boulder, and a Juris Doctor from Golden Gate University School of Law in 1994. She maintained a practice in employment law in San Francisco until she opened a consulting service in 2000, dealing with workplace investigations and human resource training.

    West has delivered trainings on employment issues to public and private entities and has been a speaker at human resources association conferences. She holds certificates demonstrating proficiency in human resource practices and attends continuing education courses.

    Want to know more about the challenges Allison K. West has faced? Get the full details with our Challenge Study report. 

    Discussion by the Court

    Defendant moved to exclude West’s testimony, arguing that she offered legal conclusions and made speculative assertions about human resource practices. Plaintiff assured that West will not provide testimony at trial on what reasonable accommodation law is or any legal conclusions about whether the law was violated, but argued that her opinion is well supported and will provide the jurors with additional context beyond the scope of general knowledge.

    Defendant argued that West’s testimony would offer nothing more than what the jurors may deduce for themselves after the presentation of evidence and is essentially full of legal conclusions.

     In forming her opinion and amendment, West reviewed the record as well as a “variety of resources that assist Human Resource (HR) professionals to develop industry standards that are recognized as ‘standard,’ ‘reasonable,’ or ‘best practices’ for the handling of employer-employee issues in all aspects of human resources.” Given her background in employment law and consulting work, West appeared to be well versed in such standards.

    Analysis

    The Court agreed with Defendant that some of West’s testimony unduly usurped the role of the Court and the jury, and therefore is excluded. West’s report detailed instruction on Washington State law, included findings that appeared speculative—such as the assertion that potential points for accommodation “fell through the cracks”—and offered conclusions that were properly left for the jury.

    Though Plaintiff argued that the ultimate issue of law is whether an accommodation is reasonable, not whether Defendant failed to engage in the interactive process, the Court disagreed, finding them intertwined. Therefore, to be admissible at trial, West had to limit her testimony to: (1) what the accommodation and interactive process looks like, including the proper role of administrators; (2) examples of reasonable accommodations; (3) how employers typically engage in the process of accommodating disabled employees; and (4) what steps Defendants took in the accommodation and interactive process. 

    By focusing her opinion on these specific topics, West could help the jury evaluate whether the Defendant followed human resource standards—without directly stating a legal conclusion herself.

    Held

    The Court granted in part the Defendant’s motion to exclude the testimony of Allison West.

    Key Takeaway:

    The admissibility of expert testimony, whether scientific or not, must assist the trier of fact to determine a fact in issue by providing information “beyond the common knowledge. While an opinion is not objectionable just because it embraces an ultimate issue, an expert witness cannot give an opinion as to her legal conclusion, i.e., an opinion on an ultimate issue of law. 

    Case Details:

    Case Caption: Kniffen V. East Wenatchee Water District
    Docket Number: 2:23cv344
    Court Name: United States District Court, Washington Eastern
    Order Date: June 27, 2025