Expert Witness Profiler

Tag: Deaf

  • Deaf Culture Expert’s Testimony Rests on Specific Qualifications, Not General Experience

    Deaf Culture Expert’s Testimony Rests on Specific Qualifications, Not General Experience

    This is a failure to accommodate case brought by the Equal Employment Opportunity Commission (EEOC) on behalf of two former Walmart associates, Marvin Montoya (“Montoya”) and Raymond Moore (“Moore”) (collectively, “Claimants”), alleging Walmart violated the Americans with Disabilities Act (“ADA”) when it purportedly failed to accommodate the Claimants’ disability, resulting in their constructive discharge.

    Walmart filed a motion to exclude the EEOC’s expert, Roger C. Williams, who was supposed to opine on deafness, communication between deaf and hearing individuals, and how sign language interpretation may assist deaf individuals communicate at work.

    Deaf Culture Expert Witness

    Roger C. Williams specializes “in consulting and training related to the needs of deaf adults in the mental health system.” He has worked in various roles related to interpretation, treatment, and access for deaf individuals. In one of his prior roles, he advised a state department “on matters related to the recruitment, hiring, and retention of individuals with a hearing loss.”

    He received his B.S.W. from the Rochester Institute of Technology and his M.S.W., specializing in community mental health, from the University of Illinois.

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

    Discussion by the Court

    Williams’ testimony can be summarized as four opinions. To begin with, he opined that Walmart did not provide effective accommodation to Montoya and Moore that would allow them to “enjoy all the benefits and privileges of their employment” or to “receive the same access to information provided to hearing co-workers.” His second opinion is that Walmart failed to follow its own policies requiring it to provide reasonable accommodations to deaf employees. Third, he opined that Walmart failed to provide an effective interpreter for Montoya and Moore, instead providing an unqualified interpreter—Walter-Gates—to translate between Walmart managers and Montoya and Moore. Finally, he concluded that Walmart’s procedure for requesting an accommodation and its forms that employees are required to complete are “inherently inaccessible for individuals who are deaf and do not have the written English competence to understand the forms.” 

    Walmart filed a motion to exclude Williams’ testimony. First, it argued that Williams’ opinions are unreliable and irrelevant because they misstate the record and make generalizations based on a small sample of experience. Second, it asserted that Williams’ opinions invaded the province of the jury by applying the law to the facts and telling the jury what to decide. Third, it said that Williams’ opinions will unfairly prejudice Walmart in a way that substantially outweighs the probative value of those opinions.

    The concerns Walmart raised speak to the weight of Williams’ opinion and are more properly addressed on cross examination than through exclusion

    Walmart first challenged Williams’ opinion that David Walter-Gates was not a qualified sign language interpreter. Its only argument in support is that Williams misstated the record, meaning Williams relied on unreliable facts and data to arrive at his conclusions.

    Williams’ challenged opinion relied, in part, on Walter-Gates’s own statement that “he was not qualified to interpret.” Walmart asserted that Walter-Gates was referring to statements he made because Montoya and Moore were attempting to use him as an interpreter—rather than Walmart attempting to use Walter-Gates as an interpreter to accommodate Montoya and Moore.

    According to Walmart, it is misleading for Wiliams to use that statement in support of his opinion that Walmart improperly used Walter-Gates as an unqualified interpreter for Moore and Montoya.

    For one thing, the record did not support Walmart’s assertion. Walter-Gates stated that “he made it clear to everyone that he was not an ASL interpreter and that he knew very little sign language,” that “he would get called over when there were conversations with [Montoya and Moore],” and that “he would always tell them right away that he was not an interpreter.” In any event, the Court held that the concerns Walmart raised speak to the weight of Williams’ opinion and are more properly addressed on cross examination than through exclusion.

    Walmart made a similar reliability challenge to Williams’ statement that Montoya and Moore’s supervisor, Austin Duvall, refused to train Montoya and Moore on powerlifting equipment because they were deaf.

    Walmart argued that the facts and data on which Williams’ conclusion is based—i.e., Duvall’s deposition testimony—are inaccurate.

    But Williams relied on the EEOC’s evidence that Duvall told Montoya that he could not train him on powerlifting equipment because his hearing limitations would create a safety issue for himself and others. 

    Williams is qualified to opine about whether Walmart’s actions complied with its reasonable accommodation policy

    Walmart objected to Williams’ opinion that Walmart’s policy is inaccessible for deaf individuals because it apparently is based on an unreliable generalization. It added that Williams’ opinion is irrelevant because it goes beyond the scope of the lawsuit.

    The Court held that Williams is qualified to opine about whether Walmart’s actions complied with its reasonable accommodation policy. Walmart contended that Williams’ opinions about Walmart’s policies are based only on his general experience as a supervisor. But Williams’ qualifications are more specific than that. When he worked at a state department of mental health, he was not just a supervisor: He “was responsible for hiring and supervising multiple deaf employees, as well as advising the Department’s Human Resources division on matters related to the recruitment, hiring, and retention of individuals with a hearing loss.” 

    Moreover, the Court held that Williams’ opinion will help the jury understand how a deaf individual, like Montoya, may have misunderstood the requirements of Walmart’s policies and how a sign language interpreter may have been able to help deaf employees understand what they needed to do to ensure that they were reasonably accommodated at work.

    If Williams’ testimony at trial strays into the governing law, a contemporaneous objection can address this concern

    Walmart challenged five of Williams’s opinions as impermissible legal conclusions. Those opinions are that Walmart “failed to provide effective communication,” “prevented Moore and Montoya from having access to the range of employment-related knowledge,” “did not provide effective accommodation which would have allowed Moore and Montoya to enjoy all the benefits and privileges of their employment,” “did not provide an effective interpreter,” and that “Walmart’s procedure for filing and documenting a disability and requesting accommodation is inherently inaccessible for individuals who are deaf.” 

    The legal conclusions that the jury must decide are whether Walmart failed to accommodate Montoya and Moore’s disabilities and whether Montoya and Moore were constructively discharged. Williams’ opinions are premised on his explanation of deafness, communication, and Montoya and Moore’s specific abilities and limitations.

    While some of the language in Williams’ opinion mirrors the legal standard, the Court held that he does not attempt to opine on what the law requires or whether Walmart complied with specific federal statutes.

    Walmart has not shown that the extraordinary remedy of excluding evidence based on the danger of unfair prejudice is warranted

    Walmart’s final argument to exclude Williams’s testimony is that his opinion is more prejudicial than probative.

    Walmart relied on the same arguments it made above. It asserted that Williams encroaches on the jury’s role, provides unhelpful opinions, and that his opinions are unreliable. Those arguments have already been rejected, so Walmart has not shown that the extraordinary remedy of excluding evidence based on the danger of unfair prejudice is warranted.

    Held

    The Court denied Walmart’s motion to preclude the testimony of EEOC’s expert, Roger Williams.

    Key Takeaway:

    Walmart’s argument appeared to rely on the fact that Williams’ statement about Duvall is based on a contested fact. Walmart has not pointed to any authority suggesting that an expert may only rely on uncontested facts to support his or her conclusions. Rather, experts regularly rely on deposition testimony to form their opinions.

    It may be different if Williams’ entire opinion were that Duvall refused powerlifting equipment training for Montoya and Moore because they were deaf. Instead, it is one fact among fourteen pages of facts and data that Williams considered in forming his opinions about the effectiveness of Walmart’s accommodations. 

    Walmart may attempt to disprove the allegation that Williams relies on or make a contemporaneous objection if the helpfulness of Williams’ opinions regarding powerlifting equipment lessens after Walmart’s summary judgment motion is resolved. But Walmart’s concerns do not support a pretrial ruling excluding Williams’ opinion. 

    Case Details:

    Case Caption: Equal Employment Opportunity Commission V. Walmart Inc.
    Docket Number: 2:23cv2395
    Court Name: United States District Court, Kansas
    Order Date: August 08, 2025
  • ASL Expert’s Testimony on Language Proficiency Excluded

    ASL Expert’s Testimony on Language Proficiency Excluded

    Marie Rose Lennox Wing was deaf and used American Sign Language (“ASL”) to communicate. She passed away after three visits to Dignity Health hospitals over the course of a month.

    Her estate and family members brought this lawsuit following her death. It argued that Dignity Health violated state and federal law by requiring family members interpret for Wing during her hospital visits.

    Dignity Health’s expert Ann Witter-Merithew opined Wing had “some proficiency in reading and writing English” and could understand non-ASL communications occurring in a hospital setting. She further opined Dignity Health “was prepared to and perhaps offered [interpretive] services,” but Wing declined those services because she preferred to communicate through family members. Finally, Witter-Merithew opined on the dynamic between deaf parents, their children, and medical providers.

    Plaintiffs’ Daubert motion challenges the admissibility of Witter-Merithew’s expert opinion under Rule 702 of the Federal Rules of Evidence.

    American Sign Language Expert Witness

    Ann Witter-Merithew spent over fifty years as an ASL translator and instructor. Her career involved working in complex environments, including interpreting for criminal and civil court cases, family and individual counseling, in-patient treatment programs and healthcare and rehabilitative treatments.

    Witter-Merithew has experience interpreting for deaf parents in medical
    settings. She also holds a bachelor of professional studies degree in linguistics and interpreting, a master’s degree in education, and multiple certifications.

    Want to know more about the challenges Ann Witter-Merithew has faced? Get the full details with our Challenge Study report. 

    Discussion by the Court

    Qualifications

    Plaintiffs challenged Witter-Merithew’s ability to review and interpret Wing’s medical records instead of her general qualifications as an expert on [ASL], ASL interpreting, and deaf culture.

    The Court held that Witter-Merithew is a qualified expert based on her skill, training, education, and experience. She can use Wing’s medical records to the extent they allow her to render an opinion within her area of expertise.

    To the extent Witter-Merithew lacked experience using medical records or normally does not rely on them when determining if interpretive services were offered, those arguments are best left for cross examination.

    Sufficient Facts or Data

    Plaintiffs argued that Witter-Merithew’s opinions largely relied “on a cursory review and interpretation of medical records” and demonstrated a lack of firsthand knowledge about the events leading to this lawsuit.

    Plaintiffs pointed to portions of Witter-Merithew’s expert report about the use of Video Remote Interpreting (“VRI”) services with Wing. They argued that the report’s reasoning demonstrated that Witter-Merithew lacked “specific knowledge about the VRI system[s] used at [Dignity Health] facilities and [their] effectiveness for Wing.”

    To begin with, Witter-Merithew relied on over 2,000 pages of medical records, filings in this case, policy manuals from Dignity Health, and “research and literature from the field of deafness and ASL-English interpreting” to create her opinions.

    The Court held that there is no requirement for the experts to have firsthand knowledge about the events leading to a lawsuit.

    Experts also can extrapolate on existing facts, such as medical records and the availability of VRI systems, to generate novel theories.

    Reliable Principles and Methods

    Plaintiffs argued that Witter-Merithew provided two unreliable opinions. The first concerned Wing’s language use and ability to communicate through mediums like ASL and written English. The second concerned family members interpreting for Wing.

    The Ninth Circuit Court of Appeals provided unique factors to assess the reliability of experience-based expert testimony in United States V. Holguin, 51 F.4th 841, 855. The Holguin factors are “whether the expert’s experience supports [their] conclusion; whether the expert’s reasoning is circular, speculative, or otherwise flawed; or whether the expert’s reasoning is adequately explained.”

    Language Use by Wing

    Due to Wing’s death, Witter-Merithew could not conduct a formal language and communication assessment and could not interview Wing “about the quality and effectiveness of [services] she received” from Dignity Health. Witter-Merithew instead had to rely on “the reporting of others” to assess language usage and Wing’s ability to communicate.

    Witter-Merithew opined Wing had “some” proficiency in speech, “some proficiency in reading and writing English,” and was fluent in ASL. She further opined Wing could understand non-ASL communications in a hospital setting.

    By relying on medical records and family history, Witter-Merithew attempts to determine language proficiency based on third-party accounts of interactions with Wing. How others perceive Wing’s proficiency is relevant to the analysis. But it is too speculative to be the basis of Witter-Merithew’s opinion.

    While Witter-Merithew’s experience allowed her to opine on Wing’s language proficiency, the Court held that Wing’s language proficiency depends on her ability to understand and communicate information.

    Witter-Merithew’s opinion relied on medical records and family history to determine Wing’s non-verbal language proficiency. This deviates from the customary approach taken in ASL discrimination cases. ASL discrimination experts typically use scientific tests and methods to assess a hearing-impaired individual’s ability to communicate.

    The different approach that Witter-Merithew used is not determinative of reliability. The Court held that language proficiency is not something readily discernible from experience alone. In other words, Witter-Merithew, as a knowledge and experience expert, must provide some methodology explaining how she applied her background to the facts of this case.

    The Court found that Witter-Merithew did not make such a showing. Her opinion did not identify any knowledge or experience applicable to her analysis of this issue.

    Language Brokering

    Witter-Merithew did not interview Wing’s family members. She therefore did not opine on the family member’s ASL proficiency or “whether the means of communication family [members] used with Wing and hospital staff was effective.”

    However, she concluded that family members interpreting for Wing was likely due to her personal preference, rather than a lack of resources from Dignity Health.

    The Court held that Witter-Merithew’s opinions are reliable. Witter-Merithew can opine on language brokering and Wing’s preference for communicating through family members.

    Relevance

    Plaintiffs argued that Witter-Merithew’s “[o]pinion about the shortage of sign language interpreters” was irrelevant.

    While Witter-Merithew opines there is a general shortage of ASL interpreters in the United States, the Court held that she did not explain how this applies to the facts of this case.

    Indeed, Witter-Merithew testified at her deposition that the interpreter shortage did not relate to Dignity Health or its treatment of Wing. Relevance requires that expert testimony have underlying knowledge with “a valid connection to the pertinent inquiry.”

    Prejudice

    Plaintiffs argued that Witter-Merithew’s testimony and opinions about the use of family members for interpreting poses a significant risk of confusion and misleading jurors.

    However, Witter-Merithew provided a valid rebuttal opinion that offered an alternative explanation to the opposing expert’s conclusion about Dignity Health refusing to provide interpretive services, forcing family members to interpret for Wing. The Court held that there is no risk of confusion and jurors will not be misled.

    Held

    The Court granted in part and denied in part the Plaintiffs’ Daubert Motion regarding the testimony of Defendant’s expert Anna Witter-Merithew.

    Key Takeaway:

    Witter-Merithew was required to explain why her knowledge or experience led her to believe certain facts demonstrated a certain level of proficiency from Wing. Witter-Merithew, by not connecting her knowledge or experience to the opinion, did not adequately explain why she believes Wing was fluent in ASL and somewhat proficient in other forms of non-verbal communication.

    Case Details:

    Case Caption: Macaraeg Et Al V. Dignity Health Et Al
    Docket Number: 2:23cv990
    Court Name: United States District Court, Arizona
    Order Date: June 3, 2025