Tesone v. Empire Mktg. Strategies, No. 19-1026 (10th Cir. Nov. 8, 2019)

By Paul Mollica

It’s surprising that the district courts continue to get this wrong: the Tenth Circuit reverses summary judgment in an ADA case because the judge erroneously held that the plaintiff needed expert testimony to prove that she was disabled with a back injury.

Tesone v. Empire Mktg. Strategies, No. 19-1026 (10th Cir. Nov. 8, 2019): Tesone suffered from a back injury that imposed a medical restriction on lifting of 15 pounds, which she informed her employer Empire when she was hired. Her job involved traveling and resetting retail displays. Four years after she was hired, during an inquiry about an unapproved motel stay, she reminded the employer about her medical restriction (she checked into the motel for rest). When asked to produce a doctor’s note, she did so about four months later. In 2017, Tesone was later terminated, supposedly for violations of company policy.

On her ADA case, the district court granted summary judgment, holding that she could not meet her prima facie case because she “presented no expert medical evidence that any of her major life activities have been substantially limited by her alleged disability.” It also denied Tesone an extension of time to designate an expert and leave to amend her complaint to add ADA regarded-as and retaliation claims.

The Tenth Circuit reverses. It first holds that the district court did not abuse its discretion by denying Tesone’s request belatedly to add an expert to her case. Federal Rule of Civil Procedure 16(b)(4) provides that amendments to the scheduling order “may be modified only for good cause and with the judge’s consent.” The request was not diligent, made “nine months after the February 2018 expert disclosure deadline, seven months after indicating her intent to file, and three months after EMS’s motion for summary judgment.” Likewise, the panel affirms denial of the motion for leave to amend the complaint, holding that the new claims were based on facts that the plaintiff knew either at the inception of the case or (at the latest) some eight months before moving.

On the merits, the panel holds that the district court made an error of law when it granted summary judgment solely owing to the lack of expert testimony.

The court notes that while Tesone did not specifically raise this point in the district court, the forfeiture doctrine “does not apply when the district court explicitly considers and resolves an issue of law on the merits”; thus, if the lower court “passes upon” an issue, it is fair game on appeal. Here, the district court held that “expert medical evidence” is an “element of the prima facie case [of disability discrimination].”

The Tenth Circuit has demanded expert evidence when “a condition would be unfamiliar to a lay jury and only an expert could diagnose that condition.” One such case, Felkins v. City of Lakewood, 774 F.3d 647 (10th Cir. 2014), involved avascular necrosis-a “rare condition that can cause bone tissue to die from poor blood supply.” On the other hand, where the condition is ordinary and within a lay jury’s capacity to understand, such as back or knee pain, expert analysis is not necessary. “Ms. Tesone alleges she suffers from a back injury that impairs her ability to lift heavy objects. Unlike avascular necrosis, a back injury may not be ‘beyond the realm of common experience’ and may not ‘require the special skill and knowledge of an expert witness.'” Indeed, back pain is among the “least technical” injuries “in nature.”

The district court erred by “not perform[ing a] case-specific analysis to determine whether expert testimony is necessary to establish the particular disability alleged here.” Moreover, on remand the district court is directed to reconsider the admissibility of plaintiff’s doctor note on the issue of disability: while “[c]ourts have held that an unsworn doctor’s note is inadmissible hearsay and cannot be used to oppose summary judgment,” there may be circumstances where the court ought to in fairness consider such evidence, such as where both parties have relied on it without objection on summary judgment.