Wagoner v. Lewis Gale Medical Center, LLC
7:15-cv-00570
W.D. Va.Dec 8, 2016Background
- Plaintiff Jim David Wagoner, a former hospital security officer, alleges Lewis Gale Medical Center violated the ADA by terminating him because of dyslexia, failing to accommodate him, and retaliating when he sought accommodation.
- Wagoner retained psychologist Andrea Foutz, who diagnosed him with a specific learning disability (dyslexia) and cognitive processing deficits based on testing and records; Lewis Gale moved to exclude her testimony.
- Lewis Gale retained psychiatrist Dr. Michel Gingras, who examined Wagoner, found dyslexia unsubstantiated, and diagnosed possible delusional and personality disorders and malingering; Wagoner moved to exclude Gingras’s reports.
- Foutz submitted an initial expert report timely and a July 7, 2016 letter responding to Gingras’s report after the rebuttal deadline; Lewis Gale sought exclusion and sanctions for the late letter.
- Gingras submitted an initial report and, after the court’s concern about temporal relevance, a supplemental report asserting the diagnosed conditions existed during Wagoner’s employment; the supplement also added a new opinion that Wagoner could not perform essential job duties, which Wagoner moved to exclude as untimely.
- The court resolved admissibility under Rule 702 and Rule 26/37 standards: it denied exclusion of Foutz’s initial report, excluded Foutz’s July 7 letter as untimely, excluded Gingras’s credibility/malingering testimony and the new untimely opinion in his supplement, and took other Gingras opinions under advisement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Foutz’s initial expert report | Foutz is qualified; her testing and diagnosis support disability claim | Foutz lacks adult-focused qualifications; used child-oriented tests; unreliable | Denied exclusion — qualified, reliable, relevant; challenges go to weight not admissibility |
| Admissibility of Foutz’s July 7, 2016 letter (rebuttal) | Letter not solicited; forwarded promptly; not intended as rebuttal report | Letter is untimely rebuttal under Rule 26; late disclosure warrants exclusion | Excluded as untimely under Rule 26 and Rule 37; no sanctions imposed |
| Admissibility of Gingras’s initial report and opinions | Gingras’s exam was simplistic; used improper tests; invaded jury’s role on credibility | Gingras is a qualified psychiatrist; differential diagnosis is proper; not disputing dyslexia but fitness for work | Testimony generally admissible; however, testimony assessing Wagoner’s credibility, malingering, and statements about settlement are excluded as invading jury province and prejudicial |
| Admissibility of Gingras’s supplemental report and new opinion that Wagoner could not perform essential duties | Supplement untimely and adds new opinion beyond correction | Supplement is proper under Rule 26(e) to clarify time-frame; but new opinion is part of supplementation | Supplement partially allowed to clarify timing; new opinion that Wagoner could not perform essential duties excluded as untimely |
Key Cases Cited
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (U.S. 1993) (trial judges act as gatekeepers assessing relevance and reliability of expert testimony)
- Westberry v. Gislaved Gummy AB, 178 F.3d 257 (4th Cir. 1999) (Rule 702 liberalizes admissibility of relevant expert evidence)
- Md. Cas. Co. v. Therm-O-Disc, 137 F.3d 780 (4th Cir. 1998) (courts should admit scientific testimony subject to testing by cross-examination and contrary evidence)
- Nichols v. Am. Nat'l Ins. Co., 154 F.3d 875 (8th Cir. 1998) (expert testimony impugning victim’s credibility and alleging malingering may be improper and prejudicial)
- United States v. Lespier, 725 F.3d 437 (4th Cir. 2013) (assessment of witness credibility is generally for the jury)