Appeals Court, Again: No Expert Testimony Required to Demonstrate Disability

Once again, the Tenth Circuit Court of Appeals has overruled a federal trial court’s dismissal of a case because the plaintiff did not provide expert testimony to prove her disability. From time to time, federal courts have dismissed cases brought under the Americans with Disabilities Act (ADA) under the theory that summary judgment should be granted if a plaintiff does not provide expert testimony on their disability.

The case is Tesone v. Empire Mktg. Strategies (10th Cir. Nov. 8, 2019). The plaintiff in Tesone was a traveling salesperson who set up retail displays. The facts at issue in the case include an “unapproved motel stay” while the plaintiff was traveling. Her employer asked for a doctor’s note, which she provided four months later, indicating that she checked into the hotel due to a back condition. The plaintiff was terminated in 2017 for other policy violations unrelated to the motel stay.

During the trial, the employer filed for summary judgment. The trial court granted summary judgment based solely on the fact that the plaintiff had not provided expert testimony about her back condition. When the plaintiff then tried to introduce expert testimony, the trial court denied the request.

On appeal, the Tenth Circuit panel determined that, unless a medical condition requires expert testimony to be understood by a lay jury, summary judgment solely on that basis is inappropriate. Conversely stated, if a lay jury can understand a medical condition without expert testimony, then no expert testimony must be presented. In so holding, the Tenth Circuit appeals court relied on a similar case from just five years ago, Felkins v. City of Lakewood (10th Cir. 2014).

The Tenth Circuit covers Colorado, Wyoming, Utah and other surrounding states. If you are an employer in those states and believe an employee is not meeting job expectations and is using a medical condition as an excuse, make sure you have information from a medical provider at the time of the incident. The court is not going to require an employee to bring in a medical expert at the time of trial.