Virginia Lawyers Weekly VA Lawyers Weekly
Prior to trial of a hospital security guard’s disability bias claim, a hospital cannot exclude expert opinion testimony from a school psychologist who diagnosed plaintiff’s dyslexia on the grounds that her testing is designed for children; the court will exclude the defense expert psychiatrist’s opinions on plaintiff’s credibility, and defer ruling on his additional opinions.
Child psychologist
Plaintiff’s expert, a psychologist working in both educational settings and private practice, has assessed students and adults for learning disabilities, emotional disorders and dyslexia. Although her website appears to indicate that most of her work is with children and involves academic settings, the website also indicates that she assesses persons in college. College students are generally not minors and can be any age. There is no indication the expert’s education is limited to child psychology or school psychology. The fact that she may focus on children and the school setting does not mean she is not qualified to opine as to an adult. Academic skills, such as reading, by common sense and experience, can also affect a person’s abilities at work.
While defendant takes issue with the expert’s reliance on statements by plaintiff, defendant fails to demonstrate that plaintiff misrepresented his history. The expert also had the benefit of reviewing early evaluations of plaintiff to confirm the accuracy of his history. She also conducted extensive testing. Defendant is welcome to cross-examine her at trial with regard to whether the tests are the best test for adults, but there is no indication that the extensive testing or its results are unreliable, so as to warrant exclusion. Defendant also provides no support for its assumption that individually administered tests are not scientifically reliable.
The court will exclude plaintiff’s expert’s July 7, 2016 report/letter as a late disclosure that violates Rule 26. The court will not grant defendant’s motion for sanctions because the letter/report was not solicited by plaintiff and was properly sent to defendant as a supplement to discovery requests.
It was not intended to be a rebuttal report from plaintiff’s expert.
Defense expert
Defendant’s expert psychiatrist diagnosed plaintiff with delusional disorder with paranoid features, possible; personality disorder mixed type with paranoid and passive aggressive, narcissistic features; and malingering; and found plaintiff’s claims of dyslexia (per his history) unsubstantiated.
To the extent defendant can show at trial that the diagnoses support its argument that plaintiff could not perform his job, the diagnoses (except for malingering) may be relevant.
The defense expert’s report makes clear that he did not believe much of what plaintiff told him and focuses extensively on the psychiatrist’s opinion regarding plaintiff’s credibility. Defendant seemed to recognize that the expert would be limited in what he could say with regard to credibility. Because the jury can and should determine the credibility of witnesses, the expert will not be permitted to testify about plaintiff’s credibility, a desire to settle the case or malingering.
Even if the testimony were relevant, the court would exclude it under Rule 403 as unfairly prejudicial and confusing.
In looking to the bases of the diagnoses made by the defense expert, the report summarizes three tests he performed: a visual test, the Bender Gestalt test and a spelling and reading test. It does not appear from the report that these tests were designed to inform the expert’s comment regarding thought content or personality structure, or his diagnoses of delusional disorder with paranoid features, possible; personality disorder or malingering. Instead, it appears the expert must have relied heavily upon his personal interaction with plaintiff in making those diagnoses. The court will take the admissibility of his other opinions under advisement. The court also will decide at trial admissibility of the defense expert’s supplemental report, except for his new opinion about plaintiff’s ability to perform the job of hospital security guard, which is excluded.
Wagoner v. Lewis Gale Medical Center LLC (Dillon) No. 7:15cv570, Dec. 8, 2016; USDC at Roanoke, Va.; Thomas E. Strelka for plaintiff; Susan C. North for defendant. VLW 016-3-606, 13 pp.
