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Buser v. Eckerd Corporation

United States District Court, E.D. North Carolina, Western Division

March 27, 2015

JAMES BUSER, Plaintiff,
ECKERD CORPORATION d/b/a/RITE AID, a subsidiary of RITE AID CORPORATION, Defendant.[1]


LOUISE W. FLANAGAN, District Judge.

This case comes before the court on defendant's motions to exclude the testimony and reports of plaintiff's proffered experts Jean Hutchinson ("Hutchinson") and Rodney Richmond ("Richmond") (DE 71, 73). The motions have been briefed fully and now are ripe for ruling. For the reasons that follow, the court grants defendant's motion to exclude Hutchinson and grants in part defendant's motion to exclude Richmond.


On November 19, 2012, plaintiff, formerly a pharmacist with defendant Eckerd Corporation, doing business as Rite Aid Pharmacy ("Rite Aid"), filed suit in this court alleging violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and the Employment Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001, et seq. As relevant here, plaintiff contended defendant failed to accommodate his disability, Parkinson's disease, and terminated him in retaliation for requesting an accommodation.

The court set forth a more thorough discussion of the facts in its February 2, 2015, order on summary judgment ("Summary Judgment Order").[2] However, a brief recitation of the facts aids in understanding of the court's analysis of the issues currently pending.

Plaintiff was a long-time pharmacist with defendant from at least 1987 until his termination in September 2011. In 2009, plaintiff was diagnosed with Parkinson's disease, which caused tremors in his dominant right hand. Beginning in 2011, defendant required all pharmacist begin administering immunizations. Plaintiff protested this requirement, arguing his tremors made it unsafe for him to administer vaccinations. Plaintiff requested defendant exempt him from the vaccination requirement, or in the alternative, that defendant provide an automatic injector to allow him to administer injections without using an exposed needle.

After approximately a month of discussion regarding proposed accommodations for plaintiff's disability, beginning August 2011, defendant terminated plaintiff. Defendant gave as its reason for terminating plaintiff his inability or unwillingness to administer immunizations, which it deemed to be an "essential job function, " as defined by the ADA. After a period of discovery, the parties cross-moved for partial summary judgment.

On March 21, 2014, the court entered order requiring the parties submit motions to exclude witnesses on or before May 12, 2014. Subsequently, on May 12, 2014, defendant filed two motions under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), seeking to exclude the reports and testimony of plaintiff's proffered expert witnesses, Hutchinson and Richmond.

Thereafter, on February 2, 2015, the court entered order granting in part defendant Rite Aid's partial motion for summary judgment and denied plaintiff's partial motion for summary judgment. As relevant here, on summary judgment the court parsed plaintiff's failure to accommodate claim on an issue-by-issue basis. The court determined that a failure to accommodate claim required plaintiff to show 1) he was disabled within the meaning of the statute; 2) defendant had notice of his disability; 3) he could have performed the essential functions of the position with a reasonable accommodation; and 4) defendant refused to make such accommodation. The court determined plaintiff had forecast sufficient evidence to create a genuine issue of material fact on whether he was disabled and whether immunizations are an essential function of his job. However, the court also held plaintiff failed to adduce sufficient evidence showing a reasonable accommodation existed, if immunization was determined to be an essential function of his job.


A. Standard of Review

The admission of expert testimony is governed by Rule 702 of the Federal Rules of Evidence. The proponent of the expert testimony bears the burden of establishing its admissibility by a preponderance of proof. Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 199 (4th Cir. 2001). A district court is granted broad latitude in making its determination on the admissibility of proposed expert testimony. United States v. Gastiaburo, 16 F.3d 582, 589 (4th Cir. 1994) ("The trial judge has broad discretion under Rule 702."). Review of the Daubert case law by the advisory committee shows that the rejection of expert testimony is the exception rather than the rule. Fed.R.Evid. 702 advisory committee's note (2000).

Rule 702 provides that expert testimony is appropriate when it "will assist the trier of fact to understand the evidence or to determine a fact in issue." Fed.R.Evid. 702. Rule 702 further provides that a witness qualified as an expert may be permitted to testify where "(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case." Id. Courts have distilled the requirements of Rule 702 into two crucial inquiries: whether the proposed expert's testimony is relevant and whether it is reliable. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999); Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993); United States v. Forrest, 429 F.3d 73, 80 (4th Cir. 2005). The trial court must carry out the special gate-keeping obligation of ensuring that expert testimony meets both requirements. Kumho Tire, 526 U.S. at 147; United States v. Moreland, 437 F.3d 424, 431 (4th Cir. 2006), overruling on other grounds recognized by United States v. Diosdado-Star, 630 F.3d 359 (4th Cir. 2011).

In order to be considered relevant, the proposed expert testimony must appear to be helpful to the trier of fact. See Daubert, 509 U.S. at 591-92. "Testimony from an expert is presumed to be helpful unless it concerns matters within the everyday knowledge and experience of a lay juror." Kopf v. Skyrm, 993 F.2d 374, 377 (4th Cir. 1993).

"[T]he test of reliability is flexible' and the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination.'" United States v. Wilson, 484 F.3d 267, 274 (4th Cir. 2007) (quoting Kumho Tire, 526 U.S. at 141-42). One factor pertinent to reliability is the proposed expert's qualifications. See Giddings v. Bristol-Myers Squibb Co., 192 F.Supp.2d 421, 425 (D. Md. 2002). A witness may qualify to render expert opinions in any one of the five ways listed in Rule 702: knowledge, skill, experience, training, or education. Kumho Tire, 526 U.S. at 147. The Fourth Circuit has ruled that when an expert's qualifications are challenged, "the test for exclusion is a strict one, and the purported expert must have neither satisfactory ...

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