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Smith v. Union Pacific Railroad

United States District Court, N.D. Illinois, Eastern Division

June 20, 2017

STANLEY SMITH, Plaintiff,
v.
UNION PACIFIC RAILROAD, Defendant.

          MEMORANDUM OPINION AND ORDER

          Robert M. Dow, Jr., United States District Judge

         Before the Court is Defendant Union Pacific Railroad's motion [112] to exclude the testimony of Plaintiff Stanley Smith's expert, Timothy Lalk. For the reasons set forth below, Defendant's motion [112] is granted. This case is set for status hearing on July 12, 2017 at 9:30 a.m.

         I. Background [1]

         In September 2005, while Plaintiff was employed by Defendant as a locomotive engineer, Plaintiff's driver's license was revoked for driving under the influence. Plaintiff reported the incident to Defendant, and he thereafter received a leave of absence through Defendant's Employee Assistance Program (“EAP”). In October 2005, the EAP referred Plaintiff to a clinician at Rush University Medical Center (“Rush”), John Houlihan, who oversaw Plaintiff's voluntary participation in both offsite inpatient and onsite outpatient treatment for chemical dependency. The Rush outpatient program specifically treated alcohol and cocaine abuse, and it was facilitated by Edward Lynch, a behavioral health clinician. On May 26, 2006, Lynch discharged Plaintiff from Rush's outpatient program and recommended that he “return to full work responsibilities, without restrictions, in conjunction with EAP, and employer.” See [117-1] (Lalk Deposition) at 69; see generally [113-5] (Lynch Deposition Excerpts) at 7-10. Mr. Houlihan thereafter recommended that Defendant engage another doctor, psychiatrist Stafford Henry, to conduct a full fitness-for-duty evaluation of Plaintiff, which Dr. Henry performed in August 2006. Dr. Henry ultimately recommended that Plaintiff complete additional items before being permitted to return to work, including at least one year of documented abstinence from alcohol and other mood-altering substances and the use of a C-Pap machine for Plaintiff's sleep apnea. See [113-4] at 15-16 (9/3/2006 Report of Dr. Henry). Accordingly, Defendant did not clear Plaintiff to return to work at that time.

         Plaintiff went on to participate in a one-year inpatient treatment program in Texas from January 2007 to January 2008. In June 2008, Dr. Henry conducted a re-evaluation of Plaintiff. Dr. Henry again recommended that Plaintiff complete additional items before returning to work, again including a four-to-six month period of documented abstinence and the use of a C-Pap machine. See [113-4] at 27-28 (7/5/2008 Report of Dr. Henry). Defendant began processing Plaintiff for return, but Plaintiff was not cleared for return by Defendant until July 2010, due to a delay in scheduling a required sleep study for Plaintiff and his difficulty in procuring a C-Pap machine.

         In 2011, Plaintiff filed this action against Defendant, alleging that it discriminated against him in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., on account of his alcoholism because Defendant did not allow Plaintiff to return to work in 2006 after his completion of the Rush outpatient program. See [37] at ¶¶ 15-18, 21, 31-40.

         In support of his claims, Plaintiff has retained Lalk, a vocational rehabilitation counselor, to render an opinion as to (1) when Plaintiff was fit to return to work, and (2) Plaintiff's damages. Lalk is a certified rehabilitation counselor and a Missouri-licensed professional counselor. See [117-2] (Lalk Expert Report) at 7. Lalk received a Master's degree in counseling from the University of Missouri-Columbia in 1979. Id. While working towards this degree, Lalk received instruction on chemical dependency counseling and he completed an internship that involved training in the subject area. See [117-1] at 32-37. He has worked in both public and private settings as either a vocational rehabilitation counselor or a vocational services specialist since 1979. [117-2] at 6. In his current position, which he has held since 1995, Lalk primarily conducts vocational rehabilitation evaluations for use in litigation. Specifically, Lalk reviews medical documentation and information regarding an individual's skills, training, and experience to determine that individual's employability and any needed accommodations. See [117-1] at 29. Lalk mainly testifies or otherwise offers opinions in Missouri workers' compensation lawsuits, civil cases in which an individual has sustained an injury that reduces his or her earning capacity, and marriage dissolution matters (where he evaluates the earning capacity of a spouse). See id. at 28-29. Lalk also has experience opining on disability-related matters before the Social Security Administration. Id. at 18-19. Since 2012, Lalk has offered testimony in more than 140 matters. See [117-2] at 8-19.

         Here, Lalk reviewed selected case documents in rendering his opinions, which are laid out in a four-page report. In particular, Lalk's report notes that he relied on: (1) Plaintiff's deposition and the exhibits thereto, (2) the deposition of EAP Director Dr. Mark Jones and the exhibits thereto, (3) “Rush Behavioral Records, ” (4) the September 3, 2006 Report of Dr. Henry, (5) the July 9, 2008 Report of Dr. Henry, [2] (6) “Union Pacific Progress Notes[], ” and (7) “Union Pacific Manual.”[3] See [117-2] at 5. Lalk's deposition testimony confirms that he did not independently interview or evaluate the Plaintiff in forming his opinions, and neither his report nor his deposition indicate that he consulted or relied on any specific industry or other materials in generating his opinions.[4] See [117-1] at 7; see generally [117-2]. His overall opinions are as follows:

Based on the materials reviewed referenced in the attachment and my education and experience[, ] I have formed the following opinions. First, [Plaintiff] successfully completed the intensive inpatient [sic] program at Rush Behavioral in May of 2006. At that time, he was fit to return to work and the Defendant should have undertook [sic] measures to return [Plaintiff] to work in May of 2006. Second, that even after [Plaintiff's] continued treatment[, ] the Defendant failed to allow [Plaintiff] to return to work. In late 2008, [Plaintiff] completed further treatment including that which Dr. Henry recommended. [Plaintiff] was fit to return to work at that time and was still not allowed to return. Finally, it is my opinion that the Defendant's failure to allow [Plaintiff] to return to work proximately caused damage to [Plaintiff] in the form of unpaid wages, medical bills[, ] and unnecessary professional fees.

[117-2] at 2. Defendant seeks to preclude Lalk from testifying as to all three opinions, arguing that (1) he is not qualified to opine on Plaintiff's fitness to return to work at any point; (2) his opinions are not based on a reliable principles, scientific method, or reliable data; and (3) his testimony will not assist the jury. See [113].

         II. Legal Standard

         Federal Rule of Evidence (“Rule”) 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), govern the admissibility of expert testimony. See United States v. Pansier, 576 F.3d 726, 737 (7th Cir. 2009). Rule 702 permits the admission of expert opinion testimony if “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” Id. (quoting Fed.R.Evid. 702). Trial courts are obligated to act as a “gatekeeper” to ensure that the expert testimony is both reliable and relevant. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147-49 (1999); Daubert, 509 U.S. at 589. The purpose of the Daubert inquiry is to scrutinize proposed expert witness testimony to determine whether it has “the same level of intellectual rigor that characterizes the practice of an expert in the relevant field” so as to be deemed reliable enough to present to a jury. Lapsley v. Xtek, Inc., 689 F.3d 802, 805 (7th Cir. 2012) (quoting Kumho Tire, 526 U.S. at 152).

         To determine reliability, the proponent must show that the expert's testimony is based on “sufficient facts or data” and that it is “the product of reliable principles and methods.” Fed.R.Evid. 702. The Daubert principles apply equally to scientific and non-scientific expert testimony. Kumho Tire Co., 526 U.S. at 147-49. Expert testimony may not be based on “subjective belief or unsupported speculation.” Daubert, 509 U.S. at 590; see also Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) (“A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.”). District courts have “great latitude in determining not only how to measure the reliability of the proposed expert testimony but also whether the testimony is, in fact, reliable.” Pansier, 576 F.3d at 737. And “any step that renders the analysis unreliable under the Daubert factors renders the expert's testimony inadmissible.” In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 745 (3d Cir. 1994).

         To determine relevance, the proponent must show that the expert's “reasoning or methodology properly can be applied to the facts in issue” and “the testimony will assist the trier of fact with its analysis of any of the issues involved in the case.” Daubert, 509 U.S. at 592-93; Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000); Fed.R.Evid. 702.

         Thus, in evaluating a motion to exclude expert testimony under Rule 702 and Daubert, the Court considers whether the proffered expert (1) is qualified, (2) has employed a reliable methodology, (3) offers opinions that follow rationally from the application of the expert's methodology and qualifications, and (4) presents testimony on a matter that is relevant to the case at hand. See Kumho Tire, 526 U.S. at 151-53; Gen. Elec. Co., 522 U.S. at 146; Daubert, 509 U.S. at 589-93; Bielskis v. Louisville Ladder, Inc., 663 F.3d 887, 893 (7th Cir. 2011) (explaining that ultimately, the expert's opinion “must be reasoned and founded on data [and] must also utilize the methods of the relevant discipline”). “The proponent of the expert bears the burden of demonstrating that the expert's testimony would satisfy the Daubert standard.” Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009). Still, the Court is mindful that question of whether the expert is credible or whether his theories are correct given the circumstances of a particular case is a factual one that is left for the jury to determine after opposing counsel has been provided the opportunity to cross-examine the expert regarding his conclusions and the facts on which they are based. Smith, 215 F.3d at 719.

         III. ...


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