Court Finds Non-Disclosure of Treating Physician as Expert Witness Prejudicial Against Defendant

ByWendy Ketner, M.D.

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Updated onJanuary 11, 2022

Court Finds Non-Disclosure of Treating Physician as Expert Witness Prejudicial Against Defendant

Court: United States District Court for the Western District of Oklahoma
Jurisdiction
: Federal
Case Name
: EEOC v. Brown-Thompson Gen. P’ship
Citation
: 2019 U.S. Dist. LEXIS 143688

Facts

The plaintiff, the Equal Employment Opportunity Commission, filed this action alleging that the defendant violated the Americans with Disabilities Act when it terminated one of its employees. The plaintiff alleged that the defendant failed to reasonably accommodate disabled employees by not providing them with modified duty or with compensation claims and by bringing about a policy that did not allow workers more than three consecutive days of absence instead of providing them with the opportunity to take additional leave.

The defendant filed a motion to strike declarations in plaintiff’s motion for partial summary judgment along with another motion to strike declarations in the plaintiff’s response to defendant’s motion for summary judgment, arguing that the declarations by the plaintiff’s treating physician consisted of expert testimony which was improper as she had not been identified as a physician expert witness by the plaintiff.

The Physician Expert

The plaintiff’s treating physician was board-certified in psychiatry and neurology and licensed to practice medicine in the state of Oklahoma. The physician had 20+ years of experience practicing in neurology, general neurology, and neurophysiology at multiple hospitals in Oklahoma. After she received her medical degree, she completed an internship in internal medicine, a fellowship in clinical neurophysiology, and a neurology residency at Temple University Hospital.

Discussion

The court noted that the treating physician’s testimony that the victim’s condition would have worsened in the absence of treatment constituted expert testimony. This went beyond the expert’s personal knowledge and treatment of the patient and was thus considered speculation that attempted to predict the consequences of specific circumstances on the patient’s health and well-being. The court also considered various other portions of the physician’s testimony to be expert and not lay opinion, as they were based on knowledge that was not restricted to the physician’s treatment of the patient.

The court found all challenged declarations of the physician expert to contain both permissible lay testimony and impermissible expert testimony. Moreover, the court believed that the plaintiffs had failed to show that their non-disclosure of the physician as an expert witness to their case was not prejudicial against the defendant, as it did not allow the defendant to depose the expert or find their own rebuttal expert. Thus, the plaintiff’s action could not be considered to be harmless or substantially justified. The court felt that there was a lack of clarity in determining whether there was mala fide intention in the plaintiff’s non-disclosure of the physician as an expert witness.

Held

The court found that the plaintiff had relied on improper expert testimony to provide evidence in support of plaintiff’s motion for partial summary judgment and struck the contested filings in their entirety.

About the author

Wendy Ketner, M.D.

Wendy Ketner, M.D.

Dr. Wendy Ketner is a distinguished medical professional with a comprehensive background in surgery and medical research. Currently serving as the Senior Vice President of Medical Affairs at the Expert Institute, she plays a pivotal role in overseeing the organization's most important client relationships. Dr. Ketner's extensive surgical training was completed at Mount Sinai Beth Israel, where she gained hands-on experience in various general surgery procedures, including hernia repairs, cholecystectomies, appendectomies, mastectomies for breast cancer, breast reconstruction, surgical oncology, vascular surgery, and colorectal surgery. She also provided care in the surgical intensive care unit.

Her research interests have focused on post-mastectomy reconstruction and the surgical treatment of gastric cancer, including co-authoring a textbook chapter on the subject. Additionally, she has contributed to research on the percutaneous delivery of stem cells following myocardial infarction.

Dr. Ketner's educational background includes a Bachelor's degree from Yale University in Latin American Studies and a Doctor of Medicine (M.D.) from SUNY Downstate College of Medicine. Moreover, she is a member of the Board of Advisors for Opollo Technologies, a fintech healthcare AI company, contributing her medical expertise to enhance healthcare technology solutions. Her role at Expert Institute involves leveraging her medical knowledge to provide insights into legal cases, underscoring her unique blend of medical and legal acumen.

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