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LeMaire v. Monster Energy Co.

United States District Court, W.D. Arkansas, Fayetteville Division

August 30, 2018

BELINDA LEMAIRE PLAINTIFF
v.
MONSTER ENERGY COMPANY DEFENDANT

          OPINION AND ORDER

          P.K. HOLMES, III CHIEF U.S. DISTRICT JUDGE

         Before the Court is Defendant's motion (Doc. 33) to require Plaintiff to submit to an independent medical examination. Defendant has filed a brief in support (Doc. 34) and Plaintiff has filed a response (Doc. 35) and brief (Doc. 36) in opposition. Defendant has separately filed a motion in limine (Doc. 39) to exclude expert opinion testimony by Plaintiff's expert, Dr. Tina Merritt, and a brief (Doc. 40) in support. Plaintiff has filed a response (Doc. 42) and brief (Doc. 43) in opposition to the motion to exclude. Several of these documents are filed with access restricted to the Court and the parties because they address Plaintiff's medical history. The motions will be granted as set forth herein.

         Plaintiff asserts several claims against Defendant for violations of the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act (ADEA), and the Arkansas Civil Rights Act (ACRA). With respect to her disability-based claims, Plaintiff asserts that she has a severe allergy to seafood that qualifies as a disability and that Defendant has discriminated against her and refused to accommodate her on the basis of this disability.

         Defendant's motion for an independent medical exam argues that in the course of the accommodation process and discovery during this lawsuit, it has become clear that there is no objective evidence Plaintiff suffers from an allergy that requires accommodation. Defendant asks the Court to order Plaintiff to submit to an appropriate medical examination under Federal Rule of Civil Procedure 35. The Court may enter such an order if a party's medical condition is in controversy, there is good cause for the examination, and the order specifies “the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it.” Fed.R.Civ.P. 35(a)(2).

         There is no question that Plaintiff has placed her medical condition in controversy. Some of her ADA claims depend on her showing that she is a disabled person within the meaning of the statute. A person is disabled if she has “(A) a physical or mental impairment that substantially limits one or more of [her] major life activities . . .; (B) a record of such impairment; or (C) [is] regarded as having such an impairment.” 42 U.S.C. § 12102(2). Plaintiff alleges that she has a seafood allergy that is so severe that she can suffer anaphylaxis just from being in the vicinity of seafood. Because Defendant's office where Plaintiff is employed to work is located in the same building as a seafood restaurant, it is this allergy for which she seeks accommodation. Defendant disputes Plaintiff's evidence of her allergy. Therefore, Plaintiff's medical condition is in dispute.

         There is also good cause to order Plaintiff to submit to a medical examination. The dispute over whether Plaintiff has a medical condition that substantially limits one or more of her major life activities is central to this litigation. Whether any physical impairment substantially limits a major life activity, and what accommodations are reasonable for such a physical impairment, are issues that can be resolved only on the basis of evidence that is probative of the nature of the physical impairment. Although Plaintiff's testimony regarding her own physical reactions is relevant to resolving the ultimate issues in this case, because Plaintiff's medical condition is in controversy, and because an expert's opinion regarding Plaintiff's medical condition likely will help the Court understand the evidence or determine the facts, there is good cause to require Plaintiff to submit to examination by an expert.

         Plaintiff has already voluntarily submitted to a medical examination by her own expert witness, Dr. Tina Merritt, who diagnosed Plaintiff with a seafood allergy. After a full and careful review of the January 19, 2018 deposition of Dr. Merritt, however, the Court will exclude from trial any opinion testimony offered by Dr. Merritt regarding Plaintiff's medical condition.

         A medical diagnosis by a treating physician is an expert opinion and is subject to the same standards of admissibility as any other expert opinion. Turner v. Iowa Fire Equip. Co., 229 F.3d 1202, 1207 (8th Cir. 2000) (“A treating physician's expert opinion on causation is subject to the same standards of scientific reliability that govern the expert opinions of physicians hired solely for the purposes of litigation.”). Regarding the admissibility of expert opinions, Federal Rule of Evidence 702 allows that:

         A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. Though the Court was unable to verify[1] that Dr. Merritt has maintained the board certification she claims to have, Dr. Merritt appears to be qualified as an expert on account of her knowledge, skill, experience, training, or education. (Doc. 36-1, pp. 4-5 (Deposition of Tina Merritt, M.D., pp. 11:16-16:7 (Jan. 19, 2018) (hereinafter “Merritt Deposition”) (testifying about her education and experience)); (Doc. 36-1, p. 20 ...


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