Carmichael v. VERSO PAPER, LLC, CV-08-402-B-W.

• Court: United States District Courts. 1st Circuit. United States District Court (Maine)
• Citation: 679 F. Supp.2d 109
• Docket Number: No. CV-08-402-B-W.,CV-08-402-B-W.
• Parties: David CARMICHAEL, Plaintiff, v. VERSO PAPER, LLC, Defendant.
• Decision Date: 05 January 2010

679 F.Supp.2d 109

David CARMICHAEL, Plaintiff,
v.
VERSO PAPER, LLC, Defendant.

No. CV-08-402-B-W.

United States District Court, D. Maine.

January 5, 2010.

679 F. Supp.2d 116

Lisa J. Butler, Julie D. Farr, Gilbert & Greif, P.A., Bangor, ME, for Plaintiff.

Frank T. McGuire, Rudman & Winchell, Bangor, ME, Tim K. Garrett, Bass Berry Sims PLC, Nashville, TN, for Defendant.

ORDER ON MOTION FOR SUMMARY JUDGMENT AND MOTION TO EXCLUDE THE TESTIMONY OF GORDON T. CALDWELL, M.D.

JOHN A. WOODCOCK, JR., Chief District Judge.

On August 1, 2006, Verso Paper, LLC (Verso) terminated David Carmichael's employment because he had not worked for twelve consecutive months. Mr. Carmichael filed disability discrimination and whistleblower actions against Verso, claiming that its termination violated state and federal law. Verso moved for summary judgment on all claims and also moved under Daubert to exclude portions of the anticipated testimony of Mr. Carmichael's physician expert.¹ With the exception of Mr. Carmichael's state whistleblower's claim, which the Court concludes is preempted by federal law, the Court denies Verso's motion for summary judgment. Because Mr. Carmichael's expert has a sufficient foundation upon which to base his medical opinions, the Court also denies Verso's Daubert motion to exclude his testimony.

679 F. Supp.2d 117

I. STATEMENT OF FACTS²

Mr. Carmichael was employed by International Paper Company (IP) from April 2000 until August 1, 2006. PI.'s Statement of Material Fact at ¶ 104 (Docket # 46) (PSMF); Def.'s Statement of Material Fact at ¶ 1 (Docket # 31) (DSMF). On August 1, 2006, Verso purchased the mill from IP. PSMF at ¶ 104; DSMF at ¶ 1. As of Verso's purchase, Mr. Carmichael was employed as a dual millwright/pipefitter. PSMF at ¶ 104; DSMF at ¶ 2.³

Mr. Carmichael suffered several work injuries that necessitated physical restrictions. PSMF at ¶ 105; DSMF at ¶ 2. Because of a 2002 back injury, Mr. Carmichael could not lift more than 50 pounds; because of a 2003 repetitive use injury in his arms, Mr. Carmichael needed to "pace" his work, limiting the frequency of grasping and repetitive hand use, and could not lift more than 25 pounds; and, because of a crushing injury to his chest in February 2005, Mr. Carmichael had to limit spinal torsion and for a time could not operate fork trucks. PSMF at ¶¶ 105, 107.

As a result of these last restrictions, IP temporarily assigned Mr. Carmichael to work as a planner's assistant from July 2005 to March 2006, but in March 2006, Mr. Carmichael returned to work as millwright/pipefitter. Id. at ¶¶ 109, 110. When Verso purchased IP in August 2006, Mr. Carmichael was working as a millwright/pipefitter pursuant to various restrictions that limited the frequency and weight of lifting, twisting, climbing, grasping, and repetitive hand movements. PSMF at ¶ 105; DSMF at ¶ 10.⁴ Mr. Carmichael experienced an increase in pain during the summer of 2006. PSMF at ¶ 123.⁵

On August 24, 2006, Verso suspended Mr. Carmichael from work for an unrelated job incident. PSMF at ¶ 124; DSMF at ¶ 14. Mr. Carmichael was scheduled to return to work on November 3, 2006 but at the return to work meeting an issue arose as to his work restrictions. PSMF at ¶ 127; DSMF at ¶¶ 22, 23. Verso stated, based on a recent Worker's Compensation Commission decree relating to his February 2005 chest injury, that Mr. Carmichael could return to work without restrictions. Id. Mr. Carmichael disagreed and produced two letters from his treating physicians (M-1 forms) listing his restrictions. PSMF at ¶ 127; DSMF at ¶ 22. Verso refused to let him return to work before he met with Dr. Craig Curtis, Verso's mill doctor. PSMF at ¶ 128; DSMF at ¶¶ 24, 25.

On November 6, 2006, Mr. Carmichael met with Dr. Curtis. PSMF at ¶¶ 127-29; DSMF at ¶ 26. Dr. Curtis, at a minimum, had reviewed the worker's compensation

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decree and the two M-1 forms. Id.⁶ Dr. Curtis stated that he did not have enough information to make a medical judgment, did not allow Mr. Carmichael to return to work, and requested Mr. Carmichael's medical records. PSMF at ¶ 130; DSMF at ¶ 27. The medical records were provided in December 2006 and Mr. Carmichael authorized Dr. Curtis to access his IP medical file. PSMF at ¶ 132; DSMF at ¶ 28.⁷ Mr. Carmichael had met with both his treating physicians in the fall: with Dr. Gordon Caldwell about his chest and back injury, DSMF at ¶ 19, and with Dr. Richard Flaherty about his wrist injury. Id. at ¶ 21. In response to a request by Dr. Curtis, Drs. Caldwell and Flaherty provided information regarding Mr. Carmichael's restrictions in January 2007. DSMF at ¶¶ 32, 34.

Another return to work meeting was held on January 8, 2007. PSMF at ¶ 133; DSMF at ¶ 31. Mr. Carmichael requested accommodation, but Verso stated that the company did not have sufficient information about Mr. Carmichael's restrictions to allow him to return to work. PSMF at ¶ 136; DSMF at ¶ 31. Verso contacted the two doctors for clarification. DSMF at ¶ 31. In February 2007, Dr. Caldwell and Dr. Flaherty submitted health assessment forms to Verso. PSMF at ¶ 149.

On March 6, 2007 Mr. Carmichael filed a charge of discrimination with the Maine Human Rights Commission (MHRC) alleging that Verso was preventing him from working in retaliation for various whistle-blowing activities. PSMF at ¶ 154. During a March 26, 2007 return to work meeting, Verso reiterated that it had insufficient information about Mr. Carmichael's restrictions to return him to work. PSMF at ¶ 151. On April 19, Verso again requested additional information from both Dr. Caldwell and Dr. Flaherty, which both doctors provided. PSMF at ¶ 152. A final return to work meeting was held on June 5, 2007 in which Verso refused to allow Mr. Carmichael to be removed from disability leave. PSMF at ¶ 158. On July 5, 2007, Dr. Caldwell met with Mr. Carmichael and sent forms describing his restrictions to Verso. On July 10, 2007, Dr. Mainen examined Mr. Carmichael and the results were sent to Verso. PSMF at ¶ 160. On September 9, 2007, Verso terminated Mr. Carmichael pursuant to the Collective Bargaining Agreement (CBA) because he had not worked for twelve consecutive months. PSMF at ¶ 168; DSMF at ¶¶ 58-60.

On October 29, 2008, Mr. Carmichael filed a complaint in state court against Verso for disability discrimination under the American with Disabilities Act (ADA) and the Maine Human Rights Act (MHRA). Compl. (Docket # 1-2); he also alleged whistleblower retaliation under the Maine Whistleblower's Protection Act (MWPA) and the MHRA. On November 21, 2008, Verso removed the action to this Court based on diversity. Notice of Removal (Docket # 1). On July 10, 2009, Verso filed a Motion for Summary Judgment, Mot. for Summ. J., (Docket # 21), and on the same day, filed a Motion to Exclude the Testimony of Gordon T. Caldwell, M.D. Mot. to Exclude the Testimony

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of Gordon T. Caldwell, M.D. (Docket # 22) (Mot. to Exclude).

On July 30, 2009, Mr. Carmichael filed an Opposition to Defendant's Motion to Exclude the Testimony of Gordon T. Caldwell. (Docket # 36) (Opp'n to Exclusion). On August 10, 2009, Verso filed a Response in Support of its Motion to Exclude the Testimony of Gordon T. Caldwell. (Docket # 38) (Resp. in Supp. of Exclusion). On August 20, 2009, Mr. Carmichael filed a Response in Opposition to the Motion for Summary Judgment. (Docket # 44) (Opp'n to Summ. J.). On September 14, 2009, Verso filed a Reply to the Response in Opposition to the Motion for Summary Judgment. (Docket # 52) (Reply to Opp'n to Summ. J.).

II. DISCUSSION

A. Exclusion of Dr. Caldwell's Testimony

Verso has moved to exclude Dr. Caldwell's evidence. Mot. to Exclude. Verso acknowledges that Dr. Caldwell is "qualified as an expert by knowledge, skill, experience, training, or education" and that his proposed testimony is "the product of reliable principles and methods." Fed.R.Evid. 702. The crux of Verso's motion is that when Dr. Caldwell rendered his expert opinions at his deposition, he did not have a sufficient factual foundation upon which to base his medical judgments. It contends that his opinions are based on such a shaky foundation that they should be inadmissible at the summary judgment stage and later at trial. Resp. in Supp. of Exclusion at 4-5.

The adequacy of an evidentiary foundation for the admissibility of an expert opinion can be properly challenged with a Daubert motion. One of Rule 702's requirements is that the expert testimony must be "based on sufficient facts or data," Fed.R.Evid. 702, and the Supreme Court imposes a gate-keeping function on the trial judge "to ensure that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand.'" United States v. Mooney, 315 F.3d 54, 62 (1st Cir.2002) (quoting Daubert, 509 U.S. at 597, 113 S.Ct. 2786). Nevertheless, exclusion of expert testimony under Daubert for lack of foundation is rare for at least a couple of reasons.

First, when the adequacy of the foundation for the expert testimony is at issue, the law favors vigorous cross-examination over exclusion. The Court addressed a similar question in Brown v. Wal-Mart Stores, Inc.:

The Defendant's in limine assault on the factual basis underlying the expert's conclusions is misplaced. As a general rule, the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in cross-examination. Larson v. Kempker, 414 F.3d 936, 941 (8th Cir.2005) (quotations and citations omitted); see also Brown v. Wal-Mart Stores, Inc., 198 F.3d 244, 1999 WL 1111514, at *3 (6th Cir.1999) (per curiam) (unpublished opinion) ("Where . . . opposing counsel has the opportunity to cross-examine an expert witness as to a factual basis, exclusion of the testimony is generally inappropriate."); Hose v. Chicago Nw. Transp. Co., 70 F.3d 968

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