Crumpley v. Grocers

• Decision Date: 23 April 2018
• Docket Number: Case No. 16-2298-DDC
• Parties: JACOB A. CRUMPLEY, Plaintiff, v. ASSOCIATED WHOLESALE GROCERS, et al., Defendants.
• Court: U.S. District Court — District of Kansas

JACOB A. CRUMPLEY, Plaintiff, v. ASSOCIATED WHOLESALE GROCERS, et al., Defendants.

Case No. 16-2298-DDC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

April 23, 2018

MEMORANDUM AND ORDER

Plaintiff Jacob Crumpley has a seizure disorder. He alleges that defendants Associated Wholesale Grocers ("AWG") and Clarence M. Kelley and Associates, Inc. ("CMKA") took adverse employment actions against him because of his seizure disorder and thus violated the Americans with Disabilities Act, as amended, 42 U.S.C. § 12101 et seq. ("ADA"). Specifically, plaintiff alleges that defendants discriminated against him because of his seizure disorder and retaliated against him for opposing the discrimination practiced against him.

This matter is before the court on four motions. Plaintiff has filed two motions—a Motion to Exclude Certain Opinion Testimony of Dr. Jeffery Kaplan and Dr. Michael Seeley (Doc. 177) and a Motion for Partial Summary Judgment (Doc. 175). And each defendant has filed a Motion for Summary Judgment (Docs. 179 & 181).

In his motions, plaintiff seeks to exclude certain opinion testimony by Dr. Jeffery Kaplan and Dr. Michael Seeley—two of his treating neurologists. In a separate Motion for Partial Summary Judgment, plaintiff argues that his seizure disorder, as a matter of law, is a "disability" as the ADA defines that term.

Both defendants argue that they are entitled to summary judgment against all plaintiff's claims because he has failed, as a matter of law, to establish discrimination or retaliation. AWG also argues that it was not plaintiff's employer and the court thus cannot hold it liable on plaintiff's claims.

Because the court's ruling on plaintiff's Motion to Exclude Certain Testimony affects the facts comprising the summary judgment facts, the court begins with that motion. For the reasons discussed below, the court grants in part and denies in part plaintiff's Motion to Exclude Certain Testimony.

I. Plaintiff's Motion to Exclude Certain Opinion Testimony of Dr. Jeffery Kaplan and Dr. Michael Seeley (Doc. 177)

A. Background

Both Dr. Jeffery Kaplan and Dr. Michael Seeley are board-certified neurologists. Dr. Kaplan has been practicing neurology since 1991. Dr. Seeley has been practicing neurology since 1995. Individually, they have treated hundreds of patients with seizure disorders.

Plaintiff has a seizure disorder. Generally, this disorder causes him to experience seizures every three to six months. During past seizures, plaintiff has been unconscious for as long as 45 seconds. He characterizes the period after unconsciousness as "coming to," and he explained that it can take him up to five minutes to "come around." Doc. 183-2 at 4 (Crumpley Dep. 10:1-6). Sometimes, plaintiff does not sense any warning that he is about to experience a seizure.

Both Dr. Kaplan and Dr. Seeley have treated plaintiff for his seizure disorder. They treated him before, but not during, the period at issue in this lawsuit. During the treatment for his seizure condition, plaintiff's treating neurologists warned him about standard seizure precautions. These precautions warned that he should not drive a vehicle, work at certainheights, or work alone or be alone for extended periods of time during the six months after a seizure. The neurologists explained that people are more likely to have another seizure during the six months after a seizure. So, these precautions were designed to decrease plaintiff's risk of serious, adverse events that another seizure might pose. Because of the seriousness of the risk, driving within six months after a seizure is one of the most important precautions.

Plaintiff agrees that it is dangerous for him to drive a car in the six months after he has had a seizure. He understands he might crash the car and hurt himself or others. But plaintiff did not comply with the directives from his physicians against driving a vehicle because he needed to work and had no other way to get to work.

Both Dr. Kaplan and Dr. Seeley advised plaintiff of their understandings of the Kansas and Missouri vehicle laws governing a person who experiences seizures. Specifically, Dr. Seeley told plaintiff about the seizure precautions, including no driving within six months, and he even displays posters in his office about the illegality of driving in both Kansas and Missouri. Dr. Kaplan strictly cautioned plaintiff that it was illegal to drive during the six months after a seizure, and that he could "seriously hurt or even kill someone if he were to have an episode or seizure while driving." Doc. 180-3 at 9 (Kaplan Dep. 51:23-52:5).

Dr. Kaplan opined that plaintiff should not drive at all unless he has seizure surgery and is seizure-free for two years. He also opined that during the six months after a seizure, plaintiff should not pursue employment where driving and working alone are conditions of employment.

Dr. Michael Ferguson, plaintiff's primary care physician, also treated plaintiff. Dr. Ferguson is not a neurologist and he lacks any specialized training in neurology. Dr. Ferguson opined that a neurologist should provide seizure precautions, and specifically, those precautionsshould warn about driving a motor vehicle. On one occasion, Dr. Ferguson told plaintiff he should not drive until he was cleared to do so by a neurologist.

Plaintiff experienced a seizure on January 14, 2014, meaning his six-month seizure precautions last until July 14, 2014.

On January 16, 2017, plaintiff disclosed Dr. Ferguson as a non-retained expert in this case. See Doc. 66. On April 3, 2017, both CMKA and AWG disclosed Dr. Kaplan and Dr. Seeley as non-retained experts. See Docs. 97, 98 & 178-2.

Plaintiff seeks to exclude certain testimony by Drs. Kaplan and Seeley. Specifically, he seeks to exclude both neurologists from opining¹ on the following topics:

1. "[T]he effect of Plaintiff's seizure disorder on Plaintiff's qualification for employment with CMKA and other employers, [and] his ability to perform job duties at CMKA or other employers . . . ." Doc. 97 at 2 & 3.

2. "[T]he law in Kansas and Missouri on whether individuals with seizure disorders may operate a motor vehicle after experiencing a seizure . . . ." Doc. 178-2 at 1 & 2.

Plaintiff also seeks to exclude other opinions that the neurologists expressed in their depositions. Namely, plaintiff seeks to exclude the following opinions by Dr. Kaplan:

3. CMKA's Counsel: And if Mr. Crumpley was seeking employment that required driving a vehicle or working—well, let's take it one at a time. If he was seeking employment within the six months after January 14, 2014, where that job required him to operate a motor vehicle it would be your expectation that he would disclose his seizure disorder to his employer because of the driving requirement; correct?

Dr. Kaplan: Yes.

CMKA's Counsel: And same question with respect to working alone, if he was seeking employment with an employer who was offering him a job where he would be working alone you would expect him to disclose his seizure condition to that employer in those circumstances; true?

Dr. Kaplan: Yes.

Doc. 178-3 at 2 (Kaplan Dep. 56:10-57:1).

4. CMKA's Counsel: And if Mr. Crumpley was pursuing employment where driving was a condition of the employment it would be your opinion to him that he should not undertake that employment if he was within six months of a seizure; correct?

Dr. Kaplan: Yes.

CMKA's Counsel: And the same question I suppose as to a job that may involve him working by himself without anyone else around, if he were to seek that type of employment within the six-month window after a seizure it would be your opinion that he should not pursue that employment because of the danger to him—himself in that case?

Dr. Kaplan: Yes.

Id. at 1-2 (Kaplan Dep. 52:17-53:5).

And the following specific testimony from Dr. Seeley:

5. AWG's Counsel: So assuming all of that to be true and that one of his job duties involved driving a car, based on what you knew of his epilepsy and the fact that he had breakthrough seizures, I think reported in the medical records every three to four months, is that a job that you would have told him he was medically qualified to perform?

[objection omitted]

Dr. Seeley: If he was—I would not recommend operating a motor vehicle if it was—if he was not six months seizure free.

Doc. 178-4 at 1 (Seeley Dep. 50:13-51:2).

6. AWG's Counsel: If Mr. Crumpley was offered a position within two months of experiencing a seizure and he understood that one of his job duties was to drive a car, would you expect that he would volunteer that he had a seizure disorder?

[objection omitted]

Dr. Seeley: I have no idea what he would do.

AWG's Counsel: Let me ask you a different question. Would you advise him that he should let his employer know that he was not medically able to drive a car or shouldn't be driving a car because he had had a seizure within the past six year -six months?

[objection omitted]

Dr. Seeley: I would advise him that he should definitely let his employer know if he—if he is going to operate a motor vehicle, he should let his employer know that he has—has had seizures.

Id. at 1-2 (Seeley Dep. 52:6-53:1).

B. Analysis

Plaintiff argues that the court should exclude Drs. Kaplan and Seeley's testimony because it is inadmissible under Fed. R. Evid. 702 and the rubric inspired by Daubert.² Federal Rule of Evidence 702 provides:

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 to 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. The Supreme Court has described the trial judge's role under Rule 702 in this...