The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
DUSTIN BEMESDERFER,
Plaintiff,
v. Case No: 6:22-cv-270-PGB-EJK
UNITED PARCEL SERVICE,
INC.,
Defendant.
/
ORDER
This cause is before the Court on the Plaintiff’s Motion to Exclude the
Testimony of John J. Pinckney. (Doc. 116). The Defendant filed a Response in
Opposition. (Doc. 141).
I. BACKGROUND
The Plaintiff is employed by the Defendant as a package handler and is
hearing-impaired. (Doc. 12). To secure a position as a delivery driver, the Plaintiff
applied for and was granted a hearing exemption by the Federal Motor Carrier
Safety Administration (“FMCSA”). (Id. ¶¶ 18–22, 25). The issuance of a
Department of Transportation (“DOT”) card, which includes a hearing exemption,
is necessary for the Plaintiff to operate a commercial motor vehicle (“CMV”)
weighing between 10,001 and 26,000 pounds.1 (Id. ¶ 40). The Plaintiff presented
1 The FMCSA processes request for an exemption from the hearing standard for issuance of a
commercial motor vehicle license under 49 C.F.R. § 391.41(b)(11). Section 391.11 provides the
the DOT card to Defendant’s human resources department and was ultimately
informed that UPS does not participate in the FMCSA hearing exemption program.
(Id. ¶ 45). The Plaintiff asserts Defendant UPS is discriminating against him in
violation of the Americans with Disabilities Act (“ADA”) and the Florida Civil
Rights Act (“FCRA”). (Id. ¶¶ 66–120). He also brings claims for retaliation. (Id.).
Defendant UPS asserts 28 defenses, some of which are denials and not
defenses, but a few are worth noting:
5. Plaintiff is not a qualified disabled employee who can
perform the essential functions of his job with or without
a reasonable accommodation, including, inter alia,
because he cannot meet the requirements of the FMCSA
regulations, which is an essential function and/or
qualification standard, test, or selection criteria that is
job-related and consistent with business necessity.
9. Plaintiff’s alleged disability posed a direct threat to the
safety of Plaintiff and others that could not be eliminated
by reasonable accommodation.
(Doc. 32).
The Court issued a Case Management and Scheduling Order (“CMSO”) on
June 9, 2022, and set the deadline for disclosure of expert reports as March 1, 2023
for the Plaintiff and April 3, 2023 for the Defendant. (Doc. 34). The Court amended
rules “establish minimum qualifications for persons who drive commercial motor vehicles.”
“In order to grant an exemption, the Agency must ensure that each exemption would maintain
a level of safety equivalent to, or greater than, the level achieved without the exemption.” See
FMCSA, Hearing Exemption Application,
https://www.fmcsa.dot.gov/regulations/medical/hearing-exemption-application (last
updated Jan. 21, 2015). Under Section 391.41(a)(1)(i) and (ii), an individual possessing a
medical examiner’s certificate by virtue of having received a medical variance from FMCSA
(i.e., an exemption) is qualified to operate a CMV in the United States.
the CMSO on May 2, 2023, extending the deadline for expert reports through May
31, 2023. (Doc. 94). And the Court extended the deadline for expert reports once
more, setting June 21, 2023 as the deadline for all expert reports. (Doc. 99). The
deadline for filing dispositive and Daubert motions remained July 21, 2023. (Doc.
94).
The Defendant tendered the expert report of Mr. John Pinckney on April 3,
2023, and submitted Mr. Pinckney’s rebuttal report on June 27, 2022. (Doc. 116,
p. 2). Both expert reports were originally prepared in 2022 in connection with
Murphy v. UPS. (Id.). After the deadline for disclosing expert reports passed, the
Defendant tendered the “supplemental” report of Mr. Pinckney which for the first
time discusses the Plaintiff. (Id.; see also Doc. 116–3). The Plaintiff asserts several
grounds for the exclusion of Mr. Pinckney’s opinion. (See generally Doc. 116).
II. LEGAL STANDARDS
A. The ADA and FCRA
Since the proffered expert opinions of Mr. Pinckney pertain to the ADA, the
Court will briefly address the scope of protection offered by the Act. The ADA
prohibits employers from discriminating against “a qualified individual on the
basis of disability in regard to job application procedures, hiring, advancement, or
discharge of employees . . . and other terms, conditions, and privileges of
employment.” 42 U.S.C. § 12112(a). Similarly, the FCRA prohibits employment
discrimination on the basis of an individual’s disability. See Fla. Stat. § 760.10(1).
Because disability discrimination claims under the FCRA are analyzed using the
same framework as ADA claims, Greenberg v. BellSouth Telecomm., Inc., 498 F.3d
1258, 1263–64 (11th Cir. 2007) (per curiam), the Court examines Plaintiff’s claims
together.
A plaintiff can establish a claim for disability discrimination using either
direct evidence or circumstantial evidence of discrimination. Curry v. Sec’y, Dep’t
of Veterans Affairs, 518 F. App’x 957, 963 (11th Cir. 2013) (per curiam). When the
plaintiff relies on circumstantial evidence to support his claim, the Court applies
the McDonnell Douglas burden-shifting framework. See Wascura v. City of S.
Miami, 257 F.3d 1238, 1242 (11th Cir. 2001). Under the McDonnell Douglas
framework, the plaintiff bears the initial burden of establishing a prima facie case
of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
The burden of production then shifts to the employer to “articulate some
legitimate, nondiscriminatory reason” for the alleged discriminatory conduct. Id.
Once the employer articulates a nondiscriminatory reason for the conduct in
dispute, the plaintiff is left with the ultimate burden of proving that the employer’s
proffered nondiscriminatory explanation is not the true reason for its conduct, but
merely a pretext for discrimination. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S.
502, 506–08 (1993).
Thus, to establish a prima facie case of disability discrimination, a plaintiff
must show that he: (1) is disabled; (2) is a qualified individual; and (3) was
subjected to unlawful discrimination because of his disability. Carruthers v. BSA
Advert., Inc., 357 F.3d 1213, 1215 (11th Cir. 2004) (per curiam). And so, the burden
is on the plaintiff to identify an accommodation and show that the accommodation
allows her to perform the essential functions of the job. McKane v. UBS Fin. Servs.,
Inc., 363 F. App’x 679, 681 (11th Cir. 2010) (per curiam). “Performing the essential
functions of a job means, among other things, being able to perform those
functions without risk of serious physical harm to oneself or others.” Fitzpatrick v.
City of Atlanta, 2 F.3d 1112, 1126 (11th Cir. 1993).
B. Daubert
Federal Rule of Evidence 702 permits “[a] witness who is qualified as an
expert by knowledge, skill, experience, training, or education” to testify in the form
of an opinion. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,
589 (1993), the Supreme Court explained that Rule 702 imposes an obligation on
a trial court to act as gatekeeper, to ensure that all scientific testimony or evidence
admitted is not only relevant, but reliable. Although the expert testimony at issue
in Daubert was scientific, the Supreme Court held in Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 141, 147–48 (1999), that the Daubert analysis and a trial
judge’s role as gatekeeper apply “not only to testimony based on ‘scientific’
knowledge, but also to testimony based on ‘technical’ and ‘otherwise specialized’
knowledge.” District courts are charged with this gatekeeping function “to ensure
that speculative, unreliable expert testimony does not reach the jury” under the
mantle of reliability that accompanies “expert testimony.” McCorvey v. Baxter
Healthcare Corp., 298 F.3d 1253, 1256 (11th Cir. 2002). Thus, the party offering
an expert opinion has the burden of establishing three criteria: qualification,
reliability, and helpfulness. See McClain v. Metabolife Int’l, Inc., 401 F.3d 1233,
1238 (11th Cir. 2005).
First, the witness must be “qualified to testify competently regarding the
matters he intends to address.” Rink v. Cheminova, Inc., 400 F.3d 1286, 1291 (11th
Cir. 2005). An expert’s qualifications may be evidenced by education, training,
work experience, publication in the pertinent field, and membership in
professional societies. See Am. Tech. Res. v. United States, 893 F.2d 651, 656 (3d
Cir. 1990).
Second, the expert witness must employ “sufficiently reliable” scientific
methods or principles to form his opinions. Rink, 400 F.3d at 1291. That said, a
witness may also rely solely on experience if the witness explains “how that
experience leads to the conclusion reached, why that experience is a sufficient basis
for the opinion, and how that experience is reliably applied to the facts.” United
States v. Augustin, 661 F.3d 1105, 1125 (11th Cir. 2011); FED. R. EVID. 702
advisory committee notes to 2000 amendments. The district court’s “gatekeeping
function requires more than simply taking the expert’s word for it.” United States
v. Frazier, 387 F.3d 1244, 1261 (11th Cir. 2004) (internal quotation marks
omitted).
Third, the expert’s testimony must “assist the trier of fact to understand the
evidence or to determine a fact in issue.” Daubert, 509 U.S. at 591. Expert
testimony provides such assistance where it concerns matters beyond the ken of
the average juror and will allow the jury to understand the evidence or to resolve a
factual dispute. See Kumho Tire, 526 U.S. at 148–49. On the other hand, there will
be no need for an expert’s opinion where the jury can decide a disputed issue
through the application of common sense or simple logic in light of the evidence
and testimony presented at trial. See Dhillon v. Crown Controls Corp., 269 F.3d
865, 871 (7th Cir. 2001). Further, like all evidence and testimony, an expert’s
opinion must be relevant to an issue in the case and must hold probative value that
outweighs the concerns listed in Federal Rule of Evidence 403. Daubert, 509 U.S.
at 591.
III. DISCUSSION
The Plaintiff seeks to exclude Mr. Pinckney’s initial and rebuttal expert
reports which were prepared for the Murphy litigation. (Doc. 116, pp. 3–4, 6). He
also moves for exclusion of Mr. Pinckney’s untimely third, or supplemental, report
submitted in July. (Id. at pp. 12–13). The Plaintiff contends Mr. Pinckney’s reports
from April and June 2023 are a sham in that they were prepared for a different
case. (Id. at p. 3). Mr. Pinckney had not read or considered the Amended
Complaint filed here, the Plaintiff’s deposition, or any other deposition or
discovery produced here. (Id. at pp. 3–4). Moreover, Mr. Pinckney’s initial and
rebuttal reports do not mention the Plaintiff or discuss accommodations not
sought by the Plaintiff, and the rebuttal report offers criticism of experts not
retained by this Plaintiff. (Id. at pp. 4–5). As such, the Plaintiff contends the first
two expert reports were merely place holders which cannot justify a supplemental
report. (Id. at p. 6).
The Defendant counters, somewhat incredibly, with “no harm, no foul,” and
asserts that some of the general opinions offered in the Murphy case apply equally
to this case. (Doc. 141, pp. 4–5). The Defendant then argues that if the Court
declines to strike the untimely “supplemental” report, “then nearly all remaining
parts of Bemesderfer’s motion are moot because [Mr.] Pinckney’s July 3, 2023
supplemental report cures the deficiencies asserted in Bemesderfer’s motion to
exclude.” (Id. at p. 5). This misses the point that the CMSO established a firm
deadline for disclosure of expert reports, and the Defendant chose to use a report
generated for a different case which fails to relate the expert’s opinions to the
Plaintiff. The fact that some of the overarching opinions offered by Mr. Pinckney
might be relevant to the Plaintiff if the expert had conducted a proper analysis does
not open the door to submitting a new expert report after the deadline and without
leave of Court.
The Defendant asks the Court to ignore its CMSO, allow a party to disclose
new expert opinions after the close of discovery, and thereby embrace a practice
where the filing of any expert report—even from a different case—justifies the
eleventh-hour disclosure of new opinions. The Court chooses judicial economy and
compliance with the rules over the “it’s better to ask for forgiveness than for
permission” approach taken by the defense. This is the second time UPS elected to
disclose an expert and tender reports prepared for the Murphy case. And the Court
struck the opinions of Dr. Brian Fligor because his initial and rebuttal expert
reports were not prepared for this case and lacked a valid methodology. (Doc. 159).
The Court also rejected the notion that Dr. Fligor’s untimely third expert report
met the definition of a supplemental report.2 (Id. at pp. 7–8). The same outcome
is mandated here.
One final observation: Defense counsel’s decision to submit expert reports
prepared for a different case, involving different disabilities and thus different
accommodations, is beyond comprehension. Federal Rule of Evidence 26(a)(2)
mandates the disclosure of expert witnesses accompanied by a written report
prepared and signed by the expert. Implicit in Rule 26(a)(2) is the requirement
that the report be prepared for the instant case. Accordingly, Rule 26(a)(2)(B)
requires the expert to provide “a complete statement of all opinions the witness
will express [in the instant case] and the basis and reasons for them,” the facts or
data considered by the expert, exhibits used to summarize or support the opinions,
the expert’s qualifications, a list of prior trial and deposition testimony, and the
expert’s compensation. Id. The Defendant’s failure to comply with the Rule is
inexcusable.3 Accordingly, the Court will not consider the so-called supplemental
2 As the Court observed in striking Dr. Fligor, Federal Rule of Evidence 26(e) provides a very
narrow exception to the deadline established in the CMSO. Under that rule, a party must
supplement or correct—not replace or recreate—its expert disclosure “if the party learns that
in some material respect the disclosure or response is incomplete or incorrect.” Id. The
unambiguous language of Rule 26(e) informs a party to supplement or correct its prior
disclosure to avoid misleading the opposing party and is required only where the corrective
information has not otherwise been made known to the other parties. Id. Rule 26(e) does not
invite a second bite at the apple. (Doc. 159, p. 6).
3 The Court is not persuaded by the Defendant’s arguments that the Plaintiff failed to
adequately alert the defense to the impropriety of filing new expert opinions after the deadline
or Defendant’s claim that a new expert report is justified when it contains less information
than the improper original report. (Doc. 141, pp. 11–12). That Mr. Pinckney offers similar
report. Plaintiff’s motion to strike Mr. Pinckney’s third expert disclosure is
granted.
Turning back to the initial and rebuttal reports offered by Mr. Pinckney, the
Plaintiff’s objection to the adequacy of Pinckney’s methodology and to the
helpfulness of his opinions is well-taken. As discussed above, Mr. Pinckney’s initial
and rebuttal expert reports are untethered from the Plaintiff’s specific disability
and whether his disability may be reasonably accommodated without risk of
serious physical harm to oneself or others. Mr. Pinckney offers five opinions, the
first being his commonsense observation that “[t]he operation of a CMV is
different than operating a personal car, van, pickup truck, or SUV.” (Doc. 116–1,
pp. 2–3). Mr. Pinckney’s second opinion is that industry experience teaches that
the ability to hear is important to the safe operation of a CMV. (Id. at p. 3). Mr.
Pinckney cites the FMCSR forced whispered voice test as used to determine
whether a driver has adequate hearing to safely drive. (Id. at p. 4). That said, expert
testimony is unnecessary to explain the existence of the forced whispered voice test
which is clearly stated in 49 C.F.R. § 391.41(b)(11). And, important here, Mr.
Pinckney fails to relate the forced whispered voice test to the Plaintiff’s disability
or whether reasonable accommodation may be made without imposing an undue
risk to the safety of others.
categories of opinions in both the Murphy report and the untimely expert report at issue here
does not excuse the Defendant’s cavalier attitude toward the CMSO and Rule 26. (Id. at p. 13).
Mr. Pinckney concludes his second opinion with the observation that “[t]he
regulations state that these requirements do not ‘prohibit an employer from
requiring and enforcing more stringent requirements relating to safety of
operation and employee safety and health.’” (Doc. 116–1, p. 4). Here, Mr. Pinckney
is offering a legal opinion outside the scope of his expertise. His opinion sidesteps
the ADA and the standard that when an employer offers a nondiscriminatory
explanation for its employment decision, that decision must be analyzed to
determine whether the explanation is a mere pretext for discrimination. Section
391.41(b)(11) does not permit an employer to unilaterally set the bar unnecessarily
high to preclude a disabled citizen from enjoying an employment opportunity. And
either Mr. Pinckney is unaware of this nuance, not being an attorney, or simply
ignores its application.
Mr. Pinckney’s third opinion consists of an overview of training required of
CMV drivers and the employer’s responsibility to provide such training. (Doc. 116–
1, pp. 4–6). The opinion includes a discussion of UPS’s driver-training program,
but the opinion does not discuss whether the Plaintiff can satisfactorily pass the
driver-training program. (Id.). The fourth opinion expressed by Mr. Pinckney
addresses UPS’s training and assessment methods. (Id. at pp. 6–14). After
describing the components of UPS’s driver-training program, Mr. Pinckney’s fifth
opinion is that Mr. Murphy’s proposed accommodations would impair the
integrity of UPS’s training methods and create safety risks. (Id. at pp. 14–17). As
the Plaintiff correctly notes, Mr. Murphy’s disabilities are different from the
Plaintiff’s. (Doc. 116, p. 14). The Court agrees that Mr. Pinckney fails to employ a
reliable methodology in his initial expert report, because he does not consider the
Plaintiff’s disability and fails to explain how his general opinions and observations
regarding driver-training and safety relate to the Plaintiff. As a result, his opinions
do not help the jury.
The Court next considers Mr. Pinckney’s rebuttal report. A rebuttal expert
report is just that—a rebuttal to the opponent’s expert report. One may not use a
rebuttal report to craft new opinions which should have been expressed in the
initial report. That said, Mr. Pinckney’s rebuttal report suffers from the same flaws
as his initial report, because the report was prepared for a different case. (Doc. 116–
2). Ironically, in his rebuttal report, Mr. Pinckney criticizes an expert disclosed by
the Plaintiff in the Murphy case, noting that Plaintiff’s expert makes assumptions
and failed to review documents and materials. (Id. at pp. 2–3). Mr. Pinckney
criticizes that expert’s opinions, stating “[the Plaintiff’s expert’s opinion] appears
to be based on what [he] assumes a UPS delivery driver’s job entails, not an opinion
grounded in an actual study of the record of this case.” (Id. at p. 3). This criticism
applies equally to Mr. Pinckney’s initial and rebuttal expert reports.
Additionally, Mr. Pinckney’s methodology in his rebuttal report is flawed.
He criticizes two of the experts retained by counsel for Mr. Murphy, but neither
expert is retained for this case. (Doc. 116, p. 4; Doc. 116–2, p. 3). And as the Plaintiff
rightly observes, Mr. Pinckney’s opinions about Mr. Murphy’s disabilities and
necessary accommodations are unrelated to this Plaintiff. (Doc. 116, p. 11). It is
incumbent on the party offering the expert testimony to establish three criteria:
qualification, reliability, and helpfulness. See McClain, 401 F.3d at 1238. The
Defendant has failed to carry its burden.
IV. CONCLUSION
For these reasons, the Plaintiffs Motion to Exclude the Testimony of Mr.
Pinckney (Doc. 116) is GRANTED.
DONE AND ORDERED in Orlando, Florida on October 31, 2023.
/ / s a——
PAUL G.
UNITED STATESMDISTRICT JUDGE
Copies furnished to:
Counsel of Record
Unrepresented Parties