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


    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.


    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.


    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.