Labor & Employment Law Daily Wrap Up, EVIDENCE, DISCOVERY—D. Neb.: Exclusion of employer’s expert witnesses in ADA suit was unwarranted, (Apr 30, 2025)

By Nicholas Kaster, J.D.

The record was unclear as to whether the employer separately disclosed the doctors as expert witnesses under Rule 26(a)(2)(C).

A federal district court in Nebraska has held that the exclusion of expert testimony of two doctors in an ADA suit brought by a railroad employee was unwarranted. The employee sought to exclude the doctors as the employer’s expert witnesses because they were retained expert witnesses who failed to write written reports disclosing their opinions. The court held that the motion seeking exclusion was premature. The employer did disclose the doctors as fact witnesses at the outset of the case and described the information they had. However, the court had no information regarding the specific testimony from the doctors that the employer intended to offer, and whether such testimony was outside the scope of the employer’s disclosures. Accordingly, the employee’s motion to exclude was denied without prejudice (Christensen v. Union Pacific Railroad Co., No. 8:23CV268 (D. Neb. Apr. 24, 2025)).

The employee sued under the ADA, alleging that his railroad employer utilized its fitness-for-duty procedure (FFD) to impose work restrictions prohibiting him from performing his job duties, resulting in his eventual termination.

Work restrictions. In January 2015, the employee suffered a stroke while off duty and took medical leave. After his recovery period, he sought to return to work, triggering a FFD evaluation. The employee alleged that his treating doctors cleared him to return to work with “little to no restrictions.” He claimed that, despite his physician’s clearances, the employer gave him work restrictions for the sudden incapacitation that he was told could be reviewed in January of 2016.

In 2016, the employee sought and obtained further clearances from his treating physicians, who all generally provided he could return to work with no restrictions. Despite these clearances, in a “Fitness-for-Duty Determination” memorandum, the employer’s Chief Medical Officer restricted the employee from work for a minimum of five years because of sudden incapacitation risks. The medical officer did not physically examine the employee or otherwise speak to his treating physicians.

As a result of the employer’s restrictions, the employee was unable to return to his position and concluded it would be pointless to continue to seek accommodations from the employer. He sought reconsideration of the five-year work restrictions in February 2018, which was denied in October 2018, and was advised to wait to seek reconsideration until January 2020.

Doctor review. The employee sent the employer medical records to facilitate his return to work in March 2020, but to date has heard nothing regarding his return. A doctor first reviewed the employee’s records in January 2015 after the employee suffered a stroke and made the initial assessment of his work restrictions to be reassessed at one-year post-stroke. The doctor testified that he also reviewed the case with a second doctor in March 2016. Both doctors relied on documentation from the employee’s neurologist.

Not disclosed? The employee contended that the employer did not disclose either doctor as an expert in the case and the doctors did not provide any expert disclosures as required by Rule 26, seemingly referring to the fact that neither doctor authored and disclosed written reports. During their depositions, both doctors testified they entered into contracts with the employer both while employed and for work during this litigation.

The employee moved to exclude the opinions of both doctors, asserting neither was disclosed as an expert witness and both failed to provide expert disclosures as required by Rule 26 of the Federal Rules of Civil Procedure. The employee contended that the doctors were retained expert witnesses who failed to properly provide written reports disclosing their opinions under Rule 26, and that the employer’s description of their knowledge was “scant and vague.” The employer responded that the employee was put on notice of the doctors’ testimony through its initial disclosures and that both doctors were “hybrid” witnesses not required to author written reports under Rule 26(a)(2)(B). The employer argued that the employee could not show prejudice or unfair surprise about the doctors’ opinions because both were deposed in this case (and several other similar cases), during which the employee could have inquired about their opinions.

Disclosure requirements for expert witnesses. For a witness retained or otherwise engaged to provide expert testimony in litigation, Rule 26(a)(2)(B) requires the witness to provide a written report, signed by the witness, providing prescribed, detailed information. For experts who are not required to provide written reports, Rule 26(a)(2)(C) requires a “considerably less extensive” summary disclosure of the opinions to be offered. This second category of “hybrid witnesses” need only disclose the subject matter on which the witness is expected to present evidence and “a summary of the facts and opinions to which the witness is expected to testify.”

However, the Eighth Circuit recognized Rule 26(a)(2)(C) still “leaves unanswered the question whether a treating physician who will testify as an expert must be disclosed under Rule 26(a)(2)(B) or Rule 26(a)(2)(C).” The Eighth Circuit concluded that the answer does not turn on whether the treating physician expert was “retained” or “nonretained.” Instead, the court looks to when the treating physician made his or her determination—if opinions and determinations were made in the course of providing treatment, then no report is required.

Here, both doctors reviewed the employee’s medical files during the FFD determination at issue in this case and exercised their professional judgment to arrive at certain conclusions regarding his condition and restrictions during the course of his employment. Neither doctor was solely retained to form expert opinions regarding the employee’s claims in this case. As such, they were not required to disclose written reports under Rule 26(a)(2)(B).

Motion to exclude testimony was premature. Rule 26(a)(2)(C) requires more than a general identification of the subject matter of the non-retained expert’s testimony; it also requires disclosure of the pertinent facts and opinions to which the expert will testify.

In this case, said the court, the record was unclear as to whether the employer separately disclosed the doctors as expert witnesses under Rule 26(a)(2)(C). The employer maintained that it timely disclosed the doctors. However, the record established only that these disclosures were the employer’s initial disclosure of individuals likely to have discoverable information under Rule 26(a)(1), not expert witnesses under Rule 26(a)(2).

In the employer’s initial disclosures, it identified one doctor, a former medical director, as a witness who “may have knowledge” concerning the employer’s fitness for duty policies and procedures, his review of the employee’s medical records and information and health condition, and his involvement in the employee’s FFD review as set forth in the Medical Comments History, and the restrictions applicable to the employee.

The employer similarly identified the other doctor, a former medical director, under Rule 26(a)(1) as a witness “expected to have knowledge” concerning the employee’s medical history provided to the employer and information to refute the allegations in the employee’s complaint. Neither description of these witnesses’ testimony specifically disclosed “a summary of the facts and opinions to which the witness is expected to testify.”

Prejudice. The employer did not concede its disclosures of the two doctors were inadequate. Regardless, it asserted that the employee could not show prejudice or surprise because its counsel was aware of both physicians’ roles at the employer for eight years prior to filing this action, and, through many similar ADA lawsuits involving the employer’s fitness-for-duty policy. Additionally, the employer maintained that the employee had the opportunity to depose both doctors during this case, during which he could have explored the basis for the doctors’ determinations of the employee’s restrictions throughout the course of his employment.

The court noted that in a prior case, the Eighth Circuit was unpersuaded by a similar argument. The employer said that the employee’s counsel was familiar with these doctors and their roles at the employer from many other cases. However, said the court, it was only looking at the disclosures for those witnesses in this case and as applied to this employee. And in this case, the court observed, such vague and generic disclosures flouted the requirements of Rule 26(a)(2)(C), which requires disclosure of both “the subject matter on which the witness is expected to present evidence” and “a summary of the facts and opinions to which the witness is expected to testify.”

Not warranted. Ultimately however, the court concluded that exclusion of these witnesses was not warranted. The employee primarily argued that the two doctors should be excluded as witnesses because they did not author written reports, a position the court firmly rejected. Beyond that, said the court, the motion seeking exclusion was premature. The employer did disclose the doctors as fact witnesses at the outset of the case and described the information they had. However, the court had no information regarding the specific testimony from the two doctors that the employer intended to offer, and whether such testimony was outside the scope of the employer’s disclosures.

Accordingly, the employee’s motion to exclude the doctors’ testimony was denied without prejudice to reassertion if the employer offers testimony or information from either doctor “on a motion, at a hearing, or at a trial” that was not disclosed in the employer’s initial disclosures or its expert disclosures.

The case is No. 8:23CV268.

Judge: Nelson, M.

Attorneys: James H. Kaster (Nichols Kaster) for Ross Christensen. Christopher S. Hennessy (Cozen, O'Connor Law Firm) for Union Pacific Railroad Co.

Companies: Union Pacific Railroad Company

Cases: EvidenceDiscovery DisabilityDiscrimination NebraskaNews