Hobdy v. Wells Fargo Bank, N. A.

          ORDER GRANTING DEFENDANT'S MOTION TO STRIKE EXPERT DESIGNATION OF DR. CLAYTON LEWIS

          William J. Martínez Judge

         Plaintiff Patricia Hobdy (“Plaintiff” or “Hobdy”) brings this disability discrimination and invasion of privacy action against her former employer, Defendant Wells Fargo Bank (“Defendant” or “Wells Fargo”). The Court recently denied summary judgment to Wells Fargo (see ECF No. 57) and the case remains set for a five-day jury trial commencing March 25, 2019 (see ECF No. 55). Currently before the Court is Wells Fargo's Motion to Strike Expert Designation of Dr. Clayton Lewis (the “Motion”). (ECF No. 41.) For the reasons set forth below, the Motion is granted.

         I. LEGAL STANDARD

         A district court must act as a “gatekeeper” in admitting or excluding expert testimony. Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1232 (10th Cir. 2004). Admission of expert testimony is governed by Rule 702, which 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 proponent of the expert testimony bears the burden of proving the foundational requirements of Rule 702 by a preponderance of the evidence. United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009) (en banc).

         An expert's proposed testimony also must be shown to be relevant and otherwise admissible. See Adamscheck v. Am. Family Mut. Ins. Co., 818 F.3d 576, 588 n.7 (10th Cir. 2016). To be relevant, expert testimony must “logically advance a material aspect of the case” and be “sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute.” United States v. Garcia, 635 F.3d 472, 476 (10th Cir. 2011) (alterations incorporated).

         II. BACKGROUND

         A detailed background of this case was set forth in the Court's recent order denying summary judgment and is not repeated here. (See ECF No. 57.) Familiarity with that factual background is presumed.^[1]

         In relevant summary, Hobdy suffers from carpal tunnel syndrome in both wrists, which allegedly made it difficult or impossible for her to type even after corrective surgery. Hobdy's ADA claims are predicated in part on a theory that lack of accommodation for her disability caused her to perform poorly at work. The parties dispute whether Hobdy actually requested an accommodation of voice recognition software (“VRS”). Hobdy contends that VRS would have alleviated pain in her wrists and better allowed her to perform her job as an underwriter.

         Pursuant to Federal Rule of Civil Procedure 26(a)(2) and Federal Rule of Evidence 702, Hobdy disclosed Dr. Lewis as an expert on VRS. (ECF No. 33 at 2.) Dr. Lewis provided a Report on November 30, 2017 and a Supplemental Report on February 22, 2018. (ECF Nos. 41-4 & 41-6.) Dr. Lewis's Report includes the following opinions: (1) “[s]peech recognition software is a common accommodation for people who are unable to use their hands”; (2) speech recognition programs, including Dragon, allow a user to control the computer's operating system and applications with speech commands; (3) the Microsoft Windows operating system includes built-in speech recognition support; (4) there are other tools on the market that allow a user to operate software using speech commands, even for software that is not compatible with Windows; (5) such additional software may require some set up; and (6) speech recognition tools are “readily available at reasonable cost.” (ECF No. 41-4 at 1-3.)

         In his Supplement Report, Dr. Lewis directly addresses whether certain software and hardware, presumably used by Wells Fargo, is compatible with VRS.^[2] (ECF No. 41-6 at 1.) Specifically, Dr. Lewis opines that (1) Wells Fargo's system is Windows-based and many programs are Microsoft tools which can be accessed by the software discussed in the Report; (2) some programs appear to be Wells Fargo proprietary software and it is unclear whether they use standard Microsoft VRS interface features or would require additional VRS tools; (3) some programs used by Wells Fargo, including Brava!, Citrix Receiver, FAXCOM, Google Chrome, and ZenWorks are “keyboard accessible, ” i.e., can be used by keyboard commands generated by voice recognition software without additional tools, and Adobe Acrobat Reader is keyboard accessible with exceptions; and (6) he could not determine the VRS accessibility of Bluerprint [sic] Print Scout, Micro Focus Reflection Desktop, Pulse Secure, Tanium client, PretonSaver, and CASA. (Id. at 1-2.)

         Notably, Dr. Lewis concludes his Supplemental Report with the observation that it is unclear how the programs are actually used by Wells Fargo employees and thus he cannot opine on the preparatory work required to enable an employee to perform tasks entirely by VRS. (Id. at 2.)

         III. ...