United States District Court, D. Colorado
ORDER GRANTING DEFENDANT'S MOTION TO STRIKE
EXPERT DESIGNATION OF DR. CLAYTON LEWIS
William J. Martínez Judge
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
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
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)
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).
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.
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.
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.)
Supplement Report, Dr. Lewis directly addresses whether
certain software and hardware, presumably used by Wells
Fargo, is compatible with VRS. (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.)
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.)