In Tesone v. Empire Marketing Strategies, 2019 U.S. App. LEXIS 33488 (10th Cir., Nov. 8, 2019), the Tenth Circuit Court of Appeals reversed a Colorado district court’s grant of summary judgment to an employer in a case under the Americans with Disabilities Act (“ADA”), because the district court did not perform a case-specific analysis to determine whether the plaintiff needed to introduce expert testimony to establish a protected disability under the ADA. Instead, the District Court improperly announced a broad, categorical rule that expert proof of disability is always required in all ADA cases.
In Tesone, the Plaintiff alleged that she had been discharged due to her alleged disability. Ms. Tesone alleged that she had a back impairment that substantially limited her ability to perform the major life activity of lifting. The District Court granted summary judgment for the employer, holding that the Plaintiff could not establish a prima facie case of discrimination because she did not present expert medical evidence that any of her major life activities have been substantially limited by her alleged disability. The district court, in essence, ruled that expert medical evidence was necessary to show a substantial limitation of a major life activity under the ADA.
The Tenth Circuit disagreed with the district court’s analysis, and reversed the grant of summary judgment to the employer. While acknowledging that expert medical evidence may be used to establish whether a plaintiff is substantially limited in a major life activity, the Tenth Circuit held that there is no general rule that medical evidence is always necessary. Instead, whether medical evidence is necessary to support a disability discrimination claim is a determination that must be made on a case-by-case basis.
In reaching this decision, the Tenth Circuit recognized that courts generally require expert evidence when a condition would be unfamiliar to a lay jury and only an expert could diagnose that condition. The court distinguished a prior Tenth Circuit case, Felkins v. City of Lakewood, where the plaintiff claimed her employer refused to accommodate her avascular necrosis—a rare condition that can cause bone tissue to die from poor blood supply. Aside from her own declarations, the plaintiff offered no medical evidence to confirm her diagnosis in that case. Because she lacked expert medical evidence of her condition, the district court granted summary judgment for the defendants. On appeal, the Tenth Circuit explained that a lay witness is competent to testify concerning those physical injuries and conditions which are susceptible to observation by an ordinary person. But the court noted that where injuries complained of are of such character as to require skilled and professional persons to determine the cause and extent thereof, the disability must be proved by the testimony of medical experts. It concluded that the plaintiff’s avascular necrosis was beyond the realm of common experience and thus required the special skill and knowledge of an expert witness.
Because the district court in Tesone did not perform this case-specific analysis to determine whether expert testimony is necessary to establish whether the Plaintiff suffered from a disability, the Tenth Circuit reversed the grant of summary judgment for the employer, and remanded the case to the district court to conduct the appropriate analysis. The Tenth Circuit’s decision is helpful in delineating the circumstances under which expert testimony is necessary to establish whether an impairment substantially limits a major life activity under the ADA. Counsel should always evaluate the need for expert testimony in light of the nature of the claimed disability and whether the limitations associated with the condition are susceptible to observation by a reasonable person. If not, expert medical evidence will likely be necessary to establish whether the condition substantially limits a major life activity.