Pyzynski v. Thomas & Betts Corp.

RESPONSE in Opposition re MOTION to Strike Defendant's Expert Witness

M.D. Fla.November 11, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION RICKY PYZYNSKI § § Plaintiff, § § vs. § Case No. 6:16-cv-01998-PGB-DCI § THOMAS & BETTS CORP. § § Defendant. § DEFENDANT’S RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S EXPERT WITNESS, EDWIN WARD Comes now Defendant, Thomas & Betts Corp. (“Thomas & Betts” or “T&B”), by and through its undersigned counsel, and hereby submits the following Response in Opposition to Plaintiff, Ricky Pyzynski’s (“Pyzynski” or “Plaintiff”) Motion to Strike Defendant’s Expert Witness, Edwin Ward (“Motion to Strike”): INTRODUCTION Plaintiff, among other claims, contends his former employer, Defendant Thomas & Betts, discriminated against him on the basis of his alleged physical condition and terminated his employment in violation of the statutes identified in the Complaint. See generally Complaint, D.E. # 1. Thomas & Betts argues it terminated Plaintiff’s employment because he was unable to perform the lifting, carrying, and other physical essential functions of his former position, with or without an accommodation. See generally Defendant Thomas & Betts Corp.’s Motion for Summary Final Judgment and Case 6:16-cv-01998-PGB-DCI Document 57 Filed 11/11/17 Page 1 of 21 PageID 854 2 Incorporated Memorandum of Law in Support (“MSJ”), D.E. # 55. Thomas & Betts filed a Motion for Summary Final Judgment on November 1, 2017, in which it demonstrates that the undisputed material facts support this argument, and others, and entitle it to judgment as a matter of law. D.E. # 55. As addressed in Thomas & Betts’ Motion for Summary Final Judgment, in his deposition, one of the accommodations Plaintiff now suggests Thomas & Betts could have implemented involves his performing the lifting, carrying, and other physical functions of his former position using only his non-dominant, left arm. See Statement of Undisputed Material Facts Section of MSJ, D.E. # 55, at ¶¶ 21-23 (describing Plaintiff’s deposition testimony suggesting he should have been allowed to perform his former position with his left arm). Not only would this accommodation have been unreasonable, if implemented, Thomas & Betts also maintains it also would have created a safety hazard for Plaintiff and other employees because “the risk would be that if [Plaintiff] would drop a part or tool that might injure himself or injure another employee.” Deposition of Edwin Ward (“Ward Depo.”), at 58:12-13, attached as Exhibit B to Plaintiff’s Motion to Strike. In order to establish the safety hazard associated with this suggested accommodation, Thomas & Betts timely disclosed an expert witness, Edwin Ward, who is the Senior Director of Health, Safety and Environment and Sustainability for the Global Business Unit EPIP at Thomas & Betts, where he has been employed for twelve years. Mr. Ward’s expert opinion is that Plaintiff could not have performed the essential functions of his former position of Impact Extrusion Technical Specialist with just his Case 6:16-cv-01998-PGB-DCI Document 57 Filed 11/11/17 Page 2 of 21 PageID 855 3 non-dominant, left arm without creating a direct threat and significant risk to the health and safety of himself and other employees, and Mr. Ward opines therefore that risk would have created an undue hardship for Thomas & Betts. Thomas & Betts elected to not rely on the testimony of Mr. Ward in its recently filed Motion for Summary Final Judgment because Plaintiff first filed its Motion to Strike Mr. Ward, arguing he does not satisfy the requirements of Fed. R. Civ. P. 702 and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). Thomas & Betts made this decision to avoid a ruling on Plaintiff’s Motion to Strike affecting a ruling on Thomas & Betts’ pending Motion for Summary Final Judgment. However, Thomas & Betts maintains Mr. Ward’s expert opinion will be a significant aspect of Thomas & Betts’ defense at the trial of this matter. In addition to the Motion to Strike presently before the Court, Plaintiff previously filed a Motion to Strike Mr. Ward on September 21, 2017, on the grounds that Thomas & Betts did not comply with the expert-disclosure requirements Fed. R. Civ. P. 26. D.E. # 40. In that Motion, Plaintiff contended, among other things, Mr. Ward is not an employee of Thomas & Betts. In fact, Mr. Ward was employed by Thomas & Betts when it was acquired by ABB, but, like most of the other Thomas & Betts employees, Mr. Ward’s job duties did not change as a result. Now, Mr. Ward is an employee of both ABB and Thomas & Betts. After resolution of their first Motion to Strike, when Plaintiff’s counsel initiated discussions with Defendant regarding the issue presently before the Court, they presented an inarticulate and strained basis for objecting to Mr. Ward serving as an expert witness. In fact, in an email exchange between counsel, Plaintiff’s counsel objected to Mr. Ward’s Case 6:16-cv-01998-PGB-DCI Document 57 Filed 11/11/17 Page 3 of 21 PageID 856 4 testimony simply on the basis that it would be cumulative of other witnesses’ testimony in this case. See October 20, 2017, Emails, attached hereto as Exhibit A. Thomas & Betts’ counsel responded, asking for clarification of Plaintiff’s objections to Mr. Ward being an expert witness and whether such objections were limited to Mr. Ward’s opinion being cumulative. Id. Plaintiff’s counsel vaguely responded by generally referencing the standard for Federal Rule of Evidence 702, and stated “[t]hat response is not meant to be flip but to the extent that we apply those standards to Mr. Ward’s testimony and report, we believe his testimony falls short on each of the required criteria,” adding, again, that Mr. Ward’s testimony is similar to another witness’s and therefore should not be considered expert testimony on that basis. Id. Thomas & Betts’ counsel responded that Plaintiff’s counsel has simply not provided any specific objections to which a response could be given, but nonetheless outlined its position as to why Mr. Ward easily satisfies the expert-witness requirements. Id. Plaintiff’s Motion to Strike does little more; it provides no binding precedent, nor does it present a more convincing argument than that outlined in Plaintiff’s prior emails and prior Motion to Strike Mr. Ward as an expert in this case. Mr. Ward’s qualifications, opinions, and the basis for his opinions are described in detail in his Expert Report, which is attached to Plaintiff’s Motion to Strike as Exhibit A. For the reasons set forth below, this Court should allow Mr. Ward to serve as an expert in this matter, should deny Plaintiff’s Motion to Strike because Mr. Ward is an expert, qualified by his on-the-job experience, education, and training, and further should allow Mr. Ward’s testimony because the factual basis for his opinions are undisputed and thus reliable and highly Case 6:16-cv-01998-PGB-DCI Document 57 Filed 11/11/17 Page 4 of 21 PageID 857 5 relevant to one of the central issues in this case. LAW AND ARGUMENT Federal Rule of Evidence 702 allows an expert “who is qualified as an expert by knowledge, skill, experience, training, or education” to “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. “An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed.” Fed. R. Evid. 703. In Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), the Supreme Court charged trial court judges with a gatekeeping responsibility to ensure that expert testimony is both relevant and reliable. Mr. Ward easily satisfies these relevancy and reliability preconditions to serving as an expert witness in this case. And while the Court is required to serve as a gatekeeper of expert testimony, “it is not the role of the district court to make ultimate conclusions as to the persuasiveness of the proffered evidence. Indeed, . . . ‘[a] district court’s gatekeeper role under Daubert “is not intended to supplant the adversary system or the role of the jury.”’ Quite the contrary, ‘[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and Case 6:16-cv-01998-PGB-DCI Document 57 Filed 11/11/17 Page 5 of 21 PageID 858 6 appropriate means of attacking shaky but admissible evidence.’” Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003) (citations omitted). With that, “the rejection of expert testimony is the exception rather than the rule.” Fed. R. Evid. 702, adv. comm. notes (2000); see also Thompson v. Tricam Indus., Inc., No. 206CV56FTM26DNF, 2007 WL 4800354, at *2 (M.D. Fla. Nov. 30, 2007). I. Mr. Ward’s testimony is relevant. Daubert requires an expert’s testimony to be relevant, and Plaintiff has no basis to argue Mr. Ward should be stricken because his expert opinion satisfies this requirement. 509 U.S. at 591. “The standard for what constitutes relevant evidence is a low one: evidence is relevant if it has ‘any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’” United States v. Tinoco, 304 F.3d 1088, 1120 (11th Cir. 2002) (quoting Fed. R. Evid. 401). Mr. Ward’s expert testimony goes far beyond this low relevance standard because it speaks to a central issue in this case, which is whether allowing Plaintiff to perform his position without the full use of his right arm was an accommodation Thomas & Betts was required to provide under the law. The Americans with Disabilities Act (“ADA”) provides that an employer is not required to provide an accommodation to an employee that would pose a direct threat to the safety of employees. See 42 U.S.C. § 12113(a), (b); 29 C.F.R. § 1630.2(r); see also MSJ, D.E. # 55, at pp. 20-21 (citing Leme v. S. Baptist Hosp. of Fla., Inc., 248 F. Supp. 3d 1319 (M.D. Fla. 2017), detailing the direct threat defense under the ADA and establishing that Thomas & Betts was not required to provide an accommodation that would pose a direct Case 6:16-cv-01998-PGB-DCI Document 57 Filed 11/11/17 Page 6 of 21 PageID 859 7 threat to the safety of Plaintiff and other employees). Mr. Ward’s opinion is based upon this provision of the ADA and the regulations interpreting it, and it provides support for Thomas & Betts’ argument that Plaintiff’s suggestion he could have performed his former job without use of his right arm, if allowed, was untenable because it presented a direct safety risk. This testimony would therefore be highly relevant to the issues related to Plaintiff’s proposed accommodation. In fact, in Plaintiff’s first Motion to Strike, he argued, “Defendant’s [expert] disclosure provides nothing more than an opinion on an ultimate issue in the case . . . .” See D.E. # 40, at p. 33. Mr. Ward’s opinion is based on Plaintiff’s assertion in his deposition that he could have performed his former position with his left arm, which Thomas & Betts argues is a safety hazard and thus not a reasonable accommodation required under the ADA. Plaintiff also argues that Mr. Ward’s opinion is not relevant because it is based on a mischaracterization of Plaintiff’s deposition testimony. Plaintiff quibbles with Defendant’s characterization of his testimony that he proposed performing the job with only his left arm, contending that Plaintiff actually suggested he could have done the job primarily with his left hand, while using his right hand to balance and cradle the objects. Plaintiff testified that he “could still use [his] left arm with no problem” and that he could “have cradled [the objects] with [his] right arm.” Deposition of Ricky Pyzynski, at 105:13-21, excerpts attached hereto as Exhibit B. Later in the deposition, however, Plaintiff’s counsel asks Plaintiff, “Did you have the ability to lift these same amount of weights, 38 pounds to 42 pounds with your left arm when your right arm was injured?” to which Plaintiff responded, “Yes,” and “Could you have done that [lifting] with your left Case 6:16-cv-01998-PGB-DCI Document 57 Filed 11/11/17 Page 7 of 21 PageID 860 8 arm and not had the full use of your right arm?” to which Plaintiff responded, “Yes.” Id. at 365:5-12. Similarly, in subsequent depositions, Plaintiff’s counsel inquired as to whether Plaintiff could perform the position with just his left arm. In Rick Hall’s deposition, Plaintiff’s counsel asked, “Do you know if Ricky was able to lift any of those items with his uninjured arm?” to which Mr. Hall responded, “the heavier tools would require the use of both hands to move them.” See Deposition of Rick Hall, at 89:15-19, excerpts attached hereto as Exhibit C. Similarly, in Edward “Happy” Hielscher’s deposition, Plaintiff’s counsel asked, “Is there any requirement that you have to be able to lift the 30 pounds with both hands? one arm? Does it matter?,” to which Mr. Hielscher responded, “No. But in most cases, most of what [Plaintiff] would have to lift, you’d be - - it would not be safe to lift with one hand.” See Deposition of Happy Hielscher, at 68:10-15, excerpts attached hereto as Exhibit D. Therefore, the suggestion that Plaintiff could perform his job with just his left arm, or, in other words, without full use of his right arm, has been made several times in this case. Regardless of whether Plaintiff proposed using just his left arm or predominantly his left arm, it is undisputed that Plaintiff did not have full or even meaningful use of his right arm to lift, carry, or perform the other physical requirements of the job. See Statement of Undisputed Material Facts Section of MSJ, D.E. # 55, at ¶¶ 8-10, 15-18 (describing Plaintiff’s medical condition and right-arm restrictions during the time period in question). The basis for Mr. Ward’s opinion is that Plaintiff could not have performed the position of Impact Extrusion Technical Specialist without use of his right arm, and it is thus not based on an inaccurate characterization of Plaintiff’s testimony, as Plaintiff Case 6:16-cv-01998-PGB-DCI Document 57 Filed 11/11/17 Page 8 of 21 PageID 861 9 somehow now alleges. Moreover, the Expert Report of Mr. Ward acknowledges that Plaintiff testified he could use his right arm to cradle objects, and concludes it would have been a safety hazard doing so, citing Plaintiff’s own testimony that such a practice would have been a “safety issue.” Mr. Ward’s opinion is clearly relevant. II. Mr. Ward’s methodology satisfies the requirements of Daubert and Rules 702 and 703. Plaintiff has no support for his argument Mr. Ward’s methodology is unreliable because he considered undisputed factual evidence in this case and applied these facts to well-established safety rules, regulations, and best practices in formulating his opinion in this matter. Federal Rules of Evidence 702 and 703 and Daubert, 509 U.S. at 590-91, require an expert’s methodology in forming his opinion to be reliable. Plaintiff contends Mr. Ward did not conduct any tests nor did he observe anyone performing Plaintiff’s former position, rendering his methodology unreliable. Rule 703 provides that “[a]n expert may base an opinion on facts or data in the case that the expert has been made aware of . . . .” The factual basis for Mr. Ward’s opinion are not in dispute. Plaintiff does not dispute that the lifting, carrying, and other physical aspects of his former position were essential functions of the position. Statement of Undisputed Material Facts Section of MSJ, D.E. # 55, at ¶¶ 6-7 (detailing Plaintiff’s deposition testimony in which he confirms the physical aspects of his former position and that they are essential functions of the position). Plaintiff also does not dispute that his right-arm restrictions rendered him unable to lift or carry more than fifteen pounds, or that he eventually was limited to lifting and carrying less than five pounds. See Statement of Undisputed Material Facts Case 6:16-cv-01998-PGB-DCI Document 57 Filed 11/11/17 Page 9 of 21 PageID 862 10 Section of MSJ, D.E. # 55, at ¶¶ 8-10, 15-18 (describing Plaintiff’s medical condition and right-arm restrictions during the time period in question). The fact Mr. Ward did not lift the dies Plaintiff was required to lift is therefore of no consequence, especially because Mr. Ward testified that he “know[s] exactly what type of tools that are in [the] area” in which Plaintiff worked, “what the equipment looked like, to pull the tools out, realign them, troubleshoot, lubricate.” Ward Depo., at 53:17-20. Mr. Ward was provided the information regarding Plaintiff’s physical restrictions, along with a job description of Plaintiff’s former position, which Plaintiff does not dispute accurately reflects the responsibilities of the job. Statement of Undisputed Material Facts Section of MSJ, D.E. # 55, at ¶¶ 6-7 (detailing Plaintiff’s deposition testimony in which he confirms the physical aspects of his former position and that they are essential functions of the position). Mr. Ward also extensively considered deposition testimony in this case. In fact, Mr. Ward spent “approximately 20 hours” reviewing the documentation and formulating his opinion. Ward Depo., at 44:23-24. With his extensive experience analyzing how to perform physical tasks in a manufacturing plant safely and familiarity with the tools involved in Plaintiff’s former position, Mr. Ward formulated his opinion using the extensive information he was provided, and concluded that with Plaintiff’s physical restrictions, and given the essential functions of his former position, he could not have performed the position safely without use of his dominant, right arm. Focusing on a point that is irrelevant to Rules 702 and 703 and Daubert, Plaintiff also erroneously contends Mr. Ward’s role in drafting his expert report was limited, rendering him unable to serve as an expert witness in this case. In a desperate attempt to Case 6:16-cv-01998-PGB-DCI Document 57 Filed 11/11/17 Page 10 of 21 PageID 863 11 validate this argument, Plaintiff mischaracterizes Mr. Ward’s deposition testimony by providing only an excerpt that indicates counsel for Thomas & Betts’ typed the report. The testimony in full is as follows: Q. Your actual report in this case, did you type this report up or did somebody else type this report for you? A. I did not type it up. Jonathan Hancock’s office typed it up. Q. Do you remember when you first received a copy of this report? A. I received a copy of the report, I believe it was the middle of -- probably two weeks ago. It was after the initial deposition that I was to give, if I recall it correctly. Q. When you received the report, did you receive it in an editable format or was it in a PDF format that you could not edit? A. It was in editable format. It reflected the discussions that I had with Jonathan over the period of time preparing for the deposition. Q. Did you make changes to the report when you received it? A. I am certain I made modifications to the report when I received it, minor modifications, but nonetheless they’re modifications. I do not have a copy of those drafts in front of me or with me to reflect on. . . . Q. So I think the last thing we talked about, Mr. Ward, was we were discussing your report which I think you said you initially received a draft of the report from Mr. Hancock; is that correct? A. That’s correct, yes. Yeah, I think you also asked about my review and modifications of the Word document. And absolutely, yes, this came to me as a Word document. And I reviewed the entire document line by line to make sure it was accurate, an accurate statement. Q. And was that report drafted after you had a conversation with Mr. Hancock about your opinions in this case? A. After several conversations, yes. Q. And was that report drafted after you had reviewed all of the materials that -- after all the Exhibits A through N that we talked about before; had you already reviewed all of those materials when you received that first copy of the draft report? A. Yes. I think that initially I think after some conversations we had, I had asked for additional information and Jonathan’s team provided those to me. Those were also reviewed. Case 6:16-cv-01998-PGB-DCI Document 57 Filed 11/11/17 Page 11 of 21 PageID 864 12 Ward Depo., at 38:5-40:15. What Plaintiff intentionally fails to mention is that Mr. Ward received a draft of the report that “reflected the discussions that [he] had with [counsel for Thomas & Betts] over a period of time preparing for the deposition,” and in an editable format to which he made modifications. Ward Depo., at 38:16-39:4. Counsel’s argument is also misleading because it fails to note that Mr. Ward reviewed the Expert Report document line by line to ensure it was accurate, and by the time the initial report was drafted, Mr. Ward had already reviewed materials provided to him by counsel for Thomas & Betts and had several discussions about his qualifications and opinions. See id. at 39:17-40:15. Therefore, Mr. Ward was extensively involved in the drafting of his Expert Report through multiple conversations with Thomas & Betts’ counsel prior to and during the drafting of the report, and as a result, the report reflects the opinions that Mr. Ward derived after his review of materials sent to him. The fact that counsel for Thomas & Betts typed the initial draft of the report based on the conversations with Mr. Ward and his conclusions is of no consequence to the admissibility of Mr. Ward’s expert testimony. See Fed. R. Civ. P. 26, adv. comm. comments (“Rule 26(a)(2)(B) does not preclude counsel from providing assistance to experts in preparing the reports, and indeed, with experts such as automobile mechanics, this assistance may be needed. Nevertheless, the report, which is intended to set forth the substance of the direct examination, should be written in a manner that reflects the testimony to be given by the witness and it must be signed by the witness.”); see also Transcon. Gas Pipeline Corp. v. Societe d'Exploitation du Solitaire, S.A., No. CIV.A. 05-1295, 2007 WL 2712936, at *4 (E.D. La. Sept. 13, Case 6:16-cv-01998-PGB-DCI Document 57 Filed 11/11/17 Page 12 of 21 PageID 865 13 2007) (citing Trigon Ins. Co. v. U.S., 204 F.R.D. 277, 291-95 (E.D. Va. 2001), which held the only two requirements when counsel has provided assistance with the drafting of an expert report are that (1) the report should be written in a manner that reflects the testimony to be given by the expert witness and (2) the report must be signed by the expert). Mr. Ward should be admitted as an expert because his testimony is reliable. III. Mr. Ward’s on-the-job experience, education, and training render him qualified as an expert. Rule 702 requires the expert to be qualified by “knowledge, skill, experience, training or education.” Mr. Ward’s opinion “is based off of [his] experience in doing [his at Thomas & Betts] job for a number of years.” Ward Depo., at 43:17-18. Plaintiff contends, contrary to established law, Mr. Ward’s on-the-job experience, education, and training in occupational health and safety is insufficient to qualify him as an expert under the applicable rules. In fact, the advisory committee notes to Rule 702 expressly contemplate that an expert may be qualified on the basis of experience and aptly notes that “[i]n certain fields, experience is the predominant, if not sole, basis for a great deal of reliable expert testimony.” See generally Maiz v. Virani, 253 F.3d 641, 669 (11th Cir. 2001) (“[Defendants] assert that [the expert’s] testimony is not reliable because it is based largely on his personal experience rather than verifiable testing or studies. Although Daubert applies to all expert testimony, not just ‘scientific’ testimony, there is no question that an expert may still properly base his testimony on ‘professional study or personal experience.’ Defendants’ objection is unfounded on this record.” (citations omitted)); Sanchez-Knutson v. Ford Motor Co., 181 F. Supp. 3d 988, 992 (S.D. Fla. 2016) (“The qualification standard for expert testimony is not stringent, and so long as Case 6:16-cv-01998-PGB-DCI Document 57 Filed 11/11/17 Page 13 of 21 PageID 866 14 the expert is minimally qualified, objections to the level of the expert’s expertise [go] to credibility and weight, not admissibility.” (internal quotation marks and citations omitted)). Mr. Ward has extensive education and training in occupational health and safety, having studied best practices for employee safety and implementation of OSHA regulations. He received a diploma from Oxford Brookes University in the UK in the International OHS Management, “a program that was encouraged by many of [his] peers from the ABB organization,” where he studied “International Labour Organization standards for occupational health and safety.” Ward Depo., at 13-14. Mr. Ward also has received “training from the OSHA Institute” at Eastern Michigan University, which involves a thirty-hour training on OSHA, certifying him as an OSHA trainer and allowing him to train Thomas & Betts employees on the subject. See id. at 15-16. He completed that program “for a Thomas & Betts organization” pursuant to a plan to have all “supervisors trained in the OSHA 10-hour training.” Id. at 16. Mr. Ward has “trained approximately 200 employees in the OSHA 10-hour training.” Id. At Thomas & Betts, Mr. Ward is responsible for assessing various facilities “to make sure the strategy and compliance measures are in place” and that they are implementing health and safety best practices. See id. at 18-20. He participated in an initiative at Thomas & Betts to sustain “all of the activity that will make sure that [Thomas & Betts] sustain[s] a safe working environment for all of [its] employees in the organization.” Id. at 20. As a part of this, he made site visits, which involved “looking for a specific task, looking at injuries, looking at incidents . . . looking to make sure [the Case 6:16-cv-01998-PGB-DCI Document 57 Filed 11/11/17 Page 14 of 21 PageID 867 15 company] understand[s] what’s going well in facilities.” Id. at 21. Mr. Ward has “a tremendous amount of experience, hands-on experience in actually applying [health and safety standards] real-time on production floors, and now using that knowledge to help make sure [Thomas & Betts has] a better working environment . . . .” Id. at 20-21. He has written policies for Thomas & Betts “regarding health and safety.” Id. at 20. He also works with Thomas & Betts’ workers’ compensation team to help analyze workplace injuries. Id. at 23-25. Mr. Ward is highly qualified to render an opinion as to the safety hazards associated with Plaintiff performing his former position without use of his right arm and whether allowing such an accommodation is recommended and permissible under Thomas & Betts’ policy and best practices because it is his job at Thomas & Betts to make that determination. See generally id. at 13-29; see also Ed Ward CV, Ex. 2 to Ward Depo. As described in his Expert Report and deposition, Mr. Ward’s opinions in this case are based on his knowledge and experience analyzing safety-related issues in manufacturing facilities like Thomas & Betts’ Ormond Beach facility, including his knowledge of OSHA regulations and requirements, to which he refers to “on a daily basis,” ergonomic principles and assessments that he “reviewed as a refresher” for this case; experience implementing safety and health best practices at Thomas & Betts and in former positions with other companies; experience addressing injuries that employees incur at manufacturing facilities; and experience analyzing and assessing safety-related policies, work rules, and related practices at manufacturing facilities. Id. at 28, 35. Mr. Ward’s on-the-job experience and related education and training enable him to provide an Case 6:16-cv-01998-PGB-DCI Document 57 Filed 11/11/17 Page 15 of 21 PageID 868 16 expert opinion as to how physical tasks in a manufacturing facility like the one in which Plaintiff worked can be performed in a safe manner. It is his job at Thomas & Betts is to provide these types of opinions and also to assess job descriptions and test them against best practices to promote safety and health in the workplace and to prevent injuries to employees. Mr. Ward is an expert on the issue of whether Plaintiff could have performed his former position without use of his dominant, right arm. He is therefore qualified to be an expert under the applicable rules. IV. Mr. Ward’s opinion will assist the trier of fact. Rule 702 requires the expert testimony assist the trier of fact, and Plaintiff has no basis to assert Mr. Ward’s opinion will not satisfy this requirement. First, Plaintiff incorrectly maintains Mr. Ward’s opinion will not assist the trier of fact because it is duplicative of the testimony of Rick Hall, Thomas & Betts’ Senior Operations Manager at the Ormond Beach facility, and is therefore not expert testimony but lay testimony. As an initial matter, this argument is premature because as Thomas & Betts has not even decided what witnesses may testify, and if they do, what the substantive of their testimony may be. Moreover, Rick Hall’s opinion is not duplicative of Mr. Ward’s opinion. Plaintiff asserts the testimony of Mr. Hall and Mr. Ward is “identical.” Plaintiff is incorrect because Mr. Hall is a lay witness, while Mr. Ward is an expert witness. Mr. Hall’s opinion, which is contained in a Declaration attached hereto as Exhibit E, is based on his first-hand knowledge of Plaintiff’s former position and the operation and layout of the Ormond Beach facility. While it is his opinion that there was no reasonable Case 6:16-cv-01998-PGB-DCI Document 57 Filed 11/11/17 Page 16 of 21 PageID 869 17 accommodation that would have allowed Plaintiff to perform the essential functions of his former position, including an analysis of whether the position could be performed without Plaintiff’s use of his right arm, Mr. Hall’s opinion is focused on the practicality of Plaintiff lifting the tools without use of Plaintiff’s right arm, observable by a lay person, while Mr. Ward’s opinion is focused on the safety hazard posed by allowing Plaintiff to perform the position with his restrictions and whether the proposal was something that Thomas & Betts’ safety practices and policies would have permitted. Mr. Ward’s opinion is based upon ergonomic assessments and his experience in determining the manner in which jobs can be performed safely and best practices that should be implemented by companies in order to avoid employee injury, all of which could not be utilized by a lay person but only by an expert in the field. Ward Depo., at 35:4-16. Mr. Hall’s lay opinion, based on his observation of Plaintiff’s former position and the operation of the Ormond Beach facility, is thus distinguishable from Mr. Ward’s expert opinion that is based upon extensive education, training, and on-the-job experience in analyzing safety and ergonomics and best practices for both. See Fed. R. Evid. 702 advisory committee note (discussing State v. Brown, 836 S.W.2d 530, 549 (Tenn. 1992), and noting that “lay testimony ‘results from a process of reasoning familiar in everyday life,’ while expert testimony ‘results from a process of reasoning which can be mastered only by specialists in the field’”). The opinions, therefore, are not cumulative. Plaintiff also contends, contrary to the governing law, that Mr. Ward’s testimony is inadmissible because it is an improper invasion of the providence of the trier of fact to determine whether the lifting, carrying, and other physical requirements are essential Case 6:16-cv-01998-PGB-DCI Document 57 Filed 11/11/17 Page 17 of 21 PageID 870 18 functions of Plaintiff’s former position. Federal Rule of Evidence 704 provides, “An opinion is not objectionable just because it embraces an ultimate issue.” See also Comer v. Gerdau Ameristeel US Inc., No. 8:14-CV-607-T-23AAS, 2017 WL 192370, at *2 (M.D. Fla. Jan. 18, 2017) (citing Fed. R. Evid. 704). The advisory committee notes to Fed. R. Civ. P. 704 provide that the Rule is intended to abolish decisions of “older cases [which] often contained strictures against allowing witnesses to express opinions upon ultimate issues” to “prevent the witness from ‘usurping the province of the jury.’” Plaintiff’s argument therefore has been explicitly rejected by the Federal Rules of Evidence and should be ignored by this Court. Finally, Plaintiff also argues Mr. Ward’s opinion is ipse dixit, or simply a bare assertion. Mr. Ward is offering an expert opinion derived from undisputed facts of which he was made aware and his experience, education, and training on occupational health and safety. Therefore, contrary to Plaintiff’s assertion his opinion is ipse dixit, Mr. Ward’s opinion is not a bare assertion but based on the undisputed essential physical functions of Plaintiff’s former position and Plaintiff’s undisputed medical restrictions on his right arm. Mr. Ward’s opinion was formulated after he reviewed these undisputed facts and applied them to his experience setting safety policy at Thomas & Betts to avoid employee injury. His methodology is based upon OSHA regulations and requirements, safety best practices for companies like Thomas & Betts that he has developed during his on-the-job experience, and established ergonomic principles and assessments used to identify risks associated with a specific job or task, which he reviewed in formulating his opinion for this case. See Ward Depo., at 35-38. Mr. Ward should thus be admitted as an Case 6:16-cv-01998-PGB-DCI Document 57 Filed 11/11/17 Page 18 of 21 PageID 871 19 expert in this matter because his opinion will assist the trier of fact. CONCLUSION Mr. Ward is a qualified expert who will testify as to the safety hazard of one of Plaintiff’s proposed accommodations that he contends would have allowed him to perform his former position at Thomas & Betts. Mr. Ward’s opinion is highly relevant, reliable, and will assist the trier of fact. He therefore satisfies the expert-witness requirements of the Federal Rules of Evidence and Daubert. Plaintiff’s Motion to Strike should be denied, and Mr. Ward should be permitted to provide expert testimony in this case. Case 6:16-cv-01998-PGB-DCI Document 57 Filed 11/11/17 Page 19 of 21 PageID 872 20 Respectfully submitted, /s/ Jonathan C. Hancock Marisa E. Rosen Florida Bar No.: 73152 BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, P.C. SunTrust Center 200 South Orange Ave., Ste. 2900 Post Office Box 1549 Orlando, Florida 32802 Telephone: (407) 422-6600 Telecopier: (407) 841-0325 mrosen@bakerdonelson.com vcmcfarland@bakerdonelson.com fedcts@bakerdonelson.com Jonathan C. Hancock (TN BPR #18018) Whitney M. Harmon (TN BPR # 24985) Emma J. Redden (TN BPR # 33501) BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, P.C. 2000 First Tennessee Building 165 Madison Avenue Memphis, Tennessee 38103 (901) 526-2000 – telephone (901) 577-2303 – facsimile jhancock@bakerdonelson.com wharmon@bakerdonelson.com eredden@bakerdonelson.com Attorneys for Defendant, Thomas & Betts Corp. Case 6:16-cv-01998-PGB-DCI Document 57 Filed 11/11/17 Page 20 of 21 PageID 873 21 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the 11th day of November, 2017, a copy of the foregoing has been sent via electronic mail to the following counsel of record: Keith L. Maynard Robert F. Spohrer SPOHRER & DODD, P.L. 701 West Adams Street, Suite 2 Jacksonville, FL 32204 Telephone: 904.309.6500 Fax: 904.309.6501 kmaynard@sdlitigation.com rspohrer@sdlitigation.com David J. Rodziewicz RODZIEWICZ LAW, P.L. 100 S. Beach St., Suite 212 Daytona Beach, FL 32114 Telephone: 386.232.8824 rodzlaw@gmail.com /s/ Jonathan C. Hancock Case 6:16-cv-01998-PGB-DCI Document 57 Filed 11/11/17 Page 21 of 21 PageID 874