Employment Law Daily Treating physician's non-expert testimony admissible to support New Jersey state law bias claim
Tuesday, May 3, 2016

Treating physician's non-expert testimony admissible to support New Jersey state law bias claim

By Brandi O. Brown, J.D. A trial court's prohibition of proposed testimony by an employee's treating physician regarding her diagnosis and treatment essentially tied her hands at trial, the New Jersey Supreme Court observed, ruling that such testimony should have been allowed and is admissible to support a disability claim under New Jersey's Law Against Discrimination. The treating physician did not have to be designated as an expert witness so long as the employee provided proper notice under the evidence rules, the state high court said, affirming the judgment of the Appellate Division and remanding the case to the trial court for a new trial (Delvecchio v. Town of Bridgewater, April 28, 2016, Patterson, A.). Needed daytime work. The employee in the underlying lawsuit worked for the township as a police dispatcher when, in 2003, she developed irritable bowel syndrome and began seeing a gastroenterologist for treatment. He wrote a series of notes to her supervisors stating that her condition would remain under control as long she was able to work daytime hours. Initially, she was accommodated. However, in late 2005 she was told that her consistent assignment to a daytime shift was imposing a burden on other employees and that it would not continue. After she requested reconsideration, however, she was allowed to continue working daytime shifts, although there was no guarantee that she could avoid midnight assignments entirely. Asked to resign, then fired. The following year, the employee also began to receive treatment from a psychiatrist for anxiety and panic attacks. He also provided a note to the employer explaining that midnight-shift assignments would exacerbate her condition. In late 2007, the matter escalated when the employee's supervisor requested that she work a midnight shift on December 24. She declined. Another dispatcher, who had already been on duty for some time, was forced to remain on duty for the shift that had been assigned to the employee. This led to complaints by other dispatchers and the employer determined that her unwillingness to work midnight shifts was an undue hardship. The township initially asked her to resign, but ultimately offered her a position as a records clerk, which carried a lower salary. Less than two years later, she was fired because of "neglect of duty" and absenteeism. Complaint, lawsuit. The employee filed an LAD complaint and later sued the township, the department, and several individuals, claiming disability discrimination and retaliation. During discovery, she identified both of her physicians as individuals with knowledge about the incidents and she listed both witnesses as treating physicians. She also stated that she had not retained expert witnesses, but that she had identified treating professionals who she expected to testify, and she summarized their testimony for the defendants. The defendants apparently did not request that she serve written reports by those physicians, nor did the record demonstrate that she served such reports or that the defendants deposed the physicians. Limitations on physicians' testimony. The matter went to trial, but the trial court imposed significant limitations on the physicians' testimony because the employee had not designated them as expert witnesses. It sustained objections made by the defendants regarding the gastroenterologist's testimony, stating that he should not offer an opinion on "diagnosis and treatment" because he had not prepared an expert report. The trial court also declined requests by the jury regarding the physician's testimony. Likewise, the court limited the psychiatrist's testimony. The jury returned a verdict against the employee and she filed a motion for judgment notwithstanding the verdict. The trial court denied that motion and she appealed. The appellate division reversed and remanded for a new trial, concluding that the trial court had improperly restricted the gastroenterologist's testimony. The state high court granted the employer’s petitioned for certification. Testimony allowed under Rules. The treating physician’s excluded testimony had been offered to prove a "pivotal element" of the employee’s disability discrimination claims: i.e., that she had a disease or condition that was recognized as a disability under state law. In cases where an employee's disability is not "readily apparent," she must support it with "expert medical evidence" or "objective medical testimony," the supreme court explained, citing precedent. This testimony services to guide the jury so that it may understand the condition at issue. Courts in New Jersey have long permitted employees' treating physicians to offer testimony regarding such diagnosis and treatment. Pursuant to N.J.R.E. 701, a court is authorized to admit a lay witness's testimony in the guise of opinions and inferences as long as it was "rationally based on the perception of the witness" and would assist in determining a fact that is in issue or in understanding the witness's testimony. A treating physician, therefore, could testify regarding diagnosis and treatment of his or her patient, including the cause of the disease. The rules provide for pretrial disclosure of the proposed testimony, including the substance of that testimony, so that it may be explored by the opposing party. One important limitation applies: Unless the treating physician is designated as an expert witness, he must limit his testimony to those issues that are relevant to diagnosis and treatment of the patient in question. Error not harmless. In light of this principle, the trial court should have permitted the gastroenterologist to testify regarding the employee’s condition. She provided information about the proposed opinion and complied with discovery requests. The proposed testimony was limited to diagnosis and treatment and there was no indication in the record that she intended to ask him to opine on questions beyond the scope of his role as her treating physician. Therefore, the trial court erred in barring him from testifying about her diagnosis and treatment. Moreover, that error was not harmless, as it meant she did not have a "fair opportunity to prove that she suffered from a disability within the meaning of the LAD." Psychiatrist’s testimony. The trial court also erred in restricting the testimony of the employee’s treating psychiatrist. The court agreed with the appeals court that the trial court should have granted the employee's motion for J.N.O.V., and concluded that she was entitled to a new trial. The high court also added a comment regarding pretrial discovery of treating physicians under the Rules, noting that the requirement that treating physicians provide reports if requested during discovery could impose a significant burden on those physicians who did not seek to become involved in the litigation.

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