Software Expert Witness Testimony Excluded

Plaintiff sued defendant related to a claim of disability discrimination and invasion of privacy.  Plaintiff hired a Software Expert Witness to provide testimony.  Defendant filed a motion to exclude this expert from testifying.  The court granted the motion.

Facts:  This case (Hobdy v. Wells Fargo Bank – United States District Court – District of Colorado – January 8th, 2019) involves a claim of disability discrimination and invasion of privacy by the plaintiff against her former employer.  The plaintiff has hired Software Expert Witness Dr. Clayton Lewis to provide testimony on her behalf.  The defendant has filed a motion to exclude this expert from testifying.

Discussion:  The plaintiff suffers from carpel tunnel syndrome in both wrists, which makes it difficult or impossible for her to type.  Her ADA claims are based on the theory that a lack of accommodation for her disability caused her to perform poorly at work.  The parties dispute whether the plaintiff requested an accommodation of voice recognition software.  The plaintiff argues that VRS would have helped the pain in her wrists and better allow her to perform her job as an underwriter.

The defendant would like to strike Dr. Lewis’s expert opinion because it is unreliable and irrelevant.  Dr. Lewis was hired to opine on whether a person who has an impairment  could use VRS to operate the specific software and hardware plaintiff was using at her job.

The court opines that Dr. Lewis provides only a very narrow opinion in which he only addresses whether VRS can be a reasonable accommodation for an individual who has limited use of her hands and whether certain software used by the defendant are compatible with certain VRS technologies.

The court also further notes Dr. Lewis testified that he has never spoken to the plaintiff, did not have any knowledge of whether she has any difficulty using her hands and did not consider speaking to the plaintiff important to his report.  In addition, the court states that Dr. Lewis did not review any medical records or doctor’s notes.  Also, Dr. Lewis expresses no opinion on whether VRS would have allowed the plaintiff to do her job.  This lack of personalized consideration makes Dr. Lewis’s opinion less relevant.

The court also opines that Dr. Lewis does not fully address whether VRS is compatible with the defendant’s software or hardware.  Also, the court notes that Dr. Lewis never spoke with the plaintiff to determine her workplace needs and the programs that she regularly uses as an underwriter.  Also, Dr. Lewis did not consult with anyone else to understand how a person in the plaintiff’s position used various programs at the defendant’s place of business.

Conclusion:  The motion to exclude the expert opinion of Dr. Clayton Lewis is granted.