Expert Witness Testimony in Hostile Work Environment Case

Annalyn Gibson; Robert L. Weisman

doi:10.29158/JAAPL.220022-21

Court Considers Whether Lower Court Erred in Precluding Testimony of Opposition’s Retained but Non-Testifying Expert

In Cooper v. City of St. Louis, 999 F.3d 1138 (8th Cir. 2021), the Eighth Circuit Court of Appeals affirmed the district court’s ruling after considering an appellant’s claim that a district court had erred in not allowing him to utilize testimony and a report from the nontestifying expert psychiatrist retained by the City. The court said it would not reverse the trial court’s decision to exclude testimony absent fundamental unfairness.

Facts of the Case

Rodney Cooper was a St. Louis Public Parks employee, working in a crew dedicated to Forest Park when he experienced a religious conversion in 2013. Following this event, he would frequently discuss religious topics at work, including God and Christianity.

Information from the lower court opinion in Cooper v. City of St. Louis, No. 4:16 CV 1521 RWS (E.D. Mo. Jun. 22, 2018) is summarized here for additional relevant facts: During his deposition, Mr. Cooper reported that his supervisor called him nicknames, insulted him, and would allegedly often tell Mr. Cooper to “shut up.” In a supplementary affidavit from Mr. Cooper’s co-worker, it was disclosed that the supervisor once told Mr. Cooper that he would get fired “on the spot” if he did not stop praying. In his deposition, the supervisor admitted to calling Mr. Cooper “Reverend Rodney” but refuted the other allegations. Mr. Cooper additionally reported that he was overlooked for overtime opportunities by his supervisor.

Mr. Cooper pursued legal action for a hostile work environment and claimed that the City’s actions caused his depression and anxiety. The circuit court opinion makes clear that Mr. Cooper filed an action against the City for hostile work environment on the basis of his religious beliefs and claimed damages, including emotional pain and suffering and mental anguish related to an intimidating environment.

On August 1, 2018, prior to his trial on August 20, Mr. Cooper shared intent to call Kristin Bulin, his treating therapist, as a witness. Mr. Cooper did not intend to call her as an expert witness, so the City requested to exclude Ms. Bulin’s testimony. Another conference was held prior to the trial, and the district court postponed the trial date and ordered that Ms. Bulin be available for deposition by the City by September 14, 2018. Ms. Bulin was deposed, and the court ordered that if an independent medical examination (IME) was planned for Mr. Cooper, that it be completed by January 30, 2019. The City was also ordered by the court to share intent to call any expert witnesses by February 15, 2019 and ensure the availability of those experts for deposition by March 15, 2019. The new trial date was then set for June 10, 2019.

The City retained John Rabun, MD as a psychiatric expert, and he conducted an IME of Mr. Cooper on January 29, 2019. Though retained, the City did not officially disclose Dr. Rabun as an expert witness by the February 15, 2019 deadline imposed by the court. On March 18, 2019, Mr. Cooper requested Dr. Rabun’s report and received the report shortly thereafter. Mr. Cooper then planned to call Dr. Rabun as a witness. The City argued that Dr. Rabun’s testimony should be excluded because he was not designated as an expert by the City.

The district court agreed with the City on the grounds that Dr. Rabun was a consulting expert for the City and was not designated as an expert witness to be called during the trial. The City argued that his report be excluded as well. The district agreed on the grounds of hearsay, since the report would not have accompanying testimony by Dr. Rabun. At trial, the jury found that the City had not subjected Mr. Cooper to a hostile work environment. During the trial, Ms. Bulin testified to Mr. Cooper’s psychic damages. On December 17, 2020, Mr. Cooper submitted an appeal, arguing that the district court erred by excluding Dr. Rabun as an expert witness.

Ruling and Reasoning

The U.S. Court of Appeals for the Eighth Circuit said that review of the lower court’s decision to exclude evidence would be conducted under an abuse of discretion standard. But the court said that it need not address the merits of the lower court’s decision to exclude the expert testimony in this case because any error was harmless. The court said that the IME findings and any testimony from Dr. Rabun would have been cumulative of Ms. Bulin’s testimony on causation of mental health symptoms and emotional damages. Since Mr. Cooper’s claim that he was subject to a hostile work environment was rejected by the jury, there was no need to further assess whether Mr. Cooper sustained mental or emotional damages. Exclusion of the expert’s opinions did not result in fundamental unfairness for the claimant. Therefore, the court upheld the judgment of the district court.

Discussion

Cooper v. City St. Louis highlights the complicated nature of admission of expert witness testimony. In this case, the court referenced a related case, House v. Combined Ins. Co. of Am., 168 F.R.D. 236 (N.D. Iowa 1996), in which a plaintiff sought to use an expert previously retained and then withdrawn by the defense. House differed from Cooper in that the defense in Cooper had not formally disclosed the intent to call Dr. Rabun as a testifying expert witness, whereas in House the defense had disclosed intent to call their expert and then later withdrew that expert.

To expound on this point, it is important to review the different types of experts that may be utilized in civil cases. Citing commentary to the Rules of Civil Procedure (Wright C, Miller A, Marchs R. Federal Practice and Procedure. 1994. CIVIL § 2032, p 447), the court identified four different types of experts, including those anticipated to be used as testifying witnesses at trial; those retained not to testify but to aid the preparation for trial or litigation; those not retained and used for informal consultation in trial preparation; and experts not used in trial preparation. The discovery of information from each of these types of experts differs depending on the expert type. In the case of Cooper, Dr. Rabun would fall under the second type of expert, and his opinions would be subject to discovery only in exceptional or other unique circumstances.

Federal Rule of Civil Procedure 35 (Rule 35) (Pub. L. No. 100–690, title VII, §7047(b) (2007)) addresses physical and mental examinations for civil court. This rule has two parts, part a and part b. Part a addresses that the court can order a party to submit to a physical or mental examination when there is a question about that party’s physical or mental condition. Part b addresses that if the examined party requests the report from the examination, the request must be honored in writing. Rule 35 was applied in the case of Cooper with Mr. Cooper’s being issued a copy of Dr. Rabun’s report immediately upon his request.

House explores further standards outside of “exceptional circumstances” that would allow for the plaintiff to use an expert previously retained by the defense. In this case, the standards of “entitlement,” “balancing” or “discretionary” standards, and “exceptional circumstances” were all explored. Exceptional circumstances can be summarized as circumstances such that the facts and opinion of the case cannot be obtained by another expert. Entitlement standards apply should a legal party be subject to an invasion of privacy through examination by an expert, in which case the examinee is entitled to utilize the results of that examination. Balance or discretionary standards involve the court balancing the “probative” value, or the value of the expert to provide information that helps to resolve a relevant disputed point with the prejudice that the jury may experience if it is disclosed that the expert was previously retained by one party and then used by the opposing party. For instance, in House, the court found that the expert could be utilized by the plaintiff with the expectation that no information about how the expert became involved in the case could be included in the trial.

In Cooper, Dr. Rabun was a retained expert, though not formally disclosed to the court as being used by the defense, and therefore one could look to House to see if an exception applied, which would permit the expert’s opinions. This case does not fit “exceptional circumstances” as the information and opinions gathered by Dr. Rabun drew upon his experience as a psychiatrist and could be reached by another expert psychiatrist. “Entitlement” does not apply in Cooper since he already brought his mental well-being into question, and therefore it is not considered as an additional invasion on his person for him to undergo psychiatric examination. When balancing probative versus prejudicial impact in Cooper, Dr. Rabun’s testimony would have minimal probative value as the court found that his testimony would only be applicable for damages.