TREATING PHYSICIAN NEED NOT BE AN EXPERT WITNESS TO TESTIFY ABOUT EMPLOYEE’S DISABILITY

In Delvecchio v. Township of Bridgewater, (A-24-14) (074936), the New Jersey Appellate Division ruled on April 28, 2016, that a Plaintiff may rely on the testimony of a treating physician who has not been designated as an expert witness, to establish the existence of a disability for a claim under the New Jersey Law Against Discrimination (“LAD”), N.J.S.A. 10:5-1 et. seq.  

Ms. Delvecchio worked as a police dispatcher for the Township of Bridgewater (“Township”) for more than 10 years. At that time, the Township maintained three shifts for police dispatchers, including a midnight shift, and required dispatchers to work each of the shifts on a rotating basis. In 2003, Ms. Delvecchio developed inflammatory bowel syndrome (“IBS”), and began treatment with Dr. Gary Ciambotti, a gastroenterologist. Dr. Ciambotti wrote to Ms. Delvecchio’s supervisors and stated that her symptoms were under control as long as she worked regular daytime hours, but would be exacerbated by an assignment to the midnight shift.

For three years, the Township did not require Ms. Delvecchio to work the night shift, but eventually it stated that it was no longer possible to assign her consistently to the daytime shift due to the burden that this imposed on other employees who covered the remaining shifts. In December 2007 the Township asked Ms. Delvecchio to resign. She refused, and accepted another position within the Township as a records clerk, but at a lower salary. On September 26, 2009 the Township terminated Ms. Delvecchio’s employment for neglect of duty and chronic/excessive absenteeism. Ms. Delvecchio sued, claiming that the Township fired her instead of providing her a reasonable accommodation for her disability, in violation of the LAD.

At trial, the judge limited Dr. Ciambotti’s testimony because he had not submitted an expert report. The judge allowed Dr. Ciambotti to testify about the fact that he treated Ms. Delvecchio for IBS, and permitted Ms. Delvecchio to use his notes to prove she requested an accommodation. However, the judge ruled that the doctor could not testify about Ms. Delvecchio’s medical condition even though he had been her treating physician. Moreover, the judge instructed the jury that it could not use his notes to support Ms. Delvecchio’s claim that she had a disability.

The Township provided the testimony of its own expert, Dr. Steven Fiske, who testified that even though he treated thousands of patients who have IBS, none of them were unable to work a night shift because of it. He also stated it was possible that Ms. Delvecchio was using her medical condition as an excuse to avoid being assigned to an undesirable shift.

The jury found that Ms. Delvecchio failed to establish that she had a protected disability within the meaning of the LAD. The judge denied Ms. Delvecchio’s request for a new trial. This appeal to the Appellate Division considered the limited issue of whether the trial judge improperly limited the consideration of Dr. Ciambotti’s testimony.

The Appellate Division reversed the trial court, explaining that although a treating physician is usually an “expert,” they are not required to provide an expert report to be able to testify about facts relevant to their evaluation and treatment of their patient. Accordingly, it ruled that Dr. Ciambotti should have been permitted to testify at the trial court level. The Appellate Division further found that the trial court’s constraint of the testimony was not harmless error. Rather, it was very likely that the exclusion of this evidence may have changed the outcome of this trial since the jury had no evidence to rely on to determine whether Ms. Delvecchio had a disability within the meaning of the LAD. Accordingly, the Appellate Division held that the standard for ordering a new trial, that a miscarriage of justice occurred, was met.

This case clearly represents a victory for employees who seek to vindicate their rights under the LAD.