Weiss v. Macy's Retail Holdings Inc.

Background

David Weiss sued Macy’s Retail Holdings Inc., also identified in the caption as Macy’s Inc., under the Americans with Disabilities Act. He alleged that he had a learning disability, needed workplace accommodations, was harassed because of his disability, and was terminated because a supervisor wanted to avoid accommodating him.

Macy’s moved to compel arbitration, arguing that Weiss agreed to use the company’s dispute-resolution program when he did not return a form opting out. The court had previously denied that motion, but the Court of Appeals later held that the relevant documents, if Weiss received them, together with his failure to opt out and his continued employment, could bind him to arbitration. The case was remanded for a jury trial on whether Weiss actually received the documents.

Weiss consistently said that he never received the packet containing the election form and the plan document. He and his brother, Joseph Weiss, stated that because Weiss had difficulty reading and processing information, he generally showed important or official mail to Joseph, who read or explained it to him. Joseph stated that he never saw the election form or plan document before the litigation.

Macy’s Expert

Macy’s sought permission for Dr. Marla Brassard to testify about Weiss’s claimed learning disability. Dr. Brassard is a licensed psychologist, certified school psychologist, and Fellow of the American Psychological Association. She had extensive experience as a professor and consultant on testing accommodations.

After a two-day in-person examination of Weiss and a review of documents, Dr. Brassard considered his academic history, standardized-test scores, and reading vocabulary. She concluded that Weiss could have read the election form and did not have Specific Learning Disorder with impairment in reading under the criteria of the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition. Macy’s argued that this testimony was relevant to the credibility of Weiss’s and Joseph’s account of their family mail-review procedure.

Court’s Analysis

Federal Rule of Evidence 702 permits qualified experts to give opinions when their specialized knowledge will help the fact-finder, the opinions rely on sufficient facts or data, and the expert used reliable principles and methods reliably.

The court found Dr. Brassard qualified because of her doctoral degree in educational psychology, psychology license, academic and clinical experience in psychoeducational evaluation, and work involving testing accommodations. The court rejected the argument that her experience was too focused on educational or testing settings.

The court also found her opinions sufficiently reliable. She collected information through her examination of Weiss and documentary review, described the tests she administered, and explained how she applied the diagnostic criteria. Weiss’s objections that she gave too much weight to some information and too little weight to other information went to the weight of her testimony rather than its admissibility and could be addressed through cross-examination.

Finally, the court found that the testimony would assist the jury because Weiss’s cognitive abilities were relevant to the dispute. The testimony, as limited to that issue, would not improperly replace the jury’s role in deciding credibility.

Disposition

The court granted Macy’s motion to allow expert testimony. Dr. Brassard could testify at trial. Subject to objections at trial, Weiss’s expert, Dr. Ami Norris-Brilliant, would also be allowed to testify in rebuttal. The court vacated any earlier ruling inconsistent with this order and directed the Clerk to terminate the motion.