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Crumpley v. Associated Wholesale Grocers

United States District Court, D. Kansas

April 23, 2018

JACOB A. CRUMPLEY, Plaintiff,
v.
ASSOCIATED WHOLESALE GROCERS, et al., Defendants.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree United States District Judge

         Plaintiff Jacob Crumpley has a seizure disorder. He alleges that defendants Associated Wholesale Grocers (“AWG”) and Clarence M. Kelley and Associates, Inc. (“CMKA”) took adverse employment actions against him because of his seizure disorder and thus violated the Americans with Disabilities Act, as amended, 42 U.S.C. § 12101 et seq. (“ADA”). Specifically, plaintiff alleges that defendants discriminated against him because of his seizure disorder and retaliated against him for opposing the discrimination practiced against him.

         This matter is before the court on four motions. Plaintiff has filed two motions-a Motion to Exclude Certain Opinion Testimony of Dr. Jeffery Kaplan and Dr. Michael Seeley (Doc. 177) and a Motion for Partial Summary Judgment (Doc. 175). And each defendant has filed a Motion for Summary Judgment (Docs. 179 & 181).

         In his motions, plaintiff seeks to exclude certain opinion testimony by Dr. Jeffery Kaplan and Dr. Michael Seeley-two of his treating neurologists. In a separate Motion for Partial Summary Judgment, plaintiff argues that his seizure disorder, as a matter of law, is a “disability” as the ADA defines that term.

         Both defendants argue that they are entitled to summary judgment against all plaintiff's claims because he has failed, as a matter of law, to establish discrimination or retaliation. AWG also argues that it was not plaintiff's employer and the court thus cannot hold it liable on plaintiff's claims.

         Because the court's ruling on plaintiff's Motion to Exclude Certain Testimony affects the facts comprising the summary judgment facts, the court begins with that motion. For the reasons discussed below, the court grants in part and denies in part plaintiff's Motion to Exclude Certain Testimony.

         I. Plaintiff's Motion to Exclude Certain Opinion Testimony of Dr. Jeffery Kaplan and Dr. Michael Seeley (Doc. 177)

         A. Background

         Both Dr. Jeffery Kaplan and Dr. Michael Seeley are board-certified neurologists. Dr. Kaplan has been practicing neurology since 1991. Dr. Seeley has been practicing neurology since 1995. Individually, they have treated hundreds of patients with seizure disorders.

         Plaintiff has a seizure disorder. Generally, this disorder causes him to experience seizures every three to six months. During past seizures, plaintiff has been unconscious for as long as 45 seconds. He characterizes the period after unconsciousness as “coming to, ” and he explained that it can take him up to five minutes to “come around.” Doc. 183-2 at 4 (Crumpley Dep. 10:1-6). Sometimes, plaintiff does not sense any warning that he is about to experience a seizure.

         Both Dr. Kaplan and Dr. Seeley have treated plaintiff for his seizure disorder. They treated him before, but not during, the period at issue in this lawsuit. During the treatment for his seizure condition, plaintiff's treating neurologists warned him about standard seizure precautions. These precautions warned that he should not drive a vehicle, work at certain heights, or work alone or be alone for extended periods of time during the six months after a seizure. The neurologists explained that people are more likely to have another seizure during the six months after a seizure. So, these precautions were designed to decrease plaintiff's risk of serious, adverse events that another seizure might pose. Because of the seriousness of the risk, driving within six months after a seizure is one of the most important precautions.

         Plaintiff agrees that it is dangerous for him to drive a car in the six months after he has had a seizure. He understands he might crash the car and hurt himself or others. But plaintiff did not comply with the directives from his physicians against driving a vehicle because he needed to work and had no other way to get to work.

         Both Dr. Kaplan and Dr. Seeley advised plaintiff of their understandings of the Kansas and Missouri vehicle laws governing a person who experiences seizures. Specifically, Dr. Seeley told plaintiff about the seizure precautions, including no driving within six months, and he even displays posters in his office about the illegality of driving in both Kansas and Missouri. Dr. Kaplan strictly cautioned plaintiff that it was illegal to drive during the six months after a seizure, and that he could “seriously hurt or even kill someone if he were to have an episode or seizure while driving.” Doc. 180-3 at 9 (Kaplan Dep. 51:23-52:5).

         Dr. Kaplan opined that plaintiff should not drive at all unless he has seizure surgery and is seizure-free for two years. He also opined that during the six months after a seizure, plaintiff should not pursue employment where driving and working alone are conditions of employment.

         Dr. Michael Ferguson, plaintiff's primary care physician, also treated plaintiff. Dr. Ferguson is not a neurologist and he lacks any specialized training in neurology. Dr. Ferguson opined that a neurologist should provide seizure precautions, and specifically, those precautions should warn about driving a motor vehicle. On one occasion, Dr. Ferguson told plaintiff he should not drive until he was cleared to do so by a neurologist.

         Plaintiff experienced a seizure on January 14, 2014, meaning his six-month seizure precautions last until July 14, 2014.

         On January 16, 2017, plaintiff disclosed Dr. Ferguson as a non-retained expert in this case. See Doc. 66. On April 3, 2017, both CMKA and AWG disclosed Dr. Kaplan and Dr. Seeley as non-retained experts. See Docs. 97, 98 & 178-2.

         Plaintiff seeks to exclude certain testimony by Drs. Kaplan and Seeley. Specifically, he seeks to exclude both neurologists from opining[1] on the following topics:

1. “[T]he effect of Plaintiff's seizure disorder on Plaintiff's qualification for employment with CMKA and other employers, [and] his ability to perform job duties at CMKA or other employers . . . .” Doc. 97 at 2 & 3.
2. “[T]he law in Kansas and Missouri on whether individuals with seizure disorders may operate a motor vehicle after experiencing a seizure . . . .” Doc. 178-2 at 1 & 2.

         Plaintiff also seeks to exclude other opinions that the neurologists expressed in their depositions. Namely, plaintiff seeks to exclude the following opinions by Dr. Kaplan:

3. CMKA's Counsel: And if Mr. Crumpley was seeking employment that required driving a vehicle or working-well, let's take it one at a time. If he was seeking employment within the six months after January 14, 2014, where that job required him to operate a motor vehicle it would be your expectation that he would disclose his seizure disorder to his employer because of the driving requirement; correct?
Dr. Kaplan: Yes.
CMKA's Counsel: And same question with respect to working alone, if he was seeking employment with an employer who was offering him a job where he would be working alone you would expect him to disclose his seizure condition to that employer in those circumstances; true?
Dr. Kaplan: Yes.
Doc. 178-3 at 2 (Kaplan Dep. 56:10-57:1).
4. CMKA's Counsel: And if Mr. Crumpley was pursuing employment where driving was a condition of the employment it would be your opinion to him that he should not undertake that employment if he was within six months of a seizure; correct?
Dr. Kaplan: Yes.
CMKA's Counsel: And the same question I suppose as to a job that may involve him working by himself without anyone else around, if he were to seek that type of employment within the six-month window after a seizure it would be your opinion that he should not pursue that employment because of the danger to him-himself in that case?
Dr. Kaplan: Yes.

Id. at 1-2 (Kaplan Dep. 52:17-53:5).

         And the following specific testimony from Dr. Seeley:

5. AWG's Counsel: So assuming all of that to be true and that one of his job duties involved driving a car, based on what you knew of his epilepsy and the fact that he had breakthrough seizures, I think reported in the medical records every three to four months, is that a job that you would have told him he was medically qualified to perform?
[objection omitted]
Dr. Seeley: If he was-I would not recommend operating a motor vehicle if it was-if he was not six months seizure free.
Doc. 178-4 at 1 (Seeley Dep. 50:13-51:2).
6. AWG's Counsel: If Mr. Crumpley was offered a position within two months of experiencing a seizure and he understood that one of his job duties was to drive a car, would you expect that he would volunteer that he had a seizure disorder?
[objection omitted]
Dr. Seeley: I have no idea what he would do.
AWG's Counsel: Let me ask you a different question. Would you advise him that he should let his employer know that he was not medically able to drive a car or shouldn't be driving a car because he had had a seizure within the past six year --six months?
[objection omitted]
Dr. Seeley: I would advise him that he should definitely let his employer know if he-if he is going to operate a motor vehicle, he should let his employer know that he has-has had seizures.

Id. at 1-2 (Seeley Dep. 52:6-53:1).

         B. Analysis

         Plaintiff argues that the court should exclude Drs. Kaplan and Seeley's testimony because it is inadmissible under Fed.R.Evid. 702 and the rubric inspired by Daubert.[2] Federal Rule of Evidence 702 provides:

         A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

         Fed. R. Evid. 702. The Supreme Court has described the trial judge's role under Rule 702 in this fashion:

Faced with a proffer of expert scientific testimony . . . the trial judge must determine at the outset . . . whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.

Daubert, 509 U.S. at 592-93. In short, federal trial judges must function as gatekeepers and ensure that “‘an expert's testimony both rests on a reliable foundation and is relevant to the task at hand.'” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999) (quoting Daubert, 509 U.S. at 597). To determine expert testimony's reliability, the trial court may use the Daubert factors. In summary form, they ask the following questions:

(1) Has the theory or technique been tested (or can it be)? (2) Has it been subjected to peer review and publication? (3) Is there a known or potential high rate of error and are there standards controlling the techniques of operation? (4) Is the theory or technique generally accepted within the relevant community?

Starling v. Union Pac. R.R. Co., 203 F.R.D. 468, 476 (D. Kan. 2001) (citing Kumho Tire Co., 526 U.S. at 149). “[T]hese factors are not exclusive [ones] and may not apply in many cases.” Id. When the challenged experts are treating physicians-as they are here-“these factors are a bit unwieldy.” Id.

         Defendants argue that Drs. Kaplan and Seeley are exempt from the Rule 702 analysis because they treated plaintiff. Instead, defendants argue, the challenged testimony is admissible as lay opinions under Rule 701.

         “A treating physician is not considered an expert witness if he or she testifies about observations based on personal knowledge, including the treatment of the party.” Davoll v. Webb, 194 F.3d 1116, 1138 (10th Cir. 1999) (citations omitted). “A treating physician's testimony is based on the physician's personal knowledge of the examination, diagnosis and treatment of a patient, and not on information acquired from outside sources.” Goeken v. Wal-Mart Stores, Inc., No. 99-4191-SAC, 2001 WL 1159751, at *2 (D. Kan. Aug. 16, 2001) (correction and citation omitted). A treating physician's opinions about “the cause of any medical condition presented in a patient, the diagnosis, the prognosis and the extent of disability, if any, caused by the condition or injury” are “encompassed in the ordinary care of a patient and do not subject the treating physician” to the requirements of an expert. Id. Also, “[a] treating physician, even when testifying as a lay witness, may state ‘expert' facts to the jury in order to explain his testimony.” Davoll, 194 F.3d at 1138 (citation omitted).

         Here, both Drs. Kaplan and Seeley treated plaintiff. So, they may testify about things they observed during their treatment. And their testimony may include opinions encompassed within their “ordinary care” of plaintiff. See Goeken, 2001 WL 1159751 at *2. But when the challenged testimony goes beyond the scope of the physician's personal knowledge based on his examinations during treatment, the court must analyze it just as it would any expert testimony. See Id. (explaining, when “a treating physician is to testify on matters not based on his or her observations made during the care and treatment of the party, ” the physician must be treated as an expert).

         The plaintiff couches his arguments to exclude testimony by Drs. Kaplan and Seeley as ones challenging three types of opinions: (1) whether plaintiff was qualified to perform the job; (2) the nature of driving laws; and (3) what plaintiff is expected to disclose to an employer. The court adopts this numbering convention, addressing plaintiff's challenge in the following three subsections.

         1. Whether Plaintiff was Qualified to Perform the Job

         Plaintiff seeks to exclude testimony from Drs. Kaplan and Seeley that opine whether plaintiff was qualified to perform his job with CMKA. This request reaches the first opinion[3] and Dr. Kaplan's fourth opinion about what employment plaintiff should pursue. Also, it reaches the opinion the fifth question seeks to elicit from Dr. Seeley.[4]First, the court provides a summary of its rulings on these opinions:

Opinion

Permissible

Impermissible

First

May opine about plaintiff's ability to perform daily activities

May not opine about whether plaintiff is qualified to perform the job

Fourth

May not opine about what employment plaintiff should pursue

Fifth

May testify about recommendations made to plaintiff during treatment

         Plaintiff argues, first, that the issue whether plaintiff was qualified to perform the essential functions of his job is an ultimate issue that the jury must decide. Then, he argues, the questions posed to Dr. Seeley that led to the fifth opinion would confuse a jury. Finally, plaintiff contends, Dr. Kaplan and Dr. Seeley are not qualified to provide testimony whether plaintiff was qualified to perform the essential functions of his job because they have no specialized knowledge and do not base their opinions on sufficient facts or data. And importantly, plaintiff notes, the two neurologists did not use the required two-step analysis to determine whether plaintiff is qualified under the ADA.

         In their responses, defendants characterize plaintiff's arguments differently. AWG argues that “Drs. Kaplan and Seeley are not opining as to whether Plaintiff was qualified to perform a certain job. Rather, the testimony is offered to inform the jury what activities Plaintiff was told by his neurologists would be safe for him to perform in light of his medical condition . . . .” Doc. 186 at 10. This, AWG contends, will “assist the jury in determining whether Plaintiff could perform the Asset Protection Agent position safely . . . .” Id. at 11. CMKA takes a slightly different tack. It argues that Dr. Kaplan and Dr. Seeley informed plaintiff of the driving restriction. So, CMKA asserts, “if a position requires driving as part of the qualifications of the job, and both doctors have personal knowledge confirming that Plaintiff cannot drive, then they are qualified to testify that Plaintiff cannot or should not fill that particular job.” Doc. 187 at 10.

         “An expert may offer an opinion even if it ‘embraces an ultimate issue to be determined by the trier of fact.'” Starling, 203 F.R.D. at 476. “Nevertheless, an expert may not simply tell the jury what result it should reach” by stating a “legal conclusion.” Id. (citing United States v. Simpson, 7 F.3d 186, 188 (10th Cir. 1993)). Here, the challenged opinions come from treating physicians-not experts. “A treating physician, even when testifying as a lay witness, may state ‘expert' facts to the jury in order to explain his testimony.” Davoll, 194 F.3d at 1138 (citation omitted). But the treating physician still must base his opinion on plaintiff's ordinary care. Goeken, 2001 WL 1159751 at *2.

         Our court applied these restrictions to treating physicians in Starling. There, the court allowed the treating physicians to “explain how the symptoms of [Post Traumatic Stress Disorder] impair[ed] a person's daily activities.” 203 F.R.D. at 477. But when the proponent of the testimony proffered that the treating physicians would testify about the plaintiff's ability to perform the duties of a specific job, the court required the proponent to lay a foundation showing that the physicians knew the job duties. Id. at 478. To reach this conclusion, Starling examined the reasoning of Zarecki v. Nat'l R.R. Passenger Corp., 914 F.Supp. 1566 (N.D. Ill. 1996).

         In Zarecki, the court treated a treating physician's opinions as expert opinions because the physician offered opinions about the cause of plaintiff's injury and the injuries' foreseeability based on the work conditions. 914 F.Supp. at 1573. The court ruled that the physician's opinions were not based on personal observations because there was nothing in the record suggesting that the physician had visited the work site. Id.

         Starling followed this reasoning, requiring a factual foundation showing that the treating physicians knew what the job entailed. 203 F.R.D. at 478. In closing, the court noted that “an otherwise qualified social worker or physical medicine specialist could opine about the ability of [plaintiff] to perform specific acts or job tasks.” Id.

         Here, as plaintiff contends, CMKA's argument goes too far for two distinct reasons. CMKA's position assumes driving is an essential function and states a legal conclusion- whether plaintiff is qualified to perform a job. In contrast, AWG's position is permissible.

         CMKA begins by correctly asserting, “The testimony of Dr. Kaplan and Dr. Seeley related to Plaintiff's disability and how it affects his ability to perform day-to-day activities is certainly under the purview of topics upon which a plaintiff's treating physician is entitled to opine pursuant to Fed.R.Evid. 701.” Doc. 187 at 9 (emphasis added). CMKA adds, “[i]f each neurologist is qualified to make the determination that Plaintiff has a seizure disorder, each is also qualified to testify about life activities a person can and cannot perform due to that seizure disorder.” Id. (emphasis added). As AWG points out, “the testimony is offered to inform the jury what activities Plaintiff was told by his neurologists would be safe for him to perform in light of his medical condition and assist the jury in determining whether Plaintiff could perform the Asset Protection Agent position safely . . . .” Doc. 186 at 10-11. This is permissible under Starling's reasoning because the neurologists confine their opinions to plaintiff's abilities to perform daily activities. Those opinions, in turn, will assist the jury. See Fed. R. Evid. 701 (“If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is . . . helpful to clearly understanding the witness's testimony or to determining a fact in issue . . . .”). But CMKA exceeds Rule 701's scope when it argues that these neurologists should be able to testify whether plaintiff is qualified to fill a particular job-a legal conclusion that tries to tell the jury how to decide the case.

         In sum, the testimony proffered in the first opinion is impermissible. In Starling, the court required a reasonable foundation showing that the treating physicians knew plaintiff's job duties. 203 F.R.D. at 478. But here, even a reasonable foundation will not make the first opinion permissible because the opinion would render two legal conclusions. The Starling court did not face that issue because plaintiff sought relief for tort liability. Id. at 470. So plaintiff's qualification to perform a job was not an element of plaintiff's prima facie case. Here, it is an element. See Adair v. City of Muskogee, 823 F.3d 1297, 1304 (10th Cir. 2016) (holding, to establish a prima facie case of discrimination, plaintiff must show: “he is qualified, with or without reasonable accommodation by the employer, to perform the essential functions of the job.”). So, an opinion about whether plaintiff is qualified is a legal conclusion. Also, by opining whether plaintiff is qualified to perform the job, the neurologists necessarily must recite the job's essential functions-another legal conclusion and one that neither expert has special training, skill, or experience to provide. See Adair, 823 F.3d at 1307 (holding that to determine whether plaintiff is a qualified individual, the court, first, inquires “whether the plaintiff can perform the essential functions of the job.”). So, to opine whether plaintiff is qualified to perform the job, the treating neurologists must state two legal conclusions. Although a treating physician may state expert facts to explain their opinions, see Davoll, 194 F.3d at 1138, he “may not simply tell the jury what result it should reach.” Starling, 203 F.R.D. at 476.

         For these reasons, the court excludes testimony from Drs. Kaplan and Seeley about plaintiff's qualification for employment. But defendants properly may elicit testimony from Drs. Kaplan and Seeley about “Plaintiff's disability and how it affects his ability to perform day-today activities”-such as driving or being alone. See Id. at 477.

         These neurologists also may testify about any advice they gave plaintiff about seizure precautions. This advice would be based on “the physician's personal knowledge of the examination [and] diagnosis and treatment of a patient.” See Goeken, 2001 WL 1159751 at *2. And so, treating physician testimony on such advice is permissible.

         This ruling also decides the dispute over the fifth opinion. Although the question posed by AWG's counsel in that opinion would be improper considering the court's ruling here, Dr. Seeley's response is not. Dr. Seeley responded, merely, “I would not recommend operating a motor vehicle . . . if he was not six months seizure free.” Doc. 178-4 at 1 (Seeley Dep. 50:25- 51:2). This is the type of observation the court would expect a treating physician to express because it consists of a recommendation based on the physician's treatment of plaintiff. See Davoll, 194 F.3d at 1138. So Drs. Kaplan and Seeley properly may testify about their recommendations to plaintiff based on his condition.

         To the extent that plaintiff's request includes the fourth opinion, the court finds that testimony about whether plaintiff should pursue employment is like asking whether he is qualified to perform a job. It is too far removed from a permissible recommendation based on plaintiff's treatment and too close to stating an impermissible legal conclusion-whether plaintiff was qualified to perform a job. See Starling, 203 F.R.D. at 476. The court thus excludes this type of opinion testimony.

         For these reasons, the court grants the portions of plaintiff's motion seeking to exclude testimony about plaintiff's qualification to perform certain jobs and what employment he should have pursued.

         2. The Nature of Driving Laws

         Next, plaintiff seeks to exclude testimony about the second opinion-“the law in Kansas and Missouri on whether individuals with seizure disorders may operate a motor vehicle after experiencing a seizure . . . .” The court summarizes its ruling in this fashion:

Opinion

Permissible

Impermissible

Second

May testify about what they told plaintiff about the laws

May not testify about the actual content of the traffic laws

         Plaintiff contends that Drs. Kaplan and Seeley are not legal experts and the driving restriction can be communicated to the jury some other way. Thus, he contends, the court should prohibit them from testifying that “the law is” this, or that.

         Both defendants respond that these neurologists advise their patients-plaintiff, specifically-about their understandings of Kansas and Missouri driving laws as they apply to persons with seizure disorder. AWG adds that this testimony would help the trier of fact when determining whether plaintiff could perform the essential functions of the position.

         As a fact witness under Rule 701, “[a] treating physician's testimony is based on the physician's personal knowledge of the examination, diagnosis and treatment of a patient, and not on information acquired from outside sources.” Goeken, 2001 WL 1159751 at *2. Drs. Kaplan and Seeley stay within those parameters when they testify about the advice they gave plaintiff about the driving laws because they gave this advice while treating plaintiff. See Davoll, 194 F.3d at 1138. They exceed those parameters, however, when they testify what the law is. That status is information acquired from an outside source and would require a legal expert's opinion. See Goeken, 2001 WL 1159751 at *2 (“A treating physician's testimony is . . . not [based] on information acquired from outside sources.” (emphasis added)). Defendants have not qualified either neurologist as an expert in driving laws.

         In short, these neurologists may testify what they told plaintiff about the laws as part of their treating relationship with him. They may not testify that the law is what they say it is. For these reasons, the portion of plaintiff's motion seeking this exclusion is granted in part and denied in part.

         3. What Plaintiff is Expected to Disclose to an Employer

         Finally, plaintiff argues that the court should prohibit Drs. Kaplan and Seeley from testifying about what plaintiff is expected to disclose to an employer. This dispute encompasses the third opinion and the first question posed in the sixth opinion.

         These are the court's rulings on these subjects:

Opinion

Permissible

Impermissible

Third

May not testify about what plaintiff is expected to disclose to an employer

Sixth

May testify about recommendations made to plaintiff during treatment

May not testify about what plaintiff is expected to volunteer to an employer

         Plaintiff contends that neither doctor is qualified to testify in this manner because there is no indication that they have any training on ADA disclosures. In response, defendants argue that these neurologists are not engaging in a legal analysis of disclosure obligations; instead, defendants contend, their expectations of what plaintiff should have disclosed is an extension of their advice to him about seizure precautions.

         Defendants' argument does not convince the court. Advice to plaintiff is something the court already has found involves treatment. But there is no suggestion in the facts that the neurologists conveyed the disputed expectations to plaintiff. So, the court concludes that the neurologists' opinions about what they expected plaintiff to disclose to a putative employer is not based on their treatment of plaintiff. See Davoll, 194 F.3d at 1138.

         But this conclusion does not resolve the dispute. In addition, the court must analyze these opinions as it does any expert testimony offered under Daubert and Rule 702. See Goeken, 2001 WL 1159751 at *2. The court must ensure that the proffered opinions rest both on “a reliable foundation” and are “relevant to the task at hand.'” Kumho Tire Co., 526 U.S. at 141 (quoting Daubert, 509 U.S. at 597). The court concludes that Dr. Kaplan and Dr. Seeley's expectations of what plaintiff should disclose to an employer are not relevant because their expectations will not assist the trier of fact. See Daubert, 509 U.S. at 592-93 (“the expert [must] testify to scientific knowledge that will assist the trier of fact to understand or determine a fact in issue”). With all respect for the physicians' medical training and experience, their opinions on this subject are no better informed than any other member of our society. And permitting two credentialed witnesses to opine about this question might mislead the jury to think that their opinions matter because of their medical acumen.

         Even if Dr. Kaplan and Dr. Seeley's expectations somehow were relevant, they do not rest on a reliable foundation. They do no rest on special knowledge or training. For these reasons, the court excludes testimony from these witnesses about what plaintiff was expected to disclose to an employer, as presented in the third opinion.

         This ruling also decides the question for the sixth opinion. There, AWG's counsel first asked Dr. Seeley what he expected plaintiff to volunteer to an employer about his condition. The court discerns no real difference between “disclose” and “volunteer” in this context. So this question is improper in light of the court's ruling. But, in contrast, the second question AWG's counsel asked Dr. Seeley in the sixth opinion is permissible. AWG's counsel asked, “Would you advise [plaintiff] that he should let his employer know that he was not medically able to drive a car or shouldn't be driving a car because he had had a seizure within the past . . . six months?” The court already has determined that these neurologists may testify properly about advice they would give plaintiff based on their treatment of him.

         For these reasons, the court grants plaintiff's Motion to Exclude (Doc. 177) in part and denies it in part, as described in detail in this Order.

         II. Motions for Summary Judgment

         Now, the court turns to the motions for summary judgment. Each party requests summary judgment. Plaintiff seeks partial summary judgment on the issue whether his seizure disorder qualifies as a disability under the ADA. Both defendants ask for summary judgment against plaintiff's two claims. And AWG also seeks summary judgment on the issue whether it was plaintiff's employer.

         For the reasons explained in the rest of this Order, the court grants plaintiff partial summary judgment, grants AWG summary judgment, and grants in part and denies in part CMKA's Motion for Summary Judgment.

         A. Facts[5]

         The following facts are either stipulated facts taken from the Pretrial Order (Doc. 173), uncontroverted or, where controverted, stated in the light most favorable to the party opposing that particular summary judgment motion. Scott v. Harris, 550 U.S. 372, 378 (2007).

         1. Plaintiff's Seizure Disorder and His Treatment

         Plaintiff has a diagnosis of epilepsy because he had recurrent seizures that were unprovoked.[6] Epilepsy is characterized by individual episodes which come in the form of seizures.[7] Plaintiff has had a seizure disorder for at least 11 years. When he turned 16 years old, plaintiff started seeing a physician regularly about his seizure disorder. Two of plaintiff's treating neurologists were Dr. Seeley and Dr. Kaplan.

         Plaintiff considers his family medicine doctor, Dr. Ferguson, to be his primary care physician. Dr. Ferguson is not a neurologist and fewer than 5% of his patients have a seizure disorder. Dr. Ferguson did not take over plaintiff's seizure care from plaintiff's treating neurologists. But from approximately October 2015 to April 2017, Dr. Ferguson was the only doctor managing plaintiff's seizure disorder. Throughout his treatment of plaintiff-including the period at issue here, 2014-Dr. Ferguson always told plaintiff that he needed to seek treatment from a neurologist. Dr. Ferguson doesn't think plaintiff sought or received consistent treatment by a neurologist during 2014. But Dr. Ferguson believed plaintiff was receiving some seizure care from Dr. Kaplan during that period.

         a. Seizures

         Plaintiff's seizure disorder causes him to experience both grand mal (or tonic-clonic) seizures and complex partial seizures. Grand mal seizures cause plaintiff to lose consciousness. During a complex partial seizure, plaintiff has “difficulty doing anything purposefully.” Doc. 176-1 at 10 (Seeley Dep. 135:1-4).

         Epilepsy-through seizures-affects activities of daily living. Dr. Seeley and Dr. Kaplan opine that when plaintiff is having a seizure, he is unable to perform manual tasks, his ability to concentrate is limited, and he is substantially limited in his ability to communicate.

         Generally, plaintiff's seizures are between three and six months apart. Since 2008, plaintiff has never gone more than six months between seizures. But he never has had seizures on back-to-back days. As he explained to his doctors, plaintiff sometimes experiences an aura- a warning that a seizure is coming on; but sometimes he does not.

         During past seizures, plaintiff has been unconscious for as long as 45 seconds. He characterizes the period after unconsciousness as “coming to, ” and he explained that it can take up to five minutes for him to “come around.” Doc. 183-2 at 4 (Crumpley Dep. 10:1-6). In 2013 and 2014, plaintiff's seizures lasted between 60 and 90 seconds.

         After a normal seizure, plaintiff is in a postictal state for as long as an hour and he also has a headache. Dr. Ferguson witnessed one of plaintiff's seizures and noted that plaintiff had very “little postictal, ” meaning “within a very, very short period of time he was back to exactly where he was before he came in.” Doc. 200-7 at 3 (Ferguson Dep. 93:4-10).

         Plaintiff has a history of breakthrough seizures. This means that plaintiff continued to have seizures even though he was on medication. For patients who have generalized tonic-clonic seizures, like plaintiff, taking medication consistently and in the right amount is crucial for controlling a seizure disorder. In plaintiff's case, his medications did not always control his seizures.

         Although there is no cure for seizure disorder, seizure surgery eliminates a patient's seizures 20 to 25 percent of the time. A Vagal Nerve Stimulator is another medical option for patients with seizure disorder. In Dr. Kaplan's experience, this treatment can result in significantly improved seizure control in about 75 percent of patients. Dr. Seeley repeatedly recommended a Vagal Nerve Stimulator to plaintiff to help him control the number of seizures he experiences. Dr. Kaplan also believes plaintiff was a good candidate for this procedure. But plaintiff did not undergo the procedure because, based on his own personal experience, he did not feel he needed it. Plaintiff believes that he didn't need the procedure because his seizures occurred so far apart and milder than seizures he has witnessed others experience.

         Plaintiff failed to follow the directives from Dr. Seeley, his treating neurologist, to seek regular follow up care. Between January 2010 and February 2013, plaintiff followed up with Dr. Seeley two times. Plaintiff went 11 months from January to December 2010 without following up with Dr. Seeley. He then went another eight months-until August 2011-without follow up care. Finally, he went until February 2013-18 months-without following up with Dr. Seeley.

         b. Seizure Precautions

         Plaintiff's treating neurologists warned plaintiff about standard seizure precautions during his treatment for his seizure condition. These precautions included refraining from: driving a vehicle; working at certain heights; and working alone or being alone for extended periods of time for six months after a seizure. The neurologists recommended these precautions to decrease plaintiff's risk of serious, adverse events while experiencing a seizure, which are more common within the six months after a seizure. Because of the seriousness of the risk, driving within six months after a seizure is one of the most important precautions. The seizure precaution against working alone or being alone for extended periods of time is also important because an individual with a seizure disorder risks complications such as choking, aspiration pneumonia, or Sudden Death of Epilepsy (“SUDEP”).

         Plaintiff's doctors informed him that it is illegal for him to drive in Kansas and Missouri[8]within six months after he experiences a seizure. But plaintiff cannot recall definitively whether he investigated the legality of driving in those circumstances. His understanding was that, as a Missouri resident, he could not drive for three months after a seizure.

         Dr. Seeley told plaintiff about the seizure precautions, including the one against driving within six months after a seizure. Dr. Seeley also displays posters in his office that advise it is illegal in both Kansas and Missouri to drive within six months of a seizure. And Dr. Kaplan strictly cautioned plaintiff that it was illegal to drive in the six months after a seizure, and that he could “seriously hurt or even kill someone if he were to have an episode or seizure while driving.” Doc. 180-3 at 9 (Kaplan Dep. 51:23-52:5). Despite the standard six-month seizure precaution, Dr. Kaplan opined that plaintiff should not drive at all unless he has seizure surgery and is seizure free for two years. Even small seizures can pose a danger to someone who is driving a motor vehicle.[9]

         Plaintiff never disclosed his seizure disorder to either the State of Kansas or the State of Missouri. Specifically, when acquiring or renewing his driver's license, plaintiff never has disclosed that he has a seizure disorder. Plaintiff did not recall whether the Missouri driver's licensing agency asked him about a seizure disorder when he submitted his driver's license application.

         Plaintiff agrees that the reason for seizure precautions-including the ones against driving, working at certain heights, and working alone or being alone for extended periods of time-is for the safety of himself and others. Specifically, plaintiff knows and agrees that it is dangerous for him (and others) to drive a car during the six months after he has experienced a seizure because of the potential for another seizure, and possibly causing him to crash and hurt himself or others. But, plaintiff did not comply with the directives from his physicians against driving a vehicle for six months after experiencing a seizure because he needed to work and had needed a way to get to work. Plaintiff has driven and continues to drive within six months after seizures.[10]

         Plaintiff has had two motor vehicle accidents that occurred because he had a seizure while he was driving-one on March 16, 2008, and another on May 4, 2015. Both accidents injured plaintiff. During the 2008 accident, plaintiff's younger brother was in the car with him. Plaintiff remembers waking up in the back of an ambulance after the 2015 accident. After the 2008 motor vehicle accident, plaintiff only took a week off from driving. And after the 2015 motor vehicle accident, he took three to four days off before driving again.

         Regardless of any safety concerns, plaintiff has chosen not to abide by driving laws and his doctors' seizure precautions when he does not agree with them. He does not believe he should be treated differently than a diabetic whose blood sugar may plummet and cause him to pass out while driving.

         The seizure precautions, notwithstanding, plaintiff contends his doctors never have restricted him from performing any activity.

         2. Agreement between AWG and CMKA

         CMKA provides security and investigative services to its clients. Those services include armed and unarmed security guarding, armed executive protection, security consulting, and investigative services. In August 2013, AWG and CMKA entered into an Unarmed Premium Asset Protection Service Agreement (“Agreement”). This agreement provided that CMKA would supply Asset Protection Agents (i.e., security guards) to provide security and related services for AWG's location in Kansas City, Kansas. The Agreement provided, in relevant part:

II. PERSONNEL
a. All Asset Protection Agents furnished by CMKA shall be employees, agents or subcontractors of CMKA, which is acting as an independent contractor for [AWG]. CMKA will pay all wages and appropriate expenses, and, for its employees, all Employers' Federal, State, and Social Security taxes, Federal and State Employment taxes, and any other required personnel taxes. [AWG] shall not direct or supervise any of CMKA's Asset Protection Agents.
b. CMKA will provide its Asset Protection Agents with uniforms, and all necessary equipment, as mutually agreed upon between [AWG] and CMKA. [AWG] shall have the right to reject for any reason any Asset Protection Agent assigned by CMKA to [AWG] facility, and CMKA shall provide a satisfactory replacement as soon thereafter as possible.
c. [AWG] agrees that it will not employ, as an Asset Protection Agent or in any related capacity, directly or indirectly, any person who has been employed by CMKA and assigned to the [AWG] facility, for a period of one hundred eighty (180) days following the last date on which CMKA employed that person.
. . .
III. SCOPE OF WORK
. . .
b. The conduct and scope of responsibility of all Asset Protection Agents assigned to [AWG]'s facility shall be governed by policy, rules and Post Orders mutually agreed to by both parties and made a part of this Agreement. This data may be revised and supplemented at any time in writing upon mutual agreement of both parties. No. alteration of Post Orders can be given by [AWG] unless in writing and signed by both parties.
c. It is understood that CMKA will be responsible for the hiring, uniforming, training, and supervision of all Asset Protection Agents provided for [AWG] unless otherwise agreed to by [AWG] . . . .
IV. BILLING, TERMS AND RATE GUARANTEES
a. CMKA will deliver weekly invoices containing a complete detail of the hours worked by CMKA's employees on-site as Asset Protection Agents to [AWG] at the address specified. A detailed statement of the number of hours worked by each Asset Protection Agent will also be supplied or made available at [AWG]'s request. Invoices shall be due and payable upon receipt without offset of any kind or nature whatsoever . . . .

Doc. 180-10 at 1-2. Also the Agreement required CMKA to maintain “statutory worker's compensation insurance . . . [and] employer's liability insurance.” Doc. 180-10 at 4. The Agreement required AWG to pay CMKA $16.00 for each service hour worked by CMKA employees at AWG's facility. CMKA managed overtime, and AWG only paid CMKA the overtime rate-time and a half-when AWG requested a specific agent to work beyond the schedule or when the agent worked on a nationally-recognized holiday.

         AWG originally entered the Agreement with CMKA so that CMKA could provide security officers to staff the AWG Guard Shack. Five months later, AWG decided to outsource this position. In March 2014, CMKA began providing personnel to cover some of the desk security officer (“Desk Officer”) shifts and limited patrol/EMT (“EMT/Patrol Officer”) shifts at AWG's location in Kansas City, Kansas. Initially, CMKA provided Asset Protection Agents to cover the Desk Officer position for 88 hours per week and the EMT/Patrol Officer for 56 hours per week. Beginning about June 2014, AWG reduced the number of hours it needed from the CMKA Asset Protection Agents for the EMT/Patrol Officer position from 56 hours per week to 16 hours per week.

         3. Plaintiff's Application to CMKA

         Plaintiff responded to a CMKA posting on Craigslist seeking “EMT/Security Guards (unarmed) to work at a Kansas City, KS business.” See Doc. 183-4 at 1. He submitted a cover letter and his résumé to CMKA. The Craigslist job posting was the only job description plaintiff saw for this position. It listed the experience and the skills required. The advertised position required a certified and licensed EMT who was reliable, punctual, trustworthy, and customer-service oriented. Also, the position required good oral and written communication skills, basic computer operation skills, professional representation of the company, good physical condition, and a neat and clean appearance.

         In early March 2014, plaintiff interviewed for the job. Two CMKA supervisory employees-Terry Threadgill and Jeff Harper-interviewed plaintiff. During the interview, they did not ask plaintiff whether he suffered from any medical conditions. They also did not ask this question after he was hired. And although plaintiff knew during the application and interview process that the position might include driving and working alone, he did not inform anyone at CMKA about his seizure disorder or the seizure precaution directives (i.e., no driving or working alone). Because he had suffered a seizure in January 2014, the seizure precautions warned plaintiff against driving or working alone until July 2014. But plaintiff told Mr. Harper during the CMKA interview in March 2014 that he was physically able to perform the job duties, including driving and working alone, even though that contradicted the directives he had received from his doctors. Plaintiff agrees he hid his seizure disorder and related restrictions from CMKA so he could get the job there.

         Not long after the interview, CMKA hired plaintiff as an Asset Protection Agent and he held that position throughout the time he worked for CMKA. He was an on-call employee, which meant that CMKA called him to work when hours were available. The job duties of an Asset Protection Agent differed depending on the needs of the customer and the job site. An Asset Protection Agent assigned to AWG worked in the guard shack, worked at the front desk, performed EMT duties, and performed patrol duties. Scheduling for the Asset Protection Agents varied based on the clients' needs. But from March through May 2014, AWG only needed Desk Officers-not EMT/Patrol Officers.

         AWG was not involved in plaintiff's application or interview process. Nor was AWG involved in the decision to hire plaintiff. Generally, AWG was not involved in CMKA's Asset Protection Agent hiring process. But on May 23, 2014, Rod Smith, CMKA's Chief Operations Officer, sent Jerry Burke, AWG's Senior Manager for Corporate Security, an email with candidates' resumes attached. Mr. Smith told Mr. Burke that he was attending the interviews “to get a better sense of who to select . . . or at least [who] to offer to you as a candidate.” Doc. 180-27 at 2. After one of the candidates completed his background check and initial drug screening, Mr. Smith planned to send the candidate over “for a look by” Mr. Burke and AWG's Security Supervisor in Kansas City, Kansas. Id.[11]

         4. Plaintiff's Employment Paperwork, Pay, and Benefits

         CMKA conducts a new hire orientation program. It includes reviewing the CMKA Employee Handbook and completing necessary paperwork. Plaintiff has no independent recollection of this orientation. But he did receive the CMKA Employee Handbook, the Asset Protection Agent Employee Handbook Supplement, and Safety Program Handbook. Plaintiff reviewed the CMKA Handbook and signed an acknowledgement form confirming that he had received, read, and understood the policies included in CMKA's Employee Handbook.[12]

         The CMKA Employee Handbook contains a Progressive Discipline Policy with six levels of discipline, culminating with dismissal. The dismissal subsection included the following provisions: “Actions taken may deviate from recommendations listed due to extenuating circumstances, ” and “Project Managers have the authority to execute immediate suspensions from the site based on their judgment.” Doc. 209-15 at 49-50.

         The Handbook also listed ten offenses that could result in immediate dismissal:

1. Possession of unauthorized weapons at work.
2. Abandoning post without proper relief.
3. Using or being under the influence of alcohol, intoxicants, illegal drugs, controlled substances (to include certain prescription drugs) while on the job.
4. Falsifying any CMKE or client record, including application, timesheets, logs, tour reports, and requests for reimbursements.
5. Theft of or deliberate damage to CMKE or client property.
6. Violation of CMKE's use of force/escalation of force ...

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