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Brightwell v. Bandera County

United States District Court, W.D. Texas, San Antonio Division

November 13, 2017




         On this date, the Court considered Plaintiff's Objections and Motion to Exclude Defendant's Expert Witness (docket no. 20), and the response and reply thereto.


         Plaintiff's First Amended Complaint (docket no. 17) is the live pleading. It alleges that Plaintiff was employed by Bandera County as an emergency medical services first responder for nearly five years. Plaintiff alleges that he became ill at work on March 7, 2016, and informed his crew chief. He alleges that he was told by the EMS director Calvin Plummer not to return to work until he was cleared by a doctor. Plaintiff alleges that it was not immediately clear why he was sick, and he took time off from work in March to see “numerous doctors.” He was eventually diagnosed with Meniere's Disease, a disorder of the inner ear causing episodes of vertigo, fluctuating hearing loss, ringing in the ear, and sometimes a feeling of fullness or pressure in the ear.

         Plaintiff alleges that, with treatment, he is able to work as a paramedic at full capacity and that his doctor cleared him to return to work to perform light duty on March 30, 2016. Plaintiff alleges that, when he called Plummer to report his availability to return to work, Plummer immediately terminated his employment and sent a letter to that effect dated March 30, 2016. The letter states that Plummer was notified of concerns with Plaintiff's “patient assessment and inability to recognize the severity of the patient, ” that Dr. Wilson advised him that “he thought [Plaintiff] lacked a sense of urgency and/or the possible significance of the patient's complaints (over the phone), ” and that Plaintiff should be able to function independently and that Plummer could not “continue to disrupt the schedule to provide another Paramedic to permanently work with [Plaintiff].” Plaintiff alleges that the reasons stated for his termination were false, and that Bandera County unlawfully interfered with his rights under the FMLA, retaliated against him for taking FMLA-protected leave, and discriminated against him because of a disability or perceived disability. Plaintiff asserts claims under the FMLA, the Americans with Disabilities Act (“ADA”), and the Texas Commission on Human Rights Act. Bandera County denies that it discriminated against or retaliated against Plaintiff.

         On July 7, 2017, Bandera County filed its Rule 26(a)(2)(B) expert witness disclosures, wherein it designated Robert Abbott as a testifying expert. Docket no. 19. Abbott is the Fire Chief for the Lake Travis Fire Department, which Plaintiff states is a roughly equivalent position to that of Brightwell's supervisor at Bandera County. The Rule 26 disclosure states that Abbott would testify “regarding Plaintiff's job performance as a paramedic, whether or not he was performing to the level necessary for the position and in compliance with Defendant's procedures and protocols.” Id. Plaintiff filed a Motion to Exclude Abbott, arguing that Abbott has not been shown to be qualified to provide the jury with true expert opinions, that his opinions are nothing more than regurgitation of the ultimate fact issue of Bandera County's stated reason for discharge, and that his opinions are made without any scientific, technical, or specialized knowledge, would not be helpful to the jury, and would be far more prejudicial than probative.

         Abbott's Report

         Abbott's report consists of seven sections: (1) his review of Brightwell's clinical reporting; (2) his review of Brightwell's Performance Improvement Plans; (3) a discussion of patient disengagement and instances where Brightwell's co-workers have indicated that he exhibited patient disengagement; (4) Brightwell's job description; (5) a review of Brightwell's performance ratings during paramedic training; (6) a review of personnel counseling instances in Brightwell's personnel file; and (7) Abbott's professional opinions.

         Abbott first reviewed Brightwell's clinical reporting, noting that Bandera County EMS utilizes the Electronic Patient Care Reporting system (ePCR) to document incident information, patient demographics, patient care treatment, and specific patient data. He stated that he reviewed the “ePCR QA markers and comments”[1] for trips completed by Brightwell from February 5, 2015 to February 27, 2016, and stated that he “found a number of QA markers and comments from report reviewers that illustrated a lack of skill when documenting basic patient information.” He stated that, “[w]hile it is not uncommon for an experienced paramedic to make documentation mistakes, the errors found between the dates of 2/5/2015 and 2/27/2016 reflect repeated errors and a lack of focus for providing safe patient care, ” and he listed three specific examples on 5/21/2015, 12/08/2015, and 1/31/2016. He opined that “[t]he QA markers and comments by report reviewers reflect a concerning deficiency in patient engagement and a disorganized treatment plan on the part of the paramedic.” He noted that “[t]he report reviewers acknowledged calls when Mr. Brightwell completed patient care reports well but continued to offer feedback to help him improve his patient care and documentation skills, ” and he “found the feedback for improvement to be in-line with Bandera County EMS's policy and procedures.”

         Abbott then reviewed Brightwell's “performance improvement plan.” Abbott states that Director Plummer emailed all employees on July 8, 2015, requiring them to attend staff meetings to discuss policies, guidelines, and documentation, and “he also included that education and PIPs would be used to help any employee that may experience difficulties maintaining their competencies.” Abbott states that Brightwell was placed on two PIPs, one in 2015 and one in 2016, and that he reviewed both. He noted the performance deficiencies identified in the PIPs and the plans for improvement. He states the 2015 PIP identified the following performance deficiencies: inconsistent documentation (assessment, interventions, and narratives) and patient care. He states the 2016 PIP identified the following deficiencies: inability to accurately and completely document information from patient care to the ePCR and documentation skills continued to lack important information needed for patient assessment/care and billing purposes. He states that the plan for improvement including assigning Doug Carlyle to Brightwell's shift to assist and retrain him. Abbott states, “In my opinion, both PIPs were justified and identified critical areas where improvement was needed.”

         Abbott's report then discusses “patient disengagement, ” noting that it “occurs when a care provider withholds patient care treatment, under-assesses a patient, or finds ways to assign or deflect the responsibility of patient care to another care provider, ” and stating that it “is a serious issue that can lead to further injury or the death of a patient.” He further states, “To help reduce patient disengagement, continual feedback should be given to the care provider along with access to training programs.” He states, “In this case, Mr. Brightwell was provided continual feedback on his patient care plans and documentation skills through two PIPs and had access to continuing education programs through his employer.” He then specifically cites three emails, two from David Hulsey in 2014 and 2015 asserting that Brightwell would hand off patients to his partner, and one from Carlyle on March 9, 2016 “expressing his concerns over three calls where he (Carlyle) had issues with the level at which Mr. Brightwell would engage in assisting with patient care and his inability to assess a severely injured or ill patient.” Abbott then lists Brightwell's job description essential functions, to include (1) performs the initial assessment and management of illness and/or injury to emergency patients in accordance with Bandera County EMS protocols, standard operating procedures, and Department of State Health Services guidelines; (2) provide direct patient care as required to each individual; and (3) completes and transfers patient care information following Health Insurance Portability and Accountability Act (HIPPA) guidelines, along with proper documentation.

         Abbott then includes a “review of performance during paramedic training.” He notes that, during his training, Brightwell received either a “3” or “4” on a 1 (poor) to 5 (excellent) scale “in categories that Mr. Brightwell later showed deficiencies in when practicing as a paramedic for Bandera County EMS; mainly advance life support skills and documentation.”

         Last, Abbott discusses two instances of “personnel counseling” in 2015. The first related to allegations of sexual misconduct with a patient in which the patient failed to provide a written statement and the investigation was closed with no action taken, and in the second he was issued a written warning for displaying angry behavior and using profanity towards a jailer and deputy for releasing a patient from custody.

         Abbott then provides the following “professional opinions”: (1) Brightwell was afforded reasonable opportunities to improve his delivery of patient care at the Advance Life Support (ALS) level and required documentation skills before being terminated on March 30, 2016; (2) Brightwell struggled with significant patient disengagement and documentation issues that date back to his initial paramedic training program and from the records did not appear to be improving in this regard; (3) Brightwell failed to perform as a paramedic as required in the job description; one that he accepted to work under as an EMS provider; (4) Brightwell's failure to improve in areas of patient care and to properly assess the severity of a patient's injury or illness preventing him from safely and effectively functioning ...

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