On November 8, 2019, a unanimous three-judge panel of the Tenth Circuit Court of Appeals issued an opinion in Tesone v. Empire Marketing Strategies holding that employees who sue their employers for violations of the Americans with Disabilities Act (“ADA”) do not necessarily need to submit expert medical testimony to establish they have a disability. 

Empire Marketing Strategies (“Empire”) hired Jonella Tesone (“Ms. Tesone”) in 2012 to set up merchandise displays in grocery stores.  In 2016, Ms. Tesone submitted a doctor’s note restricting her lifting capacity to 15 pounds due to chronic back pain.  Empire terminated Ms. Tesone’s employment in early 2017 due to consistent violations of company policies. Ms. Tesone filed suit under the ADA against Empire in 2017.

Ms. Tesone did not disclose expert witnesses prior to the deadline imposed by the Court.  The Court later granted summary judgment to Empire because Ms. Tesone could not establish she had a disability without expert testimony. Ms. Tesone appealed, arguing there was no categorical rule requiring ADA plaintiffs to present expert testimony to establish a disability.

The Tenth Circuit agreed with Ms. Tesone, holding that where a lay jury can understand an impairment without expert guidance, a plaintiff does not need to rely on expert witness testimony to establish she has a disability.  The Tenth Circuit confirmed a back injury is one such impairment. The case was remanded to the District Court to consider whether Ms. Tesone could prove she had a disability based on her own testimony and the doctor’s note she submitted to Empire before she was fired.

The Tenth Circuit now joins the First and Seventh Circuits in holding that where conditions are susceptible to observation by an ordinary person, such as back pain or knee injuries, plaintiffs can prove they have a disability without expert testimony.