Victims of disability discrimination no longer need to shoulder the burden and high expense of retaining a pricey medical expert to come to court to render an opinion establishing their physical, mental and/or emotional disability in question; they can now use their treating doctor for this purpose. So said our New Jersey Supreme Court in a recently decided case entitled Delvecchio v. Township of Bridgewater, — N.J. —, 2016 N.J. LEXIS 335 (2016) where the Court affirmed the reversal of a jury’s verdict of no cause of action against a former dispatcher of the Township of Bridgewater Police Department (the “Bridgewater PD”).
In 2003, Mrs. Delvecchio developed inflammatory bowel syndrome (“IBS”), and began treatment with Dr. Gary Ciambotti (Ciambotti), a gastroenterologist. Dr. Ciambotti wrote to plaintiff’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. After repeatedly declining assignments to the midnight shift, Mrs. Delvecchio was asked to resign from her position. She then accepted a lower-paying job as a records clerk for the Township. Plaintiff used more than her allotted sick days, and the Township terminated her employment.
Thereafter, Mrs. Delvecchio filed a New Jersey Law Against Discrimination (the “LAD”) disability discrimination complaint against the Township, Bridgewater PD and individual defendants. She contended, among other claims, that her IBS constituted a disability for purposes of LAD and that defendants failed to provide a reasonable accommodation for that disability when they set the schedule for her work as a police dispatcher. Mrs. Delvecchio disclosed in pretrial discovery that she intended to present the testimony of Dr. Ciambotti to establish his diagnosis of IBS. However, the trial court barred the testimony of Dr. Ciambotti on the grounds that he had not been retained and identified by plaintiff in pretrial discovery as an expert witness and had not prepared an expert report containing his findings. Without the testimony of a physician establishing the nature and extent of her disability, the jury was left with no choice but to conclude that Mrs. Delvecchio had failed to establish that she had a disability preventing her from working midnight shifts.