Bernier v. Turbocam, Inc.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Lillian Bernier
v. Civil No. 23-cv-523-LM-AJ
Opinion No. 2026 DNH 001 P
Turbocam, Inc.
O R D E R
Plaintiff Lillian Bernier brings this action against her employer, Turbocam,
Inc. (“Turbocam”), alleging claims under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e-2(a)(1), and Title I of the Americans with Disabilities Act (“ADA”),
id. § 12112(a). Bernier, a transgender woman,1 claims that Turbocam discriminated
against her by refusing to provide her with health insurance coverage for gender-
affirming care. Presently before the court is Turbocam’s motion to exclude certain
testimony of Bernier’s expert pursuant to Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993), and its progeny. Doc. no. 71. Bernier objects. Doc. no. 86.
For the following reasons, Turbocam’s motion (doc. no. 71) is denied.2
1 A transgender woman is a person who was born with a male sexual anatomy
but whose gender identity is female.
2 Neither party requested a hearing on Turbocam’s motion. For that reason,
and because the motion presents no novel issues, the court did not deem a hearing
necessary. See Collision Commc’ns, Inc. v. Nokia Sols. & Networks OY, 691 F. Supp.
3d 360, 365 n.2 (D.N.H. 2023).
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STANDARD OF REVIEW
Federal Rule of Evidence 702 is “[t]he touchstone for the admission of expert
testimony in federal court litigation.” Crowe v. Marchand, 506 F.3d 13, 17 (1st Cir.
2007). Under that rule, an expert witness may offer opinion testimony 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’s opinion reflects a reliable application of the
principles and methods to the facts of the case.
Fed. R. Evid. 702.
Where a challenge to expert testimony is lodged, the proponent must
“demonstrate[ ] to the court that it is more likely than not that the proffered
testimony meets the admissibility requirements set forth in the rule.” Fed. R. Evid.
702 advisory committee’s note to 2023 amendment. To meet this burden, the
proponent need not prove that her expert’s conclusions are correct. Milward v.
Acuity Specialty Prods. Grp., Inc., 639 F.3d 11, 15 (1st Cir. 2011). “The proponent of
the evidence must only show that ‘the expert’s conclusion has been arrived at in a
scientifically sound and methodologically reliable fashion.’” Id. (quoting Ruiz-Troche
v. Pepsi Cola of P.R. Bottling Co., 161 F.3d 77, 85 (1st Cir. 1998)). “So long as an
expert’s scientific testimony rests upon ‘good grounds, based on what is known,’ it
should be tested by the adversarial process . . . .” Id. (citation omitted) (quoting
Daubert, 509 U.S. at 590).
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BACKGROUND
I. Factual Background3
Bernier has worked for Turbocam since June 2019. Although she was born
with a male sexual anatomy, Bernier has long known she is a woman. In the fall of
2020, Bernier began presenting herself as a woman in public, changed her legal
name to Lillian, began hormone therapy, and updated her driver’s license to reflect
her new name and her gender identity.
Turbocam is a manufacturer of flow path components for the aerospace and
turbo machinery industries. Its mission statement provides in part that it “exists as
a business for the purpose of honoring God, creating wealth for its employees, and
supporting Christian service to God and people.” Doc. no. 96 at 6. It further provides
that “we hold ourselves accountable to God’s law expressed in the Bible.” Id.
Turbocam offers a health insurance plan to employees like Bernier who work
twenty-five hours or more per week. As of the time Bernier began receiving
hormone therapy in late 2020, Turbocam’s health insurance plan covered
“Transgender Health Services.” Id. at 13. However, beginning in January 2021,
Turbocam switched to a self-funded health insurance plan. Because the new plan
was self-funded, Turbocam had authority over the coverage offered by the plan and
exclusions from coverage. Turbocam also had authority to make exceptions to
exclusions from coverage on an individual basis. In deciding on the scope of
3 The following factual summary is based upon the parties’ statements of
material facts submitted in support of their cross-motions for summary judgment,
which remain pending. See doc. no. 96. The facts summarized herein are not in
genuine dispute for purposes of Turbocam’s Daubert motion.
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coverage, it was important to Turbocam that its self-funded plan align with its
mission statement and the religious conviction associated with it.
Since its inception in January 2021, Turbocam’s self-funded plan has
contained an exclusion from coverage for: “Gender dysphoria4 treatment, including
but not limited to, counseling, gender reassignment surgery or hormone therapy
and related preoporerative and postoperative procedures, which, as their objective,
change the person’s sex and any related complications.” Id. at 15. According to
Turbocam’s owner, Marian Noronha, the reason for the exclusion is because of
Noronha’s view that “male and female” are “immutable” and that “God will not
allow the use of Turbocam’s resources, including its health plan, to assist employees
in erasing or obscuring their sex.” Id. at 15-16.
Bernier first learned of this exclusion in October 2021 when she called
Turbocam’s claims administrator regarding a consultation she had scheduled for a
vaginoplasty. After learning of the exclusion, she made several requests to
Turbocam’s personnel department that she be granted an exception from the
exclusion so that she could receive coverage for gender transition surgery.
4 Gender dysphoria is a condition experienced by transgender people and
recognized as an established diagnosis in the fifth edition of the Diagnostic and
Statistical Manual of Mental Disorders (more commonly known as the “DSM-5”). A
person may be diagnosed with gender dysphoria when they experience (1) “[a] marked
incongruence between one’s experienced/expressed gender and assigned gender” as
manifested by two or more specified criteria, along with (2) “clinically significant
distress or impairment in social, occupational, or other important areas of
functioning.” American Psychiatric Association, Diagnostic and Statistical Manual of
Mental Disorders 512-13 (5th ed., text rev. 2022).
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Turbocam declined to grant her an exception, and Bernier canceled her
consultation.
Subsequently, in March 2022, Bernier sought mental health counseling for
gender dysphoria. She asked Turbocam’s personnel department whether her
therapy would be covered under Turbocam’s health insurance plan. Turbocam’s
benefits specialist informed her that her therapy would not be covered because it
was subject to the gender-dysphoria-treatment exclusion.
After receiving a right-to-sue letter from the Equal Employment Opportunity
Commission, Bernier brought this civil action on November 21, 2023. She brings
claims against Turbocam under Title VII and the ADA. The parties’ cross-motions
for summary judgment are currently pending.
II. Bernier’s Expert
Each party has retained the services of an expert. Bernier’s expert is Randi
Ettner, Ph.D. Dr. Ettner is a licensed clinical and forensic psychologist who
specializes in the diagnosis, treatment, and management of people with gender
dysphoria. Over the last forty-five years, she has evaluated, diagnosed, and treated
more than 3,000 people with gender dysphoria. She has published four books
related to the treatment of people with gender dysphoria, including a medical text.
See, e.g., Principles of Transgender Medicine & Surgery (Randi Ettner et al., eds.,
2d ed. 2016).5 She previously served as Secretary, as well as a member of the Board
of Directors, for the World Professional Association of Transgender Health
5 Dr. Ettner is under contract to produce the third edition of this text.
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(WPATH). She was with WPATH for twelve years. Dr. Ettner also authored the
eighth version of the WPATH Standards of Care for the Health of Transsexual,
Transgender and Gender-Nonconforming People, which was published in 2022. She
has also authored numerous articles in peer-reviewed journals regarding the
provision of health care to the transgender population.
Dr. Ettner received a commendation from Congress in February 2019 in
recognition of her contributions to WPATH. Previously, in 2017, she was invited to
address the Director of the Office of Civil Rights for the United States Department
of Health and Human Services regarding the medical treatment of gender
dysphoria. The University of Minnesota has named Dr. Ettner the honoree of the
Randi and Fred Ettner Fellowship in Transgender Health. She has lectured across
the world on topics related to gender dysphoria and has given grand rounds on
gender dysphoria at university hospitals. Over the last four years, Dr. Ettner has
testified as an expert at trial or by deposition in at least twenty-two civil actions
brought in federal district courts.
Bernier has provided Turbocam with an expert report from Dr. Ettner as part
of its discovery obligations. See doc. no. 71-2. In her report, Dr. Ettner opines that
gender dysphoria has a physiological and biological basis. For example, she points
to evidence that transgender women have brain compositions that differ from
cisgender men and women. These differences, Dr. Ettner says, primarily involve the
right hemisphere of the brain, which is the area of the brain that relates to
attitudes about human bodies in general, one’s own body, and the link between the
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physical body and the biological self. Dr. Ettner also notes scientific studies showing
a co-occurrence of gender dysphoria in families, with an especially high rate of co-
occurrence among identical twins, “even when reared apart.” Id. at 8. Dr. Ettner
states the scientific and medical community now believes that gender dysphoria is
caused by hormonal discrepancies during the intrauterine sexualization periods of
the brain and genitals, which occur at different developmental stages and can be
influenced independently of each other. In other words, if a fetus experiences a
surge of testosterone during the developmental period in which the brain is
sexualizing, this may result in a male gender identity even if the fetus’s genitals
have already sexualized as female. While Dr. Ettner states that, in most cases, a
person’s genital and brain morphology develop in parallel, the rare cases in which
they do not may result in incongruence between a person’s sexual anatomy and
gender identity.
In addition to articulating a physiological or biological basis for gender
dysphoria, Dr. Ettner’s report discusses the necessity of various medical and
surgical treatments for gender dysphoria. Without treatment, Dr. Ettner states,
gender dysphoric individuals may experience a range of potentially debilitating
psychological symptoms, including suicidality. While counseling or psychiatric
medications may relieve some of these symptoms, they do not treat the underlying
dysphoria, and there is no recognized or effective psychiatric treatment for gender
dysphoria. Rather, Dr. Ettner’s report states that treatment for persons with gender
dysphoria typically proceeds according to WPATH’s Standards of Care, which
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indicate medical interventions that permit an individual to live more consistently
with their gender identity. The Standards of Care recommend an individualized
approach to treatment, typically involving one or more of the following: changes in
outward gender expression or role (e.g., changing one’s pronoun or name, or manner
of dress); hormone therapy to masculinize or feminize the body; and surgery to
change primary or secondary sex characteristics. This individualized course of
treatment, often referred to as a gender transition, is undertaken with the goal of
eliminating the incongruence between one’s body and gender identity, and reducing
the dysphoria associated with that incongruence. Dr. Ettner highlights that medical
treatments for gender dysphoria are not cosmetic; they operate to relieve the often-
debilitating effects of gender dysphoria and, in some cases, can be lifesaving.
With respect to Bernier, Dr. Ettner’s report states her understanding that
Bernier is currently being treated with estrogen therapy, and that she intends to
undergo vaginoplasty, which includes orchiectomy (the surgical removal of the
testes). Although she does not offer any conclusions or opinions as to the necessity of
these treatments for Bernier specifically, Dr. Ettner states that estrogen plays a
critical role for transgender women in stabilizing brain chemistry and that, because
the continued maintenance of adequate estrogen levels is essential to various
biological functions, transgender women require lifelong hormonal support. As for
Bernier’s planned surgical intervention, Dr. Ettner notes that orchiectomy halts the
secretion of testosterone, a hormone that may cause and sustain gender dysphoria
in transgender women.
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DISCUSSION
Turbocam moves to exclude Dr. Ettner’s opinions that (A) Bernier’s gender
dysphoria “is a physiological condition that results from a physical impairment”;6
and (B) “hormonal and surgical treatments, including those treatments Bernier has
received or wants to receive, are medically necessary to treat Bernier’s gender
dysphoria.”7 Doc. no. 71 at 1. Turbocam asserts that Dr. Ettner’s opinions on these
topics should be excluded pursuant to Federal Rule of Evidence 702 and Daubert
because (1) she is unqualified to offer them, (2) her opinions are unreliable, and (3)
her opinions are irrelevant. The court will consider each of Turbocam’s assertions in
turn.
6 The ADA defines “disability” in pertinent part as “a physical or mental
impairment that substantially limits one or more major life activities,” “a record of
such an impairment,” or “being regarded as having such an impairment.” 42 U.S.C.
§ 12102(1). And the ADA’s regulations further define “[p]hysical or mental
impairment” in pertinent part as “[a]ny physiological disorder or
condition . . . affecting one or more body systems.” 29 C.F.R. § 1630.2(h)(1).
7 Pending before the court are the parties’ cross-motions for summary
judgment. Bernier notes that her motion for summary judgment does not rely upon
Dr. Ettner’s opinions regarding the biological basis of gender dysphoria or the medical
necessity of various treatments to gender dysphoric persons. Unlike the expert report
disclosed to Turbocam in discovery, the declaration from Dr. Ettner that Bernier
submitted in support of her motion for summary judgment omits any discussion of
these topics. See doc. no. 67-4 (declaration). Although Bernier disclaims reliance upon
Dr. Ettner’s expert report, this court may (but need not) consider it in ruling upon
the parties’ cross-motions. Fed. R. Civ. P. 56(c)(3); Bank of N.Y. Mellon v. Lezdey, Civ.
No. 13-11118-MLW, 2016 WL 5660408, at *2 (D. Mass. Sept. 28, 2016). The court has
not yet determined whether to consider Dr. Ettner’s expert report in ruling on the
parties’ summary judgment motions.
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I. Dr. Ettner Is Qualified
Rule 702 requires that an expert be “qualified . . . by knowledge, skill,
experience, training, or education.” Fed. R. Evid. 702. In measuring an expert’s
qualifications, “the trial court [must] determine, given the proffered expert’s
background, whether the scientific, technical, or other specialized knowledge he
offers ‘will assist the trier better to understand a fact in issue.’” Gaydar v. Sociedad
Instituto Gineco-Quirurgico y Planificacion, 345 F.3d 15, 24 (1st Cir. 2003) (quoting
United States v. Alzanki, 54 F.3d 994, 1005 (1st Cir. 1995)). A proffered expert
“need not be a specialist in a particular medical discipline to render expert
testimony related to that discipline.” Pagés-Ramírez v. Ramírez-González, 605 F.3d
109, 114 (1st Cir. 2010) (quoting Gaydar, 345 F.3d at 24). “Indeed, . . . it would be
an abuse of discretion to exclude testimony that would otherwise ‘assist the trier
better to understand a fact in issue,’ simply because the expert does not have the
specialization that the court considers most appropriate.” Id. (quoting Gaydar, 345
F.3d at 24-25). Thus, “an expert with appropriate credentials and an appropriate
foundation for the opinion at issue must be permitted to present testimony as long
as the testimony” is otherwise admissible. Id. at 115.
Dr. Ettner is qualified to offer her opinion regarding the biological basis of
gender dysphoria and the necessity of medical treatment for gender dysphoria. She
has written portions of medical texts that are addressed to the etiology of gender
dysphoria, and has participated in research regarding the same. She also has
substantial experience and familiarity with the research methodology underlying
the studies supporting the existence of gender dysphoria’s physiological etiology.
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With respect to her opinions on the necessity of medical treatment on gender
dysphoria, Dr. Ettner helped author WPATH’s Standards of Care for the treatment
of gender dysphoria, and she has personally treated over 3,000 transgender
patients. Although she is not a medical doctor, her care for her patients requires a
multidisciplinary approach and extensive participation with her patients’
physicians to care for and manage their gender dysphoria. She is required to
understand the medical aspects of hormone therapy and surgery so that she can
work effectively with her patients and collaborate with their other providers to
recommend a treatment plan, evaluate the patient’s response to treatment, and
modify treatments as needed.
Despite Dr. Ettner’s extensive experience, Turbocam asserts her
qualifications are insufficient because she is “not a medical doctor” and lacks “a
bachelor’s degree in biology.” Doc. no. 71-1 at 4-5. Turbocam is incorrect. A court
evaluating an expert’s qualifications should “consider an expert’s ‘full range of
practical experience as well as academic or technical training.’” Cohen v. Bos. Sci.
Corp., Civ. No. 20-cv-943-PB, 2024 WL 1287648, at *6 (D.N.H. Mar. 26, 2024)
(quoting Anderson v. Raymond Corp., 61 F.4th 505, 509 (7th Cir. 2023)). Thus, in
some circumstances, a medical degree may not be a prerequisite for offering medical
testimony. See, e.g., Wood v. Medtronic Xomed Inc., Civ. No. 13-cv-90-LM, 2015 WL
2342799, at *5 (D.N.H. May 14, 2015) (declining to exclude testimony regarding
surgical implantation of catheters on the ground that the witness lacked a medical
degree where the witness had “spent several decades studying and designing
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medical devices”); Allen v. Martin Surfacing, 263 F.R.D. 47, 58 (D. Mass. 2009)
(“Although [the witness] may lack a medical degree, the record demonstrates that
she has sufficient knowledge, skill, experience, and training to qualify her as an
expert [regarding the etiology of ALS].”). Here, as discussed above, Dr. Ettner has
substantial experience, training, and knowledge with respect to the etiology and
treatment of gender dysphoria, and her lack of a medical degree, or a bachelor’s in
biology, does not preclude her from offering opinion testimony on these subjects.
II. Dr. Ettner’s Opinions Are Reliable
The reliability inquiry under Daubert and Rule 702 is a “flexible” one,
“allowing for consideration of factors like whether the expert’s methodology has
been objectively tested; whether it has been subjected to peer review and
publication; the technique’s known or potential error rate; and whether the expert’s
technique has been generally accepted within the relevant industry.” Lawes v. CSA
Architects & Eng’rs LLP, 963 F.3d 72, 98 (1st Cir. 2020). The court must find it is
more likely than not “that the expert’s findings are based on sound science,” which
necessitates “some objective, independent validation of the expert’s methodology.”
Id. (quoting Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311, 1316 (9th Cir.
1995), on remand, 509 U.S. 579 (1993)). In other words, the district court may not
simply rely on “an expert’s self-serving assertion that his conclusions were derived
by the scientific method.” Id. (quoting Daubert, 43 F.3d at 1316). At the same time,
the court “must stop short of weighing the evidence, evaluating credibility, or
unnecessarily picking sides in a battle between experts.” Id. And, while the court
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may also “evaluate the data offered to support an expert’s bottom-line opinions” in
considering her opinions’ reliability, Ruiz-Troche, 161 F.3d at 81, the court should
not “‘unduly scrutinize the quality of the expert’s data,’ because such scrutiny
‘usurps the role of the jury.’” Lawes, 963 F.3d at 99 (brackets omitted) (quoting
Manpower, Inc. v. Ins. Co. of Pa., 732 F.3d 796, 806 (7th Cir. 2013)). At bottom, a
court evaluating reliability must take care not to “cross[ ] the boundary between
gatekeeper and trier of fact.” Milward, 639 F.3d at 22.
Here, Bernier asserts that Dr. Ettner’s opinion regarding the physiological
etiology of gender dysphoria is based upon her own participation in brain imaging
studies, which involved review of the technical protocols of such studies, review of
brain image datasets, and the analysis of differences in brain composition. Her
opinion is also based upon her synthesis and understanding of peer-reviewed
medical and scientific brain imaging studies, as well as twin studies,
neuroanatomical studies, genetic studies, and endocrinological studies. In short, Dr.
Ettner’s opinion as to the basis of gender dysphoria is based on a robust analysis of
peer-reviewed literature and is supported by substantial research. Bernier has
carried her burden of demonstrating that Dr. Ettner’s opinions are more likely than
not based on her application of a sound methodology.
Turbocam disagrees. Turbocam claims that Dr. Ettner relies on a “cherry-
picked” selection of “outdated and weak” studies with small sample sizes while
ignoring newer studies using more reliable methods that arrive at conclusions
undermining hers. Doc. no. 71-1 at 7. This critique, however, goes to the weight of
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Dr. Ettner’s testimony, not its admissibility. “Rule 702 does not demand that
experts rely on all data that could be deemed relevant,” nor does it “require the
expert to seek out the best possible source of relevant information.” Lawes, 963 F.3d
at 101. Rather, Rule 702 requires that the expert’s opinion stem from “sufficient
facts or data.” Fed. R. Evid. 702(b). This requirement “calls for a quantitative rather
than a qualitative analysis.” Id., advisory committee note to 2000 amendments.
“The question is whether the expert considered enough information to make the
proffered opinion reliable,” not whether the expert “base[d] her opinion on
something less than all the pertinent facts or data.” 29 Wright & Miller’s Federal
Practice & Procedure § 6268 (2d ed.). In performing its gatekeeping role, the court is
satisfied that Dr. Ettner’s opinion on the etiology of gender dysphoria is based on a
principled review, understanding, and synthesis of a sufficient quantity of peer-
reviewed medical and scientific studies and publications.8
Turbocam also claims that Dr. Ettner mischaracterizes and exaggerates the
studies that she does rely upon. For example, Turbocam states that Dr. Ettner, in
characterizing one twin study, claimed that the study found a 33% likelihood of both
twins being transgender even when reared apart while failing to note that this 33%
figure related only to male identical twins. For female identical twins, the likelihood
8 Nor does the court find that Dr. Ettner “ignored a significant portion of
seemingly important data.” Wright & Miller, supra. Turbocam identifies only a
handful of sources that it claims Dr. Ettner overlooked. See doc. no. 71-1 at 9-10
(identifying one study, a critique of several other studies, and a report from the
Endocrine Society). These sources can be understood as consistent with Dr. Ettner’s
opinion that gender dysphoria has a biological basis. See doc. no. 86-1 at 10-13.
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of both twins being transgender was 23%, which Dr. Ettner did not acknowledge in
her expert report. The court has reviewed each of Turbocam’s critiques of Dr.
Ettner’s characterizations of the research and finds that such critiques go to Dr.
Ettner’s “preciseness” and “credibility,” and hence the weight rather than the
admissibility of her testimony. Lawes, 963 F.3d at 109.
Finally, Turbocam claims that Dr. Ettner may not reliably opine on the
necessity of medical treatment for Bernier specifically because, among other things,
she has never examined or met with Bernier. The court does not understand Dr.
Ettner’s expert report to opine on the necessity of any medical treatments for
Bernier specifically. Rather, Dr. Ettner’s report states her understanding that
Bernier is receiving specified treatments and explains what these treatments
generally accomplish for gender dysphoric individuals. Bernier agrees that it would
be improper for Dr. Ettner to opine on the necessity of any medical treatment for
Bernier specifically. Accordingly, Turbocam’s argument on this score is moot.
III. Dr. Ettner’s Opinions Are Relevant
Finally, Turbocam claims that Dr. Ettner’s opinions on the etiology and
treatment of gender dysphoria are irrelevant to any issue in this case and are
therefore subject to exclusion under Rule 702. According to Turbocam, Dr. Ettner’s
opinion on the physiological or biological basis for gender dysphoria is irrelevant to
whether Bernier’s gender dysphoria is a “physical . . . impairment” as that phrase is
used in the ADA and its regulations. 42 U.S.C. § 12102(1); 29 C.F.R. § 1630.2(h)(1).
Turbocam further claims that Dr. Ettner’s opinion on the proper treatment of
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gender dysphoria generally is irrelevant because she cannot opine on whether
Bernier requires any particular medical treatment.
The court is not persuaded. Dr. Ettner’s testimony on how various
medications and procedures treat gender dysphoria may help the jury to
understand Bernier’s specific course of treatment even if Dr. Ettner offers no
opinion as to whether Bernier’s providers were correct in setting up Bernier’s
specific treatment regime. And her opinion on the cause of gender dysphoria can
certainly help the jury better understand gender dysphoria—a complex medical
diagnosis—even if her opinion does not definitively prove that Bernier’s gender
dysphoria is a physical impairment within the meaning of the ADA (a matter on
which the court offers no opinion). On this record, the court cannot conclude that
Dr. Ettner’s testimony would be of no assistance to the jury in “understand[ing] the
evidence or . . . determin[ing] a fact in issue.” Fed. R. Evid. 702(a).
CONCLUSION
For these reasons, Turbocam’s Daubert motion (doc. no. 71) is denied.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
January 7, 2026
cc: Counsel of Record
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