Burkhart v. Washington Metropolitan Area Transit Authority

Citation324 U.S.App.D.C. 241,112 F.3d 1207
Decision Date16 May 1997
Docket NumberNo. 96-7163,96-7163
Parties, 133 Lab.Cas. P 58,249, 47 Fed. R. Evid. Serv. 142, 6 A.D. Cases 1333, 10 NDLR P 40 Eduardo BURKHART, Appellee v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Appeal from the United States District Court for the District of Columbia (No. 95cv00812).

Gerard J. Stief, Associate General Counsel, Washington Metropolitan Area Transit Authority, argued the cause for appellant, with whom Robert L. Polk, General Counsel, Robert J. Kniaz, Deputy General Counsel, Washington, DC, David R. Keyser, Takoma Park, MD and Mark F. Sullivan, Thousand Oaks, CA, were on the briefs.

Marc Fiedler, Washington, DC, argued the cause and filed the brief for appellee.

Deval L. Patrick, Assistant Attorney General, United States Department of Justice, Jessica Dunsay Silver and Samuel R. Bagenstos, Attorneys, Washington, DC, were on the brief for the United States as amicus curiae.

Before EDWARDS, Chief Judge, SILBERMAN and SENTELLE, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

Concurring opinion filed by Chief Judge EDWARDS.

SENTELLE, Circuit Judge:

Washington Metropolitan Area Transit Authority ("WMATA" or the "Authority") appeals from a judgment following a jury verdict finding WMATA (1) directly liable for negligent hiring, training, and supervision of its bus operators; (2) directly liable for violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. § 791 et seq.; and (3) vicariously liable for assault, battery, and infliction of emotional distress. WMATA raises a myriad of issues on appeal, many of which have been waived and others of which are frivolous. We need only consider certain of the issues, finding them sufficient to reverse the judgment of the trial court as to the ADA and Rehabilitation Act claims and the negligent hiring, training, and supervision claims. However, we affirm the trial court's judgment as to the assault, battery, and infliction of emotional distress claims.

I. Background

This case arises from a physical altercation that took place in northern Virginia between Eduardo Burkhart, plaintiff-appellee, and Archie Smith, a WMATA bus operator. On May 5, 1994, Burkhart and a friend, Basram Salman, both of whom are deaf, boarded a Metrobus in Arlington, Virginia. Burkhart and Salman each placed a thirty-cent token in the fare box. The correct fare for those with disabilities is fifty-cents. As the bus pulled away from the curb, Smith called both Burkhart and Salman back to pay the correct fare. However, because they are deaf, neither Salman nor Burkhart understood Smith's request. The events that followed this exchange are in substantial dispute. It is sufficient for our purposes to say that a series of blows was exchanged between Smith and Burkhart.

When the bus reached its destination at the Pentagon Metrorail Station, Burkhart exited the bus and began looking for a transit officer. At this point, the evidence is in dispute as to whether Burkhart was pointing to Smith or was sticking his finger in Smith's chest. In any event, Smith then grabbed Burkhart's finger. Burkhart responded by kicking Smith in the groin, causing him to release his hold of Burkhart's finger. Smith then picked up a stick, at which point he was restrained.

Ultimately, Transit Police Officer Jonathan Gray arrived on the scene. Officer Gray and Burkhart communicated by writing notes on a notepad. Burkhart testified that he requested an interpreter at some point during his exchange with Officer Gray. Officer Gray testified that no such request was ever made. An interpreter was not called to the scene. Upon completing his discussion with Officer Gray, Burkhart attempted to locate witnesses to the incident. Officer Gray then transported both Smith and Burkhart to a magistrate to press charges against one another. Both Smith and Burkhart were charged with assault and battery. However, these charges were ultimately dropped.

Burkhart subsequently filed suit against WMATA and Smith for injuries sustained as a result of the altercation with Smith. Burkhart asserted claims against Smith, and against WMATA vicariously, for assault, battery, gross negligence, and infliction of emotional distress. In addition, Burkhart alleged that WMATA negligently hired trained, and supervised its bus operators and, as a result, caused the assault and battery at issue. Still further, Burkhart alleged that he was subject to discrimination, by reason of his disability, in violation of both the ADA and Rehabilitation Act in that WMATA failed to take appropriate steps to ensure that communications with him were as effective as communications with others. The case was tried to a jury with a magistrate judge presiding. At trial, WMATA admitted that Smith was acting within the scope of his employment with WMATA when the events at issue occurred. As a result, the district court granted Smith's unopposed motion that the claims against him be dismissed.

During the course of the trial, Burkhart called Edward Spurlock as an expert "as to how the ADA [and] Rehabilitation Act impact on police practices, procedures, and training." WMATA objected to Spurlock as a witness, and a voir dire examination of the witness was conducted during which Spurlock recounted his expertise in police training and procedures. The court accepted Spurlock "as an expert with respect to the issues of police procedures, practices, and training, as they concern the [ADA] and the Rehabilitation Act." The trial judge then allowed Spurlock to testify concerning whether WMATA and Officer Gray had complied with the requirements of the ADA and Rehabilitation Act as well as accepted police procedures.

At the conclusion of trial, the jury returned a verdict for Burkhart. The jury concluded that WMATA was vicariously liable for assault and battery, and awarded Burkhart $373.65 in damages for medical expenses incurred. In addition, the jury found WMATA vicariously liable for infliction of emotional distress, and awarded Burkhart $510.00 for medical expenses. Further, the jury found WMATA directly liable for negligent hiring, training, and supervision, and awarded Burkhart $50,000 for "injuries caused by the defendants' acts." Finally, the jury found WMATA directly liable for violations of the ADA and Rehabilitation Act, and awarded Burkhart another $50,000 in damages for "injury, embarrassment, humiliation, frustration, inconvenience, indignity and/or the stigma of discrimination." As a result, the trial court entered a judgment for Burkhart in the amount of$100,883.65 and awarded him attorneys' fees and costs of$62,071.46 on the ADA claim. WMATA appeals raising thirteen separate issues of which three warrant discussion.

II. Analysis
A. Expert Witness.
1. Error.

WMATA argues that the trial court erred in permitting Spurlock to testify as an expert concerning the ADA and Rehabilitation Act. Before considering whether Spurlock's testimony was proper expert witness testimony, we think it profitable to discuss briefly the requirements of the ADA.

The relevant provision of the ADA is Title II which governs "public entities," including agencies of state and local governments. 42 U.S.C. §§ 12131(1), 12132. Title II is divided into two parts. Part A generally prohibits disability-based discrimination by any public entity. Id. § 12132. Part B provides specific examples of prohibited discriminatory conduct in the public transportation context. Id. §§ 12142, 12143(a), 12144, 12146, 12147, 12148, 12162 (defining "discrimination for purposes of section 12132"). Of course, public transportation providers are also subject to the general nondiscrimination mandate of Title II(A). See id. § 12131 (defining a "public entity" subject to section 12132 as including "any commuter authority"). 1

The Attorney General has authority to promulgate regulations implementing Title II(A)'s general rule of nondiscrimination, id. § 12134(a), while the Secretary of Transportation has authority to promulgate regulations implementing the transportation-specific provisions of Title II(B), id. §§ 12149 12164. 2 Subpart E of the Attorney General's ADA regulations governs communication with the disabled by a public entity. That subpart provides, inter alia, that:

(a) A public entity shall take appropriate steps to ensure that communications with applicants, participants, and members of the public with disabilities are as effective as communications with others.

(b)(1) A public entity shall furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in and enjoy the benefits of, a service, program, or activity conducted by a public entity.

(2) In determining what type of auxiliary aid and service is necessary, a public entity shall give primary consideration to the requests of the individual with disabilities.

28 C.F.R. § 35.160 (1996). The Secretary of Transportation's ADA regulations require that public transportation providers "ensure that personnel are trained to proficiency, as appropriate to their duties, so that they ... properly assist and treat individuals with disabilities who use the service in a respectful and courteous way." 49 C.F.R. § 37.173.

As detailed above, Burkhart alleged that WMATA violated the ADA and Rehabilitation Act by failing to ensure that communication with him was "as effective" as communication with others. Spurlock testified as an expert in support of these claims. WMATA contends that it was error for the district court to permit certain aspects of this testimony. To evaluate expert testimony, the Federal Rules of Evidence provide that "[i]f scientific, technical, or other specialized knowledge will assist the trier...

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