Glanz v. Vernick, Civ. A. No. 89-0748-MA.

• Decision Date: 01 November 1990
• Docket Number: Civ. A. No. 89-0748-MA.
• Citation: 750 F. Supp. 39
• Parties: Rosalie GLANZ, executrix of the Estate of Raymond Vadnais, Plaintiff, v. Dr. David M. VERNICK, Dr. Michael Miller, Beth Israel Corporation, and Beth Israel Hospital, Defendants.
• Court: U.S. District Court — District of Massachusetts

750 F. Supp. 39

Rosalie GLANZ, executrix of the Estate of Raymond Vadnais, Plaintiff, v.Dr. David M. VERNICK, Dr. Michael Miller, Beth Israel Corporation, and Beth Israel Hospital, Defendants.

Civ. A. No. 89-0748-MA.

United States District Court, D. Massachusetts.

November 1, 1990.

Harvey A. Schwartz, Schwartz, Shaw & Griffith, Boston, Mass., for plaintiff.

Claudia Hunter, Bloom and Buell, Boston, Mass., for defendants.

MEMORANDUM AND ORDER

MAZZONE, District Judge.

In April, 1989, plaintiff's decedent, Raymond Vadnais, brought this suit against the defendants, alleging discrimination in violation of § 504 of the Rehabilitation Act of 1973,87 Stat. 394, as amended, 29 U.S.C. § 794.Specifically, Mr. Vadnais claimed that the defendants refused to perform elective ear surgery on him because he had tested positive for Human Immunodeficiency Virus (HIV), associated with Acquired Immune Deficiency Syndrome (AIDS).Mr. Vadnais claimed to have suffered severe pain in his right ear, which pain was prolonged because of the defendants' failure to perform surgery and disappeared only when surgery was performed elsewhere.

On March 14, 1990, Mr. Vadnais died of AIDS-related illnesses.The motion of plaintiff, executor of the estate of Mr. Vadnais, to be substituted as a partyplaintiff pursuant to Fed.R.Civ.P. 25(a)(1) was allowed.Prior to Mr. Vadnais's death, defendants had filed motions for summary judgment.Those motions were stayed¹ to allow defendants to file the present motion to dismiss on the ground that the cause of action does not survive Mr. Vadnais's death, does not present a case or controversy, and fails to state a claim for which relief can be granted.

I

I will treat the present motion to dismiss as a motion for judgment on the pleadings.Fed.R.Civ.P. 12(c).Thus, for the purposes of the present motion, accepting the plaintiff's allegations as true and drawing all permissible inferences in her favor, Rivera-Gomez v. De Castro,843 F.2d 631, 635(1st Cir.1988), the facts can be briefly summarized as follows.

In December, 1986, defendant Dr. Vernick saw Mr. Vadnais at the Ears, Nose, and Throat Clinic at Beth Israel Hospital and treated him for severe pain in the right ear, at first by prescribing antibiotics and ear drops.In January of 1987 Dr. Vernick diagnosed a perforation in Mr. Vadnais's right ear and, at Mr. Vadnais's third visit, recommended surgery to repair the perforation.After Mr. Vadnais agreed to undergo surgery, Dr. Vernick learned that Mr. Vadnais was infected with HIV and in March, 1987, informed Mr. Vadnais that he would not perform the operation.The ear condition persisted, causing severe pain and discomfort, while Mr. Vadnais continued the ineffective use of antibiotics and ear drops.

In August, 1988, a doctor who was unaware of Mr. Vadnais's HIV status performed the surgery, curing Mr. Vadnais's ear problem.Subsequently, Mr. Vadnais brought this lawsuit seeking to enjoin defendants from denying him any further surgical procedures.Mr. Vadnais also sought compensatory damages for the pain and suffering and emotional distress caused by the delay in receiving corrective surgery, along with punitive damages and attorney's fees.

II

Section 504 of the Rehabilitation Act,29 U.S.C. § 794, states in pertinent part that "no otherwise qualified handicapped individual in the United States ... shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance...."For the purposes of the present motion, the court will assume that HIV-positive status is a "handicap" within the meaning of the Rehabilitation Act, that Mr. Vadnais was "otherwise qualified" for surgery, and that the defendants qualify as "any program or activity receiving Federal financial assistance."A 1978amendment to the Rehabilitation Act, § 505(a)(2), as added, 92 Stat. 2982,29 U.S.C. § 794(a)(2), made available the "remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964" to persons aggrieved of discrimination in violation of § 504.

A troublesome question under both § 504andTitle VI is the extent to which a private cause of action for damages is available.At the very least, the Supreme Court has held that the remedy of backpay for intentional employment discrimination assumed to be available under Title VI in Guardians Ass'n v. Civil Serv. Comm'n,463 U.S. 582, 103 S.Ct. 3221, 77 L.Ed.2d 866(1983), is available to plaintiffs claiming discrimination because of their handicap under § 504.Consolidated Rail Corp. v. Darrone,465 U.S. 624, 631, 104 S.Ct. 1248, 1253, 79 L.Ed.2d 568(1984).See alsoCarter v. Orleans Parish Pub. Schools,725 F.2d 261(5th Cir.1984)(interpretingGuardians Ass'n as preventing recovery under § 504 without a showing of discriminatory animus).To the extent that intentional discrimination is an element of § 504, the court will also assume that the defendants intentionally refused to perform surgery on Mr. Vadnais because of his handicap.

The First Circuit has not squarely addressed whether, and to what extent, damages are available under § 504.SeeHurry v. Jones,734 F.2d 879, 886(1st Cir.1984)(finding no need to reach the question);Ciampa v. Massachusetts Rehabilitation Comm'n,718 F.2d 1(1st Cir.1983)(assuming without deciding that damages are available under § 504).For the purposes of the present motion, this court will likewise assume without deciding that a cause of action for the type of damages that the complaint alleges is available under the statute.Cf.Miener v. Missouri,673 F.2d 969, 973(8th Cir.), cert. denied,459 U.S. 909, 103 S.Ct. 215, 74 L.Ed.2d 171(1982)(collecting cases finding an implied right of action under § 504);Organization of Minority Vendors, Inc. v. Illinois Cent. Gulf R.R.,579 F.Supp. 574, 593 n. 9(N.D.Ill.1983)(same).The question before the court — on which the statute and the case law are silent — is whether this action abated with the death of plaintiff's decedent.²

In determining whether the cause of action survives, an important preliminary issue is whether the question of abatement is to be decided as a matter of state or federal law.The defendants, citing Erie R.R. Co. v. Tompkins,304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188(1938), simply assert that the law of the forum state always governs when statutory and decisional authority are absent.Although defendants' reliance on Erie in this federal question case is misplaced, I ultimately reach the same conclusion — that state law applies — by taking a much more circuitous route.

The plaintiff correctly cites the general rule: "The question of survival of an action grounded in federal law is governed by federal common law when ... there is no expression of contrary intent."Smith v. Department of Human Servs.,876 F.2d 832, 834(10th Cir.1989).AccordAsklar v. Honeywell, Inc.,95 F.R.D. 419, 422-23(D.Conn.1982)(collecting cases); 7C C. Wright, A. Miller & M. Kane, Federal Practice and Procedure§ 1952 (2d ed. 1986).For example, a number of cases considering whether an action brought under the Age Discrimination in Employment Act (ADEA),29 U.S.C. § 626(b), abates with the death of the plaintiff have uniformly applied federal law, albeit with disparate results.See, e.g., Smith,876 F.2d 832(yes);Fariss v. Lynchburg Foundry,769 F.2d 958(4th Cir.1985)(no);Asklar,95 F.R.D. 419(no).As the ADEA and the Rehabilitation Act are separated by just one chapter within title 29 of the United States Code, it would seem reasonable to conclude that the approach followed in one would be followed in the other.

The basic rule that survival of a federal statutory action is a question of federal common law, however, applies only when "there is no expression of contrary intent,"Smith,876 F.2d at 834, or "in the absence of a statutory directive."Asklar,95 F.R.D. at 423.I conclude that § 505(a)(2) of the Rehabilitation Act expresses such contrary intent.Section 505(a)(2), as mentioned previously, invokes for claims asserted under the Rehabilitation Act the "remedies, procedures, and rights" set forth in Title VI of the Civil Rights Act of 1964.In turn, statutory construction of Title VI, like all other federal civil rights statutes, is governed by 42 U.S.C. § 1988.Section 1988 provides that when the civil rights statutes are "deficient in the provisions necessary to furnish suitable remedies," the federal courts should consult "the common law, as modified and changed by the constitution and statutes of the forum state ... so far as the same is not inconsistent with the Constitution and laws of the United States."SeeRobertson v. Wegmann,436 U.S. 584, 98 S.Ct. 1991, 56 L.Ed.2d 554(1978)(holding that Louisiana survivorship law is not "inconsistent," within the meaning of § 1988, with the purposes of 42 U.S.C. § 1983).

Not all provisions of Title VI, however, apply to § 504.In Darrone,the Supreme Court held that § 604 of Title VI, which limits recovery to cases where a primary objective of federal aid is to provide employment, does not apply to § 504.The Court noted that the adoption of Title VI procedures was "`designed to enhance the ability of handicapped individuals to assure compliance with § 504.'"465 U.S. at 635, 104 S.Ct. at 1255(quotingS.Rep. No. 890, 95th Cong., 2d Sess. 18(1978)).The Court concluded that the limitation of § 604 of Title VI was inconsistent with the purposes of § 504. 465 U.S. at 631-35, 104 S.Ct. at 1252-55.I am thus confronted with the question whether, by enacting § 505(a)(2), Congress intended to incorporate § 1988 into the Rehabilitation Act regime.

Unlike § 604 of Title VI,§ 1988 is in no way incompatible with § 504.In fact, to the extent that the application of state law is "inconsistent" with federal law, § 1988 by its own terms requires the court to...