Me. Human Rights Comm'n v. Care
| Citation | 84 Fed. R. Evid. Serv. 1354,770 F.Supp.2d 370 |
| Decision Date | 14 March 2011 |
| Docket Number | No. 1:09–cv–00466–JAW.,1:09–cv–00466–JAW. |
| Parties | MAINE HUMAN RIGHTS COMMISSION, et al., Plaintiffs,v.SUNBURY PRIMARY CARE, P.A., Defendant. |
| Court | U.S. District Court — District of Maine |
OPINION TEXT STARTS HERE
John P. Gause, Maine Human Rights Commission, Augusta, ME, Margaret Elizabeth Gallie, Portland, ME, for Plaintiffs.Anne Birgel Cunningham, Robert C. Brooks, Verrill Dana LLP, Portland, ME, for Defendant.
ORDER ON MOTIONS IN LIMINE, TO STRIKE, TO DISMISS AND FOR SUMMARY JUDGMENT
This case involves a disability discrimination claim by a deaf patient and the Maine Human Rights Commission (MHRC) against a medical provider. After resolving some preliminary controversies regarding expert witnesses, the Court grants in part and denies in part the provider's dispositive motions. The Court concludes that even if the patient no longer has standing to demand injunctive relief, the MHRC maintains standing to demand it, that the patient has raised genuine issues of material fact as to whether the provider violated the Maine Human Rights Act (MHRA), that the Plaintiffs complied with the conciliation provision of the MHRA, and that the patient has raised genuine issues of material fact as to whether the provider violated the Rehabilitation Act of 1973(RA). Finally, the Court grants conceded portions of the Plaintiffs' claims.
I. STATEMENT OF FACTSA. Procedural History
On July 29, 2009, the MHRC and Shirley Carney filed suit in the Superior Court of Maine, Penobscot County, because Sunbury Primary Care, P.A. (Sunbury) refused to provide her with an American Sign Language (ASL) interpreter during an August 16, 2007 office visit. Notice of Removal (Docket # 1) at 1; Aff. of Robert C. Brooks (Docket # 3) Attach. 1 ¶ ¶ 1, 2 ( Compl.). In the Complaint, the MHRC and Ms. Carney assert violations of the MHRA, 5 M.R.S. § 4551 et seq. , and seek compensatory damages and injunctive relief. Notice of Removal ¶ 1. Ms. Carney separately alleges violations of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and the RA, 29 U.S.C. § 701 et seq., and seeks damages and injunctive relief. Id. ¶ 1. Finally, she claims Sunbury made billing errors and seeks money “had and received.” Compl. ¶¶ 35–41. Sunbury removed the case to federal court on September 23, 2009. Notice of Removal at 1.
On July 1, 2010, the MHRC moved to exclude testimony by Sunbury's expert, John W. “Dutch” Stephens, P.A. Pl. MHRCs Mot. in Limine to Exclude Test. By Def.'s Expert Witness (Docket # 31) ( Pl.'s Mot. in Limine). Sunbury responded on July 23, 2010, and the MHRC replied on August 11, 2010. Sunbury's Opp'n to Pl. MHRCs Mot. in Limine to Exclude Sunbury's Expert Witness Test. (Docket # 54) ( Def.'s Opp'n to Pl.'s Mot. in Limine); Pl. MHRC's Reply Regarding Mot. in Limine to Exclude Def.'s Expert Witness (Docket # 71) ( Pl.'s Mot. in Limine Reply ).
On July 2, 2010, Sunbury moved to exclude the expert testimony of the Plaintiffs' expert, Judy Shepard–Kegl, Ph.D. Def. Sunbury's Mot. to Exclude Expert Test. Under Federal Rules of Evidence 702 (Docket # 46) ( Def.'s Mot to Exclude ). The Plaintiffs responded in opposition on August 11, 2010. Pl.'s Opp'n to Sunbury's Mot. to Exclude Expert Test. (Docket # 68) ( Pl.'s Opp'n to Mot. in Limine). Sunbury replied on September 1, 2010. Def. Sunbury's Reply to Pl.'s Opp'n to Mot. to Exclude Expert Test, of Judith Shepard–Kegl (Docket # 80) ( Def.'s Reply to Pl.'s Opp'n to Mot. in Limine).
On September 1, 2010, Sunbury moved to strike the Plaintiffs' supplemental expert witness disclosure relating to Dr. Shepard–Kegl's testimony as to the effectiveness of Ms. Carney's communication with Mr. Stephens on August 16, 2007. Def. Sunbury's Mot. to Strike Pl.s.' Supplemental Expert Witness Disclosure (Docket # 81) ( Def.'s Mot. to Strike ). On September 22, 2010, the Plaintiffs filed their opposition to the motion and on October 6, 2010, Sunbury filed its reply. Pls.' Opp'n to Sunbury's Mot. to Strike Pls.' Supplemental Expert Witness Disclosure (Docket # 84) ; Def. Sunbury's Reply to Pls.' Opp'n to Def.'s Mot. to Strike Pls.' Supplemental Expert Witness Disclosure (Docket # 85) ( Def.'s Mot. to Strike Reply ).
On July 2, 2010, Sunbury moved to dismiss the Complaint under Rule 12(b)(1) and (6) and, separately, for summary judgment under Rule 56. Def. Sunbury's Partial Mot. to Dismiss (Docket # 47) ( Def.'s Mot. to Dismiss ); Def.'s Mot. for Summ. J. (Docket # 48) ( Def.'s Summ. J. Mot.). On August 11, 2010, Ms. Carney and the MHRC separately responded in opposition. Pl. Shirley Carney's Opp'n to Def.'s Partial Mot. to Dismiss (Docket # 60) ( Carney Opp'n to Dismiss ); PL MHRC's Opp'n to Sunbury's Mot. to Dismiss (Docket # 67) ( MHRC Opp'n to Dismiss); PL Shirley Carney's Objection to Def.'s Mot. for Summ. J. (Docket # 59) ( Carney Opp'n to Summ. J.); Pl. MHRC's Opp'n to Sunbury's Mot. for Summ. J. (Docket # 66) ( MHRC's Opp'n to Summ. J.). On September 1, 2010, Sunbury separately replied. Def.'s Reply to Pl. Shirley Carney's Opp'n to its Partial Mot. to Dismiss. (Docket # 75) ( Def.'s Reply to Carney Opp'n to Dismiss ); Def.'s Reply to PL MHRC's Opp'n to Sunbury's Mot. to Dismiss (Docket # 77) ( Def.'s Reply to MHRC Opp'n to Dismiss ); Sunbury's Reply to Pl. Shirley Carney's Objection to its Mot. for Summ. J. (Docket # 76) ( Def.'s Reply to Carney Opp'n to Summ. J.); Def.'s Reply to Pl. MHRC's Opp'n to Sunbury's Mot. for Summ. J. (Docket # 78) ( Def.'s Reply to MHRC's Opp'n to Summ. J.).
B. Facts 1,2
Shirley Carney, a resident of Etna, Maine, is hearing-impaired. DSMF ¶ ¶ 20–3; POSMF ¶ ¶ 2–3. She has been deaf since approximately the age of three. DSMF ¶ 4; POSMF ¶ 4; PSAMF ¶ 149; DRPSAMF ¶ 149. She cannot recall ever being able to hear anything other than loud sounds and has never been able to hear voices. PSAMF ¶ 149; DRPSAMF ¶ 149.
When she was eight years old, Ms. Carney enrolled in the Baxter School for the Deaf, which she attended until she was age seventeen. DSMF ¶ 6; POSMF ¶ 6; PSAMF ¶ 150; DRPSAMF ¶ 150. She did fine academically and could have received her high school diploma if she had stayed in school a few more months. DSMF ¶ 7; POSMF ¶ 7. Ms. Carney's parents and her eight siblings are not deaf. DSMF ¶ 5; POSMF ¶ 5. Ms. Carney communicated with her second husband by sign language.3 PSAMF ¶ 151; DRPSAMF ¶ 151.
To communicate with people by phone, Ms. Carney has used a video phone and Video Relay Service for the past four years. PSAMF ¶ 152; DRPSAMF ¶ 152. The Video Relay Service allows Ms. Carney to have video contact with a sign language interpreter, who then communicates in spoken English with the person Ms. Carney is calling. PSAMF ¶ 152; DRPSAMF ¶ 152. Ms. Carney's native language is American Sign Language (ASL). PSAMF ¶ 153. ASL and English are very different languages, and while Ms. Carney is able to read and write some English, it is difficult or impossible for her to understand much of what she reads and it is often difficult or impossible for her to write in English what she wishes to say.4 PSAMF ¶ 153.
According to the Plaintiffs, Ms. Carney's speech is insufficient for communication, especially in a medical context. PSAMF ¶ 155; DRPSAMF ¶ 155. Ms. Carney's lip reading is limited; as calculated by Dr. Shepard–Kegl, Ms. Carney can successfully lip read 48 percent of material presented, and can recognize 35 percent of individually presented words and 53 percent of phrases. 5 PSAMF ¶ 162. Overall, without an ASL interpreter, Ms. Carney cannot reliably access content-rich communication situations—those that involve the exchange of detailed information that is outside of a person's everyday familiar experience.6 PSAMF ¶ 164. According to the Plaintiffs' expert, an appointment with a primary care provider is the type of situation likely to involve content-rich communication and it is unlikely she could reliably understand information in such a setting.7 PSAMF ¶ 165.
Before 2007, Sunbury did not maintain a written policy concerning the accommodation of hearing impaired.8 DSMF ¶ 13; POSMF ¶ 13. At the beginning of 2007, Sunbury adopted a written policy providing in part that it would “work cooperatively with hearing-impaired persons to determine whether and what auxiliary aids and services are appropriate to ensure effective communication between [Sunbury] and hearing impaired persons.” DSMF ¶ ¶ 17–18; POSMF ¶ ¶ 17–18. The policy allowed Sunbury to “select and use whatever auxiliary aid or service that it needs to ensure effective communication with hearing impaired persons.” DSMF ¶ 18; POSMF ¶ 18. When there were several options available, the provider could choose among various alternatives “as long as the result is effective communication.” DSMF ¶ 18; POSMF ¶ 18. Specifically, as regards lip reading, the Sunbury policy stated that “the provider, after consultation with the hearing impaired person will determine whether the medical information is too complex for accurate lipreading to occur.” DSMF ¶ 18; POSMF ¶ 18. As regards the use of written notes, the policy provided that “[w]hether or not a provider may rely on written notes (including a computer screen) will depend on the reading level of the hearing-impaired person, along with other considerations.” DSMF ¶ 18; POSMF ¶ 18.
Sunbury's CEO is David Savell. DSMF ¶ 1; POSMF ¶ 1. He is responsible for the day-to-day implementation of the policy but does not make the final determination as to whether Sunbury provides an interpreter to a hearing-impaired patient.9 DSMF ¶ 20; POSMF ¶ 20. The Plaintiffs deny...
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