Majocha v. Turner

• Decision Date: 13 September 2001
• Docket Number: No. CIV.A. 00-552.,CIV.A. 00-552.
• Parties: Darrin MAJOCHA and Anna Majocha, Plaintiffs, v. Joseph TURNER, M.D.; Michael A. Gottleib, M.D.; Louis S. Felder, M.D.; and Pittsburgh Ear, Nose & Throat Associates, Defendants
• Court: U.S. District Court — Western District of Pennsylvania

166 F.Supp.2d 316 Darrin MAJOCHA and Anna Majocha, Plaintiffs,
v.
Joseph TURNER, M.D.; Michael A. Gottleib, M.D.; Louis S. Felder, M.D.; and Pittsburgh Ear, Nose & Throat Associates, Defendants No. CIV.A. 00-552. United States District Court, W.D. Pennsylvania. September 13, 2001.

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Mark J. Murphy, Carol A. Horowitz, Disabilities Law, Disabilities Law Project, Pittsburgh, PA, Mary C. Vargas, Marc P. Charmatz, National Association for the

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Deaf Law Center, Silver Spring, MD, for Darrin Majocha, Anna Majocha, plaintiffs.

Alan S. Baum, Gaca, Matis, Baum & Rizza, Pittsburgh, for Joseph Turner, M.D., Michael A. Gottlieb, M.D., Louis S. Felder, M.D., Pittsburgh Ear, Nose & Throat Associates, defendants.

MEMORANDUM OPINION

LEE, District Judge.

Fifteen month old Darrin ("D.J.") Majocha suffered from chronic ear infections in 1999. D.J.'s pediatrician referred his parents to Dr. Joseph Turner, M.D., a preeminent specialist at the Pittsburgh Ear, Nose and Throat Associates ("ENT"), to discuss the possibility of surgery to insert tubes in D.J.'s ears. On or about August 25, 1999, Anna Majocha called ENT to make an appointment for her and her husband, Darrin Majocha, to bring D.J. in for an evaluation with Dr. Turner. Darrin Majocha is deaf and has communicated primarily by use of American Sign Language ("ASL") all of his life, and his family has an extensive history of severe hearing impairment.

The parties agree that: (i) an appointment with Dr. Turner was scheduled for September 3, 1999; (ii) Mrs. Majocha informed the receptionist and the office manager, Ms. Joan Hornbake, about Mr. Majocha's hearing impairment; (iii) Mrs. Majocha requested Dr. Turner's office supply a qualified ASL interpreter during the consultation; (iv) Ms. Hornbake indicated that Dr. Turner preferred to communicate with Darrin Majocha by written communication during the office visit; (v) the matter was not resolved on August 25, 1999; (vi) Mrs. Majocha spoke with Ms. Hornbake again on August 27, 1999, at which time Ms. Hornbake informed Mrs. Majocha that Dr. Turner would communicate by written notes and Mrs. Majocha insisted that an ASL interpreter be provided so her husband could fully participate in the consultation and decision about treatment of their son.

The parties disagree about some of the details of these conversations, e.g., how much information Mrs. Majocha gave Ms. Hornbake about her husband's hearing impairment, whether she initially agreed to accept note taking as a substitute or simply agreed to consider it, whether Dr. Turner's staff made it clear that the consultation would be for as long as it took to complete using written communication with Mr. Majocha, whether the parties had agreed to schedule a longer appointment to accomplish communication by written notes. What is not in dispute, however, is that on August 27, 1999, Ms. Hornbake sent the following letter to Mrs. Majocha, after Dr. Turner had reviewed it:

Dear Mr. & Mrs. Majocha:

Per our telephone conversation of this afternoon, I am canceling [D.J.'s] appointment with Dr. Turner on Friday, September 3, 1999.

As indicated during the conversation, we feel we cannot meet your needs in caring for your child. Perhaps another ENT physician would better meet your needs and therefore be able to care for [DJ].

We suggest you contact the ENT department of Children's Hospital or your pediatrician for another referral.

 Sincerely,
                 /s/ Joan K. Hornbake
                 Joan K. Hornbake
                 Office Manager
                 cc: GIL Pediatrics ....
                

Complaint, Exhibit A (hereafter, "the Letter").

After receiving the Letter cancelling the appointment and advising plaintiffs to go elsewhere for treatment of their son, they

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contacted the Ear, Nose and Throat department at Children's Hospital, and D.J. was operated on for placement of tubes in both of his ears on September 7, 1999. The surgery went well. On March 23, 2000, plaintiffs filed a complaint in this Court against Dr. Turner, ENT, Dr. Michael A. Gottleib, M.D., and Dr. Louis S. Felder, M.D., setting forth claims under section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a), and Title III of the Americans with Disabilities Act, ("ADA"), 42 U.S.C. §§ 12101 et seq., seeking a declaratory judgment, injunctive relief, compensatory and punitive damages and attorneys fees. Drs. Gottleib and Felder are listed on the ENT letterhead as "associates" of ENT, as is Dr. Turner, and all three physicians are officers of ENT according to Dr. Turner's deposition testimony.

Defendants have filed a motion for summary judgment (Document No. 18) setting forth a variety of reasons why this Court should grant summary judgment in their favor. After careful consideration of the motion for summary judgment, the memoranda of law in support and in opposition, and the statements of material facts in support and opposition with supporting materials attached, this Court will deny the motion for summary judgment. This is not a close decision.

Summary judgment is appropriate "`if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Woodside v. School Dist. of Philadelphia Bd. of Educ., 248 F.3d 129, 130 (3d Cir. 2001), quoting Foehl v. United States, 238 F.3d 474, 477 (3d Cir.2001) (citations omitted). In following this directive, a court must take the facts in the light most favorable to the non-moving party, and must draw all reasonable inferences and resolve all doubts in that party's favor. Doe v. County of Centre, PA, 242 F.3d 437, 446 (3d Cir.2001); Woodside, 248 F.3d at 130; Heller v. Shaw Indus., Inc., 167 F.3d 146, 151 (3d Cir.1999).

When the non-moving party will bear the burden of proof at trial, the moving party's burden can be "discharged by `showing' — that is, pointing out to the District Court — that there is an absence of evidence to support the non-moving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party has carried this burden, the burden shifts to the non-moving party who cannot rest on the allegations of the pleadings and must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co., 998 F.2d 1224, 1230 (3d Cir.1993). With these standards in mind, the Court will review defendants' arguments for summary judgment seriatim.

I. Defendants Complied with Title III of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973 as a Matter of Law.

There is no doubt plaintiffs have offered more than adequate evidence to support their ADA and Rehabilitation Act claims, notwithstanding defendants' inexplicable assertion that there is not a "shred of evidence" to support their claims. Defendants' argument is based upon an unsupportable factual assertion and an erroneous legal position.

Factually, defendants claim there "was absolutely no denial of treatment or offer of treatment," Defendants' Memorandum of Law, at 3, that defendants offered to

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communicate with Mr. Majocha through note taking in an appointment lasting as long as it would take, that plaintiffs declined as a matter of convenience because they did not want to take the additional time and were "frustrated" at the thought, and that plaintiffs' precipitous declination of their "offer" deprived defendants of the "opportunity" to work with plaintiffs to reach a mutually satisfactory solution to their respective needs. The short answer to defendants' assertion — that the record "absolutely" supports only their spin on the conversations between Mrs. Majocha and Ms. Hornbake — is this: the Letter.

The Letter, mention of which is conspicuously absent from defendants' Statement of Material Facts, unambiguously informs plaintiffs that defendants "cannot meet your needs," and advises them to find another doctor. There is nothing in the Letter to suggest defendants were open to negotiation toward a mutually acceptable solution, explaining why defendants believed they could accommodate Mr. Majocha's impairment via note taking only, or offering to discuss the matter further. Quite to the contrary, a reader of the Letter would reasonably (if not inevitably) believe that defendants were declaring the end of discussion, not the beginning. While defendants offer some deposition testimony that attempts to put the Letter in a more favorable context and tone it down to make it look like something less than an "absolute" refusal to treat or to consult over alternative accommodations, plaintiffs offer equally compelling countervailing evidence to bolster the inference that the Letter means just what it says. In any event, the Letter alone is sufficient to allow this case to proceed to the fact finder on this factual issue; it is as close to a smoking gun as it gets in federal court. The conflicting inferences about the conversations preceding the Letter present a classic issue of material fact and credibility for the fact finder to decide, to the extent they are material.

Legally, defendants make the equally unsupportable argument that their "offer" to consult with the Majochas via Dr. Turner's "note taking" and written communication in a lengthy appointment was sufficient, as a matter of law, to fulfill their obligations under the ADA and the Rehabilitation Act. Assuming arguendo that defendants actually made and conveyed such an offer to plaintiffs, that would not be the end of the story.

The Department of Justice regulations implementing the ADA provide in pertinent part:

(a) General. A public accommodation shall take those steps that may be necessary to ensure that no individual...