United States v. Asare

• Decision Date: 05 August 2020
• Docket Number: 15 Civ. 3556 (AT) (OTW)
• Citation: 476 F.Supp.3d 20
• Parties: UNITED STATES of America, Plaintiff, and Mark Milano, Intervening Plaintiff, v. Emmanuel O. ASARE, M.D., and Springfield Medical Aesthetic P.C. d/b/a Advanced Cosmetic Surgery of New York, Defendants.
• Court: U.S. District Court — Southern District of New York

476 F.Supp.3d 20

UNITED STATES of America, Plaintiff,

and

Mark Milano, Intervening Plaintiff,

v.Emmanuel O. ASARE, M.D., and Springfield Medical Aesthetic P.C. d/b/a Advanced Cosmetic Surgery of New York, Defendants.

15 Civ. 3556 (AT) (OTW)

United States District Court, S.D. New York.

Signed August 5, 2020

Arastu Kabeer Chaudhury, Lara K. Eshkenazi, U.S. Attorney's Office, New York, NY, for Plaintiff United States of America.

Alison Ellis Frick, Kaufman Lieb Lebowitz & Frick LLP, Armen Hagop Merjian, Housing Works, Inc., Matthew D. Brinckerhoff, Emery Celli Brinckerhoff & Abady, LLP, New York, NY, for Plaintiff Mark Milano.

Steven Michael Warshawsky, Law Firm of Steven M. Warshawsky, David Samuel Schwartz, David S. Schwartz Law, PLLC, New York, NY, for Defendants.

OPINION AND ORDER

ANALISA TORRES, District Judge:

On May 6, 2015, Plaintiff, the United States of America, brought this enforcement action under Title III of the Americans with Disabilities Act of 1990 (the "ADA"), 42 U.S.C. § 12188(b)(1)(B)(i). See Compl., ECF No. 1. The Government alleges that Defendants, Emmanuel O. Asare, M.D. and his former cosmetic surgery practice, Springfield Medical Aesthetic P.C. ("Advanced Cosmetic," and collectively with Dr. Asare, "Defendants"), denied cosmetic surgery services to individuals with disabilities, including HIV, in violation of the ADA. See generally id. On February 10, 2016, Plaintiff-Intervenor, Mark Milano (together with the Government, "Plaintiffs"), filed an intervenor complaint alleging that Defendants denied him cosmetic surgery services on the basis of his HIV status in violation of the ADA and the New York City Human Rights Law ("NYCHRL"). See Milano Compl., ECF No. 31.

The Court held a bench trial from October 15 to 17, 2018. ECF Nos. 189–191. Following are the Court's findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a).

PROCEDURAL HISTORY

On July 15, 2014, Mark Milano filed a complaint with the Department of Justice alleging that Defendants violated his rights under the ADA. See Compl. ¶ 29; Milano Compl. ¶ 39. As a result, the Government began investigating Defendants. Compl. ¶ 30. On May 6, 2015, the Government initiated this action under the enforcement provisions of the ADA, which permit the Attorney General to (1) file a civil action when he or she "has reasonable cause to believe that ... [a] person or group of persons is engaged in a pattern or practice of discrimination," 42 U.S.C. § 12188(b)(1)(B), and (2) seek appropriate relief, "including monetary damages to persons aggrieved," id. § 12188(b)(2)(B) ; see Compl. On December 11, 2015, Milano filed a motion to intervene, ECF No. 17, which the Court granted, ECF No. 30. During discovery, the Government notified Defendants of its intention to seek damages on behalf of two individuals, J.G. and S.V. See SJ Opinion at 5, ECF No. 154.

In 2018, the parties filed cross-motions for summary judgment. ECF Nos. 87, 100. Defendants conceded that when deciding whether to accept a patient who requests cosmetic surgery services, Defendants apply eligibility criteria that tend to screen out individuals living with HIV. Defendants argued that their policy was based on legitimate concerns associated with the interaction between antiretrovirals and the combination of medications Dr. Asare used during surgical procedures. SJ Opinion at 8–9. The Court disagreed, holding that Defendants’ policy ran afoul of the ADA, based on two forms of discrimination: (1) "screen out" discrimination, because the undisputed evidence established that Defendants’ policy constituted an application of eligibility criteria that screened out those with disabilities, even though there was no evidence that the policy was necessary for the provision of Defendants’ services, id. at 11–12; and (2) "reasonable modification" discrimination, as Defendants provided neither individualized assessment of patients nor reasonable modifications to accommodate individuals taking antiretroviral medications, such as hiring an anesthesiologist to supervise the surgery, id. at 11–15. Moreover, because Defendants conceded that they had refused to operate on Milano after he disclosed his HIV-positive status, based on their policy, the Court held that Defendants violated the ADA and NYCHRL. Id. at 8–9, 12, 16.

The Court, however, denied the Government's motion for summary judgment as to J.G. and S.V., concluding that what policy, if any, Defendants applied to them was a disputed issue of material fact to be resolved at trial. Id. at 9. The Court also granted Defendants’ cross-motion for summary judgment with respect to the Government's claim that Defendants discriminate against individuals with disabilities other than HIV. Id. at 17.

From October 15 to 17, 2018, the Court conducted a bench trial on the following issues: (1) Defendants’ liability under the ADA with respect to J.G. and S.V., and any corresponding claims for damages and injunctive relief, and (2) Milano's claim for compensatory damages under the NYCHRL, as well as his claim for injunctive relief under both the ADA and NYCHRL. ECF Nos. 189–191; Pretrial Order at 2–3, ECF No. 184; Milano Pretrial Order at 2–3, ECF No. 186. At trial, the Government called J.G. and S.V. See Trial Tr. 170:8–10, ECF No. 199; Trial Tr. 355:2–7, ECF No. 201. Milano testified and called Lisa Fredrick as a witness. See id. at 170:2–7. Dr. Asare testified on behalf of Defendants. See id. at 355:8–9. In rebuttal, the Government called its expert witness, Charles Flexner, M.D. See Trial Tr. 411:6–8, ECF No. 203.

At trial, both parties offered witnesses—Dr. Flexner and Dr. Asare—not qualified to speak to the standard of medical care in New York. ECF No. 235 at 14. After the close of trial, the Court granted in part Defendants’ motion to strike the testimony of Dr. Flexner, striking those portions that concerned the standard of medical care in New York and New York State patient consent laws. Id. at 13. The need to appoint a neutral Court expert arose, therefore, because of both parties’ failure to present admissible evidence on issues that lie at the heart of this case—that is, whether Dr. Asare treated certain patients in a lawful and medically appropriate manner. Id. Having found that a neutral expert was necessary, the Court issued an order on November 26, 2018, requiring the parties to show cause why the Court should not appoint an expert "to prepare a report, sit for a deposition, and testify at trial concerning all subjects raised in Dr. Flexner's testimony, pursuant to Federal Rule of Evidence 706(a)." ECF No. 206.

On January 18, 2019, Defendants filed a petition for a writ of mandamus with the Court of Appeals, arguing that this Court was "using its inherent powers to assist the Government in its civil prosecution of ... [D]efenants by appointing an expert witness to testify in place of Dr. Flexner." Petition for Writ of Mandamus at 8, In re Emmanuel O. Asare , No. 19-187 (2d Cir. Jan. 18, 2019). In February of 2019, this Court stayed the case pending the Second Circuit's decision on Defendants’ petition. ECF No. 221. On April 30, 2019, the Court of Appeals denied Defendants’ request for a writ of mandamus, holding that Defendants "have not demonstrated that they lack an adequate, alternative means of obtaining relief, that their right to the writ is clear and indisputable, or that granting the writ is appropriate under the circumstances." In re Emmanuel O. Asare , No. 19-187 (2d Cir. Apr. 30, 2019); see also ECF No. 237.

Defendants’ petition having been denied, the Court directed the parties to submit a joint letter identifying their agreed-upon expert. ECF No. 225. Upon review of the qualifications of three proposed candidates, the Court ordered that Timothy Wilkin, M.D., M.P.H., serve as the neutral expert. ECF No. 229. After Dr. Wilkin issued his report on August 5, 2020, ECF No. 241, the parties deposed him and submitted his deposition testimony in lieu of live testimony, along with certain objections from Defendants. ECF Nos. 241, 244, 251. The Court overruled Defendants’ objections and admitted Dr. Wilkin's deposition as trial testimony. ECF No. 246. Post-trial briefing on Milano's claims was submitted in February of 2019, ECF Nos. 215–216, 222–223, and post-trial briefing on the Government's claims was completed in January of 2020, ECF Nos. 252–255.

The Court credits the testimony of J.G., S.V., Milano, Fredrick, and Dr. Wilkin. The Court also credits those parts of Dr. Flexner's testimony that were not stricken. See ECF No. 235 at 13. The Court rejects and does not credit key portions of Dr. Asare's testimony as described below.

DISCUSSION

I. Legal Standard

To prevail on their claims, Plaintiffs must prove a violation of Title III of the ADA by a preponderance of the evidence. See Krist v. Kolombos Rest. Inc. , 688 F.3d 89, 96 (2d Cir. 2012) (reviewing bench trial decision which considered whether plaintiff had established an ADA claim "by a preponderance of the evidence"). "The burden of showing something by a preponderance of the evidence simply requires the trier of fact to believe that the existence of a fact is more probable than its nonexistence." Metro. Stevedore Co. v. Rambo , 521 U.S. 121, 137 n.9, 117 S.Ct. 1953, 138 L.Ed.2d 327 (1997) (internal quotation marks, citation, and alterations omitted). As the finder of fact, the Court is entitled to make credibility findings about the witnesses and testimony and to draw reasonable inferences from the evidence presented. See Merck Eprova AG v. Gnosis S.p.A. , 901 F. Supp. 2d 436, 448 (S.D.N.Y. 2012), aff'd , 760 F.3d 247 (2d Cir. 2014).

II. Findings of Fact

The Court's core findings of fact are as follows: (1) Defendants refused cosmetic surgery services to three individuals; (2) Defendants did so when they became aware that each individual was either living with HIV, potentially living with HIV, or living with HIV and taking antiretroviral drugs; (3) Defendants tested...