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Bates v. Delmar Gardens North, Inc.

United States District Court, E.D. Missouri, Eastern Division

September 13, 2017

BETSY BATES, Plaintiff,
v.
DELMAR GARDENS NORTH, INC., et al., Defendants.

          MEMORANDUM AND ORDER

          AUDREY G. FLEISSIG UNITED STATES DISTRICT JUDGE.

         Plaintiff Betsy Bates, who is profoundly deaf, was treated for rehabilitative care at Defendants' skilled nursing facilities in May 2013. Plaintiff claims in this action that Defendants failed to provide necessary and reasonable accommodations in violation of Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12182; Section 504 of the Rehabilitation Act (“RA”), 29 U.S.C. § 794; the Missouri Human Rights Act (“MHRA”), Mo. Rev. Stat. § 213.065; and the Fair Housing Act (“FHA”), 42 U.S.C. §§ 3601-3619. Defendants Delmar Gardens North Operating LLC (“DG North”) and Delmar Gardens North, Inc., have moved for summary judgment (ECF No. 57) and to exclude the testimony of Plaintiff's expert, Judith Shepard-Kegl, Ph.D. (ECF No. 61). For the reasons stated below, both motions will be granted in part and denied in part.

         BACKGROUND

         For purposes of the motions before the Court, the record establishes the following. Plaintiff is 81 years old and has been deaf since birth. Plaintiff communicates proficiently in American Sign Language (“ASL”) and has only a limited ability to communicate in written and spoken English. On May 14, 2013, Plaintiff underwent hip surgery at DePaul Hospital in St. Louis. Following her surgery, Plaintiff remained at the hospital for four days, where she began physical therapy for her hip. An ASL interpreter was present during at least some of the time that Plaintiff spent at the hospital.

         On May 18, 2013, Plaintiff was transferred from DePaul Hospital to DG North to continue rehabilitative and physical therapy services for her hip. DG North provides rehabilitative services to individuals recovering from physical trauma, including recent surgeries. DG North employs all staff at its facility and owns the operating license for its facility; however, Delmar Gardens North, Inc., owns the land on which DG North operates. DG North accepts federal Medicare and Medicaid funds for patient care.

         Plaintiff stayed at DG North for 13 days, during which time she engaged in physical therapy and received medications. Plaintiff requested an ASL interpreter on several occasions, beginning just after her admission and continuing throughout her stay. Plaintiff made these requests using handwritten notes to DG North staff members, stating that she “need[ed] an interpreter so bad, ” and that she “must have an interpreter.” ECF No. 59-2 at 1, 3, 8. In response to one of Plaintiff's requests for an ASL interpreter, a director of nursing at DG North responded, in part: “Unfortunately we don't have an interpreter. We were told that you would be able to communicate well without one.” ECF Nos. 59-2 at 1 & 70-6 at 25-26.

         After one of Plaintiff's early requests for an interpreter, DG North inquired into the availability of an ASL interpreter by contacting a local community college[1] and contacting a former volunteer at DG North who knew ASL. No ASL interpreter was available through either of these channels. DG North did not make other attempts to obtain an ASL interpreter and never provided Plaintiff with an ASL interpreter, despite continued requests. DG North staff discussed admission documents with Plaintiff, conducted physical therapy, and according to Plaintiff, also discussed discharge documents, without an ASL interpreter present.

         DG North provided Plaintiff with a communication board and paper and writing utensils to communicate with staff members, and DG North has attached as an exhibit to its motion the handwritten notes exchanged between its staff members and Plaintiff. ECF No. 59-2. Medical records from DG North also include notations by nurses stating that Plaintiff was “able to make needs known” using “garbled speech, ” “difficult verbalization, ” and “sign language”; but that Plaintiff was requesting to go back to DePaul Hospital and was not happy at DG North because DG North did not have an interpreter. E.g., ECF No. 60-1 at 47-48. Plaintiff continued to request an ASL interpreter after she was provided with the communication board and pen and paper.

         Using handwritten notes, Plaintiff was able to request and receive from DG North staff a new room, a walker, ice for her hip, and closed captioning for her television. Plaintiff's son, as well as two friends, [2] visited Plaintiff at DG North. These visitors did not express concerns to DG North regarding the care Plaintiff was receiving or Plaintiff's ability to communicate with DG North staff.

         DG North has a “Hearing Impairment Policy, ” which provides that for extremely hearing impaired individuals who do not use hearing aids or employ lipreading, DG North staff may need to speak close to the resident's ear or cup their hands around the ear. This policy does not address the need for or use of interpreters for deaf or hearing impaired residents. Nor does DG North train its staff on when and how to provide interpreter services for deaf and hearing impaired residents, contract with any interpreting agency, or display signs informing residents of their right to interpretation services. DG North has not provided ASL or other interpreters for deaf residents in the past, but a representative of DG North testified that she would have hired an ASL interpreter if the need arose and if she was able to find one.

         In her deposition, Plaintiff testified, through an ASL interpreter, that she asked DG North staff for an ASL interpreter “over and over again, ” and that without an interpreter, she could not understand discussions with nurses; she could not understand when meal times were, because this information was verbally told to her before writing materials were provided to her; and she was confused about which medication she was taking because the pills looked different than what she expected.

         In a declaration submitted in response to Defendants' summary judgment motion, Plaintiff likewise stated that her primary mode of communication is ASL, that she repeatedly requested ASL interpreters during her 13-day stay at DG North, that she was “unable to communicate about many things because [she] did not have access to an [ASL] interpreter, ” and that she was “in the dark about what was going on, but did [her] best to get by with gestures, limited lip-reading, and basic writing.” ECF No. 70-10.

         In her deposition and declaration, Plaintiff stated that her experience at DG North caused her frustration and emotional distress. Plaintiff testified in her deposition that she has no current conditions that cause her to believe that she will ever need to return to DG North for care, and that if she ever did need to go to a similar facility in the future, she would not go to DG North.

         Plaintiff brought suit on May 18, 2015, asserting claims under (1) Title III of the ADA, (2) Section 504 of the RA, (3) the MHRA, and (4) the FHA. Plaintiff seeks declaratory and injunctive relief (under all counts); compensatory damages for emotional distress (under the RA, MHRA, and FHA); punitive damages (under the MHRA and FHA); and an award of attorneys' fees and costs (under all counts).

         Plaintiff has retained as an expert Dr. Shepard-Kegl, a linguist who has extensive experience in the fields of neurolinguistics and signed languages, is fluent in ASL, and is a nationally certified ASL interpreter who has been trained and tested specifically in evaluating interpretation needs. Dr. Shepard-Kegl conducted a four-hour, in-person interview of Plaintiff and formulated an individualized assessment of Plaintiff's communication abilities and needs. In her expert report, Dr. Shepard-Kegl explained her methodology for conducting such assessments as follows:

The standard methodology used in my profession is elicitation and linguistic analysis. The process is very much like the experimental method. A hypothesis is posed and data are elicited to help me to confirm or disconfirm the hypothesis. Standardized testing will not give me the individualized data that I need to inform my opinion. Deaf people are far too diverse and their language backgrounds are very heterogeneous. I need to look at each client in an individualized way, using a single case study methodology. The need for individualized assessment is noted by almost every researcher in the field of deafness, especially regarding reading abilities, but some of these opinions are addressed quite well in the following text.
Mounty, Judith and Martin, David S. (eds.) 2005. Assessing Deaf Adults: Critical Issues in Testing and Evaluation. Washington, D.C.: Gallaudet University Press.
That is not to say that I do not at times make use of standard materials that have been developed to assess reading, interpreting proficiency, or ASL proficiency. I just do not apply them in a one-size fits all fashion.

ECF No. 61-1 at 4. The expert report cites the published sources that Dr. Shepard-Kegl relied on, including sources for reading and ASL assessment.

         In her deposition, Dr. Shepard-Kegl testified that she has published portions, but not the entirety, of her single-case methodology and that she has applied the methodology to assess approximately 300 individuals over the course of her career. The findings of her individual assessment of Plaintiff are stated in detail in the expert report, including that Plaintiff is fluent in ASL; does not read effectively above a fourth-grade level; and achieved only 53% accuracy in lipreading, which Dr. Shepard-Kegl concluded was insufficient for reliable communication access.

         Dr. Shepard-Kegl's expert report contains the following opinions: Plaintiff “needed an ASL interpreter during her stay for rehabilitation, recovery, and physical therapy at [DG North]”; Plaintiff “was best able to participate in her health care via communication access through an interpreter”; Plaintiff's “written English is insufficient to serve her full needs in this context”; Plaintiff's “writing may have been sufficient for the most basic communication, but not for detailed discussions of her treatment and progress with her therapists and healthcare providers”; and “[t]here is a clear discrepancy between [Plaintiff's] fluency in ASL and her limited fluency in English” in that Plaintiff's “ASL is fluent and offers her the ability to engage with her healthcare providers in a sophisticated way . . . [and] [n]o modality of English (lipreading, speaking, reading, or writing) offers her similar access.” ECF No. 61-1 at 77-78.

         Dr. Shepard-Kegl also included the following statement in her expert report: “If [Plaintiff] was only admitted [to DG North] because [Defendants] thought she didn't need accommodations, that is no excuse for not providing accommodations when it became evident that an interpreter was needed. To do anything else is to admit to a discriminatory practice of not admitting people who need accommodations.” Id. at 77.

         ARGUMENTS OF THE PARTIES

         Motion for ...


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