United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
G. FLEISSIG UNITED STATES DISTRICT JUDGE.
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
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
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.
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.
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 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
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.
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,  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.
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.
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.
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.
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.
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).
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
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.
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.
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.
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.
OF THE PARTIES