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Bates v. Delmar Gardens North, Inc.

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

March 12, 2018

BETSY BATES, Plaintiff,
v.
DELMAR GARDENS NORTH, INC. and DELMAR GARDENS NORTH OPERATING LLC, Defendants.

          MEMORANDUM AND ORDER

          AUDREY G. FLEISSIG, JUDGE

         This matter is before the Court on the renewed motion (ECF No. 139) of Plaintiff Betsy Bates for judgment as a matter of law ("JMOL"), or in the alternative, for a new trial (ECF No. 140). For the reasons set forth below, the motion will be denied.

         BACKGROUND

         Plaintiff filed this lawsuit alleging 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.[1] Plaintiff claimed that Defendants discriminated against her on the basis of her disability (deafness) by failing to provide her with the auxiliary aids and services necessary to effectively communicate with the staff at Delmar Gardens North ("DG North"). Plaintiff alleged that she was unable to effectively communicate with DG North staff without an American Sign Language ("ASL") interpreter due to her limited proficiency in written and spoken English.

         The jury trial began on November 27, 2017, and concluded on December 1, 2017. Both parties agreed that on May 18, 2013, Plaintiff was transferred to DG North, where she stayed for 13 days, to continue rehabilitative and physical therapy following her hip surgery at a different hospital. Defendants denied any violations of federal or state law, claiming that Plaintiff was able to effectively communicate without an ASL interpreter.

         The Court appointed three certified ASL interpreters to serve throughout the trial. Two interpreters provided interpretation for Plaintiff of everything said in the courtroom; they also interpreted questions and answers for Plaintiff, the Court, and the jury while Plaintiff was testifying ("Courtroom Interpreters"). The third interpreter sat at Plaintiffs counsel's table and provided interpretation for communications between Plaintiff and her lawyers ("Table Interpreter").

         The Court held extensive discussions with counsel for both parties, Plaintiff, and the three ASL interpreters, both before and throughout the trial, regarding how the interpreters could best serve Plaintiff. This included discussions as to the positioning of the interpreters, Plaintiffs line of sight for purposes of interpretation, and the order and pace of interpretation. The Court consistently advised the parties and the interpreters to bring issues regarding the interpretation to the Court's attention so that the Court could address the issues promptly. Neither Plaintiff nor anyone else raised any issue regarding whether the Courtroom Interpreters were using proper ASL, and there was no indication that Plaintiff expressed any concern with the Courtroom Interpreters to her counsel, her Table Interpreter, or the Court.

         At trial, Plaintiff presented evidence with respect to her claims that Defendants failed to provide her with an ASL interpreter despite repeated requests for one. Plaintiff also presented the following evidence regarding her ability to communicate with DG North Staff without an ASL interpreter. Plaintiff testified that she asked for an explanation via written notes regarding whether she was receiving the correct medication, but she never received a response to her inquiries about her medication and consequently remained confused and concerned throughout her stay. Kathleen Gray, an employee of DG North, testified that DG North staff ordinarily let residents know when meals are served. However, Plaintiff testified that she only discovered when meals were served when she noticed other residents lining up and gestured to a nurse, whereupon she received confirmation of meal times. Plaintiff further testified that she was not aware that Defendants would be providing her with rehabilitation services at her home until DG North employees showed up at her home. In her testimony, Plaintiff indicated that she did not understand many of the words used in DG North Staffs written notes to her, such as the word "usually." Finally, Plaintiff presented a linguistics expert, Judy Shepard-Kegl, who opined in detail as to Plaintiffs difficulties with communicating in written and spoken English, as compared to ASL.

         In their case in chief, Defendants presented evidence that Plaintiff was able to communicate with DG North staff using handwritten notes and gestures. For example, contrary to Plaintiffs testimony, Defendants presented evidence that Plaintiff used the word "usually" in her own notes. Defendants also presented evidence that Plaintiff was able to request a new room, a walker, ice for her hip, a new mattress, and closed captioning on her TV by using written English. The handwritten notes in evidence showed that Plaintiff wrote to DG North nurses: "I understand what you mean, " and "I must have an interpreter-no matter whether I can communicate or not." There was also evidence that DG North nurses answered affirmatively by speaking and gesturing when Plaintiff asked whether certain pills were correct. Finally, Defendants presented evidence that Plaintiff participated in her physical therapy and made a complete and timely recovery.

         In closing arguments, defense counsel stated that Plaintiffs counsel was attempting to "contort the evidence and mislead [the jury]." ECF No. 140 at 9. Defense counsel also stated, with respect to Plaintiffs expert witness, "[W]e don't need someone from Maine to come in and tell us what we already know, if we're communicating with someone." Id. at 9-10. Lastly, defense counsel stated, "[I]t's not okay to sue someone after you receive excellent care." Id. at 10. Plaintiffs counsel did not object to these statements during closing arguments.

         At the close of Defendants' evidence, Defendants moved for a directed verdict, and Plaintiff orally moved for a judgment as a matter of law ("JMOL"). The Court denied both motions, finding that there was a question of fact for the jury as to whether Plaintiff was able to effectively communicate with DG North staff, and whether Defendants were liable for damages.

         The jury was instructed that the primary issue was whether Defendants "discriminated" against Plaintiff, with discrimination in this context defined as failing to provide the auxiliary aids and services necessary to effectively communicate with the DG North staff. The jury was instructed that they could consider the following factors in determining the issue: (1) the method of communication used by Plaintiff; (2) the ability or inability of Plaintiff to communicate in other ways; (3) the nature, length, and complexity of the communication involved; and (4) the context in which the communication took place. ECF No. 134 at 8-9.

         The jury returned a verdict on December 1, 2017, finding in favor of both Defendants. ECF No. 130. Plaintiff filed this renewed motion for JMOL and, in the alternative, a new trial, on January 12, 2018. Plaintiff argues that she is entitled to JMOL because no reasonable jury could have found for Defendants on the issue of whether Defendants provided Plaintiff with the auxiliary aids and services necessary for Plaintiff to effectively communicate.

         In the alternative, Plaintiff requests a new trial because: (1) the jury's verdict was against the great weight of the evidence; (2) one of the Courtroom Interpreters, Jim Self, exclusively used Pidgin Sign English ("PSE"), a form of sign language that combines ASL with features of English, which Plaintiff was unfamiliar with, resulting in a miscarriage of justice; and (3) Defendants' counsel's improper statements during closing arguments resulted in a miscarriage of justice. As to the second argument, Plaintiff presents affidavits by Leah ...


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