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Doe v. Ortho-La Holdings, LLC

United States District Court, E.D. Louisiana

September 26, 2018


         SECTION: “H”



         Before the Court are cross Motions for Summary Judgment filed by Defendant Orthopaedic Sports Specialists of Louisiana, LLC (Doc. 45) and Plaintiff Jane Doe (Doc. 52). Also before the Court are Plaintiff's Motion to Exclude the expert reports and testimony of Lee Cortez, Dr. Patrick Ellender, Dr. Jason Higgins, Dr. John Hildenbrand, and Dr. James Dunning (Doc. 30) and Plaintiff's additional Motions to Exclude the expert reports and testimony of Drs. James Dunning (Doc. 54) and Patrick Ellender (Doc. 55). Defendant also filed a Motion to Exclude the expert report, written declaration, and testimony of Dr. Toby Fugate (Doc. 37). For the following reasons, the cross motions for summary judgment are DENIED, Plaintiff's Motions to Exclude are GRANTED in part, and Defendant's Motion to Exclude is GRANTED in part.


         This suit arose after a physical therapist working for Defendant Orthopeadic Sports Specialists of Louisiana, LLC, [1] refused to perform dry needling therapy[2] on Plaintiff Jane Doe, an individual with HIV. The parties generally do not dispute the facts underlying this action. Plaintiff's path to Defendant's clinic began after she injured her knee at work.[3] Later on, Dr. Patrick Ellender performed two surgeries on Plaintiff's knee. Thereafter, Dr. Ellender prescribed Plaintiff physical therapy as part of her post-operative regimen. Plaintiff received that physical therapy from Physical Therapist Lee Cortez, an employee of Defendant. After beginning her course of physical therapy, Plaintiff saw Dr. Todd Cowen about Plaintiff's trochanteric bursitis, which is inflammation in the hip joint. Cowen prescribed dry needling therapy in addition to the other physical therapy that Plaintiff already was receiving.

         Plaintiff had her first dry needling appointment on October 17, 2016. At that appointment, Plaintiff completed Defendant's “Dry Needling Consent & Information Form” and answered “yes” to the question, “Do you have hepatitis B, hepatitis C, HIV, or any other infectious disease?”[4] Cortez performed dry needing therapy on Plaintiff that day. But Cortez did not learn about Plaintiff's HIV status until her next appointment on October 20, 2016. During that appointment, Cortez told Plaintiff he would not perform dry needling therapy on her because of her HIV status. Nevertheless, Cortez treated Plaintiff with other physical therapy techniques nine other times after October 20. Cortez last treated Plaintiff on November 29, 2016.

         Plaintiff filed this suit on September 12, 2017, claiming that Defendant discriminated against Plaintiff because of her HIV-positive status in violation of Title III of the ADA, which prohibits discrimination by places of public accommodation, and section 504 of the Rehabilitation Act, which prohibits discrimination by programs receiving federal funding.[5] Plaintiff and Defendant both move for summary judgment on Plaintiff's claims and oppose the other party's motion. Plaintiff and Defendant also each seek to exclude various expert reports and testimony. The Court will consider the motions jointly.


         I. Summary Judgment

         Summary judgment is appropriate if “the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations. . ., admissions, interrogatory answers, or other materials” “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”[6] A genuine issue of fact exists only “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”[7]

         In determining whether the movant is entitled to summary judgment, the Court views facts in the light most favorable to the non-movant and draws all reasonable inferences in his favor.[8] “If the moving party meets the initial burden of showing that there is no genuine issue of material fact, the burden shifts to the non-moving party to produce evidence or designate specific facts showing the existence of a genuine issue for trial.”[9] Summary judgment is appropriate if the non-movant “fails to make a showing sufficient to establish the existence of an element essential to that party's case.”[10] “In response to a properly supported motion for summary judgment, the nonmovant must identify specific evidence in the record and articulate the manner in which that evidence supports that party's claim, and such evidence must be sufficient to sustain a finding in favor of the nonmovant on all issues as to which the nonmovant would bear the burden of proof at trial.”[11] The Court does “not . . . in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts.”[12] Additionally, “[t]he mere argued existence of a factual dispute will not defeat an otherwise properly supported motion.”[13]

         II. Expert Reports Under Rule 26(a)(2)

         Rule 26 requires experts to make certain pre-trial disclosures.[14] Experts “retained or specially employed to provide expert testimony in the case, ” also known as retained experts, must provide a written report that meets certain criteria.[15] Even non-retained experts, although not required to produce a written report, must provide to the other parties a disclosure generally containing information on which the expert will testify.[16] A district court may exclude opinions not properly disclosed in accordance with Rule 26 “unless the failure [to disclose] was substantially justified or . . . harmless.”[17]


         I. Cross Motions for Summary Judgment

         Because the parties each argue summary judgment is appropriate in their favor on the claims made by Plaintiff, this Court will address each claim individually.

         a. Plaintiff's Claim Under Title III of the ADA

         Title III of the ADA provides, “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.”[18] A plaintiff need not prove that a defendant had any intent to discriminate.[19] To make a claim under Title III, therefore, Plaintiff must prove: (1) she has a disability; (2) Defendant owned, leased, or operated a place of public accommodation; and (3) Defendant denied Plaintiff full and equal enjoyment on the basis of her disability.[20] It is undisputed that Plaintiff has a disability for the purposes of the ADA and that Defendant is a place of public accommodation, satisfying the first two elements of the Title III claim.[21] The only issue, then, involves whether there exists a dispute of material fact about the third element.

         Plaintiff makes a prima facie case under Title III by submitting evidence that Plaintiff was denied dry needling therapy because she was HIV-positive. Specifically, Plaintiff argues that Defendant's conduct was unlawful because Cortez failed to perform an individualized assessment of Plaintiff's fitness for dry needling therapy. Defendant argues that Cortez's decision was not unlawful because he made a medically reasonable determination that dry needling therapy was not appropriate for Plaintiff in light of his training as a physical therapist.

         Summary judgment on Plaintiff's Title III claim is inappropriate because questions of material fact abound. The reasonableness of Cortez's determination that Plaintiff was not a candidate for dry needling is a question of fact best reserved for a jury.

         b. Plaintiff's Claim Under Section 504 of the Rehabilitation Act

         Section 504 of the Rehabilitation Act provides that, “No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”[22] To make a claim under Section 504, therefore, Plaintiff must prove: “(1) she is disabled; (2) she sought services from a federally funded entity; (3) she was ‘otherwise qualified' to receive those services; and (4) she was denied those services ‘solely by reason of her . . . disability.'”[23] Section 504 does not provide a remedy for medical malpractice but is applicable to the denial of medical care because of a disability.[24]

         A person with a disability is “otherwise qualified” for a service if that person “meets the essential eligibility requirements for the receipt of such services.”[25] In determining whether a person with a disease is otherwise qualified, a court should consider the reasonable medical judgments of physicians and evaluate whether the provider could have reasonably accommodated the individual.[26] A defendant's reason for denying services should not “encompass[] unjustified consideration of the handicap itself.”[27]With regard to whether a plaintiff was denied services solely by reason of her disability, a plaintiff challenging a healthcare provider's refusal to treat must show the provider's decision was “devoid of any reasonable medical support . . . in a way that reveals it to be discriminatory.”[28] A provider must at least make its decision as the result of an individualized inquiry.[29]

         It is undisputed that Plaintiff has a disability for the purposes of Section 504 and that Defendant is a program that receives federal funding, satisfying the first two elements of a section 504 violation.[30] Regarding the third element, Plaintiff submits evidence that she was “otherwise qualified” to receive dry needling in the form of a declaration from Fugate stating that her risk of infection was comparable to that of a person without HIV.[31] Regarding the fourth element, Plaintiff argues she was denied dry needling “solely” because of her disability by citing to Cortez's deposition as evidence that he did not conduct any individualized inquiry into Plaintiff's medical history to determine her ability to receive dry needling therapy.[32] Plaintiff has therefore submitted evidence of a prima facie case under Section 504 for the denial of dry needling therapy.[33]

         Defendant argues that it did not intentionally discriminate against Plaintiff. Rather, Defendant argues it made a reasoned medical decision as evidenced by its continued treatment of Plaintiff with other physical therapy modalities, Cortez's concern for Plaintiff's infection rather than his own, and external support for the idea that HIV is a contraindication for dry needling therapy.

         Just as with Plaintiff's Title III claim, summary judgment on Plaintiff's Section 504 claim is inappropriate because there are questions of material fact. The reasonableness of Cortez's determination that Plaintiff was not a candidate for dry needling, the extent to which Cortez made an individualized inquiry, and ...

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