Doe et al v. St John's Hospital

Filing 16

OPINION: Plaintiffs' Motion to Strike Affirmative Defense 9 is GRANTED. (SEE WRITTEN OPINION) Entered by Judge Sue E. Myerscough on 10/11/2016. (GL, ilcd)

E-FILED

Tuesday, 11 October, 2016 03:38:15 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
JOHN DOE 1, A MINOR, by and
through his legal guardians,
JOHN DOE 2 and JANE DOE, and
JANE DOE and JOHN DOE 2 in
their individual capacities,
Plaintiffs,
v.
ST. JOHN’S HOSPITAL OF THE
HOSPITAL SISTERS OF THE
THIRD ORDER OF ST. FRANCIS,
Defendant.

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No. 16-3172

OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
Plaintiffs John Doe 1, a minor, by and through his legal
guardians John Doe 2 and Jane Doe, and Jane Doe and John Doe
2 in their individual capacities, move to strike the affirmative
defense of contributory negligence filed by Defendant St. John’s
Hospital of the Hospital Sisters of the Third Order of St. Francis
(St. John’s). Because contributory negligence is not an affirmative

defense to a claim of discrimination under the Rehabilitation Act,
the Motion is GRANTED.
I. BACKGROUND
In June 2016, Plaintiffs filed a Complaint against St. John’s
under Section 504 of the Rehabilitation Act, 29 U.S.C. § 794.
Plaintiffs seek declaratory relief and compensatory damages. See
Compl. ¶ 32 (alleging that as a proximate result of St. John’s
violations of the Rehabilitation Act, St. John’s has “inflicted injury
and damages upon Plaintiffs, including loss of a civil right, mental
anguish, humiliation[,] and mental pain and suffering”). The
Complaint contains the following allegations.
Plaintiff John Doe 1 is the 14-year-old son of Plaintiffs Jane
Doe and John Doe 2. Jane Doe and John Doe 2 are profoundly
deaf and communicate primarily through American Sign Language.
They both have limited understanding of written English and do
not have the ability to lip read. St. John’s is a regional medical
center located in Springfield, Illinois, and is a recipient of federal
funds within the meaning of the Rehabilitation Act.
Plaintiffs allege that, in November 2015, John Doe 1 was
taken to Passavant Hospital and then transferred to the St. John’s
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emergency room for acute and unexplained seizures and vomiting.
Two days into his hospital stay, John Doe admitted to his mother
that he had taken a classmate’s attention deficit hyperactivity
disorder (ADHD) medication.
Plaintiffs allege that St. John’s discriminated against Jane
Doe and John Doe 2 by failing to provide them with auxiliary aids
and services to allow them to effectively communicate with the
medical staff while John Doe 1 was hospitalized. Plaintiffs also
allege that St. John’s discriminated against John Doe 1 on the
basis of his parents’ disabilities by denying John Doe 1 the full and
equal enjoyment of facilities, equipment, and health care services
by failing to provide auxiliary aids and other assistance to John
Doe’s parents, instead relying on John Doe 1 to facilitate
communication between the medical staff and his parents.
In August 2016, St. John’s filed its Answer. In its Answer, St.
John’s raised as an affirmative defense that John Doe 1 was
contributorily negligent because he took a classmate’s ADHD
medication and, had he not done so, he would not have suffered
any medical effects that would have required medical attention.
St. John’s asserts that John Doe’s conduct constitutes negligence
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that proximately contributed to the injuries alleged as to all of the
Plaintiffs.
II. JURISDICTION
This Court has subject matter jurisdiction because Plaintiffs=
claims are based on the Rehabilitation Act, 29 U.S.C. § 794, a
federal law. See 28 U.S.C. § 1331 (AThe district courts shall have
original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States@). Venue is
proper because a substantial part of the events or omissions giving
rise to Plaintiffs= claims occurred in this district. 28 U.S.C.
§ 1391(b)(2).
III. LEGAL STANDARD
When a defendant responds to a pleading, the defendant
must affirmatively state any avoidance or affirmative defense.
Fed.R.Civ.P. 8(c). Rule 8(c) specifically lists contributory
negligence as an affirmative defense that must be pled.
Pursuant to Rule 12(f) of the Rules of Civil Procedure, the
Court may strike from a pleading “an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter.”
Fed.R.Civ.P. 12(f). Motions to strike are generally disfavored
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because such motions often only delay the proceedings. See Heller
Fin., Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1294 (7th
Cir. 1989). However, if a motion to strike removes unnecessary
clutter from the case, then the motion serves to expedite, not
delay, the proceedings. Id.
IV. ANALYSIS
Plaintiffs move to strike St. John’s affirmative defense on the
ground that contributory negligence is not a cognizable affirmative
defense for a violation of the Rehabilitation Act.
St. John’s argues that, to obtain compensatory damages,
Plaintiffs will have to show a causal connection between the
discrimination they allegedly experienced and the suffering they
claim to have endured. However, any parent who is in the hospital
with a child will experience some mental anguish, mental pain,
and suffering. St. John’s asserts that any mental anguish, mental
pain, or suffering Plaintiffs experienced was also caused by John
Doe 1’s ingestion of ADHD medication and was exacerbated by
John Doe 1’s failure to earlier tell anyone about that ingestion.
Although neither the parties nor the Court could find a case
precisely on point, the Court concludes that contributory
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negligence is not an affirmative defense to a claim of discrimination
under the Rehabilitation Act.
Section 504 of the Rehabilitation Act prohibits discrimination
against the disabled, stating: “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[.]” 29
U.S.C. § 794(a); see also § 794 (b)(3))A)(ii) (defining program or
activity to include the operation of a corporation engaged in the
business of providing health care). The regulations provide that
“[a] recipient hospital that provides health service or benefits shall
establish a procedure for effective communication with persons
with impaired hearing for the purpose of providing emergency
health care.” 29 C.F.R. § 94.52(c).
Whether contributory negligence is an affirmative defense to a
claim under the Rehabilitation Act appears to be an issue of first
impression. Nonetheless, the Court cannot identify any reason
why a defendant should avoid liability on the basis that the
plaintiff caused the health condition that brought him to the
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emergency room in the first place. Moreover, because Plaintiffs will
have to prove intentional discrimination to obtain compensatory
damages, the defense of contributory negligence does not apply.
Specifically, compensatory damages are available in private
causes of action brought under the Rehabilitation Act. CTL ex rel.
Trebatoski v. Ashland Sch. Dist., 743 F.3d 524, 528 (7th Cir. 2014)
(citing Barnes v. Gorman, 536 U.S. 181, 184-85 (2002)). However,
to recover compensatory damages, a plaintiff must show
intentional discrimination. CTL, 743 F.3d at 528 n. 4; Strominger
v. Brock, 592 F. App’x 508, 512 (7th Cir. 2014). While the Seventh
Circuit has not yet decided whether discriminatory animus or
deliberate indifference is required to show intentional
discrimination, the Seventh Circuit has stated that mere
negligence is insufficient. Id.
Contributory negligence is not an affirmative defense to
intentional conduct. See Restatement (Second) of Torts § 481
(“The plaintiff’s contributory negligence does not bar recovery
against a defendant for a harm caused by conduct of the defendant
which is wrongful because it is intended to cause harm to some
legally protected interest of the plaintiff or a third person”); Scott v.
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Macy's E., Inc., No. CIV.A.01-10323-NG, 2002 WL 31439745, at *5
(D. Mass. Oct. 31, 2002) (“A § 1981 violation complete with racial
discrimination is more akin to an intentional tort, for which
contributory negligence is not a defense, Restatement (Second) of
Torts § 481, than an act of negligence.”). Because Plaintiffs will
have to show intentional discrimination to recover compensatory
damages, it necessarily follows that contributory negligence would
not constitute a defense to such intentional conduct.
Moreover, the Americans with Disabilities Act is substantially
similar to the Rehabilitation Act and “precedent under one statute
typically applies to the other.” See Wash. v. Ind. High Sch. Athletic
Ass’n, Inc., 181 F.3d 840, 845 n. 6 (7th Cir. 1999). Several courts
have held that contributory negligence is not an affirmative defense
to a violation of the Americans with Disabilities Act. See McCune
v. Munirs Co., No. 2:12-cv-02733-GEB-EFB, 2013 WL 5467212, at
*3 (E.D. Cal. Sept. 30, 2013) (striking the contributory negligence
affirmative defense as impertinent because contributory negligence
is an affirmative defense to a tort claim and the Plaintiff, who

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alleged an ADA claim, had not alleged a tort claim)1; see also, e.g.,
Kohler v. Staples The Office Superstore, LLC, 291 F.R.D. 464, 470
(S.D. Cal. 2013) (striking affirmative defense that the plaintiff or a
third party was responsible for any violations and damages in a
ADA claim by a disabled plaintiff who encountered barriers to his
use of the restroom at a Staples store); Vogel v. Huntington Oaks
Delaware Partners, LLC, 291 F.R.D. 438, 442 (C.D. Cal. 2013)
(striking affirmative defense of comparative negligence noting that,
even if the plaintiff were somehow negligent, that would not
absolve the defendant of liability for the ADA claim); but see Ability
Hous. of N.E. Fla. v. City of Jacksonville, No. 3:15-cv-1380-J32PDB, 2016 WL 816586, at *3 (M.D. Fla. March 2, 2016) (in light
of the lack of binding precedent, the court refused to strike
contributory negligence affirmative defense to ADA and Fair
Housing Act claims).
For all these reasons, Plaintiffs’ Motion to Strike is granted.
This decision does not, however, affect St. John’s ability to
introduce evidence that may be relevant to rebut Plaintiffs’ claims

The Court reviewed the complaint in the McCune case on the Public Access
to Court Electronic Records to confirm that the claim involved the ADA.
1

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that St. John’s alleged intentional discrimination caused Plaintiffs
damage.
V. CONCLUSION
For the reasons stated, Plaintiffs’ Motion to Strike Affirmative
Defense (d/e 9) is GRANTED.
ENTER: October 11, 2016
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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