American Civil Liberties Union of Michigan v. Trinity Health Corporation et al

Filing 50

OPINION and ORDER Denying Plaintiffs' 46 MOTION for Reconsideration and Denying Plaintiff's Request to Amend the Complaint. Signed by District Judge Gershwin A. Drain. (TMcg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

AMERICAN CIVIL LIBERTIES UNION, on
behalf of its members, and
AMERICAN CIVIL LIBERTIES UNION OF
MICHIGAN, on behalf of its members,
Plaintiffs,
v.
TRINITY HEALTH CORPORATION, an
Indiana corporation, and TRINITY
HEALTH – MICHIGAN, a Michigan
corporation,

Case No. 15-cv-12611
UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN

Defendants,

UNITED STATES MAGISTRATE JUDGE
R. STEVEN WHALEN

and
CATHOLIC MEDICAL ASSOCIATION, on
behalf of its members, CHRISTIAN
MEDICAL and DENTAL ASSOCIATION, on
behalf of its members, and AMERICAN
ASSOCIATION OF PRO-LIFE
OBSTETRICIANS AND GYNECOLOGISTS,
on behalf of its members,
Defendant-Intervenors.
/

OPINION AND ORDER DENYING PLAINTIFFS’ MOTION FOR RECONSIDERATION
AND DENYING PLAINTIFF’S REQUEST TO AMEND THE COMPLAINT [46]

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I. INTRODUCTION
The American Civil Liberties Union of Michigan commenced this action, on
behalf of their members, on July 23, 2015 against Trinity Health Corporation and
Trinity Health-Michigan (“Defendants”). See Dkt. No. 1. On October 1, 2015,
Plaintiffs filed an Amended Complaint adding the American Civil Liberties Union
(“ACLU”) as a Plaintiff. See Dkt. No. 4. On November 6, 2015, Defendants filed a
Motion to Dismiss. See Dkt. No. 15. On April 11, 2016, the Motion was granted.
See Dkt. No. 44.
Presently before the Court is Plaintiffs’ Motion for Reconsideration [46]. For
the reasons discussed below, the Court will DENY the Plaintiffs’ Motion.
II. LEGAL STANDARD
Under this Court’s Local Rules, the Court may not grant a motion for
reconsideration which merely presents the same issues that the Court already ruled
on.

LR 7.1(h)(3)(E.D. Mich. July 1, 2013).

Additionally, the movant must

demonstrate that there is a palpable defect in the opinion or order under attack and
that correcting the defect will result in a different disposition of the case. Id.; Indah
v. U.S. S.E.C., 661 F.3d 914, 924 (6th Cir. 2011). “A ‘palpable defect’ is a defect
which is obvious, clear, unmistakable, manifest, or plain.” Hawkins v. Genesys
Health Systems, 704 F. Supp. 2d 688, 709 (E.D. Mich. 2010) (quoting Ososki v. St.
Paul Surplus Lines Ins. Co., 162 F. Supp. 2d 714, 718 (E.D. Mich. 2001)).
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III. DISCUSSION
A. Standing
Plaintiffs first argue that the Court erred in stating that “Plaintiffs lacked
standing to pursue injunctive relief on behalf of their members because Plaintiffs
failed to demonstrate that the prospective harm was ‘inevitable.’ ” Dkt. No. 44 at
10. According to Plaintiffs, the Court’s holding required Plaintiffs’ members to
prove that their future harm was “inevitable,” and should have instead only
required a showing of substantial risk of harm or certainly impending harm. This is
a misstatement of the Court’s holding.
In the Court’s original opinion, the Court stated, “[Plaintiffs] have [pled] no
facts, nor brought any supplemental evidence to explain why this member in
particular faces a substantial risk of having pregnancy complications.” Dkt. No. 44
at 11 (emphasis added). The Court further held that “[g]iven the events that must
materialize, [Plaintiffs’] risk of harm, as currently [pled], cannot be characterized
as ‘certainly impending.’ ” Id. Therefore, the Court utilized the same standard as
advocated for by Plaintiffs in their Motion for Reconsideration.
Plaintiffs further argue that at least one of their members has a history of
pregnancy complications, and “one of ‘[t]he most common risk factors identified
among women who have experienced early pregnancy loss [is] . . . a prior early
pregnancy loss.’ ” Dkt. No. 46 at 12 (Pg. ID No. 767) (quoting Practice Bulletin:

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Early Pregnancy Loss, THE AMERICAN COLLEGE

OF

OBSTETRICIANS

AND

GYNECOLOGISTS, Number 150 (May 2015)). However, Plaintiffs neither cited nor
attached any clinical studies or medical bulletins in their Complaint. Moreover,
Plaintiffs failed to provide this information in their Response Brief to Defendants’
Motion to Dismiss. See Dkt. No. 32. Thus, this is a new argument, and does not
demonstrate a palpable defect in the Court’s prior Order.
Finally on this point, Plaintiffs argue that the Court’s holding requires
“Plaintiffs’ member to wait until she miscarries again and is in need of immediate
emergency treatment to file a claim that could not be adjudicated until the harm
has already occurred.” Dkt. No. 46 at 13 (Pg. ID No. 768). This is also a
misstatement of the Court’s opinion. The Court’s holding does not require
Plaintiffs’ members to miscarry before they gain standing. Rather, the Court’s
holding only requires that the Complaint allege sufficient facts to demonstrate that
there is a substantial risk of harm.
Moreover, even if Plaintiffs’ argument properly characterized the Court’s
reasoning, which it doesn’t, the Plaintiffs still have failed to explain why the claim
is ripe for review under Gonzales v. Carhart, 550 U.S. 124, 167 (2007). Therefore,
Plaintiffs’ argument fails to show a palpable defect that would result in a different
disposition of the case.

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B. “Distinct Standing” Under the Rehabilitation Act
Plaintiffs next argue that the Court failed to consider the “distinct standing”
doctrine under Gaylor v. Hamilton Crossing CMBS, 582 F. App’x 576, 580 (6th
Cir. 2014). Dkt. No. 46 at 14 (Pg. ID No. 769). Under Gaylor, Plaintiffs argue, in
order to establish standing for a claim of future harm under the Rehabilitation Act,
the plaintiff need only assert a “plausible intent to return to the non-compliant
accommodation or that the disabled individual would return, but is deterred from
visiting the non-compliant accommodation because of the alleged accessibility
barriers.” Id. at 15 (Pg. ID No. 770) (quotations omitted). The Court disagrees.
The two part test used by the Gaylor court has primarily been used to
determine when a building’s physical barriers are in violation of the American with
Disabilities Act (“ADA”). See Steger v. Franco, Inc., 228 F.3d 889, 891–92 (8th
Cir. 2000) (holding Plaintiff had standing to compel Defendant to bring building
up to ADA standards); Kreisler v. Second Ave Diner Corp., 731 F.3d 184, 187 (2d
Cir. 2013) (holding Plaintiff had standing to compel Defendant to make restaurant
accessible to wheelchairs); Scherr v. Marriott Intern., Ind., 703 F.3d 1069, 1074
(7th Cir. 2013) (holding Plaintiff had standing to sue hotel over its use of springhinged doors); Daniels v. Arcade, L.P., 477 F. App’x 125, 130 (4th Cir. 2012)
(holding Plaintiff had standing to sue market that was inaccessible to wheelchairs).

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In these cases, the future harm results merely from the plaintiff visiting the
building, learning of a physical or structural barrier, and anticipating having to
negotiate the barriers “in the imminent future….” Steger, F.3d at 892. Here,
Plaintiffs have not alleged that Trinity hospitals are inaccessible to pregnant
women. The future harm does not stem from negotiating a barrier, but instead
arises from not receiving a certain type of medical treatment. Therefore, this claim
is distinguishable from Gayler, and Plaintiffs must still demonstrate more than just
a “plausible intent” to return to the hospital. Plaintiffs are required to demonstrate
that there is substantial risk of imminent harm. Accordingly, this argument fails as
well.
C. Plaintiffs’ Request for Leave to Amend the Complaint
Finally, the Plaintiffs have asked for leave to amend the complaint to
“supplement the complaint with more specific allegations of the risk of harm to
Plaintiffs’ members to cure any deficiencies identified in the Court’s dismissal
order.” Dkt. No. 46 at 18 (Pg. ID No. 773).
The Court will deny the Plaintiffs’ request to grant leave to amend on
reconsideration. This matter has been dismissed. However, since the matter was
dismissed without prejudice, see Dkt. No. 45, Plaintiffs are free to submit a new
complaint containing the changes believed to be necessary to gain standing.

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IV. CONCLUSION
For the reasons discussed above, the Plaintiffs’ Motion [46] is DENIED
along with the request for leave to amend.

IT IS SO ORDERED.
Dated: August 15, 2016
Detroit, MI

s/Gershwin A. Drain
HON. GERSHWIN A. DRAIN
United States District Court Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon
counsel of record and any unrepresented parties via the Court's ECF System to
their respective email or First Class U.S. mail addresses disclosed on the Notice of
Electronic Filing on August 15, 2016.
s/Teresa McGovern
Teresa McGovern
Case Manager Generalist

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