Bates v. Delmar Gardens North, Inc et al
MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that Plaintiffs renewed motions for judgment as a matter of law, or in the alternative, for a new trial, are both DENIED. ECF Nos. 139 & 140 . Signed by District Judge Audrey G. Fleissig on 03/12/2018. (KCB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
DELMAR GARDENS NORTH, INC. and )
DELMAR GARDENS NORTH
Case No. 4:15-CV-00783-AGF
MEMORANDUM AND ORDER
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.
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
In response to Defendants’ Motion for Summary Judgment (ECF No. 57), Plaintiff
withdrew her FHA claim. ECF No. 69 at 2.
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
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 Plaintiff’s
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, Plaintiff’s 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 Staff’s written notes to her, such
as the word “usually.” Finally, Plaintiff presented a linguistics expert, Judy ShepardKegl, who opined in detail as to Plaintiff’s 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 Plaintiff’s 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
In closing arguments, defense counsel stated that Plaintiff’s counsel was
attempting to “contort the evidence and mislead [the jury].” ECF No. 140 at 9. Defense
counsel also stated, with respect to Plaintiff’s 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. Plaintiff’s 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 Wiederhorn, Plaintiff’s attorney, and Shelly Jones, the Table
Interpreter, stating that Jim Self used PSE instead of ASL. ECF Nos. 140-3, 140-4.
Plaintiff argues that this usage of PSE caused Plaintiff, who was unfamiliar with PSE, to
appear “confused or stupid in front of the jury.” ECF No. 140 at 8. Jones states in her
affidavit that Self would translate Plaintiff’s signing that she “did not understand the
signs” to simply “I don’t understand.” ECF. No. 140-4 at 3.
In response, Defendants argue that Plaintiff is not entitled to JMOL because a
reasonable jury could have found in favor of Defendants on the issue of whether
Defendants provided Plaintiff with the auxiliary aids and services necessary for effective
communication. Defendants also argue that a new trial should not be granted because:
(1) substantial evidence was presented at trial to support the jury verdict; (2) any alleged
interpretation issues should have been, but were not, raised during trial; and, in any event,
did not result in a miscarriage of justice; and (3) Defendants’ counsel’s statements during
closing arguments were proper and did not contribute to a miscarriage of justice.
Defendants present an affidavit by Self wherein he states that he has successfully
interpreted for Plaintiff on other occasions, that Plaintiff referred to him as her “favorite
interpreter,” and that another deaf individual who attended the first two days of the trial
said that he was “very clear.” ECF No. 141-6. In his affidavit, Self does not dispute that
he exclusively used PSE.
Federal Rule of Civil Procedure 50(b) states that, when ruling on a renewed
motion for JMOL, “the court may: (1) allow judgment on the verdict, if the jury returned
a verdict; (2) order a new trial; or (3) direct the entry of judgment as a matter of law.”
JMOL may only be granted when “the evidence at trial is wholly insufficient to support a
jury finding.” In re Prempro Prods. Liab. Litig., 586 F.3d 547, 571 (8th Cir. 2009).
When considering a JMOL, a reviewing court must “draw all reasonable inferences in
favor of the nonmoving party,” and it may not make credibility determinations or weigh
the evidence. Reeves v. Sanderson Plumbings Prods., Inc., 530 U.S. 133, 150 (2000)
(“[The court] must disregard all evidence favorable to the moving party that the jury is
not required to believe.”).
Federal Rule of Civil Procedure 59(a)(1)(A) states that a court may grant a motion
for a new trial after a jury trial “for any reason which a new trial has heretofore been
granted in an action at law in federal court.” “[D]istrict courts enjoy broad discretion in
choosing whether to grant a new trial.” Pulla v. Amoco Oil Co., 72 F.3d 648, 656 (8th
Cir. 1995). A new trial is appropriate if there is a “clear showing that the outcome is
against the great weight of the evidence so as to constitute a miscarriage of justice.”
Weitz Co. v. MH Wash., 631 F.3d 510, 520 (8th Cir. 2011) (quoting Foster v. Time
Warner Entm’t Co., 250 F.3d 1189, 1197 (8th Cir. 2001)). When considering whether
the outcome is against the great weight of evidence, “[a] district court need not view the
evidence in the light most favorable to the verdict; it may weigh the evidence and in
doing so evaluate for itself the credibility of the witnesses.” United States v. Lincoln, 630
F.2d 1313, 1319 (8th Cir. 1980). A motion for a new trial based on improper statements
during closing arguments should only be granted if the improper statements are “plainly
unwarranted and clearly injurious” and “cause prejudice to the opposing party and
unfairly influence a jury’s verdict.” Harrison v. Purdy Bros. Trucking Co., 312 F.3d 346,
351 (8th Cir. 2002).
Renewed Motion for JMOL
Upon review of the record, the Court concludes that the renewed motion for
JMOL on the issue of Defendants’ liability must be denied. After drawing all reasonable
inferences in favor of Defendants, the Court finds that the evidence in the record is
sufficient for a reasonable jury to conclude that Defendants did not fail to provide the
auxiliary aids and services necessary for effective communication between Plaintiff and
the DG North staff, particularly in light of Plaintiff’s relatively short stay at DG North
and the nature of the communications at issue—factors that the jury was instructed it
could consider. For example, the jury reasonably could have concluded that the
handwritten notes exchanged between Plaintiff and DG North staff demonstrated that
Plaintiff was able to communicate her needs and desires to DG North staff and that the
staff understood those needs. DG North staff testified that they responded to Plaintiff’s
inquiries about medication with gestures and speaking. Defendants also presented
evidence that called into question Plaintiff’s credibility regarding her inability to
understand written English. A jury could have reasonably concluded from the all of the
evidence presented at trial that Plaintiff was able to effectively communicate with
Defendants without an ASL interpreter given the context of her communications with DG
The Court rejects Plaintiff’s argument that the following evidence requires a
finding, as a matter of law, that Defendants failed to provide for effective
communication: (1) Plaintiff’s testimony that her requests for clarification about
medication went ignored; (2) Plaintiff’s testimony that she was unaware of meal times
until she inquired herself; and (3) Plaintiff’s testimony that she was not aware that
Defendants would be providing her with rehabilitation services at her home. Because the
Court must draw all inferences in favor of the non-moving party, and a jury is not
required to take Plaintiff at her word, this evidence is not sufficient to overturn a jury
verdict. See Reeves, 530 U.S. at 150. Plaintiff’s credibility was properly submitted to the
jury, and the Court may not substitute its judgment for that of the jury.
Motion for a New Trial
The Court now turns to Plaintiff’s arguments for a new trial: (1) that the jury
verdict was against the great weight of the evidence so as to constitute a miscarriage of
justice; (2) that Self’s use of PSE instead of ASL resulted in a miscarriage of justice; and
(3) that Defendants’ counsel’s statements during closing arguments resulted in a
miscarriage of justice. The Court does not find any of the arguments compelling and,
accordingly, must deny Plaintiff’s motion for a new trial.
When considering whether the jury verdict is against the great weight of the
evidence presented at trial, although a district court may weigh the evidence and evaluate
the credibility of the witnesses, its ability to do so is not boundless. Fireman’s Fund Ins.
Co. v. Aalco Wrecking Co., Inc., 466 F.2d 179, 186 (8th Cir. 1972) (“Courts are not free
to reweigh the evidence and set aside the jury verdict merely because the jury could have
drawn different . . . conclusions or because judges feel that other results are more
reasonable.”). Although Plaintiff did in fact present compelling evidence, the Court does
not find the jury verdict to be against the great weight of the evidence presented at trial.
Plaintiff’s case rested heavily upon the testimony of Plaintiff and other witnesses. As
noted above, Defendants presented evidence contradicting Plaintiff’s testimony regarding
her lack of comprehension. And Plaintiff’s notes suggesting that she did not understand
and needed an interpreter were limited to the first few days of her stay. Even if the Court
were to assign substantial credibility to the testimony of Plaintiff and her expert, it cannot
be said that the jury verdict is contrary to the great weight of the evidence. Reasonable
minds could differ as to whether Plaintiff effectively communicated with DG North staff,
again particularly in light of the short duration of Plaintiff’s stay at DG North and the
non-complex nature of the communications. As such, the determination was properly left
to the jury. Id. at 187.
Plaintiff waived her second argument by failing to raise the issue during trial
despite having multiple opportunities to do so. Valladares v. United States, 871 F.2d
1564, 1566 (11th Cir. 1989) (citing cases). Even if the issue were not waived, upon
examining the substance of Plaintiff’s argument, the Court does not find a new trial to be
warranted. To support her second argument, Plaintiff cites United States v. Krboyan, No.
1:02-CR-5438 OWW, 2005 WL 3309588 (E.D. Cal. Dec. 7, 2005). The facts in
Krboyan, however, are far removed from the facts in this case. In Krboyan, the court
appointed one translator for the criminal defendant. The translator spoke a different
dialect of Armenian than the defendant, Krboyan. The translator’s use of a different
dialect caused Krboyan to be unable to effectively communicate with his lawyer, unable
to understand the entirety of the criminal proceedings, unable to understand what the
witnesses were saying, unable to understand questions asked of him, and unable to have
his intended testimony accurately translated. Id. at *9. Finally, there was indication that
Krboyan raised the issue with the court before and during the trial. Id. at *6. The district
court granted a new trial based on “the totality of these issues.” Id. at *9.
In Plaintiff’s case, the Court appointed three separate interpreters. There was no
indication that Self failed to accurately translate Plaintiff’s testimony in any significant
way. Plaintiff does not contend that she had any trouble communicating with her lawyer
or understanding the proceedings. And although Plaintiff points to the affidavits of Jones
and Plaintiff’s counsel speculating that Self’s interpretation confused Plaintiff, Plaintiff
has not submitted her own affidavit attesting to her confusion, and in any event, Plaintiff
has not shown that any lapse in translation affected the substance of her testimony.
Therefore, a new trial will not be granted. United States v. Hernandez, 994 F. Supp. 627,
630-31 (E.D. Pa. 1998) (citing cases).
Finally, as to defense counsel’s statements during closing arguments, although
Plaintiff’s failure to object is not fatal,2 in order to succeed on her final argument,
Plaintiff must first show that defense counsel’s statements at closing argument were
“plainly unwarranted and clearly injurious” and “cause[d] prejudice to the opposing party
and unfairly influence[d] a jury’s verdict.” Harrison, 312 F.2d at 351. Additionally,
Plaintiff must demonstrate that the “interest of substantial justice is at stake.”
McWhorter, 906 F.2d at 677. Although defense counsel’s statements with respect to the
expert and Plaintiff having received excellent care may have been improper, the Court
does not find that defense counsel’s statements during closing argument prejudiced
McWhorter v. City of Birmingham, 906 F.2d 674, 677 (11th Cir. 1990) (“[W]here the
interest of substantial justice is at stake, improper argument may be the basis for a new
trial even if no objection has been raised.”) (citing cases).
Plaintiff or unfairly influenced the jury. Nor is the interest of substantial justice at stake.
AS such, the Court does not find the grant of a new trial to be warranted on this ground.
See Alholm v. American Steamship Co., 144 F.3d 1172, 1181 (8th Cir. 1998) (holding
that closing arguments wherein defendants were referred to as a “gang of bullies” and its
counsel as a “spin doctor” were not so prejudicial as to warrant a new trial). In this case,
the jury was specifically instructed to not consider closing arguments as evidence. The
jury’s findings were supported by evidence, and the judgment was a reasonable
application of governing law.
For the reasons set forth above,
IT IS HEREBY ORDERED that Plaintiff’s renewed motions for judgment as a
matter of law, or in the alternative, for a new trial, are both DENIED. ECF Nos. 139 &
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 12th day of March, 2018.
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