Argenyi v. Creighton University

Filing 254

STRICKEN - ORDER that the Statement of Objections to Magistrate Judge's Order #245 filed by Plaintiff Michal S. Argenyi is overruled. Ordered by Chief Judge Laurie Smith Camp. (KMG) Modified on 6/20/2013 to strike pursuant to text order 255 (KMG).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MICHAEL S. ARGENYI,

CASE NO. 8:09CV341

Plaintiff,
vs.

MEMORANDUM
AND ORDER

CREIGHTON UNIVERSITY,
Defendant.

This matter is before the Court on the Statement of Objections to Magistrate
Judge’s Order (Filing No. 245) filed by Plaintiff Michael S. Argenyi. Argenyi objects to
Magistrate Judge Gossett’s Order (Filing No. 206), in relevant part, granting Defendant
Creighton University’s (“Creighton”) motion to strike Argenyi’s expert designation and
supplemental expert designation of Dr. Robert Pollard (“Dr. Pollard”). For the reasons
discussed below, the Statement of Objections will be overruled.
BACKGROUND
Argenyi, who is deaf, brings this action pursuant to Title III of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. §§ 12181-12189, and § 504 of the Rehabilitation Act
of 1973, as amended, 29 U.S.C. § 794. He alleges that Creighton has failed to provide
him with the auxiliary aids and services necessary to allow him to participate fully as a
student in Creighton’s medical school. (See Am. Compl., Filing No. 26.) He initiated
this action on September 24, 2009. Creighton filed its original answer on November 18,
2009 (Filing No. 18), alleging as one of its affirmative defenses that “[g]ranting the
accommodations requested by Plaintiff would result in a fundamental alteration in the
nature of Creighton’s medical school program and its technical standards.” (Filing No.

18.) Despite amending its answer on more than one occasion, Creighton has always
asserted this “fundamental alteration” defense. (See Filing Nos. 28, 98, 130.)
On September 16, 2010, in response to Argenyi’s request for certain
accommodations for the clinical portion of his medical education at Creighton, Creighton
filed a motion for leave to amend its answer in order to add a “direct threat” affirmative
defense. (Filing No. 79.) The Court granted Creighton’s motion to amend (Filing No.
92), and on October 14, 2010, Creighton filed its amended answer, adding the direct
threat affirmative defense. (Filing No. 98.)
On November 4, 2010, after the deadline for designating expert witnesses had
passed (see Filing Nos. 32, 36), Argenyi filed his Motion for Leave to Designate
Additional Expert Witness. (Filing No. 110.) In this motion, Argenyi stated that “[i]n
order to respond to the newly alleged affirmative defense, [he] requests leave to
designate an expert solely to address the affirmative defense of direct threat.” (Id. at ¶
2.)

Argenyi’s counsel contacted Creighton’s counsel prior to filing the motion.

Creighton did not oppose the motion after it was made clear that Argenyi’s new expert
would be designated solely to address Creighton’s direct threat affirmative defense.
(See Filing Nos. 146-1 at CM/ECF p. 2 ¶¶ 4-5, 157-2.) Argenyi’s Motion for Leave was
granted and a new progression order was issued. (Filing Nos. 111, 112, 113.) On
March 7, 2011, within the newly designated time for doing so, Argenyi disclosed Dr.
Pollard’s expert report. (Filing No. 125.) Dr. Pollard stated in his report that Argenyi’s
counsel requested that Dr. Pollard offer his “opinion as to whether the provision of
accommodations requested by Mr. Argenyi . . . creates a direct threat to patients.”
(Filing No. 146-1 at CM/ECF p. 4.)
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On March 21, 2011, Creighton filed an unopposed motion to file a second
amended answer and withdraw its direct threat defense. (Filing No. 128.) The Court
granted this motion (Filing No. 129), and on March 21, 2011, Creighton filed its Second
Amended Answer (Filing No. 130), removing all references to the direct threat defense.
On May 4, 2011, Argenyi filed a Notice of Supplementation (Filing No. 140),
indicating that although Creighton had withdrawn its direct threat defense, Dr. Pollard’s
report was relevant to other issues, and therefore, would be revised to eliminate
references to the withdrawn defense.
On May 11, 2011, Creighton filed its Motion to Strike Plaintiff’s Expert
Designation and Supplemental Designation. (Filing No. 144.) Judge Gossett granted
this motion, finding that Dr. Pollard’s testimony was no longer needed or appropriate
because Creighton withdrew its direct threat defense. Judge Gossett noted that Argenyi
sought leave to designate Dr. Pollard as an expert “solely to address the affirmative
defense of direct threat,” and that was the sole basis for the Court granting Argenyi’s
request for leave to designate Dr. Pollard as an expert. Judge Gossett stated that
“[b]ecause the direct threat defense has been withdrawn, the stated reason for Dr.
Pollard’s testimony no longer exists and his testimony is no longer relevant.” (Filing No.
206.)

Therefore, Judge Gossett ordered that Dr. Pollard’s expert designation be

stricken and his expert testimony be precluded.
STANDARD
When a party objects to a magistrate judge's order on a nondispositive pretrial
matter, a district court may set aside any part of the magistrate judge's order shown to
be clearly erroneous or contrary to law. Fed. R. Civ. P. 72(a); 28 U.S.C. § 636(b)(1)(A).
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“‘A finding is clearly erroneous when although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite and firm conviction that a
mistake has been committed.’” Saleen v. Waste Mgmt., Inc., 649 F. Supp. 2d 937, 943
(D. Minn. 2009) (quoting Chase v. Comm'r of Internal Revenue, 926 F.2d 737, 740 (8th
Cir.1991)) (internal quotation marks omitted). “An order is contrary to law if it fails to
apply or misapplies relevant statutes, case law, or rules of procedure.” Haviland v.
Catholic Health Initiatives-Iowa, Corp., 692 F. Supp. 2d 1040, 1043 (S.D. Iowa 2010)
(internal quotation marks and citation omitted).
DISCUSSION
Argenyi contends Judge Gossett erred when he found that “[b]ecause the direct
threat defense has been withdrawn, the stated reason for Dr. Pollard’s testimony no
longer exists and his testimony is no longer relevant.” Argenyi argues that Creighton
has merely relabeled its direct threat defense as a fundamental alteration defense and
continues to assert that using interpreters in the clinical setting inhibits patient care.
Creighton asserts Judge Gossett “was well within his discretion” when he ordered that
Dr. Pollard’s report be stricken and his testimony be precluded. Creighton asserts that
the evidence Argenyi believes Creighton is using to present a disguised direct threat
defense is actually being used to support the proposition that courts should defer to an
educational institution’s accommodation decision with respect to candidates for
professional degrees, which relates to the “fundamental alteration” issue. Creighton
requests that, to the extent the Court believes Creighton is continuing to make disguised
direct threat arguments, the Court should merely disregard them as irrelevant.

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The Court is not persuaded that a mistake has been made or that the relevant
law has been misapplied. The Court notes that Argenyi cites to Fed. R. Evid. 702,
Daubert v. Merrell Dow Pharms., 509 U.S. 579 (1993), and Kumho Tire v. Carmichael,
526 U.S. 137 (1999), to support its Statement of Objections. (Pl.’s Br., Filing No. 245 at
4-5.) This is not the relevant law. The basis for Creighton’s motion to strike was that
the “good cause” allowing Argenyi to deviate from the original progression order
deadlines no longer existed. (See Filing No. 144.)
“To modify a progression order, a party must show good cause for the
modification.” Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 759 (8th Cir. 2006).
The Court “has broad discretion in establishing and enforcing [progression order]
deadlines.” Id. (citing Fed. R. Civ. P. 16, 37). The only “good cause” Argenyi showed
for granting Argenyi’s Motion for Leave to Designate Additional Expert Witness was
Creighton’s recently added direct threat defense, which has been withdrawn.
Furthermore, there is no reason to believe Argenyi could not have timely designated Dr.
Pollard as an expert to address the fundamental alteration issue since Creighton has
always asserted a fundamental alteration defense and Argenyi has timely designated
other experts to address that defense. (See Filing Nos. 42, 152-10.) Under these
circumstances, it was not improper to enforce the original progression order deadline by
striking Dr. Pollard’s expert designation and precluding his expert testimony. To the
extent Creighton continues to argue that its failure to provide Argenyi his requested
accommodations was warranted because the accommodations would inhibit patient
care, those arguments are irrelevant and will be disregarded.

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Applying the standard set forth above, the Court finds that finds Judge Gossett’s
Order was neither clearly erroneous nor contrary to the law.

Therefore, the Argenyi’s

Statement of Objections will be overruled, and Judge Gossett’s Order will be affirmed.
Accordingly,
IT IS ORDERED that the Statement of Objections to Magistrate Judge’s Order
(Filing No. 245) filed by Plaintiff Michal S. Argenyi is overruled.

Dated this 19th day of June, 2013.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

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