Argenyi v. Creighton University

Filing 350

MEMORANDUM AND ORDER - The Plaintiff Michael Argenyi's Motion in Limine (Filing No. #279 ) is granted in part as set forth in this order. The Defendant Creighton University's Motion for Leave to File Sur-reply Brief in Opposition to Plaintiff's Motion in Limine (Filing No. #344 ) is denied as moot. Ordered by Chief Judge Laurie Smith Camp. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MICHAEL S. ARGENYI,
Plaintiff,
v.
CREIGHTON UNIVERSITY,
Defendant.

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CASE NO. 8:09CV341

MEMORANDUM
AND ORDER

This matter is before the Court on the Plaintiff’s Motion in Limine (Filing No. 279).
For the reasons discussed below, the Motion will be granted in part and denied in part.
FACTUAL AND PROCEDURAL BACKGROUND
Michael S. Argenyi is a medical student at Creighton University who has a hearing
disability. He brought this action under Title III of the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12182, and § 504 of the Rehabilitation Act, 29 U.S.C. § 794.
Argenyi does not know sign language, but relies primarily on "cued speech," which
uses hand signals to represent sounds, and Communication Access Real-time
Transcription (“CART”), a system which transcribes spoken words into text on a computer
screen. Before starting medical school, he received a bilateral cochlear implant, and his
physicians recommended that he be provided with access to CART, a cued speech
interpreter, and an FM system that would direct sound to his cochlear implants. Creighton
University provided some, but not all, of the accommodations Argenyi requested.
This Court granted summary judgment in favor of Creighton, and Argenyi appealed.
The United States Court of Appeals for the Eighth Circuit reversed, concluding that genuine
issues of material fact remained “as to whether Creighton denied Argenyi an equal
opportunity to gain the same benefit from medical school as his nondisabled peers by

refusing to provide his requested accommodations.” Argenyi v. Creighton Univ., 703 F.3d
441, 451 (8th Cir. 2013).
The matter is set for jury trial on August 20, 2013. Argenyi has moved, in limine, to
preclude Creighton from offering testimony, other evidence, or argument (1) related to
Argenyi’s qualifications to attend medical school, (2) suggesting that Creighton’s failure to
provide Argenyi with his requested accommodations was due to Creighton’s concern for
patient care, or suggesting that interpreters “mediate” clinical judgment, acting as third
parties to communication, (3) related to Argenyi’s ability to hear and communicate, or
related to what auxiliary aids were effective for him, (4) related to Argenyi’s use of auxiliary
aids during performance tests and when working as a certified nursing assistant, (5) related
to the cost of providing Argenyi with auxiliary aids during his first two years of medical
school or the undue burden of providing such accommodations, (6) suggesting that only
medical school funds and not Creighton University funds should be considered in any
undue burden analysis, (7) consisting of cumulative testimony, (8) related to video
evidence of Argenyi taking certain exams, (9) using fact witnesses as experts, and (10)
related to documents written by individuals who are not testifying, including those written
by Amanda Mogg, Scott Moore, Amy Bones, and persons posting online comments on the
website of the Association of Medical Professionals with Hearing Loss (AMPHL).1
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Argenyi’s Motion in Limine (Filing No. 279) first asks the Court to restrict evidence
or argument in ten areas, but then requests an order precluding Creighton from offering
evidence in eight areas that do not all correspond with the initial requests. The second list
includes a request that Creighton be precluded from offering “speculative testimony about
the costs of interpreters for the third and fourth year of medical school.” (Filing No. 279 at
4.) Argenyi’s Brief (Filing No. 280) presents argument in eight areas, differing from both
lists presented in the Motion. In this Memorandum and Order, the Court attempts to
address all issues raised by Argenyi in both sections of his Motion and in his brief.
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STANDARDS OF REVIEW
Fed. R. Evid. 403 provides:
The court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice, confusing
the issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.
Fed. R. Evid. 701 provides:
If a witness is not testifying as an expert, testimony in the form of an opinion is
limited to one that is:
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony or to determining a fact
in issue; and
(c) not based on scientific, technical, or other specialized knowledge within the
scope of Rule 702.
Fed. R. Evid. 702 provides:
A witness who is qualified as an expert by knowledge, skill, experience, training, or
education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier
of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the
case.
DISCUSSION
I. Evidence of Argenyi’s Qualifications to Attend Medical School
Creighton acknowledges that Argenyi is qualified to be a Creighton medical student
and that hearing-impaired persons may be doctors. Creighton asserts, however, that its

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Technical Standards are relevant to the question of how Creighton’s educational programs
are used by non-disabled students, and the question of whether the accommodations
requested by Argenyi were reasonable or appropriate. The Court will not preclude
Creighton, in limine, from offering evidence of its Technical Standards. The jury may be
given a limiting instruction regarding the purposes for which such evidence may and may
not be used.
II. Concerns for Patient Care, or that Interpreters “Mediate” Clinical Judgment
Creighton earlier conceded that its decision to disallow the use of interpreters for
Argenyi in the clinical setting was not based on concerns for patient care. Creighton also
agrees not to present evidence or argument that interpreters mediate clinical judgment,
except as necessary to rebut any evidence presented by Argenyi to the effect that
interpreters do not mediate clinical judgment. Argenyi contends that any claim that
interpreters do mediate clinical judgment goes to the issue of patient care, which Creighton
has conceded is not a defense in this case. At this time, it is unclear whether Argenyi will
attempt to present expert testimony to the effect that the use of interpreters in the clinical
setting does not mediate clinical judgment, and it is unclear whether Creighton may attempt
to offer evidence in rebuttal for a purpose other than demonstrating a threat to patient care,
e.g., to suggest that the quality of Argenyi’s medical training would be diminished by his
reliance on interpreters in the clinical setting. The Court declines to exclude evidence on
this issue through an order in limine.
III. Evidence of what Argenyi Could Hear or Understand
Argenyi’s ability to hear, comprehend, and communicate in various settings will be
at issue in this case. He likely will offer his own testimony and that of his physicians,
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former professors, and others who have observed his processing of audio and visual
communications in various settings. Creighton will not be precluded, in limine, from
presenting testimony or other evidence regarding observations of Argenyi in classroom,
laboratory, clinical, or other settings, including observations of how he communicated and
what he appeared to understand or not understand. Such evidence may have specific
relevance to the question of whether Creighton acted with deliberate indifference to
Argenyi’s need for accommodation and his legal rights.
IV. Evidence of Argenyi’s Need for Auxiliary Aids During Testing and When Working
as a Certified Nursing Assistant
Argenyi argues that Creighton may not offer videos showing him completing certain
mock patient exams, because Creighton cannot lay proper foundation for the admission
of the videos into evidence, and because the videos do not fairly represent a clinical setting
and, therefore, lack relevance. The Plaintiff’s objection regarding foundation is premature.
The Court will entertain objections as to foundation at the time of trial, and will also weigh
objections as to relevance at that time, bearing in mind that certain evidence may be
relevant for one purpose, such as demonstrating a lack of “deliberate indifference,” and not
relevant for another purpose, such as demonstrating whether Argenyi could function
effectively in a clinical setting without the use of interpreters. When evidence is relevant
for one purpose, but not for another, the Court may give a limiting instruction advising the
jury of the purposes for which the evidence may and may not be used.
Argenyi also seeks to preclude Creighton from offering into evidence a letter from
Amanda Mogg, describing Argenyi’s experience as a certified nursing assistant prior to his
admission to medical school. Argenyi contends that the letter is inadmissible, because

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Mogg is not listed as a witness and the letter contains hearsay. Argenyi also contends that
the letter is irrelevant and unduly prejudicial. Creighton responds that it will not be offering
the letter for the truth of the statements contained in it, but because it was a part of the
body of information Creighton considered and relied upon when making its decision to
provide Argenyi with certain accommodations and not others. The Court will not preclude
Argenyi, in limine, from offering the Mogg letter into evidence. Again, a limiting instruction
may be given to the jury if necessary.
Argenyi also seeks to preclude Creighton from offering into evidence his grades,
arguing that they lack foundation and authentication; they are incomplete; they are
unreliable; they have been altered; they are irrelevant; and they are unfairly prejudicial.
The Court will address the Plaintiff’s objections at trial.
V. Evidence of the “Undue Burden” of Creighton Providing Auxiliary Aids to Argenyi
During his First Two Years of Medical School
Argenyi contends that Creighton is barred from asserting an “undue burden”
defense regarding its decision to deny Argenyi certain accommodations during his first two
years of medical school, because Creighton has acknowledged that its decision was not
based on the cost of such accommodations. Creighton admits that it based its decision
on its conclusion that the accommodations Argenyi requested were not necessary and
reasonable, and it never reached the issue of whether the cost of the accommodations
would pose an undue burden.
Title III of the Americans with Disabilities Act (“ADA”) prohibits “any person who
owns . . . or operates a place of public accommodation” from discriminating against any
individual “on the basis of disability in the full and equal enjoyment of the goods, services,

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facilities, privileges, advantages, or accommodations of any place of public
accommodation.”2 42 U.S.C. § 12182(a). For purposes of the ADA, discrimination
includes:
(ii) a failure to make reasonable modifications in policies, practices, or procedures,
when such modifications are necessary to afford such goods, services, facilities,
privileges, advantages, or accommodations to individuals with disabilities, unless
the entity can demonstrate that making such modifications would fundamentally
alter the nature of such goods, services, facilities, privileges, advantages, or
accommodations; [and]
(iii) a failure to take such steps as may be necessary to ensure that no individual
with a disability is excluded, denied services, segregated or otherwise treated
differently than other individuals because of the absence of auxiliary aids and
services, unless the entity can demonstrate that taking such steps would
fundamentally alter the nature of the good, service, facility, privilege, advantage, or
accommodation being offered or would result in an undue burden.”
Id. at § 12182(b)(2)(A)(ii), (iii).
The Rehabilitation Act also allows a defendant to assert the affirmative defense that
providing a requested accommodation would result in an undue burden. Timothy H. v.
Cedar Rapids Cmty. Sch. Dist., 178 F.3d 968, 971 (8th Cir. 1999) (undue burden defense
applies to Rehabilitation Act claim); Gorman v. Bartch, 152 F.3d 907, 911 (8th Cir. 1998)
(citing 29 U.S.C. § 794a(a)(1)) (undue burden defense applies to Rehabilitation Act claim).
Plaintiff has not directed the Court to any precedent indicating that a defendant
waives the defense of “undue burden,” if its decision to deny an accommodation is made
on another basis. Plaintiff does contend that, during discovery, Creighton representatives
conceded that providing Argenyi with qualified interpreters would not create an undue

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Creighton does not deny that it is a place of public accommodation. See 42 U.S.C.
§ 12181(7)(J) (providing “postgraduate private school[s], or other place[s] of education” are
“public accommodations for purposes” of the ADA).
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burden for Creighton. (Pl.’s Br., Filing No. 280 at 31.) If, at the time of trial, Creighton
asserts an “undue burden” defense, Plaintiff may seek to impeach the testimony of
Creighton’s witnesses with reference to such responses offered during discovery.
With respect to Argenyi’s third and fourth year clinical program, he contends that
Creighton should not be permitted to assert an “undue burden” defense, because
Creighton refused to allow him to use interpreters at his own cost. Creighton counters that
it should not be required to concede the “undue burden” defense in that context unless
Argenyi will concede that he would not be entitled to reimbursement for interpreters he
retains. The Court will deny Argenyi’s Motion in Limine with respect to Creighton’s “undue
burden” defenses, and address objections at the time of trial.
VI. Argument that only Medical School Funds Should be Considered When Weighing
the Undue Burden Placed on Creighton by Argenyi’s Requests for Accommodations
Argenyi notes that Creighton University is the Defendant in this case, and not
Creighton Medical School. He contends that Creighton should not be permitted to argue
that only the Medical School’s funds should be considered by the jury when weighing
issues of “undue burden.” Creighton contends that it will introduce evidence that the
Medical School is responsible for remaining independently profitable and cannot rely on
resources from Creighton University.
The Plaintiff’s Motion in Limine will be denied in this respect, and the Court will
address objections at the time of trial.

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VII. Cumulative Testimony
At the time of trial, if it is apparent that certain testimony has become cumulative,
the Court may limit the testimony. The Court will not issue an order in limine to preclude
any witnesses from testifying on this basis.
VIII. Video Evidence of Argenyi Taking Exams
As discussed in parts III and IV, above, video recordings of Argenyi taking exams
may be relevant and admissible for certain purposes, including the issue of whether
Creighton engaged in “deliberate indifference,” and the Court will not preclude Creighton,
in limine, from offering such evidence. Limiting instructions to the jury will be considered,
if such evidence is shown.
IX. Expert Testimony from Creighton Fact Witnesses
Creighton agents or employees who were involved in the decision to grant or deny
accommodations to Argenyi may testify about their decision-making process, including the
reasons for their actions.

If such actions were based on certain knowledge, skill,

experience, training, or education, they may describe that background and explain how it
influenced the decision.
Creighton witnesses not designated as experts may not otherwise offer expert
testimony.
X. Writings of Amanda Mogg, Scott Moore, Mary Bones, and Postings on the
Association of Medical Professionals with Hearing Loss (AMPHL) Website
The letter written by Amanda Mogg is addressed in part IV, above. Argenyi also
objects to the introduction of emails written by defense attorneys Amy Bones and Scott
Moore, on the basis that they contain “irrelevant hearsay that cannot be authenticated.”

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(Pl.’s Br., Filing No. 280 at 25.) In connection with Plaintiff’s Motion to Strike, filed after the
instant motion, Plaintiff’s counsel agreed to acknowledge the authenticity of the emails, but
preserved objections to them on hearsay grounds. (Letter from Mary Vargas to Scott
Moore, dated July 25, 2013, at Filing No. 294-2.) In the Court’s Memorandum and Order
(Filing No. 313), ruling on the Motion to Strike, the Court noted that the Plaintiff’s hearsay
objections would be addressed at trial. Similarly, the Court will address the relevance
objections at trial.
With respect to postings on the AMPHL website, Creighton notes that it has not
listed any such online forum comments as an exhibit (Def.’s Br., Filing No. 296 at 13), and
therefore does not respond to Plaintiff’s motion on that topic.
IT IS ORDERED:
1. The Plaintiff Michael Argenyi’s Motion in Limine (Filing No. 279) is granted in
part, as follows:
a.

Defendant Creighton University is precluded, in limine, from offering
argument that Argenyi is not qualified to attend medical school;

b.

Defendant Creighton University is precluded, in limine, from offering
argument or evidence that Argenyi’s use of interpreters in the clinical setting
would affect patient care;

c.

Witnesses called by Creighton University who are not designated as expert
witnesses are precluded, in limine, from offering expert testimony, provided,
however, that agents or employees of Creighton who made decisions
relevant to Argenyi’s claims may testify about the basis for their decisions,

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including their knowledge, skill, experience, training, or education, that may
have informed such decisions;
d.

Creighton University is precluded, in limine, from offering evidence or
argument related to postings on the Association of Medical Professionals
with Hearing Loss (AMPHL) Website;

e.

The Motion is otherwise denied; and

2. The Defendant Creighton University’s Motion for Leave to File Sur-reply Brief in
Opposition to Plaintiff’s Motion in Limine (Filing No. 344) is denied as moot.

DATED this 19th day of August, 2013.
BY THE COURT:

s/Laurie Smith Camp
Chief United States District Judge

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