Collins et al v. Dartmouth-Hitchcock Medical Center, et al

Filing 29

///ORDER granting 19 Motion for Summary Judgment. Summary judgment is entered in favor of the defendants on all of the plaintiffs' claims. Clerk shall enter judgment and close the case. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE

Colleen Collins, et al.
v.

Civil No. 13-cv-352-JD
Opinion No. 2015 DNH 015

Dartmouth-Hitchcock
Medical Center and
James E. Saunders, M.D.
O R D E R
Colleen Collins and her sisters, Ruth Collins and Debra
Ceriello, brought suit against Dartmouth-Hitchcock Medical Center
(“DHMC”) and Dr. James E. Saunders, alleging claims under the
Americans with Disabilities Act (“ADA”) and the Rehabilitation
Act, along with state law claims.

Their claims arose from

Colleen’s post-operative and subsequent treatment at DHMC related
to her deafness.1

DHMC and Dr. Saunders move for summary

judgment on all of the plaintiffs’ claims.

The plaintiffs

object.

Standard of Review
Summary judgment is appropriate when “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
P. 56(a).

Fed. R. Civ.

In deciding a motion for summary judgment, the court

draws all reasonable inferences in favor of the nonmoving party.

1

Because Colleen and her sister, Ruth, share the last name
Collins, to avoid confusion all of the plaintiffs will be
referred to by their first names: Colleen, Ruth, and Debra.

Foodmark, Inc. v. Alasko Foods, Inc., 768 F.3d 42, 47 (1st Cir.
2014).

“A genuine issue of material fact must be built on a

solid foundation--a foundation constructed from materials of
evidentiary quality” so that “conclusory allegations, empty
rhetoric, unsupported speculation, or evidence which, in the
aggregate, is less than significantly probative will not suffice
to ward off a properly supported motion for summary judgment.”
Garcia-Gonzalez v. Puig-Morales, 761 F.3d 81, 87 (1st Cir. 2014).
In response to a properly supported motion for summary
judgment, opposing parties must provide competent record evidence
that shows there is a genuine issue for trial.

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Mosher v. Nelson,
589 F.3d 488, 492 (1st Cir. 2009).

The plaintiffs, who are

represented by counsel, did not provide “a short and concise
statement of material facts, supported by appropriate record
citations, as to which [the plaintiffs] contend[] a genuine
dispute exists so as to require trial.”

LR 56.1(b).

Instead,

the plaintiffs titled the section that is nearly their entire
memorandum as “Disputed Material Facts.”

That section is not

limited to factual statements with record citations but instead
includes citations to statutes and cases and argument
interspersed with the factual statements.

The plaintiffs’

failure to follow the applicable local rule both unnecessarily
complicated the process of assessing their objection to summary
judgment and, to some extent, undermined the effectiveness of
their arguments.

2

Background
Colleen Collins has had hearing loss since childhood and has
been a patient at DHMC since 1967.

Over time, Colleen became

profoundly deaf and received a cochlear implant.2

During her

treatment at DHMC, Colleen communicated with her providers by lip
reading, with the assistance of the cochlear implant.3
Dr. James E. Saunders is an otolaryngologist who began
treating Colleen in 2009.

At an appointment in August of 2011,

Dr. Saunders and Colleen discussed her cochlear implant that was
beginning to fail.

As in previous meetings, Colleen and Dr.

Saunders communicated by voice and lip reading.

They discussed a

plan to replace the failing implant with a new one that would
become operational within approximately thirty to forty-five days
after the surgery.

Surgery was scheduled for September 16, 2011.

Colleen had never requested an American Sign Language
(“ASL”) interpreter for her appointments at DHMC.
did not know that Colleen understood ASL.

Dr. Saunders

Beginning in 2007,

DHMC began a program, known as CMapp, that schedules ASL
interpreters for appointments at DHMC whenever a patient requests
an interpreter.

2

“A cochlear implant is a surgically implanted device that
provides sound to individuals who are profoundly deaf or severely
hard of hearing.” Aff. of Dr. James E Saunders, docket no. 19-4,
¶ 5.
3

Colleen also communicated with her family, friends, and
colleagues at work predominantly through a combination of lip
reading and her cochlear implant, although she used sign language
to communicate with friends who were deaf.
3

On September 16, 2011, Colleen arrived for surgery
accompanied by her sisters, Ruth and Debra.

During the surgery,

Dr. Saunders removed the failing cochlear implant but found a
cholesteatoma, an abnormal growth in Colleen’s middle ear.

He

removed the cholesteatoma, but the area had to heal before he
could insert a new cochlear implant.
After the surgery, Dr. Saunders and Stella McHugh met with
Ruth and Debra to explain the results.

McHugh is a clinical

audiologist and cochlear implant audiologist at DHMC.

Dr.

Saunders explained the cholesteatoma and its consequences.

To

assist their understanding, Dr. Saunders drew a diagram of the
inner ear, showing the location of the cholesteatoma.

He told

Ruth and Debra that he had removed the failing cochlear implant
and the cholesteatoma but that additional surgery would be needed
in four to six months, after the area had healed, to insert a new
cochlear implant.

During the meeting, Debra and Ruth mentioned

that Colleen knew ASL, which surprised Dr. Saunders and McHugh
because Colleen had never mentioned using ASL and had never asked
for an ASL interpreter.
During the post-surgery meeting, Dr. Saunders told Debra and
Ruth that Colleen had a tumor, the cholesteatoma.

Debra

understood the cholesteatoma was abnormal cell growth, scar
tissue growth, and was an enzyme that had dissolved bone in
Colleen’s ear canal and was working its way into the skull.
Further, every cell had to be scraped out because if any were
left behind they would grow, get into her brain, and kill her.

4

Debra said that the diagram Dr. Saunders drew was very helpful in
understanding what he was explaining.

Debra asked who would

explain the outcome of the surgery to Colleen.

Dr. Saunders said

that he would explain it and that it was his job to do that.
As soon as Colleen could have visitors, Debra and Ruth went
in to see her.

Colleen could see from their faces that they had

been crying and asked what was wrong.

Debra said she should wait

for the doctor and that everything was fine.

When Dr. Saunders

arrived, Debra asked him how he would communicate with Colleen
when she was “drugged,” could not hear, and did not have her
glasses, and he responded that he would have to write big enough
for her to see.
Although Dr. Saunders does not usually discuss surgical
results with patients immediately after surgery, he wanted to
tell Colleen directly about the unexpected finding during
surgery, the cholesteatoma, and that he had not been able to
insert the new cochlear implant.

Colleen was groggy from

anesthesia, had a bandage on her head, and did not have her
glasses which she relied on heavily because of deficiencies
caused by a disorder known as Turner Syndrome.

In addition,

without a cochlear implant, Colleen was completely deaf.
Dr. Saunders communicated with Colleen verbally and by
writing on a white pad of paper.

He also used the diagram of the

inner ear that he had drawn while meeting with Ruth and Debra to
show the location of the cholesteatoma.

Debra and Ruth were

present during the first meeting between Colleen and Dr.

5

Saunders, although Ruth may not have stayed in the room for the
entire meeting.

The first note that Dr. Saunders wrote on the

pad was:
Everything was OK with surgery except that I was not
able to put the new implant in now. You had a
cholesteatoma and we will have to wait 4-6 months
before we can put the new implant in. This was the
only safest thing to do. Unfortunately we had to take
the old one out -- so you will be without for a few
months.
Debra also talked with Colleen during the meeting, and she felt
that Dr. Saunders relied on her to some extent to communicate
with Colleen.

The first meeting was brief, and Dr. Saunders left

for another surgery.
Debra stated in her deposition that Dr. Saunders did not
explain details about the cholesteatoma to Colleen, so Debra told
Colleen the additional information that Dr. Saunders had given
Debra and Ruth.
going to die?”

Colleen kept asking, “I’m going to die? I’m
Her sisters reassured her that she was not going

to die, but Colleen was focused on the word “die” rather than the
other information about her surgery.
Several hours later, Dr. Saunders returned to see Colleen.
Debra thought that the second page of Dr. Saunders’s notes was
from the second meeting and that she, Debra, wrote additional
notes on the page.

In response to a question from Colleen, Dr.

Saunders wrote:
Not an infection, but a cholesteatoma. This is what
Dr. Kueton treated in this ear before. I think you
will do great and we will be able to put the implant in
eventually but will have to wait a little longer than
we planned and you will need another surgery.

6

Dr. Saunders then wrote, “I have to go back to surgery now, but I
will see you in 1 week.”
Colleen left the hospital later that evening and went to
Debra’s house in Concord.

Colleen’s follow-up appointment was

scheduled for September 22, 2011.

The day before, Debra called

the office to have an ASL interpreter present during the
appointment.

An interpreter was present for the September 22

appointment.

Colleen then had eleven appointments at DHMC

between September 23, 2011, and November 8, 2013.

Dr. Saunders

performed surgery on Colleen in April of 2012 for the new
cochlear implant, which was activated in late May of 2012.
In scheduling an appointment for May 8, 2013, with Stella
McHugh for mapping the cochlear implant, Colleen spoke with
scheduler Tina Woods.

Woods asked Colleen if an interpreter

would be needed for the appointment, and Colleen said no because
her sister would be with her.

On the day of the appointment,

however, a friend brought Colleen, and when she arrived Colleen
asked for an interpreter.
McHugh asked the staff to see if an interpreter could
attend, but no one was available.

As an alternative, McHugh

decided to use a program called “Deaf Talk,” a video relay
conferencing system that provides ASL interpreting.

While the

Deaf Talk system was being set up, McHugh had Colleen sign a
statement that she agreed to proceed without an interpreter.
Once Deaf Talk was operational, it was used during the
appointment.

7

Discussion
The plaintiffs bring three claims under the ADA, one claim
under the Rehabilitation Act, one claim under both the ADA and
the Rehabilitation Act, and nine state law claims.

DHMC and Dr.

Saunders move for summary judgment on all of the plaintiffs’
claims.

A.

The plaintiffs object to summary judgment.

Count I - Discrimination in Violation of Title III of the ADA
Title III of the ADA prohibits discrimination against an

individual “on the basis of a disability in the full and equal
enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of any place of public
accommodation . . . .”

42 U.S.C. 12182(a).

Hospitals are

included as public accommodations under Title III.
§ 12181(7)(F).

42 U.S.C.

Remedies in actions brought by private parties

under Title III, 42 U.S.C. § 12188(a) do not include an award of
money damages and, instead, are aimed at individuals who are
currently being subjected to discrimination.4

Goodwin v. C.N.J.,

Inc., 436 F.3d 44, 50 (1st Cir. 2006).
To prove a violation of Title III of the ADA, a plaintiff
must show that she is disabled within the meaning of the ADA,
that the defendant is a private entity that owns or operates a

4

All of the allegations in Count I pertain to past actions.
The plaintiffs state that the alleged violations of Title III
“were the proximate cause of damages to Colleen Collins . . . .”
As such, the plaintiffs do not state a viable claim in Count I.
8

place of public accommodation, and that the plaintiff was denied
accommodation because of her disability.

Arizona ex rel. Goddard

v. Harkins Amusement Enters., Inc., 603 F.3d 666, 670 (9th Cir.
2010).

In this case, there is no dispute that the defendants are

covered by Title III of the ADA or that Colleen is a qualified
individual with a hearing disability.
In the complaint, the plaintiffs listed actions, lettered a
through h, that they alleged violated Title III of the ADA,
including the failure to communicate effectively and failure to
provide auxiliary aids for communication.

The defendants

addressed those allegations in the motion for summary judgment.
The plaintiffs do not object to summary judgment as to the
defendants’ actions other than a failure to provide effective
communication and auxiliary aids.

Therefore, the plaintiffs have

admitted the facts presented by the defendants for summary
judgment on the unchallenged actions, LR 56.1(b), and have waived
their objections to summary judgment as to those actions, see
Sands v. Ridefilm Corp., 212 F.3d 657, 663 (1st Cir. 2000);
Cappalli v. BJ’s Wholesale Club, Inc., 904 F. Supp. 2d 184, 195
n.7 (D.R.I. 2012).

See also Higgins v. New Balance Athletic

Schoes, Inc., 194 F.3d 252, 260 (1st Cir. 1999); United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

Therefore, based on the

undisputed facts, the defendants are entitled to summary judgment
on the actions listed as a, b, e, and h in Count I.
The plaintiffs’ claim in Count I is that DHMC and Dr.
Saunders violated the ADA by failing to communicate effectively

9

with Colleen and failing to provide needed auxiliary aids for
communication after the surgery on September 16, 2011.5
Discrimination under Title III includes a defendant’s failure to
“take such steps as may be necessary to ensure that no
individual with a disability is . . . treated differently than
other individuals because of the absence of auxiliary aids and
services . . . .”

§ 12182(b)(2)(iii).

Regulations promulgated

by the Department of Justice implementing Title III require
public accommodations to provide “appropriate auxiliary aids and
services where necessary to ensure effective communication with
individuals with disabilities.”

28 C.F.R. § 36.303(c)(1).

“The

type of auxiliary aid or service necessary to ensure effective
communication will vary in accordance with the method of
communication used by the individual; the nature, length, and
complexity of the communication involved; and the context in
which the communication is taking place.”

For that purpose,

places of public accommodation are directed “to consult with
individuals with disabilities whenever possible to determine what
type of auxiliary aid is needed to ensure effective
communication.”

§ 36.303(c)(1)(ii).

The plaintiffs argue that Dr. Saunders did not communicate
effectively with Colleen.

They contend that an ASL interpreter

5

To the extent the plaintiffs may have intended to allege
that the defendants provided ineffective communication during the
May 8, 2013, appointment, they have not argued that issue in
response to the motion for summary judgment. Therefore, it is
waived.
10

was required at the meetings after surgery to communicate Dr.
Saunders’s message.

The record does not support the plaintiffs’

theory.
The ADA requires reasonable accommodations for persons with
disabilities, to provide them “an even playing field,” but does
not require that disabled persons be treated preferentially or
necessarily be given the accommodation of their choice.
Goldblatt v. Geiger, 867 F. Supp. 2d 201, 210 (D.N.H. 2012)
(quoting Felix v. N.Y.C. Transit Auth., 324 F.3d 102, 107 (2d
Cir. 2003)); Abbott v. Town of Salem, 2008 WL 163043, at *6
(D.N.H. Jan. 16, 2008).

Unless the need for accommodation is

obvious, the requirement for reasonable accommodation usually
does not arise unless an accommodation is requested.

Kiman v.

N.H. Dep’t of Corrs., 451 F.3d 274, 283 (1st Cir. 2006).
As an otolaryngologist, Dr. Saunders is familiar with the
effects of deafness on his patients.

In addition, Dr. Saunders

has focused specifically on communication issues due to hearing
impairment with his own patients and in a sign language program
for hearing impaired persons he founded in Nicaragua in 2006.
Dr. Saunders also co-founded the Coalition for Global Hearing
Health and serves on a consortium within the World Health
Organization to advise on issues related to hearing loss.

By

training, experience, and interest, Dr. Saunders is aware of the
communication barriers experienced by those with hearing
impairment.

11

Dr. Saunders knew that when he met with Colleen after
surgery she would be deaf, under the effects of anesthesia, and
somewhat limited in seeing without glasses.

Dr. Saunders planned

to use the pad of paper and to write in large print to
accommodate Colleen’s deafness and sight problems.

It is

undisputed that Dr. Saunders did not know until his post-surgery
meeting with Ruth and Debra that Colleen knew ASL.

Debra and

Ruth did not ask Dr. Saunders to use an ASL interpreter to
communicate with Colleen.6
The effects of anesthesia were not part of Colleen’s
disability.

The plaintiffs have not shown or even suggested that

other post-operative patients would have been less groggy.
Although the plaintiffs fault Dr. Saunders for talking with
Colleen while she was under the effects of anesthesia, they do
not link that criticism to Colleen’s deafness.

Therefore, the

effects of anesthesia are not part of the ADA claim.
Colleen concedes that because of being groggy she would not
necessarily have understood an ASL interpreter any better than
Dr. Saunders’s notes on the pad.

Therefore, the plaintiffs

cannot show that the lack of an ASL interpreter caused Colleen to
be excluded from communications with Dr. Saunders.

See, e.g.,

Martin v. Halifax Healthcare Sys., Inc., 2014 WL 1415647, at *4
(M.D. Fla. Apr. 11, 2014).

6

Debra and Ruth communicated with Colleen before and after
surgery through lip reading, writing, and a bit of sign language
that Debra knows.
12

In addition, Dr. Saunders’s notes were not the source of the
information that caused Colleen concern.

Dr. Saunders wrote that

everything was OK except that he was not able to do the new
implant and had to take out the old implant.

When Colleen asked

Dr. Saunders about an infection at the second meeting, he
reassured her that she did not have an infection and told her
that she previously had been treated successfully for a
cholesteatoma.

Dr. Saunders never wrote that Colleen might die

nor did his notes even imply a life-threatening situation.
The record suggests that Debra told Colleen about the
additional information Dr. Saunders gave Debra and Ruth during
their post surgery meeting.7

Dr. Saunders provided Debra and

Ruth more detail about the cholesteatoma, including a concern
about the serious potential for harm if the cholesteatoma were
not completely removed.

That information may have caused Colleen

to think that she had an infection and to worry that if the
cholesteatoma were not properly treated she could die.
The plaintiffs assert that the defendants violated the ADA
by failing to ask what language Colleen understood best and what
accommodations would work best at the time of the post-surgery
meeting.

The record establishes that Colleen had always

7

At her deposition, Colleen attributed that information to
Dr. Saunders, but Dr. Saunders’s notes on the pad of paper do not
include that information. Debra testified at her deposition that
Dr. Saunders did not explain those details to Colleen and that
she, Debra, told Colleen the additional details. Ruth stated at
her deposition that Colleen was concerned about the time she
would be completely deaf before the surgery for the new implant.
13

communicated with medical providers by lip reading and continued
to communicate with her sisters by lip reading and writing.8
Although Debra and Ruth informed Dr. Saunders and Stella McHugh
at the conclusion of their post-surgery meeting that Colleen knew
ASL, the plaintiffs have not shown that it would have been
possible to get an ASL interpreter for Dr. Saunders’s meeting
with Colleen, which occurred just minutes later.
More importantly, Colleen testified at her deposition that
she would not have understood an ASL interpreter any better than
Dr. Saunders’s notes because she was groggy from anesthesia.
Colleen also said that when she left the hospital she understood
the results of the surgery and that a second surgery would be
necessary in six months for the new cochlear implant.
Based on the undisputed facts, the plaintiffs have not shown
that Dr. Saunders’s plan to accommodate Colleen’s deafness during
the post-surgery meetings by large writing on a pad of paper was
unreasonable or ineffective.

They also have not shown even

disputed facts to show that the defendants violated the ADA by
failing to provide an ASL interpreter or any other auxiliary aid
during the post-surgery meetings.

8

Despite Debra’s belief expressed in her deposition that Dr.
Saunders expected her to participate in communicating with
Colleen, there is no evidence that Dr. Saunders attempted to use
Debra or Ruth as interpreters during his meetings with Colleen.
Debra acknowledges that Dr. Saunders told Debra and Ruth that he
would explain the surgery results to Colleen. Dr. Saunders said
in his affidavit that he did not ask Debra or Ruth to explain the
surgery results or to act as interpreters.
14

Therefore, the defendants are entitled to summary judgment
on Count I.

B.

Count II - Rehabilitation Act
In Count II, the plaintiffs allege that by the actions

listed in Count I the defendants also violated § 504 of the
Rehabilitation Act.

Section 504 provides that “[n]o otherwise

qualified individual with a disability in the United States, as
defined in section 705(20) of this title, 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. § 704(a).

When the plaintiff

claims violation of section 504 due to a failure to accommodate a
known disability, the plaintiff need not show intentional
discrimination or discriminatory animus.

Ruskai v. Pistole, ---

F.3d ---, 2014 WL 7272770, at *14-*15 (1st Cir. Dec. 23, 2014);
Enica v. Principi, 544 F.3d 328, 339 (1st Cir. 2008).
Generally, the ADA and the Rehabilitation Act are governed
by the same standards. D.B. ex rel. Elizabeth B. v. Esposito, 675
F.3d 26, 39-40 (1st Cir. 2012); Enica, 544 F.3d at 338, n.11.
More specifically, the same standards apply to claims under Title
III of the ADA and § 504 of the Rehabilitation Act.

Argenyi v.

Creighton Univ., 703 F.3d 441, 445 (8th Cir. 2013); Kendall v.
Shinseki, 2014 WL 6469433, at *3 (M.D. Fla. Nov. 16, 2014).

For

the reasons explained above in Part A, addressing the plaintiffs’

15

claim under Title III of the ADA, the plaintiffs have not shown a
triable issue as to the same claim under the Rehabilitation Act.
Therefore, the defendants are entitled to summary judgment
on Count II.

C.

Counts III and IV - Title V of the ADA
In Count III, the plaintiffs assert that the defendants

violated section 503(a) of Title V of the ADA by retaliating
against Colleen for her efforts to end discrimination when they
threatened to stop providing her treatment because she asserted
her rights under the ADA.

In Count IV, the plaintiffs assert

that the defendants violated section 503(b) of Title V by forcing
her to sign a waiver of her rights under the ADA in retaliation
for asserting her rights.

The defendants move for summary

judgment on both claims.
Title V “prohibit[s] retaliation against any person, whether
disabled or not, for opposing disability-based discrimination
made unlawful by [the ADA].”
at 40.

D.B. ex rel. Elizabeth B., 675 F.3d

“To make out a prima facie case of retaliation . . ., a

plaintiff must show that (1) he or she engaged in protected
conduct, (2) he or she was subjected to an adverse action by the
defendant, and (3) there was a causal connection between the
protected conduct and the adverse action.”
16

Id. at 41.

“Once a

plaintiff makes such a showing, the burden shifts to the
defendant to articulate a legitimate, non-retaliatory explanation
for the adverse action.”

Id.

If that burden is met, the

plaintiff must show that the explanation is a pretext because the
defendant was “motivated by a retaliatory animus.”

Id.

In support of the Title V claims, the plaintiffs say that
there are two sides to the events of May 8, 2013.

They claim

retaliation because there was no interpreter when Colleen arrived
for her May 8 appointment.

They further assert that the

alternative aid, DeafTalk, did not work.

They also assert that

Colleen did not voluntarily write the note agreeing to treatment
without an interpreter and instead felt coerced by Stella McHugh.
Colleen declined an interpreter for the May 8 appointment
because she planned to have her sister with her.

She only asked

for an interpreter when she arrived for the appointment.

Because

an interpreter was not then available, Stella McHugh offered to
use an alternative aid, Deaf Talk.

McHugh had Colleen write and

sign a note that she agreed to proceed with the appointment
without a live interpreter.

Colleen chose to proceed with

DeafTalk to avoid the inconvenience of rescheduling.
The plaintiffs provide no evidence that a live interpreter
was not provided at the May 8 appointment in retaliation against
Colleen for previously asking for an interpreter.
17

Instead, the

evidence shows that Colleen declined an interpreter, which was
offered for the appointment, and then changed her plans without
notifying DHMC.

The plaintiffs have not shown that the note was

required in retaliation for Colleen’s request for a live
interpreter, nor have they shown that Colleen was coerced into
signing the note.
Therefore, the defendants are entitled to summary judgment
on Counts III and IV.

D.

Count V - Associational Discrimination in Violation of the

ADA and the Rehabilitation Act
In Count V, the plaintiffs alleged that the defendants
discriminated against Debra and Ruth because of Colleen’s
disability in violation of the ADA and the Rehabilitation Act by
forcing them to act as interpreters during the post-surgery
meetings with Dr. Saunders.

The plaintiffs cited Loeffler v.

Staten Island Univ. Hosp., 582 F.3d 268 (2d Cir. 2009), in the
complaint to support the claim.9

In their objection to summary

judgment, however, the plaintiffs provide no developed argument
to support Count V.

9

The circumstances in Loeffler are entirely different from
the circumstances in this case. Therefore, Loeffler does not
support the plaintiffs’ claim.
18

Persons who are not themselves disabled have standing to
bring a claim under the ADA “only if she was personally
discriminated against or denied some benefit because of her
association with a disabled person.”

McCullum

v. Orlando Reg’l

Healthcare Sys., Inc., 768 F.3d 1135, 1142 (11th Cir. 2014)
(citing 42 U.S.C. § 12182(b)(1)(E)).

The Rehabilitation Act

allows claims by non-disabled persons who suffer injury because
they were subjected to conduct proscribed by the Act.
768 F.3d at 1142 (citing 29 U.S.C. § 794a(a)(2)).

McCullum,

To be

actionable, the non-disabled persons themselves must “establish[]
an injury causally related to, but separate and distinct from, a
disabled person’s injury under the statute.”

Loeffler, 582 F.3d

at 280.
The record does not support the plaintiffs’ theory that
Debra and Ruth were forced to act as interpreters for Dr.
Saunders.

There is no evidence that Ruth explained anything to

Colleen during the two post-surgery meetings.

To the extent

Debra participated in the discussion, she did so of her own
volition, not because Dr. Saunders required her to do so.
Therefore, the defendants are entitled to summary judgment
on Count V.

19

E.

State Law Claims
In their complaint, the plaintiffs allege claims for breach

of contract, negligence, negligent supervision and training,
intentional infliction of emotional distress, violation of RSA
151:21, violation of RSA 358-A, violation of RSA 354-A,
“Respondeat Superior,” and enhanced compensatory damages.

The

defendants move for summary judgment, pointing out the legal and
factual deficiencies of the claims.

In response, the plaintiffs

say only that there are factual disputes related to the state law
claims that must be determined by a jury.
The plaintiffs’ response is insufficient to raise any
triable issue as to the state law claims.

The defendants have

shown that based on the undisputed facts, they are entitled to
judgment as a matter of law on the state law claims, Counts VI
through XIII.

Conclusion
For the foregoing reasons, the defendants’ motion for
summary judgment (document no. 19) is granted.

Summary judgment

is entered in favor of the defendants on all of the plaintiffs’
claims.

20

The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.

____________________________
Joseph A. DiClerico, Jr.
United States District Judge
January 21, 2015
cc:

Peter J. Bauer, Esq.
Peter W. Mosseau, Esq.
Kirk C. Simoneau, Esq.

21