Van Vorst et al v. Lutheran Healthcare
Filing
124
ORDER denying 108 Motions for Judgement as a Matter of Law and for a New Trial Ordered by Judge Edward R. Korman on 12/14/2020. (Attachments: # 1 Chamber Copy Proposed Jury Instructions) (Ballew, Steven)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
NOT FOR PUBLICATION
ANDREA L. VAN VORST, KENNETH
MAHNKEN, YVETTE SOTO, and
MARTIN J. WEINER,
Plaintiffs,
MEMORANDUM & ORDER
15–CV–1667 (ERK) (PK)
– against –
LUTHERAN HEALTHCARE d/b/a
LUTHERAN MEDICAL CENTER,
Defendant.
KORMAN, J.:
Andrea Van Vorst, Kenneth Mahnken, Yvette Soto, and Martin Weiner, each
of whom is deaf, filed suit against Lutheran Healthcare (“Lutheran”) for its alleged
failure to accommodate their disability in violation of (i) Title III of the Americans
With Disabilities Act; (ii) Section 504 of the Rehabilitation Act; (iii) the New York
State Human Rights Law; and (iv) the New York City Human Rights Law (“City
Law”). If Lutheran were liable under the City Law, it would entitle plaintiffs to all
the relief they sought. On consent of the parties, only plaintiffs’ cause of action
under the City Law was submitted to the jury, which found that Lutheran was not
liable.
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The relevant language of the City Law provides that “it is an unlawful
discriminatory practice” for a covered entity “not to provide a reasonable
accommodation to enable a person with a disability to . . . enjoy the . . . rights in
question. . . .” N.Y.C. Admin. Code § 8–107(15). Here, the protected right in
question is the right to the “full and equal enjoyment, on equal terms and conditions,
of any of the accommodations, advantages, services, facilities or privileges of the
place or provider of a public accommodation.” Id. § 8–107(4)(1)(a).
After the jury returned its verdict for Lutheran and judgment was entered,
Plaintiffs filed a timely motion for judgment as a matter of law pursuant to Fed. R.
Civ. P. 50 (“Rule 50”) on the ground that “the evidence cannot support a verdict that
[p]laintiffs could effectively communicate at every point of their medical care,” and
they “were treated ‘less well’ when they received over 70 consent forms in a
secondary language—without the benefit of an American Sign Language
interpreter.” Pl. Br. at 1. In the alternative, plaintiffs move for a new trial pursuant
to Fed R. Civ. P. 59 (“Rule 59”) on the grounds that one sentence of the jury
instruction, taken out of context, was erroneous and that the verdict was against the
weight of the evidence. Id. at 1–2.
BACKGROUND
Each of the plaintiffs is deaf, and each received medical care at Lutheran on
multiple occasions between 2012 and 2016. During that period, Lutheran generally
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relied on Video Remote Interpreting (“VRI”), a videoconferencing system, to allow
off–site interpreters to interpret deaf patients’ American Sign Language (“ASL”)1
into English for Lutheran personnel and the personnel’s English into ASL for the
deaf patients. The overall reliability of the VRI technology was disputed at trial, but
the technology occasionally failed due to technical difficulties. When that occurred,
plaintiffs communicated with their doctors and other Lutheran personnel in English
through lipreading and by reading and writing notes. The principal focus of
plaintiffs’ motion turns on the process used to obtain their consent to medical
procedures and whether they were capable of understanding information that was
conveyed to them prior to signing consent forms.
Before addressing the plaintiffs’ legal argument, an overview of the consent
process at Lutheran and plaintiffs’ ability to understand and read English is
necessary. The evidence regarding the consent process was described by Marina
Chilingarova, a former administrator at Lutheran, based on her own personal
knowledge and experience. Chilingarova testified that usually the doctor or nurse
practitioner who had direct contact with the patient would obtain the patient’s
informed consent and would explain the procedures, risks, and benefits to the
1
ASL is “the primary language of many North Americans who are deaf and is one
of several communication options used by people who are deaf or hard-of-hearing.”
Noll v. Int’l. Bus. Mach. Corp, 787 F.3d 89, 99 n.1 (2d Cir. 2015) (Sack, J.
dissenting) (citation omitted). It is a language that “employs signs made by moving
the hands combined with facial expressions and postures of the body.” Id.
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patient. Trial Tr. at 742:11–15. If the patient had limited English proficiency, that
explanation would be provided through an interpreter. Id. at 742:16–19. The
interpreter would “be interpreting the words of the provider” and not “every single
word” on the consent form. Id. at 673:6-15. Then it would be up to the doctor to
determine whether or not the patient understood the procedure. Id. at 742:24–743:2.
Usually, for deaf patients, the “interpreting of the risks and benefits [of a procedure]
would happen . . . through video remote interpreting.” Id. at 743:20–25. Then, “after
that process . . . the patient would be asked to actually sign the informed consent
form.” Id. at 744:5–8. Certain consent forms, such as “Consent for Administration
of Blood or Blood Components” and “Permission for Operation and/or Procedure
and Anesthesia,” ask physicians at Lutheran to certify that they “have explained to
the consenting party, the nature, purpose, benefits, risks of, and alternatives to” to
the proposed procedures. Indeed, there are numerous examples in the consent forms
that plaintiffs attached to their motion where doctors made such certifications even
though the forms were not signed by an interpreter or translator. See, e.g., ECF No.
109–1 at 1, 13–15, 16, 18–19; ECF No. 109–2 at 3–4, 13–14, 16–17, 30–32; ECF
No. 109–3 at 2; ECF No. 109–4 at 3–5.
Chilingarova testified that she was also “part of the training that . . . would
encourage providers to” ask patients to “repeat whatever the plan [was] just to make
sure that [patients] really understood and that the interpretation was correct,” a
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process known as “teachback.” Trial Tr. at 743:2–9. Chilingarova “encourage[ed]
providers to [engage in teachback] when [seeking] informed consent [from] patients
who may be deaf [or] had limited English proficiency[,] just to be sure that they
understood the interpretation.” Id at 743:10–14.
Of the approximately 150 languages spoken by patients of Lutheran, consent
forms were only available in the five languages most spoken by patients—English
(which, from the evidence described below, a jury could have reasonably concluded
plaintiffs understood), Spanish, Chinese, Russian, and Arabic. Trial Tr. at 680:10–
684:9. For those patients who could only read other languages, an interpreter would
be made available “just to give the essence of what the form was saying.” Trial Tr.
at 673:6–15. Chilingarova testified that all interpreters, regardless of language,
including ASL interpreters who interpreted over VRI, were instructed not to interpret
verbatim every single word on a consent form. Id.
Because of its importance to plaintiffs’ motions, I set forth in some detail the
evidence at trial that demonstrated each plaintiff’s ability to understand and
communicate with their physicians in English and provide informed consent to
medical procedures at Lutheran. I add this brief preface. Plaintiffs’ consent forms
were admitted as part of a document dump of their medical records. A review of the
trial record shows that only three plaintiffs—Weiner, Van Vorst, and Mahnken—
testified about their understanding of four consent forms out of the 70 on which the
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plaintiffs’ motions are based. Soto was not asked about signing any consent forms.
Although they testified about signing other forms, plaintiffs were not asked whether
they understood those forms or why they would sign those forms without
understanding them. The omission of this testimony is puzzling in light of my charge
to the jury on damages, which plaintiffs requested, that it must “decide the issue of
damages separately as to each plaintiff.” ECF No. 88 at 15 (emphasis in original).
I only discuss here the four forms to which Weiner, Van Vorst, and Mahnken
testified about their understanding, preceded by the evidence regarding their
understanding of English and ability to communicate in that language by reading,
writing, and lipreading.
Martin Weiner: Neither Weiner’s parents nor his brother knew ASL and
Weiner communicated with them by writing on paper. Trial Tr. at 576:25–577:4.
As with all the other plaintiffs, when Weiner went to school, his classes were taught
in English and not ASL. Id. at 577:5–12. Weiner enjoys reading about politics and
sports in the New York Post, reads magazines about model airplanes, and watches
television with closed captions “almost every day.” Id. at 580:14–581:12. He also
worked as a printer, which required him to read backwards in order to set type. Id.
at 577:13–578:4.
Despite Weiner’s testimony that he only understands “very simple” English
words, id. at 554:23–25, and what turned out to be the less than credible testimony
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of plaintiffs’ expert, Judy Shepard–Kegl, that he only has a third–to–fourth–grade
English reading level, id. at 186:7–18, Weiner was able to read the 106–page
transcript of his deposition in this case, complete a detailed errata sheet, and make
substantive comments about his testimony. Among the many changes Weiner made
that indicated his ability to read and understand English included correcting the
transcript to indicate that a person he was speaking about was a “deputy VP,” as
opposed to an “assistant vice president,” and that the phrase “be restless” should be
used instead of “probably go mad.” Id. at 651:10–17. He also corrected the
improper usage of the homophones “sun” and “son.”
Id. at 651:23–652:2.
Moreover, in a separate note attached to his deposition transcript, Weiner provided
explanations for some of his deposition testimony that he wanted to clarify but could
not include on the errata sheet because they were substantive comments instead of
line edits. ECF No. 51–9 at 108. As he explained in a note written in his own hand:
“I can’t put them down on errata sheet because there are errors and corrections on
errata sheet only.” Id. This note and errata sheet were used to impeach Weiner,
which devasted his credibility and the credibility of plaintiffs’ expert who testified
that each of the plaintiffs had between a first and fourth grade reading level. Trial
Tr. at 644–45, 647–53. The jury requested Weiner’s deposition errata sheet during
deliberations. Id. at 1185:4–12.
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Plaintiffs’ attorney did not show Weiner any consent forms during direct
examination. On cross examination, Weiner claimed that he signed a consent form
for a toenail removal procedure without understanding its contents. Id. at 625:17–
626:2. Yet Weiner had testified at his deposition that a nurse named Stephanie
communicated with him in ASL to explain that his toenail was going to be removed.
Id. at 624:4–12. When confronted with this testimony, Weiner said that he did not
remember so testifying and claimed that he did not understand “five percent” of his
deposition testimony when he read it, which was unlikely given the corrections and
written comments he made with respect to the deposition transcript described above.
Id. at 624:15–17. After testifying on cross that he did not remember whether a nurse
communicated with him in ASL prior to his signing the consent form, Weiner
changed his story and admitted that a nurse wrote down on a piece of paper “Remove
Nail” to which he responded “Ok, I consent to that.” Id. at 623:16–22.
In addition to this consent form, Weiner testified that he signed discharge
papers without an interpreter present after being prescribed an antibiotic at the
emergency room for a urinary tract infection. Id. at 568:1–5. He claimed that ten
days after his discharge he was still in pain and went to another hospital for
treatment. Id. at 568:6–11. Weiner testified that his doctor at Lutheran never
explained to him what he should do if his condition did not improve. Id. at 569:3–
11. On cross-examination, Weiner was confronted with the discharge papers he
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signed, which recommended that he follow up with his primary physician within two
days and instructed him to return to the emergency room if his symptoms worsened.
Id. at 581:16–583:10. Weiner responded that Lutheran “gave [him] lots of paper,
and [he] just . . . signed without the understanding of what was being said” because
he was “not able to read it all.” Id. at 583:11–13.
Andrea Van Vorst: When Van Vorst was in public elementary school up
through eighth or ninth grade, her teachers did not teach her in ASL. Trial Tr. at
79:11–80:7. Rather, she learned to read lips and to read and write in English. Id. at
79:19–80:3. Her parents and brother never learned ASL, and she communicated
with them by writing in English. Id. at 80:8–80:15. When she started her career as
an encoder at a bank, Van Vorst was never provided with an ASL interpreter, and
she communicated with her boss through lipreading and writing in English. Id. at
80:18–81:25. In 2016, Van Vorst had a home health aide who did not know ASL
and who communicated with her by writing back and forth in English. Id. at 82:3–
21. Van Vorst watches television and reads the closed captions in English. Id. at
85:10–15. She has her driver’s license and passed a written test—in English—to get
her permit. Id. 85:16–24.
Several of Van Vorst’s doctors testified that they have been able to
communicate with her for years without the use of an ASL interpreter. Id. at 234–
38, 781–82, 795–96. Van Vorst’s primary care physician, Dr. Tavrovskaya, testified
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that she and Van Vorst occasionally communicated with one another via handwriting
when VRI was not working. Id. at 234:4–238:23. Indeed, by writing in English,
Van Vorst was able to inform Dr. Tavrovskaya that she had been seeing a social
worker for depression and responded to Dr. Tavrovskaya’s questions about her
depression such as whether she was feeling sad, had problems concentrating, lost
weight, or had a healthy appetite. Id. at 235:17–236:6. Van Vorst’s social worker,
who counseled her at Lutheran, corroborated Dr. Tavrovskaya’s testimony about
Van Vorst’s treatment for depression and testified that she was able to use VRI to
effectively communicate with Van Vorst without ever experiencing technical
difficulties. Id. at 858:4–868:8, 873:4–7.
Van Vorst’s gastroenterologist, who worked part time at Lutheran and part
time in private practice, began treating Van Vorst in 2011. Id. at 534:4–535:7. He
testified that Van Vorst declined interpretive services and communicated with him
through lip reading and writing. Id. at 498:11–15. He also testified that she never
complained about his treatment of her and expressed gratitude for the care that he
was providing. Id. at 535:13–17.
Van Vorst’s surgeon, who was in private practice when he began treating Van
Vorst in the 1990s and whom Van Vorst credited with saving her life, testified that
in his decades treating her, she never asked for an interpreter and she never told him
that she didn’t understand him. Id. at 126:20–23; 781:21–783:11. Van Vorst even
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wrote a note to her primary care physician praising her surgeon’s services, which
read: “Yesterday I saw Dr. Shahin. Very good to me. I know him for many years.
Start 18 years old. Still now.” Id. at 1045:18–1046:11.
Van Vorst’s podiatrist, Dr. Lucido, who also began treating her when he was
in private practice, testified that in the more than ten years and over 240 visits that
she was his patient, Van Vorst never asked for an ASL interpreter. Dr. Lucido
explained how he communicated with Van Vorst. Specifically, he had a dry erase
board in his treatment room, which had diagrams of the foot and ankle, and he would
draw pictures to explain pathology and treatment. If she had any questions, Van
Vorst would communicate with Dr. Lucido, and he with her, by writing back and
forth to each other on a notepad. Id. at 795:1–797:10.
Van Vorst testified about signing two consent forms without understanding
their contents. The first consent form related to removal of her gallbladder. Van
Vorst testified that she was unaware that her doctors had told her that she needed
gallbladder surgery and did not know that her gallbladder was removed until her
deposition in this case. Id. at 64:17–68:15, 140:6–141:17. She also testified that she
had no marks on her body related to her gallbladder being removed, but had several
marks related to hernias. Id. at 64:23–65:2. Yet the Complaint in this case, which
was filed before Van Vorst was deposed and a portion of which was read to the jury,
specifically alleges that she underwent “open cholecystectomy surgery”—the
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medical term for gallbladder removal. Id. at 816:22–817:9. And the surgeon who
performed the procedure testified that he performed open gallbladder surgery, as
opposed to a laparoscopic removal, which left a four-to-five inch scar under her rib.
Id. at 786:1–22. Van Vorst’s gastroenterologist testified that he recommended to
her that she consult with a surgeon about possibly removing her gallbladder and
stated that Van Vorst indicated to him that she understood what he was
recommending. Id. at 497:16–501:14. Indeed, she went to see the surgeon her
gastroenterologist recommended who testified that he explained to her that she
needed to have her gallbladder removed, and he had Van Vorst repeat back to him
what he was telling her to make sure that she understood. Id. at 780:7–783:11. Her
surgeon was also present at Lutheran when Van Vorst signed the consent form for
her gallbladder surgery, and he testified that he made sure she understood the
consequences of the surgery before she signed the form. Id. at 784:3–785:23. The
surgeon certified on the consent form Van Vorst signed that he “explained . . . the
nature, purpose, benefits, risks of, and alternatives to” the gallbladder surgery to her.
ECF No. 109–1 at 18.
The second consent form that Van Vorst claimed to have signed without
understanding related to a procedure on her foot. Specifically, Van Vorst had a
severe infection and was told by her podiatrist, Dr. Lucido, to go to the emergency
room because she needed antibiotics administered intravenously and to have dead
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tissue surgically removed from her foot. She claimed that she left Lutheran prior to
the surgery being performed, after someone on Lutheran’s staff allegedly made a
sawing motion, which she claimed to have understood to mean that her doctor was
going to amputate her foot. Trial Tr. at 70:19–74:22. Despite Van Vorst’s testimony
that she believed her foot was going to be amputated during surgery, Dr. Lucido,
with whom she had consulted on more than 240 occasions without requesting an
interpreter, testified that he informed her about the nature and consequences of the
procedure in his office and again at Lutheran and that Van Vorst indicated that she
understood him based on her responses to his explanation. Id. at 796:4–800:3.
Subsequently at Lutheran, “during the signing of the consent form [Van Vorst]
didn’t like the language that [was] used to explain risks and alternatives of the
surgery and she didn’t want to sign the consent and she left.” Id. at 799:17–20.
Specifically, she did not like the fact that one of the possible risks of surgery was
loss of limb. Id. at 799:22–800:2. A couple days later, Van Vorst visited Dr.
Lucido’s office, where he was able to successfully perform the procedure on her foot
because the antibiotic I.V. she received at Lutheran improved her overall condition,
so that he could perform the surgery outside the hospital. Id. at 800:5–11. Van Vorst
was evasive when asked questions about whether Dr. Lucido had recommended that
she go to Lutheran for the operation on her foot and whether Dr. Lucido had
successfully performed the operation in his office after she left the hospital. Id. at
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75:9–76:13, 132:3-133:20.
Van Vorst’s equivocation and asserted failure to
remember raised significant issues related to her credibility and provided a
reasonable basis for the jury to conclude that she did not undergo the procedure
precisely because she understood the risks of surgery.
Kenneth Mahnken: Every month when he visits his primary physician, who
is not affiliated with Lutheran, Mahnken communicates with her without an ASL
interpreter by reading her lips. Id. at 344:24–346:16. Mahnken reads magazines
and newspapers and testified at a deposition that he can read the New York Post
“pretty good.” Id. at 307:5–14, 344:21–23. He also watches history and true crime
shows on television with closed captions.
Id. at 307:15–21.
Mahnken
communicates with his parents, siblings, and uncle primarily through lipreading and
writing. Id. at 321:1–25. His ex-girlfriend, whom he also described as his best friend
and who sometimes accompanied him on his visits to Lutheran, does not speak ASL,
and he communicated with her through lipreading. Id. at 322:8-22. Mahnken also
uses email to communicate with people and orders items online through eBay. Id.
at 344:2–7. When he worked at a radiator store, none of Mahnken’s co-workers
were deaf, and he communicated with them through lipreading. Id. at 323:20–324:3.
Mahnken testified about signing one consent form without understanding its
contents.
Plaintiffs’ counsel showed him a consent form for a kidney stone
procedure that a Dr. Calciano performed on him on August 23, 2012. The form was
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unsigned by an interpreter, and Mahnken testified that, when he signed it, he did not
understand its contents. Trial Tr. at 318:1–320:1. But, on cross examination,
defense counsel showed Mahnken a consent form for the same exact procedure,
which indicated that ASL interpretive services were provided. Id. at 338:1–14. And
Mahnken admitted that he believed there was someone from the office who
communicated with him in ASL after defense counsel confronted him with that
version of the consent form. Id. at 342:6–23. Another troubling aspect of this case
occurred when I noticed Weiner communicating with Mahnken in sign language as
he testified. When I noticed this, plaintiffs’ counsel was directed to instruct their
clients not to communicate with witnesses while they were on the stand. Id. at
340:2–341:2.
Yvette Soto: Neither Soto’s parents nor her siblings understand ASL, and
she communicates with them through gestures. Id. at 405:14–406:7. Soto has held
a number of jobs where she was required to communicate with people who did not
understand ASL and she likewise communicated with them through gestures. Id. at
415:6–417:4. One of her jobs was at a library, which required her to alphabetize
books. Id. at 416:11–13. Soto’s primary care physician testified that he has
communicated with her through writing and that she confirmed her understanding
of what he told her by responding appropriately to his questions. Id. at 478:21–
479:6, 480:20–481:10, 482:16–483:14. Soto did not testify about whether she
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understood any of the consent forms that she signed and which were admitted into
evidence as part of a document dump of medical records.
***
Against this backdrop I turn to the legal issues raised by plaintiffs’ motions
under Rule 50 for a judgment notwithstanding a verdict and for a new trial under
Rule 59.
ANALYSIS
A.
Rule 50 Motion
Under Rule 50, “[a] judgment notwithstanding the verdict may only be
granted if there exists such a complete absence of evidence supporting the verdict
that the jury's findings could only have been the result of sheer surmise and
conjecture, or the evidence in favor of the movant is so overwhelming that
reasonable and fair minded persons could not arrive at a verdict against it.”
Wiercinski v. Mangia 57, Inc., 787 F.3d 106, 112 (2d Cir. 2015) (internal quotation
and alteration omitted). The moving party bears a heavy burden, especially where,
as here, “the jury has deliberated in the case and actually returned its verdict in favor
of the non–movant.” Cash v. Cty. of Erie, 654 F.3d 324, 333 (2d Cir. 2011) (internal
quotation omitted).
Plaintiffs’ motion for judgment notwithstanding the verdict is based on the
single ground that they were treated “less well” than other patients. Pl. Br. at 8–9.
This claim fails for numerous reasons. First, the less well standard on which they
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rely is based on a Guidance issued by the New York City Commission on Human
Rights in 2018, years after they were treated at Lutheran.2 Pl. Br. at 9 (citing N.Y.C.
Commission on Human Rights, Legal Enforcement Guidance on Discrimination on
the Basis of Disability) (hereinafter the “Guidance”). Such Guidance would have
lacked the force of law even if it was in effect during the relevant period. See Suffolk
Reg’l Off-Track Betting Corp. v. N.Y. Racing & Wagering Bd., 11 N.Y.3d 559, 571–
72 (2008). More significantly, even if the Guidance was treated as the equivalent of
a statute, it could not be applied retroactively as a basis for imposing legal liability
on Lutheran (as distinguished from prospectively). Nor could other portions of the
Guidance first adopted in 2018 upon which plaintiffs rely, see Guidance at 64–65,
be so applied. Indeed, both the Supreme Court and the New York Court of Appeals
have held that a predicate for such retroactive application of a legislative enactment
depends on a clear indication of legislative intent that it be so applied. See Landgraf
v. USI Film Prods., 511 U.S. 244, 268 (1994); Matter of Regina Metro. Co., LLC v.
N.Y. State Div. of Hous. & Cmty. Renewal, No., 35 N.Y.3d 332, 365–69 (2020)
(applying holding in Landgraf). And this is particularly true where, as here, the
2
After the parties submitted their briefing for the present motion, I asked them to
advise me of the date when the Guidance was first issued because I had trouble
obtaining that information. It is undisputed that the first version of the Guidance
was issued in June 2018. See ECF Nos. 122, 123. See also Susan Gross Sholinsky
& Nancy L. Gunzenhauser Popper, NYC Commission on Human Rights Issues
Guidance on Employers’ Obligations Under the City’s Disability Discrimination
Laws, NAT’L L. REV. (Sept. 17, 2018).
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plaintiff seeks punitive damages predicated on the retroactive application of the
Guidance. See Landgraf, 511 U.S. at 281; Regina Metro. Co., 35 N.Y.3d at 384–85.
Nevertheless, unaware of the effective date of the Guidance, and over the
objection of Lutheran, I gave the jury the following instruction:
[Lutheran] was required to make reasonable accommodations to
enable disabled persons to enjoy the benefits that [Lutheran]
normally makes available to its patients.
[Lutheran]
discriminated against a plaintiff if, because of a plaintiff’s
disability, [Lutheran], either directly or indirectly, treated the
plaintiff less well by not providing him or her with any
appropriate auxiliary aids and services that were necessary to
ensure that he or she could effectively communicate with
[Lutheran’s] physicians and staff in order to participate in his or
her medical care.
Trial Tr. at 1122:5–14 (emphasis added).
The jury’s verdict indicated that it found that Lutheran made reasonable
accommodations to enable plaintiffs to enjoy the benefits that it normally made
available to its patients and that they were provided with appropriate aids and
services that were necessary to ensure that they could effectively communicate with
Lutheran’s physicians and staff in order to participate in their medical care.
Nevertheless, plaintiffs argue that, even if the auxiliary services that were provided
enabled them to effectively communicate with Lutheran’s physicians and staff in
order to participate in their medical care, they were treated less well when they
received “over 70 consent forms in a secondary language [English]—without the
benefit of an ASL interpreter.” Pl. Br. at 10. Specifically, they argue that “[e]ven if
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the jury disagreed with expert testimony outlining plaintiffs’ abilities in English,
nothing in the record supports the proposition that plaintiffs’ fluency in English
surpassed their fluency in ASL.” Id.
Passing over the fact that the jury was not required to give credence to
plaintiffs’ testimony or that of their retained expert, who simply accepted what
plaintiffs told her, this argument is flatly inconsistent with the less well standard as
outlined in my instruction, which is based on the language of the City Law and
plaintiffs’ own request to charge. See N.Y.C. Admin Code § 8-107(15); ECF No.
68 at 9. The issue for the jury to decide was not whether plaintiffs’ abilities in
English surpassed their fluency in ASL. The critical issue is whether plaintiffs’
ability to read, understand, and write English enabled them “to effectively
communicate with Lutheran’s physicians and staff in order to participate in his or
her medical care.” There was more than enough evidence that the jury could so find.
Indeed, a note sent by the jury during deliberations indicates that it focused on this
instruction. The note read as follows:
The jury requests some clarification on the instructions you gave to us.
On page 11, starting on line 4, which says: “The hospital discriminated
against a plaintiff if, because of the plaintiff’s disability, the Hospital
either directly or indirectly, treated the plaintiff less well by not
providing him or her with any appropriate auxiliary aids and services
that were necessary to ensure that he or she could effective [sic]
communicate . . .” 3
3
The reason the jury was able to quote from my instruction is because it is my
practice to provide a copy of the instruction to each juror.
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We are struggling with the definition of “effectively communicate.”
On page 12, line 7 & 8 says “Ensuring effective communications is a
legal requirement.”
Does “effective communication” need to be done in the native or
preferred language? For example, means of communication could be
writing notes, VRI, gesturing, or American Sign Language live in
person interpreter. For different languages, one or the other means
would be appropriate. A native German speaker for example, would
never use VRI or ASL interpreter. For the plaintiffs, each of which has
a varying level of English proficiency, would it be appropriate to
consider note writing as an “effective means” of communications?
ECF No. 89–5.
The answer I gave to this direct question was that “it could, depending on the
circumstances.” ECF No. 89–6. Indeed, it was plaintiffs’ counsel who suggested I
provide the jury with that answer, Trial Tr. at 1152:8–1153:9, thus reflecting their
understanding that whether plaintiffs were provided an equally effective means of
communication is a fact-intensive inquiry unsuited for judgment as a matter of law.
Plaintiffs’ counsel conceded as much during a sidebar at trial: “So whether [Weiner]
got effective communication is a highly disputed issue for the jury to decide.” Id. at
642:12–14; see also Noll v. Int’l. Bus. Mach. Corp., 787 F.3d 89, 94 (2d Cir. 2015).
Separate and apart from this issue, plaintiffs argue for the first time in their
reply brief that they were treated less well because “other patients do not receive
consent forms in a secondary language.” Reply Br. at 12. Passing over the fact that
ASL cannot be provided in written form, plaintiffs’ contention is not supported by
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the record. As described above, Chilingarova testified that the consent forms were
only available in five languages English, Spanish, Chinese, Russian, and Arabic.
Trial Tr. at 680:10–25. For those who could only read other languages, an interpreter
would be made available “just to give the essence of what the form was saying.” Id.
at 673:8–9. Plaintiffs were not treated any differently—let alone “less well”—than
hearing patients who spoke any other language. None of Lutheran’s patients—deaf
or hearing—had written translations of the consent forms made available to them
unless they read and understood one of the five languages.4 “For sign language, if
the patient reads English, they will get a written version.” Id. at 682:11–12.
Indeed, the language of the consent forms upon which plaintiffs rely, and
which they characterize as the “operative phrase,” provides that “If consenting party
is unable to read or unable to understand English,” an interpreter will certify that he
or she has read or interpreted the contents of the consent form to the patient in the
4
Plaintiffs also mischaracterize Chilingarova’s testimony when they argue that she
“explained that VRI should not be used to sign consent forms.” Pl. Br. at 5. As
described above, Chilingarova testified that all interpreters, regardless of language,
were instructed not to interpret verbatim every single word on a consent form
because they were interpreters of spoken language, not translators of written
language. Trial Tr. at 682–83. Chilingarova thus simply testified that VRI
interpreters—just like any interpreter used by Lutheran—should not translate
consent forms verbatim. She never testified that it was inappropriate to use VRI to
facilitate effective communication between deaf patients and their doctors to obtain
informed consent for a procedure.
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presence of a physician. Pl. Br. at 4; Exs. A–D (emphasis added).5 Based on the
evidence described above, the jury could have concluded that each of the plaintiffs
did, in fact, read and understand English and could also write in English. In sum,
plaintiffs’ argument in support of their motion for a judgment notwithstanding the
verdict is legally and factually without merit.
Perhaps recognizing the flaw in the only argument made in their opening brief
for judgment as a matter of law, plaintiffs’ reply brief contained arguments not made
in their initial memorandum. Specifically, they argued that (1) “under Federal law”
they are “entitled to auxiliary aids and services to achieve equally effective
communication”; (2) New York City law is “broader than federal law,” and that
under the City Law plaintiffs were entitled to reasonable accommodations unless
that accommodation imposes an “undue hardship”; and (3) reformulated and now
relegated to last place in the order of arguments made on reply, the “less well”
standard entitles them to judgment as a matter of law. Reply Br. at 4–13. I decline
to consider the first two new arguments for judgment as a matter of law because they
were made for the first time in plaintiffs’ reply brief. See Clubside, Inc. v. Valentin,
468 F.3d 144, 159 n.5 (2d Cir. 2006) (Sotomayor, J.); United States v. Yousef, 327
5
On the second day of trial, before I had a full understanding of the case and the
evidence that would be presented, I said that “I agree that [plaintiffs] need an ASL
interpreter” to “sign a valid consent form.” Pl. Br. at 11. The issue turned out to be
much more complicated than that, as my jury instructions indicate.
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F.3d 56, 115 (2d Cir. 2003); Aviva Trucking Special Lines v. Ashe, 400 F.Supp.3d
76, 80 (S.D.N.Y. 2019) (Koeltl, J.). I make an exception for plaintiffs’ “less well”
argument because it bears some relation to the argument in their opening brief, which
I have addressed above.
While the other two arguments that plaintiffs make for the first time in their
reply memorandum cannot provide a basis for a motion for judgment as a matter of
law, plaintiffs make similar arguments with respect to their motion for a new trial
pursuant to Rule 59 on the ground that the jury instructions are erroneous. I reject
them below because they do not provide a basis for that relief, in part because their
objection to the charge, which they requested, was procedurally forfeited.
B.
Rule 59 Motion
Under Rule 59, a district court may award a new trial if, as relevant to
plaintiffs’ motion, (1) the jury instructions contained prejudicial errors or (2) the jury
reached a verdict that is against the weight of the evidence. Raedle v. Credit Agricole
Indosuez, 670 F.3d 411, 417 (2d Cir. 2012); Jin v. Metro. Life Ins. Co., 310 F.3d 84,
91 (2d Cir. 2002).
1. Jury Instructions
In reviewing plaintiffs’ challenge to the jury instructions, the instructions must
be considered “in their entirety to determine whether, on the whole, they provided
the jury with an intelligible and accurate portrayal of the applicable law.” United
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States v. Weintraub, 273 F.3d 139, 151 (2d Cir. 2001). A jury instruction is
erroneous if, “in light of the charge as a whole,” it “misleads the jury as to the correct
legal standard or does not adequately inform the jury on the law.” Callahan v.
Wilson, 863 F.3d 144, 148 (2d Cir. 2017) (internal quotation omitted).
“An
erroneous instruction, unless harmless, requires a new trial.” Jin, 310 F.3d at 91.
An erroneous jury instruction is harmless where “the court is convinced that the error
did not influence the jury’s verdict.” Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111,
116 (2d Cir. 2000).
Plaintiffs argue that it was error to instruct the jury that Lutheran “was not
required to provide the plaintiffs with the . . . plaintiffs’ preferred means of
communication.” Pl. Br. at 12. Some background as to the language of the clause
to which plaintiffs object is necessary. Plaintiffs did not submit a proposed jury
instruction on this issue. An early version of the instructions that I circulated
contained the following language:
Whether [Lutheran] discriminated against a plaintiff under these
laws does not depend on the health outcome resulting from the
plaintiff’s medical treatment, nor on whether the plaintiff would
have experienced a better health outcome if he or she were not
disabled. These laws also did not require [Lutheran] to provide
the plaintiffs with the best possible means of communication, nor
the most efficient means of communication, nor the plaintiffs’
preferred means of communication.6
6
The first draft of my instructions that was provided to the parties was not marked
as a court exhibit. The language quoted above comes from my chambers copy,
which will be docketed along with this opinion.
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Plaintiffs objected to the clause in the sentence that Lutheran was not required
to provide the plaintiffs’ “preferred means of communication.” Trial Tr. at 906:19–
907:12. After some colloquy, plaintiffs’ counsel, Mr. Rozynski, suggested that I use
the instruction given in Giterman v. Pocono Med. Ctr., ECF No. 168, 3:16–cv–0402
(M.D. Pa. 2019). And specifically, he quoted language in the Giterman charge
which stated in relevant part that “[t]here is no per se rule that sign language
interpreters are always mandated or are required upon request.” Trial Tr. at 904:2–
4. Mr. Rozynski concluded by stating that if the Giterman instruction was given it
would “alleviate[] everyone’s concerns here.” Id. at 904:2–905:8. After a recess, I
circulated another draft of my instruction (Court Exhibit 4), which included the
language from my earlier draft and added the full language from Giterman over
defendant’s objection. Id. at 947:10–948:4. The revised charge (with the Giterman
language italicized and bolded below) was included in the final charge (Court
Exhibit 7) and ultimately read as follows:
Whether [Lutheran] discriminated against a plaintiff does not
depend on the health outcome resulting from the plaintiff’s
medical treatment, nor on whether the plaintiff would have
experienced a better health outcome if he or she were not
disabled. [Lutheran] was not required to provide the plaintiffs
with the best possible means of communication, nor the most
efficient means of communication, nor the plaintiffs’ preferred
means of communication. Rather, [Lutheran] was required to
provide the plaintiffs with equal access to and participation in
their own medical treatment. Stated another way, in order for
aids, benefits, or services to be equally effective, they are not
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required to produce the identical result or level of achievement
for disabled and nondisabled persons, but must afford disabled
persons the opportunity to obtain the same result, to gain the
same benefits or to reach the same level of achievement.
Now, on Monday during the course of the trial, I told you that
[Lutheran] had to provide VRI that works. This was not an
entirely accurate statement. Ensuring effective communication
is the legal requirement—VRI is only one way to ensure effective
communication, provided that it functions properly.
There is no per se rule that sign language interpreters are
always mandated or are required upon request. Nor does the
law require healthcare providers to supply any and all auxiliary
aids even if they are desired and demanded. The law provides
that the type of auxiliary aids will vary depending upon the
circumstances.
Specifically: 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 used by
the individual, and the context in which the communication is
taking place.
So, for example, here is an illustration that is not itself a part
of the law, and is not factually similar to the facts in this case:
Patient goes [to] his doctor for a bi–weekly check–
up, during which the nurse records Patient’s blood
pressure and weight. Exchanging notes and using
gestures are likely to provide an effective means of
communication at this type of check–up. BUT:
Upon experiencing symptoms of a mild stroke,
Patient returns to his doctor for a thorough
examination and battery of tests and requests
tha[t] an interpreter be provided. Patient’s doctor
should arrange for the services of a qualified
interpreter, as an interpreter is likely to be
necessary for effective communication with the
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Patient, given the length and complexity of the
communication involved.7
ECF No. 88 at 11:14–13:12.
Notwithstanding the inclusion of this language from Giterman, which could
not have been more helpful to plaintiffs, Mr. Roszynski again objected to the
language that remained in the charge that Lutheran “was not required to provide
plaintiffs with . . . plaintiffs’ preferred means of communication. . . . [This is] the
only thing that I have a problem with.” Trial Tr. at 972:15–973:9. Just to be clear
again, this language, which was located on page 11, line 11 of Court Exhibit 4, was
the only language to which plaintiffs objected. Id. at 972:15–19. I rejected that
objection because the phrase to which they objected was necessary to place in
context the subsequent sentence, which was helpful to plaintiffs, and which reads as
follow: “Rather [Lutheran] was required to provide the plaintiffs with equal access
to and participation in their own medical treatment.” ECF No. 87 at 11. The
suggestion that this constitutes reversible error simply ignores the fact that there was
no meaningful difference between the objectionable phrase and the Giterman
instruction, including its first line that “[t]here is no per se rule that sign language
7
The Giterman instruction explicitly says that this illustration is from a Technical
Assistance Manual without describing its source. The manual was in fact published
by the Department of Justice relating to compliance with Title III of the ADA. See
Dep’t of Justice, Technical Assistance Manual on the American With Disabilities
Act, § III–4.3200.
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interpreters are always mandated or are required upon request.” Indeed, when
requesting the Giterman instruction, plaintiffs’ counsel acknowledged:
So [the Court’s proposed jury instruction] would incorporate the
language that says the city law did not require the hospital to
provide plaintiffs with the best possible means of
communication, nor the most efficient means of communication
or the plaintiffs preferred means of communication. Again, I
think the language I just read off [from Giterman] would
subsume that.
Trial Tr. at 906:25–907:6 (emphasis added).
Under these circumstances, plaintiffs’ argument that the charge was
prejudicial error fails for several reasons.
First, because the inclusion of the
Giterman charge that plaintiffs themselves requested repeated the language that they
now claim was erroneous, their objection is procedurally forfeited. See United States
v. Kosinski, 976 F.3d 135, 153 (2d Cir. 2020) (Where plaintiffs “appear[] to have
endorsed the substance of the given charge,” they “ha[ve] waived any right to . . .
review of the charge.”).
Second, notwithstanding the opening sentence of the Giterman instruction
that “[t]here is no per se rule that sign language interpreters are always mandated or
are required upon request,” the subsequent illustration in the paragraph that followed
explained that 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 used by the
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individual, and the context in which the communication is taking place,” and
explicitly stated that there may be circumstances where a doctor may be required to
“arrange for the services of a qualified interpreter” at the patient’s request. Thus,
the jury was told, and plaintiffs were permitted to argue, that there were
circumstances in which a covered entity, such as Lutheran, may be required to
provide sign language interpreters to deaf patients.
This significant mitigating language aside, the charge that plaintiffs object to
was not erroneous. The Appellate Division has held that that the City Law does not
obligate covered entities to provide disabled individuals the “specific
accommodation” that they “prefer[].” See Porter v. City of New York, 128 A.D.3d
448, 449 (1st Dep’t 2015); Silver v. City of N.Y. Dep’t of Homeless Servs., 115
A.D.3d 485, 486 (1st Dep’t 2014) (“an employer is not obligated to provide the
disabled employee with [an] accommodation that the employee requests or prefers”).
These Appellate Division cases may not “be disregarded by a federal court unless it
is convinced by other persuasive data that the highest court of the state would decide
otherwise.” West v. Am. Tel. & Tel. Co., 311 U.S. 223, 237 (1940).
Rather than any hint that the Court of Appeals would reject these Appellate
Division cases and hold that a covered entity must provide a disabled individual with
his preferred means of communication, there is data which suggests these cases were
decided correctly.
Even the New York City Commission on Human Rights
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Guidance on which plaintiffs rely, although rendered after plaintiffs were treated,
states that a “covered entity need not provide the specific accommodation sought by
the individual making the request so long as [the covered entity] propose[s]
reasonable alternatives that meet the specific needs of the individual or that
specifically address the impairment.” Guidance at 56 (citing Cruz v. Schriro, 51
Misc.3d 1203(A) (Sup. Ct. N.Y. Cty. 2016) (“[A]n employer is not obligated to
provide a disabled employee with the specific accommodation that the employee
requests or prefers[.]”)). Consistent with this Guidance, a recent New York case
held that a movie theater was not required to acquiesce in a deaf person’s preference
for captions on the movie screen itself, rather than on a separate external device. See
Roberman v. Alamo Drafthouse Cinemas Holdings LLC, 67 Misc. 3d 182, 186 (N.Y.
Sup. Ct. 2020).
Phillips v. City of New York, 66 A.D.3d 170 (1st Dep’t 2009), upon which
plaintiffs rely, is not to the contrary. In Phillips, an employee of New York City
sought a one-year medical leave so that she could undergo treatment for breast
cancer. The City entertained requests for extended medical leave only for permanent
civil service employees and not for employees, such as the plaintiff, who held
noncompetitive civil service titles. The City therefore declined to offer any extended
medical leave or even to discuss what accommodations might be appropriate. After
failing to receive any accommodation, plaintiff did not return to work and was
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terminated thereafter. Under these circumstances, the Appellate Division held that
the plaintiff stated a cause of action without addressing whether the accommodation
was necessary “to enable a person with a disability to satisfy the essential requisites
of a job. . . .” N.Y.C. Admin. Code § 8–107(15)(a). Phillips did not hold that, absent
undue hardship, an employer is required to provide its disabled employees with
whichever specific accommodation he or she requests. Indeed, as described above,
the post–Phillips decisions of the Appellate Division, as well as the Guidance
provided by the New York City Human Rights Commission, confirm that an
employer (or any covered entity) may provide a disabled employee with a different
reasonable accommodation than the one the employee prefers.
Nevertheless, plaintiffs argue that language substantially similar (if not
identical) to the charge that they requested was erroneous because it is inconsistent
with Title II of the ADA, the implementing regulation and guidance of which
provides that a Title II entity “must honor the person’s choice, unless it can
demonstrate that another equally effective means of communication is
available . . .” ADA Requirements—Effective Communication, U.S. Dep’t of
Justice, available at https://bit.ly/2LjgXD4; see also 28 C.F.R. § 35.160(b).
Plaintiffs argue that Title II is relevant here because the City Law “imposes a more
liberal interpretation than its federal and state counterparts,” and thus Title II’s
standard is a “floor” below which the City Law cannot fall. Pl. Br. at 15–16.
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Even if plaintiffs had not procedurally forfeited their objection to the
language of the charge, an overview of the ADA demonstrates why this argument is
without merit. The ADA “forbids discrimination against persons with disabilities in
three major areas of public life: employment, which is covered by Title I of the
statute; public services, programs, and activities, which are the subject of Title II;
and public accommodations, which are covered by Title III.” Tennessee v. Lane,
541 U.S. 509, 516–17 (2004). Plaintiffs do not contest that Lutheran, as a public
accommodation, is subject to Title III, not Title II, of the ADA. Pl. Br. at 13. Title
III’s implementing regulation states that “a public accommodation should consult
with individuals with disabilities whenever possible to determine what type of
auxiliary aid is needed to ensure effective communication, but the ultimate decision
as to what measures to take rests with the public accommodation, provided that the
method chosen results in effective communication.” 28 C.F.R. § 36.303(c)(1)(ii).
Indeed, it is ironic that plaintiffs requested a charge from Giterman, which cites a
Technical Assistance Manual for Title III, yet argue that the charge was erroneous
under the inapplicable Title II. Moreover, contrary to plaintiffs’ argument, the
charge the jury was given was not inconsistent with Title II’s requirements. Title II
itself does not entitle an individual with a disability to his or her preferred means of
communication. Rather, an entity covered by Title II must only honor a disabled
individual’s preference unless “an equally effective means of communication is
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available . . .” As explained above, and as plaintiffs themselves agreed, whether
Lutheran provided plaintiffs with an “equally effective means of communication”
was a jury question.
2. Weight Of The Evidence
A district court may grant a new trial on the ground that the verdict was against
the weight of the evidence pursuant to Rule 59 only if the verdict is “seriously
erroneous” or “a miscarriage of justice.” Raedle, 670 F.3d at 417–18. In deciding a
Rule 59 motion, as the plaintiffs recognize, “a trial judge is free to weigh the
evidence himself.” Crawford v. Franklin Credit Mgmt. Corp., 2015 WL 1378882,
at *7 (S.D.N.Y. Mar. 26, 2015), aff’d sub nom. Crawford v. Tribeca Lending Corp.,
815 F.3d 121 (2d Cir. 2016). Nevertheless, a “high degree of deference [is] accorded
to the jury’s evaluation of witness credibility,” and “jury verdicts should be disturbed
with great infrequency.” Raedle, 670 F.3d at 418. Where “a verdict is predicated
almost entirely on the jury’s assessments of credibility, such a verdict generally
should not be disturbed except in an egregious case[.]” Id.
Plaintiffs argue that “the Court need not delve too far into witness credibility”
because the fact that plaintiffs “received written consent forms in English—without
the benefit of an ASL interpreter” is sufficient to entitle them to a new trial. Pl. Br.
at 19. This argument is a rehash of their Rule 50 motion that they were treated “less
well” in relation to the consent forms, which I rejected earlier. The fact that there
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are consent forms, signed by plaintiffs, that do not have a corresponding signature
from an ASL interpreter is simply evidence that the jury was free to consider or
reject when determining whether plaintiffs were able to effectively communicate
with their doctors and provide informed consent. The jury was also free to consider
evidence, or the lack of credible evidence, provided by the plaintiffs themselves.
And the jury was also free to consider the testimony of the doctors, many of whom
had treated plaintiffs for years and who testified that they were able to communicate
effectively with plaintiffs without an ASL interpreter, and their signatures on the
consent forms certifying that they “explained to [plaintiffs], the nature, purpose,
benefits, risks of, and alternatives to” the proposed procedures. See, e.g., ECF No.
109–1 at 1, 13–15, 16, 18–19; ECF No. 109–2 at 3–4, 13–14, 16–17, 30–32; ECF
No. 109–3 at 2; ECF No. 109–4 at 3–5.
In sum, the weight of the evidence at trial demonstrated each plaintiff’s ability
to understand and communicate with their physicians in English and provide
informed consent to medical procedures at Lutheran. Indeed, the jury’s verdict
suggests that it found plaintiffs’ testimony not credible, and because that finding is
well supported by the record, plaintiffs’ motion is denied.
CONCLUSION
In closing, it bears noting what this case was about. Plaintiffs’ counsel
“emphasize[d]” in his opening statement that “[t]his is not a medical malpractice
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case” and that his focus “is not on whether medical treatment was necessary, whether
medical treatment was ultimately successful, no, our focus is not on the medical care
itself” but rather on whether plaintiffs had an opportunity to provide informed
consent. Trial Tr. at 32:4–13. None of the plaintiffs complained about the quality
of care they received, nor did they testify credibly that, notwithstanding any alleged
flaws in the consent process, they did not understand the explanations they were
provided. Nor did they testify that even in retrospect they would not have consented
to the procedures had they known about the risks. Indeed, Van Vorst declined to
undergo a procedure precisely because of the explanation she received.
In sum, plaintiffs had scant prospect of obtaining anything more than nominal
damages even if the jury had found Lutheran liable. Moreover, Lutheran had merged
with NYU Langone in 2016—after the treatment about which plaintiffs
complained—and NYU Langone changed the complained-of policy, obviating any
prospect of injunctive relief. Trial Tr. at 724:13–728:14. Nor will the verdict of the
jury, or my rejection of plaintiffs’ legal argument, make bad law or “have startling
consequences on the deaf community,” as they suggest. Pl. Br. at 11. Indeed,
plaintiffs acknowledge that in 2018, years after they were treated at Lutheran, the
New York City Human Rights Commission provided guidance that a hospital “must
provide a qualified sign language interpreter to a patient who is deaf as a reasonable
accommodation.” Pl. Br. at 19 (quoting Guidance at 64). Although this Guidance
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cannot be applied retroactively, it cannot be ignored going forward by any hospital
in the face of the holding of the New York Court of Appeals that an agency’s
“interpretation of the statute it administers, if not unreasonable or irrational, is
entitled to deference.” Salvati v. Eimicke, 72 N.Y.2d 784, 791 (1988). While the
plaintiffs therefore had no meaningful stake in the outcome, a favorable verdict
would have yielded a significant fee for plaintiffs’ counsel. I decline to overturn the
jury’s considered verdict merely to indulge plaintiffs’ counsel’s quest for fees.
Plaintiffs’ post-judgment motions are each denied.
SO ORDERED.
Edward R. Korman
Brooklyn, New York
December 14, 2020
Edward R. Korman
United States District Judge
36
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