Wiker v. Advanced Foot & Ankle Center, P.C. et al

Filing 47

ORDER directing parties to address what standard to include in the jury instructions. Parties respective filings shall be no longer than 12 pages. Responsive briefs to be filed 7 calendar days after date initial briefs are du e. Responsive briefs shall be no longer than 5 pages. Reply briefs are not permitted. The filings shall be due on or before 10/21/2016. If parties elect to voluntarily mediate said claims, the filing shall be due 11/18/2016. Parties shall file a notice indicating whether or not mediation will be attempted in accordance with this Order on or before 9/23/2016 to receive the additional time for briefing. Signed by District Judge Richard Voorhees on 8/23/2016. (cbb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL ACTION NO. 5:15-CV-00004-RLV-DSC
ROGER WIKER,
Plaintiff,
v.
ADVANCED FOOT & ANKLE CENTER,
P.C., PIEDMONT HEALTHCARE, PA,

Defendants.

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ORDER

BEFORE THE COURT is its own motion directing the parties to file briefs indicating
the standard to be applied at trial.
Defendants raised several affirmative defenses in their answer directed at the risks that a
service animal poses in the rooms at Advanced Foot (“Advanced”), none of which actually cited
any of the pertinent regulations. (D.E. 7, at 16-17, ¶¶ 2, 9); see also id. at 2 (secondary introductory
paragraph to answer).
In the motion for summary judgment, Defendants utilized language tracking the direct
threat and fundamental alteration defenses, without actually citing the text of the pertinent
regulations. See (D.E. 20, at ¶ 2). The memorandum in support of the motion repeatedly utilizes
the phrase “significant risk” which is a term of art related to the direct threat affirmative defense.
See 42 U.S.C. § 12182(b)(3); 28 C.F.R. § 36.208; see also § 36.123 (“Subpart B of this part sets
forth the general principles of nondiscrimination applicable to all entities subject to this part.”).
However, the memorandum in support also uses the phrase “fundamentally alter” which references
the fundamental alteration affirmative defense. § 36.302(a).

At oral argument, counsel for defendant suggested that the pertinent standard of review
applicable to the exclusion of the service animal in this case should fall under 28 C.F.R. §
36.301(b) which states that an entity “may impose legitimate safety requirements that are
necessary for safe operation. Safety requirements must be based on actual risks and not on mere
speculation, stereotypes, or generalizations about individuals with disabilities.”
The Court hereby ORDERS the parties to address what standard to include in the jury
instructions. The parties’ respective filings shall be no longer than twelve (12) pages. Responsive
briefs shall be filed seven calendar days after the date the initial briefs are due. Responsive briefs
shall be no longer than five (5) pages. Reply briefs are not permitted.
The filings shall be due on or before October 21, 2016. However, if the parties elect
to voluntarily mediate said claims, the filing shall be due November 18, 2016. The parties shall
file a notice indicating whether or not mediation will be attempted in accordance with this Order
on or before September 23, 2016 to receive the additional time for briefing.
SO ORDERED.

Signed: August 23, 2016