Levorsen v. Octapharma Plasma
Filing
23
AMENDED MEMORANDUM DECISION and ORDER. The court concludes that Octapharma, a plasma donation center, does not qualify as a place of public accommodation as contemplated under the ADA and therefore Octapharma is not subject to 42 U.S .C. § 12182. Accordingly, Octapharmas Motion To Dismiss is hereby GRANTED (doc. 10). Signed by Magistrate Judge Dustin B. Pead on 12/01/2014. (Memorandum Decision and Ruling amended to include Liesel Stephens' appearance on behalf of Octapharma at the September 26, 2014 hearing). (tls)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
BRENT LEVORSEN,
AMENDED MEMORANDUM DECISION
& RULING
Plaintiff,
v.
Case No. 2:14-cv-325
OCTAPHARMA PLASMA, INC.,
Magistrate Judge Dustin B. Pead
Defendant.
The parties in this case have consented to United States Magistrate Judge Dustin Pead
conducting all proceedings, including entry of final judgment, with appeal to the United States
Court of Appeals for the Tenth Circuit (doc. 8). See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73.
Currently pending before the court is Defendant Octapharma Plasma Inc.’s (“Octapharma”)
motion to dismiss Plaintiff Brent Levorsen’s (“Mr. Levorsen”) complaint pursuant to federal rule
of civil procedure 12(b)(6) (doc. 10).
On August 28, 2014, the court issued an order scheduling oral argument on Octapharma’s
motion and raising several issues for discussion at the hearing (doc. 19). Thereafter, oral
arguments were held on September 26, 2014. Attorneys Lisa Yerkovich and Liesel Stevens were
present on behalf of Octapharma, and attorneys Aaron Kinikini and Laura Boswell were present
on behalf of Mr. Levorsen. At the conclusion of the hearing, the court took Octapharma’s motion
under advisement. Now, having considered the parties’ arguments along with the relevant legal
authorities, the court rules as stated herein.
I. BACKGROUND
For purposes of Octapharma’s motion to dismiss, the court accepts as true the facts set
forth in Mr. Levorsen’s complaint.
On May 6, 2013, as he had routinely done for several years prior, Mr. Levorsen attempted
to donate source plasma at Octapharma’s plasma donation center located at 5414 South 900 East
in Salt Lake City, Utah.1 As part of Octapharma’s donor eligibility determination, Mr. Levorsen
was required to undergo a physical examination during which he revealed that he was taking the
medication Geodon for borderline schizophrenia disorder. Mr. Levorsen has psychiatric
disabilities including borderline schizophrenia, post traumatic stress disorder, attention deficit
hyperactivity disorder and insomnia and therefore qualifies as an individual with a disability under
the Americans with Disabilities Act (“ADA”).2
Based upon Mr. Levorsen’s disclosure, Octapharma informed him that he would be unable
to donate source plasma. The basis for refusal was Octapharma’s assertion that during the
donation process Mr. Levorsen might have a schizophrenic episode and “pull the needle collecting
blood out of his arm and hurt him-self and/or others.” (doc. 1, ¶16). As a result, Octapharma
placed Mr. Levorsen’s name on the “National Donor Deferral Registry” (“NDDR”) thereby
marking him as an individual unfit to donate and ensuring his inability to donate plasma at any
donation center in the nation.
On May 23, 2013, Mr. Levorsen provided Octapharma with paperwork from his treating
1
Source plasma is “the fluid portion of human blood collected by plasmapheresis and is
used as a source material for further manufacturing use.” (doc. 1, ¶10).
2
The ADA defines “disability” to include “a physical or mental impairment that
substantially limits one or more major life activities of [an] individual.” 42 U.S.C.
§ 12102 (2)(A).
psychiatrist, Dr. Benjamin Thatcher, and from psychiatrist Dr. Christopher Davis. Both doctors
agreed that Mr. Levorsen was “medically suitable” to donate plasma two times per week (doc. 1,
¶19). However, despite the psychiatrists’ clearance, Octapharma informed Mr. Levorsen that
because of his borderline schizophrenia disorder he would remain on the NDDR.
As a result of Octapharma’s actions, Mr. Levorsen remains unable to donate source plasma
and has been deprived of the $260.00 monthly income that his plasma donations previously
provided (doc.1, ¶21). On April 30, 2014, Mr. Levorsen filed his complaint against Octapharma
alleging a variety of claims based on violations of Title III of the ADA and seeking both
declaratory and injunctive relief (doc.1, ¶21).
II. LEGAL STANDARDS
Octapharma seeks dismissal of Mr. Levorsen’s complaint pursuant to rule 12(b)(6) of the
Federal Rules of Civil Procedure. See Fed. R. Civ. P. 12(b)(6). In considering a motion to
dismiss under rule 12(b)(6), the court “accept[s] all well-pleaded facts as true and view[s] them in
the light most favorable to the plaintiff.” Jordan-Arapahoe, LLP v. Bd. Of County Comm’rs, 633
F.3d 1022, 1025 (10th Cir. 2011).
To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to “state a claim to relief
that is plausible on its face.” A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct
alleged.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S 544,
570 (2007)).
3
III. ANALYSIS
As enacted by Congress in 1990, the ADA was designed to remedy discrimination against
disabled individuals. See U.S.C. § 12101(a)(2), § 12101(a)(3). The ADA constitutes remedial
legislation and must be broadly interpreted in order to effectuate its purpose. See Steger v.
Franco, Inc., 228 F.3d 889,894 (8th Cir. 2000) (“ADA is a remedial statute, and should be broadly
construed to effectuate its purpose.”); Jensen v. United First Fin., 2009 U.S. Dist. LEXIS
117111; 22 Am. Disabilities Cas. (BNA) 1435, *20 (D. Utah Dec. 15, 2009).
Title III of the Act prohibits discrimination by private entities against a disabled
individual or class of individuals in the operation of “places of public accommodation.” See
42 U.S.C. § § 12181-12189; PGA Tour, Inc. v. Martin, 532 U.S. 661, 674-75, 121 S. Ct. 1879,
149 L.Ed. 2d 904 (2001).3
Specifically, Title III states:
[n]o individual shall be discriminated against on the basis of
disability in the full and equal enjoyment of the goods, services,
facilities, privileges, advantages, or accommodations of any place
of public accommodation by any person who owns, leases
(or leases to), or operates a place of public accommodation.
42 U.S.C. § 12182(a). In this case, the parties agree that the only issue in dispute is whether
Octapharma qualifies as a place of “public accommodation” under Title III.4 If this court
3
The ADA also prohibits discrimination against disabled individuals in their employment
(Title I), see 42 U.S.C. § § 12111-12117, and in public services (Title II), see 42 U.S.C.
§ § 12131-12165.
4
In order to state a claim of discrimination under Title III of the ADA a plaintiff must
allege: “(1) that she is disabled within the meaning of the ADA; (2) that defendants own, lease or
operate a place of public accommodation; and (3) that defendants discriminated against her by
denying her a full and equal opportunity to enjoy the services defendants provide.” Camarillo v.
Carrols Corp., 518 F.3d 153, 156 (2nd Cir. 2008); see also 42 U.S.C. § 1282(a); Molski v M.J.
4
determines that plasma donation centers are places of public accommodation, then Octapharma is
bound by the mandates of the ADA and Mr. Levorsen must be allowed to participate on the same
basis as other non-disabled persons. In the alternative, if Octapharma is found not to be a place of
public accommodation, then it is exempt from Title III and may exclude any individual as it sees
fit.
A. Public Accommodation Under The ADA
Under the broad interpretation policies of the ADA, the phrase “public accommodation”
must be “construed liberally [in order] to afford people with disabilities equal access to the wide
variety of establishments available to the nondisabled.” PGA Tour, Inc., 532 U.S. at 675 (2001)
(internal quotations omitted) (citing, S. Rep. No. 101-116, at 59; H. R. No. 101-485, pt. 2, at 100).
Whether a facility constitutes a “public accommodation” is a question of law and therefore is a
matter appropriate for resolution on a motion to dismiss. See Jankey v. Twentieth Century Fox
Film Corp., 14 F. Supp. 2d 1174, 1178 (C.D. Cal. 1998) aff’d, 212 F.3d 1159 (9th Cir. 2000).
The ADA defines the term “public accommodation” as one of the following entities:
(A)
an inn, hotel, motel, or other place of lodging, except for an
establishment located within a building that contains not more
than five rooms for rent or hire and that is actually occupied by
the proprietor of such establishment as the residence of such
proprietor;
(B)
a restaurant, bar, or other establishment;
©
a motion picture house, theater, concert hall, stadium, or other
place of exhibition or entertainment;
Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007); Powell v. Nat’l Bd. Of Med. Exam’rs, 264 F.3d
79, 85 (2nd Cir. 2004); Stan v. Wal-Mart Stores, Inc., 111 F. Supp. 2d 119, 124 (N.D.N.Y. 2000).
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(D)
an auditorium, convention center, lecture hall, or other place of
public gathering;
(E)
a bakery, grocery store, clothing store, hardware store, shopping
center, or other sales or rental establishment;
(F)
a laundromat, dry-cleaner, bank, barber shop, beauty shop,
travel service, shoe repair service, funeral parlor, gas station,
office of an accountant or lawyer, pharmacy, insurance office,
professional office of a health care provider, hospital, or other
service establishment;
(G)
a terminal, depot, or other station used for specified public
transportation;
(H)
a museum, library, gallery, or other place of public display or
collection;
(I)
a park, zoo, amusement park, or other place of recreation;
(J)
a nursery, elementary, secondary, undergraduate, or
postgraduate private school, or other place of education;
(K)
a day care center, senior citizen center, homeless shelter, food
bank, adoption agency, or other social service center
establishment; and
(L)
a gymnasium, health spa, bowling alley, golf course, or other place of
exercise or recreation.
42 U.S.C. § 12181(7). Plasma donation centers are not listed under any of the twelve defined
categories of public accommodations.
Despite the fact that plasma donation centers are not explicitly listed, Mr. Levorsen asserts
that they fit within: (1) the catch-all provision of “other service establishment” as listed under
subsection (F); or, in the alternative, (2) a “professional office of a health care provider” a
6
category also listed under subsection (F).5 The court examines each of these provisions in turn.6
1. Service Establishment
Mr. Levorsen acknowledges that plasma donation centers are not explicitly listed under
subsection (F), but asserts that they “fit comfortably” within the “other service establishment”
provision of the subsection. 42 U.S.C. § 12181(7); see PGA Tour, Inc., 532 U.S. at 677 (2001).
In support of his claim, Mr. Levorsen relies upon the ADA’s Implementing Regulations which
provide that “while the list of categories is exhaustive, the representative examples of facilities
within each category are not.” Nondiscrimination On The Basis Of Disability By Public
Accommodations And In Commercial Facilities, 28 C.F.R., Part 36, app. B at 211 (2010). In
response, Octapharma counters that there is no language which would permit the term public
accommodation to be “stretched outside of the specifically listed categories” and for the court to
do so here would be inappropriate (doc. 10, p. 7). See Jankey v. Twentieth Century Fox Film
5
The court and the parties were unable to find any published case involving this exact
issue and accordingly the court considers the issue to be one of first impression.
6
At oral argument, the court raised the issue of whether Mr. Levorsen was actually
challenging his placement on the NDRR list as opposed to challenging his access to the plasma
donation center as a place of public accommodation. The court’s inquiry was based upon the
District Court’s holding in Elitt v. U.S.A. Hockey, 922 F. Supp 217 (E. D. Mo. 1996), where the
Missouri District Court determined that “it lacked jurisdiction over a cognitively disabled child’s
Title III claim against U.S. amateur hockey organization because plaintiff was challenging the
‘denial of participation in the youth hockey league instead of denial of access to a place of
accommodation, i.e. the ice rink.’” Shepard v. United States Olympic Comm., 464 F. Supp. 2d
1072, 1084 (Dist. Colo. 2006) (citing Elitt, 922 F. Supp at 223)).
Here, the court analogized Mr. Levorsen’s placement on the NDRR list with Elitt’s
participation in a youth hockey league. Mr. Levorsen, however, effectively argued that his
placement on the NDRR list was not a jurisdictional hurdle to his claims since placement on the
NDRR list was only incidental to a larger, more generalized access issue. Additionally, Mr.
Levorsen confirmed that his claims, as set forth in his complaint, are solely based upon access to
Octapharma’s plasma donation center as a place of public accommodation and not upon his
“membership” or placement on the NDRR list.
7
Corp., 14 F. Supp. 2d 1174, 1178 (C.D. Cal. 1998) (“[t]he ADA includes an exhaustive, not
merely exemplary or illustrative, list of private entities which are nevertheless considered ‘public
accommodations.’”).
While acknowledging the comprehensive policies behind the ADA, the court is unable to
conclude that plasma donation centers “fit comfortably” within the “other service establishment”
provision of 42 U.S.C. § 12181(7) and, as a result, declines to include them within its ambit.
While the court agrees that the public accommodations set forth under subsection (F) are
illustrative and that the term “other service establishment” is inexact, a consideration of the
facilities explicitly listed reveals a similarity between each– an establishment, in return for
payment, provides a service to a member of the public. See 42 U.S.C. § 12181(7) (F). By way of
example, an individual drives to a gas station, an establishment explicitly listed under subsection
(F), in order to obtain gas for her car. Id. At the station, the individual provides payment to the
attendant and, in return for that payment, the individual is allowed to fill her vehicle’s tank with
gasoline. Similarly, an individual visits a laundromat, an establishment also listed under
subsection (F), seeking to clean his clothes. Id. As a service establishment, the laundromat agrees
to provide the use of its washers and dryers in exchange for payment from the individual. Thus,
in both of theses examples, as in all establishments listed under subsection (F), a common theme
is the provision of goods or services to the public, in exchange for money.
A plasma donation center is distinguishable. Unlike the other service establishments
explicitly listed, a plasma donation center does not offer goods or services in exchange for
compensation. To the contrary, it is the plasma donation center that offers money to a member of
the public in exchange for a service to the center—the donation of plasma. Once obtained from
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the public, the plasma is then sold by the plasma donation center to a drug manufacturer for a
profit.7 Unlike the service establishments set forth under subsection (F), Octapharma does not
provide a service to the public but instead pays members of the public, such as Mr. Levorsen, for
their donation of plasma to the center. See Maley v. Octapharma Inc., No 12-13892, 2013 WL
3814248 (E.D. Mich. July 22, 2013) (unpublished) (“A plasma donation center is not listed as a
covered entity [under 42 U.S.C. § 12181(7)] and does not provide a ‘service’ to the public.”)
Applying the service-provider distinction, Mr. Levorsen’s argument in favor of a liberal
interpretation is tempered by principles of statutory construction which require consideration of
the term “plasma donation center” and “other service establishment” as consistent with those
entities already listed under subsection (F). See Phibbs v. American Property Management, 2008
U.S. Dist. LEXIS 21879 *7 (D. Utah Mar. 19, 2008) (affirmed 60 Fed. Appx. 738, 2003 U.S.
App. LEXIS 5478 (10th Cir. Utah 2003) (interpreting term “other place of lodging” consistent with
the other public accommodations listed under subsection (A)). Considering plasma donation
centers consistent with the other service establishments listed, the court concludes that the
service-provider distinction creates a fundamental difference between plasma donation centers
and the other establishments listed that prohibits the incorporation of plasma donation centers
under a the “other service establishment” provision of 42 U.S.C. § 12181(7) (F).
2. Health Care Provider
In the alternative, Mr. Levorsen argues that a broad reading of the ADA supports an
7
Consideration of plasma donation centers as entities that provide a step in the blood
manufacturing process, as opposed to establishments that provide a service to the public, is
further supported by federal regulations characterizing blood collection as a step in the
“manufacturing of [s]ource [p]lasma”. See 21 C.F.R. § 640.71(a) (statute outlining the
responsibilities of manufacturers involved in the source plasma manufacturing process).
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interpretation of a plasma donation center as a “professional office of a health care provider”—a
covered entity listed under subsection (F). See 42 U.S.C. § 12181(7) (F).
In support of his claim, Mr. Levorsen asks the court to define the term “health care
provider” under the ADA consistent with the term as set forth under various other federal and
state statutes and regulations. See 42 U.S.C. § 300jj(3) (2009) (defining term “health care
provider as including “blood center”); 42 U.S.C. § 1320b-5 (defining the term “health care
provider” under the Social Security Act’s provision entitled “Authority to waive requirements
during national emergencies” as “any entity that furnishes health care items or services, and
includes a hospital or other provider of services, a physician or other health care practitioner or
professional, a health care facility, or a supplier of health care items or services.”); 42 U.S.C.
§ 1395x(s) (2)(A) (2012) (citing to definitions listed under the Social Security Act’s Title on
“Health Insurance For The Aged And Disabled” and noting that the term “medical and other
health services” includes “services and supplies (including drugs and biologicals which are not
usually self administered by the patient); 21 C.F.R. § 606.3 (d)-(e) (2008) (under Title 21 Food
and Drugs, noting that blood and plasma are defined as biologicals under Subchapter F
“Biologics”). Considered collectively, Mr. Levorsen argues that these various statutes and
regulations compel the conclusion that “Congress intended blood centers and plasma donation
centers to be considered ‘health care providers’” (doc. 15, p.15).8
8
Mr. Levorsen also asserts that Utah state law supports an interpretation of plasma
donations centers as health care providers. See Utah Code Ann. § 78B-3-402(12) (defining
health care provider in the context of the Utah Health Care Malpractice Act as an facility that
renders health care); Utah Code Ann. § 26-31-201(1) (characterizing the “procurement,
processing, distribution, or use of a blood product for the purpose of injecting or transfusing the
blood product into the human body” as a service and not a sale under the Utah Health Code);
Utah Code Ann. § 26-31-102(2)(b) (defining “blood product” under the Utah Health Code to
10
In response, Octapharma challenges the applicability of the statutes cited and argues that
the only federal authority directly on point specifically states that plasma donation centers do not
provide health care services. See Standards for Privacy of Individually Identifiable Health
Information, 60 Fed. Reg. 82,574 (Dec. 28, 2000) (indicating that plasma donation centers are
exempt from the Health Insurance Portability and Accountability Act “HIPAA” because they do
not provide “health care services” to “patients”).
As an initial matter, the same service-provider reasoning relied upon by the court to
conclude that plasma donation centers do not qualify as “other service establishments” also
applies here and precludes the inclusion of a plasma donation center as a “professional office of a
health care provider.” Consistent with the other establishments listed under subsection (F), a
health care provider provides a service to the public in return for compensation. To the contrary,
plasma donation centers do not provide a health care service to the public, but instead are
involved in the manufacturing of plasma for profit.
Further, the court has reviewed the federal and state statutory provisions referenced by Mr.
Levorsen and is convinced that the definition of “health care provider” must be viewed in the
unique context in which it is presented. Specifically, the provisions cited apply to the definition
of “health care provider” under unique and varied provisions of the Public Health and Welfare
Code pertaining to Health Information Technology and Quality, the Social Security Act, the
Social Security Act’s Title on Health Insurance for the Aged and Disabled, the Utah Health Care
Malpractice Act and the Utah Health Code. Thus, while informative, none of the definitions
reference plasma donation centers and there is no evidence that Congress intended these
include “blood plasma”).
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definitions of “health care provider”, as defined under unrelated federal and state statutes and
regulations, to apply and assist in defining the term as set forth under the ADA.9
B. Policy Considerations
This case challenges the court to separate the emotional appeal of Mr. Levorsen’s
arguments from the legal appeal of his claim under the ADA. The emotional appeal of the claim
requires reconciling the seeming lack of proportionality between Octapharma’s safety concerns,
which never manifested (and based upon Mr. Levorsen’s doctor’s evaluations were unlikely to
ever do so), and the wholesale exclusion of Mr. Levorsen from the plasma donation process.
Additionally, the court notes the striking absence of any similar accommodations
explicitly listed under § 12181(7) that, like plasma donation, involve and facilitate an individual’s
donation of a biological material examples of which include blood donation, sperm donation, egg
donation, bone marrow donation and stem cell donation. These industries and establishments
supporting biological material donation encompass technology and concepts that appear to
approach the peripheries of the term “public accommodation.”
Ultimately, however, the court recognizes that its rulings are guided by the state of the law
as it stands and that the wholesale inclusion of the plasma donation industry, within the confines
of the categories set forth under 42 U.S.C. § 12181(7), would be a question most appropriately
9
Similarly, the court finds Mr. Levorsen’s reliance upon the case of Smith v. Paslode
Corp. to be misplaced. 7 F.3d 116 (8th Cir. 1993). While the Eigth Circuit held that the Red
Cross was an entity and that “the procurement, processing, distribution, or use of whole blood,
plasma, blood products and blood derivatives from transfusion into the human body is a service,”
that holding was specifically based upon a Missouri state statute that has no application to the
ADA. Id. at 117; Missouri State. Ann. § 431.069. Further, the facts in Smith involved the
supply of blood products by the Red Cross for transfusion purposes and are therefore
distinguishable from the circumstances surrounding Octapharma and the manufacturing of
plasma for profit.
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directed to the United States Congress.
IV. CONCLUSION
Based hereon, the court concludes that Octapharma, a plasma donation center, does not
qualify as a place of public accommodation as contemplated under the ADA and therefore
Octapharma is not subject to 42 U.S.C. § 12182.
Accordingly, Octapharma’s Motion To Dismiss is hereby GRANTED (doc. 10).
IT IS SO ORDERED.
DATED this 1st day of December, 2014.
BY THE COURT:
____________________________________
Dustin Pead
U.S. Federal Magistrate Judge
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