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National Association of Deaf v. District Hospital Partners, L.P.

United States District Court, District of Columbia

February 4, 2016

NATIONAL ASSOCIATION OF THE DEAF, et al., Plaintiffs,
v.
DISTRICT HOSPITAL PARTNERS, L.P., d/b/a THE GEORGE WASHINGTON UNIVERSITY HOSPITAL Defendant. Re Document No. 13

MEMORANDUM OPINION GRANTING PLAINTIFFS’ MOTION TO STRIKE DEFENDANT’S EXPERT DESIGNATION OF IRENE BOWEN AND TO PRECLUDE HER TESTIMONY

RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

Three individual plaintiffs who are deaf, along with the National Association of the Deaf (“NAD”), on behalf of its members, have initiated this action against George Washington University Hospital (“GWUH”). Plaintiffs claim that the hospital’s use of video remote interpreting (“VRI”) services as a method of providing American Sign Language interpretation fails to ensure that patients or their companions are afforded the “effective communication” Title III of the Americans with Disabilities Act (“ADA”) and its implementing regulations requires.[1]Plaintiffs have moved to strike the expert designation and testimony of GWUH expert witness Irene Bowen, a consultant, attorney, and former Department of Justice official, whose expert report assesses GWUH’s policies respecting communications with individuals who are deaf and concludes that those policies are “consistent with the [T]itle III regulation.” See Pls.’ Mot. Ex. 2 at 15 (“Bowen Report”), ECF No. 13-3. Because Ms. Bowen’s proffered testimony inappropriately opines on whether the legal standard relevant to this case has been met, see Burkhart v. Wash. Metro. Area Transit Auth., 112 F.3d 1207, 1212-13 (D.C. Cir. 1997), the Court will grant Plaintiffs’ motion.

II. FACTUAL BACKGROUND

Title III of the ADA prohibits public accommodations, like hospitals, from discriminating against individuals “on the basis of disability in the full and equal enjoyment of . . . goods, services, facilities, privileges, advantages, or accommodations.” 42 U.S.C. § 12182(a). Such discrimination includes an accommodation’s failure to take the steps necessary to ensure that an individual is not “excluded, denied services, segregated or otherwise treated differently . . . because of the absence of auxiliary aids and services.”[2] Id. § 12182(b)(2)(A)(iii); see also 28 C.F.R. § 36.303. Public accommodations therefore must “furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities, ” although “[t]he type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with” several considerations, including: “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.” 28 C.F.R. §§ 36.303(c)(1), (c)(1)(ii). Auxiliary aids may include qualified interpreters provided by “video remote interpreting (VRI) services”-in which an interpreter communicates with an individual remotely, akin to videoconferencing technology-so long as those services provide effective communication under the circumstances. Id. § 36.303(b)(1).

Plaintiff NAD and individual plaintiffs Robbie Carmichael, Carrie St. Cyr, and Allison McGuigan have initiated this action claiming that GWUH has failed to provide the auxiliary aids and services necessary to ensure effective communication with Plaintiffs and other individuals who are deaf. See Compl. ¶ 3, ECF No. 1. Specifically, Plaintiffs claim that GWUH’s use of VRI services, in lieu of in-person interpreters, denied the individual plaintiffs effective communication and therefore violated Title III of the ADA, Section 504 of the Rehabilitation Act, and the D.C. Human Rights Act. See Id. ¶¶ 168, 177, 185, 193. Plaintiffs also seek injunctive relief to require GWUH to use on-site interpreters, at least in some circumstances. See Id. at 25-26.

Plaintiff Carrie St. Cyr, for example, alleges that during sixteen hours of labor at GWUH she had difficulty communicating with the VRI interpreter GWUH provided, was unable to remain in a consistent position to view the video screen, that the video quality was poor and choppy, that the connection was lost on several occasions, requiring additional time to reconnect, that some of the staff was unfamiliar with how to use the machine, and that the remote interpreter made various mistakes in communicating information to Ms. Cyr. See Am. Compl. ¶¶ 1, 89, 91- 92, 95. Plaintiffs Robbie Carmichael and Allison McGuigan allege that they faced similar difficulties at GWUH when they were treated during surgery or in the emergency room. See Id. ¶¶ 48-77, 120-156. In some cases, the individual plaintiffs claim that they were impelled to provide their own interpreters or that family members were forced to relay information to them in order to effectively communicate with hospital staff. See Id. ¶¶ 49, 89.

GWUH has designated Irene Bowen as an “expert in the ADA and its requirements regarding effective communication.” Def.’s Mem. Opp’n to Pls.’ Mot. to Strike at 2 (“Def.’s Mem. Opp’n”), ECF No. 18. Ms. Bowen is the founder and President of ADA One, LLC, a consulting firm that advises “state, local, federal, and private entities about compliance with the ADA and related laws.” Bowen Report at 2. Ms. Bowen is an attorney, and spent twenty-six years at the Department of Justice. See Pls.’ Mot. Ex. 1. Most pertinent to this case, she served as the Deputy Chief of the Disability Rights Section in the Department of Justice’s Civil Rights Division from 1992 until 2008.[3] See Id. During that time, she was involved in crafting the proposed ADA regulations issued in 2008, which were implemented in final form in 2010. See Bowen Report at 2. She also explains that she supervised the first enforcement litigation brought by the Department of Justice against a hospital regarding its use of VRI, and states that the 2010 regulatory requirements specific to VRI were based on that litigation. See id.

Ms. Bowen’s expert report states that she was asked to review GWUH’s policies and practices regarding communication with individuals who are deaf or hard of hearing, with emphasis on the use of VRI services. She was asked “to evaluate whether these [policies] were compliant with the applicable statutory and regulatory requirements” under Title III of the ADA and Section 504. Id. at 1-2. She acknowledges that “the determination of whether effective communication is provided is made on a case-by-case basis, ” but notes that her “focus . . . was on GWUH’s policy, ” generally. Id. at 6. In a background section of the report, Ms. Bowen briefly discusses her “understanding of all the federal requirements of effective communication, and the way in which DOJ has come to apply them to VRI in particular in the last several years.” Id. at 4-6.

Ms. Bowen also sets out her understanding of the policy’s features, based on her interview with Keisha Mulling-Smith, GWUH’s Director of Patient Experience, her review of various internal policies, e-mail correspondence, training materials, and other documents, and her observations of a demonstration of GWHU’s process for linking to a VRI service provider. Id. at 3-4, 7-11. Ms. Bowen detailed “ten features” that she believes describe the policy, quoting, where relevant, from GWUH documents. See Id. at 7-11. She explains that, under the current GWUH policy, VRI is the primary method for sign language interpretation at the hospital, although in-person interpreting services may be provided in certain situations. See Id. at 9.

After describing the policy, Ms. Bowen’s report presents her assessment and opinion. She explains that she “reviewed the GWUH policy against eight regulatory requirements, ” id. at 6, which, as explained below, are all lifted directly from the relevant regulation, see 28 C.F.R. § 36.303(c)(1)(ii), (f). Ultimately, Ms. Bowen concludes that, “[a]pplying the eight regulatory requirements . . ., it is my view that the Hospital’s policy as a whole complies with the ADA when applied appropriately on a case-by-case basis.” Bowen Report at 11; see also Id. at 15 (“The GWUH policy about interpreters and their provision either through on-site services or through VRI is consistent with the title III regulation.”)

III. ANALYSIS

Plaintiffs have moved to strike Ms. Bowen’s expert designation and exclude her proffered testimony, arguing that it supplies an inadmissible legal conclusion. The Court agrees and will grant the motion.

The Federal Rules of Evidence provide, in relevant part, that “[a] witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if . . . the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” Fed.R.Evid. 702. This Circuit applies a “two-part test for determining the admissibility of expert testimony.” Burkhart v. Wash. Metro. Area Transit Auth., 112 F.3d 1207, 1211 (D.C. Cir. 1997). First, a court should ask whether the witness is qualified. Id. If the witness is qualified, the court then asks whether the expert’s testimony would be “capable of ...


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