September 3, 2019

3M Earplugs and Hearing Loss

Our firm has handled many cases involving the rights of deaf clients.  These matters normally arise when a deaf person has not received effective communication in a health care setting, or during an interaction with law enforcement personnel.  This post is about a different type of case we are working on – involving a defectively designed product, the 3M earplug – and hearing loss.  The 3M “Combat Arms™” earplug was widely used by American service members since 2003; in a complaint filed by the United States government against 3M, the government alleged that “the military likely purchased, at a minimum, one pair of 3M’s Combat Arms™ earplugs for each deployed soldier annually involved in certain foreign engagements between 2003 and 2015” – in other words, unfortunately, a very large number.  The complaint further noted that “[d]ata collected by the VA indeed shows that as many as 52% of combat soldiers return from foreign conflicts with significant hearing damage.” 

The Product

The “Combat Arms™” earplugs, which are the subject of these lawsuits, are non-linear, or selective attenuation, earplugs.  The earplugs were designed to provide service members with a single set of earplugs offering two options for hearing attenuation; the product was created by a company called Aearo Technologies.  In 2003, and several times since then and through 2015, 3M/Aearo was awarded several Indefinite Quantity Contracts IQC’s in response to the military’s Request for Proposal RFPs to supply large quantities of Combat Arms earplugs to the military.  According to the government’s complaint, 3M acquired Aearo in 2008 and hired the Aearo employees that had developed and tested the defective earplugs.  Hence, these 3M employees knew of the defects as early as 2000, several years before 3M/Aearo became the exclusive provider of the earplugs to the military. 

As the government alleged, as known by 3M/Aearo, the earplugs were defectively designed in that they become loose in the wearer’s ear – unfortunately, imperceptibly to the wearer – allowing damaging sounds to enter the ear canal.  Aearo, the government alleged, knew about this design defect in 2000.  Aearo then submitted false statements to the government in a bid to supply the military with large quantities of the earplugs.       

The Joint Panel of Multidistrict Litigation and the 3M Multidistrict Litigation

In January 2019, Plaintiff John Ciaccio filed a lawsuit against 3M Company and Aearo Technologies in federal court in Minnesota.  Mr. Ciaccio served in the United States Marine Corps from 1991 through 2017, made multiple deployments during his career, and used the Combat Arms earplugs.  He was diagnosed with hearing loss and tinnitus in 2009.    

He then filed a petition with the Joint Panel on Multidistrict Litigation to centralize pretrial proceedings for 3M earplug cases.  Centralization would place the cases against 3M in front of a single federal judge, to control and coordinate discovery for the cases, issue consistent pretrial rulings, resolve disputes, and appoint a plaintiff leadership group to help advance the cases.  The judge may also preside over some trials for the proceeding.  Mr. Ciaccio requested Minnesota federal court as the site for the multidistrict litigation. 

Multi-district litigations (“MDL’s”) are common when a large number of people have been injured by a specific product.  After a period to allow for other parties to submit briefings, the panel convened to hear argument over whether the 3M cases should be centralized, an if so, where.  The Panel issued a transfer order on April 3, 2019, which centralized the 3M cases in the Northern District of Florida (Pensacola).  Judge M. Casey Rodgers is the presiding judge.  Judge Rodgers will handle cases involving hearing loss and/or tinnitus.   

The MDL is in its early stages.  The judge has issued several pretrial orders to advance the case; one of the significant events in an MDL – the filing of a “master complaint” containing allegations against the Defendants which are common for all Plaintiffs – has not yet occurred.  The Court recently conducted a “Science Day” wherein presentations regarding scientific issues related to the 3M’s were given.        


August 14, 2019

Bustos v. Dignity Health – an Arizona district court opinion analyzing effective communication and the deliberate indifference standard in a hospital setting.  

In Bustos v. Dignity Health, No. CV-02882-PHX-DGC, 2019 WL 3330549 (D. Az. Aug. 2, 2019), the Arizona district court addressed several issues related to effective communication during medical treatment in a hospital.  The court denied the Defendant’s summary judgment motion as genuine issues of material fact existed as to whether Plaintiff was able to effectively communicate with the hospital staff, and over whether the Hospital was deliberately indifferent to Plaintiffs’ communication needs.            

The Plaintiff 

Plaintiffs are Daniel Bustos and his daughter Constancia.  Daniel lost his hearing at the age of 3 and primarily communicates by American Sign Language.  Constancia is proficient in ASL, although she was not a licensed interpreter.    


Defendant operates a hospital in Arizona called Chandler Regional Medical Center (“the Hospital”). 

Facts of the Case

On September 13, 2015, the Plaintiffs went to Defendant’s hospital because Daniel Bustos was suffering from chest pain.  He underwent heart surgery to repair a blocked artery and was discharged one day after the surgery.

Plaintiffs filed suit in August 2017, alleging that the Hospital discriminated against them based on Daniel’s deafness.  Plaintiffs alleged that the Hospital failed to provide effective communication, and forced Constancia to serve as an interpreter for Daniel.  The Plaintiffs further claimed that the Hospital’s video remote interpreting (“VRI”) system, a potential auxiliary aid, never worked, and Plaintiffs’ requests for an in-person interpreter were denied.  The complaint alleged violations of the Americans with Disabilities Act, the Rehabilitation Act, the Patient Protection and Affordable Care Act, and the Arizonans with Disabilities Act.  The Hospital moved for summary judgment.

The District Court Opinion

The Court noted, in its preliminary discussion of applicable law, that the auxiliary aid “necessary to ensure effective communication will vary in accordance with the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place.”  Here, the treatment was a serious and complicated heart procedure.  “In determining what type of auxiliary aid is necessary, a public entity must ‘give primary consideration’ to the accommodation requested by the disabled individual.”  As noted, Plaintiffs had requested an ASL interpreter.  The Court further noted that the ADA’s implementing regulations prohibit a hospital from requiring a deaf patient to bring another person to interpret for him, and also prohibit the hospital from relying on the patient’s companion to interpret except under limited circumstances, which were not applicable here.  

The Hospital asserted that Daniel was provided effective communication during his hospital stay because he was offered and used VRI.  But “[a] hospital that chooses to use VRI must ensure that it provides video and audio over a connection that delivers ‘clear, audible transmission of voices’ and ‘high-quality video images that do not produce lags, choppy, blurry, or grainy images, or irregular pauses in communication,’” and Plaintiffs countered that the hospital’s VRI never functioned properly, explaining that the VRI “would freeze up and not work, all the time.”

The Hospital also contended that Daniel could communicate medical information in writing because “he learned English in school, uses emails, text messages, and online shopping and banking, and communicates with customers at work through written notes.”  But Daniel stated that it was “really hard” for him to write in the hospital because one hand was bandaged and an IV was in the other hand.  He further stated that his English was not very good “so writing back and forth wouldn’t be the greatest communication.”

Crucially, Daniel was hospitalized for a life-threatening medical condition.  His natural and preferred language is ASL, and the Court found that “primary consideration” must be given to his choice of auxiliary aid.  Thus, “[w]hether the use of written notes concerning his serious medical condition and surgery was an effective form of communication is for the jury to decide.”

Regarding Constacia’s interpretation, although the Hospital argued that she had interpreted voluntarily, the Court found that a jury reasonably could find that the Defendant forced Constancia to interpret for Daniel.

The Court then analyzed whether there was a dispute of material fact regarding deliberate indifference because “[e]ven where a plaintiff has established that a covered entity violated [the statutes] by failing to ensure effective communication, a plaintiff is not entitled to monetary damages absent a showing of an ‘intentional violation.”  Plaintiffs’ testimony that they repeatedly requested an in-person interpreter allowed the Court to find in their favor, as “the evidence support[ed] a finding that hospital staff deliberately ‘disregarded a substantial risk that [Daniel was] being denied effective communication.’”

August 5, 2019

Tauscher v. Phoenix Board of Realtors, Inc. – a Ninth Circuit opinion regarding whether the interactive process required by Title II of the Americans with Disabilities Act is applicable to Title III ADA claims.  

In Tauscher v. Phoenix Board of Realtors, Inc., No. 17-17218, 2019 WL 3330549 (9th Cir. July 25, 2019), the Ninth Circuit addressed several issues raised by the Defendants’ denial of Plaintiff’s request to provide an American Sign Language interpreter at their continuing education courses, including the question of whether the interactive process mandated by Title II applies to Title III claims.  The Ninth Circuit held that Title III claims did not require this process.          

The Plaintiff 

Mark Tauscher is a full-time branch manager for product development for Sprint, and also a licensed real estate salesperson in Arizona.  Tauscher has profound hearing loss, meaning that he cannot hear sounds that are less than 90 decibels loud, which the Court noted was “about as loud as a lawnmower.”  Tauscher’s primary and best form of communication is American Sign Language (ASL).


The Phoenix Association of Realtors (“PAR”) is a trade association for real estate professionals who sell real property in the Phoenix metropolitan area.

Facts of the Case

Tauscher registered for a continuing education with PAR, scheduled for February 2013.  In September 2012, Tauscher asked PAR to provide an ASL interpreter for the course.  PAR declined, instead offering Tauscher the use of an FM Loop system that amplifies sound.  Tauscher rejected this aid, explaining that the severity of his hearing loss rendered this option ineffective.  Scherer and PAR discussed the possibility of closed or open captioning, but no agreement was reached.

In February 2013, PAR responded to Tauscher’s request for an auxiliary aid or service via a letter prepared by their counsel, again rejecting Tauscher’s request for an ASL interpreter.  PAR stated that it lacked the resources to provide an ASL interpreter, and that an interpreter would unduly burden the organization.

The letter proposed three other options.  First, it said that if Tauscher wanted “to attend the class and utilize lip reading, PAR [could] make the instructor available for questions at breaks and lunch.”  Second, it stated that “if [Tauscher knew] another real estate agent who [was] willing to sign for [him], PAR [would] provide the instruction and credits free to that person.”  Third, PAR noted that Tauscher could take online courses to fulfill the continuing education requirements.  

In October 2014, Tauscher registered for another PAR course and again requested that PAR provide an ASL interpreter.  PAR again declined.  Tauscher thereafter filed suit, alleging violations of the ADA and the Arizonans with Disabilities Act.  The parties filed cross-motions for summary judgment, and the district court granted PAR’s motion. 

The District Court Opinion

The district court held that PAR satisfied its ADA requirements by engaging in a dialogue with Tauscher about his request for an ASL interpreter; PAR was relieved from further ADA obligations because Tauscher refused to consider any measures other than an ASL interpreter. 

The Ninth Circuit Opinion

Tauscher argued that the district court erred in granting summary judgment because a genuine issue of material fact existed as to whether PAR failed to provide him with “appropriate auxiliary aids and services” that would “ensure effective communication.”  The Ninth Circuit was not receptive to Tauscher’s argument that PAR failed to discharge its ADA obligations because it failed to provide an ASL interpreter; however, the Court agreed with Tauscher that there was a genuine issue of whether measures to provide effective communication had been offered. 

The Ninth Circuit noted that PAR offered Tauscher several different measures over the course of its communication with him, some of which were not effective means of communication.  For example, PAR did not dispute that the FM Loop system was not an effective means of communication for Tauscher.  Several of PAR’s suggested alternatives – such as having a friend interpret – were not an effective means of communication as a matter of law.

PAR has also argued that it satisfied its ADA obligations because Tauscher refused to engage in a discussion about alternative auxiliary aids other than an ASL interpreter.  The Ninth Circuit noted that “[t]his argument is based on the ADA’s requirements in the employment context.  In this context, a covered employer generally must provide a reasonable accommodation for an otherwise qualified employee or applicant with a disability, if such an accommodation is requested.”  For an employer “to identify an appropriate reasonable accommodation, [it] generally must ‘initiate an informal, interactive process with the individual with a disability in need of the accommodation.’”  This process “requires communication and good-faith exploration of possible accommodations between employers and individual employees, and neither side can delay or obstruct the process.” 

But the ADA does not make this “interactive process” requirement applicable to public accommodations and services.  Title III and its implementing regulations “make no mention of an ‘interactive process’ that mirrors the process required in the employment context.”  The Court further noted that “[a]lthough the regulations suggest 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,’ the public accommodation itself is independently responsible for making the ‘ultimate decision as to what measures to take.’”  Further, there is not any basis for holding “that a public accommodation is relieved of its obligation to provide appropriate auxiliary aids and services if the individual requesting such measures fails to engage in a good faith exploration of what measures would provide effective communication.”

June 3, 2019

Hamer v. City of Trinidad, No. 17-1456, 2019 WL 2120132 (10th Cir. May 15, 2019) – an important opinion regarding the statute of limitations in Title II cases.

In Hamer v. City of Trinidad, the Tenth Circuit addressed the question of whether a public entity “violate[s] Title II and section 504 only when it initially constructs or creates a non-compliant service, program, or activity,” or “does a public entity violate Title II and section 504 repeatedly until it affirmatively acts to remedy the non-compliant service, program, or activity?”  Choosing the latter, the Tenth Circuit held that “a public entity violates Title II of the Americans with Disabilities Act and section 504 of the Rehabilitation Act each day that it fails to remedy a noncompliant service, program, or activity.”  Thus, “the applicable statute of limitations does not operate in its usual capacity as a firm bar to an untimely lawsuit.  Instead, it constrains a plaintiff’s right to relief to injuries sustained during the limitations period counting backwards from the day he or she files the lawsuit and injuries sustained while the lawsuit is pending.”  Hamer v. City of Trinidad, No. 17-1456, 2019 WL 2120132, at *1 (10th Cir. May 15, 2019).

The Plaintiff 

Plaintiff Stephen Hamer, a resident of Trinidad, Colorado, is confined to a motorized wheelchair due to “severe bilateral ankle problems.”  Hamer, 2019 WL 2120132 at *2.  Hamer primarily used the city’s public sidewalks to move about in his wheelchair, and contended that many of the city’s sidewalks, as well as the curb cuts allowing access onto those sidewalks, did not comply with Title II of the ADA and section 504 of the Rehabilitation Act.  Id.  Plaintiff attended an April 2014 city council meeting and informed City officials that he “had personally counted seventy-nine non-compliant sidewalks and curb cuts throughout the city.”  Id.    

At the end of April 2014, Hamer filed an ADA complaint with the United States Department of Justice (“DOJ”) informing the government about this noncompliance.  Plaintiff continued to attend city council meetings, and to lodge complaints, over the next several months.  Plaintiff filed his lawsuit against the city on October 12, 2016, for violations of Title II and section 504.  Id.  As in his DOJ complaint, Plaintiff complained of the City’s allegedly deficient sidewalks and curb cuts.

The District Court Opinion  

The district court granted summary judgment to the City on statute-of-limitations grounds. Because neither Title II nor section 504 explicitly provides for a statute of limitations, the district court applied Colorado’s general two-year statute of limitations, stating that “[w]here Congress creates a cause of action without specifying the time period within which it may be brought, courts may infer that Congress intended the most analogous state statute of limitations to apply.”  Id.       

The district court then noted the general rule that “[t]he statute of limitations begins to run when the plaintiff knows or has reason to know of the existence and cause of the injury which is the basis of his action;” the district court thus concluded that Plaintiff must have “discovered” or “encountered” the City’s non-compliant sidewalks and curb cuts no earlier than October 12, 2014—i.e., two years before filing his lawsuit—to defeat summary judgment.  Id.  The district court found that Plaintiff’s claims most likely accrued in April 2014, at the time Plaintiff first raised his concerns about the City’s sidewalks and curb cuts at the City Council meeting and with the DOJ.  The district court also determined that Plaintiff’s claims must have begun to accrue “at the very latest[ ] in August 2014” when he expressed his concerns at a City Council meeting for the final time.”  Id.  

The district court rejected Plaintiff’s argument that the continuing violation doctrine could prevent his claims from being untimely.  This doctrine applies “‘when the plaintiff’s claim seeks redress for injuries resulting from a series of separate acts that collectively constitute one unlawful act,’ as opposed to ‘conduct that is a discrete unlawful act.’”  Id. at 3.

The Tenth Circuit Opinion

The Tenth Circuit, however, held that the continuing violation doctrine did apply to Plaintiff’s claims.  “We hold that the repeated violations doctrine applies to claims under Title II of the Americans with Disabilities Act and section 504 of the Rehabilitation Act of 1973…. a public entity repeatedly violates those two statutes each day that it fails to remedy a non-compliant service, program, or activity.”  Id. at 6.  Accordingly, “a qualified individual with a disability is excluded from the participation in, denied the benefits of, and subjected to discrimination under the service, program, or activity each day that she is deterred from utilizing it due to its non-compliance. She stops suffering a daily injury only when the public entity remedies the non-compliant service, program, or activity or when she no longer evinces an intent to utilize it.”  Id.

The Tenth Circuit noted that the  “practical effect is that, once the individual sues under Title II or section 504, the statute of limitations bars recovery only for those injuries she incurred outside of the limitations period immediately preceding the day of suit; it does not, however, bar recovery for injuries she incurred within that limitations period or after she files suit.”  Id.  Based “on the plain language of Title II of the ADA and section 504 of the RA, Supreme Court jurisprudence interpreting Title II, and Congress’s express statutory purposes in enacting the ADA and RA, we hold that Title II and section 504 clearly and unambiguously require us to acknowledge they are subject to the repeated violations doctrine.”  Id. at 9.  

For purposes of injury, “each time a qualified individual with a disability encounters or ‘actually become[s] aware of’ a non-compliant service, program, or activity ‘and is thereby deterred’ from utilizing that service, program, or activity, he or she suffers discrimination and a cognizable injury.”  Id.  Thus as long as the service, program, or activity remains non-compliant, “and so long as a plaintiff is aware of [that] and remains deterred,” the qualified individual’s injury repeats. 

April 2, 2018

McBride v. Michigan Dep’t of Corrections, Case No. 15-11222, 2018 WL 1224783 (E.D. Mich. Mar. 9 2018) – a significant opinion regarding auxiliary aids for deaf and hard of hearing prisoners

In a recent summary judgment decision in McBride v. Michigan Dep’t of Corrections, Case No. 15-11222, 2018 WL 1224783 (E.D. Mich. Mar. 3 2018), Plaintiffs secured summary judgment on several significant aspects of their case, while the Defendants’ motion for summary judgment was denied.  Plaintiffs Mary McBride and Ralph Williams represent a class of deaf or hard of hearing individuals in the custody of the Michigan Department of Corrections (“MDOC”) who require hearing-related accommodations for various reasons.  This blog entry will focus on two aspects of the case – the discussion of teletypewriter (“TTY”) and video relay service (“VRI”) technology, and the Court’s analysis of “high stakes” encounters – such as medical appointments – requiring an interpreter.  Plaintiffs prevailed on summary judgment regarding these two issues.     

Plaintiffs sued the MDOC and various agency administrators and prison wardens, asserting violations of the American Disabilities Act, 42 U.S.C. § 12101, et seq.; the Rehabilitation Act, 29 U.S.C. § 794, et seq.; The Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc, et seq.; and the Free Exercise and Free Speech Clauses of the First and Fourteenth Amendment.  Plaintiffs sought declaratory and injunctive relief to remedy these alleged violations.  Id.

More specifically, Plaintiffs sought, inter alia, a Court Order (1) declaring that the Defendants have violated the foregoing laws, and (2) enjoining Defendants from “refusing to provide the proper interpretive services, TDD, videophones, and other hearing devices that are required for deaf and hard of hearing inmates to fully participate in and benefit from the programs offered by [the MDOC and its facilities], and required to ensure their physical safety.”  Id.

The Court had previously certified a class of “all deaf and hard of hearing individuals in the custody of the [Michigan Department of Corrections (the “MDOC”) ] (whether now or in the future), who require hearing-related accommodations, including but not limited to interpreters, hearing devices, or other auxiliary aids or services, to communicate effectively and/or to access or participate in programs, services, or activities available to individuals in the custody of the MDOC.”  Id. at *3. 

ADA Title II Regulations

Title II’s implementing regulations provide that “[a] public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of a disability.”  28 C.F.R. § 35.130(b)(7).  For hearing disabilities specifically, public entities must “take appropriate steps to ensure that communications with ... participants ... with disabilities are as effective as communications with others,” id. § 35.160(a)(1), and to “furnish appropriate auxiliary aids and services where necessary to afford individuals with disabilities ... an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity of a public entity,” id. § 35.160(b)(1).  To be “effective,” “auxiliary aids and services must be provided in accessible formats [and] in a timely manner.”  Id. § 35.160(b)(2).

TTY Technology

The MDOC had provided deaf and hard of hearing prisoners with access to teletypewriters, or “TTYs,” to meet their communication needs, but not video-based communication equipment, such as videophones and video relay service (“VRS”).  Id.  Plaintiffs argued, persuasively, that they could not communicate effectively without such video-based communication tools.  The Court found that Plaintiffs factually established this assertion, awarding summary judgment. 

The Court noted that “[d]uring the past 10 to 15 years, Deaf people have eagerly and quickly replaced TTYs with Videophones [ ] for two very understandable reasons.  First, TTYs require communication in typed English (the second language for most [deaf] and hard of hearing people and a language in which, as noted above, they rarely attain any significant level of fluency).”  Id.   Second, “because TTY conversations are typed, those conversations take significantly longer and thus when [deaf] or hard of hearing people use TTYs they tend to keep conversations very brief (e.g. to make arrangements to meet in person).”  Id. 

By contrast, videophones “enable [deaf] and hard of hearing people to communicate using American Sign Language, a language in which they are much more comfortable and fluent.  Thus their [videophone] conversations are not encumbered by written English nor slowed by having to type.  Signed [videophone] conversations are analogous to spoken telephone conversations.”  Id.  The Court therefore ordered MDOC to make videophones available to all deaf and hard of hearing prisoners.  Id.   


“High-Stakes” Interactions

The Court also considered whether the MDOC provided deaf and hard of hearing inmates with access to sign language interpreters that enabled them to communicate and participate in programs and activities inside the prison to the same extent as hearing prisoners.  Id.  The McBride Plaintiffs focused “on their need for ASL interpreters in what they label ‘high-stakes’ interactions and programs, including, ‘unexpected medical emergencies, hospital visits, psychological evaluations, offender treatment programs, disciplinary/investigative proceedings, religious activities, and educational courses and evaluations.’”  Id. 

The Plaintiffs asserted that the MDOC “does not provide sufficient access to auxiliary aids for deaf and hard of hearing prisoners to communicate and participate in programs and activities inside the prison on an equal basis with hearing prisoners” and that “sign language interpreters are often unavailable” which required these prisoners to “rely on untrained and uncertified fellow inmates as de facto interpreters.”  

Defendants asserted that “[t]he evidence simply does not bear out this allegation,” and that “translation services are offered for all programming that is operated by MDOC staff.”  Importantly, the Court rejected Defendants’ argument that MDOC’s failure to provide interpreter services in connection with a health care visit “would not violate the ADA if the prisoner failed to “establish[ ] that she was not able to get necessary or effective medical treatment.”  

This argument failed, the Court held, because it incorrectly focused “on the outcome of any particular prisoner’s health care visit when the MDOC’s obligation under the law arises before, and in connection with, the visit; the MDOC must provide accommodations to deaf and hard of hearing prisoners sufficient to afford them ‘an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity’ of a the MDOC’s facilities.’”  Id.  (emphasis in original).  As the Court noted, “the issue is particularly acute in the health care setting where the accurate communication of information between patient and medical provider during the visit can significantly impact the patient’s health and well-being.”  Id.  (emphasis in original).  Thus, “a positive outcome in any particularly medical appointment does not necessarily mean that equal participation was offered or took place.”

The Court found that “the undisputed evidence is that (1) before this lawsuit was filed, the MDOC’s deaf and hard of hearing prisoners’ rights under the ADA were violated when they were not provided with ASL interpreters during high-stakes interactions such as health care visits, (2) since this lawsuit was commenced, some advancements have been made in that area, but as noted above, there still have been numerous instances since that time of these prisoners not receiving ‘effective’ accommodations, such as when an inmate’s medical appointment had to be rescheduled because no ASL interpreter was present at the appointed time, and (3) absent Court-ordered injunctive relief, there remains a real risk that these ADA violations will continue.  

Accordingly, Plaintiffs were entitled to summary judgment on this aspect of their ADA and Rehabilitation Act claims.  Id.  The Court ordered the MDOC to “[p]rovide necessary auxiliary aids for all deaf and hard of hearing prisoners to participate equally in prison programs and services, including consistent access to ASL interpreters for all ‘high-stakes’ interactions and programs.”     



Nov. 1, 2017

McGann v. Cinemark USA, Inc.  – An important Third Circuit decision regarding auxiliary aids   

In its recent decision in McGann v. Cinemark USA, Inc., No. 16-2160, 2017 WL 4451043 (3d Cir. Oct. 6, 2017), the Third Circuit analyzed the “auxiliary aid” requirement of the ADA in the context of a request for an interpreter in a movie theater.  In a favorable opinion for deaf and hard of hearing plaintiffs, the Court reversed the District Court’s dismissal of Plaintiff’s Americans with Disabilities Act (“ADA”) claim.  This is an important case for this community because the opinion defines the “service” provided by an entertainment venue, distinguishes a separate line of cases where ADA claims had failed, and clarifies the auxiliary aid requirement in the context of entertainment venues.  As an additional benefit, the DOJ intervened in the case as amicus curiae, and in the course of briefing, strengthened an upcoming rule regarding captioning in movie theaters.      

The Plaintiff

Plaintiff-Appellant Paul McGann is blind and deaf.  McGann, 2017 WL 4451043 at *1.  He has Usher’s Syndrome Type 1, a sensory disorder.  McGann was born deaf, and started losing his sight at age five.  Id.  An avid moviegoer, he asked that Defendant/Appellee Cinemark USA, Inc. provide an American Sign Language (“ASL”) tactile interpreter so that he could experience the movie “Gone Girl” in his local Cinemark theater during a regular showing.  Id. at *2.  McGann filed suit under the ADA after Cinemark denied his request.  


The Third Circuit noted that “[a]s of December 2014, Cinemark was the most geographically diverse, worldwide exhibitor of movies, with 335 theaters and 4,499 movie screens in the United States, spread across forty-one states, including Pennsylvania.”  Id. at 2.  Cinemark “makes assistive listening devices, closed captioning devices, and descriptive narration devices available in its U.S. theaters to patrons who are disabled.”  Unfortunately, none of those devices would help Plaintiff experience a movie.  Id.   

The District Court Decision

After a bench trial, the District Court found for Cinemark, holding that Title III did not obligate Cinemark to honor McGann’s request because (a) his requested tactile interpreter was not an “auxiliary aid or service” that satisfied the statutory definition, and (b) McGann was not excluded from or denied Cinemark’s services by the theater’s denying him a tactile interpreter to experience the movie.  Although the District Court acknowledged that “‘qualified interpreters’ are specifically listed in the ADA and the Federal Regulations as an example of an auxiliary aid,” it found that McGann’s requested tactile interpreter did not meet the definition of “auxiliary aids and services.” 

The District Court had used a dictionary to define the word “auxiliary,” and the District Court’s definition was something that has a “supplemental” relationship to something else, not something that is “altogether new or different.”  Using this definition, the District Court reasoned that since Cinemark’s service — presenting movies — did not already include tactile interpretation, tactile interpretation would be a new, not supplementary, service and was therefore not an “auxiliary” service under 42 U.S.C. § 12103(1) and 28 C.F.R. § 36.303.  Id. at *5.     

The Third Circuit's opinion

The Third Circuit found multiple flaws with this conclusion.  Perhaps most importantly, the Third Circuit realized that “applying the District Court’s definition would render the auxiliary aids and services requirement of Title III meaningless.”  Id. at *5.  This is because “[a]ll of the products, technologies, and services explicitly listed in the statute and regulations as examples of auxiliary aids and services would constitute ‘new’ goods or services escaping Title III’s mandate unless they were already provided by a public accommodation voluntarily.”  The result would be that “no public accommodation would need to provide them in the first place.”  Id.

After finding that a tactile interpreter met the definition of “auxiliary aid or service” in the ADA and DOJ implementing regulations, the Court analyzed whether Cinemark’s failure to provide tactile interpretation of the movie excluded McGann from, or denied him, Cinemark’s services.  The Third Circuit found that this failure did exclude him. 

The District Court had placed great weight on the fact that Cinemark did not provide tactile interpretation services for its movies in its normal course of business.  Because of this, the District Court reasoned, tactile interpretation was a “special” service not required under the law. 

The Third Circuit then provided a comprehensive analysis of the “special goods and services” rule.  The District Court had taken the “special goods and services” rule primarily from a line of circuit authority – including the Third Circuit – in which disabled individuals claimed that Title III required insurance companies to alter or modify their insurance policy products in some way.    

The District Court had thus extended the reasoning of these “special goods and services” cases to the auxiliary aids and services requirement, finding that because Cinemark did not normally offer tactile interpretation of movies for any of its customers during regular screenings, tactile interpretation would be a “special” service that is not required.  The District Court’s conclusion, “in the context of the statutory scheme, meant that the ‘special goods and services’ rule served as a limitation on Title III’s mandate that public accommodations provide auxiliary aids and services.”   McGann, at *7.

The Third Circuit rejected this extension; none of these cases even considered the auxiliary aids and services requirement.  Id.  If such reasoning were adopted - and “the auxiliary aids and services requirement” limited by the “special goods and services” rule – the auxiliary aids and services requirement would be effectively eliminated.  Id. at *8.  Unless already provided voluntarily, auxiliary aids and services would never be required, because “[b]y its very definition, an auxiliary aid or service is an additional or different service that establishments must offer the disabled.”  Id.   

“Entertainment venues, such as concert halls and movie theaters, offer to the public something different than stores offering goods or products for purchase.  They offer an entertainment service.”  Customers “pay to experience the entertainment being offered.  The provision of this entertainment service continues after a patron selects a movie of interest, purchases a ticket to that movie, and walks into the auditorium.  So, too, does the obligation to provide auxiliary aids and services.”   

The Department of Justice’s role as amicus, both in the District Court and during the appeal, produced an added benefit.  After oral argument in the case, the DOJ amended 28 C.F.R. § 36.303 to require movie theaters, under their existing Title III obligations, to provide closed captioning and audio description for digital movies presented in those theaters’ auditoriums.  As the Third Circuit noted, the amendments to 28 C.F.R. § 36.303 “impose specific and detailed requirements only on movie theaters presenting digital movies that are produced or distributed with closed captioning or audio description features; almost all new digital movie releases are distributed with such features.”  Id., quoting 28 C.F.R. § 36.303; 81 Fed. Reg. 87,348-01.  The rule requires that “movie theater auditoriums provide closed movie captioning and audio description when showing a digital movie distributed with such features unless doing so would result in an undue burden or a fundamental alteration.”  Federal Register/Vol. 81, No. 232/Friday, December 2, 2016.                            

Because the district court did not reach the question of whether providing a tactile interpreter would have resulted in an undue burden for Caremark, the Third Circuit remanded the case to consider this defense.  In the opinion, however, the Third Circuit noted that rates for a tactile interpreter ranged between $50 and $65 per hour, for a minimum of two hours.  Two interpreters would have been required for the assignment.    

Oct. 8, 2017

Updike v. Multnomah County – The Ninth Circuit analyzes “deliberate indifference.” 

In the recently decided Updike v. Multnomah County, No. 15-35254, 2017 WL 3758346, (9th Cir. Aug. 31, 2017), the Ninth Circuit analyzed the “deliberate indifference” requirement in ADA and Rehabilitation Act claims.  These claims were made by Plaintiff David Updike, who is deaf, against Multnomah County and the State of Oregon, arising from his treatment during pre-trial confinement, arraignment and pretrial supervision.  The district court granted summary judgment to both the County and the State; although the Ninth Circuit upheld the State’s dismissal, it reversed the dismissal of the County.      

The Plaintiff

Plaintiff David Updike has been deaf his whole life.  He communicates primarily through ASL, does not consider himself to be bilingual in English, and does not read or speak English well.  He is not proficient at reading lips because he has never heard English words.  He explained that he “live[s] in the deaf world.”  Updike, 2017 WL 3758346, at *1. 

Plaintiff’s Arrest

In the early afternoon of January 14, 2013, Gresham Police Department officers arrived at Updike’s home in response to a 911 call reporting a disturbance.  Id. at *2.  Although the 911 caller told the operator that the incident involved deaf individuals, the officers did not take an ASL interpreter with them.  The officers arrested Updike and took him to Multnomah County Detention Center (“MCDC”) for booking.  Id.

Plaintiff’s Treatment by the County and the State

During Updike’s confinement at MCDC, the Ninth Circuit noted that he was not given access to an ASL interpreter, a computer, a TTY, video relay services, or pen and paper; he could not call a lawyer or his family members without a TTY device; and he was not able to watch television because there was no video relay service and no closed captioning.  Id. at *3.

Later, on the day of his arrest, Updike was transferred to Multnomah County Inverness Jail (“MCIJ”).  Id.  Plaintiff wrote to an officer there that his neck and back hurt, and he requested pain medication.  No medical provider examined Updike.  Id.  He remained at MCIJ from January 14 through January 16, 2013.  He repeatedly requested a TTY so he could make phone calls, as he observed other inmates able to use telephones during their free time.  Id.  His requests were denied. Updike also wrote a note requesting that an officer turn on closed captioning, but that request was also denied.  MCIJ uses a loudspeaker system to address inmates, but Updike did not hear any of the announcements made while at MCIJ.  Id.

On January 15, 2013, Updike appeared at his arraignment by video, which was the county’s policy.  During the arraignment, Updike could see, but not read, Judge Kathleen Dailey’s lips and noticed that an interpreter was not in the courtroom.  Id. at *4.  Upon learning that Updike was deaf, Judge Dailey postponed Updike’s arraignment to the next day, when an ASL interpreter would be available.  Updike thus spent another night at MCIJ.  Id.

In examining whether the State’s failure to provide an ASL interpreter at the initial arraignment amounted to deliberate indifference, the Ninth Circuit discussed the facts behind the State’s failure in some detail.  The record showed that the County’s Pretrial Release Office conducts pretrial release interviews, including an assessment of the language needs of an individual, such as whether an individual needs an ASL interpreter, or whether the individual requires some other accommodation for hearing loss.  This information, the Ninth Circuit noted, is transmitted to the staff of the Oregon Judicial Department (“OJD”) prior to arraignment.  Id. at *3.  

Plaintiff’s pretrial release documents received by OJD employees noted that Updike required an ASL interpreter.  The Court noted, however, that typically OJD staff prepare for arraignments by looking only at the booking register and not by reviewing the pretrial release report.  Id.

At some time after Updike’s arraignment, the County modified the format of the booking register so that the booking register notifies the court of a need for an accommodation.  Id. As a result of this change, OJD staff are now alerted that a person needs an ASL interpreter or a foreign language interpreter through the booking register.  Id.

On January 16, 2013, Updike again appeared in court by videoconference.  Id. at 4.  At this appearance, an ASL interpreter was provided, and Updike was released that day.  He reported to pretrial supervision on January 17, 2013, where he met with a case manager for the Multnomah County Department of Community Justice’s Pretrial Services Program.  Id.  The case manager conducted intake by written communication, despite the fact that Updike did not agree to conduct intake by writing and had requested — by both signing and speaking — an ASL interpreter and signed requesting an ASL interpreter.  Id.  The case manager denied the request, and explained that Updike should write his requests.  

The Lawsuit and the District Court’s Decision on Summary Judgment Motions  

Plaintiff filed his complaint on September 13, 2013, alleging claims against the City of Gresham, Multnomah County, and the State of Oregon.  In early 2014, the City of Gresham settled.  On June 1, 2014, Updike filed his first amended complaint, bringing several claims: ADA discrimination claims against the State and the County, violations of § 504 of the Rehabilitation Act against the State and the County, common law negligence against the State and the County, and false arrest against the County.  He sought compensatory damages, injunctive relief, and attorneys’ fees and costs.

The State filed a summary judgment motion on April 23, 2014, which the district court granted on October 15, 2014.  The County then filed a motion for summary judgment on November 26, 2014, which the district court granted on March 24, 2015.  The district court entered final judgment on March 24, 2015.

The 9th Circuit’s analysis of claims against the State of Oregon

The gist of Updike’s allegations against the State was that the State failed to arrange for an ASL interpreter at Updike’s first criminal court appearance.  As a result, Updike had to stay at MCIJ for an additional evening.  The district court concluded that Updike did not show that the State acted with deliberate indifference. The State gave evidence that in setting Updike's arraignment, it reviewed the booking register, which did not note his need for an interpreter, but not the pretrial release report, which did note Updike’s need for an interpreter.  Id. at *9.

Plaintiff relied on Robertson v. Las Animas County Sheriff's Department, 500 F.3d 1185, 1199 (10th Cir. 2007) and Chisolm v. McManimon, 275 F.3d 315, 330 (3d Cir. 2001) - cases featuring deaf or hearing-impaired individuals who made court appearances without ASL interpreters – to argue that he was denied the ability to participate at the January 15, 2013 arraignment.  The Ninth Circuit found this reliance unavailing, noting that the Ninth Circuit had a “heightened requirement for a plaintiff to establish that the discrimination was committed with deliberate indifference in order to recover monetary damages under the ADA or § 504.”  Id.

Rather than reflecting deliberate indifference, the Ninth Circuit asserted that the “case reflects an absence of effective communication and coordination between the County’s pretrial services and employees at OJD about the need for an interpreter at Updike’s arraignment.”   Although the Court found it “regrettable” that Plaintiff had to spend an additional night in jail, it found no evidence that the State deliberately failed to order an interpreter at the January 15, 2013 arraignment.  Instead, the evidence showed “bureaucratic slippage that constitutes negligence rather than deliberate action or inaction.” Id.  The Court further noted that “[s]ince Updike’s first arraignment, the County and State have reviewed their procedures and taken the appropriate corrective action, such that this “bureaucratic slippage” is likely to be avoided in the future.”  Id.

The Ninth Circuit Reverses the District Court’s Decision on Claims Against the County  

Although the Ninth Circuit upheld the state’s dismissal, the County’s dismissal was reversed.  The Plaintiff had a long list of allegations against the County, alleging that the County did not provide him with an ASL interpreter and other auxiliary aids in order to effectively communicate while he was in pretrial detainment and under pretrial supervision.  Id. at *10.  These allegations included:

·         Failure to provide an ASL interpreter or TTY during the booking process

·         Failure to provide a TTD to make phone calls

·         Failure to turn on closed captioning on jail televisions

·         Failure to provide an ASL interpreter during his medical evaluation

·         Failure to provide an ASL interpreter during the recognizance interview

·         Failure to provide an ASL interpreter and other auxiliary aids during interactions with pretrial services

The Ninth Circuit found that the County had not presented evidence showing that it actually evaluated the Plaintiff’s communication needs.  Because Title II and § 504 “create a duty to gather sufficient information from the [disabled individual] and qualified experts as needed to determine what accommodations are necessary,” a public entity “must consider the particular individual’s need when conducting its investigation into what accommodations are reasonable.”  Id. at *11.

Explaining the liability standard, the Ninth Circuit noted that “to meet the deliberate indifference test for compensatory damages, the public entity must be on notice that an accommodation is required, and that the entity’s failure to act involved an element of deliberateness.  “A denial of a request without investigation is sufficient to survive summary judgment on the question of deliberate indifference.”  Id.  (emphasis added).   

The Ninth Circuit noted, “even if a jury ultimately determines that the County is correct — a matter that must be left to the jury where, as here, there are disputes of material fact — summary judgment was improper because the County never meaningfully assessed Updike’s limitations and comprehension abilities.  Id. at * 14 (emphasis added).  Updike was not assessed to determine to what extent he would need accommodation to ensure that he could communicate effectively with others during his time in custody and under pretrial supervision.  Yet “[w]hen an entity is on notice of the need for accommodation, it ‘is required to undertake a fact-specific investigation to determine what constitutes a reasonable accommodation.’” Id.

In reversing the grant of summary judgment in favor of the County, the Ninth Circuit did not “hold that Updike necessarily was entitled to have an ASL interpreter as a matter of course to achieve effective communication with County employees or that the County should be subject to liability for failing to provide one.  However, whether the County provided appropriate auxiliary aids where necessary is a fact intensive exercise.”  Id. at *15.