In this week’s Alabama Law Weekly Update, we report on two decisions from the Eleventh Circuit Court of Appeals: a case involving the proper grounds for standing under the Americans with Disabilities Act and the Rehabilitative Act of 1973 for persons associated with a disabled individual and another case addressing the proper timing of Lone Pine orders in mass tort litigation.

McCullum v. Orlando Regional Healthcare System, Inc. — F.3d —-, 2014 WL 4942272 (C.A. 11 (Fla.)) (11th Cir. October 3, 2014) (specifying requirements for standing under the ADA and the RA).

A deaf and mute fourteen year old boy received treatment at two different Florida hospitals for complications arising from a disease of the colon. During his stay at both hospitals, the respective staffs made efforts to communicate with him, using written notes, visual aids and via sign language through his parents and sister. However, neither hospital provided a professionally trained sign language interpreter, nor did the hospitals ask the boy or his parents if they would prefer to have an interpreter provided.

More than two years after the boy was successfully released from the hospitals, the parents filed suit individually and on behalf of the boy and his sister, asserting violations of their rights as provided by the Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973 (RA). The district court dismissed, with prejudice, the claims of the parents and sister and granted summary judgment to the defendants on the boy’s request for injunctive relief and damages. The parents appealed the district court’s ruling.

The parents argued that the district court erred in ruling that they and the sister did not maintain standing to pursue claims under the ADA and RA. The Eleventh Circuit noted that it is generally recognized that non-disabled individuals maintain standing to seek relief under the ADA and RA for injuries sustained due to their association with a disabled individual. Relying on a Second Circuit decision, the parents argued that the ADA and RA permit standing for any “independent injury causally related to the denial of federally required services to the disabled persons for whom [they] are associated.” The parents alleged that they and the sister suffered injury when the hospitals depended on their efforts in communicating with the boy.

In analyzing the language of the ADA and the RA, the Eleventh Circuit rejected the Second Circuit’s interpretation and concluded that a non-disabled individual can only maintain standing under the ADA and the RA if said individual alleges that he/she was personally excluded from opportunities, personally denied benefits or personally discriminated against due to his/her association with a disabled individual. Specifically, the Eleventh Circuit ruled that non-disabled individuals are not denied benefits when a hospital depends on their assistance in communicating with a deaf patient by way of sign language.

The parents also argued that the boy was entitled to compensatory damages because the hospitals were “deliberately indifferent” to the boy’s rights arising from the ADA and RA. The Eleventh Circuit noted that a plaintiff must demonstrate that a defendant violated a party’s rights under the respective statutes and executed this violation with discriminatory intent in order to receive compensatory damages. Moreover, discriminatory intent can be established by demonstrating that a defendant was “deliberately indifferent”, which requires the plaintiff to prove that a defendant “knew that harm to a federally protected right was substantially likely” and “failed to act on that likelihood.” The Eleventh Circuit held that the act of failing to provide the boy with an interpreter in the specific circumstances before the Court did not rise to a level of deliberate indifference by the hospitals.

Adinolfe v. United Technologies Corporation, — F.3d —-, 2014 WL 4958080 (11th Cir. October 6, 2014) (holding that district courts should not issue Lone Pine orders before deciding whether a complaint survives a motion to dismiss for failure to state a claim). 

A group of property owners in Palm Beach County, Florida, sued United Technologies Corporation d.b.a. Pratt & Whitney for damages arising from alleged groundwater contamination purportedly discharged by Pratt & Whitney. The district court dismissed the initial complaints of the two related cases without prejudice, stating that the complaints did not claim the properties were actually contaminated, had not identified the purported containment, and did not specify the harm to a person or property caused by the actions of Pratt & Whitney.

In addition to moving to dismiss the initial complaints, Pratt & Whitney requested a case management order from the district court for the two cases, which is also known as a Lone Pine order. A Lone Pine order generally requires plaintiffs to supply “prima facie factual support”, which often includes expert testimony, for their claims in mass tort litigation. Here, the district court issued Lone Pine orders requiring the plaintiffs to provide all evidence supporting the “prima facie elements of contamination and causation” for its claims within 60 days of the orders, including evidence of any testing administered on the properties in question and evidence of any contamination on the said properties. Also, these particular Lone Pine orders required the plaintiffs to provide sworn statements from experts declaring their respective opinions on factual issues related to the plaintiffs’ claims.

The plaintiffs objected to the Lone Pine orders, contending, among other arguments, that they should not be mandated to supply the prima facie evidence of their claims before discovery commences. After the plaintiffs submitted the requested evidence, Pratt & Whitney filed a motion to dismiss, arguing that the evidence provided by the plaintiffs was not sufficient as to the requirements of the Lone Pine orders. Furthermore, Pratt & Whitney provided affidavits of its own experts in its motion to dismiss.

During the hearing on the motion to dismiss, the district court stated numerous times that the expert testimony and evidence arising from the Lone Pine orders would not be discussed; the only matter to be discussed was the determination of whether the complaints sufficiently pled a claim for relief based on the Twombly standard. The Twombly standard was developed by the Supreme Court in Bell Atlantic Corporation v. Twombly, stating that a complaint must maintain “enough facts to state a claim to relief that is plausible on its face.” After the hearing, the district court dismissed the amended complaints without prejudice. The plaintiffs responded by filing a second round of amended complaints. The district court dismissed the second round of amended complaints with prejudice and plaintiffs appealed.

After a brief discussion of Lone Pine orders in general, the Eleventh Circuit concluded that it is not “legally appropriate for a district court to issue a Lone Pine order” before determining whether the claims survive a motion to dismiss as a sufficiently pled claim based on the Twombly standard. The Eleventh Circuit noted the district court and the parties involved did not limit their discussions to the language of the complaints and repeatedly discussed evidence and expert testimony from the Lone Pine orders and, therefore, the motion to dismiss for failure to state a claim should have been converted into a summary judgment motion. Consequently, such a transition requires notice to all parties involved and a chance for all parties to conduct discovery.

The Eleventh Circuit acknowledged the concern that defendants may be required to conduct expensive and time consuming discovery before a plaintiff is required to provide factual support for his claims without the issuance of a Lone Pine order before a failure to state a claim hearing is conducted. However, the Eleventh Circuit highlighted that allowing a Lone Pine order at the failure to state a claim stage of proceeding goes against the procedural process constructed by the Federal Rules of Civil Procedure.