SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-5608-98T5
SHIRLEY POTOCZAK HALL,
PRISCILLA SKYTA, PAUL
POTOCZAK and THE ESTATE
OF LEON POTOCZAK,
Plaintiffs-Appellants,
vs.
SAINT JOSEPH'S HOSPITAL,
Defendant-Respondent.
Submitted: February 20, 2001 - Decided: July 24, 2001
Before Judges Havey, Cuff and Lisa.
On appeal from the Superior Court of New
Jersey, Law Division, Passaic County, L-5143-
96.
Clara R. Smit; Marc Charmatz and Mary Vargas,
of the Maryland bar, admitted pro hac vice,
attorneys for appellants (Ms. Smit, on the
brief).
Respondent has not filed a brief.
The opinion of the court was delivered by
CUFF, J.A.D.
Leon Potoczak was deaf and communicated primarily through
American Sign Language (ASL). He was admitted to defendant Saint
Joseph's Hospital ten times between 1987 and 1996. He died in 1996
following a stroke. Defendant did not provide ASL interpreters
during any of these hospitalizations. Following their father's
death in 1996, plaintiffs Shirley Potoczak Hall, Priscilla Skyta,
Paul Potoczak, his widow, and the Estate of Leon Potoczak filed a
five count complaint against defendant Saint Joseph's Hospital
alleging violations of the New Jersey Law Against Discrimination,
N.J.S.A. 10:5-1 to -42 (LAD), the Americans With Disabilities Act,
42 U.S.C.A.
§§12101 to 12213 (ADA), and the Rehabilitation Act of
1973,
29 U.S.C.A.
§§701 to 796 (RA) (Count One); intentional
infliction of emotional distress (Count Two); outrageous conduct
(Count Three); conduct giving rise to punitive damages (Count
Four); and the failure to secure the informed consent of decedent
(Count Five).
Plaintiffs Hall, Skyta, and Paul PotoczakSee footnote 11 were required to
interpret for their father during the various hospitalizations.
Plaintiffs allege that the Hospital discriminated against decedent
by failing to reasonably accommodate his disability by providing
him with an effective means of communication. His children also
contend that the discrimination affected them by denying them an
equal opportunity to participate in their father's medical care in
the same manner as nondisabled patients and their families.See footnote 22
The adult children of Leon Potoczak and his estate, appeal
from a jury verdict in favor of defendant on their common law and
statutory claims alleging that the Hospital discriminated against
their father and them when it failed to provide an interpreter.
Plaintiffs argue that the trial judge erroneously found that the
Hospital's conduct did not constitute a continuing violation of
decedent's rights. Thus, the trial judge confined plaintiffs'
claims to the September 1995 and December 1995 hospitalizations.
Plaintiffs also argue that the trial judge irreparably prejudiced
the presentation of their case by limiting the scope of their claim
just minutes before delivery of their opening statement.
Plaintiffs further contend that the judge erroneously precluded the
witnesses from referring to incidents which occurred during prior
hospitalizations. They contend that this testimony would have
established a pattern and practice of discrimination by the
Hospital. Finally, plaintiffs urge that the jury instructions on
the issue of reasonable accommodation in this context was wrong and
that the trial judge exhibited bias against the plaintiffs which
irreparably tainted the trial. We affirm.
Leon Potoczak's main form of communication was ASL. He went
to the Trenton School for the Deaf, a resident facility, from the
time he was seven years old until he graduated from high school.
Both his first wife, plaintiffs' mother, who died in 1973, and his
second wife, Rozelle Potoczak, were deaf and communicated with
decedent in ASL. Plaintiffs, all of whom have normal hearing,
communicated with decedent through ASL. They learned to sign from
their parents but had no formal training. They could communicate
basic information through signing, but not abstract ideas or
technical information. None of the children were certified ASL
interpreters or eligible for certification.
Decedent worked as a linotype operator, which required minimal
communication. All of his friends were deaf and he had belonged to
several organizations and clubs for the deaf.
Decedent read lips "only a very little," could read the
newspaper but not complicated documents, did not write well, and
verbalized in a way that no one outside of the family could
understand. Decedent owned a TTY/TDD (text telephone), an
electronic device with a keyboard and screen that is connected to
the telephone. Priscilla Skyta, decedent's oldest child, testified
that her father used the TTY/TDD to communicate simple messages,
such as "I'll be there at six p.m.," but not for longer
conversations because he had trouble writing English.
Plaintiffs' linguistics expert, Judy A. Shepard-Kegl, Ph.D.,
explained why decedent had difficulty with written English. ASL is
a visual gestural language that is not at all like English.
Instead of subject/verb/object word ordering as in English, ASL is
"discourse oriented." Shepard-Kegl considered decedent culturally
deaf. She also considered his primary and preferred language to be
ASL; in fact, she said that he was nearly monolingual in ASL. He
appeared to be a fluent ASL signer, so if he had a qualified ASL
signer at the Hospital, he would have understood the medical
procedures he was undergoing.
In 1987, decedent first entered Saint Joseph's Hospital for
kidney stones, but was diagnosed at that time with heart problems
resulting from rheumatic fever that he had as a child and that led
to his loss of hearing. He returned to the Hospital a month later,
September 1987, for valve replacement and double bypass heart
surgery; three times in June 1989 for renal colic and a blocked
left kidney; in May 1992 for cardiac catheterization; in July 1992
for repair of a prosthetic aortic valve; in September 1995 for
gastrointestinal bleeding; in October 1995 for urinary problems;
and in December 1995 for a stroke and respiratory failure. He died
in the Hospital on January 4, 1996, at the age of seventy-one.
Plaintiffs testified to their limited ability to interpret for
their father while he was hospitalized. They could communicate
basic information, but anything complicated, such as explaining the
medical tests that were going to be performed, was very difficult
for them. They also testified that they withheld information from
their father which they believed might worry or upset him. Skyta
described how humiliated her father felt when invasive rectal tests
had not been adequately explained to him. He was also visibly
frightened when a nasogastric tube was inserted through his nose
because he did not fully understand what was about to happen or
why.
Decedent's children testified that they requested an
interpreter for their father numerous times during his various
hospitalizations and their requests were ignored by Hospital staff.
Sometimes plaintiffs did not relay their father's requests for an
interpreter because they feared that the staff would not treat
their father well if they were overly demanding.See footnote 33 Skyta put up a
sign near his bed saying, "Patient is deaf. Please look at him";
but despite the sign, Hospital staff often came into his room and
started talking to him.
The day before her father died, Skyta wrote and hand-delivered
a letter to Sister Jane Francis, president of the Hospital,
requesting an interpreter and other accommodations. As soon as she
delivered the letter, someone hooked up a TTY/TDD at the nurse's
station and a closed-caption television. Skyta testified that she
was moved to act when she noticed a Patients' Bill of Rights on the
Hospital wall. According to the document, patients were entitled
to clear communication and the Hospital would provide an
interpreter if necessary or requested.
According to nurse Diane Spath, decedent's family first
requested a translator the day before he died. In response, after
contacting several ASL interpreters, she put the name and telephone
number of an interpreter in a central location so that one could be
called if a doctor needed to communicate with decedent when his
family was not there. That same day, she arranged for a TTY/TDD to
be installed at the nurse's station so that decedent's wife could
call the Hospital staff from home. She also arranged for a closed-
caption television to be installed in decedent's room.
However, Skyta said that her father had put his request for an
interpreter in writing in September 1995, through Robert Queenan,
a deaf friend who volunteered at the Hospital. In addition,
Florence Sabo testified that when she visited decedent in the
Hospital in September 1995, he told her that he wanted an
interpreter. Sabo wrote the request down for him, and she gave the
note to a nurse. She saw decedent ask a nurse for an interpreter
and the nurse ignore him. Decedent also told Sabo that he wanted
a TTY/TDD and a closed caption television because he was very
lonesome, especially during the evening. Hall also testified that
her father requested those devices.
Despite decedent's disability, Dr. David Cohen, decedent's
cardiologist from 1987 to his death, testified that he was able to
communicate with him. Cohen stated that they communicated in three
ways: some lipreading and limited verbal responses; written notes;
and through Shirley Potoczak Hall, who usually accompanied decedent
on his doctor's visits. Even when Hall did not accompany decedent,
Cohen was confident that he and his patient communicated
satisfactorily. He observed that decedent's responses were
sufficiently detailed to indicate that he understood what Cohen was
saying.
Dr. Cohen testified that he visited his patient in the
Hospital in 1995 and that nobody in decedent's family told him that
decedent needed an interpreter or that their requests for one had
been ignored. Decedent's daughters' testimony confirmed that they
never discussed their father's need for an interpreter with his
attending physician.
According to two registered nurses who treated decedent at
Saint Joseph's, the staff used a "communication board" when his
children were not there to interpret for him. The board has
pictures that represent familiar complaints, such as difficulty
breathing. Arturo Eijansantos commented in his nursing note for
September 22, 1995, "Communicate[s] well through Sign Language and
writing."
Decedent's daughters testified to the emotional distress they
suffered due to having to serve as their father's interpreters.
Skyta described the sorrow she felt about not doing a better job of
interpreting for him and the unfairness of not being able to focus
on providing emotional support. Hall described feeling helpless
that she could not do a better job of interpreting for her father.
She was forced to stay in the room during frightening procedures so
that she could try to explain them to him. She limited what she
told him because she did not want to worry him. Both daughters
also testified to the strain it put on their relationship with
their stepmother because they were unable to interpret adequately
for her at the same time that they were trying to interpret for
their father. Their stepmother became angry and distrustful, and
by the time of trial, their formerly close relationship had been
severed.
According to Shepard-Kegl, the three requirements of a
qualified ASL interpreter are accuracy, confidentiality, and
impartiality. It is best for the qualified interpreter to be
someone with no vested interest in the proceedings. Impartiality
was impossible for plaintiffs because they were upset by much of
the information they had to interpret and they could not help
trying to protect their father from the bad news. It was
impossible for them to separate what they were interpreting from
what they felt he should know, which denied him the right to make
his own decisions. In Shepard-Kegl's opinion, decedent was not
able to communicate effectively at the Hospital because he did not
have a qualified interpreter.
The parties presented conflicting testimony on the Hospital's
policy on providing interpreters. Queenan, decedent's deaf friend,
had volunteered at the Hospital for eight years. He was not aware
of anyone on staff who could sign well, nor had he ever known the
Hospital to provide an ASL interpreter for a patient. Colleen
Thomas, a deaf clerk who had worked at the Hospital for twenty
years, had never seen any ASL interpreters in the Hospital. When
she visited decedent during his September 1995 hospitalization, he
asked her if she knew someone who could interpret for him. She
said that she was not aware of anyone in the Hospital who could.
By contrast, James Pruden, chief of emergency services at
Saint Joseph's,See footnote 44 said that his usual practice is to provide a
translator through the Hospital's language pool for non-English-
speaking patients whose family members do not want to interpret for
them. He was not aware of any Saint Joseph's policy against
providing an interpreter.
Similarly, the two nurses who treated decedent, Eijansantos
and Spath, testified that there was no policy at the Hospital
denying patients interpreters. Eijansantos said that he had never
turned down a request for an ASL interpreter, but he also
acknowledged that he had never received such a request. Spath, a
nursing supervisor, said she had never received a complaint about
a staff nurse for ignoring a request for an interpreter.
The jury also heard testimony on the Hospital's treatment of
Maria Vindel, a deaf person with mental health problems. She had
been admitted to Saint Joseph's in June 1997 and November 1998 and
then discharged to Harbor House, a transitional group home operated
by the Hospital for people with mental illness. Vindel testified
that she asked for an interpreter at the Hospital and at Harbor
House, but one had never been provided. Vindel taught a Harbor
House employee, Daisy Rodriguez, some basic signs; but Rodriguez
could not explain anything in depth and she was not always on duty
when Vindel was there.
However, according to Josephine Carpenter, assistant director
of Harbor House, Vindel had never requested an interpreter. Harbor
House had sufficient resources and could have provided one.
Furthermore, she testified that Saint Joseph's did not have a
policy of denying deaf patients' requests for interpreters.
Rodriguez testified that Vindel had taught her to sign and she
could communicate with Vindel on medical, social, and psychological
concerns. She said that Vindel had never complained to her that
her signing was inadequate and had never asked for an interpreter.
Rodriguez was not aware of a Saint Joseph's policy to refuse an
interpreter. Furthermore, Vindel attended Access, a day program
run for deaf people with mental illness. According to Rodriguez,
no one from Access had ever complained to her about Vindel's need
for an interpreter.
Deborah Hartel, assistant vice-president for psychiatry at
Saint Joseph's, discussed Vindel's discharge plan with staff from
Access. The staff recommended safety devices such as a strobe
light fire alarm; however, they suggested that Vindel needed only
on-request rather than around-the-clock interpreters. Vindel never
communicated to Hartel that she needed an interpreter. Hartel said
that Saint Joseph's policy was to provide interpreters.
I
At the commencement of trial, Judge McVeigh ruled on a motion
to limit the scope of plaintiffs' discrimination claims based on
the statute of limitations. Plaintiffs' father died in January
1996; they filed their complaint on July 20, 1996. Plaintiffs
sought compensatory and punitive damage for each hospitalization
from 1987 until his death in January 1996. They argued that
defendant's failure to provide an ASL interpreter for decedent on
each hospitalization from 1987 was a continuing violation.
Defendant argued that each hospitalization was a discrete event and
the two-year statute of limitations should limit the complaint to
hospitalizations after 1994. Judge McVeigh held that any claims
based on hospitalizations before 1994 were barred by the statute of
limitations. Furthermore, she ruled that notice was irrelevant and
reference to the prior hospitalizations could inflame the jury.
Plaintiffs contend that the trial court erred in barring the
claims based on decedent's pre-1994 hospitalizations due to the
statute of limitations; they say that defendant's acts during the
seven earlier admissions were not isolated incidents, but rather
showed a pattern and policy of discrimination. Furthermore,
according to plaintiffs, the court abused its discretion when it
sua sponte reversed its earlier decision on the matter immediately
before plaintiffs' counsel was to present her opening statement.
Plaintiffs also contend that the court further abused its
discretion when it ruled that evidence of those earlier
hospitalizations was inadmissible due to its inflammatory nature.
Count One of the complaint alleged violations of the ADA, the
RA, and LAD, all of which prohibit discrimination on the basis of
disability. Judge McVeigh dismissed the ADA claims because the
primary remedy available under Title II of that act is injunctive
relief and such relief was inapplicable where plaintiffs' father
was dead and thus did not have standing to request such relief.
Although the trial proceeded on the RA claim, the LAD claim was
never formally dismissed. For the purpose of this analysis, there
are no significant distinctions between the RA and LAD claims.
The statute of limitations for claims asserted under the LAD
is two years, based on New Jersey's personal injury statute of
limitations. Montells v. Haynes,
133 N.J. 282, 286 (1993).
Similarly, federal courts have ruled that the RA, as part of the
"general corpus of discrimination law," which remedies injuries to
personal rights, is governed by the state statute of limitations
applicable to personal injury actions. Morse v. University of
Vermont,
973 F.2d 122, 127 (2d Cir. 1992). See also Downs v.
Massachusetts Bay Transp. Auth.,
13 F. Supp.2d 130, 136 (D. Mass.
1998). Thus, Judge McVeigh properly ruled that the appropriate
limitations period for an RA claim is two years. The complaint was
filed on July 26, 1996; thus, claims based on conduct that occurred
before July 26, 1994, would normally be barred.
The requirement that plaintiffs file a discrimination
complaint within the statutory limitations period is subject to a
judicially created equitable exception known as the "continuing
violation" doctrine. Harel v. Rutgers, State Univ.,
5 F. Supp.2d 246, 261 (D.N.J. 1998), aff'd,
191 F.3d 444 (3d Cir. 1999), cert.
denied sub nom, Harel v. Lawrence,
528 U.S. 1117,
120 S. Ct. 936,
145 L. Ed.2d 814 (2000). Under that doctrine, a plaintiff may
get relief for a time-barred act by linking it with an act within
the limitations period if the acts can be treated as one continuous
course of conduct that ends within the limitations period. Selan
v. Kiley,
969 F.2d 560, 564 (7th Cir. 1992). The purpose of the
continuing violation doctrine is to permit a plaintiff to include
acts "whose character as discriminatory acts was not apparent at
the time they occurred." Doe v. R. R. Donnelly & Sons Co.,
42 F.3d 439, 446 (7th Cir. 1994). New Jersey recognizes a similar
"continuing tort doctrine" based on this federal doctrine. Wilson
v. Wal-Mart Stores,
158 N.J. 263, 272 (1999); Bolinger v. Bell
Atl.,
330 N.J. Super. 300, 306 (App. Div.), certif. denied,
165 N.J. 491 (2000).
To establish a continuing violation, a plaintiff must show
that at least one discriminatory act occurred within the
limitations period and that the discriminatory acts are part of a
continuing pattern of discrimination rather than the "'occurrence
of isolated or sporadic acts of intentional discrimination.'" Rush
v. Scott Specialty Gases, Inc.,
113 F.3d 476, 481 (3d Cir. 1997)
(quoting West vs. Philadelphia Elec. Co.,
45 F.3d 744, 755 (3rd
Cir. 1995)). The federal courts have recognized three theories of
continuing violations: (1) cases involving hiring or promotion
practices where the employer's decision-making process takes place
over a period of time; (2) cases in which the defendant has an
express, openly espoused policy that the plaintiff alleges is
discriminatory ("systemic violations"); and (3) cases in which the
plaintiff alleges that the defendant has followed a covert practice
of discrimination ("serial violations"). Selan, supra, 969 F.
2d at
565. In Bolinger, supra, 330 N.J. Super. at 306-07, this court
condensed these theories into two categories--systemic and serial
violations--and pointed out that even those categories may at times
merge; e.g., a series of sexually harassing acts by several
supervisors that is considered part of a systemic policy of
discrimination.
To assist the determination whether a plaintiff has
demonstrated a continuing violation, the court in Berry v. Board of
Supervisors of Louisiana State Univ.,
715 F.2d 971, 981 (5th Cir.
1983), articulated a three-factor analysis, which has been adopted
by the United States Court of Appeals for the Third Circuit and by
this court. Rush, supra, 113 F.
3d at 481; Bolinger, supra, 330
N.J. Super. at 307.
The first is subject matter. Do the alleged
acts involve the same type of discrimination,
tending to connect them in a continuous
violation? The second is frequency. Are the
alleged acts recurring . . . or more in the
nature of an isolated work assignment or
employment decision? The third factor,
perhaps of most importance, is degree of
permanence. Does the act have the degree of
permanence which should trigger an employee's
awareness of and duty to assert his or her
rights, or which should indicate to the
employee that the continued existence of the
adverse consequences of the act is to be
expected without being dependent on a
continuing intent to discriminate?
[Berry, supra, 715 F.
2d at 981 (emphasis added).]
The cases that most neatly fit into the continuing violation
theory are those based on a hostile work environment: the acts of
harassment continue over a period of time, but the individual acts
are insufficient to constitute an actionable claim. Rush, supra,
113 F.
3d at 482 (holding that a pattern of derogatory remarks, rude
behavior, and other acts of sexual harassment constituted a
continuing violation). See also Cornwell v. Robinson,
23 F.3d 694,
704 (2d Cir. 1994) (holding that acts of race- and gender-based
harassment constituted a continuing violation that did not end
until the plaintiff was driven from her job); Anthony v. County of
Sacramento,
898 F. Supp. 1435, 1446 (E.D. Cal. 1995) (holding that
racial and sexual slurs, racist cartoons, flyers, and graffiti over
a five-year period and involving numerous perpetrators constituted
a continuing violation); Wilson, supra, 158 N.J. at 274 (holding
that a supervisor's crude and indecent remarks and insistence that
the plaintiff wear a brassiere could constitute an ongoing
violation). In such cases, it is only with the benefit of
hindsight, after numerous discriminatory acts, that a plaintiff may
even realize that she is a victim of unlawful discrimination.
Moskowitz v. Trustees of Purdue Univ.,
5 F.3d 279, 281 (7th Cir.
1993).
If, however, a plaintiff knew, or with the exercise of
reasonable diligence should have known, that each act was
discriminatory, the plaintiff "may not sit back and accumulate all
the discriminatory acts and sue on all within the statutory period
applicable to the last one." Id. at 282 (holding that an age-
discrimination claim based on the denial of suitable laboratory
space was actionable at the time it occurred and would not be
considered part of later discriminatory conduct); Kidwell v. Board
of Comm'rs of Shawnee County,
40 F. Supp.2d 1201, 1216 (D. Kan.)
(holding that the denial of the plaintiff's request for transfer to
a nonsmoking area was a discrete discriminatory act whose effects
were apparent without further discrimination), aff'd,
189 F.3d 478
(10th Cir. 1998), cert. denied,
528 U.S. 1064,
120 S. Ct. 620,
145 L. Ed.2d 514 (1999). See also Saylor v. Ridge,
989 F. Supp. 680,
687 (E.D. Pa. 1998) (holding that the denial of the plaintiff's
request for a reasonable accommodation in the form of specialized
computer equipment and compensation for work performed at home was
actionable at the time it occurred).
Similarly, in Bolinger, supra, where a telephone company
splicer was injured on the job, placed on disability at half-pay
for seven years and told that he would be put on pension at half-
pay when he turned sixty-two, and then returned to work as a repair
service clerk, the court held that the plaintiff's removal from
full-time status and placement on disability was a "discrete,
permanent event that placed him on notice that his rights were
being violated and triggered his duty to take legal action to
recoup those rights." 330 N.J. Super. at 309. The court noted
that the plaintiff's claim did not arise as the result of
"continuously inflicted, albeit discrete and individual injuries
that, taken together, comprised a single tortious act." Ibid.
Rather, he had an actionable claim as soon as he was removed from
his duties and placed on half-pay status; "[a]t that point, he
experienced the full impact of his injury, although the amount of
his actual damages may have continued to accrue the longer he
remained on disability status." Ibid.
Here, plaintiffs alleged that during each of decedent's ten
admissions to Saint Joseph's Hospital between 1987 and 1995,
decedent and his family requested and were denied an ASL
interpreter. They also allege that these denials were part of
defendant's policy and pattern of refusing to accommodate deaf
patients by providing qualified interpreters. Whether this is
considered an overt or covert policy, thus constituting a systemic
or a serial violation, is of little consequence. The three-factor
analysis articulated in Berry, supra, 715 F.
2d at 981, can be
applied to either type of violation.
Plaintiffs allege facts that easily satisfy the first two
factors of the Berry analysis (subject matter and frequency), but
not the third (permanence). The subject matter of each alleged
discriminatory act was identical_-the denial of decedent's request
for an interpreter when he was hospitalized. The ten acts of
alleged discrimination over the course of nine years went well
beyond the frequency of the acts found by courts to be too few and
isolated to be continuing violations. See, e.g., Selan, supra, 969
F.2d at 567 (two acts separated by a two-year gap); Harel, supra,
5 F. Supp.
2d at 262 (two acts in nine years). However, the
initial denial of decedent's request for an interpreter had a
degree of permanence that should have triggered his assertion of
his rights under the RA.See footnote 55 Each subsequent denial should have done
the same. The purpose of the ongoing violation doctrine_-to permit
a plaintiff to include acts whose character as discriminatory acts
was not apparent at the time they occurred_-is not served by
applying it to these circumstances.
Having concluded that Judge McVeigh properly limited
plaintiffs' disability discrimination claims to the final two
hospitalizations, we examine the timing of the ruling. We reject
plaintiffs' argument that the trial judge's ruling immediately
preceding the presentation of opening statements irreparably
prejudiced the presentation of plaintiffs' case. The record does
not support plaintiffs' characterization of the ruling as a
reversal of a prior ruling. Our review of the transcripts reveals
that after the initial argument of the motion, Judge McVeigh did
nothing more than provide a sketchy indication of her leanings on
the statute of limitations issue. Furthermore, in several
instances prior to her actual ruling, she mentioned that she was
troubled by the issue. Indeed, she asked for additional briefing
and repeatedly advised counsel that she was still reading cases and
considering the issue. Thus, both counsel were aware at the
commencement of this trial that a fundamental motion remained
unresolved and the disposition of that motion would require each of
them to alter their case plan. Furthermore, Judge McVeigh
provided plaintiffs' trial counsel time during the course of the
trial to react to the ruling. While one party was likely to be
disappointed by the trial judge's ruling, neither party could have
reasonably approached this trial with any assurance that its
position on the statute of limitations issue would prevail. Under
these circumstances, we discern no prejudice by the timing of the
disposition of this motion.
II
In addition to rejecting plaintiffs' argument that the ten
hospitalizations over nine years constituted a continuing violation
of decedent's rights, Judge McVeigh also barred reference to events
which occurred during the prior seven hospitalizations. Plaintiffs
argued that this evidence was relevant to the issue of notice and
also established a pattern and practice of discriminatory conduct
to hearing impaired patients. We disagree.
In a reasonable accommodation case under the LAD or the RA,
plaintiffs need not prove discriminatory animus on the part of a
defendant but only that it failed to provide an accommodation and
it knew this might violate the LAD or the RA. Proctor v. Prince
George's Hosp. Ctr.,
32 F. Supp.2d 820, 829 (D. Md. 1998).
Furthermore, the RA does not require provision of interpreters but
only the assurance of effective communication. Id. at 827.
Here, plaintiffs sought to admit evidence that their father
had asked for an interpreter during past hospitalizations and none
had been provided. This testimony was not needed to establish
notice to defendant because notice is not an element of their
claim. Nevertheless, the trial judge allowed plaintiffs to submit
evidence that their father had requested an interpreter and had not
received an interpreter during his initial hospitalization in 1987
and also allowed testimony that defendant was aware of its
obligations.
Judge McVeigh was clearly concerned that the admission of
evidence concerning time-barred claims could undermine her ruling
that each hospitalization in which an ASL interpreter was not
supplied constituted a separate and distinct event. She feared
admission of this evidence could confuse the jury. We cannot
dismiss this concern. The evidence plaintiffs sought to introduce
was essentially the same testimony as plaintiffs presented
concerning their father's September 1995 and December 1995-January
1996 hospitalizations. It could not reasonably be characterized as
evidence of time-barred actions which provide background to
understand non-time-barred claims. See Mathewson v. National
Automatic Tool Co.,
807 F.2d 87, 91 (7th Cir. 1986).
Plaintiffs were also able to introduce testimony of the
Hospital's knowledge of its responsibilities. Priscilla Skyta
testified that the Patients' Bill of Rights was posted in her
father's Hospital room and declared that a patient was entitled to
clear communication and an interpreter would be provided if
necessary or requested.
To be sure, Judge McVeigh restricted other witnesses from
testifying about time-barred events; yet we do not consider these
rulings an abuse of her discretion to control and manage the
introduction of testimony. Bosze v. Metropolitan Life Ins. Co.,
1 N.J. 5, 10-11 (1948); Marion v. Public Serv. Elec. & Gas Co.,
72 N.J. Super. 146 (1962). In fact, in most instances the testimony
was barred because it lacked a proper foundation or defendant had
not been notified of this aspect of a witness's testimony. For
example, Robert Sabo and his wife were barred from testifying about
their experiences at the same Hospital in 1989. This testimony was
barred because defendant had been advised that their testimony
would be limited to their knowledge of decedent's and his
daughters' communication skills and their observations of decedent
during the September 1995 hospitalization. Queenan's testimony
concerning delivery of a copy of the disability statutes to
Hospital personnel was excluded as irrelevant and possibly
cumulative because plaintiffs had submitted evidence that decedent
had registered a prior complaint about his difficulties and that
the Hospital knew of its obligations to patients such as decedent.
Plaintiffs contend that the trial judge erred in failing to instruct the jury that defendant had the burden of proving that it reasonably accommodated decedent. They also contend that the error was exacerbated by the submission of a confusing interrogatory. We disagree.
Under the RA, plaintiffs had the burden of establishing a prima facie case: 1) that their father was disabled; 2)that he was eligible for treatment at the Hospital; 3) that he was denied the opportunity to understand his treatment and fully participate in his treatment due to his disability; and 4) that the Hospital received federal assistance. Heilweil v. Mount Sinai Hosp., 32 F.3d 718, 722 (2d Cir. 1994), cert. denied, 513 U.S. 1147, 115 S. Ct. 1095, 130 L. Ed.2d 1063 (1995); Doherty v. Southern College of Optometry, 862 F.2d 570, 573 (6th Cir. 1988), cert. denied, 493 U.S. 810, 110 S. Ct. 53, 107 L. Ed.2d 22 (1989); Mayberry v. Von Valtier, 843 F. Supp. 1160, 1167 (E.D. Mich. 1994). Here, the only disputed issue was the decedent's ability to effectively communicate with the Hospital staff.
Once plaintiffs established a prima facie case of discrimination, the focus shifted to defendant's reasons for withholding the benefit. Woolfolk v. Duncan, 872 F. Supp. 1381, 1389-90 (E.D. Pa. 1995). As with other discrimination cases, once the defendant has justified or explained its conduct, plaintiff has the opportunity to rebut the evidence presented by defendant. Carter v. Bennett, 840 F.2d 63, 65-66 (D.C. Cir. 1988).
This scheme is an adaptation of the model employed in employment discrimination cases. The Supreme Court outlined a model for analyzing cases brought under Title VII, 42 U.S.C.A. § 2000e, which provides that the burden of proof remains with the plaintiff but also provides that once the plaintiff establishes a prima facie case the burden of production of evidence shifts to the defendant to articulate a non-discriminatory reason for the adverse action taken against the plaintiff. Once defendant does so, plaintiff may present evidence to rebut defendant's position. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed.2d 668, 677-78 (1973); see also Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253-55, 101 S. Ct. 1089, 1094-95, 67 L. Ed.2d 207, 215-17 (1981).
Here, plaintiffs argue that the trial judge erred by advising the jury that they retained the burden of proof on each issue throughout the case. They contend that once they established their prima facie case, the burden of proof shifted to defendant and that the judge erred in not informing the jury of defendant's proof obligations. Although we acknowledge that some cases suggest that the burden of proof does shift to defendant to counter a prima facie case of lack of reasonable accommodation to a disability, a close reading of these cases suggests that whether the defendant assumes a burden of production or a burden of proof on a specific issue depends on the nature of the defense. If a defendant's response to a reasonable accommodation claim is that that accommodation would be unduly burdensome or an undue hardship, this defense is considered an affirmative defense and the defendant assumes the burden of proof on this issue. Monette v. Electronic Data Sys. Corp., 90 F.3d 1173, 1177-85 (6th Cir. 1996); Carter, supra, 840 F. 2d at 65-66; Prewitt v. United Postal Serv., 662 F.2d 292, 307 (5th Cir. 1981). If, however, the defense is that an alternative effective means of communication was used, the burden of proof does not shift. Petersen v. Hastings Pub. Schs., 831 F. Supp. 742, 753 (D. Neb. 1993), aff'd, 31 F.3d 705 (8th Cir. 1994).
Here, defendant never argued that a reasonable accommodation was not possible or unduly burdensome. It argued that decedent was able to effectively communicate with staff throughout the September and December 1995 hospitalizations.See footnote 66 Accordingly, Judge McVeigh properly assigned the burden of proof to plaintiffs and the interrogatories were properly phrased. Moreover, this charge, unlike the charge discussed by this court in Borngesser v. Jersey Shore Med. Ctr., N.J. Super. (App. Div. 2001), properly focused throughout on the sole issue of effective communication.
IV
Plaintiffs' arguments concerning other evidentiary rulings (Points Four, Five and Six) and bias by the trial judge (Point Ten) are without sufficient merit or precedential value to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
Footnote: 1 1Plaintiffs Hall, Skyta and Paul Potoczak are the adult children of Leon Potoczak; Rozelle Potoczak was the wife of Leon Potoczak and the stepmother of his children. At sometime prior to trial, Rozelle Potoczak withdrew as a plaintiff. Footnote: 2 2The RA has been interpreted to prohibit discrimination against nondisabled persons based on their association with a person with a disability and to allow their claims if they have suffered a distinct and palpable injury of their own. United States v. City of Charlotte, 904 F. Supp. 482, 486 (W.D.N.C. 1995). Footnote: 3 3Plaintiffs do not assert any claim questioning the quality of the medical care provided to their father. Footnote: 4 4Pruden did not recall ever treating the decedent. Footnote: 5 5The ADA did not go into effect until 1990, but the RA has been in effect since 1973. Cases on the denial of interpreters for hearing impaired people have been published since at least 1990. Rothschild v. Grottenthaler, 907 F.2d 286 (2d Cir. 1990). Footnote: 6 6 To the extent that plaintiffs contend that Judge McVeigh should have explicitly informed the jury of the McDonnell Douglas- Burdine analytical framework, we find no error. Appellate courts have instructed trial courts that a jury need not be informed of the finer points of the McDonnell Douglas-Burdine paradigm. See Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 347-48 n.1 (3d Cir. 1999).