\\legal\kevin\title3\chambers\jaml\renewedmotionforjaml12-10-03.wpd

____________________________________________________________________________________ PLAINTIFFS’ RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW OR, IN THE
ALTERNATIVE, MOTION FOR A NEW TRIAL
____________________________________________________________________________________ Plaintiff Kijuana Chambers, by and through her counsel, hereby submits her Renewed Motion for Judgment as a Matter of Law or, in the Alternative, Motion for a New Trial.
Background
The trial in the above-referenced matter concluded on November 21, 2003. Judgment was entered on December 3, 2003. At the close of Plaintiff’s case-in-chief, Plaintiff moved for judgment as a matter of law on several issues, including: (1) liability for both of her claims, Title III of the Americans with Disabilities Act (“Title III”), 42 U.S.C. § 12181, et seq., and Section 504 of the Rehabilitation Act (“Section 504"), 29 U.S.C. § 794(a); (2) Defendant’s “direct threat” defense; and (3) and whether the jury should be instructed to ignore evidence related to the defense that Plaintiff allegedly “never paid her bill.” This Court denied Plaintiff’s motions, and Plaintiff renewed her motions at the end of the trial. This Court denied Plaintiff’s motions again and submitted the case to the jury. For the reasons set forth in this motion, under Fed. R.
Civ. P., this was an error. Judgment should have been entered as a matter of law in favor of Plaintiff on her liability claims, and only the question of the amount of damages should have been submitted to the jury. In the alternative, Plaintiff seeks a new trial. ARGUMENT
Plaintiff Established Defendant’s Liability As a Matter of Law.
Applicable Legal Standards.
Fed. R. Civ. P. 50(a)(1) provides in full: If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue. A party may renew its judgment as a matter of law after trial. Fed. R. Civ. P. 50(b). In determining whether to grant a Rule 50 motion, this Court must apply the same "genuine issue" requirement as in summary judgment, Powers v. MJB Acquisition Corp., 184 F.3d 1147, 1151 (10th Cir. 1999). This Court must find error “if the evidence points but one way and is susceptible to no reasonable inferences supporting the party opposing the motion," and must “construe the evidence and inferences most favorably to the The Undisputed Factual Record.
Plaintiff has been informed that the transcript will not be available until after the deadline for filing this motion has passed. The following provides a recitation of the undisputed facts adduced at trial without the benefit of the formal transcript.
Plaintiff Kijuana Chambers sought artificial insemination services from the clinic owned and operated by the Defendant. Plaintiff is blind. Plaintiff was the only blind artificial insemination patient Defendant had. For months, under the care of Richard Gudvangen, M.D., the clinic provided services to Plaintiff in the same way it provided services to sighted women. Plaintiff made ten total visits to the clinic. Dr. Gudvangen saw and treated Plaintiff on six of these ten visits. During the six times Dr. Gudvangen treated Plaintiff, Dr. Gudvangen never witnessed or noticed issues related to Plaintiff’s alleged poor hygiene or alleged difficulties dressing or undressing or alleged difficulties getting to and from bus stops. Dr. Gudvangen never had any concerns about continuing with Plaintiff’s artificial insemination treatment. During the months when Dr. Gudvangen treated Plaintiff, no staff person ever communicated any concerns to him about Plaintiff’s hygiene, ability to dress and undress, ability to get around the office or to and from bus stops, emotional outbursts or the status of her payment arrangements. Dr. Gudvangen last treated Plaintiff on September 29, 1999, during which time he performed an artificial insemination. Dr. Gudvangen performed three such procedures for Ms. Chambers between May, 1999, and this time. Dr. Gudvangen left the clinic and ceased being Plaintiff’s doctor. On November 1, 1999, Susan Horvath, M.D., took over Plaintiff’s artificial insemination treatment. Plaintiff was scheduled for artificial insemination with Dr. Horvath on November 1, 1999. But, Dr. Horvath refused to go forward with the scheduled insemination, because, “Given the special needs of a visually impaired [patient],” see Plaintiff’s Trial Exh. 1, p. 002, Dr. Horvath demanded Plaintiff obtain an occupational therapist’s evaluation of the safety of her home “prior to conceiving.” See id. Without this, Dr.
Horvath would not go forward with any further inseminations. Also on November 1, 1999, after this meeting with Dr. Horvath, Plaintiff called the clinic back to inquire whether Meir H. Melmed, M.D., the president and owner of the clinic and a physician who performed one artificial insemination procedure for Plaintiff on June 8, 1999, would go forward with the procedure during that cycle. Dr. Melmed refused and informed Plaintiff that he would not go forward with any further artificial insemination procedures until Plaintiff met Dr. Horvath’s demands. Plaintiff was unable to get the evaluation. She called back on November 23, 1999, and requested a prescription from the clinic for Serophene, the ovulation induction medication she needed in order to become pregnant. The doctors involved knew Plaintiff could not get pregnant without this medication. Again, the clinic refused, and the doctors and the clinic’s office manager, Christine Tillman, agreed the clinic would not prescribe Serophene or provide further services until the required evaluation was “done and studied” by the doctors. Plaintiff’s Trial Exh. 1, p. 001.
The clinic defended this case claiming that (1) Plaintiff’s blindness had nothing to do with their decision to stop treatment and order an evaluation; and (2) Plaintiff allegedly presented other bases for concern about her ability to safely care for a child.1 Dr. Horvath and Dr. Melmed were the decision makers regarding Plaintiff’s treatment. Dr. Melmed was the ultimate decision maker. The doctors claim other clinic staff members told them about the other alleged concerns.
The clinic never required any of its sighted patients to get an evaluation of their homes prior to treatment. Dr. Melmed admitted that any perceived difficulties Plaintiff may have had navigating through the office or to and from bus stops was directly related to her blindness. The status of Plaintiff’s bill was not a basis for the decisions to stop treatment and require an evaluation.2 Dr. Melmed and Dr. Horvath testified that Plaintiff’s blindness was a reason for their decisions. Dr. Melmed testified that Plaintiff’s blindness was a motivating factor in his determination that Plaintiff needed an evaluation of her home before receiving further artificial insemination services.
Medical Assistant Kim Urioste testified that she observed Ms. Chambers on approximately seven to nine of her ten visits and that each and every time, Ms. Chambers allegedly had fresh bowel and menstrual stains in her underwear. Because Plaintiff was coming in during ovulation for most of her visits, 1 The alleged concerns were (1) she had poor hygiene (defined as dirty underwear and body odor); (2) she had difficulty getting around the office; (3) she had difficulty getting to and from bus stops; (4) she had “emotional outbursts;” and (5) she did not follow through on payment arrangements. it was impossible that she could have had “fresh menstrual blood” in her underwear. Ms. Urioste never relayed her alleged concerns to any of Ms. Chambers’ treating physicians or to Ms. Chambers and never wrote these alleged concerns in Plaintiff’s chart. No one put the concerns in the chart. Also, Dr.
Gudvangen, Dr. Melmed or Dr. Horvath saw Ms. Chambers on all ten of her visits often for ultrasounds or artificial insemination procedures. The doctors observed Ms. Chambers in close proximity, yet none of the doctors had concerns about Ms. Chambers’ hygiene. The clinic treated other single women seeking to become pregnant without requiring an occupational therapy evaluation. The clinic treated other lesbians seeking to become pregnant without requiring an occupational therapy evaluation. With respect to the alleged “concerns” expressed by clinic staff, Dr. Melmed testified that he was not aware whether his staff talked to him about any of these alleged concerns before or after November 23, 2003, the final day of contact between Ms. Chambers and the clinic. When the doctors were aware of these alleged concerns is a critical fact in this case, yet Dr. Melmed cannot remember if he knew these things before or after refusing services and requiring Plaintiff to get the evaluation. In fact, Dr. Melmed testified he believes he may have heard about all of these alleged concerns after November 23, 2003. Furthermore, the staff members involved (Elaine Frey, Kim Urioste, Jodi Partridge, Christine Tillman) all testified that they never relayed these alleged concerns to the doctors, or that they did not raise these alleged concerns with the doctors before November 23, 1999. Argument.
Under Pushkin v. Regents of University of Colo., 658 F.2d 1372 (10th Cir. 1981), the Tenth Circuit analyzed the burden of proof for a Plaintiff under Section 504. Section 504 and Title III are to be construed similarly. See, e.g., 42 U.S.C. § 12201; Bragdon v. Abbott, 524 U.S. 624, 631 (1998). As the Pushkin It would be a rare case indeed in which a hostile discriminatory purpose or subjective intent to discriminate solely on the basis of handicap could be shown. Discrimination on the basis of handicap usually results from more invidious causative elements and often occurs under the guise of extending a helping hand or a mistaken, restrictive belief as to the limitations of handicapped persons. A claim under § 504 would be analyzed more readily under a "disparate impact" theory where it is claimed that a facially neutral practice has a discriminatory impact on persons within a protected class. Pushkin, 658 F.2d at 1385. Under the Pushkin analysis, a plaintiff establishes her prima facie case by showing that she was an otherwise qualified handicapped person apart from her handicap, and that she was rejected under circumstances which give rise to an inference that her rejection was based solely on her disability. Id. at 1387; White v. York Int'l Corp., 45 F.3d 357, 361 (10th Cir. 1995).
In the absence of the alleged concerns, only Plaintiff’s blindness distinguished her from all of the clinic’s other patients. Beyond that, Dr. Horvath and Dr. Melmed both testified that Plaintiff’s blindness and their assumptions -- not based on any knowledge about blindness -- about how well Plaintiff adapted to her blindness were the only reasons behind requiring proof of the safety of Plaintiff’s home. The very thing they required as a “starting point”-- an occupational therapy evaluation of the safety of her home -- is directly tied to her blindness, and to nothing else. The doctors had no idea how an evaluation would assist in addressing the other alleged concerns.
Defendant also asserted that the doctors had a moral and ethical obligation to ensure the safety of a child that might someday be born as a result of their services. While there may be some truth to this statement, the doctors did not and do not take any steps to ensure the safety of their other sighted artificial insemination patients’ yet-to-be-conceived children. The record is clear that the doctors do not investigate criminal background, or encounters with departments of social services. They did not investigate whether their patients had a history of abusing children. Moreover, even with the best of intentions, the doctors cannot apply criteria for services to blind patients they do not impose on sighted patients. 42 U.S.C. §§ 12182(b)(1)(A) & (b)(2)(A)(i); 45 C.F.R. § 84.52(a)(2)-(4). The doctors cannot: Deny a qualified person with a disability these benefits or services; or afford a qualified person with a disability an opportunity to receive benefits or services that are not equal to that offered nondisabled persons; or provide a qualified person with a disability with benefits or services that are not as effective as the benefits or services provided to others; or provide benefits or services in a manner that limits or has the effect of limiting the participation of qualified persons with a disability. Id. By requiring Kijuana Chambers alone to prove her parental fitness before continuing treatment, she was denied services and had conditions and restrictions placed upon her that the defendant never placed on sighted patients. No reasonable fact finder could have construed the evidence any differently.
The doctors, including their expert, Richard Worley, M.D., testified that they also have an obligation to ensure that babies born to their already pregnant obstetrics patients will be safe. Twice, this Court sustained defense counsel’s objections regarding inquiry into the comparison between artificial insemination patients and obstetrics patients.3 Because the doctors claim they owe a similar duty to both groups of patients to ensure that children born will be safe and because the comparison between Plaintiff and other artificial insemination patients is necessarily small,4 Plaintiff should have been able to explore this comparison further. It was error for this Court to prohibit this inquiry. Nevertheless, the doctors did testify that even among their artificial insemination patients, they never required any patient other than Plaintiff to obtain an occupational therapy evaluation prior to continuing services.
3 The Court analogized the comparison Plaintiff’s counsel attempted to make to the familiar “apples and oranges” comparison. Plaintiff submits this is not an accurate analogy. Staying with the Court’s analogy, the comparison might be more correctly stated as between “apple seeds” and “ripening apples.” Part of why the analogy seems strained in the first place is that even though the experts at trial testified they owe a duty to both mother and baby, doctors do not follow up with the safety of babies born to their obstetrics patients. Likewise, doctors do not follow up with the safety of babies born to their artificial 4 Such patients constituted approximately one percent of their total patients.
Plaintiff met all of her burdens of proof at trial: that she has a disability, that Defendant operated a place of publish accommodation, that Defendant receives federal financial assistance, that she was otherwise qualified to receive artificial insemination services apart from her disability, and that she was discriminated against solely on the basis of her disability. At that point, Plaintiff made her prima facie case, the burden shifted to the Defendant to show either that it had legitimate, non-discriminatory reasons for its actions,5 or that taking Plaintiff’s disability into account was permissible under law. Mayberry v. Von Valtier, 843 F. Supp. 1160, 1166 (E.D. Mich. 1994); United States v. Morvant, 898 F. Supp. 1157, 1161 (E.D.
La.1995). The burden shifted back to the plaintiff to rebut defendant's reasons as a pretext for Plaintiff demonstrated pretext in numerous ways: (1) some of the alleged behaviors could not have happened, e.g., fresh menstrual blood on her underwear; (2) that the doctors who made the decisions never knew about the alleged concerns until after the decisions were made; (3) some of the alleged concerns, e.g., having difficulties getting around the office or to and from bus stops, impermissibly took Plaintiff’s disability into account; and (4) the doctors never required assurances of parental safety from their sighted patients. After the alleged nondiscriminatory reasons were stripped away, Plaintiff’s disability remained as the only characteristic separating her from other artificial insemination patients. Blindness was Although Defendant argued repeatedly that “this is not a case about blindness,” Dr. Melmed testified that blindness was indeed a factor. Exh. 2 reconstructs several of the references to blindness Dr.
Melmed made at trial. This case is both a pretext case to the extent that the Defendant claimed it had 5 The test so described can be found in McDonnell Douglas Corp. v. Green, 411 U.S. 792,(1973), and is refined in Texas Dep't. of Community Affairs v. Burdine, 450 U.S. 248 (1981) and St. Mary's Honor legitimate, nondiscriminatory reasons for its actions and a mixed-motives case, because, blindness was a factor that motivated Dr. Melmed’s decision to require an evaluation and refuse further services.6 Plaintiff rebutted all of the claimed nondiscriminatory reasons, leaving only blindness as the motivating factor. Plaintiff proved discrimination on this basis by only Plaintiff was required to prove her home safety before Defendant’s Direct Threat Defense Fails As a Matter of Law.
The affirmative defense of “direct threat” should have been stricken because it has no bearing on the hypothetical circumstances of this case.7 “Direct threat” is defined as a “significant risk to the health or safety of others.” 42 U.S.C. §§ 12111(c) & 12182(b)(3); 28 C.F.R. 36.208(b) (emphasis supplied). While the word “direct” is not specifically defined, “direct” denotes immediacy. See Webster’s New World Dictionary 369 (MacMillan General Reference, A Simon & Schuster MacMillan Company ed., 3d ed. 1996).
(defining direct as “with nothing or no one in between; immediate; close”).8 Furthermore, the doctors in this case testified that -- as is the case with any woman seeking to become pregnant -- there was no way to ascertain what, if any, risk Plaintiff might have posed to a child 6 For a mixed-motives analysis, see Price Waterhouse v. Hopkins, 490 U.S. 228, 260-61 (1989) (plurality opinion); Desert Palace, Inc. V. Costa, 21 S.Ct. 2148 2150-55 (2003).
7 Plaintiff first brought this issue to the Court’s attention in her Brief in Opposition to Defendant M.
H. Melmed, M.D., P.C.’s Motion for Summary Judgment, filed June 11, 2001, at 15-18. The Court raised the issue with defense counsel during the continued Trial Preparation Conference on the first day of trial. Plaintiff’s counsel re-raised the issue as part of its motions for judgment as a matter of law at the end of Plaintiff’s case in chief and again at the end of trial. Nevertheless, the issue of whether Plaintiff posed a “direct threat” was permitted to be considered by the jury.
8 The numerous cases that have construed the “direct threat” defense comport with the requirement that the significant risk be immediate. See e.g., Albertson's, Inc. v. Kirkingburg, 527 U.S. 555 (1999) (applying defense in case of truck driver with poor visual acuity seeking to drive truck); Bragdon v.
Abbott, 524 U.S. 624, 649-50 (1998) (applying defense in case of HIV-positive patient seeking dental services). Plaintiff’s counsel are unable to find a single case permitting the defense to be applied to hypothetical events that have a mere possibility of occurring in the future.
who might have been born assuming a future artificial insemination procedure was successful. Dr. Melmed himself testified that he believed Kijuana Chambers posed “some risk,” but that he could not say whether that risk was significant or not. Further, Dr. Melmed testified that he conducted no research or inquiry into the actual risk Plaintiff might have posed if she had conceived a child. Under the statute, regulations and United States Supreme Court precedent, the direct threat defense cannot apply in this case.
The existence, or nonexistence, of a significant risk must be determined from the standpoint of the person who refuses the treatment or accommodation, and the risk assessment must be based on medical or other objective evidence. As a health care professional, petitioner had the duty to assess the risk of infection based on the objective, scientific information available to him and others in his profession. His belief that a significant risk existed, even if maintained in good faith, would not relieve him from liability.
To use the words of the question presented, petitioner receives no special deference simply because he is a health care professional. It is true that Arline9 reserved "the question whether courts should also defer to the reasonable medical judgments of private physicians on which an employer has relied." At most, this statement reserved the possibility that employers could consult with individual physicians as objective third-party experts. It did not suggest that an individual physician's state of mind could excuse discrimination without regard to the objective reasonableness of his actions.
Bragdon v. Abbott, 524 U.S. 624, 649-50 (1998) (internal citations omitted). Dr. Melmed’s subjective view that Plaintiff posed a direct threat did not meet this standard. To establish that Kijuana Chambers posed a significant risk, the doctors needed to prove they made an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence, to ascertain: the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures will mitigate the risk. 28 C.F.R. 36.208(c). Because the potential birth of a child was and Plaintiff’s abilities to parent were so far removed from the doctor’s treatment of Plaintiff, it was, of course, impossible for them to prove these elements. That is why the doctors provided no evidence 9 School Board of Nassau County v. Arline, 480 U.S. 273 (1987).
The Department of Justice’s regulatory commentary accompanying 28 C.F.R. 36.208 makes this even more clear.10 “[This regulation] establishes a strict standard that must be met before denying service to an individual with a disability or excluding that individual from participation.” 28 C.F.R., pt. 36, app. B (analysis of 28 C.F.R. § 36.208). Accordingly, In Arline, the Supreme Court recognized that there is a need to balance the interests of people with disabilities against legitimate concerns for public safety. Although persons with disabilities are generally entitled to the protection of this part, a person who poses a significant risk to others may be excluded if reasonable modifications to the public accommodation's policies, practices, or procedures will not eliminate that risk. The determination that a person poses a direct threat to the health or safety of others may not be based on generalizations or stereotypes about the effects of a particular disability; it must be based on an individual assessment that conforms to the requirements of Such an inquiry is essential if the law is to achieve its goal of protecting disabled individuals from discrimination based on prejudice, stereotypes, or unfounded fear, while giving appropriate weight to legitimate concerns, such as the need to avoid exposing others to significant health and safety risks. Id. The record in this case establishes the doctors made assumptions about Ms. Chambers’ blindness not rooted in any exploration of the subject of how blind people parent. A quick search on the Internet on “blind parenting” elicits numerous informative web sites. Organizations like the Colorado Center for the Blind and the National Federation of the Blind have widely available information and local offices.
At trial, defense counsel argued that Plaintiff had not provided any medical or other literature regarding blindness and parenting, but this argument misstates the applicable law and factual record. First, it is Defendant’s burden to prove it made the assessment, not Plaintiff’s duty to provide the information. Plaintiff never did or had any reason to doubt her ability to care for a child. With the exception of one 10 The Supreme Court has given significant deference to the Department of Justice’s Title III regulations. Colorado Cross-Disability Coalition v. Hermanson Family Ltd. Pshp., 264 F.3d 999, 1004 n.6 (10th Cir. 2001) (citing Bragdon v. Abbott, 524 U.S. 624, 646 (1998).
question from Dr. Melmed regarding how Plaintiff would feed a baby, which Ms. Chambers answered readily, the doctors never inquired into how Ms. Chambers would care for a child. Rather than make such an inquiry, Dr. Horvath demanded an evaluation of Plaintiff’s home done before Ms. Chambers was even pregnant. Dr. Horvath never asked if she would be living in the same apartment if and when a child was born. When Ms. Chambers told Dr. Horvath she would address child-proofing her house at the appropriate time, Dr. Horvath, based on her assumptions about “the special needs of a visually impaired patient,” demanded an occupational therapy evaluation. This falls far short of the “strict standard” required.
Furthermore, in making its assessment, Defendant is prohibited from imposing eligibility criteria for services on Plaintiff that it does not impose on sighted patients. [A] public accommodation is permitted to establish eligibility criteria necessary for the safe operation of the place of public accommodation. Implicit in that right is the right to ask if an individual meets the criteria. However, any eligibility or safety standard established by a public accommodation must be based on actual risk, not on speculation or stereotypes; it must be applied to all clients or customers of the place of public accommodation; and inquiries must be limited to matters necessary to the application of the standard. 28 C.F.R., pt. 36, app. B (analysis of § 36.208) (emphasis added).11 The defendant made no objective assessment concerning Ms. Chambers’ ability to safely parent a child. As noted above, the alleged concerns were not communicated to the doctors, and the doctors did not independently observe these issues. Defendant cannot argue that these observations formed a part of the assessment.
This Court should be guided by Int’l Union v. Johnson Controls, 499 U.S. 187 (1991), in which the Decisions about the welfare of future children must be left to the parents who conceive, bear, support, and raise them rather than to the employers who hire those parents. Congress has mandated this choice through Title VII, as amended by the PDA. 11 Proving that the eligibility criteria are “necessary for the safe operation of the public accommodation” is an affirmative defense. Colorado Cross-Disability Coalition v. Hermanson Family Ltd.
Pshp., 264 F.3d 999, 1003 (10th Cir. 2001).
Id. at 206.12 The same principle applies to doctors providing artificial insemination services. Congress mandated that services be provided to Plaintiff in a non-discriminatory manner. To the extent that the doctors involved owe a duty of safety to a child who might be born through artificial insemination services, they owe that duty to all of their patients and must apply their safety criteria to all of them.
As a matter of law, Defendant’s direct threat defense should have been stricken and that question The Defense Regarding Alleged Non-Payment of Plaintiff’s Bill Should Have Been Stricken
and the Jury Advised Accordingly.
At the close of Plaintiff’s case-in-chief and at the end of trial, Plaintiff moved to strike Defendant’s asserted defense that “Plaintiff never paid her bill on time.” Defendant raised this issue during responses to interrogatories. Plaintiff specifically requested that the Defendant submit documentary evidence of this and other affirmative defenses. See Exh. 3 (Plaintiff’s discovery requests and Defendant’s responses). Furthermore, Defendant had a duty under Fed. R. Civ. P. 26(a) to identify documents demonstrating its defenses. Defendant never turned over any evidence that Plaintiff never paid her bill on time and never identified any documents demonstrating this defense.
Furthermore, Dr. Melmed testified that the status of Plaintiff’s bill was not a basis for the decisions to stop treatment and require an evaluation.13 Dr. Melmed testified he heard about Plaintiff’s bill status from 12 In Johnson Controls, the Supreme Court analyzed another civil rights statute, the Pregnancy Discrimination Act, 42 U.S.C. 2000e(k) as applied to a fetal-protection policy of an employer.
13 To the extent Dr. Melmed may have attempted to say otherwise at trial, this was a deviation from his sworn deposition testimony and amounts to perjury. Compare Exh. 1 (deposition testimony of Meir H. Melmed, p. 107, l. 10 - p. 108, l.8), during which he testified that any alleged debt never influenced the doctor’s treatment decision with Dr. Melmed’s trial testimony, during which he claimed Plaintiff’s payment arrangements were part of the reason for his decision to stop further treatment. On this basis alone due to the highly prejudicial impact of allowing the jury to consider the status of an alleged unpaid bill, Plaintiff seeks reconsideration of her motion to strike Defendant’s defense regarding non-payment of Plaintiff’s bill and requests the Court to order a new trial. Christine Tillman. Ms. Tillman testified she could not say whether she told Dr. Melmed about the status of the bill before or after November 23, 1999. Dr. Melmed also testified that the conversations he had with his staff regarding alleged “rumblings” or concerns occurred after his second and final conversation with Plaintiff on November 23, 2003. One of those “concerns” allegedly was the status of the bill.
Finally, nothing in the doctors’ or staff’s notes in the medical chart reference the bill status as a reason for the required occupational therapy evaluation or the denial of the Serophene prescription. Under Rule 50, no reasonable juror could have found that the status of Plaintiff’s bill had any bearing on the doctor’s decisions to discontinue treatment or condition further treatment on getting an occupational therapy evaluation. In the absence of the requested instruction to strike this defense, the jury impermissibly could have concluded that non-payment of the bill was a reason for the doctors’ decisions.
CONCLUSION
WHEREFORE, Plaintiff respectfully requests this Court grant Plaintiff’s renewed motion for judgment as a matter of law as set forth herein. In the alternative, Plaintiff requests this Court order a new Certificate of Compliance With D.C.COLO.LCivR. 7.1(A)
The undersigned sent Defendant’s counsel, Christopher Miller, a letter on December 8, 2003, requesting Defendant’s position with respect to this motion. Mr. Miller e-mailed the undersigned on December 8, 2003, stating his client almost certainly objects, but without seeing this motion, cannot say I hereby certify that on December 10, 2003, a copy of this Renewed Motion for Judgment as a Matter of Law or, in the Alternative, Motion for a New Trial was served by first class mail, postage prepaid,

Source: http://www.ccdconline.org/sites/default/files/RenewedMotionforJAML12-10-03.pdf