Mental & Physical Disability Law Reporter
Highlights
Each issue of the Law Reporter contains a "Highlights" section that focuses on key state and federal court opinions, legislation, and regulations found within that issue.
Highlights from January / February 2008 Issue
Expert Evidence and Testimony [004]
The Tenth Circuit upheld a ruling that a jury was not required to give any weight to the opinions of two qualified experts who had concluded that a murder defendant with paranoid schizophrenia had been hallucinating and, thus, was legally insane when he committed the crime. Juries are not bound to believe the opinions of any witnesses, including those who are experts. Diestel v. Hines,506 F.3d 1249 (10th Cir. 2007), 32 MPDLR 16; [004(d)(iii); 2.02(e)(ii)].
Civil Commitment [1.01]
A California appeals court upheld the 90-day detention order for a homeless man who tested positive for tuberculosis, finding that the delay in appointing counsel, which deprived him of representation at his initial hearing, was harmless where a public defender was appointed thereafter and a review hearing was to be held in two months. Also, unlike civil commitment proceedings for persons who are mentally ill, gravely disabled, mentally disordered, or sexually violent, these public health detention proceedings do not require unanimous jury verdicts and proof beyond a reasonable doubt. Ventura County Pub. Health Officer v. Adalberto M.,67 Cal. Rptr. 3d 277 (Cal. Ct. App. 2007), 32 MPDLR 17; [1.01(d)(vii)].
Civil Incompetency [1.04]
Congress passed legislation requiring states and federal agencies to report to the National Instant Criminal Background Check System any person who has been “adjudicated as a mental defective” or “committed to a mental institution.” Records shall not be provided if: (1) the adjudication or commitment has been set aside or expunged; (2) the person has been released or discharged from all mandatory treatment, supervision, or monitoring; (3) the person has been found to no longer have a mental condition or has been rehabilitated; or (4) a commitment did not include an opportunity for a court or administrative hearing. P.L. 110-180 (Jan 8, 2008), 32 MPDLR 144; [1.04(f)(iv)]. To read more
The Washington Supreme Court ruled that in an emergency situation health care providers may not be held liable for continuing neonatal resuscitation without informed consent from an infant’s parents beyond the point where it was highly probably that the infant would sustain severe disabilities. Stewart-Graves v. Vaughn, 170 P.3d 1151 (Wash. Sup. Ct. 2007), 32 MPDLR 25; [1.04(g)(ii) & (viii)].
Insurance [1.06]
The Tenth Circuit reversed continuation of benefits under the Employee Retirement Income Security Act for a claimant who was challenging the two-year limit for mental illness payments, finding that the lower court had abused its discretion in considering testimony after the administrative determination from the claimant’s treating neurologist and psychiatrist. The applicable test for admitting such evidence, as established in Hall v. UNUM Life Ins. Co. of Am., 300 F.3d 1197 (10th Cir. 2002), is whether (1) it is necessary for the court’s de novo review; (2) it could not have been submitted to the plan administrator originally; (3) the evidence is not cumulative or repetitive; and (4) the evidence may not be “simply better evidence” than what was provided for the claim review. Jewell v. Life Ins. Co. of N. Am.,508 F.3d 1303 (10th Cir. 2007), 32 MPDLR 40; [1.06(a)(iv)].
Liability Issues [1.08]
Massachusetts’ highest court declared that physicians owe a duty of care to third parties injured in car accidents due to the actions of patients, where it is foreseeable that the failure to warn patients of the side effects of medications prescribed by the physicians would cause such accidents. Coombes v. Florio,877 N.E.2d 567 (Mass. Sup. Jud. Ct. 2007), 32 MPDLR 45; [1.08(e)]. To read more
Criminal Incompetency [2.01]
The Ninth Circuit found that a defendant’s confession to the murder and sexual assault of a 13-year-old girl to a psychiatrist in a pretrial detention group therapy session was properly admitted into evidence as being voluntary under the Fifth Amendment. Even though group members had signed an agreement that all group communications were confidential, the confession was not coerced in the sense that his will had been overcome. Beaty v. Schriro, 509 F.3d 994 (9th Cir. 2007), 32 MPDLR 57; [2.01(a)(ii)]. To read more
The U.S. Supreme Court will hear arguments on the question of whether states may adopt a standard for measuring defendants’ competency to represent themselves at trial that exceeds the constitutional standard established in Godinez v. Moran, 509 U.S. 389 (1993), 17 MPDLR 344. Indiana v. Edwards, cert. granted, 128 S. Ct. 741 (2007), 32 MPDLR 143; [2.01(b)(iii)]. The amicus brief that the American Bar Association submitted in the case is reprinted in this issue. 32 MPDLR 9.
An Indiana appeals court concluded that, under its interpretation of Jackson v. Indiana, 406 U.S. 715 (1972), a trial court lacked authority to dismiss pending criminal charges for a defendant who, after being deemed unlikely to regain her competency to stand trial by a hospital superintendent, had been civilly committed longer than the maximum period she could have been imprisoned if convicted for criminal reckless behavior. Nothing in Jackson, noted the court, supported the notion that time spent in civil commitment should be equated to credit for time served prior to a criminal trial where her confinement was civil and not punitive in nature. Indiana v. Davis,875 N.E.2d 779 (Ind. Ct. App. 2007), 32 MPDLR 66; [2.01(e)(i) & (iii)].
The Ninth Circuit, citing Sell v. United States, 539 U.S. 166 (2003), 27 MPDLR 548, found that a California federal court had erred in ordering a defendant to be involuntarily medicated in order to restore his competency to stand trial because (1) it failed to identify the specific medication or range of medications that may be administered, their maximum doses, and how long the forced medication could continue before the treating physicians had to report back to the court on the defendant’s condition and progress, and (2) before resorting to the Sell approach, the court must consider whether under Washington v. Harper, 494 U.S. 210 (1990), 14 MPDLR 124, medication could be administered because the defendant is dangerous to himself or others. United States v. Hernandez-Vasquez, 2008 WL 170201 (9th Cir. Jan. 22, 2008), 32 MPDLR 63; [2.01(e)(iv)].
The Fifth Circuit, in a de novo review, upheld a finding that the government’s asserted interest in prosecuting a defendant charged with threatening to murder a federal court security guard was important enough to justify forcibly medicating the defendant to restore his competency to stand trial, even though, if tried, he might be found not guilty of reason of insanity due to his schizophrenia. United States v. Palmer, 507 F.3d 300 (5th Cir. 2007), 32 MPDLR 63; [2.01(e)(iv)].
Diminished Culpability [2.02]
The U.S. Supreme Court, in two 7-2 rulings, found that federal judges have considerable discretion to individualize sentences based the facts of each case, whether or not they choose to follow the U.S. Sentencing Guidelines (USSG). The new parameters governing appellate review of these sentences depends entirely on the permissible range in the applicable federal statute and whether the trial court’s decision was “reasoned and reasonable.” There can no longer be a presumption that decisions that fail to follow the USSG are unreasonable. Gall v. United States, 128 S. Ct. 586 (2007); Kimbrough v. United States, No. 06-3330 (U.S. Sup. Ct. Dec. 10, 2007), 31 MPDLR 833; [2.02(d)(i)].
The Seventh Circuit held that, despite the advisory nature of the USSG, a lower court erred in not addressing a defendant’s schizoaffective disorder as a mitigating factor under 18 U.S.C. §3553(a), a federal statute that requires courts to consider the length of a sentence in light of several factors, all of which would be affected by a defendant’s mental illness: need for deterrence; appropriateness of imprisonment; and need for retribution. United States v. Miranda, 505 F.3d 785 (7th Cir. 2007), 32 MPDLR 68; [2.02(d)(i)].
Sexual Offenders [2.03]
A New York federal court enjoined as unconstitutional two key provisions of the New York Sex Offender Management and Treatment Act, N.Y. Mental Hyg. Law art. 10, which respectively (1) mandates civil detention pending a commitment hearing based on a finding of probable cause that a respondent has a mental abnormality without making a finding that he is currently dangerous, and (2) permits commitment of those found to be incompetent to stand trial for a sexual offense based on clear and convincing evidence that those defendants committed the offense they were charged with. Mental Hygiene Legal Serv. v. Spitzer, 2007 WL 4115936 (S.D.N.Y. Nov. 16, 2007), 32 MPDLR 77; [2.03(a), (b)(iii) & (c)].
Mentally Disordered Offenders; Jails and Prisons [2.04]
The Idaho Supreme Court ruled that a defendant who pleads guilty to a drug offense in return for being admitted into a diversionary drug court program has the same due process interest in challenging a decision terminating him from the program and sentencing him to prison as a person whose probation or parole is revoked. Idaho v. Rogers, 170 P.3d 881 (Idaho Sup. Ct. 2007), 32 MPDLR 82; [2.04(c)(i)].
ADA: Scope of Coverage [3.01]
The D.C. Circuit ruled that in measuring what constitutes a substantial limitation of the major life activity of learning for a medical school student under the Americans with Disabilities Act (ADA), the proper comparison group is the average person in the general population and not persons of comparable age and educational backgrounds. Moreover, learning itself involves a broad set of cognitive abilities and not just the ability to take medical school tests. Singh v. George Washington Univ. Sch. of Med. & Health,503 F. 3d 1097 (D.C. Cir. 2007), 32 MPDLR 83; [3.01(a)(ii)]. To read more
ADA Enforcement Provisions [3.02]
The Ninth Circuit concluded that two federal district courts acted within their discretion in declaring a plaintiff, who had filed hundreds of ADA Title III lawsuits against various California public accommodations, vexatious—and therefore requiring him and the law firm representing him to obtain leave of the courts before filing any further such claims—where the courts had proper grounds to find that the complaints were without merit. Molski v. Evergreen Dynasty Corp.,500 F.3d 1047 (9th Cir. 2007), 32 MPDLR 98; [3.02(d)].
Employment [3.05]
The Fifth Circuit reaffirmed its view, which a majority of circuits follow, that where a plaintiff files an employment discrimination claim under both §501 and §504 of the Rehabilitation Act, it is error to charge the jury that it must use the stricter §504 “sole cause” causation standard in rendering a verdict, rather than §501’s more encompassing “motivating factor” test. Pinkerton v. United States Dep’t of Educ.,508 F.3d 207 (5th Cir. 2007), 32 MPDLR 118; [3.05(b)(1)].
A split Sixth Circuit concluded that an employer could compel an employee to go to arbitration on claims under Tennessee’s discrimination law and the Family and Medical Leave Act (FMLA) because even though she had not signed the new arbitration agreement or knowingly and voluntarily consented to its terms, including the waiver of her rights, she had knowingly elected to continue her employment with the company after the effective date of an arbitration program for employees had gone into effect. Seawright v. American Gen. Fin. Servs., Inc.,507 F.3d 967 (6th Cir. 2007), 32 MPDLR 122; [3.05(g)].
A Puerto Rico federal court, however, ruled that it was unjust and unreasonable for an employer to include in a mandatory arbitration agreement a clause that compels Puerto Rican employees to travel to California to arbitrate claims that they have been discriminated against under the ADA Title I. Sanchez-Santiago v. Guess, Inc.,512 F. Supp. 2d 75 (D.P.R. 2007), 32 MPDLR 122; [3.05(g)].
The Fifth Circuit upheld FMLA regulations, 29 C.F.R. §825.208(a)-(b), that require employers to provide individualized notice when leave is to be counted as FMLA leave, and affirmed the award of compensatory damages for back and front pay based on an employer’s failure to provide such notice. Downey v. Strain, 2007 WL 4328487 (5th Cir. Dec. 12, 2007), 32 MPDLR 112; [3.05(h)(ii)].
The U.S. Supreme Court, without explanation, dismissed its grant of certiorari in a case in which the Eighth Circuit had ruled that an employer did not violate the ADA Title I by denying an employee’s reasonable accommodation request that she be transferred into a vacant, equivalent position for which she was a qualified, but not the most qualified, applicant. Huber v. Wal-Mart Stores, Inc., 486 F.3d 480 (8th Cir. 2007), 31 MPDLR 627, cert. dismissed, 2008 WL 114946 (Jan. 14, 2008), 32 MPDLR 143; [3.05(k)(i)].
Public Accommodations [3.07]
A divided Ninth Circuit concluded that a plaintiff who uses a wheelchair had standing to sue a hotel under the ADA Title III based on general allegations of lack of access mostly in hotel rooms that the plaintiff had not used. Also, he did not have to notify the hotel of the violations before filing suit because Title III has “no pre-suit notice requirement.” Skaff v. Meridien N. Am. Beverly Hills, LLC,506 F.3d 832 (9th Cir. 2007), 32 MPDLR 101; [3.07(b)(ii)].
A divided Ninth Circuit held that under Title III plaintiffs are not strictly limited to challenging barriers that they have personally encountered or about which they have personal knowledge. Plaintiffs also have standing to sue about barriers that they were prevented from finding out about due to accessibility barriers, even if those barriers are discovered later by the plaintiffs themselves or experts retained to investigate the public accommodation’s accessibility. Moreover, each separate architectural barrier should not have to meet standing requirements, as long as the plaintiff has suffered a cognizable injury due to discrimination as defined under Title III. Doran v. 7-Eleven, Inc.,506 F.3d 1191 (9th Cir. 2007), 32 MPDLR 127; [3.07(b)(ii)].
A Nebraska federal court found that a patient whose kidney transplant surgery was rejected by a medical center, which used his paranoid schizophrenia as grounds for its decision, could not sue the center under Title III because, as decided in Burger v. Bloomberg, 418 F.3d 882 (8th Cir. 2005), 29 MPDLR 726, a legitimate medical decision cannot provide the basis for an ADA claim. McElroy v. Patient Comm. of Neb. Med. Ctr.,2007 WL 4180695 (D. Neb. Nov. 21, 2007), 32 MPDLR 129; [3.07(b)(iii)].
Education [3.10]
The D.C. Circuit found that because a former D.C. student with a learning disability and emotional problems had been provided with special education services while in a Maryland corrections facility and the D.C. Public Schools (DCPS) had been prevented from implementing its individualized education program for that student, DCPS had no obligation to provide him with compensatory education under the Individuals with Disabilities Education Act once he was released. Hester v. District of Columbia, 505 F.3d 1283 (D.C. Cir. 2007), 32 MPDLR 131; [3.10)(e)(v)].
