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Saturday, March 19, 2016

Would You Settle a Case in Mediation with a Single Handwritten Paragraph?

Martina Beverly sued her former employer, Abbott Laboratories for employment discrimination and retaliation, raising ADA and national origin claims. The parties agreed to private mediation.

During a private mediation, the parties signed a handwritten agreement stating that Beverly demanded $210,000 and mediation costs in exchange for dismissing the lawsuit. Abbott later accepted Beverly's demand and circulated a more formal settlement proposal. After Beverly refused to execute this draft proposal, Abbott moved to enforce the original handwritten agreement.

Before the mediation, Abbott sent a 6 page typewritten template as a proposed basis for settlement.

The mediation lasted 14 hours. Both sides were represented by counsel. Near the end of the mediation, the parties and counsel signed a HANDWRITTEN agreement which stated:

I Jon Klinghoffer will commit that my client will communicate to its internal business client the fact that Abbott/AbbVie  has offered $200,000 + Abbott/AbbVie pays cost of mediation to resolve this matter and that Martina Beverly has demanded $210,000 + Abbott/AbbVie pays cost of mediation to resolve this matter. Both parties committ [sic] that their offer and demand will remain open until Tuesday, July 22, 2014, 3:00 PM central.

The next day, Abbott's counsel emailed Beverly's counsel stating, "My client has accepted Martina Beverly's demand to resolve her claims in the above referenced matter for $210,000 plus the costs of yesterday's mediation. I have attached a draft settlement agreement for your review."

Finished? No. Beverly declined to sign Abbott's document.

Abbott filed a motion to enforce the one paragraph handwritten agreement. The court The district court granted Abbott's motion, finding that the parties had entered into a binding settlement agreement that included all material terms—specifically, the dismissal of the case in exchange for $210,000 and mediation costs.

Plaintiff Beverly appealed. The 7th Circuit Court of Appeals found that the handwritten agreement was sufficient to define the parties intentions. The absence of other terms from the typewritten proposal (e.g., specifically, provisions relating to indemnification, future cooperation between the parties, Beverly's future employment options with Abbott, the precise allocation of settlement funds, and express language concerning release and waiver) did not undermine the conclusion that the single handwritten paragraph embodied all needed material terms.

So what should one do to avoid such post-mediation disputes? I note that a simple sentence ("This is a partial agreement, not effective until embodied in a final text") would have avoided the dispute. Perhaps the 14 hours of mediation had so tired the participants that they were happy they could agree at least on the dollar amount, and, for the moment, all the rest didn't matter.  Taking a few breaths before leaving the room might have permitted them to reread the handwritten paragraph to be sure it said what they meant.

The court suggests recording communications related to any final agreements.

It bears mentioning that a transcript (or some other recording) of the private mediation session here may have provided important clarity regarding the parties' beliefs and intentions relating to the handwritten agreement and the draft proposal. We encourage future litigants to record any communications that directly relate to final settlement agreements.

Beverly v. Abbott Labs., 2016 U.S. App. LEXIS 4799 (7th Cir., Mar. 16, 2016).

Are Two Meals a Day (and Soy!) Enough for a Prisoner? Is the ADA Violated? The Eighth Amendment?

Serving two meals a day -- a 10:00 AM brunch and a 4:00 PM dinner -- served to prisoners raises a triable Eighth Amendment claim. So holds an Illinois federal court. The court also found that the prison's Soy diet raises also raises an Eighth Amendment claim.

The plaintiff maintained that, not only is the meal policy nutritionally inadequate and that it causes health problems, but also that "the policy reflects a conspiracy on the part of the defendants to make a profit by forcing the inmates to buy more food from the prison commissary and to funnel money into the defendants' 'secret accounts.' " Owens v. Shah, 2016 U.S. Dist. LEXIS 35375 (S.D. IL, March 18, 2016). Prison conditions that deprive inmates of basic human needs, such as inadequate nutrition, health, or safety, may constitute cruel and unusual punishment. Rhodes v. Chapman, 452 U.S. 337, 346 (1981); James v. Milwaukee Cnty., 956 F.2d 696, 699 (7th Cir. 1992).

Is there a viable ADA claim? The plaintiff prisoner claimed that the policy caused him to suffer from severe headaches, hunger pains, low blood sugar, lethargy, and fatigue.  The court found that, although an ADA claim was asserted, there were no facts alleged which might support the prison defendants' liability under the ADA.

Questions for litigators, both pro se prisoners and attorneys.  If the symptoms caused by the bad food policy had been articulated within the ADA rubric, would an ADA violation have been made out?  If we have what appears to be a clear constitutional violation, is there any benefit to the litigant to also include the statutory ADA violation?

Owens v. Shah, 2016 U.S. Dist. LEXIS 35375 (S.D. IL, March 18, 2016).

Discovery of Federal Tax Returns in ADA Employment Case

Must Federal Tax Returns be Produced by ADA Plaintiff?

A federal court on March 18, 2016 ordered an ADA plaintiff to produce his tax returns in a case in which lost employment income is alleged. Plaintiff had injured his shoulder and sued for failure to accommodate under the ADA and state law.

Finding that tax returns are not privileged, the court held that the employer is entitled to the returns. “While this Court does not consider the merits of Defendant's claims that Plaintiff may have received income "under the table," Defendant has shown that there is some dispute as to the completeness of Plaintiff's wage information.”  Besco v. City of Longview, 2016 U.S. Dist. LEXIS 35465 (W.D. WA). The spouses’ and other irrelevant information may be redacted.

THE FUTURE OF DISABILITY LAW. My book, just published

Just published!
David Ferleger, Esq., Editor

This new volume is available from

Among the chapters are:

·      Pathways to Disability Justice
·      Civil Rights Movements and People with Disabilities
·      Access to Courts: A Model Future, Achieved Today
·      U.N. Convention on the Rights of People with Disabilities
·      Education: The School to Prison Pipeline
·      The Medical Decision Process
·      Accommodations, Technology & the Internet of Things
·      Aging and Disabilities
·      Offenders with Complex Communication Needs
·      Criminal Justice and Disability
·      What We Decide to Do as People with Disabilities
·      Disability, the Law of the Poor and the Future

            In celebration of the 25th anniversary of the enactment of the Americans with Disabilities Act, nationally recognized disability rights advocates look ahead to the next twenty-five years of disability law.

            From the introductory essay by David Ferleger, Esq.:

            Cultural change is the final pathway to which I commend attention. Many of the essays in this volume see culture change as an essential underpinning to advances for people with disabilities. In my view, seeking such change requires a significantly refined articulation of our goals.  Are we talking about accommodation?  Inclusion?  Assimilation?  Disability justice advocates will need to pay increased attention to defining our direction as the issues and competing solutions become more nuanced.

            The essays in this volume delve into the past, examine the present and anticipate various futures for achieving disability justice. Understandably, some authors are optimistic, and others question the scope or possibility of future progress. A number of authors present their own experiences in earlier civil rights movements as models and inspiration for the work they do now. Some speak to the issues from the perspective of their own experience as people with disabilities.

            One piece of the future appears clear, despite the unknowns, we know now that we are in the midst of changing a system which sent people with disabilities to separate places, to enter at the back door, to the end of the line.[1] As a distinguished jurist, who happens to be blind, has said, the demand today is for “front door justice.”

            What is the future of disability justice? We cannot count on the past, even past successes, as harbingers of the future. Those successes might block our visions of the future.  Only our imagination and creativity, and our actions, will unlock the future

[1] A cautionary note is appropriate regarding “deinstitutionalization” which ought to go hand in hand with development of “most integrated” (the phrase is from Olmstead) community homes for people. Sometimes, the community has replicated undesirable features of the institution.

Wednesday, October 7, 2015

U.S. Supreme Court Asked to Hear Case Challenging Mandatory Life Without Parole for Severely Disabled Teenagers

Yesterday I filed a petition for certiorari in the U.S. Supreme Court seeking review of the question of whether a 2012 decision is retroactive and also asking the Court to clarify that the decision applies to teens with severe mental disabilities.

The 2012 decision, Miller v Alabama, held that juveniles under 18 are entitled to an individualized sentencing process, and can't be sentenced to mandatory life without parole. Life without parole is a die-in-prison sentence. The Supreme Court is hearing argument next week, October 13,  in a case asking the Court to make the 2012 decision retroactive. More than 2,000 prisoners in the U.S. remain in prison having been sentenced to life without parole. Obviously, many are now in middle or old age for something done as a teenager. The Court's 2012 decision discussed at length how "children are different" in terms of vulnerability, maturity, brain development, etc.
My client, Kenneth Davenport, committed murders when he was 18 years and four months old. He was severely mentally ill and psychotic at the time. His sentencing was held in abeyance as he was promptly sent to a mental hospital where he remained for four years.

We are asking the Supreme Court, in addition to making the 2012 decision retroactive, to decide that marginally older teenagers be held entitled to individualized sentencing (not mandatory) when they were severely mentally disabled at the time of the trial, and especially where they were considered juveniles under state law. Pennsylvania defines minor at someone 18 and under (like Davenport), not under 18.

We suggest that the Court could hear the case on its own, or hold it in the wings pending decision in the already pending case.

The petition for certiorari: available from me. Will soon be available on the scotusblog web site.

From the Petition:

Clarifying that Miller’s outer boundary has some flexibility in extreme situations, such as severe mental disability, is reasonable and practical, both with regard to Davenport and to others similarly situated.

The Court has recognized that disabilities makes a difference when it comes to a sentence of death. Atkins v. Virginia, 526 U.S. 304 (2002). Just as children are different when it comes to life without parole, children who are severely disabled are different enough to support flexibility in defining who is a juvenile.

As Miller teaches, life without parole is an “especially harsh punishment for a juvenile” under all circumstances. It is especially cruel and harsh for a teenager with severe mental illness and psychosis.

Permitting severe disabilities to be considered for the marginally older teenager provides a safeguard against a harsh and, for these teens, cruel imprisonment until death. Individualized sentencing must include consideration of such extreme conditions as severe mental illness and psychosis when determining if a die-in-prison sentence is to be imposed.

The crimes took place 42 years ago, at a time when Davenport was 18 years and four months old, severely mentally ill and psychotic. At 61, he is serving a mandatory life without parole sentence.  If Miller is not retroactive, and does not apply to him, he will die in prison without there having ever been a review of either his circumstances at the time, including his severe mental illness and psychosis, or of any remorse, personal development or rehabilitation, in the decades since his family’s deaths. Neither deterrence nor punishment justify denial to Davenport of Miller individualized sentencing.

Monday, August 17, 2015

“No Defendants, You Can’t Use HIPPA to Deny Discovery”: Practical Advice to Avoid Discovery Battles Over Medical Records (Sarah Poppy Alexander article)

The following article is not my work. It is the well-written and well-researched work of San Francisco attorney Sarah Poppy Alexander.  She deserves full credit.

RBGG’s Poppy Alexander published an article in Law360 on August 14, 2015, “No Defendants, You Can’t Use HIPPA to Deny Discovery.” 

One can join Law360 for free trial at its website. Allow me to suggest you check it out.

“No Defendants, You Can’t Use HIPPA to Deny Discovery”:  Practical Advice to Avoid Discovery Battles Over Medical Records

By Sarah Poppy Alexander, Rosen, Bien, Galvan & Grunfeld LLP

The Health Information Portability and Accountability Act (HIPAA) accomplishes two things: It provides important protections for the privacy of patients’ sensitive medical information while simultaneously providing the means for legitimately obtaining that information. HIPAA was never intended to bar the legitimate discovery of relevant medical records in litigation. Yet a number of defendants use HIPAA to block discovery of patient medical records in institutional class action cases. Some defendants may do so out of confusion about what their obligations under HIPAA actually entail; others may do it deliberately to thwart the flow of information. Regardless of defendants’ intent, plaintiffs’ counsel need to familiarize themselves with the content of the HIPAA regulations to avoid unnecessary and costly discovery delays in large institutional class action cases. Counsel should be prepared to address HIPAA issues early in the litigation process for all cases where medical records may be relevant. Doing so will help ensure the free flow of necessary information and sidestep unnecessary discovery fights.

HIPAA Provides Guidelines for Obtaining Medical Information

HIPAA provides both protection for patients’ medical information and guidelines for how and why this information may be shared. HIPAA includes a number of provisions protecting the privacy of medical information stored by so-called “covered entities.”  It also provides that this information may be disclosed pursuant to a signed records release or in limited circumstances outlined in federal regulations.

“Covered entities” often overlook the second half of what HIPAA does, choosing to see it only as protective of information and not as a guideline for information flow. This may stem from a legitimate concern about the stiff penalties covered entities can incur for violating HIPAA, or it may stem from a general reluctance to share information.

For most lawyers, the most important HIPAA guideline for the flow of information is 45 C.F.R. § 164.512(e): “Disclosures for judicial and administrative proceedings.” This subsection permits the disclosure of protected health information in three litigation-specific circumstances: (1) in response to a court order; (2) in response to a subpoena or discovery request if the requesting party provides “satisfactory assurance” that “reasonable efforts” to provide notice to the individual have occurred or (3) in response to a subpoena or discovery request if the requesting party provides “satisfactory assurance” that “reasonable efforts” to obtain a “qualified protective order” have occurred.

Generally, obtaining a qualified protective order will be the most expeditious means of obtaining protected health information. Fortunately, the regulations specify exactly what needs to be in a qualified protective order in 45 C.F.R. § 164.512(e)(v): It must “[p]rohibit[] the parties from using or disclosing the protected health information for any purpose other than the litigation or proceeding for which such information was requested” and “[r]equire[] the return to the covered entity or destruction of the protected health information (including all copies made) at the end of the litigation or proceeding.”

Practically speaking, in any litigation where medical records may be requested in discovery, counsel should ensure that a protective order with these two clauses is in place before issuing any discovery request. It may also be helpful to include a clause within the order that “this protective order is a qualified protective order pursuant to 45 C.F.R. § 164.512(e)(v).”

Covered entities may not be familiar with the idea of the qualified protective order. They are more likely to be comfortable requiring the written authorization of a patient before permitting the release of medical information. Defendants may go so far as to claim that this is the only method for releasing the records at issue. Obtaining written authorization may, in fact, be the quickest and best solution in a case where the medical care provided to only one or two individuals is at issue, such as a typical medical malpractice case. But in larger class action cases, obtaining authorizations for every individual will be impractical and expensive at best and most likely impossible. In those cases, the qualified protective order will be far more effective and expeditious.

The Interaction Between HIPAA and the Federal Right to Medical Privacy

HIPAA does not create any new federal privacy rights. The Seventh Circuit held as much in Northwestern Memorial Hospital v. Ashcroft, 362 F.3d 923 (7th Cir. 2004), which is widely accepted as the correct interpretation of HIPAA’s limitations. Despite this, some defendants will claim that HIPAA creates a federal privacy right in each patients’ medical information. Defendants will then attempt to use this argument to shield discovery. That simply is a misunderstanding of the law. HIPAA cannot be used to limit legitimate discovery on the basis of privacy.

Even though HIPAA does not create new federal privacy rights, there is a general federal right to privacy in one’s medical information. This federal common law right is not absolute and will be balanced by a court against a party’s demonstrated compelling need for obtaining the information. See, e.g., Hutton v. City of Martinez, 219 F.R.D. 164, 166 (N.D. Cal. 2003). The HIPAA regulations do not address this federal right to privacy at all and fail to specify precisely what a HIPAA-compliant protective order authorizes. Practically, this means that before authorizing discovery of medical records, a court may need to balance plaintiffs’ need for all of the information contained in the records. The two most important unresolved areas for most institutional class action suits will be whether redactions are mandated, allowed, or prohibited, and whether class certification shifts the federal privacy balance in favor of the plaintiffs.


Nothing in the HIPAA regulations states whether a medical record may be redacted to eliminate identifying information before production pursuant to a HIPAA-compliant protective order. Defendants may again use this issue to try to slow down discovery by claiming that the process of redacting identifying information is required, but is too burdensome and costly.

Depending on the case, redactions may not matter for proving the substance of a claim. Defendants’ need or desire to redact certain information means that there will be an argument about the burdensome and expensive nature of providing the redacted records plaintiffs seek. For this reason alone, it may be better to fight for unredacted medical records regardless of whether the patient’s information is relevant to a specific case. Unfortunately there is no good guidance in the case law about whether parties in pre-certification institutional class litigation have a right to unredacted medical information if said information is produced pursuant to a qualified protective order. The judge will ultimately weigh the need for unredacted information against the federal right of privacy—HIPAA will have nothing to do with it. Different judges have taken very different approaches to this balancing test. In at least a few cases, courts have allowed the production of unredacted medical information prior to class certification. See Gray v. Cnty. of Riverside, No. 13-00444, 2014 WL 5304915, at *15 n.6 (C.D. Cal. Sept. 2, 2014); Kallas v. Carnival Corp., No. 06-20115, 2007 WL 2819385, at *2 (S.D. Fla. Sept. 25, 2007). Other courts have presumed that only redacted information is available pre-certification. However, in many of these cases, the plaintiff did not seek unredacted information, meaning that the judge did not directly consider the redaction question. See, e.g., Allen v. Woodford, No. 05-1104, 2007 WL 309485, at *11-12 (E.D. Cal. Jan. 30, 2007).

Class Certification

Another unresolved question about the scope of a qualified protective order is whether class certification is an important marker in the balancing of federal privacy rights. Nothing in the HIPAA regulations speak to this. Yet courts have consistently presumed that post-class certification, the plaintiffs have a greater interest in the medical data, shifting the weight of the balance towards disclosure. See Romano v. SLS Residential Inc., 298 F.R.D. 103, 114-15 (S.D.N.Y. 2014); Ginest v. Bd. of Cnty. Comm’rs of Carbon Cnty., 306 F. Supp. 2d 1158, 1159-60 (D. Wyo. 2004). Thus, even if a court is unconvinced that plaintiffs’ need for unredacted information pre-certification is sufficient to overcome any privacy interests defendants may assert, plaintiffs should be prepared to argue that once individual class members are officially plaintiffs, it is plaintiffs’ counsel’s job—not defendants’—to protect their privacy interests.

What Privacy Rights Are Not in Play: State Privacy Laws

As just discussed, federal privacy rights do interact with HIPAA to define the scope of medical record discovery in federal cases. State privacy laws, on the other hand, are not relevant. Despite this, a favorite blocking tactic of some defendants is to claim that state medical privacy rules prevent the production of patient medical records. State privacy laws are generally more protective than the federal rules; however, they are not applicable to injunctive relief cases arising under federal law. See Delaney v. Tilton, No. 07-1219, 2008 WL 4298179, at *3 (E.D. Cal. Sept. 18, 2008). Whether defendants assert these state rights out of ignorance or to stymie discovery, such assertions should be immediately counteracted through the meet-and-confer process.

Three Steps to Obtaining Needed Discovery under HIPAA

Based on the above considerations, a recommended strategy for heading off unnecessary discovery fights would be as follows:

Get the judge on your side early.

In cases where you know that you will need medical records and that obtaining signed releases will be impracticable or impossible, alert the court to this issue early on. It may make sense, for example, to raise this issue in your initial case management statement. Make sure the judge understands the legal issues and your right to this discovery. If defendants are amenable, get their stipulation to your right to this information at the initial conference.

Draft a HIPAA compliant protective order.

Using the language in 45 C.F.R. § 164.512(e)(v) as your guide, draft a protective order in your case before any discovery has been served. Confirm it is explicitly understood by all parties that the protective order complies with HIPAA and applies to all parties, experts, and relevant third-parties.
Be prepared for a motion to compel.

If all else fails, be prepared to file a motion to compel. This means knowing the case law on HIPAA, redaction rules, federal privacy rights, applicability of state privacy law, and pre- and post-class certification rules. The cases cited herein should hopefully be a starting point for your meet and confer process.

David Ferleger thanks Michael Bien

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