SANHO STEELE LOCHART: Welcome back! Ooh, it worked. My teacher voice. Okay. Before law school I was a teacher, and I don't know if I made a good decision by switching or a bad one, but I love my job anyway. So our next presentation, this panel is it does not have a PowerPoint, so do pay close attention. And this is how to develop and win disability rights disability rights damages cases in a post Cummings world, which of course, I am particularly excited about myself. Our presenters this afternoon are I'm sorry, morning. I don't even know what time it is. Our presenters this morning are David John Hommel from I'm trying to figure out how to pronounce it, there we go, Eisenberg and Baum. Also from Eisenberg and Baum, we have there we go. Reyna Lubin. We have Andrew Rozynski. And then from Brown, Goldstein & Levy we have Jessie Weber and Jamie Strawbridge. Please give them a warm welcome and I look forward
[ Applause ]
SPEAKER: Thank you we'll be talk about three Title II and Section 504 cases that we've brought involving damages in a post Cummings landscape although for some of them Cummings was not the law of the land at the beginning of the case, actually for all of them. And so we'll talk about the cases, trial strategies and ideas for going forward. So and I'll note two of the cases went to trial with juries and had jury verdicts and we'll discuss that as well. To start us off we'll summarize the facts and pertinent cases before we jump into Cummings issues
SPEAKER: Yes, thank you. Our case is Wade versus university medical center southern Nevada. Our client is a welder, a father, a motorcycle enthusiast and a Deaf man who uses American Sign Language. In 2015 he was en route to a motorcycle convention and unfortunately got into an accident in which broke both of his wrists. He was transported to UMC, where he wanted to obviously receive treatment for his wrists. Unfortunately our client spent four days at the hospital and never received an American Sign Language interpreter for his communications. He never received a virtual interpreter, an in person interpreter, nothing. And so we brought a lawsuit on behalf of Mr. Wade for discrimination against the hospital, under the ACA, the Affordable Care Act.
At the trial we were able to successfully proof discrimination. The testimony that came out was the hospital had successes, 24/7 to VRI, virtual interpreting services, they never utilized it. All staff members confirmed they never attempted to procure in person sign language interpreter, and our client testified that he was forced to write notes back and forth during his entire time at the hospital. And you can imagine he had broken wrists. Our client testified that communicating in sign language is much easier than writing. He was in a cast that was probably up to his hands and his fingers were still out of the cast and he was able to sign using his fingers and his hand movements. And we presented videos of him speaking with his family members fluently in sign language.
He testified that writing, however, felt like fire in his wrists, and that he was in significant pain every time he had to write. And he had to write for four days. We were successful, we were able to pursue pain and suffering damages, and expectation damages in the hospital, and we will get into all of that later. The jury did award our client 50,000 dollars and he was very happy with that and we were very excited that we were able to pursue justice for our client.
SPEAKER: Thank you. So I'll give an overview of the Payan case, LECCD and I'll note we have a lot of folks in this community have been involved in this case, keeping it out of the Supreme Court, so it's really been a team effort and other members of the team are here as well, Joe Espo is in the back, and Denise who was part of our trial team is here. I'm not sure if Kevin and Monica are here as well. But they were involved too.
So this case was brought on behalf of two blind college students at the L. A. Community college district. Payan and Mason along with the NFB and NFB of California as organizational plaintiffs. The case was filed in 2017 and the case centered on and it's still going so I shouldn't speak in the past tense, centers on the variety of ways that the LA Community College district deprived blind students an equal opportunity to benefit from their education.
So everything from not getting course materials in accessible for mats, things like class handouts, power points, or getting accessible textbooks but chapter by chapter weeks after the class had already covered them. So students were completely behind. The students were denied note takers, even though there was a ton of material being presented visually in class. The library was a big problem. There were a lot of inaccessible databases and no plan in place for how to go about getting these students access to the databases.
Even the accommodation forms that students filled out with their counselors were inaccessible. They were print documents in hard copy and the blind students didn't get to actually take it back with them and know what was on them, which you can imagine was really problematic when you're trying to explain to an instructor what you're entitled to. And then students were also steered away from certain classes that were just not for blind students. So a whole host of problems.
The case originally went to trial in 2019. That's where Joe was involved. And I think Dan worked on that case back then too. Dan Goldstein. And the judge split the case, he decided liability himself and had a jury decide damages. The jury at that point awarded Roy 40,000 dollars and didn't award Mason anything. There was an appeal, lots of decisions went up whether there was disparate impact under 504 which was the big issue we wanted to keep away from the Supreme Court. But one of the issues we raised on cross appeal was the judge had messed up the jury trial portion.
Really the whole case should have been decided by a jury. And the 9th circuit agreed with us so we got a new trial. So the case went back down, and we did have our new trial this past last May, so May 2023. In the meantime we had dismissed the 504 claim, so it was just a Title II case at that point. And I'll wait to tell you about what happened from there in the next round. So in the meantime, Jamie, do you want to give an overview of Montgomery?
JAMIE STRAWBRIDGE: Of course, thank you so much. And great to see everyone of course here. So Montgomery versus the District of Columbia, this is a case that centered on a homeless man, Gary Montgomery, who had severe schizophrenia, had it basically from his childhood all the way into adulthood. And in 2012, he was at the wrong place at the wrong time. He was at a bus stop in the District, around the time that a high profile murder occurred there. As a result he ended up being interrogated by the Metropolitan Police Department over eight hours for two sessions. And the interrogation happened while he was in the midst of a severe mental health crisis.
And this is all sort of plainly captured on the videotape. He's talking to himself, rambling, hallucinating. And the tragic part of this case is that the detectives sort of just kept going at him, hour after hour using sort of coercive techniques, trying to extract a confession, or at least incriminating evidence against Mr. Montgomery. And he did say various things that could be construed as inculpatory over these hour long sessions. And he ended up being charged with a murder in this case. And he was incompetent to stand trial. So what actually happened was after he was charged, he ended up being put in a psychiatric facility in the district, where he remained for five years, and was evaluated and continually found not competent for trial.
Eventually he did go to trial in 2017, I think, and he was promptly acquitted, because the evidence against him was always very thin. The evidence always centered on this interrogation, which was played for the jury at length, and also kind of provided in binder form. It was sort of the centerpiece of the prosecution. But that was really the bulk of the evidence against Mr. Montgomery. The police department didn't follow up on other leads for other potential suspects. They didn't follow a lot of the standard protocol of the DC police department, like you know, running a DNA check, through a database and other steps that would have been expected that they would have taken.
So he was promptly acquitted. Although he tragically passed away not that long after being acquitted. So the lawsuit was originally filed in 2018, and although it was initially a bit broader in scope, in terms of the types of claims that were brought, it was eventually narrowed down to basically an ADA case. And the major issues in the case that we dealt with as it was litigated through summary judgment were things like does the ADA apply to detectives in interrogations. I think the answer there was resoundingly yes. The judge was with us on that.
Did Mr. Montgomery require an accommodation? Yes. The judge was with us on that as well. And it was apparent. Or should have been readily apparent to the detectives.
And then a bunch of other sort of issues that maybe come up a lot in these cases, but did what the police department do after so after the interrogations, any steps that the police department took, did that suffice under the ADA or did they have to do something while the interrogation was ongoing? The judge sided with us on that as well. And then we had the typical issues like deliberative indifference. How could we prove that. So we had a failure to train theory that the judge was sympathetic to, especially because the evidence showed that the police department really wasn't training detectives at all and detectives didn't really know what the ADA was or how it applied to interrogations and what, if anything, they need to do differently when they interrogate someone who's in the middle of a crisis.
So those were some of the issues that we dealt with. And the last big one, which was touched on yesterday on a separate panel was the proximate cause issue, was sort of the biggest potential bucket for damages. And that was well, if he wasn't accommodated as he should have been under the ADA during this interrogation, okay. What is the effect of that? Did that cause him to be in a psychiatric facility in DC for five years? How tight is that link? And that's something that we litigated back and forth with the district as well.
So maybe I'll stop there and we can get into the damages and how it resolved.
SPEAKER: Yes, thank you very much. My name is David John Hommel my sign name is DJ, I use he/him/his. I'm a white male with the standard issue blue suit, white shirt, red tie. I have short brown hair. Let me tee up Cummings. The Wade case was filed in 2018, discovery was exchanged, motions for summary judgment were filed and denied in October 2020 the judge asked us to file pretrial orders with proposed dates. A few months later we were requested new dates. That continued until Cummings came out and within a month saying that our request for emotional distress was barred and the case should be thrown out.
Our primary points are the ones we felt strongest about were we were entitled to expectation interest damages, pain and suffering damages and we were entitled to nominal damages. And more specifically, taking each in turn with expectation damages, Mr. Wade deserved to be made whole. A subsidiary argument we made was that the defendant was unjustly enriched by not providing any interpreter services and save those costs, via VRI or an in person per hour. I will note as an aside, we didn't address a concept of reasonable certainty, which unfortunately in our home turf of New York, there's been a few cases which the courts have said yes you can get this, but you have to show reasonable certainty.
For a host of reasons, including the fact that damages are not an element of these claims, I disagreed with that analysis and I don't think we've had a fair shot to present that. But it wasn't an issue here. Turning over to pain and suffering, yes because he had broken wrists and a hospital required him to write notes, it exacerbated his pain and the judge had said at the time we did not need an expert to talk about that ongoing suffering. And third and finally, nominal damages, that was our fail safe in case everything went awry but it was important for us because we argued successfully that deliberate indifference is not required for nominal damages. Proof of liability would be sufficient.
Because of the delay, which was no, in due no part to our client, the judge granted 60 days of discovery in which we shored up these damages and with the help of our colleague Cheryl in the pink jacket, we recalibrated our trial strategy with Mr. Wade to talk less about mental anguish, but more about lost opportunity and full participation. And we wanted him to discussion that he had an expectation based on the patient's bill of rights which of course is forged by section 504 and now the ACA.
We testified whether or national there was an impaired exchange of medically relevant information. We focused on the fact that effective communication is a two way street. Even if you assume the worst, Mr. Wade did not get what he needed and we wanted to emphasize that because Mr. Wade still had the ability to loosely. We had two short video clips of him signing in which he couldn't have the full range of expressions but he was able to move his fingers and hands and he said certainly I have preexisting pain because of my broken wrists but the pain signing is about a level 2 or 3. But to write notes all the way to a 10 and beyond.
We also focused on the fact that Mr. Wade's life is his hands. It's how he communicates, as my colleague said he's a welder. That's his trade. That was one of the reasons why we didn't obtain expert testimony, because not only did we not need it according to the court at the time, Mr. Wade continued to be a welder and given the limited amount of discovery we were concerned about not having enough time of expanding upon that and making sure that Mr. Wade had a fair shot of recovering as much damages as possible.
And then throughout the trial, what really seemed to resonate with the jury was this apathetic attitude of not providing Mr. Wade the opportunity to participate as anyone else would. We asked doctors and nurses, both my esteemed colleagues here, would you exchange reams of notes with your average patient? Would you require a patient whose primary language is English to lip read? If you had a patient who speaks a foreign language such as Spanish or French, would you obtain an interpreter. So we wanted to drive home to the jury that we're not asking for the sun and stars, we want Mr. Wade due what everyone else gets.
Focusing on the pain and suffering, the writing of the notes. There was a note when Mr. Wade first came in, a consent form. And even though he was in excruciating pain, he just crashed his motorcycle and broke his wrists, they forced him to write an X on a consent form, even though it specifically states can he not sign and someone else can sign on his behalf and he was accompanied by a friend of his.
In addition, he had received a note from a nurse asking do you want an interpreter, and he wrote yes. And third and finally, he received a note from a doctor expressing amazement about how, wow, you're Deaf and you ride motorcycles. How long have you been doing that? Mr. Wade wrote five years and that was the last time he wrote.
Because not only did that cause excruciating pain, but bringing together the expectation interests, he was disgusted at the idea him riding a motorcycle because he was Deaf is an astonishing accomplishment. He's just like everyone else, he wants to opportunity to go to the hospital, understand his medical care, understand his questions and fully participate with his family. And like miss Lubin said there was no VRI, no in person interpreters and they used lip reading and they con scripted Mr. Wade's friend who did not consent and knows some American Sign Language as well as his sister, who uses basic sign language to communicate with her brother.
And what really helped throughout the questioning and building up to the closing argument, telling the jury that this is a civil rights case. The defense theory was very much about proper medical care. Mr. Wade is here, he's testifying. Thankfully that was the case. But their entire theory hinged on the idea that we didn't allege medical malpractice. So what I will say in a debrief talk to Andrew and Reyna right before the rebuttal, the one moment that really stood out to the jury and we were able to poll them after and speak to them more, was clarifying that point. And saying explicitly this is a civil rights case. What you find about proper medical care does not matter. And so much so and because of the defendants' misguided theory, which when we moved for judgment as a matter of law, the judge even said, open quote, I am seriously considering, closed quote, granting that motion. Because the defendants theory was not about the unavailability of interpreting services, or how other methods were equally effective. It was simply we made no allegation that the nurses and doctors did anything medically wrong.
And in clarifying that that was not the case, the jury sided with us, and in addition, because of the testimony of Mr. Wade, we were able to get him some form of compensation in this post Cummings world. And with that I turn this back over to my colleagues on Payan and Montgomery
SPEAKER: Great, thank you. And David reminded me I forgot to do my own image describe. I'm a white woman with curly brown hair, silver highlights, red dress, this is Jessie again. My pronouns are she/her. Payan we're back to the remand. Fast forward we've had a lot of filings with the court about how we all planned to litigate the case. The court had us exchange like months before trial kind of proposed jury instructions and objections, lots of opportunities for briefing before the court. But we get to the pretrial conference, one week before trial, and for the first time, LACCD says your honor, there is a case called Cummings and plaintiffs are not entitled to any damages. And the court says oh, that's really interesting. Could you do a summary judgment brief on that? Due tomorrow and plaintiffs then you have a day to respond and then I'll rule on it the day before trial. So that's what we did.
So that's the posture in which this was raised.
And so we briefed this the week before trial, again, if I didn't mention it, we had an amazing trial team, and we argued a number of thing that Cummings didn't apply to Title II since it's not a spending clause statute and even though it refers to the remedies of 504, it was passed before Cummings and we're supposed to construe the remedies of civil rights acts broadly. We also argued that LACCD had untimely raised Cummings and there's good case law in the 9th circuit on this point. The asphalt in which the defendant had waited a while and the 9th circuit said you could have made this argument even before Cummings was decided because there was case law brewing that emotional distress damages weren't available. So we argued that, and of course that it was quite prejudicial to raise it the first time a week before trial after we had completed all of discovery, lots of briefing and had already had a trial.
And then we also argued that there were other damages available, even if emotional distress damages were out. So the damages we talked about were kind of starting with the most clear cut economic damages. So Roy Payan had paid out of pocket for a tutor to help him. Because when he couldn't read his textbooks, he paid 1,500 dollars for that. So that was a real cost, paid out of pocket for a textbook that he never had access to in a timely way. That's a hard cost. Mason also paid for materials although she wasn't able to put a number on it, which was problematic in the end.
And then we also talked about another bucket of damages available are lost opportunity damages. And here we followed really two helpful cases on this point. One, I won't steal Jamie's thunder, Montgomery, and he'll talk about it, but the other one is Doe versus Fairfax county school board which is actually a Title IX case but still Cummings applies. And there the Eastern District of Virginia ruled that, I'll quote the decision, lost educational opportunities lie at the heart of Title IX private right of action cases and end quote, and therefore it is a type of harm that is recoverable. The whole point of the statute is to provide an equal educational opportunity and when you're deprived that, you should be compensated for that.
There's also a jury instruction out of Indiana that was cited, Indo that we relied on again for a Title IX case again for the concept you lose something tangible when you lose the opportunity to participate in your education. And we also argued that there were conversation damages consequential damaged related to lost earnings. Both of our students had their degrees delayed by years because of inaccessibility barriers. That means fewer years of their working life in which they're getting their income. So there are real costs to that as well.
And that's also something in Doe versus Fairfax County school board the court talks about being an available area of damages. Although there the court ruled that the general allegation in the complaint, which was the lost future earnings and earning capacity, was too general. That the plaintiff had to be more specific. And so where we were in the case, we were somewhat limited in how much we could work up those damages at that point. But just word of caution on that.
So we pursued that as well. The court rejected all of these arguments the day before trial except for saying objection, out of pocket sure. Anything they paid out of pocket is fair game. On the economic lost earnings capacity damages, the court said you really need an expert. You really need more specifics. There's just not evidence. Of course ignoring the fact that maybe we could have done that if we had known that this was the law we would be under at the beginning of discovery.
The court didn't really address the lost opportunity damages, but my sense was that our judge just didn't really understand that argument, and just said, you know, just out of pocket expenses. So that's where we were. So through the trial, because the judge hadn't explicitly rejected the lost opportunity damages, we sort of made a strategic decision to not only try to emphasize every kind of out of pocket expense our clients paid, but to have them talk about what it was like to lose opportunity of getting a benefit from their education like their peers. So we made a point to really focus on that.
And one of the themes that developed actually pretty organically, because it was true I worked the most likely with Roy to his experience, and he put it this way as we were preparing, he said I felt like a spectator rather than a participant. Which is a very good description of what it feels like to be sidelined when you're in a class and you can't keep up with a class discussion because you haven't been able to read the homework. You haven't been able to access the textbooks. Can't see the handouts that are being passed out.
So we really emphasized that theme. And in terms of you know, and tried to avoid asking about how our clients felt, and more, you know, what was it like to sit through a class and not be able to follow along, or were you able to, you know, to keep up. How was that experience. The jury ultimately awarded 218 thousand 500 dollars to Roy, 24,000 dollars to Porsche. We did get to reach out to a jury after a trial and she said the jury was upset about what our clients had gone through. They really connected with that experience of being sidelined.
And I do think it was interesting, even though we had to quickly pivot from talking about our clients' emotions about experiencing discrimination to just, you know, really kind of developing the feeling of losing out on an opportunity, I think it worked well with the jury, because we kind of, avoided we weren't sort of inviting them to engage in a pity party, if you will. We weren't saying we believe our client felt these feelings, it was more relatable in some ways, how would you feel you signed up, sat through this class, done all the things you're supposed to do and you didn't get the benefit that everybody else got. I think that resonated with people's underlying sense of fairness. So I think it ended up being somewhat helpful.
The other thing I'll just note, in terms of jury themes, in our case, what I can surmise kind of the defendants' main argument was really they put on a lot of witnesses who worked in disability student services who were nice, people. They came off as nice, caring people for the most part and they were trying to do their jobs, and nobody would hear them testify and say they hate blind students. So a lot of their case was in addition to kind of denying that some things came late. We did the best we can, we're nice people, we were never deliberately indifferent to your clients. And so we made the decision to really focus on this not being a case about individual people being mean, but about an institutional failure. A top down failure to implement policies that LACCD actually had on paper that were quite good, but just made zero effort to implement. And we said that's deliberate indifference. And fortunately the jury agreed.
So I wish I could stop the story there, but I can't. So after the trial, LACCD filed a motion for remittitur asking the court to vacate or reduce the jury award. And we waited a while for that decision. We, you know, argued in response to that motion. The arguments that I outlined earlier, but in addition, we actually had another argument that the instruction the judge gave the jury on damages never said they were limited to only out of pocket expenses. It was actually pretty vague. The only thing that happened was there was a line about emotional distress removed from the jury instruction. But it wasn't limiting. And defendant never objected to that instruction, so we actually had a nice argument, I thought, that the jury actually followed what you said, judge. You may have thought you said something different, but that's not what you said.
But unfortunately earlier this month the court went along with LACCD's motion and decreased the award. Roy's award was decreased to 1,650 dollars the cost of the textbook and tutoring and Porsche's were down to zero because she was never able in her testimony, she couldn't come up with the amount of money she had spent on materials. I should also mention we sought injunctive relief, we did get an injunction, it was narrower than we wanted. We have filed our notice of appeal so stay tuned. So hopefully we'll end up making some good law in the 9th circuit on these points, one could hope. And I'll pass it on to Jamie.
JAMIE STRAWBRIDGE: Great. So back to Montgomery. We were also sort of up ending this litigation by the Cummings decision in fact in sort of an interesting way. Our judge in DDC just read Cummings on his own sort of outlined his thoughts about it, including that it applies to Title II and including that various damages are still available even in a post Cummings world.
So one initial consideration that we had is what to do with this sort of sua sponte writing in his summary judgment decision. We decided there was enough in there that was very helpful to our client that we didn't file a motion for reconsideration, didn't say please allow briefing on the Cummings issue. Just because overall there was a lot that was or enough that was really favorable for our client. That we wanted to keep pressing it forward and going to a trial.
So the most helpful things in that decision for us, as Jessie alluded to, is that judge Bates did recognize that there are these damages that continue to be viable. One is just greater indignity because of a disability. So the judge recognized that the fact that the prosecution played extended portions of the interrogation videotape at trial is something that we could ask a jury to consider when it was considering damages.
Also too, the loss of opportunity. The judge I think understood that issue, the fact that our client was in an interrogation for hour after hour and didn't have the opportunity to meaningfully participate in it, to ask questions, to ask clarifications, to say you know, I want a lawyer present to do anything that any person would want the right to do, to really be fully present and not in the middle of a mental health crisis, to explain that you're not guilty of murder, you're not the person that the police are looking for, et cetera.
And that was sort of that loss of opportunity, as David mentioned, I mean just not being able to have effective communication itself is compensable, but here even worse. Because when our client was in the middle of a mental health crisis, it was basically undisputed in the litigation that he would be more willing to go along with where the detectives were leading him. So more willing to go along, more susceptible to these coercive interrogation techniques. So we kind of had both sides of the coin there in terms of loss of opportunity.
One thing that wasn't as helpful, from our judge, is that the judge did sort of signal that in his view, the loss of opportunity damages weren't going to be, you know, perhaps as significant as we were arguing they should be. But then again, he didn't put a dollar number on it. So that was, I thought, maybe not as helpful. But recognizing the damages were there was great.
And then the big bucket for us was the consequential damages. And that is as a consequence of this interrogation, which sort of was the crux of the case against Mr. Montgomery, the prosecution did decide to go forward to charge him with murder and that led to him being in the psychiatric facility for the five years before trial. So that was always the kind of focus of the damages for us, because it was the biggest potential amount.
And so what did we kind of do or what was our thinking to the extent it's helpful? We really wanted to press ahead to a trial in this case. In part because we thought even in that post Cummings world, this is a pretty sympathetic story, and the evidence of what we were arguing is really strong. And in general, we felt two things. First that we thought we would get a sympathetic jury, and that the jury would, you know, parse through these Cummings issues, you but maybe ultimately think there's just something very, very wrong here. Something went wrong. And we were feeling pretty confident that we could argue this is a big damages case. You know. Even if we can't consider emotional distress, if you're thinking about a loss of opportunity when you're in interrogation, that's a really important thing and should really be compensable and similarly, to state the obvious, if you end up in a psychiatric facility for five years as a result of what happened in this interrogation, as a result of failure to effectively communicate and provide you the accommodations you need, that's a really, really big deal.
And our general pitch, I guess, to the DC government, was that even in this post Cummings landscape, this doesn't change a whole lot for us. I mean the damages here, you know, as my colleague on the case Eve Hill said yesterday, maybe we would have called them garden variety in another year, another time, the fact that we call them something else now, loss of opportunity or consequential damages, we're still talking about the same magnitude of harm here. These are all still compensable post Cummings, and so this is still sort of, you know, on the order of a really compelling, wrongful prosecution or wrongful incarceration case.
So we were kind of taking that attitude, and we were in settlement negotiations sort of taking that posture and saying this is sort of the same business as usual. I don't know how successful that would have been with a jury, because we never got there. We did have settlement talks. The history of the settlement talks is that we hadn't made much head way, over, over years of this. But with a trial coming up in November of last year, we did sort of reengage with the district, including with a magistrate judge in DC. And of course, as always happens, we started worlds apart. But I think the lesson I learned from it, or what I took away, is that Cummings sort of created a lot of uncertainty on both sides of this discussion, in terms of what would a jury do with this? How would a jury value this loss of opportunity? How would a jury value these consequential damages? And you know, the district's position was, you know, damages are going to be very, very hard to recover, very, very low. And our position, as I said was, no, this is sort of business as usual.
This is a really high value case and the jury is going to be extremely sympathetic to our client. And this is not the kind of trial that you really want. This is not the kind of we're talking about what police officers, detectives did and didn't do, leads they didn't follow up on. Why did they use these coercive techniques in the interrogation room? Why is no one being trained on what accommodations to offer when you are interrogating someone who's having a mental health crisis? Shouldn't they about absolutely kind of bedrock what the police department is doing? And the police department is interacting with people with mental health issues all the time. Even in your own policies that you need to accommodate. So what went wrong here? So these are kind of maybe not things that the district would want to have a full blown trial on.
So eventually, I was really happy. Really happy for our client here, because ultimately we were able to kind of, I guess meet in the middle a little bit with the district. I mean it wasn't we had to moderate our expectations a bit, I suppose, post Cummings. But I do think we got the district to kind of reorient or reframe its mind set as well, in terms of well, what kind of magnitude damages are still possible here. So in the end we did not go to trial. We did settle, and but the lesson I learned, the total settlement was for, which is public which is the reason why I can say it was for 750,000 dollars as a global settlement. And so we were pleased with that, and it's evidence that we can still get settlements and damages in this post Cummings world.
ANDREW ROZYNSKI: Hello everybody. My name is Andrew Rozynski. I am a white man. Asked my wife how I should describe myself, she says tall, dark and handsome. I didn't agree with it. But anyway I use he/him/his pronouns. Now I'm going to get to the fun part which is what do we do now after post Cummings and what are the practical tips that we can do in our own cases to ensure that we can be successful in these cases? And what's surprising is that our firm, we did an analysis of what kinds of success we've gotten before and after the Cummings case, and in terms of what kind of injunctive relief, what kind of damages and what kinds of settlements and our values of our cases and the equitability to obtain has actually increased since Cummings.
People think of Cummings as being some sort of doomsday scenario. Certainly I did, I argued Cummings, when the decision came down, I was like devastated. I thought the disability rights just came crashing on top of me at that point. So I have like since then trying to do everything that I can to see how can we be successful in a post Cummings world. So I'm going to go over some of the things that we've heard about in some of these cases, and also how practically in your cases, strategies you can do to be successful going forward.
So who here who here knows that the Rehab Act was amended in 2009? Okay. Some of you, okay. And who knows that damages were added to the Rehab Act under 794A in 2009? Okay. A few of you.
Okay. So I'm going to get to that in a minute, but I just want you to think about that for a second. So in terms of expectation interest damages, you know, how do you convey to a jury or judge what expectation interest is? It's this kind of amorphous concept that no one seems to make sense and you have to give absolute certainty of what your expectations are and if you don't do that your case is dismissed. One of the things we argued in our closing in Wade is the patient bill of rights. In a lot of hospitals you have the right participate in your care, be informed in decision making, communicate with your doctors in a language that is primary to you. One of the things we sort of did in the closing is we, on the big screen, showed the patient bill of rights. These are the expectations. Did they fulfill them ? This one? No, no, no. And guess what? What is that worth? There's various ways we've been thinking about how do we determine what that worth is.
Well, Mr. Wade's hospital bill was over 70,000 dollars. So being able not to participate in that, could you use that as an anchor, in terms of not being able to participate? Could you say that's 30% of the value of the. So getting those sort of numbers, having a way to do that. In the education context there's a student bill of rights, in the college context, things like that. Where someone didn't discriminate against and denied opportunities, you can go to their tuition, you can go to this to kind of drum up what the lost opportunity is, and get an anchor to a number. Because I think sometimes judges are like well I don't like expectation interest when it's theoretical. You need to give me numbers that the jury can calculate on. And these are ways that you can kind of sort of get around that. And I think that is something that should be utilized.
Before Cummings what I was always worried about on summary judgment is deliberate indifference. So you always saw those cases getting knocked down summary judgment, you proved you were discriminated against but you didn't prove it was intentional. Case dismissed. But what I like about Cummings now is this contract law analogy, is that pretty universally recognized now that you're entitled to nominal damages without intentional discrimination. We have quite a number of cases that have been decided by courts that deliberate indifference is not required. Intentional is not required to get to damages and we cite to the contract law.
It says even in cases where loss is caused but for recovery, that loss is precluded because of unforeseeability or lack of fair notice, the injured party will nonetheless get judgment. We use that to our advantage in one of the cases called Cuebas in which the municipal court said that yes, clearly our client was treated differently because if you are English or Spanish speaking, you can get a court date any time, seven days a week at that municipal court. But if you are Deaf, there is a one day a week interpreter day that you have to show up on the first Wednesday of the week. And by showing that he was treated differently we proved nominal damages and we got summary judgment in favor of our client.
So once we get summary judgment on nominal damages now, which is a lot harder when you're doing deliberate indifference, because whether someone did something intentionally is oftentimes, should be a question of fact. But proving that someone was treated differently without showing intentionality is a lot easier. So now in cases where we can show that clear distinction, we're moving for summary judgment on nominal damages courts are slowly getting more comfortable with that idea so I highly recommend going all in on the nominal damage front.
Also some other things that consequential damages that we're alleging, what are the downstream consequences of that discrimination? One of the things also, using contract law analogies is unjust enrichment. So for instance if a hospital does not provide interpreters, they're actually saving money. Or in any other case they're not providing the necessary accommodations that cost money, they're being unjustly enriched. So we're actually trying to go after those interpreter costs or those accommodation costs to put a number on how we should get that money back. Because they're being unjustly enriched.
So now lastly I want to talk about emotional distress damages. What I'm about to say may be conversation, but I'm going to put it out controversial and I'm going to put it out there. No judge has told me why I'm wrong so I'm going to keep going with it. So basically what we've been arguing is that emotional distress damages are still available post Cummings not under Title VI but under the 2009 amendments.
In the petition for Cummings, it actually was whether compensatory damages are available under Title VI and the statutes that incorporate its remedies for emotional distress damages. For those of you who don't know, Title VI is an implied remedy cause of absence. There's no express remedies in Title VI. But so when you go to the Gorsuch concerns in that, they actually said they don't agree with the contract law analogy. They say that its Congress's job to decide what those remedies are, and it's our job to enforce those remedies. So what they're saying is that they don't like implied causes of action because it's judges, not Congress deciding what those remedies are. But they want actually Congress to decide that. But Congress has decided that in this case.
So 98482 incorporates the remedies but in 2009 those amendments also incorporate Kate the remedies for the lily led better act. If you look at title VI, the references with the cross references are available to any person aggrieved under the act. And so if we apply that Congress decides what the remedies are, and not judges, then we should have emotional distress damages available under the remedies of 1981. And so we've been making this argument, and what the judges, they won't interact with this argument and what they'll basically say is, Cummings says that emotional distress damages are not available, therefore emotional distress damages are not available. And they don't go on like how come you're not applying the statute as written? How come you're not looking at implied remedies versus express remedies? So but we've had one case where a court said, well, emotional distress damages are available post Cummings, but only for employment cases. So it's interesting. Because if you look at 984 81 in employment cases those have express remedies in there as well.
So what controls? Is it Congress's statute or is it actually the what the judge said in its broad holding in Cummings. So with that being said, I'm happy to send briefs on that or whatever, but it's an interesting argument. I'm wondering when a court will actually address it and say no, you're wrong, and here's why. But we'll see how that develops. But anyway, going back to the rest of this, it's so important to not concede. And know that a lot of times the most value of your case is the worry about attorney’s fees. They're always worried about I'm going get hit with attorney’s fees if you show liability. And oftentimes if you focus more on that in your settlement negotiations, you'll often drive up the value.
If you can show how they're liable and how you're going to clearly show that you're going to get at least nominal damages, it usually makes them think about the case a little differently and raises the value up. So something to think about in the future. With that being said I'll turn to my colleagues for other thoughts. But I'll just leave you with that is just don't give up, be creative, and always think about you can do best for your client and get the belt results best results and with that you'll do
REYNA LUBIN: This is Reyna Lubin I apologize saying I'm a Black woman with a black and white sweater with a bun. We are optimistic in a post Cummings world. In fact, I think it challenges us as litigators to dive even deeper into the actual damages that our clients suffered. And allows us to connect with juries in ways that maybe we weren't connecting before. There are we've talked a lot here about hospital cases, but you know, we have a case coming up that involves a theme park. And unfortunately we see theme parks being sued over and over again for not providing accommodations to all sorts of disabilities. Imagine the type of damages that we can get when we start thinking about the loss of enjoyment that you had at that experience at the theme park. The tickets shall the transportation.
Sometimes you're traveling to a different state and spending thousands of dollars and you get there and you cannot even enjoy the park with your familiar. Think how we can connect with the jury on that point. As well as in a hospital. When you're in a hospital, you are probably going to the hospital because you are in pain for something. Your pain is only now exacerbated because you were now discriminated against. So think about the pain and suffering damages that we can relate to a jury, and a jury can really think about those moments and how you were in the hospital, you were isolated, you were by yourself, you were in pain. Now my pain and suffering has fully exacerbated because I did not get the accommodations that I needed.
I think it is obviously challenging, but it challenges us as litigators to really, really dive in the weeds and I think we can be even more effective for our clients, because we have no choice but to get that specific. And I think it's going to be helpful at the end.
DAVID JOHN HOMMEL: And this is DJ speaking a few more points, to reinforce some things today. So I agree that in some sense, the mental anguish almost stems from the loss of participation and the unequal treatment. So I think it's changing the terminology because we've often seen juries squeamish about civil rights and I think we touched on that with when the Wade decision came out. Enforcing those terms, lost opportunity, full participation, as we said, whether it's bill of rights in a hospital or school, just grounding that in, everyone wants to be treated like everyone else. The other points too that Jessie brought up, again, deliberate indifference before we unlock damages we have to show deliberate indifference.
I do agree this was successful in Wade that we're not dealing with often times malicious people on the other side. I think the institutional failure, the top down structure, is really important. Because we had doctors and nurses in Wade come in and these looked like very nice folks that came in and were doing the best job that they did. And that's often what we hear. Hey, we're doing the best that we could.
But I think what we can do, and what we did in Wade, for example, is you don't have to discredit the doctors and nurses and pick Mr. Wade or vice versa, especially when it comes to the miscommunication issues. We highlighted examples. For example, Mr. Wade testified that he would not have taken fentanyl medication at the hospital if he knew that's what he was taking. But a nurse testified I thought he was fine with it. So instead of pitting the nurse versus Mr. Wade, we said this is a classic case of miscommunication and this is why we're here today. Maybe one side thought one thing and the other side thought something totally different.
And that's very important for us to emphasize, just to reinforce before I pass the baton in terms of summary judgment trials is certainly taking brought efforts to focus on expectation damages and as I touched on before, I think the extent we can quantify them, obviously supremely helpful. But at the same time often without receipts of whether it's interpreter bills or some type of cost that was incurred, because of discrimination, we do have this amorphous lost opportunity, but I certainly think we can mush it push it forward especially given the nature of disability claims, that we don't have to put a dollar amount on it. That's certainly the fact that the defendant entity is somewhat responsible for not giving us a dollar amount. Because it is hard to quantify lost opportunity, much in the same way you would quantify a lost limb or some type of injury in a personal injury case. But with that, Jessie and Jamie, if you have anything to add
JESSICA WEBER: Yeah, thank you. Those are all great tips and thoughts. And I appreciate Andrew bringing some controversial legal interpretation to the panel. But I think it's emblematic of the need to be creative and it's an area where the law is in flux, and we all have the power to shape it, and we should be thinking broadly about damages theories and certainly not be conceding anything at this point. I just wanted to emphasize that.
So in terms of what would we have done now bringing this case in a post Cummings world, kind of how do you develop those buckets from other ducts of damages in the beginning, in addition to what the other folks on the panel talked about. One thing in our case, really trying to get specific about lost earnings, those kinds of consequential damages. Shouldn't have to need experts, but I think it's helpful particularly when courts want specificity. Lining up those experts, having ideally maybe some of those calculations ready to go before you file the complaint so you can put it in there and have really specific allegations related to lost earnings, especially because that Doe versus Fairfax decision, it's a district court judge decision, but it's a good one. But it does really push on us to get specific in the complaint. So I would encourage folks to do that.
The other thing in terms of kind of how do you put a number on these lost opportunity damages. I think what the Wade team did was great. Look at the bills, this is the value of medical service. We didn't do this in our case in Payan, but if I did it again, hopefully I won't do it there won't be a third trial but if we were to do it again and we had an opportunity for more discovery, I think it's worth looking at, this is the tuition, this is how the school values the education. It gets tricky when your students haven't paid that out of pocket if it's covered by grants or scholarships. But still it's a good nonspeculative value of the educational opportunity they lost out on.
Same with like student service fees. If the school's website is inaccessible and that's what your service fees are going towards, you're not getting that benefit. So that's another nice kind of firm figure you can get behind, I think. And then the other thing is really encouraging our clients, letting them know about kind of where we are on damages early on in the case. And encouraging them to be thinking broadly about how they keep track of things. Everything from, in our case something that stood out to us with our students, spent so much time walking back and forth to the student disability services office to try to get what they needed, to pick up things that were late, to come back to try to get testing accommodations that were bad. And their time has value, right? And sometimes you can put it in terms of, okay, maybe they worked a part time job and they had to give up hours and obviously that would be concrete and you could say they lost this much in additional pay.
Even if that's not the case, their time still has value. They could have been studying, resting, recharging. So trying to think about how we ask the jury to compensate for that, it's not loss of opportunity, in terms of the benefit, but just the opportunity value of our time and the time we invest when we're experiencing discrimination. So thinking kind of creatively about that. And then just keeping track of things. So thank goodness in our case Roy kept track of oh, I spent 1,500 dollars on this tutor and I spent a hundred bucks or so on this textbook.
Encouraging your clients, particularly if they're still going through the discriminatory experience when you get involved, to like meticulously keep track of here's how much I spent on every material, and I had to pay for this tutor or I have a case now where someone's boyfriend has spent time going to class with them to serve as a note taker. They had to give up time at work for that, or they had to spend money to audit the class to do it. So really trying to keep track of those expenses, because that's helpful when you get to present your case for damages.
The other thing I just want to note, just kind of piggybacking on what Jamie noted when you have a sympathetic case and they were optimistic that the jury would award substantial damages given the facts. I mean, juries at the end of the day, if they feel for your client, if they believe in your case, they want to award something. And I think kind of giving them as many opportunities to do that is important.
Also trying to keep your verdict sheet and jury instructions open ended as well I think is important. I think we did have that in our case, and we'll see if that helps us when we get to appeal. But you know, it's not clear, did the jury was the jury award because of purely loss of opportunity of the educational benefit, was it that opportunity time? Was it were they taking into account their lost earnings? I'm not sure. But there's a couple of different ways they might have thought of their award. So leaving a lot of wiggle room in a verdict form, just kind of putting damages blank rather than trying to break it down into buckets on the form I think is important as well.
What else? I think we can probably leave a good amount of time for questions and Jamie, feel free to add. I'll just put in a plug since I have all these people here. We will, I'm sure, be looking for amicus briefs when we get to the 9th circuit on this Cummings damages issue. So if anyone is interested in helping with that, I would love to chat with you, and I also put something out on the list serv too.
JAMIE STRAWBRIDGE: One tiny thing to add. My experience in drafting new complaints now is that writing the damages section is taking a little bit more time. So I just put a plug in for that. My experience has now happened a couple of times is that I'll have an initial conversation with a client about, okay, so what are the damages let's talk about it. How were you harmed, what was the practical effects of this violation of the law? And it's the initial conversation, okay, I lost this opportunity and we kind of talk it through.
But then it's like a week later or five days later you the client will call me back and say oh, actually I had to pay for this because of that. Or actually I had to, you know, skip this event which I really wanted to do or I had to take off time for work and that's another vector of harm. It's just at least my personal experience, it's taking a couple of conversations with clients so they can process with you, okay, what are all the implications of this. Just like Reyna was saying, but that work is really important and building in the time to do it is really important so that your complaint is robust as it can be and you put yourself in a good opportunity as you can.
JESSICA WEBER: I know we have people with professional expertise in the room. We welcome questions, comments, other strategy I would love to hear from folks.
SPEAKER: Hi, this is Julia speaking. I'm wearing a black turtle neck long sleeved shirt and I have brown hair, brown eyes and I'm white. So this might be more to the beginning of the case but in terms of damages, they have like a unique position where as lawyers we have to achieve the clients' outcome of a remedy but we have to make traumatic requests in that process and possibly unsafe disclosure. For example every student I have helped with for discrimination has gotten to the point of such exhaustion and fear of retaliation throughout the process that they end up retreating unable to proceed.
So my question is because you guys have worked on these cases so much, because you've gone to trial about damages and worked through settlements, what tips and effective methods do you find are useful in ensuring a client is a partner in your trial strategy beyond the professional requirement? How do you ensure the client can preserve self-worth and practices consent within your decisions? How do you try to mitigate retraumatizing the client through testimony, and more specifically, if you had a legal student, how would you be able to mitigate something like that, when the legal field itself is particularly hostile to disclosing disability.
JESSICA WEBER: Those are fantastic questions, Julia. Thank you. I'm happy to jump in first unless others want to. So I think these are really important considerations to be thinking about. Certainly the clients in my case, yeah, as you said, suffered a lot of trauma in their experiences. And it's a fine line between prepping someone for trial and retraumatizing them, especially in my case, they already went through this years ago and they thought they were done and it was difficult.
So a couple of thoughts and I'm sure others in the room have some as well. So in terms of how to speak about it, I think one thing as I mentioned is, it was Roy who really developed, he's the one who said I felt like a spectator. So kind of using what's true to your client, how they describe their experiences, it certainly shaped things a little bit. We heard what the client had to say, and said that's good. How else can you describe that? How else does that feel right to you to say that?
But making sure it's in their own words. But starting from a kernel that comes from their own truth and their own experience and that feels a comfortable way to describe what happened, I think is important. The other thing is, I think in prepping the client being sensitive, talking about acknowledging that this might be retraumatizing. And being sensitive to that as you prep. So I know people prep in different ways. I like to kind of go through everything. But we took breaks and okay, I know basically what you're going to say here, we can pause, you know. But it is a challenge. And the other thing too, in terms of with money, like it's funny we were just talking about this in our firm the other day. It's hard, because in these cases money never fully compensates for what happens, ever. There's no amount that's going to make up for what you have experienced often in these types of cases. And I think letting the client in on that early and saying listen.
I hear you. Like I know I don't know, I didn't live through it. But I hear what you're saying and what you've been through is awful and you deserve everything in the world to make right what happened. And we're going to do the best we can. But there are limits in our system of what we can get. Some of it is and we're going to push for injunctive relief so this hopefully doesn't happen to anyone else again, and for some folks that isn't really important, and we'll try to get you as much many as we possibly can. But at the end of the day a lot of it will feel inadequate. So I think kind of prepping folks and having that mind set early kind of helps blunt it a little bit. So at least they know.
But I will say in this case, Roy and Porsche were really dedicated to change, to the injunctive relief, and getting LACCD to change its ways. Which there have been a number of changes in the course of this litigation. We dispute how lasting they are and if they've gone about them the right way, but there has been movement and we hope eventually to get more permanent, lasting change. But that was a big motivator. And also like speaking out and being a model for other students. Because at the trial, I should note, the NFB of California packed the courtroom. Tim elder was amazing and brought a huge group of students every day and Roy and Porsche knew they were there and there were students watching them and being inspired. And internalizing I have rights and I should speak out and this is wrong. This is not business as usual that I don't get my materials on time. Lots of things motivating plaintiffs, and I think being aware of that helps.
REYNA LUBIN: I agree completely. I mean I every time I'm having a conversation with my client, I make sure to uplift them, to reinforce that what they're doing is a big deal. Just speaking out against discrimination, not everyone can do it. And so to continuously uplift them and put them on the pedestal that they should be on, that just making the stance is a big deal and that to continue to motivate them going forward, each step really makes a difference. Because when you do get to that trial, you are in front of a courtroom of all types of people that you've never seen before. It's not easy, and I always have to have those conversations. It's not easy, but what you're doing matters and makes a difference.
SPEAKER: This is Al Elia, a white man with a beard, blue vest and a pink shirt. So I have a client who was dismissed from medical school due to her disability. She has claims, very recent claims from the dismissal, but she also has some sort of large number, quantifiable claims from outside the statute of limitations as it's currently interpret the based on pre Cummings this is a civil rights statute. I'm wondering, I would like a gut check from people on whether or not the argument that well, now in the post Cummings world the statute of limitations under 504 should actually be the contract statute of limitations is a totally off the wall theory, or whether or not that's something we think could I think it could be quite a lock, but I value the opinions of people in the room.
ANDREW ROZYNSKI: This is Andrew speaking. I'm always for being creative and giving it a shot. And I think that there is a strong argument to make on that point. We just experienced this, both in the second and the sixth circuit where we were arguing that the ACA has a 4 your statute of limitations and what the other side was arguing was that it was the same as the Rehab Act. But we were able to prevail in both of those cases. And so oftentimes when we might have timed out of the Rehab Act following the whatever personal injury statute of that various state, we used the ACA and gotten all the relief that we were seeking under the Rehab Act for our discrimination cases in medical care and what not. So I say go for it. That's always my motto.
JAMIE STRAWBRIDGE: This is Jamie, which I apologize. I'm a 511 white male. We're continuing to make the arguments. I love the 4 year statute of limitations for the ACA. I think that's really valuable and there is a great 6th circuit decision on that. But there's also the idea that even under the ADA if you're borrowing an analogous state law statute of limitations from a comparable statute, if you can show that the amendments to the ADA in 2008 or 2009 sort of made possible your lawsuit, it's another potential argument to say then the four year statute of limitations applies, rather than what the statute of limitation is from the state, which can be one year ever and often something like two years. So just another potential argument that we're continuing to make.
SPEAKER: Hi, my name is Jeff mill letter, middle aged white guy in a boring blue suit. American University and Gallaudet University. I was really intrigued by a lot of the panel was discussing the issue of deliberate indifference, and I'm having flashbacks of a bad experience doing a similar type case and I remember the defense attorney wrote our clients were negligent, straight out, but we still win. And they did win, in fact I was very much intrigued by this discussion saying we're not going to say these are bad people we're putting on the stand. We're not going to set up a situation where it is us against them.
They're not bad people. But I was wondering how that works out in reality, I mean, my view of the case at the time was that was correct. They were really negligent and they thought that they were doing the right thing, in fact. But nevertheless, put our client in a very bad position. So I was wondering if you could just flesh out a bit about how you're going to still overcome that deliberate indifference standard if you're not going to pit both sides against each other rather directly. Thanks so much.
ANDREW ROZYNSKI: This is Andrew speaking. Like I was saying earlier, now post Cummings we're arguing you don't need deliberate indifference for damages on liability so we're going that route. But when we are talking about deliberate indifference we often cite to the cases that talk about deliberate indifference as not, doesn't mean animus or it's benign neglect, it's making a deliberate choice, it's being aware of something and making a choice regardless of that awareness. And so that itself doesn't have to have any ill will or animus.
Like in our Wade case they knew he was Deaf, they knew he was signing. They knew there was a request. Didn't harbor any ill will towards him, but they made a choice not to get him VRI or an interpreter and that's deliberate indifference. So I think that's kind of a clean example of how you can show that these don't have to be evil like trying to hurt your clients in an intentional way. But they are just making these choices knowingly, and it has a ill effect. And that's how we frame deliberate indifference in a lot of our cases.
DAVID JOHN HOMMEL: This is DJ speaking, and certainly as a disclaimer, I certainly won't shy away from sometimes there are people with heinous beliefs and there are bad actors out there. But certainly I think it's a flexible approach of seeing the testimony that comes out. Even though there's the standard jury instructions don't count the number of witnesses on each side, I feel like juries still do that, especially in Mr. Wade's case we had Mr. Wade, we read the deposition testimony of his sister. But then you have a nurse, doctor, nurse, doctor, administrator come in, all who seem like genuinely likable people. So going to what Andrew said, I think what was very important is, showing that there's documentation, let's say that was ignored. For example, Mr. Wade had a plan of care form which said on the first day, obtain hearing deficit interpreter, close quote. We made sure in all of our questioning to ask all of the medical staff did you ever pick this up and everyone said they did.
In fact it's standard protocol to look at a plan of care form before you interact with a patient. Because what we tried to turn on its head was that the defense hospital said there were over 200 interactions, there were dozens of people who came in and out of Mr. Wade's room. And hey, nobody stopped and thought they were deriving Mr. Wade of something. And what we said was all of those 200 interactions, all those dozens of people, they picked up this form and ignored it.
So in some sense we did say they were not so nice people but we didn't target them specifically and said whether it's a top down structure or their failure to look at the form 6789 they had the power to do something, and they had the information to do something. So we tell that to all of our clients to really enforce that and give us as much information as possible, to show that there was that awareness. And if we frame it as benign neglect or apathetic attitudes, that's helpful for us. I think when the jury hears deliberate indifference even with will qualifier, this is not intentional discrimination, I think sometimes they morph into one another. So we just want to make sure that the jury understands that if they had the power to do something and they didn't do that, that that apathy was so pervasive as to amount to a choice.
JESSICA WEBER: The only thing I would add is it's not a great standard. But I will say in preparing for a trial, it ended up, deliberate indifference dovetailed so well with the theme of the case anyway. I think yes, you can state a claim for liability under Title II without your client ever having complained or anything because the states have an affirmative duty to provide effective communication, equal opportunity. But it doesn't make as compelling a jury case to be like they were supposed to do it and they didn't and my client never said anything. In our case we pointed out a couple of things. Ones of them was all the types our client said no, I can't access this. This isn't working for me. This computer software program is broken. How many times they put people in the upper, high level people on notice, and the college did nothing. So that is deliberate indifference.
And then we also had all these lovely policies on paper, which nowadays a lot of big institutions have policies on paper that look great, which shows they knew what to do. But they didn't do anything. They didn't do it. And that's all you need to prove is they knew what to do or they knew there was a problem and they didn't do anything. So that's how we, you know, in closing, we went through our claim was divided into like, I forget, 12 different separate factual counts. But for each one we were to say look, here's what the policy on paper said, check your technology before you buy it, check your website, and they didn't do it, and it was bad. And actually also our client told them it was bad and they still didn't do anything.
That is deliberate indifference. And we went through each one. And the jury found deliberate indifference for most of our factual variations of the violation of Title II. Including things like the website being inaccessible which you don't think of certainly not intentional, no one said I hate people who need screen readers. I want to make this inaccessible but it was very much deliberately indifferent because they had a policy the website should comply with WCAG and they chose to ignore it. I don't think it's as big a hurdle as sometimes we fear it is. I feel like I had one other thing I wanted to say about it. Yeah. I think we can use it to also kind of build a sympathetic case for our clients.
SPEAKER: So, is there a theory of defective services? Because implicit in an educational program is effective communication. And implicit in healthcare is effective two way communication. So potentially another theory is that you're not getting what you're paying for, and you're entitled to a refund, because it's defective services. And I don't know if that's been I work for the Department of Justice so we have a separate statute that allows us to get damages, but as I'm listening, I'm not sure if that's another viable possibility.
ANDREW ROZYNSKI: Yeah, I think as totally something that can be argued because, and I think something that would, you know, connect with a jury. It's like well if you go to a restaurant and you debt a meal that is spit in and has, you know, rat poison in it or something, what happens? You get a refund, right? You get the meal for free. And that's a great, easy to understand jury sort of presentation I think would resonate with the jury. Luckily, after Wade, we got to meet with about five or six of the jury members who sat with us and talked with us for like an hour. And they talked about what they liked, what they didn't like, and also like what the tension was between the jurors and they said to David John's credit, they said David John, in your closing when you showed the jury instructions and you showed how we met every element by actually pointing to the evidence and going through with us and then saying this is a civil rights case, it's not a medical malpractice case, that really was what we needed to maybe win over one or two skeptics in the jury to get a consensus.
And then there was the issue about damages, where they were like group wanted to award higher damages, another group wanted to award lower damages. And the only jury question that came back was, can we award attorneys' fees. It was like no. So there was more discussion, and they came back with their number. They said the number was a compromise because it was a 4 day stay. How much monetary damage can one experience in a 4 day stay and that was the debate and they decided on the 50,000 dollar mark and that's how they came to it. I think your theory would be a great theory and something I'm certainly going to think about in the future. So thank you.
DAVID JOHN HOMMEL: This is DJ speaking. In fact, Andrew and I have a case right now, where a complaint was file in the midst of a discovery, but it's a woman who's elderly in a retirement community and she has Celiac disease and she spent a considerable amount of money to the tune of 300 dollars on this facility and it's paid monthly. And she's received as alleged in the complaint food with gluten in it. And she's been sick and hospitalized. It's a great segue for us because implied merchant different breach of contract theories with this amount of money, and again focus on this example, food is a binding element for the world. It's a big part of our social life. So if you're concerned about the food you consume you can't go to the dining halls, you can't interact other residents, you didn't get what you paid for. I think it's a good theory we can bridge in all sorts of cases to show people didn't get what they wanted and that could be a great gate way for damages.
SPEAKER: I would just like to hear a little about jury selection, how you went about that. I'm sorry, Larry Berger, white, he/him, gray.
ANDREW ROZYNSKI: She had a great jury question that I thought was amazing.
REYNA LUBIN: Every single person we need to ask if they were against awarding money to an individual. Which I think that you have to do in these cases. Because there are some persons that just truly do not believe in awarding monetary compensation. And those are not the people that I would like to the jury. So every single person we had to say, if our client does prove his claims, would you have an issue with awarding money? And some people said, I don't know, or maybe they were a little apprehensive and asked more questions, even apprehension we're kicking them off the jury. I'm not sure, I don't want to gamble with our client like that. Because there were many jurors that we did talk to which they said no problem, if you prove it, I'll award you money, that's no issue. Those are the types of people that we need on the jury.
ANDREW ROZYNSKI: And to add, people what I notice is some people who are picking juries think things oh this person reads conservative publications or this, that and the other thing or really loves this politician or that politician, so therefore they're not going to award anything and I think that's the wrong way of looking at it. I think looking at whether someone is willing to award damages or not, I mean, one of the persons who was most enthusiastic about awarding damages was a self pro claimed Trump supporter and she was probably the most engaged and one of the biggest advocates in the jury room for us, surprisingly. There's no science to it, but I think that the asking about the damages and their willingness to award it if we prove our case is crucial. It gave us so much information about people right off the bat.
JESSICA WEBER: For our team we didn't get to do too much voir dire the judge did his own thing. One of the questions he did ask, does anyone here have someone in their family or someone they're close to with a disability. And every had to speak publicly and it ended up as this beautiful moment where everybody stood up. And as they're going more people stood up. I forget about this my brother and my daughter has ADHD and this was this amazing moment where they were like oh, disability is everywhere, it's not some speaking group on the side. So highly recommend that question.
And the other thing was we had so little information about folks, we got the questionnaires and but we had like 5 minutes and I think Monica's in the room now, Monica helped, we just quickly started Google searching everybody's name it was really helpful because there was somebody listed I think a college instructor and we don't want anyone who teaches at a college because they're going to be sympathetic and we Googled her and she's an adjunct professor but her full time job she's an immigration defense attorney who had all these know your rights trainings and she'll be great and we had her on the jury and a couple of people you wouldn't have guessed from the descriptions but some Google searches helps reveal their true nature.
SPEAKER: Is there time for one more question?
SANHO STEELE LOCHART: If it is a burning question and you would like to ask it, feel free.
SPEAKER: I wanted to come back to this question of framing things from a contract point of view. You didn't get what you pay for. Also, I'm Dan Goldstein. I'm an elderly white male who talks too much.
[ Laughter ]
But in any event, there are jury studies out there that suggest when we cast this in civil rights terms, it's actually threatening to the jury to consider discrimination, because that can randomly happen to anyone, including them. And that we're going to get a much better reception when we talk in terms of "she paid her tuition. She did not get what she deserved, and what she was entitled to. "
And I started building that before I retired into the complaints themselves, especially against universities. And the reason I did it in the complaints is I think that's true for judges too. And if you can cast it in terms of more contract type approach, it helps.
JESSICA WEBER: I should add too, those of us on the trial team know, know that I constantly cited Dan and said we barely used the word "discrimination" throughout the whole trial for reasons Dan mentioned. We just tried to describe what we were talking about, rather than call it discrimination.
SANHO STEELE LOCHART: Any other last minute burning questions or comments? All right. Well thank you to our presenters.