Collins’ 1993 insulin regimen and diabetes care as prescribed by his physician. Mr. Collins, discussed his diabetes and insulin treatment with him …
United States District Court
Southern District of Mississippi
JACKSON DIVISION
UNITED STATES OF AMERICA
Plaintiff
v Civil Action No
3:00CV377BN
MISSISSIPPI DEPARTMENT OF PUBLIC
SAFETY
Defendant
PLAINTIFF UNITED STATES MEMORANDUM IN
SUPPORT OF MOTION IN LIMINE
I INTRODUCTION
Pursuant to Federal Rules of Evidence 401, 402, 403 and 702, this
court should exclude the report and testimony of Dr Frederick Carlton the
Mississippi Department of Public Safetys MDPS expert witness[1], and
the testimony of any other MDPS witness, to the extent they seek to
challenge or criticize Mr Collins 1993 insulin regimen and diabetes care
as prescribed by his physician Considerations of fairness require that
MDPS be estopped from relying upon a 2003 medical opinion with respect to
Mr Collins 1993 diabetes care, where the 2003 opinion is contrary to the
opinion of MDPS own physician, who in 1993 examined Mr Collins, discussed
his diabetes and
insulin treatment with him and concluded that he was
medically qualified to attend the Academy[2] In addition, Dr Carltons
opinions on Mr Collins 1993 insulin regimen and diabetes care are not
relevant to the legal issues in this case and will not assist the trier of
fact in understanding the evidence or determining a fact in issue[3]
The essence of Dr Carltons opinion is that in 1993, Mr Collins was
destined to have problems with hypoglycemia while at the MDPS Academy
In his report, Dr Carlton states that Mr Collins:
was poorly prepared to enter training at the MS Law Enforcement
Officers Training Academy because of the insulin regimen he was taking
as well as his poor understanding of his disease Given his regimen
and understanding of diabetes management, he was destined to have
problems with hypoglycemia as long as he was a cadet Hypoglycemia
could have been avoided or drastically reduced had he made basic
changes in his care This was his responsibility and it is
unreasonable to expect others except for his physician to have known
what changes to make
Ex 2, Expert Report of Frederick B Carlton, Jr, MD at 3
Dr
Carltons report also states that the insulin regimen prescribed by Mr
Collins physician in 1993 was the least effective way to manage a type 1
diabetic Id at 2 In Dr Carltons view, Mr Collins should have
been taking more than one shot of insulin per day to effectively manage his
diabetes, and should have known to reduce his insulin dosage at the
Academy, in light of exercise[4] Id; Ex 3, Carlton Dep at 10
Dr Carltons opinion that Mr Collins could have prevented or
treated his hypoglycemia at the Academy if he had a different insulin
regimen and if he had a different understanding of how to care for his own
diabetes is irrelevant because it does not make the existence of any fact
that is of consequence to the determination of the action more probable or
less probable See FRE 401 The legal issues in this case are whether
MDPS failed to grant Mr Collins requests for reasonable accommodation
requests for available food to raise his blood sugar and whether MDPS
terminated Mr Collins because of his disability Dr Carltons report and
deposition testimony do not address these issues Instead, Dr Carlton
suggests, based on 2003 science and his own speculation, that had
Mr
Collins been using a multiple injection insulin regimen in August 1993
which he was not, and had he been self-adjusting his insulin which he
was not, he could have controlled his own hypoglycemia and thereby
eliminated his need for the food that he requested as a reasonable
accommodation for his diabetes
II ARGUMENT
A Because MDPS Physician Medically Cleared Mr Collins to Attend
the Academy in 1993 - While Aware of His Diabetes and Treatment
- MDPS Should Be Estopped from Introducing The Testimony of A
Second Physician, Ten Years Later, Which Contradicts Its Own
Physicians Earlier Finding
In 1993, Dr Mark Franklin Brooks, MD, conducted a pre-employment
medical examination of each MDPS cadet applicant, including Mr Collins
Ex 4, Stewart Dep at 19; Ex 5, 30b6 Dep at 55-60[5] That 1993
medical examination which was based upon the militarys exam included,
among other things, a medical history, a physical exam, and a test of each
applicants blood sugar Ex 4, Stewart Dep at 9; Ex 5, 30b6 Dep
at 56-57 In conducting the MDPS examination, it was Dr Brooks
responsibility to seek further
information about each applicants medical
conditions and treatments thereof, if he deemed it necessary including a
referral back to the applicants treating physician, and to eliminate any
candidate whom he believed was destined to fail Id at 63-64 Dr
Brooks discussed Mr Collins diabetes and insulin regimen with him at his
pre-employment exam Ex 4, Stewart Dep 19-20, 45 MDPS 1993
Personnel Director, Douglas Stewart, was also present at Mr Collins
preemployment medical exam and he discussed Mr Collins insulin dependent
diabetes with him Id After the examination, Dr Brooks medically
approved Mr Collins to attend the Academy Ex 5, 30b6 Dep at 65
Dr Brooks did not raise any concerns with Mr Collins about his diabetes
or insulin regimen in light of the particular physical requirements of the
Academy Id
Considerations of fairness dictate that MDPS - whose physician
approved Ronnie Collins to attend the Academy in 1993, knowing his insulin
regimen, having the opportunity to interview him, and having the
responsibility to get further information if he deemed necessary - should
be estopped, more than ten years later, from asserting a contradictory
opinion though Dr Carlton
Stated another way, MDPS should not be
permitted to submit purported expert testimony that Mr Collins was
destined to fail at the Academy because of his medication, when its own
physician, in 1993, deemed him qualified, without reservation, to attend
the Academy Further, Mr Collins relied on the MDPS doctors
determination that he was qualified, given his diabetes treatment, and he
was not advised by any MDPS representative to make any modifications to his
diabetes treatment
In addition, Dr Carltons report should be excluded because Dr
Carlton evaluates Mr Collins August 1993 diabetes care in light of 2003
medical knowledge and recommendations, rather than what was known in 1993
See Ex 1, Dr Vinicor Dep at 19-21[6] His anachronistic evaluation,
which conflicts with the evaluation of MDPS own physician in 1993, is
inappropriate and likely to confuse the proceedings
B Dr Carltons Views About Mr Collins Insulin Regimen Are Not
Relevant To MDPS Liability For Failing To Accommodate and
Terminating Him
Dr Carltons opinions on Mr Collins1993 diabetes care are not
relevant to MDPS liability; an employer is not excused from the obligation
to
provide a reasonable accommodation because it believes that an
individual with a disability should be on a different medication, or using
different mitigating measures The ADA requires that a determination of
whether an individual has a disability an impairment that substantially
limits a major life activity be based on the individuals condition as
is As the Supreme Court has instructed, an individual with a disability
must be evaluated in light of the mitigating measures that he actually
uses, not what measures might be available to him Sutton v United Air
Lines, Inc, 527 US 471, 482 1999 Courts should consider whether an
individual is presently - not potentially or hypothetically -
substantially limited The employer is not allowed to second-guess the
medication or other mitigating measures recommended by a physician and/or
chosen by the individual See also
Nawrot v CPC Intl, 277 F3d 896, 904 7th Cir 2002 When considering
the effects of mitigating measures, the court consider[s] only the
measures actually taken and consequences that actually follow; Saks v
Franklin Covey Co, 117 F Supp 2d 318 SDNY 2000 Plaintiff alleging
substantial limitation in reproduction because of
infertility should be
assessed in her actual condition without speculation whether she could
become pregnant with more procedures such as in vitro fertilization;
Finical v Collections Unlimited, Inc, 65 FSupp2d 1032 D Ariz 1999
Court refused to evaluate plaintiffs hearing limitation with hearing
aids, where she did not use them because they picked up too much background
noise
In accord with the Supreme Courts instruction, MDPS obligation to
provide a reasonable accommodation was not dependent upon the medication
regimen followed by Mr Collins Rather, that obligation depended upon
whether Mr Collins requested an accommodation and whether that request was
reasonable Ronnie Collins insulin regimen in 1993 - as prescribed by his
physician - was one injection of intermediate acting insulin per day, and
Mr Collins had never been advised or instructed to manipulate his insulin
dose Hence, once Mr Collins requested additional food to assist him in
controlling his diabetes, MDPS was obligated to accommodate his request in
light of his current condition, so long as the accommodation requested did
not cause an undue hardship
Even assuming, arguendo, that a different insulin
regimen might have
been more effective in managing his diabetes at that time, MDPS was still
obligated to grant Mr Collins request for more food if that request was a
reasonable accommodation that would have enabled him to perform the
functions of a cadet Consequently, Dr Carltons opinions as to what may
have been more effective treatment have no probative value when the trier
of fact assesses whether Mr Collins requests were reasonable, or whether
MDPS responses to his requests were effective Likewise, Dr Carltons
opinion about Mr Collins insulin regimen does not bear upon whether he
was impermissibly terminated because of his diabetes[7]
Further, even if Mr Collins physician had placed him on a multiple-
shot insulin regimen prior to August 1993, and even if Mr Collins had been
instructed as to how to manipulate his insulin dose in light of exercise,
it would not have been possible at the Academy As both Dr Carlton and
Dr Vinicor have testified, to manipulate insulin in light of exercise, one
must know, in advance, the timing, intensity and duration of exercise, Ex
1, Vinicor Dep at 28-30; Ex 3, Carlton Dep at 38-40 As MDPS has
admitted in its 30b6 deposition, the
Academy did not provide cadets
with this information Ex 5, 30b6 Dep at 60:3-11, 63:7-14; Ex 8,
Cadet Class 48 Manual at 20 In light of the circumstances, Mr Collins
responded to the symptoms of hypoglycemia he experienced at the Academy in
the most appropriate way possible, by seeking additional food
For all the foregoing reasons, the United States asks this Court to
exclude any evidence by Dr Carlton, or any MDPS witness, challenging or
criticizing Mr Collins 1993 diabetes care and insulin regimen
Specifically, this Court should exclude issues one, two and three of Dr
Carltons report as well as his summary paragraph and should exclude any
reference by him or MDPS to the opinions expressed therein
Respectfully submitted,
R Alexander Acosta
Assistant Attorney General
Civil Rights Division
BY:___________________________ Date:
3/1/04
John L Wodatch, Chief
Philip L Breen, Special Legal Counsel
L Irene Bowen, Deputy Chief
Alyse S Bass
Amanda Maisels
Attorneys
Disability Rights Section
Civil Rights Division
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
202
616-9511, 202 305-8454 phone
202-307-1197 fax
Cynthia L Eldridge, AUSA
MSB 9634
Office of the US Attorney
188 East Capitol Street, Suite 500
Jackson, Mississippi 39201
———————–
[1]Defendants disclosed Dr Frederick Carlton as an expert witness
and provided his written report on September 19, 2003 and his deposition
testimony on October 21, 2003
[2] In contrast, Dr Carlton has never examined Mr Collins Also,
because Dr Carlton assesses Mr Collins 1993 diabetes care through the
retro-spectroscope of 2003 medical understandings, his opinion is
inappropriate and will confuse the jury Ex 1, Vinicor Dep at 19-21
[3] Defendants, as the parties offering this expert testimony, have
the burden to prove its reliability and relevance Greer v Bunge Corp,
71 FSupp2d 592, 594 SD Miss 1999; see also Federal Rule of Evidence
401
[4] Insulin lowers blood sugar Exercise can also lower blood sugar
Since Mr Collins experienced hypoglycemia low blood sugar at the
Academy, Dr Carlton opines that Mr Collins should have injected a lesser-
than-normal dose of insulin to account for the intense exercise at the
Academy
[5] Douglas Stewart was the
MDPS Personnel Director in 1993 Counsel
for MDPS stated at the 30b6 deposition that Mr Stewarts deposition
testimony regarding Mr Collins preemployment medical exam is also binding
on the agency as 30b6 deposition testimony on this issue Ex 5,
30b6 Dep at 62
[6]In fact, as Plaintiffs evidence will show, Mr Collins had
acceptable diabetes treatment in August 1993 Ex 1, Vinicor Dep at 15,
20:19-22; 51-52 He also had a reasonable understanding of how to manage
his diabetes and knew the relationship between food, insulin, and exercise
sufficiently to work two jobs as a police officer and correction officer
without his work ever suffering as a result of his diabetes Id at 15,
31:3-11; 52:11-22; 54:17-20; See also Ex 6 and Ex 7, attached affidavits
of Robert Armstrong and Albert Robinson
[7]Dr Carltons views are also not relevant to the determination of
whether, in 1993, Mr Collins was qualified to perform the essential
functions of a cadet, with or without a reasonable accommodation 42 USC
121118 Dr Carltons report does not give any opinion as to whether
Mr Collins, in his actual mitigated state, could have performed the
functions of a cadet with the reasonable
accommodations additional food
that he requested Further, as Dr Carlton admits in his deposition,
ingesting glucose is the appropriate - and effective - response to
hypoglycemia Ex 3, Carlton Dep at 42:5-10
Source:ada.gov
