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Kahn v. Cleveland Clinic Florida Hospital

United States District Court, S.D. Florida

July 22, 2019

GARY KAHN, Plaintiff,
v.
CLEVELAND CLINIC FLORIDA HOSPITAL, Defendant.

          FINDINGS OF FACT AND CONCLUSIONS OF LAW [1]

          JOHN J. O'SULLIVAN, CHIEF UNITED STATES MAGISTRATE JUDGE

         THIS MATTER comes before the Court following a bench trial held on January 28, 2019. The parties consented to trial before a United States Magistrate Judge. See Notice, Consent, and Reference of a Civil Action to a Magistrate Judge (DE# 30, 2/1/17). This matter was referred to the undersigned by the Honorable Federico A. Moreno in accordance with 28 U.S.C. § 636(b). See Order of Reassignment to Magistrate Judge O'Sullivan (DE# 31, 2/8/17). The Court has carefully reviewed the testimony and exhibits presented at the bench trial and makes the following findings of fact and conclusions of law as required by Rule 52(a) of the Federal Rules of Civil Procedure.

         I. FINDINGS OF FACT[2]

         A. Jurisdiction

         The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 because this case involves a claim under Title III of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq. (hereinafter "ADA").

         B. Parties

         GARY KAHN (hereinafter "plaintiff") has multiple sclerosis, a qualifying disability under the ADA. He requires the use of a motorized wheelchair.

         CLEVELAND CLINIC FLORIDA HEALTH SYSTEM NONPROFIT CORPORATION (hereinafter "defendant") is a non-profit Florida corporation. The defendant is the owner/operator of CLEVELAND CLINIC FLORIDA-WESTON (hereinafter "CLEVELAND CLINIC"), a medical building and related medical facilities in Weston, Florida. CLEVELAND CLINIC, except for areas not accessible to the public, is a place of public accommodation within the meaning of the ADA, 42 U.S.C. § 12181(7)(F).

         C. Procedural Background

         1. Complaint and Amended Complaint

         On August 18, 2016, the plaintiff filed the instant action against the defendant alleging a negligence claim (Count I) and an ADA claim (Count II). See Complaint for Damages and Injunctive Relief (DE# 1, 8/18/16) (hereinafter "Complaint"). The Complaint alleged, in part, that:

b. There was inadequate clear turning space in violation of section 603.2.1 of the 2010 ADA AG regulations and in violation of section 4.17.3 of the Uniform Federal Accessibility Standards. Defendant improperly used the handicapped accessible bathroom as a storage area for receptacles holding soiled linen. This made it difficult for Plaintiff to safely utilize the restroom facilities.
***
e. Restrooms in the Facility have lavatories with inadequate knee and toe clearance in violation of section 306 of the 2010 ADAAG regulations and in violation of section 4.19.2 of the Uniform Federal Accessibility Standards. This made it difficult for Plaintiff to safely utilize the restroom facilities.

Id. at ¶ 47(b), (e) (emphasis added).

         On March 28, 2017, the plaintiff filed Plaintiff's Second Amended Complaint for Damages and Injunctive Relief (DE# 44, 3/28/17) (hereinafter "Amended Complaint").

         The Amended Complaint alleged, in part, that:

53. The Defendant did not have adequate policies, practices and/or procedures in place to prevent harm to people with disabilities, and in fact had implemented a policy and procedure which called for the use of the ADA bathrooms as changing rooms and for the storage of soiled and contaminated linen in free standing bins.

Id. at ¶ 53 (emphasis added).

         2. Jury Trial

         The Court bifurcated the plaintiff's negligence claim and ADA claim. The Court presided over a jury trial on the negligence claim from January 8 through January 11, 2018. On January 12, 2018, the jury rendered a verdict in favor of the defendant and against the plaintiff on the negligence claim. See Verdict (DE# 160, 1/12/18).

         3. Narrowing of the Plaintiffs ADA Claim

         On June 6, 2018, the defendant filed Defendant's Motion Concerning Award of Attorneys' Fees (DE# 198, 6/6/18) seeking to dismiss the plaintiff's ADA claim based on mootness. Specifically, the defendant argued that the ADA claim was moot because: (1) the defendant had removed the accessible restroom designation from some of its restrooms; (2) the defendant had made structural changes to its remaining accessible restrooms and (3) moveable objects such as linen bins and trash bins were not ADA barriers and, in any event, the plaintiff's claim was moot because the defendant had removed the linen bins and trash bins from the accessible restrooms. Id. at 2-3, 7.

         On October 29, 2018, the Court issued an Order which granted in part and denied in part the defendant's motion. See Order (DE# 207, 10/29/18). "The Court conclude[d] that with respect to the barriers addressed by the defendant's structural changes to the facility, the plaintiff's ADA claim [was] moot. [However, t]he plaintiff's ADA claim [was] not moot with respect to the use of trash bins and linen bins which purportedly encroach over the clear floor space of accessible restrooms." Id., at 30.[3] The plaintiff's expert also found trash bins which encroached over the maneuvering clearance on the pull side of the door in some accessible restrooms in violation of the ADA. See Exhibit 222, 220.

         4. Bench Trial

         On January 28, 2019, the Court presided over a bench trial on the plaintiff's ADA claim. See Trial Transcript (DE# 242, 2/19/19).[4]

         The plaintiff's ADA expert Carlos Herrera, the defendant's ADA expert Jeffrey Gross and the Clinical Manager of the MRI/Radiology Department, Natalie Haaf, testified in person at the bench trial. The plaintiff played a videotape of a new deposition of the plaintiff and the parties read from designated portions of the jury trial transcripts and/or deposition transcripts of the plaintiff, Natalie Haaf, Mercedes Varela, Lee Ghezzi, Kerry Ninkovich, Luz Warford and William Norkunas.

         D. Plaintiff's Fall

         On July 10, 2015, the plaintiff visited CLEVELAND CLINIC for an MRI. The plaintiff was accompanied by his aide, Laurie Denis. Ms. Denis is also the plaintiff's fiancee. Ms. Denis assists the plaintiff with many activities of daily living, including toileting.

         The plaintiff asked to use the restroom. An employee of CLEVELAND CLINIC led the plaintiff and Ms. Denis to an accessible restroom (hereinafter "Subject Restroom" or "WHN1-231") in the MRI/Radiology Department.

         When the plaintiff entered the Subject Restroom (WHN1-231), he encountered three bins: (1) a red bin for holding biohazardous waste (hereinafter "red bin");[5] a blue bin for soiled laundry (hereinafter "linen bin") and (3) a bin for trash (hereinafter "trash bin").[6] The linen bin and trash bin were free standing bins which measured approximately three feet in height.

         The red bin[7] and the linen bin were next to each other, to the right side of the restroom, against the wall. The trash bin was by the sink, beneath the paper towel dispenser.[8] The trash bin was blocking part or half of the sink.

         The plaintiff suffered a fall inside the Subject Restroom (WHN1-231). The jury determined that the defendant was not the legal cause of this fall. See Verdict (DE# 160, 1/12/18). Prior to the plaintiff's fall, the defendant had never received a complaint about the accessible restrooms at CLEVELAND CLINIC.

         E. Environmental Services

         1. Policies and Procedures

         The defendant had a standard operating procedure (hereinafter "SOP") for cleaning the restrooms at CLEVELAND CLINIC. See Cleveland Clinic Environmental Services Restroom Cleaning Standard Operating Procedure, Exhibit 60. The SOP listed the job duties of cleaning staff and "provide[d] a step-by-step daily cleaning process for public restrooms." Id. at 2. The first step was for cleaning staff to "[p]erform hand hygiene and don gloves." Id. Cleaning staff wore gloves when cleaning the restrooms to protect themselves from disease. The SOP instructed cleaning staff to "[e]mpty all waste receptacles and place trash in [a] cart." Id. The SOP did not provide any instruction on the placement of trash bins in any specific location in the accessible restrooms.

         The defendant also had policies for handling cleaned linen and soiled linen. See Exhibit 59. One of the policies stated that: "Personnel should wear gloves and other [personal protective equipment][9] and follow Standard Precautions when handling any contaminated or soiled linen." Id. at 2 (footnote added; capitalization in original). The policies did not address the placement of linen bins in any specific location in the accessible restrooms.

         2. Practice of Keeping Linen Bins in the Accessible Restrooms

         The defendant had a long-standing practice of allowing patients to use the accessible restrooms to change into or out of their hospital gowns. Lee Ghezzi, the former Risk Manager, did not know who approved the practice, but believed it began when the restrooms were constructed.

         Not all patients used the accessible restrooms as changing rooms. However, some patients did. Those patients would sometimes throw the hospital gowns in the trash bin and it would cost the defendant money to replace the gowns.

         As a cost-saving measure, the defendant adopted the practice of keeping linen bins inside the accessible restrooms at CLEVELAND CLINIC. Patients who used the accessible restrooms as changing rooms could then place the soiled hospital gowns in the linen bins. The hospital gowns could then be picked up, laundered and reused.

         Natalie Haaf, the Clinical Manager of the MRI/Radiology Department, did not know if CLEVELAND CLINIC had a written policy or procedure pertaining to the placement of linen bins in the accessible restrooms or when the practice began. She believed the linen bins had been in the accessible restrooms for "quite a few years."

         3. Placement of Bins in Specific Locations in the Accessible Restrooms

         a. Linen Bins

         Kerry Ninkovich, the Director of Environmental Services, communicated with the cleaning staff concerning the placement of the linen bins and trash bins in the restrooms. In the Subject Restroom (WHN1-231), the cleaning staff was supposed to place the linen bin against the wall on the right-hand side. Melissa Cassamajor, a CLEVELAND CLINIC employee, testified that the linen bin was usually placed in the corner of that wall and the trash bin would be placed next to it.

         Natalie Haaf s office was located across the hall from the Subject Restroom (WHN1-231). She used the Subject Restroom (WHIM 1-231) on a regular basis for approximately eight or nine years. Ms. Haaf testified that in the Subject Restroom (WHN1-231), the linen bin was kept in the corner of the room on the right-hand side and that the trash bin was located beside the linen bin. See Trial Transcript (DE# 242 at 189, 2/19/19).[10] Ms. Haaf testified that the linen bin and trash bin had always been in this location in the Subject Restroom (WHN1-231). Id.

         The plaintiff's expert, Carlos Herrera, found that when the linen bin was placed in the corner and the trash bin was placed next to it in the Subject Restroom (WHN1-231) (the location where Ms. Haaf testified it was "always" kept), the trash bin would encroach over the maneuvering clearance on the pull side of the door in violation of the ADA. See February 26, 2018 Expert Report, Exhibit 222 at 2; Exhibit 162 at Photograph 5. In another accessible restroom (WNH1-205A), Mr. Herrera found that when the linen bin was placed in the corner against the wall, it encroached over the seat cover dispenser in violation of the ADA. Exhibit 222 at 4; Exhibit 162 at Photograph 44. In a third accessible restroom (WNH1-207A), [11] Mr. Herrera found that when the linen bin was placed in the corner against the wall, it encroached over the seat cover dispenser in violation of the ADA. Exhibit 222 at 5; Exhibit 162 at Photograph 65. Thus, the defendant's practice of keeping linen bins inside the accessible restrooms and placing them in the corner against the wall resulted in ADA violations in three accessible restrooms.

         After Mr. Herrera's February 26, 2018 inspection, the defendant removed the linen bins from the accessible restrooms in the MRI/Radiology Department. When Mr. Herrera returned to the facility on May 3, 2018, he did not find linen bins in the accessible restrooms. The linen bins were still in the exam rooms and in at least some non-accessible restrooms. See Exhibit 163 at Photographs 11 and 108 (showing linen bins in two non-accessible restrooms).

         b. Trash Bins

         Kerry Ninkovich testified that the placement of trash bins against the far wall was a procedure, not a policy. As a matter of procedure, trash bins were supposed to be placed against the far wall, so they would not interfere with the toilet and sink in the accessible restrooms. See Trial Transcript (DE# 242 at 169-70, 2/19/19) (Q. "What is the policy? Where are they kept? ... A. "Wastebaskets are usually kept at the opposite end so they don't interfere with either the toilet or the sink. So it would be on the far wall, the far wall from the fixtures."). Consistent with this procedure, the trash bin in the Subject Restroom (WHN1-231) was supposed to have been placed against the far wall.

         Ms. Haaf testified that the trash bins were put in the same place (the far, right-hand corner) in other restrooms in the radiology department. See Trial Transcript (DE# 242 at 219, 2/19/19). Ms. Haaf agreed that the trash bins were placed in a location where they would not intrude upon the sink, toilet and other features of the accessible restrooms. Id. at 219-20.

         Ms. Haaf discussed the placement of the trash bins with Mr. Ninkovich. According to Mr. Ninkovich, the people who controlled the placement of the trash bins were the employees. Mr. Ninkovich instructed his staff that they must place the trash bins back in their place when they finished cleaning the floors.

         Mercedes Varela worked at the CLEVELAND CLINIC for approximately five years and was still employed there at the time of her testimony. Ms. Varela was responsible for cleaning six restrooms in the MRI/Radiology Department, including the Subject Restroom (WHN1-231). Consistent with the procedure described by Mr. Ninkovich and Ms. Haaf, Ms. Varela always placed the linen bin and the trash bin against the far wall on the right-hand side of Subject Restroom (WHN1-231). When Ms. Varela cleaned the Subject Restroom (WHN1-231), she made sure to leave the linen bin and trash bin in this position. Ms. Varela never placed the trash bin beneath the paper towel dispenser and she never saw the trash bin located beneath the paper towel dispenser in the Subject Restroom (WHN1-231). Mr. Ninkovich was not aware of any procedure where the trash bin in the Subject Restroom (WHN 1-231) would have been placed against the sink.

         Luz Warford was part of the cleaning staff at CLEVELAND CLINIC for three years. Ms. Warford was responsible for cleaning and inspecting the restrooms in the MRI/Radiology Department, including the Subject Restroom (WHN1-231). When she cleaned the Subject Restroom (WHN1-231), Ms. Warford always placed the trash bin near the sink, beneath the paper towel dispenser. Sometimes, Ms. Warford would return to clean the Subject Restroom (WHN1-231) and the trash bin was not where she had left it. Ms. Warford did not know who moved the trash bin, but she would always return the trash bin to its position beneath the paper towel dispenser.

         On approximately July 31, 2015, Ms. Warford was terminated. Ms. Warford testified that she wanted to continue working at CLEVELAND CLINIC, but Mr. Ninkovich told her she was being terminated because she was a very good worker and that was causing friction with her co-workers.[12]

         Ms. Warford signed an affidavit for the plaintiff in the instant case because she was told, if she signed the affidavit, ...


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