Disability News & Views 2006-2008












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December 2008


2nd Circuit Clarifies Review Standard in Awarding Disability Benefits

Federal appeals court cites insurer's long history of 'deception and abusive tactics' in denying benefit claims

Mark Hamblett, New York Law Journal

12-30-08 -- A change in the standard of review for denying disability benefits where the plan administrator has a conflict of interest has led a federal appeals court to award payments to a tax attorney with colon cancer. . . . The 2nd U.S. Circuit Court of Appeals said new guidance from the U.S. Supreme Court means a less deferential standard of review under the Employee Retirement Income Security Act where the plan administrator is conflicted because it both evaluates eligibility and pays benefits. . . . The decision favors John E. McCauley, a long-time cancer sufferer who was denied benefits by an insurance company used by his employer, Sotheby's. Citing the First Unum Life Insurance Co.'s actions in McCauley's case as well as its long history of "deception and abusive tactics" in denying benefit claims, the court awarded disability benefits back to 1995.

Parity is Law / Justice for Americans

12-22-08 -- The passage of the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 is a historic victory for Mental Health America and millions of Americans who have been denied treatment because of health insurance discrimination. . . . The measure, which was signed into law on October 3, will for the first time require equal insurance coverage for mental health conditions and physical illnesses. It will apply to more than one-third of all Americans. . . . “The approval of parity is a great civil rights victory that delivers justice to millions of Americans who have mental health conditions,” said David Shern, Ph.D., president and CEO of Mental Health America. “With approval of this bill, we tear down the walls of stigma and discrimination and open the doors to the power and promise of treatment and recovery.” . . . Mental Health America helped plant the seeds of parity in the 1970s and nourished its progress, marshalling resources and grassroots support and giving power to the ideas that put it front and center on the national agenda. . . . The passage of parity is another step forward in removing and eliminating artificial and unfair barriers to access, continuing the progress made when the Americans with Disabilities Act was passed and the recent Medicare legislation that reduces the unfair co-payment for mental health services in that program. . . . The new law recognizes that mental health is integral to our overall health and that mental health and substance use conditions are just as treatable as other medical conditions. . . . “Now we as a nation must build on this effort by approaching mental health with the same urgency as other health conditions,” said Dr. Shern. . . . For more information on the legislation, please visit the parity section of Mental Health America’s website.


Veterans With PTSD Sue Federal Government Over Disability Benefits

Jordan Weissmann, Legal Times

12-18-08 -- A group of military veterans filed a class action against the federal government Wednesday, alleging that they were illegally denied disability benefits despite being diagnosed with severe cases of post-traumatic stress disorder that should have qualified them for free care. . . . The five soldiers, all veterans of the wars in Iraq and Afghanistan, were discharged by the Army after it determined that their damaged mental health left them unfit to serve, according to a complaint filed with the U.S. Court of Federal Claims. Once released, they were assigned disability ratings well below the 50 percent figure needed to qualify for lifetime health care benefits. . . . The complaint alleges that starting in 2002, the Army "systematically" ignored rules requiring that all servicemen diagnosed with PTSD receive an automatic 50 percent rating. Just this past October, the Defense Department ordered the Army to stop deflating PTSD victims disability ratings.

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November 2008


After more than 400 lawsuits, disabled man can sue no more

By Carol J. Williams, Los Angeles Times

11-18-08 -- Whether Jarek Molski is a crusader for the disabled or an extortionist who abused the law for personal gain, the vexatious litigant has filed his last lawsuit. . . . The U.S. Supreme Court declined Monday to hear the case of Molski vs. Evergreen Dynasty Corp., owner of a Chinese restaurant in Solvang, Calif., in a legal Waterloo for the 38-year-old Woodland Hills man. Molski filed more than 400 suits under the Americans With Disabilities Act before a federal judge barred him from future litigation.

Frequent litigant: An article in Tuesday's California section said that Jarek Molski of Woodland Hills had "filed his last lawsuit" as a result of the U.S. Supreme Court's refusal to review a federal judge's order that barred Molski from filing further lawsuits over alleged violations of the Americans With Disabilities Act. The judge's order applied only to the Central District of California, which includes
Los Angeles.


Sonnenschein Secures Pro Bono Class Action
Victory for Disabled Clients

Brian Baxter, The American Lawyer

11-18-08 --Represented by a team of lawyers from Sonnenschein Nath & Rosenthal and several nonprofits, a class of 6,600 developmentally disabled residents of state-owned facilities in Illinois will now be able to choose their own living arrangements thanks to a Nov. 13 consent decree filed in U.S. District Court in Chicago. . . . The settlement is expected to bring Illinois in line with a national movement toward improving care for developmentally disabled citizens by shifting them from large residential institutions into smaller, community-based facilities. . . . Illinois' failure to join that trend prompted seven name plaintiffs to file suit against the state in July 2005. Sonnenschein -- through litigation partners John Grossbart, Wendy Enerson, Kendra Hartman and associate Corey Shapiro -- served as pro bono co-counsel for the class and helped to push the case through three years of depositions and discovery. . . . "More than 10,000 people will clearly benefit from this [agreement]," says Grossbart, noting that in addition to those 6,600 already in state-funded facilities, many more await care. "Many parents with disabled children are forced to place them in state-financed facilities as they grow older." . . . Grossbart, who has experience with large class actions, says that he was looking for a pro bono matter to involve the firm in several years ago when the legal staff of Chicago-based Equip for Equality, a nonprofit that advocates on behalf of the disabled, approached him. . . . "They educated me on how Illinois has been terribly backward in dealing with the disabled, especially in terms of being out of compliance with federal law and the [Americans with Disabilities Act]," Grossbart says. "And because of their role as an advocacy group and legal aid organization, they knew people who might be good name plaintiffs for us."


Blind attorney proves he's made of iron

By Philip Rosenbaum and Jonathan O'Beirne, CNN

11-4-08 -- Richard Bernstein wins landmark lawsuits for the disabled. He teaches college. He runs marathons. . . . But you really get the sense there's no stopping him -- now or ever -- when you mix in the fact that Bernstein has been blind since birth. . . . "Once I appreciated why I was created and the way that I was created, it really just gave my life a true sense of meaning and that meaning really drove my energy and passion," Bernstein says. . . . A lawyer for disabled rights in Farmington Hills, Michigan, Bernstein recently scored one of his biggest personal victories outside the courtroom. . . . In the rough and tumble natural surroundings of Coeur d'Alene, Idaho, Bernstein completed the physically and psychologically grueling Ironman triathlon. . . . In 14 hours and 36 minutes, without a break, Bernstein biked 112 miles, ran a 26.2 mile marathon and swam 2.4 miles in 55 degree open water.

October 2008

Get Ready to Relearn the ADA

New amendments will change the workplace

Lawrence Lorber, Fredric C. Leffler and Samantha Morris, Legal Times

Get ready to relearn the Americans with Disabilities Act -- by Jan. 1, 2009. New legislation signed last month has defanged a common employer defense, and the changes are going to have real repercussions in the workplace. . . . On Sept. 25, 2008, with his father looking on, President George W. Bush quietly signed legislation that significantly broadened the scope of protection available under the ADA. The legislation, known as the ADA Amendments Act of 2008 (ADAAA), "carries out the ADA's objectives" to expand coverage by, among other things, expressly rejecting Supreme Court cases that narrowly construed the definition of "disability" under the ADA. . . . The critical inquiry under the amended law is no longer on whether the individual has a disability, which has been a primary battleground of past court decisions. Rather, as of Jan. 1, 2009, the focus is directed to whether covered entities have complied with their obligations to reasonably accommodate disabled applicants and employees. . . . Here, we discuss what has changed and what employers need to do in response.


Judge Approves Settlement of Suit Against Aetna Over Coverage for Eating Disorders

Henry Gottlieb, New Jersey Law Journal

10-23-08 -- A federal judge gave final approval Tuesday to a class action settlement that requires Aetna Insurance Co. to provide about $300,000 in back payments to 119 insureds whose benefits for eating disorders were limited. . . . The company also promised to treat future claims more liberally and make internal reforms to resolve disputes over benefits for eating disorders. . . . U.S. District Judge Faith Hochberg also approved a $350,000 payment to the plaintiffs' class counsel, Nagel Rice in Roseland, N.J. All of the fee comes from Aetna, not out of a percentage of the class members' recovery. . . . "It makes perfect sense to me," Hochberg said after ruling that the settlement in De Vito v. Aetna, 07-418, was fair, reasonable and adequate. . . . The settlement requires the company to treat some claims for anorexia and bulimia as it does claims for biologically based mental illnesses, such as schizophrenia. That makes a class of eating-disorder patients eligible for eight months of treatment, compared with 20 outpatient visits per calendar year and 30 days of inpatient benefits.


Jury Awards $400,000 to Deaf Patient for Denial of Interpreter Services

Mary Pat Gallagher, New Jersey Law Journal

10-17-08 -- A Hudson County jury's $400,000 verdict for a deaf patient whose doctor refused her an interpreter may be a wake-up call for all professionals -- including lawyers -- that they risk liability for disability discrimination. . . . Worse, malpractice liability insurance does not usually cover such liability, says plaintiff's attorney Clara Smit. . . . Smit's client, Irma Gerena, claimed she repeatedly asked Jersey City rheumatologist Robert Fogari to hire an American Sign Language interpreter. Fogari said that as a solo practitioner, he couldn't afford the estimated $150 to $200 per visit an interpreter would cost. . . . Fogari treated Gerena for lupus for about 20 visits, stretched out over 20 months. He would sometimes exchange written words with her civil union partner, Lourdes Torres, who had better written English skills, and he also communicated with Gerena through the couple's 9-year-old daughter.


A New Potential Disability: Being Male?

Taking effect next year, a new law lessens the burden on employees to prove they're disabled, making it easier for them to bring claims

Tresa Baldas, The National Law Journal

10-7-08 -- If sleep disorders and sex problems can be used as criteria for filing disability claims, as courts have held, "being male" could also be a legally recognized disability. . . . So claims Louis Solomon, a partner and co-head of the Global Litigation Department at Proskauer Rose, who believes "maleness" is on its way to becoming a new category for disability claims. . . . Men, he argues, have a greater susceptibility to certain diseases, a shorter life expectancy and a testosterone level that predisposes them to more aggressive behavior -- all factors that could be classified as a disability. . . . "A good-faith argument could be made -- and I predict it eventually will be made -- that being male would meet the broadest definition of disability," said Solomon. . . . That's quite a stretch, said management-side attorney Michael Ossip, of Philadelphia's Morgan Lewis, who believes that a new breed of disability claims is on the horizon, just not male-specific.

Apple Agrees to Make iTunes Fully Accessible to Blind

Sheri Qualters, The National Law Journal

10-01-08 -- Massachusetts Attorney General Martha Coakley and the National Federation of the Blind negotiated an agreement with Apple Inc. to make Apple's iTunes and iTunes U fully accessible to the blind. . . . Through the online iTunes service, customers can buy and download music, television shows, movies, audiobooks and podcasts. . . . According to a statement from Coakley's office, Apple has agreed to make iTunes U, which provides educational content, fully accessible by Dec. 31 using so-called screen access software that transforms on-screen computer information into Braille or speech. Apple has also agreed to make the remaining iTunes and the iTunes Store accessible by June 30, 2009, for both Macintosh and Microsoft Windows operating systems. . . . Apple also agreed to donate $250,000 to the Massachusetts Commission for the Blind to fund assistive technology for blind consumers.

September 2008

2nd Circuit Finds Alterations May Open Resort to Disabilities Act

Mark Hamblett, New York Law Journal

9-19-08 -- The scope of a property owner's obligation to make a public accommodation accessible to the disabled when alterations are made to the property was fleshed out Thursday by the 2nd U.S. Circuit Court of Appeals. . . . Reversing a lower court, the circuit said a resort in Montauk, N.Y., underwent significant enough renovations so that it might be required under the Americans With Disabilities Act to make changes to allow access to customers who use wheelchairs. . . . Judges Dennis Jacobs, Rosemary Pooler and Robert Sack reversed Eastern District of New York Judge Leonard Wexler in the case of Roberts v. Royal Atlantic Corp., 06-4730-cv. . . . Royal Atlantic North and Royal Atlantic South are residential cooperative corporations that control 137 units in two-story buildings throughout several complexes, each of which have a pool surrounded by a narrow deck, a parking lot and ramps into the buildings. The ramps are too narrow for wheelchairs.


Ethics Complaint Says Lawyer Used ADA Suits to Extort Settlements

By Debra Cassens Weiss, ABA Law Journal

9-12-08 -- A California lawyer who has filed hundreds of disability lawsuits against businesses has been accused in an ethics complaint of extorting quick cash settlements and making up injuries. . . . The state bar complaint against Bay-area lawyer Thomas Frankovich said he filed more than 200 lawsuits against businesses in 2004 alone that contended they were not accessible to the disabled, the Daily Journal reports (sub. req.). The plaintiff in most of the suits was Jarek Molski, who uses a wheelchair. . . . The state bar said Frankovich would wait as along as a year to file a complaint and then would seek damages of $4,000 a day for the period, the story says. After filing a complaint, he would send a letter to the defendant that “could be viewed as intimidating as well as inaccurate," the state bar says. The letter advised defendants they shouldn’t hire a lawyer, they had no defense to the complaint and they should quickly settle the case.


Mental Health Court To Celebrate Grand Opening

By Robert Rizzuto, The Post Journal

9-8-08 -- Various circumstances play into how and why a person enters the justice system, and throughout New York state, the Unified Court System has taken notice. . . . In the Eighth Judicial District, in which Chautauqua County is included, three new courts will be dedicated today, including one in Jamestown. The city's Mental Health Court will celebrate its grand opening today, although the problem-solving court has already had 30 people pass through its halls over the past nine months. . . . The mission of the mental health courts in the state is to improve public safety, court operations and the well being of people with mental illness. The premise of the court is simple, according to Catherine Newton, Jamestown's Mental Health Court project director. . . . ''Eligible clients are referred to the court, screened and based on the community safety risk, approved for the program,'' Ms. Newton said. ''Then they have the opportunity to opt for court-ordered treatment rather than incarceration.''

August 2008


California plans to drug depressed patients to death

'Nothing in the bill prohibits this horror'

By Bob Unruh, © 2008 WorldNetDaily

8-29-08 -- Just as Democratic presidential nominee Sen. Barack Obama was in Denver preaching to a crowd of thousands of fans about the "change" he wants to see in the United States, his party compatriots in the California Legislature were making a "change," by approving a controversial plan that would allow nurses to assist terminally ill patients with suicide. . . . "AB 2747 allows a physician assistant or a nurse to opine that a patient is 'terminal,' and then push for unnatural death by 'palliative sedation,'" said Randy Thomasson, chief of the Campaign for Children and Families shortly after the vote. . . . "Depressed patients who succumb to this pressure will be drugged unconscious and die from dehydration, usually within five to 10 days. Nothing in the bill prohibits this horror," he said. . . . Forty-two Democrats in California voted in favor of the plan: 30 Republicans and two Democrats opposed the plan. . . . "AB 2747 pushes suicide through the back door at the hands of non-physicians taking advantage of depressed patients," Thomasson said. His organization has been alerting Californians to raise their concerns about the plan for sudden death with floor alerts, phone calls and e-mails.


Settlement Over Target's Web Site Marks a Win for ADA Plaintiffs

Evan Hill, The Recorder

8-28-08 -- Resolving a lawsuit that caught the attention of online retailers across the United States, Target Corp. will pay out $6 million in damages and make its Web site fully accessible to blind customers as part of a class action settlement filed on Wednesday. . . . . The National Federation of the Blind, which sued the Minneapolis-based corporation in 2006 in San Francisco federal court for maintaining a site that blind people said they couldn't use, will also be paid to oversee the changes and train the coders responsible for reprogramming the site. . . . . The case will "send a message to the entire Internet industry that access for people with disabilities is not only good business sense but an absolutely legal civil right; it's mandatory," said Laurence Paradis, a lawyer at Berkeley, Calif.-based Disability Rights Advocates who worked on the case. . . . . Target released a statement saying it was "pleased to have resolved the matter" and has made changes to its Web site "to improve the experience for guests who require assistive technology."

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Disability Law Resource Center Released by Lawyer Central


8-18-08 -- Lawyer Central, the national attorney network, is pleased to announce the addition of a Disability Law Resource Center to its website. Disability law covers a wide array of issues, including social security disability insurance (SSDI), disability insurance benefits (DIB), employment disability, disability rights, and disability discrimination. With the Disability Law Resource Center, disabled workers and citizens can research legal information on these relevant topics and many others. . . . Frequently asked questions about employment disability and social security disability and an overview of the process of filing for social security disability benefits are among the disability resources offered by Lawyer Central. A list and explanations of the laws protecting the rights of disabled persons, most notably the Americans with Disabilities Act, and national disability and social security disability news centers are also available to provide site visitors with additional information. . . . Lawyer Central’s disability legal videos feature knowledgeable disability lawyers explaining topics such as disability insurance, disability benefits, medical disability, and short term disability versus long term disability. Elements of a disability lawsuit are also covered in the videos, including when to file a disability lawsuit, what a disability lawyer can do for you, lawyer to lawyer help in disability cases, and the fee structure for a disability lawyer. Visit the disability legal video library to learn about your legal rights to disability benefits and services, as well as the steps you should take if these rights are violated. . . . For information about disability law, visit Lawyer Central’s Disability Law Center at http://disability.lawyercentral.com/.


Eating-Disorder Class Actions Get Judge's Go-Ahead

Mary Pat Gallagher, New Jersey Law Journal

8-12-08 -- A federal judge says putative class actions seeking medical coverage for eating disorders can go forward, though eviscerated of some causes of action. . . . U.S. District Judge Faith Hochberg denied motions to dismiss in Beye v. Horizon Blue Cross Blue Shield, 06-Civ.-5337, and Foley v. Horizon Blue Cross Blue Shield, 06-Civ.-6219, following an earlier decision that allowed a similar suit against Aetna to go forward. . . . At issue is whether eating disorders such as anorexia and bulimia are biologically based mental illnesses, for which state law and the Horizon Blue Cross Blue Shield of New Jersey policies at issue require benefits comparable to those for physical ailments. . . . Three of the four named plaintiffs' policies echo the language of the state Mental Health Parity Law, which prohibits different co-payments, deductibles and health-care services for insureds with biologically based mental illness. The policies provide for differential treatment of purely mental conditions.

July 2008


Disabilities Law Covers Sex Disorders, D.C. Circuit Rules

Federal workers are covered under 1973 Rehabilitation Act

Joe Palazzolo, Legal Times

7-29-08 -- Twice this month, the U.S. Court of Appeals for the D.C. Circuit expanded the sweep of a "major life activity" under the nation's anti-discrimination law for federal employees. . . . First, the court said sleep qualified. Now sex is on the list. . . . That is, disabilities that promote sleeplessness or the inability to have sex are covered by the 1973 Rehabilitation Act the court ruled. . . . Employment lawyers say the rulings open the door for a host of new discrimination claims and add ballast to cases that hinge on plaintiffs' ability to prove that their disabilities substantially interferes with their everyday lives. . . . "Employers will have to view the term 'disability' much more broadly," says Victoria Zellers, a partner in Cozen O'Connor's Philadelphia office. . . . Zellers says many of the cases brought under the Rehabilitation Act and the Americans with Disabilities Act, which protects private employees, wash out on summary judgment because employees fail to clear the first hurdle: proving they are disabled.


Disability protections ordered for sexually incapacitated

By Michael Doyle | McClatchy Newspapers

7-22-08 -- A South Carolina breast-cancer survivor has beaten the State Department and convinced judges in Washington that the inability to have sex is a disability protected under federal anti-discrimination laws. . . . The new appellate-court ruling gives Piedmont, S.C., resident Kathy E. Adams another potential shot at serving overseas. More broadly, the ruling cracks open the courtroom door for additional legal challenges by those who are sexually incapacitated. . . . "I think it's a major victory for former cancer patients, and for anyone who has had their sex life disrupted," Adams' attorney David H. Shapiro said Tuesday. . . . Adams, herself a practicing lawyer, wants to compel the State Department to hire her as a foreign service officer and provide back pay. She'll now go before a jury and trial judge, unless the State Department relents first. . . . "I think their goose may be cooked," Shapiro said. . . . In its 2-1 decision, issued Friday, the U.S. Court of Appeals for the District of Columbia Circuit ruled that Adams has a case against the State Department. Most significantly, the influential D.C. circuit court ruled for its first time that laws that protect people with disabilities from discrimination cover "sexual relations." . . . The ruling overturns a trial judge who'd dismissed Adams' case.

Congress Aims to Expand the ADA

Bill would reverse two U.S. Supreme Court employment law cases

Marcia Coyle, The National Law Journal

7-21-08 -- For Karen Sutton, her twin sister Kimberly Hinton, and Ella Williams, the U.S. Supreme Court was a hostile environment from 1999 to 2002 because of a series of employment decisions during those years that left the three women and countless others outside the protections of the landmark Americans With Disabilities Act. . . . Nearly a decade later, Congress appears on the verge of undoing much of the high court's handiwork. . . . The names of Sutton and Williams, enshrined in Supreme Court case reports, will take on additional prominence if the Senate, as seems likely, follows the lead of the House and adopts the ADA Amendments Act of 2008. . . . The legislation, approved on June 25 by an overwhelming House vote of 402-17, explicitly rejects the standards and reasoning in Sutton v. United Air Lines, 527 U.S. 471 (1999), and Toyota Motor Mfg. v. Williams, 534 U.S. 184 (2002). The culmination of a remarkable joint effort by disability advocates, business community leaders and members of Congress, the bill attempts to push federal courts off a path that has led, by one group's study, to the rejection of 97 percent of plaintiffs' ADA-related job bias claims in 2004 alone.


Father: 'System' killing my disabled daughter
'If they had treated a dog this way, they would be doing jail time'

© 2008 WorldNetDaily

7-19-08 -- The father of a disabled Delaware woman who recently earned the support of state lawmakers says the system – of courts, lawyers, hospitals and disability agencies – literally is combining to bring about the death of his daughter. . . . "The court system should not have the right to impose this kind of treatment on a mentally disabled person," Randy Richardson told WND today. His daughter, Lauren Richardson, has been disabled since an apparent drug overdose nearly two years ago. . . . Judie Brown of the American Life League recently issued a call to those who are concerned about such cases to help. . . . "The governor of Delaware, Ruth Ann Minner, is being asked by pro-life Americans across this nation to intervene in this case in order to save Lauren from what many fear is an imminent court order dictating that Lauren be starved and dehydrated to death," she wrote. "I am asking you to be one of those who communicates your passionate belief that Lauren's life is sacred and deserves to be protected from those who would order her death. The governor's e-mail address is governor.minner@state.de.us." . . . Brown said "it has been a source of ongoing sadness to read of the difficulties Lauren Richardson's father has had over the course of the past several months. . . . "For those of you who are not familiar with her case, Lauren overdosed on heroin on August 28, 2006. She suffered oxygen deprivation as a result of the overdose and Lauren is now ... unable to speak out for herself. At the time of the overdose Lauren was expecting a baby. Her parents honored what they knew would have been her wish and did all they could to keep her healthy and comfortable until the child was born. Today, though Lauren may not be aware of it, she is the mother of Ember Grace, who was born in February 2007," Brown wrote.


D.C. Circuit: Sleeping Is 'Major Life Activity'

Marcia Coyle, The National Law Journal

7-18-08 – The U.S. Court of Appeals for the D.C. Circuit recently ruled for the first time that sleeping is a "major life activity" under the federal Rehabilitation Act. . . .Reversing its own precedent, the court also held that a plaintiff doesn't have to show that his sleep disability affected his waking activities in order to move forward with a discrimination claim. . . . While the court's decision in Desmond v. Mukasey, No. 03-01729, answered an open question in the circuit, perhaps more importantly, it rejected Department of Justice arguments that a plaintiff must meet a "higher burden" by showing that the sleeplessness has had some effect on his day-to-day activities, said Martin Desmond's counsel, Lisa Banks of Washington's Katz, Marshall & Banks.



For Disability Law Group Interns, It's Personal
Petra Pasternak, The Recorder

7-16-08 -- Until she was 14, law student Rebecca Williford was a competitive swimmer and regularly lifted weights. But one morning, she woke up feeling sick and depleted. In the coming years, Williford's fatigue didn't go away, and she started having trouble walking. It took several years of doctor visits and tests to identify that she had Dysautonomia, a chronic neurological and cardiovascular disorder that affects, at different times, her blood pressure, heart rate, vision and digestion. By 17, Williford was relying on a wheelchair. . . . "For the first time, I was a part of the disability community, and I realized the tremendous need for advocacy on behalf of them -- for health care, for employment, for fathers who are breadwinners trying to figure out what they would do if they couldn't return to their job."


Disability Activist Wins One Case, Loses Another in C.A.

Panel Rules in Latest Cases Brought by Prolific Plaintiff Molski

By Sherri M. Okamoto, Staff Writer

7-10-08 -- Controversial self-proclaimed disability rights activist Jarek Molski exposed himself to an adverse fee award by pursuing litigation to enjoin technical violations of California’s disability access statutes under Civil Code Sec. 55, this district’s court of appeal ruled yesterday. . . . Div. Six affirmed the $33,702.63 award, calling it a reasonable and necessary consequence of Molski’s “scorched earth strategy,” invoking the Unruh Civil Rights Act, Disabled Persons Act, and Sec. 55 for an alleged access barrier at the Arciero Winery. Sec. 55 authorizes a fee award to the prevaling party in an action for injunctive relief from a violation of disability access rights. . . . The paraplegic, however, won a separate case yesterday dealing with a different attorney fee issue. . . . Molski sues public accommodations for a living and has filed in excess of 400 such actions in state and federal court. Molski and his attorney Thomas Frankovich have been declared vexatious litigants in both jurisdictions. . . . Molski initially filed suit against Arciero in federal court for violation of the ADA as well as California’s accessibility laws. . . . The district court dismissed Molski’s state claims for lack of jurisdiction, leaving only Molski’s ADA claim for injunctive relief pending. Arciero later notified Molski that the alleged violations have been remediated and Molski dismissed the federal action.


2nd Circuit Affirms Award Against Wal-Mart in Disability Bias Case

Mark Hamblett, New York Law Journal

7-8-08 -- An employer has a duty to reasonably accommodate an employee's disability where the disability is obvious even though the employee did not request an accommodation, a federal appeals panel has ruled. . . . Staking out an exception to the general rule that the requirement to accommodate is normally triggered by a disabled employee's request, the 2nd U.S. Circuit Court of Appeals said an employer must take action "if the employer knew or reasonably should have known that the employee was disabled." . . . The circuit made the ruling in upholding a $900,000 award for compensatory and punitive damages, plus $644,000 in attorney fees, to Patrick S. Brady on his Americans with Disabilities Act claim against Wal-Mart for the actions of its employees at a store in Centereach, Long Island, New York. . . . Judges Amalya Kearse, Guido Calbresi and Robert Katzmann decided the appeal in Brady v. Wal-Mart Stores Inc., 06-5486-cv. Calabresi wrote for the panel.


June 2008


Judge Tentatively Approves Settlement of Eating-Disorder Class Action

Henry Gottlieb, New Jersey Law Journal

6-26-08 -- A federal judge in New Jersey granted preliminary approval Tuesday to a class action settlement that would require Aetna Insurance Co. to improve coverage for some eating-disorder patients. . . . U.S. District Judge Faith Hochberg made the decision after the plaintiffs' class action lawyer said the pact was good for the insureds and that litigating for a better deal would be risky. . . . The settlement requires the company to treat some claims for anorexia and bulimia as it does claims for biologically based mental illnesses, such as schizophrenia. BBMI claimants are eligible for months of treatment, while those with non-BBMIs are limited by Aetna to 20 outpatient visits per calendar year and 30 days for inpatient benefits, according to the complaint in DeVito v. Aetna Inc., Civ-07-418. . . . The better treatment would cover patients in "fully insured" plans, which are plans funded by employers. Enrollees in self-funded plans, such as employee welfare and state worker health benefit programs, are not covered by the suit and would not automatically benefit from the more liberal treatment. . . . Class plaintiffs lawyer Bruce Nagel told Hochberg that about half of the company's enrollees are in "fully insured" plans.


Blindness doesn't deter law clerk from high court

By Bill Mears, CNN Supreme Court Producer

6-22-08 -- Isaac Lidsky arrives in front of the U.S. Supreme Court, stops suddenly and, upon hearing a voice, extends his hand in greeting almost instinctively. . . . Seemingly simple gestures such as a hello don't always come easily for a man who is legally blind. . . . But this hasn't deterred the ex-Justice Department prosecutor from pursuing a promising legal career, one that will take him inside the nation's highest court in a few weeks. . . . The Florida native will join 36 of the nation's top young attorneys as law clerks to Supreme Court justices for the 2008-'09 term. He will be the first legally blind law clerk in the court's history. . . . Lidsky, 28, will work with the retired Justice Sandra Day O'Connor and will be assured of long days writing and researching cases.

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Supreme Court Limits Self-Representation by Mentally Ill Defendants

Lawyers are good for something, it appears.

Tony Mauro, Legal Times

6-20-08 -- The Supreme Court on Thursday said that defendants found mentally competent to stand trial are not necessarily also competent to represent themselves at the trial. As a result, the Court ruled by a 7-2 vote that states may insist that mentally ill defendants be represented by counsel when "they are not competent to conduct trial proceedings by themselves." . . . The decision was one of five issued Thursday, leaving 10 cases outstanding for the Court to hand down next week, which is expected to be the Court's final week before adjourning for the summer. The Court will sit on Monday and another day next week, as yet unspecified. . . . In the case on self-representation, Justice Stephen Breyer said the traditional test for competence to stand trial -- the ability to consult with counsel and to assist in preparing the defense -- does not weigh the additional skills needed to represent oneself. Someone competent to stand trial, Breyer wrote, may nonetheless "be unable to carry out the basic tasks needed to present his own defense without the help of counsel." . . . The ruling came in Indiana v. Edwards, in which Ahmad Edwards, accused of attempted murder in a 1999 department store robbery, seeks to represent himself at trial. Three times he was found incompetent to stand trial, but by 2005, after psychiatric help he was found competent -- and he renewed a request to represent himself. The trial judge said no, but on appeal two Indiana courts said he had a right to represent himself under Supreme Court precedents. . . . Indiana appealed to the Supreme Court, arguing for a standard that would deny self-representation to defendants who "cannot communicate coherently with the court or a jury."

Court Clarifies Standards For Denial Of Disability Benefits

In a ruling Thursday, it guides federal judges to weigh conflicts of interest by insurance companies.

By Warren Richey | Staff writer of The Christian Science Monitor

6-20-08 -- Judges must approach medical disability and health insurance disputes with a skeptical eye when they involve insurance companies that both evaluate and pay employee claims. . . . In a 6 to 3 decision announced Thursday, the US Supreme Court ruled that benefit denials by such companies must be examined with caution when circumstances suggest a high likelihood that financial considerations affected a benefits decision. . . . The court added that an apparent conflict of interest is only one of many factors that a reviewing judge must consider. . . . The ruling is important because it offers guidance to federal judges presiding over lawsuits challenging medical disability and health insurance determinations in group policies. . . . "When judges review the lawfulness of benefit denials, they will often take account of several different considerations of which a conflict of interest is one," writes Justice Stephen Breyer in the majority opinion. . . . The decision, in Metlife v. Glenn, comes in the case of an Ohio woman diagnosed with a severe heart condition, who had her disability benefits withdrawn by the Metropolitan Life Insurance Co.

Money Everyone Can Use

The Treasury should adapt bills for the blind.

Washington Post Editorial

6-2-08 -- FOR THE blind and visually impaired, U.S. paper currency is trouble. Every bill is the same size; no palpable features distinguish one denomination from another. Without a portable money scanner or trusted companion, the blind are too often at the mercy of strangers. Some 170 countries have managed to produce paper currency more accessible to the blind, either by making each denomination a different size or by adding tactile features. One would think that if these other countries could find a way to accommodate the blind, then so could the United States. . . . But is the U.S. government a scofflaw for refusing to make its currency more user-friendly for the blind? Last month, a divided panel of the U.S. Court of Appeals for the D.C. Circuit said yes; we are not so sure. . . . The American Council of the Blind sued the Treasury in 2002 for violating the Rehabilitation Act, which the Supreme Court has said requires that no one with a disability be denied "meaningful access" to any program or service run by an executive agency or using federal funds. The court has also determined that a remedy must be "effective" and not impose an "undue burden" on the government or the private sector.

October 2007


Judge back in public eye for all the wrong reasons

Nottingham has undercut his reputation by illegally parking in a handicapped spot and dropping thousands at a strip club.

By The Denver Post Editorial Board

10-23-07 -- Chief Federal Judge Edward Nottingham was in the news again over the weekend, and again the reports were disappointing for someone of his stature. . . . Nottingham illegally parked in a handicapped parking space in September. A woman who uses a wheelchair describes a contentious scene with the judge. He has said little publicly, other than to broadly dispute her version of events. . . . It's impossible from our vantage point to know the truth of what happened after he parked illegally. That will be something for judges in the disciplinary process to determine. But it's distressing to hear Nottingham was again involved in a situation that puts him in the public eye for all the wrong reasons. . . . In August, we learned Nottingham had dropped thousands of dollars in one night at a strip club. Granted, so far as we know there was nothing illegal about what he did. He was embarrassed about the revelations, which came out of a bitter divorce, and said they were a matter of "human frailties and foibles." . . . In the most recent incident, Nottingham parked in a handicapped space outside the Walgreens on Colfax Avenue and Race Street. He said he was making a quick stop to pick up a prescription. A woman who uses a wheelchair blocked Nottingham's SUV from leaving the spot and contends he put the car in reverse and threatened to have federal marshals remove her. . . . The woman, Jeanne Elliott, was a lawyer in an Arapahoe County courtroom in 1986 when she was shot and paralyzed by an angry litigant. She has filed a complaint about the parking incident with the 10th U.S. Court of Appeals. . . . In a brief and broadly worded statement, the judge admitted the parking violation but disagreed with the rest of Elliott's description of how the events unfolded. . . .


Blinded teen seeks to compel use of unpublished court rulings

By Michael Doyle | McClatchy Newspapers

10-10-07 --An errant paintball partially blinded Joshua Hild. It also opened his eyes to how courts work. . . . Hild of Fresno County, Calif., won $704,633 in a civil lawsuit, only to lose the award in appeals court. Now, in a potentially ground-breaking federal lawsuit, the former resident of tiny Big Creek is challenging how judicial opinions are used while he gets a crash course in the law. . . . "I've learned that it's not always just," Hild said Tuesday. . . . The 19-year-old restaurant worker is suing the California Supreme Court to reverse its practice of largely ignoring unpublished court opinions. In California, these opinions disposing of routine cases can't be cited as precedent. They also become difficult to appeal. . . . They're very common. States and the federal government, though, are starting to diverge in how they handle unpublished opinions. . . . California courts of appeal issued 11,852 opinions during the 2004-2005 fiscal year. Of these, only 1,047 were published. . . . About one-third of federal appellate-court decisions reviewed in 2002 came in unpublished opinions. . . . "We're brought up in this country that you have a right to trial and then, in case you have a bad opinion, you have a right to have it heard by a higher court," said Brian Chase, Hild's attorney. "People like Josh should not be left subject to a clearly flawed opinion."

September 2007


Companies, Courts Debate Whether ADA Applies to Web Sites

Advocates for the disabled are pressing companies to make their Web sites more accessible

Sherry Karabin, Corporate Counsel

9-7-07 -- Does the Americans with Disabilities Act apply in cyberspace? Without clear guidance from the courts, companies are deciding for themselves. Pressured by advocacy groups, some businesses have already taken steps to make their Web sites more accessible to the disabled. But other companies have said that while they'll voluntarily alter their sites, they aren't required to do so by the ADA. . . . RadioShack Corp. is the latest company to reach an agreement with advocates for the disabled. On June 13, the Fort Worth, Texas-based electronics retailer announced that it would make several improvements to its Web site for users who are visually impaired. The agreement grew out of negotiations between RadioShack and the American Council of the Blind and the American Foundation for the Blind. . . . "RadioShack believes that its products and services should be accessible to individuals with disabilities," says Mickey Clark, a senior litigation attorney at the company. "It was apparent that RadioShack and the [blindness organizations] shared a common goal, and we decided to work together to come up with a sensible solution." 

August 2007

The New Right to Life

Roger Pilon Wall Street Journal Commentary

8-10-07 -- The wheels of justice turn slowly, especially for the dying. On Tuesday the D.C. Circuit, sitting en banc, reversed a 15-month-old decision by a panel of the court that had recognized a constitutional right of terminally ill patients to access potentially life-saving drugs not yet finally approved by the Food and Drug Administration. Given the poor quality of Tuesday's opinion in Abigail Alliance for Better Access to Developmental Drugs v. Eschenbach -- "startling," said the dissent -- one wonders why it took so long. The opinion's one virtue is that it brings out clearly how far modern "constitutional law" has strayed from the Constitution, a document written to protect liberty, not federal regulatory schemes. . . .Represented by the Washington Legal Foundation, Abigail Alliance is named for Abigail Burroughs, a 21-year-old college student who died of cancer in 2001. Their argument could not be more simple or straightforward, nor could Tuesday's dissent, written by Judge Judith Rogers and joined by Chief Judge Douglas Ginsburg, the majority in the earlier opinion. Citing the Fifth Amendment's right to life, the Ninth Amendment's assurance to the Constitution's ratifiers that the rights retained by the people far exceed those named in the document, and the Supreme Court's "fundamental rights" jurisprudence, Judge Rogers argued that the right to life, the right to self-preservation, and the right against interference with those rights -- which the FDA is guilty of -- are of one piece. They are deeply rooted in common law and the nation's history and traditions, implicit in the concept of ordered liberty, and thus "fundamental."


Judge Spotlights Shortage of Interpreters for the Deaf

By Alan Feuer, NY Times

8-10-07 -- The prevailing custom in the New York courts is for sign language interpreters to work in tandem: one translates the rapid-fire arguments of courtroom life, while the other gets to rest weary hands. . . . There is, however, a shortage in the courts of sign language interpreters, so this buddy system does not always work, according to court officials. Yesterday, a judge in Queens took note of the shortage, writing a memorandum that explained why he had awarded an interpreter who was forced to work alone twice his daily rate of pay. . . . The judge, Justice Charles J. Markey of State Supreme Court, gave the higher rate to Gabriel Grayson, a certified American Sign Language interpreter. It was after Mr. Grayson had translated for a deaf plaintiff at a six-day civil trial in June involving a personal injury case. Mr. Grayson had told the judge and other court officials in Queens of the normal two-interpreter setup, but agreed to work alone, for a bit more money, after officials could not find another interpreter to relieve him.


The 'medical miracle' that brought near-vegetative brain
back to life

Mark Henderson, Science Editor

8-3-07 -- The mother of a man who was left in a near-vegetative state by a serious assault spoke yesterday of her joy at the “medical miracle” that has allowed him to speak and eat again — and which could benefit tens of thousands of people in a similar condition. . . . The severely brain-injured patient, who is now 38, was unable to communicate, swallow or make co-ordinated movements for six years, before doctors revived him from this minimally conscious state (MCS) with a revolutionary therapy. . . . Since his skull was implanted with electrodes to stimulate a deep-lying and undamaged part of his brain, he has improved so dramatically that he can now feed himself, brush his hair and recognise and talk to his parents and doctors. . . . “My son can now eat, sleep, watch a movie without falling asleep, he can drink from a cup, he can express pain, he can cry, and he can laugh,” his mother said. . . . “He can say, ‘I love you, Mommy’. God bless those wonderful doctors who believed in my son, and gave their time and effort to help my son.” . . . One of his most impressive achievements has been to say from memory the first 16 words of the Pledge of Allegiance, which is recited daily by American schoolchildren.


Judge's decision 'normalizes' transgenderism
Family values group criticizes ruling taxpayers must fund treatment
© 2007 WorldNetDaily.com

8-2-07 -- A family values organization is criticizing a judge's ruling that taxpayers must pay for a sex-change treatment for a state prison inmate. . . . According to Associated Press reports, the inmate, Randall Gammett, demanded a name change to Jenniffer Spencer while in prison, as well as various treatments. . . . The inmate, in jail for possession of a stolen car and escape, believes "she is a woman trapped in a man's body," according to the report, and "castrated herself using a disposable razor blade" in a prison cell when state prison physicians declined to prescribe estrogen. . . . The inmate then filed a lawsuit against the Idaho Department of Correction, alleging a violation of constitutional rights for that refusal. . . . Now Judge Mikel Williams, of U.S. District Court, ordered the state to provide the inmate with psychotherapy and estrogen pending a trial. . . . Bryan Fischer, the executive director of the Idaho Values Alliance called it judicial activism "at its worst." . . . "Judge Williams has taken it upon himself to normalize transgenderism, and is forcing Idaho's taxpayers to subsidize a twisted approach to resolving gender identity disorders," Fischer said.


Stop by Road to Freedom bus likens disability, civil rights

By Claire Engelken, The Capital-Journal

8-2-07 -- A building that played a prominent role in abolition of racially segregated schools in the 1950s provided the backdrop Wednesday for a lesson on the rights of another group of people. . . . The Road to Freedom bus stopped at the Brown v. Board of Education National Historic Site, 1515 S.E. Monroe, during its yearlong, 50-state tour to focus attention on the struggle to ensure the rights of disabled people. . . . Jim Ward, president of Americans with Disabilities Act Watch, said the Brown v. Board site was an appropriate stop for the tour. . . . "Rights for the disabled is not a charity issue," he said. "It's a civil rights issue." . . . Ward lives on the Road to Freedom bus with his wife, Debbie Fletter Ward, and sons Zach, 3, and Jake, 2. He said the bus has made 40 stops in the past eight months and will make another 45 stops before the tour ends in November in Washington, D.C. . . . The tour started on Nov. 15, 2006, in Washington, D.C., and is a project of ADA Watch and the National Coalition for Disability Rights. The bus houses a photographic exhibit that tells the history of the movement leading to passage of the Americans with Disabilities Act. . . . According to the Web site www.roadtofreedom.org, the tour is designed to tell the history of the struggle for disability rights, past and present, and promote educational and economic opportunity for children and adults with physical, mental, cognitive, sensory and developmental disabilities.

June 2007


ADF attorneys help reverse hasty decision to end hospitalized war veteran’s life

Injured man is responsive, will be transferred from hospice care to rehab facility
ADF Media Relations

6-29-07 -- Jesse Ramirez will have an opportunity to recover after attorneys with the Alliance Defense Fund helped reverse a hasty decision that would have ended his life. . . . "Everyone deserves a chance to recover from an injury, and now Jesse has that chance," said ADF Senior Legal Counsel Byron Babione.  "Jesse put his life on the line for us during the Gulf War.  The least that should be done for Jesse and his family is to give him a chance to recover." . . . ADF attorneys helped secure the restoration of food and water to the Gulf War veteran earlier this month after he suffered multiple injuries in a car accident on May 30.  After just 10 days in an intensive care unit, his food, water and antibiotics were withheld and remained so for five days.  Food and water was restored shortly after ADF filed a lawsuit, and now Ramirez will be transferred to a rehabilitation facility.


Quadriplegic NY Associate Says She Needs To Think, Not Walk

New York Lawyer, By Rosamaria Mancini, New York Law Journal

6-27-07 -- Attorney Jean Waters said she spends about 95 percent of her waking hours in a wheelchair. Even with crutches, she can walk only a few steps. A quadriplegic for more than two decades, she also cannot lift her arms above her shoulders. . . . Nevertheless, the 48-year-old Rockville Center native said, "I have always liked to challenge myself. I feel like I can do anything I put my mind to." . . . Her latest challenge is an associate's position at Plainview-based Rosicki, Rosicki & Associates, where she started this month. It is her first full-time law office position. . . . Ms. Waters said her disability does not hamper her work as a lawyer. She relies on her brain as she does research, writes briefs and interviews clients to find out their needs and how to address them.

Law Firms Unite in Pro Bono Effort for Wounded Soldiers

Tresa Baldas, The National Law Journal

6-22-07 -- Wounded soldiers who allege that the government is downplaying their injuries and cheating them out of benefits have some new legal ammunition: three major law firms offering free legal services. . . . Concerned that injured soldiers are getting a raw deal upon returning home, three firms -- Foley & Lardner; Atlanta's King & Spalding; and New York's LeBoeuf, Lamb, Greene & MacRae -- have offered to do pro bono work on behalf of veterans who are appealing low disability ratings made by the government. . . . Those ratings dictate how much money injured veterans are entitled to, along with any medical and retirement benefits. . . . According to attorneys, numerous veterans at Walter Reed Army Medical Center who have served in Iraq and Afghanistan have claimed that the military is underrating their injuries, thus shortchanging them of benefits they've earned.


Julian working toward more access for disabled
By: Teri Figueroa - North County Times Staff Writer

6-11-07 -- Because an attorney threatened to sue most of the businesses in Julian, Arlene Howe can enter a popular bakery. It has a makeshift ramp. . . . And Howe can now sign her checks and fill out deposit slips in her bank, thanks to a new, lower counter. She hears the bank plans to install an automatic door; the one in place is quite heavy to open and maneuver around in a wheelchair. . . . "I'm just trying to access the town," said Howe, who gets around Julian in a wheelchair since a 2005 car accident left her with a spinal injury. . . . Julian is a little different now, 19 months after attorney Theodore Pinnock shook the mountain hamlet to its core with threats to sue shops, many of which were not fully accessible to the disabled. . . . The threats pit the access lawyer, who has severe cerebral palsy and uses a wheelchair, against several business owners who said remodeling their shops to comply with disability access laws would be costly and difficult.

May 2007

Legal Victory for Families of Disabled Students

By Linda Greenhouse, New York Times

5-22-07-- A Supreme Court decision on Monday gave parents of children with disabilities the right to go to court without a lawyer to challenge their public school district’s individualized plan for their child’s education. . . . The 7-to-2 decision involved an interpretation of the federal law that gives all children the right to a “free appropriate public education,” regardless of disability. Millions of children receive benefits under the law, the Individuals with Disabilities Education Act. Most federal appeals courts have ruled that when a dispute brings families and school districts into court, the parents cannot proceed without a lawyer. . . . Many parents, including the couple from Parma, Ohio, who brought this case, either cannot afford a lawyer or cannot find one. Increasingly, school districts have been bringing parents who seek to handle their own cases into court on charges of violating state statutes against the “unauthorized practice of law.”


Judge orders Riverside to pay disabled man $221K, fix city curbs

(AP) Sign on San Diego

5-17-07 -- A federal judge has ordered Riverside to pay $221,000 in damages to a wheelchair-bound man who has fought the city for almost two decades to improve curbs, sidewalks and driveways. . . . U.S. District Judge Stephen G. Larson granted the award to John Lonberg, 69, on Wednesday and also ordered the city to fix 189 curb ramps within four months. . . . “It couldn't get much better than this,” Lonberg said. “This will send a message to Riverside and other cities that courts won't tolerate intolerable delay in making services available to everyone.” . . . The award is the largest in a state case involving disabled access, the Los Angeles Times reported. . . . Larson's ruling requires the city to repair sidewalk ramps that violate the federal Americans With Disabilities Act of 1990 and state access laws dating to 1968.

Lawyers as a Disability

Strategy Page

5-7-07 -- As feared, lawyers are increasingly soliciting troops coming back from duty overseas, and urging them to claim they have  Combat fatigue (or PTSD, post-traumatic stress disorder) and apply for disability benefits. This recently became big news in Australia, but the involvement of crooked lawyers in disability scams has been big business in the United States for decades. . . . PTSD usually first manifests itself while troops are still in the combat zone, if not in combat itself.  This has meant stationing lots of mental health personnel as close to the fighting as possible. Getting troops to acknowledge that PTSD is just another combat injury has proved difficult. But there is progress, albeit slow, in getting the troops to report problems they are having. But the crooked lawyers will coach troops to exhibit the right symptoms, and then guide them through the application process, in return for a portion of the disability payments received.

April 2007


Judge Finds Sinusitis Not a Disability

New York Lawyer, By Rosamaria Mancini, New York Law Journal

4-24-07 -- A Nassau Community College professor's claim that she was discriminated against due to her "severe chronic sinusitis" has been thrown out by a Nassau judge. . . . In Staskowski v. Nassau Community College, 16616/2006, Supreme Court Justice Thomas A. Adams dismissed Andrea Staskowski's suit, saying that under the Americans with Disabilities Act, sinusitis "does not qualify as a disability." . . . Alan E. Wolin, of Jericho-based Wolin & Wolin, who represented Ms. Staskowski, said his client was considering an appeal. . . . In addition to the college, Ms. Staskowski also named the State University of New York, the college's vice president for academic affairs, as well as seven members of the college's budget and personnel committee. . . . Ms. Staskowski, a tenured professor in the communications department at Nassau Community College, a part of the State University of New York, received a letter from the college's personnel and budget committee on Sept. 14, 2004 warning her about excessive absences and tardiness during the fall 2004 semester.


Disabled hit huge roadblocks in routine health care

"We’ve got to attack this from all levels," said Kirschner, who previously wrote a white paper with her colleague

Judy Panko Reis, director of The RIC Women with Disabilities Center. -Northwestern University

4-3-07 -- Rachel steered her wheelchair into a Chicago area medical center for a series of upper gastrointestinal tests. But when Rachel, who has cerebral palsy, entered the radiology lab, the technician told her she had to stand up to take the test. . . . "But I can’t stand," Rachel explained. The medical center, however, had no alternate strategy, and sent her home without having the test. . . . Across town, Susan, who also uses a wheel chair, arrived at the office of her new gynecologist for a routine exam and Pap smear. But there was nothing routine about it. The doctor’s office did not have a wheelchair accessible examination table or transfer equipment. Instead, staff members awkwardly grabbed and hoisted Susan, her flimsy paper gown fluttering, onto the table. . . . "It was one of the most humiliating, terrifying experiences of my life," Susan recalled. . . . People with physical disabilities endure substandard health care and a pervasive sense that they are a burden to doctors and medical centers, according to a Northwestern University physician. These patients often ram into roadblocks when they try to obtain basic care and life-saving diagnostic tests.


NY Court Makes Accommodations to Allow Deaf Juror to Serve

New York Lawyer, By Rosamaria Mancini, New York Law Journal

4-3-07 -- Henry Barba of Merrick was happy to be called for jury duty. . . . "I was not hoping to get out of it," said Mr. Barba, who was born deaf but is able to speak. "I wanted to try it." . . . Mr. Barba, 32, was picked, but Nassau County court officials had to make special arrangements before he could take his place on the panel. . . . Without help, Mr. Barba could not have followed the testimony in Bitetto v. South Nassau Communities Hospital, 016456/2001, a medical malpractice case before Supreme Court Justice Edward McCarty involving an alleged injury at childbirth. . . . To accommodate Mr. Barba, a court reporter transcribed the proceedings during trial and the transcripts appeared in real time on the laptop Mr. Barba used to keep track of testimony.

March 2007


Access attorney fined after suing store closed by flooding

By Marjie Lundstrom, Scripps News

One of California's busiest disabled access attorneys _ a controversial figure who has sued entire towns over alleged access violations _ has been rebuked by a San Diego federal court judge for his conduct in a recent case. . . . San Diego attorney Theodore Pinnock, who has cerebral palsy and uses a wheelchair, was ordered to pay more than $15,000 in legal fees incurred by a business owner who was sued over alleged access violations at a convenience store that wasn't even open for business. . . . U.S. District Judge Jeffrey T. Miller also took the unusual step this week of imposing sanctions against Pinnock, ordering the attorney to complete four hours of ethics and professional responsibility training classes approved by the California State Bar. . . . The judge's ruling illuminates the controversy in California over enforcement of the Americans With Disabilities Act.


Disabled Hamilton woman's effort inspires many

Jessi Hutson has cerebral palsy but she didn't let it keep her from collecting funds for Children's Center.

By Michael D. Pitman, Journal-News Staff Writer

3-22-07 -- Jessi Hutson's cerebral palsy affects her gestures, posture and speech. . . . Here hands and arms are curled close to her body and she stumbles as she walks. When she gets tired, she needs her wheelchair to get around. . . . But for a couple of weeks this past summer, the 24-year-old Hamilton woman made the effort to walk around her neighborhood, handing people fliers she made to collect money for the Joe Nuxhall Children's Center. She also solicited at a Hamilton Kroger to raise funds for the center, a facility that can be used at no charge by organizations that serve mentally and physically disabled people as well as the underprivileged. . . . Hutson, a Special Olympics basketball player, collected $150. . . . It may not seem like a lot of money compared to the $2 million needed to build the facility planned for 5 acres at One Way Farm on River Road, but her story is inspiring to many.

February 2007


No Puppy Love in School: Judge Upholds Decision to Bar Service Dog

New York Lawyer, By Rosamaria Mancini, New York Law Journal

2-28-07 --A deaf East Meadow high school student cannot bring his service dog to school, a federal judge ruled yesterday. . . . Eastern District Judge Arthur Spatt denied John Cave Jr.'s motion for a preliminary injunction that would have forced the East Meadow School District to allow Simba, his Labrador retriever, to attend classes with Mr. Cave at W. Tresper Clarke High School. . . . Judge Spatt said Mr. Cave, 14, and his family had not exhausted all of the remedies afforded to them by the school district, including requesting a hearing or meeting with the state's Committee on Special Education. Instead, they filed a $150 million discrimination suit.


Moreno Valley attorney helps train service dogs

By Dan Lee The Press-Enterprise

2-20-07 -- If you've ever seen Moreno Valley attorney Michael Geller around town, you've probably seen him with a dog on a leash in tow. . . . They go everywhere together: restaurants, social gatherings -- even to the Riverside County courthouse in Riverside. . . . That's because Geller is raising a puppy that will become a service dog for the disabled. A Menifee-based agency, Canine Support Teams, assigns him a puppy -- usually a golden retriever, a Labrador retriever or poodle -- to train until the dog is about 18 months old. . . . "We raise them and do basic obedience training and get them used to the outside world," Geller said during an interview in his Moreno Valley law office. . . . After the dogs reach about 18 months, they leave their puppy trainers to undergo advanced training for six to eight months. Some of it is done at Canine Support Teams, but most of it occurs with inmates at the California Institution for Women in Chino, Geller said. The prison is the first in California to have such a program.


Not afraid to talk about it
By Lisa Bendele, Princetonian Senior Writer

2-16-07 -- "Can I catch it?" "Does it really hurt?" . . . The questions came, one after another, at the fifth-grade assembly — not malicious, but naive, potentially embarrassing and very personal. . . . Kelly Matula '09 wanted to answer them. . . . Matula, who has cerebral palsy, has been asked about her disability by her peers ever since she can remember. Rather than shying away from these queries, however, Matula has emerged as an advocate for others in her position. . . . "I thought the assembly would be a good idea because it's important to get kids comfortable with asking questions while they're still at a young age," she said. "Kids are naturally very curious, and if you don't answer their questions, they will come up with their own answers in their minds." ***** As a high school junior, she started disabledstudent.com, an informational website that describes disabilities and the challenges and opportunities that disabled students may encounter in their lives. . . . With the website, Matula said, she hopes to let disabled children know that it is still possible to find joy in life while living with a physical impairment.

January 2007

New ADA Rules Proposed for Cruise Ships

Cruise News

1-30-07 -- In a move that could result in a change in the way physically challenged people travel, the Department of Transportation has submitted a formal proposal to address "policies and conditions relating to transportation of passengers with disabilities." This proposal does not deal at all with physical structures, architectural barriers or the operation of cruise vessels; those issues are being handled elsewhere. Instead, it addresses how those with physical challenges are treated as individuals by the cruise lines and how, by implementing ADA rules, that treatment must change. . . . This all came about because of a Supreme Court case in 2005. In Spector et al vs. Norwegian Cruise Line, the court was asked to decide whether or not the Americans with Disabilities Act applied to passenger cruise vessels, and specifically, if U.S. rules could be applied to ships that were registered in foreign countries.

Do Web Sites Need to Be Accessible to the Blind?

Carla J. Rozycki and David K. Haase, Special to Law.com

1-10-07 -- An advocacy group has sued Target Corp., claiming that Target's Web site is incompatible with software used by the blind and that such incompatibility is a violation of the Americans with Disabilities Act (ADA). . . . In National Federation for the Blind v. Target Corp. (__ Supp.2d __, 2006 WL 2578282 [N.D. Cal. Sept. 6, 2006]), the U.S. District Court for the Northern District of California refused to dismiss those claims, leaving many questions unanswered for entities operating Web sites.


In 1990, Congress enacted the ADA to establish a comprehensive prohibition of discrimination on the basis of disability and, in certain circumstances, to require affirmative efforts to accommodate individuals with disabilities. Title III of the ADA provides for accessibility of places of public accommodation. . . . The ADA defines a "place of public accommodation" as a facility, operated by a private entity, whose operations affect commerce and fall within at least one of 12 specified categories. 42 U.S.C. §12181(7). . . . The statute and implementing regulations were enacted before the Internet became an everyday tool and do not expressly state whether the Internet is a place of public accommodation. The Department of Justice has consistently taken the position that it is -- for example, through the filing of amicus briefs.

Read the Judge's Order   /   Read the Complaint


Handicapped parking space filled by judge

The problem: The placard on the dashboard of his Mercedes was issued to an 86-year-old woman.

By Bill Varian, Times Staff Writer

1-26-07 -- Each day, administrative law judge Elving L. Torres decides whether people are disabled enough to receive Social Security benefits. . . . Sometimes he puts himself in the shoes of people who appear before him: He parks his luxury import car in the handicapped spaces outside the building where he works. . . . A handicapped parking placard appears on the dashboard of his silver Mercedes-Benz AMG coupe. But it was issued to an 86-year-old woman from Bradenton, according to state motor vehicle records. . . . At least once this week, by parking in a handicapped spot, Torres, 62, may have denied a woman who uses a wheelchair and works in the same building the ability to park there. She had to park at the far end of the lot and propel herself up an incline to get to her office because there were no empty handicapped spaces. . . . "Shame on him," said the woman, Raquel Fruchter, 55, who works as a program coordinator for the Arts Council of Hillsborough County and has polio.


Dan Iagatta's Plight

Dan Iagatta carrying his legal paperwork to Judge Beverly Boorstein's courtroom

In a little over two years he went from an able-bodied self-employed plumbing and heating contractor/pilot/firefighter/paramedic/town official/environmentalist/and most importantly a father of two boys, ages 10 & 12.  Dan has spent over $100,000 modifying his marital home for his quadriplegia disability caused by a bicycle accident.  The courts have done Dan great injustices by not allowing him or giving him special access (as required by the American Disabilities Act?) for his first four days of trial, removing visitation and custody of his two children, wife allowed to remove children from religious education classes that Dan teaches, Judge intimidates Dan to use a lawyer at trial, Judge makes biased decision on first day of trial stating “I envision you making $70,000 in the near future” and  “I am familiar with your disability”. . . . Dan now has until the end of August to give his estranged wife 50% of the marital home in cash and $75,000 in 10 years and to pay back the two children's college funds tenfold and Dan is to surrender his $200,000 inheritance to his wife, she is allowed to keep her $250,000 inheritance and Dan has to remove a $40,000 elevator along with a $15,000 ramp and put all the doors back to their original location before his injury.  Dan also has to pay the parent coordinator in full (even though the court order says his estranged wife pay) Dan has to pay the last 18 months of mortgage and maintenance (even though the court order says it is to come from the proceeds “off the top” before division of assets) of approximately $54,000 on top of several promissory notes and a lien by Mass Health along with other outstanding bills that would have to be paid once Dan turned his house into a “liquid asset”.  Judge Boorstein is quoted “will have to obtain an apartment, most likely the most realistic alternative form for him”.(That is a hidden name for a urine soaked nursing home) 

December 2006

Should US bills be 'blind friendly'?

A federal judge ruled that the Treasury should change paper currency to make denominations easily identifiable by the blind.

By Cristian Lupsa | Contributor to The Christian Science Monitor

12-07-06 -- Jerry Berrier is a serious bird guy. In 35 years of birding, Mr. Berrier has clocked countless hours trolling the outdoors, listening for the faintest of hums. At his home in Shrewsbury, Mass., he even hooked his computer speakers to microphones in the backyard so he can record the songs of visiting birds. (He uploads these to his website, www.birdblind.org.) . . . Today, Berrier can identify 35 to 40 birds by their song. But if you put a few crisp bills in his hand, he couldn't tell a $1 bill from a $20 bill. That's because Berrier is blind, and US bills are all the same size and texture. . . . But paper money could get a makeover that would help people like Berrier. Last week, a federal judge in Washington, D.C., ruled that the Treasury Department had to consider changing paper currency so denominations could be easily identified by the blind. Current bill design amounts to discrimination, the judge wrote. . . . Surprisingly, the ruling was not universally embraced by the more than 10 million blind and visually impaired people in America. While few deny that having differentiated bills would make life easier, some say the lawsuit sends a message that the blind are helpless. Opponents also say it detracts from other problems blind people face, such as unemployment and lack of Internet access. . . . The United States is alone among more than 180 countries in having paper currency that is identical in size and color, the judge wrote. Potential changes to the currency include embossing, punching holes, notching, or making the bills different sizes. The Treasury, which has until the end of this week to appeal the decision, has argued that any change would be costly - estimates range from $75 million for equipment and $9 million in annual expenses to punch holes to $178 million in one-time charges and $50 million in annual expenses to print different-size bills.

DoD Civilians Prove Disability Is No Handicap
By Gerry J. Gilmore, American Forces Press Service

12-07-06 --  Lisa Marie Waugh offers tried-and-true advice to people with disabilities who want to get ahead in life: "You should let nothing stop you."  . . . Waugh, an intelligence research specialist with the Defense Threat Reduction Agency, at Fort Belvoir, Va., has successfully dealt with Stargardt's disease, a malady that has compromised her vision. . . . "I'm just thankful for what I have," Waugh said. . . . Waugh was among 14 Defense Department employees honored at the 26th Annual DoD Disability Awards held yesterday in Bethesda, Md. . . . David S. C. Chu, undersecretary of defense for personnel and readiness, hosted the event and presented awards to outstanding DoD civilian employees with disabilities. The award ceremony was followed by the start of a federal disability forum that's held each year. . . . "This is the only annual training conference that focuses exclusively on federal employment of individuals with disabilities," Chu said, noting President Bush is dedicated to help disabled Americans reach their full potential. . . . The Defense Department is a recognized leader in assisting disabled persons to have full and productive lives, Chu said, noting DoD hired 206 disabled students for permanent and summer jobs this year. Some occupations filled under the program included aerospace engineer, accounting clerk, park ranger, archeologist, cartographic aide, and store worker.

November 2006


Bar association report focuses on diversity benefits

11/22/2006 -- A new American Bar Association report focuses on the benefits of diversity in the workplace, why it pays to hire lawyers with disabilities, and what the law requires of legal employers. . . . Based on the proceedings of an association conference co-sponsored by the Commmission on Mental and Physical Disability Law and the federal Equal Employment Opportunity Commission, the report offers information and recommend- ations to legal employers on "best practices," and legal and ethical obligations as to the hiring of, retaining and providing accommodations for, lawyers with disabilities. . . . The report discusses how disabilities affect lawyers in all sectors of the legal profession, identifies the most prominent disability categories and outlines the most pressing needs of lawyers with disabilities.

Do the Rights of the Disabled Extend to the Blind on the Web?

By Bob Tedeschi, New York Times

11-06-06 -- ACCORDING to an advocacy group, Target declined last year to make its Web site fully accessible to blind people with specialized screen-reading technology last year. If true — and Target has denied the accusation in court — it was a public relations blunder, and it may have been illegal as well. . . . The National Federation of the Blind sued Target, contending that the company’s inaction violated the Americans with Disabilities Act because the Web site is essentially an extension of its other public accommodations, and as such, should be easily accessible to people with disabilities. . . . A Target spokeswoman would not comment on those assertions, but in court the company offered testimony from three blind users rebutting the federation’s arguments. . . . On Sept. 6, a federal judge in California held, in a preliminary ruling on the suit, that in some instances, Web sites must cater to disabled people. . . . Legal scholars say the full reach of that ruling will not be clear until the case is decided, if it reaches that point.


Part Of The Office Family


10-15-06 -- A special needs student in Sioux Falls is getting a rare opportunity for any kid his age. He's working with the Minnehaha County State's Attorney's office. . . . What some could see as a mundane office job, has transformed the life of one teenager. . . . Minnehaha County State’s Attorney Dave Nelson says, "They're important and they're sensitive documents and they can't be just tossed out in the trash ." . . . Nelson says, "They need to be shredded and Matthew has proven that he's very capable of doing that." . . . Eighteen-year-old Matthew Waterman takes this paper-shredding job seriously.  Matthew’s teacher Darbie Moran says, "He's quite excited about the shredder and the size of it ...it’s pretty impressive." . . . Everyone around the Minnehaha County State's Attorney's office finds Matthew impressive. . . . Nelson says, “I think it’s very rewarding for the lawyers and staff in our office to work with Matthew.” . . . He's a wiz at paper shredding and labeling.  But he has trouble communicating. That's because he has Fragile X Syndrome, it's a genetic condition that's left him with severe learning disabilities. His teacher at Washington High School says this job gives him the confidence he needs to succeed in the classroom.  . . . Moran says, “It’s just made a world of difference with Matthew and he's so very proud of his job and his office and he talks about it all the time.” 


Deaf drivers due a chance at UPS jobs, court says
Some may be as safe as rivals with normal hearing, ruling holds

Bob Egelko, Chronicle Staff Writer

Deaf people who are qualified to drive in every state should have a chance to drive small delivery trucks for United Parcel Service if they show they are as safe behind the wheel as employees with normal hearing, a federal appeals court ruled Tuesday. . . . The Ninth U.S. Circuit Court of Appeals in San Francisco upheld a federal judge's ruling two years ago that UPS, the world's largest private package carrier, violated the Americans With Disabilities Act by refusing to allow deaf employees to compete for jobs driving its smaller trucks, those weighing 10,000 pounds or less. . . . Larger trucks, which make up more than 90 percent of the Atlanta-based company's fleet of 65,000 vehicles, are covered by U.S. Department of Transportation regulations, which include hearing standards for drivers. But the court said UPS had failed to prove that deaf drivers would necessarily pose a safety risk in the smaller vehicles.

Does the Americans with Disabilities Act Require that Commercial Websites Be Accessible to the Blind?
A Recent Court Ruling Suggests the Answer Is Yes, But Only for Certain Sites
By Anita Ramasastry, Find Law

10-3-06 -- Just last month, U.S. District Judge Marilyn Hall Patel -- of the San Francisco-based U.S. District Court for the North District of California - ruled that the Americans with Disabilities Act (ADA) applies to some commercial websites. The holding was the first of its kind. . . . Unless Judge Patel's ruling is reversed on appeal, its upshot will likely be that many retail websites - in particular, those intrinsically linked to companies' brick-and-mortar operations - will have to start complying with the ADA. . . . However, because Judge Patel's decision did not reach web-only retailers, it may be necessary for Congress to revisit the ADA if it wishes to ensure that all web retailers make their sites accessible. . . . Given that there are some very significant web-only sellers - eBay and Amazon.com come immediately to mind - Congress should seriously consider this option. (Some groups have lobbied Congress to modify the ADA to explicitly cover the Internet, but the law has yet to be changed.) . . . The Lawsuit That Prompted Judge Patel's Ruling . . . The ADA suit, filed in February of this year, was brought by Bruce Sexton, Jr., a blind University of California-Berkeley student. In conjunction with the National Federation of the Blind (NFB), Sexton alleged that Target's website violates the ADA because it is not fully navigable by the visually-impaired. (Sexton has also sought class action status on behalf of those similarly-situated.)

September 2006

Study reveals brain activity of patient in ‘vegetative state’
By Gregory Tomlin, Baptist Press

9-11-06 -- A patient said to be in a persistent vegetative state (PVS) had the capacity to understand and respond to verbal commands, a team of European researchers reported in the journal Science Sept. 8. . . . Researchers used functional magnetic resonance imaging (MRI) technology to examine the brain of a woman who was critically injured in an automobile accident in July 2005. When they provided voice commands, such as instructions to imagine herself in a game of tennis, portions of the woman’s brain showed a surprising amount of activity, not unlike those of healthy people who agreed to participate in the same study. . . . “Her decision to cooperate ... by imaging particular tasks when asked to do so represents a clear act of intention, which confirmed beyond any doubt that she was consciously aware of herself and her surroundings,” the researchers noted in the study.


Judge: ADA lawsuit against Target can proceed

by Eric Bangeman

9-11-06 -- In February, a blind University of California-Berkeley student sued Target over the discount retailer's web site. Bruce Sexton Jr., president of the California Association of Blind Students, alleges that Target's web site violates the Americans with Disabilities Act by not making the site fully navigable by the visually impaired. His lawsuit was filed in conjunction with the National Federation of the Blind and seeks class-action status. . . . Late last week, a judge ruled that the lawsuit could go forward. In the case of the National Federation of the Blind v. Target, Judge Marilyn Hall Patel ruled that retailers can be sued if their websites are not accessible to the blind. In her opinion for the US District Court for the Northern District of California, Patel wrote that "the 'ordinary meaning' of the ADA's prohibition against discrimination in the enjoyment of goods, services, facilities or privileges, is that whatever goods or services the place provides, it cannot discriminate on the basis of disability in providing enjoyment of those goods and services."


Disabled woman wins: Motel can't refuse dog
Inn plans to appeal $2,500 fine over service animal

By Kery Murakami, P-I Reporter

9-11-06 -- Dawn Lucas pulled open the door of her subsidized apartment in Seattle. And to the right of her wheelchair stood her dog, Otter. . . . "November, we'll be together five years," she said. . . . After maneuvering her chair around, she held onto Otter's leash with one hand and the harness around his chest with the other. "Forward," she said, and Otter began walking toward the elevator, Lucas in tow. . . . It was in much the same way that Lucas and Otter left the YWCA Angeline's Center for Homeless Women downtown in May 2004. They got on a Metro bus and headed up Aurora Avenue North in search of a cheap motel room for the night. . . . But Lucas was turned away when she and Otter got to the Georgian Motel at North 88th Street.

August 2006

Disabled Student Learning the Law With the Help of Some Paws

New York Lawyer, By Honor Jones, The Legal Intelligencer

8-25-06 -- Jinks is smarter than the average dog. He doesn't chew stilettos or steal food off the counter. He doesn't lie around drooling over tennis balls all day. Instead, Jinks, a 4-year-old golden lab, is helping Gina Goldblatt go to law school. . . . Goldblatt, 23, has cerebral palsy, a brain injury that severely limits her ability to stand, walk, and do simple tasks such as picking things off the floor, paying cashiers or handing in homework assignments. . . . Goldblatt's physical limitations, however, couldn't keep her from traveling 3,000 miles away from her family's home in Northern Virginia to attend college at the University of Arizona. She has just graduated, and is planning to start law school in the fall of 2007. . . . She credits her canine companion with helping her to open doors - both figurative and literal - including those allowing her to get to law school.


Disability Rights Group Sues Over Calif. Sidewalks

NewsMax.com Wires

8-25-06 -- A disability rights group sued the state Wednesday alleging sidewalks along California highways violate federal and state law because they are unfit for wheelchairs. . . . The suit filed in federal court against the Department of Transportation by Californians for Disability Rights Inc. seeks no money, but demands the state repair the sidewalks. . . . "I'd like to limit the thrill rides to Disneyland and avoid them while traveling along Pacific Coast Highway," said plaintiff Ben Rockwell of Long Beach, who uses a wheelchair. . . . Many sidewalks do not have adequate access ramps and light posts and crumbling walkways hinder access, the suit said. The Americans With Disabilities Act and a similar state law require sidewalks are accessible for everyone.

July 2006

Disability claims appeals swamp veterans court

By Dennis Camire, Gannett News Service

7-14-06 -- Veterans appealing disability claims and other issues may soon be waiting much longer for decisions. . . . The U.S. Court of Appeals for Veterans Claims' case backlog has more than doubled in the past two years to 5,800. If the trend continues, veterans could be waiting more than three years for a decision from the court, said Sen. Larry Craig, R-Idaho, chairman of the Senate Veterans Affairs Committee. Currently, it takes a year, on average, for a case to go through the court. . . . "With thousands of wounded service members returning from Iraq and Afghanistan, we must ensure that our veterans will receive timely decisions on their claims," Craig said at a committee hearing on the issue. . . . For Irving M. Levin, 83, a World War II veteran appealing a disability claim decision by the Veterans Affairs Department to the court for the third time, time is running out.


At the End of its Term, The Supreme Court Denies Mentally Ill Defendants' Right to a Fair Trial

By Sherry F. Colb, FindLaw

7-14-06 -- Two weeks ago, the U.S. Supreme Court, in Clark v. Arizona, upheld Arizona's insanity defense and affirmed a trial judge's refusal to consider expert testimony about the defendant's mental illness to rebut prosecution evidence of intent. The decision moved in the direction of depriving mentally ill people of an equal right to defend themselves against criminal charges. . . . In the case before the Court, Eric Michael Clark had been convicted of killing Jeffrey Moritz, a police officer. At his trial, Clark did not dispute that he had shot Moritz to death but claimed that he did not know - as the Arizona statute required - that Moritz was a police officer. He also claimed insanity, which Arizona defines as the inability to understand that one's actions are wrong. . . . In the service of these two defenses, Clark offered psychiatric expert testimony and the observations of lay witnesses. The trial judge in the case played the roles of both judge and jury, because Clark had waived his right to a jury trial. The judge decided that he would consider the psychiatric testimony only on the question of insanity, but not on the second question of whether Clark had the knowledge or intent to kill a police officer required for him to be guilty of first-degree murder in Arizona.

Crazy Law

The Supreme Court beats up on the insanity defense.

By Emily Bazelon, Slate

7-14-06 -- The psychiatrists who testified in the case of Eric Clark agreed that he was a paranoid schizophrenic, and actively psychotic, when he shot and killed a police officer in Flagstaff, Ariz. Clark had previously been hospitalized for his mental illness. After his release, he retreated to one room in his house, rigged up a fishing line with beads and wind chimes to warn of intruders, and said that aliens were trying to capture and kill him. In the two days before the shooting, which took place in 2000 when he was 17, his parents frantically—and fruitlessly—called mental-health facilities and a lawyer in an effort to get him recommitted. . . . Yet the Arizona courts found that Clark "intentionally or knowingly" killed a police officer, convicted him of first-degree murder, and sentenced him to 25 years to life. Last week, the Supreme Court affirmed his conviction. The justices rejected the argument that Clark's right to a fair trial was violated because he wasn't allowed to offer evidence of his mental illness to counter the state's claim that he had killed the officer knowingly and on purpose.

June 2006

Rule of Law: Whose Life Is It, Anyway?

6-13-06 -- In a little-noticed decision last month, the D.C. Circuit ruled that terminally ill, mentally competent patients have a constitutional right to seek potentially life-saving drugs -- whether or not the Food and Drug Administration has given its final approval for sale. . . . The case is far from finished, however: On remand, the FDA will try to show that its prohibition is, in the jargon of such things, "narrowly tailored" to serve a "compelling governmental interest." Still, the court's reasoning in the case -- Abigail Alliance for Better Access to Development Drugs v. Eschenbach -- is rich with implications for medical freedom and constitutional jurisprudence. . . . For most of our history, as Judge Judith Rogers explained (joined by Chief Judge Douglas Ginsburg), individuals were free to take whatever medication they wanted without a doctor's prescription. It was only in 1951 that Congress created a category of prescription drugs; and, in 1962, it began requiring drug companies to conduct extensive tests to ensure the efficacy of their products. That led to long delays in the release of potentially lifesaving drugs, and to the deaths of countless patients who would gladly have borne the unknown risks for a chance at life. . . . The Abigail Alliance (named after Abigail Burroughs, a 21-year-old college student who died of cancer) petitioned the FDA on behalf of its terminally ill members, seeking access to drugs that had cleared Phase I of the lengthy testing process. (That's the point at which a new drug is deemed sufficiently safe for more extensive human testing.) . . . When that effort failed, the alliance sued to stop the FDA from barring the sale of such drugs to its members. (It was joined in its action by the conservative public interest law firm, the Washington Legal Foundation.) The district court dismissed the suit, saying that under the Fifth Amendment -- which prohibits government from depriving people of life, liberty or property without due process of law -- it could find no such right as the alliance was claiming. . . . Not so, said the appeals court. It found the right -- and found it "in" the Constitution. Given the state of constitutional jurisprudence today, that was no mean feat.

May 2006


Florida Bar study aims to enhance experiences of disabled lawyers

5-18-06 -- Florida Bar members with disabilities are encouraged to participate in the first statewide survey designed to identify the nature and impact of disabilities on the practice of law. . . . The survey will also gather information on accommodations and technical assistance that would enhance the participation of attorneys with disabilities in Florida's legal community. . . . The goal is to identify ways to provide full and equal opportunities for lawyers with disabilities in Florida. Bar members must have a registered password to conduct transactional services on the Bar's Web site to access the survey. . . . The survey is a collaboration of The Florida Bar and the Disability Independence Group. It was created as a result of the Disability-Diversity Initiative, a statewide study project of 44 lawyers with disabilities conducted by DIG during 2005. The initiative was designed to enable attorneys with disabilities to identify and discuss disability issues and barriers to participation in professional and Bar activities.


April 2006


Judge Shouts In Court, Hearing Impaired Man Sent To Jail

Video: Judge Shouts At Hearing Impaired Man, Then Jails Him

A Seminole County judge shouted at a hearing impaired man in court, and then ordered him to jail as he awaited trial for a misdemeanor charge. . . . 55-year-old Daniel Bradshaw is facing a marijuana charge, but was locked up, after Judge Ralph Eriksson determined Bradshaw was wasting the court's time last Thursday. . . . "Do you understand that? Do you understand that?," said Eriksson. "Well yes, I understand, but can I ask a question," said Bradshaw.. . . During the plea hearing, Bradshaw, who was free awaiting trial, questioned the judge about the legal proceedings. A public defender informed the judge the man had hearing problems.

February 10, 2006

Disability Advocates: Poutre Investigation Must Look Beyond DSS

Not Dead Yet, the national disability rights group, is calling for an investigation into the allegedly shoddy medicine that led to a court order for the removal of life-support from Haleigh Poutre just days after her admission with a severe brain injury. She is now responsive and interactive four months after being declared "virtually brain dead" and in an "irreversible coma." If the court order had not been appealed, Haleigh Poutre would now be dead.

Boston, MA (PRWEB) -- Not Dead Yet, the national disability rights group, is calling for an investigation into the allegedly shoddy medicine that led to a court order for the removal of life-support from Haleigh Poutre just days after her admission with a severe brain injury. She is now responsive and interactive four months after being declared "virtually brain dead" and in an "irreversible coma." If the court order had not been appealed (Massachusetts Supreme Judicial Court, Docket #SJC-09629), Haleigh Poutre would now be dead.

Brief of Amici Curiae In Re Guardianship of Theresa Marie Schiavo


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"I do not charge the judges with wilful and ill-intentioned error; but honest error must be arrested where its toleration leads to public ruin. As for the safety of society, We commit honest maniacs to Bedlam; so judges should be withdrawn from their bench whose erroneous biases are leading us to dissolution. It may, indeed, injure them in fame or in fortune; but it saves the republic, which is the first and supreme law."
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