Macaraeg v. Dignity Health

• Court: District Court, D. Arizona
• Decided: June 3, 2025
• Docket: 2:23-cv-00990
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Cherie Macaraeg, et al., No. CV-23-00990-PHX-MTL

10 Plaintiffs, ORDER

11 v.

12 Dignity Health,

13 Defendant. 14 15 Before the Court is Defendant Dignity Health’s Motion for Summary Judgment 16 (Doc. 53). The motion is fully briefed. (Docs. 53, 65, 67, 71, 72.)1 The Court held oral 17 argument on May 27, 2025. 18 I. BACKGROUND 19 Marie Rose Lennox Wing was deaf and used American Sign Language (“ASL”) to 20 communicate. (See Doc. 71 at 24:23-25:2.) After falling outside her home, Ms. Wing was 21 taken to the emergency room at Chandler Regional Medical Center—a hospital operated 22 by Dignity Health. (Id. at 114; Doc. 1 ¶ 10; Doc. 11 ¶ 10.) She received a CT scan, X-rays, 23 and treatment for abrasions on her knees and elbows. (Doc. 71 at 114-15.) Ms. Wing’s 24 granddaughter, Plaintiff Clair Rosewood, acted as an ASL interpreter during the visit. (See 25 id. at 103:4-19, 114.) 26 About two weeks later, Ms. Wing was taken to Mercy Gilbert Medical 27 Center—another Dignity Health hospital—with severe pain and confusion. (See id. at

28 1 Both parties filed sealed exhibits with their motion briefing. The five docket entries represent the parties’ briefing and accompanying exhibits. 1 65:1-19; Doc. 1 ¶ 10; Doc. 11 ¶ 10.) Hospital staff attributed her condition to dehydration 2 and a previously undiagnosed rib fracture. (See Doc. 71 at 116-17.) Ms. Wing was treated 3 there for eight days. (See id. at 116.) Despite complaining of increasing pelvic pain 4 throughout her stay, hospital staff believed Ms. Wing’s condition had stabilized to the point 5 where discharge to a rehabilitation facility was appropriate. (See id.) Ms. Wing’s daughter, 6 Plaintiff Cherie Macaraeg, was at the hospital every day during the first stay. (Id. at 7 77:11-15.) She provided some interpretive assistance between her mother and hospital 8 staff. (See id. at 75:12-76:11.) 9 Ms. Wing spent five days at a rehabilitation facility. (Id. at 126-27.) Her 10 granddaughter, Plaintiff Audrey Bumbernick, visited during the daytime and provided 11 some interpretive assistance to therapy staff. (See Doc. 53-2 at 78:8-15, 80:13-15.) Ms. 12 Wing returned to Mercy Gilbert Medical Center after experiencing three straight days of 13 nausea, vomiting, abdominal pain, and lethargy. (See Id. at 82:10-83:4; Doc. 65 at 6.) 14 Upon her return, hospital staff evaluated Ms. Wing and readmitted her with severe 15 sepsis. (Doc. 65 at 6.) Her two sons—Plaintiffs William and Chester Wing—drove in from 16 Utah following readmission. (Doc. 67-1 at 9:6-19.) Both sons, and Plaintiff Cherie 17 Macaraeg, provided some interpretive assistance during the second hospital stay. (See id. 18 at 12:6-16; Doc. 65 at 8, 11.) 19 Ms. Wing passed away about seven days after readmission and about one month 20 after her fall. (Doc. 71 at 127.) 21 This lawsuit followed Ms. Wing’s death. The complaint asserts claims on behalf of 22 the Estate of Marie Rose Lennox Wing (the “Estate”) and Plaintiffs Cherie Macaraeg, 23 Audrey Bumbernick, William Wing, Chester Wing, and Clair Rosewood (the “Individual 24 Plaintiffs”). (Doc. 1 ¶¶ 1-9, Doc. 48.) Relief is sought under the Americans with Disabilities 25 Act (“ADA”), Section 504 of the Rehabilitation Act (“Section 504”), the Patient Protection 26 and Affordable Care Act (“ACA”), and the Arizonans with Disabilities Act (“AzDA”). 27 Plaintiffs argue Dignity Health violated these laws by requiring Ms. Wing to rely on her 28 family members for ASL interpretation. (See Doc. 1 ¶¶ 67-68, ¶ 82. ¶ 102, ¶¶ 119-20.) 1 Plaintiffs further argue a live, in-person interpreter was required for each hospital visit. 2 (See id.) Had an interpreter been present, “hospital staff would have known about [Ms. 3 Wing’s] pain and worsening condition,” possibly preventing her death. (See Doc. 1 4 ¶¶ 50-51.) The complaint seeks declaratory relief, an injunction, and damages. (Id. at 5 16-19.) 6 II. LEGAL STANDARD 7 Summary judgment is appropriate when the evidence, viewed in the light most 8 favorable to the non-moving party, demonstrates “that there is no genuine dispute as to any 9 material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 10 56(a). A genuine issue of material fact exists when “the evidence is such that a reasonable 11 jury could return a verdict for the nonmoving party,” and material facts are those “that 12 might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, 13 Inc., 477 U.S. 242, 248 (1986). At the summary judgment stage, “[t]he evidence of the 14 non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” 15 Id. at 255 (citation omitted); see also Jesinger v. Nev. Fed. Credit Union, 24 F.3d 1127, 16 1131 (9th Cir. 1994) (holding the court determines whether there is a genuine issue for trial 17 but does not weigh the evidence or determine the truth of matters asserted). 18 III. DISCUSSION 19 A. Standing 20 Dignity Health challenges Plaintiffs’ standing to sue. It argues all Plaintiffs lack 21 standing to bring claims under the ADA and the AzDA. (Doc. 53-1 at 13-14.) It further 22 argues the Individual Plaintiffs cannot seek relief under Section 504 and the ACA.2 23 “Article III of the United States Constitution limits federal court jurisdiction to 24 ‘actual, ongoing, cases or controversies.’” Wolfson v. Brammer, 616 F.3d 1045, 1053 (9th 25 Cir. 2010) (quoting Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990)). Federal courts 26 determine when an ongoing case or controversy exists through the doctrine of standing. 27 2 During oral argument, Dignity Health repeatedly stated only the Estate could pursue 28 damages under Section 504 and the ACA. The Court construes this argument as challenging the Individual Plaintiffs’ standing under both statutes. 1 See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). To establish standing, a party 2 invoking federal jurisdiction must demonstrate they have “(1) suffered an injury in fact, 3 (2) that is fairly traceable to the challenged conduct of the [opposing party], and (3) that is 4 likely to be redressed by a favorable judicial decision.” See Lake v. Fontes, 83 F.4th 1199, 5 1202-03 (9th Cir. 2023) (quoting Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016)). 6 1. Standing Under the ADA and the AzDA 7 Plaintiffs bring claims under Title III of the ADA and the AzDA.3 (Doc. 1 at 7-10, 8 14-16.) Title III states “[n]o individual shall be discriminated against on the basis of 9 disability” for “services” in places of public accommodation. 42 U.S.C. § 12182(a). 10 Discrimination includes “a failure to take such steps as may be necessary to ensure that no 11 individual with a disability is . . . denied services . . . or otherwise treated differently than 12 other individuals because of the absence of auxiliary aids and services.” 42 U.S.C. 13 § 12182(b)(2)(A)(iii). Only individuals can pursue relief under Title III. 42 U.S.C. 14 § 12188(a). The only remedy available is injunctive relief. Id. 15 Both disabled and non-disabled individuals can pursue relief under Title III. For 16 non-disabled individuals, Title III confers associational standing for discrimination 17 occurring because of their relationship with a disabled person. See 42 U.S.C. 18 § 12182(b)(1)(E); George v. AZ Eagle TT Corp., 961 F. Supp. 2d 971, 974 (D. Ariz. 2013). 19 This Court has previously explained associational discrimination requires a “specific, 20 direct, and separate injury” under Article III. See George, 961 F. Supp. 2d at 974 (quoting 21 Glass v. Hillsboro Sch. Dist. 1J, 142 F. Supp. 2d 1286, 1288 (D. Or. 2001)). An injury is 22 separate and distinct when it harms a non-disabled person’s individual rights. See id. at 23 975. Injuries that are entirely derivative or ancillary to another person’s discrimination, 24 however, are not enough. See Glass, 142 F. Supp. 2d at 1289-90. 25 The Individual Plaintiffs testified in their depositions that Ms. Wing, if given the 26 option, would have preferred a live, in-person interpreter to communicate with hospital

27 3 The AzDA is intended to “mirror Title III of the ADA.” Tauscher v. Phx. Bd. of Realtors, Inc., 931 F.3d 959, 962 n.3 (9th Cir. 2019). This means both laws have the same Article 28 III standing requirements. Strojnik v. Hyatt Hotels Corp., CV-21-00741-PHX-DWL, 2022 WL 504480, at *9 (D. Ariz. Feb. 18, 2022). 1 staff. (See Doc. 71 at 44:8-10.) They testified that they interpreted for Ms. Wing only 2 because Dignity Health lacked readily available resources. (See id. at 42:16-43:5.) The 3 Individual Plaintiffs argue having to step outside of their supportive family roles to become 4 interpreters was discriminatory; it treated them differently than companions of non-deaf 5 patients. (See Doc. 67 at 17.) 6 The Individual Plaintiffs do not present evidence showing they intended to utilize 7 interpretive services. Nor do they provide support for their argument remaining in a 8 supportive family role is an individual right. See George, 967 F. Supp. 2d at 976. Ms. Wing 9 was the only person harmed by Dignity Health’s supposed lack of ASL interpretive 10 services. Any harm experienced by the Individual Plaintiffs was derivative or ancillary to 11 her injury. The Individual Plaintiffs lack a separate and distinct injury to confer 12 associational standing under Title III and the AzDA. See Glass, 142 F. Supp. 2d at 1289-90. 13 The Estate also cannot bring claims under Title III or the AzDA. Only individuals 14 can pursue injunctive relief under Title III. 42 U.S.C. § 12188(a). When an individual dies, 15 their Title III claim is “moot as there is necessarily no prospect for future injury.” Kalani 16 v. Starbucks Coffee Co., 698 Fed. Appx. 883, 885 (9th Cir. 2017). Ms. Wing’s death 17 renders the Estate’s Title III and AzDA claims moot. 18 Neither the Estate nor the Individual Plaintiffs can pursue relief under Title III or 19 the AzDA. Defendant Dignity Health is granted summary judgment for both claims. 20 2. Individual Plaintiffs’ Standing Under Section 504 and the ACA 21 Plaintiffs bring claims under Section 504 and the ACA.4 (Doc. 1 at 10-14.) Section 22 504 states “[n]o otherwise qualified individual with a disability in the United 23 States . . . shall, solely by reason of his or her disability, be excluded from the participation 24 4 Discrimination claims under Section 504 and the ACA have the same elements. Bustos v. 25 Dignity Health, CV-17-02882-PHX-DGC, 2019 WL 3532158, at *1 (D. Ariz. Aug. 2, 2019); Schmitt v. Kaiser Found. Health Plan of Wash., 965 F.3d 945, 954 (9th Cir. 2020) 26 (“[W]e can assume that the case law construing the Rehabilitation Act generally applies to claims under [the ACA] for disability discrimination . . . .”). Both statutes also have 27 substantially similar legal standards. Doe v. CVS Pharmacy, Inc., 982 F.3d 1204, 1210 (9th Cir. 2020) (stating discrimination claims under the ACA “must allege facts adequate to 28 state a claim under Section 504”). The similar standards mean both statutes have the same standing requirements. 1 in, be denied the benefits of, or be subjected to discrimination under any program or activity 2 receiving Federal financial assistance.” 29 U.S.C. § 794(a). Section 504 gives a remedy to 3 “any person aggrieved by any act or failure to act by any recipient of” federal financial 4 assistance. 29 U.S.C. § 794a(a)(2). The use of “any person” signals Congress’s “intention 5 to define standing to bring a private action under [section 504] . . . as broadly as is 6 permitted by Article III of the Constitution.” Barker v. Riverside Cnty. Off. of Educ., 584 7 F.3d 821, 826 (9th Cir. 2009). Section 504 further must be interpreted consistently with the 8 ADA. See Payan v. L.A. Cmty. Coll. Dist., 11 F.4th 729, 734 n.2 (9th Cir. 2021) (“[W]e 9 note that the ADA and section 504 are interpreted coextensively because there is no 10 significant difference in the analysis of rights and obligations created by the two Acts.” 11 (internal quotation marks)). 12 Section 504’s consistent interpretation with the ADA means it allows for claims of 13 associational discrimination. See Cortez v. City of Porterville, 5 F. Supp. 3d 1160, 1166 14 (E.D. Cal. 2014). But, as discussed above, the Individual Plaintiffs do not present evidence 15 showing an injury separate and distinct from Ms. Wing. See Payan, 11 F.4th at 734 n.2. 16 Dignity Health is granted summary judgment for the Individual Plaintiffs’ claims under 17 Section 504 at the ACA. The Individual Plaintiffs lack standing to continue in this action. 18 Only the Estate’s claims under Section 504 and the ACA remain. 19 B. Effective Communication Under Section 504 and the ACA 20 Dignity Health challenges the merits of the Estate’s claims under Section 504 and 21 the ACA. It argues “facts support the conclusion that no discriminatory policy or practice 22 existed, and that summary judgment in Dignity Health’s favor” is appropriate. (See Doc. 23 53-1 at 16.) Alternatively, if summary judgment is not appropriate, Dignity Health argues 24 the Estate cannot recover compensatory damages. (Doc. 72 at 13-14.) 25 1. Effective Communication Claim 26 Discrimination claims under Section 504 and the ACA have the same elements. 27 Bustos, 2019 WL 3532158, at *1; Schmitt, 965 F.3d at 954 (9th Cir. 2020). A 28 discrimination claim, under these circumstances, requires showing (1) the plaintiff is a 1 qualified individual with a disability; (2) who “was either excluded from participation in 2 or denied the benefits of a public entity’s services, programs, or activities, or was otherwise 3 discriminated against by the public entity; and (3) such exclusion, denial of benefits, or 4 discrimination was by reason of [the plaintiff’s] disability.” Updike, 870 F.3d at 949 5 (quoting Duvall v. City of Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001). Dignity Health 6 concedes the first two elements. The parties primarily disagree over the third element, 7 namely whether Dignity Health provided “effective communication” to Ms. Wing during 8 her hospital visits. (See Doc. 71 at 14-18; Doc. 72 at 14-15); See Bax v. Drs. Med. Ctr. of 9 Modesto, Inc., 52 F.4th 858, 866 (9th Cir. 2022) (explaining effective communication 10 comes from implementing regulations promulgated by the Department of Health and 11 Human Services). 12 Section 504 and the ACA “include an affirmative obligation for public entities to 13 make benefits, services, and programs accessible to people with disabilities.” Updike v. 14 Multnomah Cnty., 870 F.3d 939, 949 (9th Cir. 2017). For individuals with hearing 15 disabilities, that obligation includes taking “appropriate steps to ensure [] communications 16 with disabled persons are as effective as communications with others.” See id. (quoting 28 17 C.F.R. § 35.160(a)) (internal quotation marks omitted). Effective communication, in the 18 hospital setting, requires assessing “whether the hospital provided the kind of auxiliary aid 19 necessary to ensure that a deaf patient was not impaired in exchanging medically relevant 20 information with hospital staff.” Silva v. Baptist Health S. Fla., Inc., 856 F.3d 824, 835 21 (11th Cir. 2017); see also Bax, 52 F.4th at 866-67 (citing Silva to articulate the standard 22 for effective communication). 23 Assessing whether a hospital “provided appropriate auxiliary aid . . . to afford 24 effective communication is a fact-intensive exercise.” Bax, 52 F.4th at 867 (quoting 25 Updike, 870 F.3d at 958) (internal quotation marks omitted). There is no categorical rule 26 defining when auxiliary aid is required. See id. at 867. The test instead is context specific, 27 requiring a day-to-day analysis that weighs factors like “the method of communication 28 used by the individual; the nature, length, and complexity of the communication involved; 1 and the context in which the communication is taking place.” Id. at 867, 869 (quoting 2 Updike, 870 F.3d at 950) (internal quotation marks omitted). A hospital, as the entity 3 covered by Section 504 and the ACA, bears “the ultimate decision as to what measures to 4 take” to ensure effective communication occurs. See Tauscher, 931 F.3d at 963 (quoting 5 28 C.F.R. § 36.303(c)(1)(ii)). Requests for accommodation “perform[] a signaling 6 function” that may put a hospital on notice auxiliary aids are needed. See Bax, 52 F.4th at 7 869 (quoting Pierce v. District of Columbia, 128 F. Supp. 3d 250, 270 (D.D.C. 2015)). 8 Dignity Health presents Ms. Wing’s medical records to show that effective 9 communication occurred. (Doc. 72 at 13.) The records indicate hospital staff used video 10 remote interpreting (“VRI”) services during some visits with Ms. Wing. (See, e.g., Doc 65 11 at 4.) On other occasions, staff communicated through a bedside ASL interpreter or written 12 notes. (See id. at 7, 24.) The medical records also indicate Ms. Wing sometimes refused 13 interpretive services offered by Dignity Health in favor of family members acting as 14 interpreters. (See Doc. 65 at 8.) Each relative had a different level of ASL proficiency. 15 In response, the Estate offers deposition testimony from the Individual Plaintiffs 16 stating that family members acted as interpreters because Dignity Health lacked ASL 17 resources.5 (See, e.g., Doc. 71 at 108:20-109:6.) Some of the conversations interpreted by 18 family members included discussions about Ms. Wing’s symptoms and medical conditions. 19 (See id. at 75:11-76:11.) The Estate argues any interpretations involving medical terms was 20 not effective communication because the family members did not have professional 21 training in ASL. (Doc. 71 at 3-4, 15-16.) 22 Both parties present competing evidence on Ms. Wing’s ability to effectively 23 communicate. Dignity Health presents evidence indicating Ms. Wing chose to have family 24 members interpret for her and denied services offered by hospital staff. (See Doc. 65 at 8.) 25 While the Estate presents evidence stating family members only interpreted due to a lack 26 of available services from Dignity Health. (See Doc. 71 at 108:20-109:6.) 27

28 5 The record is unclear as to whether the Individual Plaintiffs were the only family members who interpreted for Ms. Wing or if other family members also interpreted for her. 1 The Court finds this creates a genuine dispute of material fact for the Estate’s 2 Section 504 and ACA claims. If family members were forced to interpret conversations 3 about symptoms and medical conditions, the claims would likely succeed because family 4 members lacked professional ASL training and risked misinterpreting medical terms. See 5 Bax, 52 F.4th at 867 (stating the test is whether aid was provided to prevent a real hindrance 6 to communication). On the other hand, if Ms. Wing declined interpretive services offered 7 by Dignity Health and chose to rely on family members, the claims would fail. See id. at 8 866 (noting services only need to be available). Choosing between the competing evidence 9 is best left for the jury. 10 Dignity Health correctly notes it is undisputed Mercy Gilbert Medical Center and 11 Chandler Regional Medical Center had “policies, practices, and resources” for ASL 12 interpretation in place during Ms. Wing’s visits. (Doc. 53-1 at 16.) But summary judgment 13 would require showing Ms. Wing could effectively communicate in each interaction with 14 hospital staff. See Bax, 52 F.4th at 867. Meeting this standard requires Dignity Health 15 provide evidence supporting a day-to-day, context-specific explanation of how hospital 16 staff interacted with Ms. Wing. See id. at 867, 869. The evidence provided could support a 17 reasonable jury finding interpretive services were used on some occasions. (See, e.g., Doc 18 65 at 4.) And it also could support a reasonable jury finding Ms. Wing, on other occasions, 19 refused services in favor of family members interpreting on her behalf. (See id. at 8.) The 20 evidence, however, does not provide the complete day-to-day demonstration needed for 21 summary judgment. See Bax, 52 F.4th at 867, 869. Entire days are missing from the medical 22 records provided by Dignity Health in support of its motion for summary judgment. See 23 Claar v. Burlington N.R.R. Co., 29 F.3d 499, 504 (9th Cir. 1994) (stating no party should 24 presume that the Court will scour the record for facts or theories that might support either 25 party’s case). Reasonable inferences must be drawn in favor of the Estate, as the 26 non-moving party. Summary judgment will be denied for this issue. 27 28 1 2. Compensatory Damages 2 Title VI includes an implied right of action. See Franklin v. Gwinnett Cnty. Pub. 3 Schs., 503 U.S. 60, 72-73 (1992). Inherent in that right is the ability to pursue compensatory 4 damages. See id. Compensatory damages, however, are only available when a federal 5 funding recipient intentionally discriminates against a disabled person. See Updike, 870 6 F.3d at 950. Within the context of Section 504 and the ACA, intentional discrimination is 7 an “additional hurdle” to the normal elements of a discrimination claim. See Bax, 52 F.4th 8 at 866; Schmitt, 965 F.3d at 954. 9 Intentional discrimination requires deliberate indifference. See Duvall v. Cnty. of 10 Kitsap, 260 F.3d 1124, 1139 (9th Cir. 2001). The Ninth Circuit Court of Appeals explains 11 deliberate indifference as requiring “both knowledge that a harm to a federally protected 12 right is substantially likely” and that a funding recipient failed to act on the likelihood. See 13 id. A plaintiff satisfies the first element—substantial likelihood of harm to a federally 14 protected right—by alerting the funding recipient about the “need for accommodation (or 15 where the need for accommodation is obvious, or required by statute or regulation).” Id. 16 The second element—failure to act on a substantial likelihood of harm—requires “conduct 17 that is more than negligent and involves an element of deliberateness.” Id. 18 The Estate presents deposition testimony stating family members requested that 19 Dignity Health provide interpretive services that were not fulfilled. (Doc. 71 at 86:5-87:9.) 20 In response, Dignity Health presents medical records indicating Ms. Wing refused services 21 in favor of family members acting as interpreters. (See Doc. 65 at 8.) Dignity Health argues 22 Ms. Wing’s refusals show any interpreting done by family members was because of Ms. 23 Wing’s preferences, not because interpretive services were not offered. (See Doc. 72 at 13.) 24 The Court finds this evidence creates a genuine issue of material fact on the substantial 25 likelihood element. A jury could conclude alerting Dignity Health about the need for an 26 accommodation provided sufficient notice. Duvall, 260 F.3d at 1139. But a jury could also 27 conclude Ms. Wing, by continually refusing services offered by Dignity Health, waived 28 any accommodations. See Bax, 52 F.4th at 866 (noting auxiliary aids only need to be 1 available). 2 Plaintiffs also present deposition testimony stating hospital staff exhibited a 3 noticeable frustration toward Ms. Wing due to her need to communicate through ASL. 4 (Doc. 71 at 94:13-95:16.) One example includes Plaintiff Cherie Macaraeg testifying about 5 how a nurse was “very cold and off-putting” toward Ms. Wing, making no effort to 6 communicate with her even though the nurse was responsible for Ms. Wing during night 7 shifts. (See id.) Dignity Health, in response, again presents evidence showing Ms. Wing 8 refused services offered by hospital staff, arguing the refusals indicate any lack of services 9 was because of Ms. Wing’s preferences. (See Doc. 65 at 8; Doc. 72 at 13.) The Court finds 10 this evidence creates a genuine issue of material fact on the failure to act element. The 11 behavior described in Plaintiff Cherie Macaraeg’s testimony provides some evidence that 12 could lead a jury to finding deliberateness. By contrast, if a jury determines that Dignity 13 Health continued to offer services but was refused, compensatory damages would be 14 unavailable. 15 With there being a genuine issue of material fact on both elements of compensatory 16 damages, summary judgment is denied. 17 C. Other Relief Under Section 504 and the ACA 18 Dignity Health argues the Estate cannot pursue injunctive relief under Section 504. 19 (See Doc. 53-1 at 14-16.) It also argues Cummings v. Premier Rehab Keller, P.L.L.C., 596 20 U.S. 212 (2022), precludes the Estate from recovering non-compensatory money damages 21 as a matter of law. (See Doc. 53-1 at 14-15; Doc. 72 at 6-12.) 22 1. Injunctive Relief 23 A plaintiff asserting claims under Section 504 can pursue both injunctive relief and 24 damages, depending on the circumstances and nature of the case. See Ervine v. Desert View 25 Reg’l Med. Ctr. Holdings, LLC, 753 F.3d 862, 869 (9th Cir. 2014). Injunctive relief under 26 Section 504 requires demonstrating a threat of future harm. See Updike, 870 F.3d at 948. 27 “[P]ast wrongs are evidence bearing on whether there is a real and immediate threat of 28 repeated injury.” Id. (quoting O’Shea v. Littleton, 414 U.S. 488, 496 (1974)). But past 1 wrongs alone do not in themselves amount to a threat of future harm. See id. (citing City of 2 Los Angeles v. Lyons, 461 U.S. 95, 103 (1983)). A plaintiff instead must point to policies 3 or conduct that pose a realistic possibility of future wrongful behavior. See id. A plaintiff 4 then must present evidence indicating the future wrongful behavior will result in personal 5 harm. See id. Failure to satisfy either requirement results in an injury being too speculative 6 for injunctive relief. Id. 7 The Estate cannot pursue injunctive relief because Ms. Wing’s death means there is 8 “necessarily no prospect for future injury.” Kalani, 698 Fed. Appx. at 885. Dignity Health 9 is granted summary judgment on this issue. 10 2. Other Money Damages 11 Besides compensatory damages, the Estate seeks emotional distress damages and 12 expectation damages under Section 504 and the ACA. (Doc. 71 at 208-09.) 13 i. Emotional Distress Damages 14 In Cummings, the United States Supreme Court considered “whether emotional 15 distress damages are available under the Spending Clause statutes.” 596 U.S. at 220. The 16 Court identified “Spending Clause statutes” as legislation passed under Congress’s 17 authority to “fix the terms on which it shall disburse federal money.” Id. at 217-18. The 18 Court identified certain Spending Clause statutes enacted to “prohibit[] recipients of federal 19 financial assistance from discriminating based on certain protected grounds.” Id. at 217-18. 20 The two statutes directly at issue in Cummings were the Rehabilitation Act and the 21 Affordable Care Act. Id. at 218. 22 Laws passed by Congress under the Spending Clause “operate[] based on consent.” 23 Id. at 219. The government imposes conditions on federal funds, and the recipient agrees 24 to those conditions by accepting federal money. See id. This creates a dynamic similar to 25 contract law where a recipient “cannot knowingly accept the deal with the [f]ederal 26 [g]overnment unless they would clearly understand . . . the obligations that would come 27 along with doing so.” Id. (quoting Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 28 U.S. 291, 296 (2006)) (internal quotation marks omitted). The Court explained these 1 similarities required applying a clear-notice rule to the issue of emotional distress damages. 2 See id.; Roe ex rel. Roe v. Critchfield, 2025 WL 1486985, at *10-11 (9th Cir. 2025) 3 (explaining Cummings combines with Pennhurst State School & Hospital v. Halderman, 4 451 U.S. 1 (1981), to require any conditions on federal money be unambiguous). 5 With clear notice required, the Court shifted its inquiry to “[w]ould a prospective 6 funding recipient, at the time it ‘engaged in the process of deciding whether [to] accept’ 7 federal dollars, have been aware that it would” potentially face emotional distress damages 8 as a form of liability. Id. at 220 (quoting Arlington, 548 U.S. at 296). The Court held 9 recipients were not on notice because a typical breach of contract claim only allows for the 10 recovery of compensatory damages and injunctive relief. See id. at 221. Without clear 11 notice, the Court concluded it could not “treat federal funding recipients as having 12 consented to be subject to damages for emotional distress.” Id. at 222. Thus, claimants 13 under the Rehabilitation Act and the ACA could not recover emotion distress damages. Id. 14 The Estate attempts to distinguish this case from Cummings. (Doc. 67 at 12.) It 15 argues Cummings “only addressed the availability of emotional distress damages under 16 Title VI and the statutes incorporating its remedies.” (Id.) Here, the Estate attempts to assert 17 “emotional distress damages independent of Title VI,” which is claims is a different type 18 of emotional distress damages. (See id.) 19 The question before the Court in Cummings was “whether emotional distress 20 damages are available under” the Rehabilitation Act and the ACA generally. See 596 U.S. 21 at 218, 222 (“It follows that [emotional distress] damages are not recoverable under the 22 Spending Clause statues we consider here.”). There was no specific limitation to Title VI. 23 See id. at 217-18, 222. The Court’s reasoning applies to all legislation passed under 24 Congress’s authority to “fix the terms on which it shall disburse federal money.” See id. 25 Indeed, it was the contract-law dynamic created by Congress’s Spending Clause power that 26 prompted the Court to find funding recipients are only liable to the extent they are on notice 27 certain damages are available when accepting federal money. See id. at 222. The Ninth 28 Circuit Court of Appeals, recognizing this understanding, has applied Cummings’ 1 reasoning to areas outside of Title VI. See, e.g., Roe ex rel. Roe, 2025 WL 1486985, at 2 *10-11 (applying Cummings to Title IX of the Education Amendments of 1972). 3 The Court finds Cummings entirely precludes the recovery of emotional distress 4 damages under Section 504 and the ACA. Dignity Health is granted summary judgment on 5 this issue. 6 ii. Expectation Damages 7 The Estate quantifies its expectation damages as costs Dignity Health “saved by 8 conscripting Plaintiffs to interpret.” (Doc. 67 at 10.) Alternatively, the Estate suggests “the 9 Court may consider hospital bills because Plaintiffs did not receive the full value of the 10 services in the way a hearing patient would.” (Id.) 11 Cummings instructs any remedy sought under Section 504 or the ACA must be 12 “provided in the relevant legislation” or “traditionally available in suits for breach of 13 contract.” 596 U.S. at 220-21. The damages sought by the Estate are best categorized as 14 consequential damages. See Richard A. Lord, 24 Williston on Contracts § 64:16 (4th ed. 15 2022) (“Consequential damages are those damages that do not flow directly and 16 immediately from the breach, but only from some of the consequences or results of the 17 breach.”). Expectation damages are a subcategory of consequential damages and are 18 generally available under contract law principles. See id. § 64.3; Restatement (Second) of 19 Contracts § 347 cmt. A (Am. L. Inst. 1981) (“Contract damages are ordinarily based on the 20 injured party’s expectation interest and are intended to give him the benefit of his bargain 21 by awarding him a sum of money that will, to the extent possible, put him in as good a 22 position as he would have been in had the contract been performed.”). 23 Measuring expectation damages requires considering: “(a) the loss in the value of 24 the other party’s performance caused by its failure or deficiency, plus; (b) any other loss, 25 including incidental or consequential loss, caused by the breach, less; (c) any cost or other 26 loss that he had avoided by not having to perform.” Restatement (Second) of Contracts, 27 supra, § 347. The recovery of expectation damages is limited to “an amount that the 28 evidence permits to be established with reasonable certainty.” Id. § 352. 1 Expectation damages are available under Cummings because they are “traditionally 2 available in suits for breach of contract.” See 596 U.S. at 220-21. This means, in theory, 3 the Estate can pursue expectation damages. See Luke v. Lee County., 1:20-CV-388-RP, 4 2023 WL 6141594, at *1 (W.D. Tex. Sept. 20, 2023) (collecting cases related to the 5 availability of expectation damages post-Cummings). But the Estate does not present any 6 evidence supporting its argument Dignity Health saved money by conscripting Plaintiffs 7 to interpret. (See Doc. 67 at 10.) Nor does it present evidence supporting its argument Ms. 8 Wing “did not receive the full value of services in the way a hearing patient would.” (See 9 id.) As the party with the burden of proof at trial, the Estate must make some showing 10 sufficient to establish the existence of a genuine issue of material fact on damages. See 11 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The Estate has failed to meet the 12 “reasonable certainty” standard required for expectation damages. See Restatement 13 (Second) of Contracts, supra, § 352. Dignity Health is granted summary judgment on this 14 issue. 15 IV. CONCLUSION 16 For the foregoing reasons, 17 . . . . 18 . . . . 19 . . . . 20 . . . . 21 . . . . 22 . . . . 23 . . . . 24 . . . . 25 . . . . 26 . . . . 27 . . . . 28 . . . . 1 IT IS THEREFORE ORDERED granting in part and denying in part Defendant || Dignity Health’s Motion for Summary Judgment (Doc. 53) as discussed herein. The motion is granted, and summary judgment is awarded to Dignity Health on the Estate’s claims under the ADA and AzDA. Summary judgment is also awarded to Dignity Health on the 5 || issues of injunctive relief, emotional distress damages, and expectation damages under 6 || Section 504 and the ACA. The Estate cannot pursue those forms of relief at trial. Finally, summary judgment is awarded to Dignity Health on the Individual Plaintiffs’ claims under 8 || the ADA, AzDA, Section 504, and the ACA. The Individual Plaintiffs lack standing and || cannot proceed in this action. The motion for summary judgment is denied in all other 10 || respects. 11 Dated this 3rd day of June, 2025. Wichal T. Hburde Michael T. Liburdi 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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