Macaraeg v. Dignity Health

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 are Plaintiffs’ Motion for Reconsideration of Order on Defendant’s 16 Motion for Summary Judgment (Doc. 79) and Plaintiffs’ Motion for Leave to File a Reply 17 to Defendant’s Response to Motion for Reconsideration (Doc. 83). Both motions concern 18 Plaintiffs’ request for the Court to reconsider its prior order granting in part and denying in 19 part Defendant Dignity Health’s motion for summary judgment (Doc. 76). The Court will 20 deny both. 21 I. 22 Plaintiffs move for leave to file a reply brief supporting their motion for 23 reconsideration. The Court previously ordered “[n]o reply will be permitted without 24 separate order from the Court.” (Doc. 80.) The Court has not asked for a reply brief. Nor 25 does it find a reply brief necessary to decide the motion for reconsideration. Therefore, the 26 Court will deny Plaintiffs’ motion for leave to file a reply brief. (Doc. 83). 27 . . . . 28 . . . . 1 II. 2 The standard of review for motions for reconsideration is Local Rule of Civil 3 Procedure 7.2(g). Motions for reconsideration will ordinarily be denied “absent a showing 4 of manifest error or a showing of new facts or legal authority that could not have been 5 brought to [the Court’s] attention earlier with reasonable diligence.” LRCiv. 7.2(g)(1). 6 “Motions for reconsideration are disfavored . . . and are not the place for parties to make 7 new arguments not raised in their original briefs. Nor is reconsideration to be used to ask 8 the Court to rethink what it has already thought.” Motorola, Inc. v. J.B. Rodgers Mech. 9 Contractors, Inc., 215 F.R.D. 581, 582 (D. Ariz. 2003) (citations omitted). 10 Plaintiffs provide five reasons the Court should reconsider its prior summary 11 judgment order: (1) the Court misapplied Cummings v. Premier Rehab Keller, P.L.L.C., 12 596 U.S. 212 (2022); (2) the Court misapplied the standing doctrine; (3) the Court did not 13 address relevant federal regulations; (4) the Court improperly required a quantification of 14 damages; and (5) the Court “overlooked the Arizonans with Disabilities Act’s independent 15 statutory authorization for compensatory damages.” (Doc. 79 at 2.) 16 A. Cummings v. Premier Rehab Keller, P.L.L.C. 17 The Court’s prior order held Cummings precludes recovery of emotional distress 18 damages under the Rehabilitation Act and Affordable Care Act. (Doc. 76 at 13.) Plaintiffs 19 argue this holding was erroneous. (Doc. 79 at 3-4.) Alternatively, they assert the Court 20 must reconsider its reading of Cummings because the United States Supreme Court’s recent 21 decision in A.J.T. v. Osseo Area Schools, 605 U.S. 335 (2025), acts as an intervening 22 change of law. (Id. at 5.) 23 1. Scope of Cummings 24 Plaintiffs argue the Court committed manifest error by applying Cummings beyond 25 Title VI remedies. (Id. at 3-4.) The Court already considered this question when deciding 26 its prior order. (Doc. 76 at 13.) It will not consider it again here. Motorola, Inc., 215 F.R.D. 27 at 582 (stating parties cannot use motions for reconsideration to revive previously 28 considered arguments). 1 2. A.J.T. v. Osseo Area Schools 2 About two weeks after the Court ruled on Dignity Health’s motion for summary 3 judgment, the United States Supreme Court issued its decision in A.J.T. There, the Court 4 considered whether different standards could apply to different types of ADA and 5 Rehabilitation Act claims. 605 U.S. at 344. This question concerned precedent in the Eighth 6 Circuit Court of Appeals requiring education-based claims to satisfy a “heightened 7 showing of ‘bad faith or gross misjudgment’” when non-education claims only had to show 8 deliberate indifference. 605 U.S. at 344-45. The Court in A.J.T. held “ADA and 9 Rehabilitation Act claims based on educational services should be subject to the same 10 standards that apply in other disability discrimination contexts.” Id. at 345. It explained 11 “there is no textual indication that the protections of either . . . statute apply with lesser 12 force to certain qualified individuals bringing certain kinds of claims.” Id. 13 A.J.T. did not address Cummings. Nor do Plaintiffs base their claims on educational 14 services. Yet despite these obvious differences, Plaintiffs still argue A.J.T. represents an 15 intervening change of law because it observes courts “do no[t] decide issues . . . outside of 16 the question presented” and remedies under the Rehabilitation Act are “expansive and 17 unqualified.” (Doc. 79 at 5.) The observation about courts not deciding issues “outside of 18 the question presented” refers to parties raising new arguments on appeal. 605 U.S. at 350. 19 And the reference to remedies being “expansive and unqualified” refers to Rehabilitation 20 Act claimants, regardless of the type of claim being brought, having an equal opportunity 21 to pursue relief. Id. at 345. These propositions neither cast doubt on Cummings nor 22 undermine the Court’s conclusion. 23 B. Standing for Ms. Wing’s Family Members 24 The Court’s prior order held the family members of Plaintiff Marie Rose Lennox 25 Wing lacked standing to pursue relief under Section 504 of the Rehabilitation Act. (Doc. 26 76 at 6.) Plaintiffs argue this holding was erroneous because (1) “forced interpretation 27 constitutes [a] diversion of resources—a classic Article III injury”; (2) the family members’ 28 injuries are independent of Ms. Wing; and (3) the family members have standing under 28 1 C.F.R. § 36.303(c)(2) and 28 C.F.R. § 35.160(c)(2)(ii). (Doc. 79 at 6-8.) 2 Both disabled and non-disabled individuals can pursue relief under Section 504. See 3 Barker v. Riverside Cnty. Off. of Educ., 584 F.3d 821, 826 (9th Cir. 2009). For non-disabled 4 individuals, Section 504 confers associational standing for discrimination that occurs 5 because of their relationship with a disabled person. See id. at 825. Such discrimination, 6 however, must be “specific, direct, and separate” from the discrimination experienced by 7 a disabled person. George v. AZ Eagle TT Corp., 961 F. Supp. 2d 971, 974 (D. Ariz. 2013); 8 Bax v. Dr. Med. Ctr. Of Modesto, Inc., 52 F.4th 858, 867 n.4 (9th Cir. 2022) (“Claims 9 under Section are governed by the same standard of liability as ADA claims.”). 10 Discrimination that is entirely derivative or ancillary is not enough. Glass v. Hillsboro 11 School District 1J, 142 F. Supp. 2d 1286, 1289-90 (D. Or. 2001). 12 1. Diversion of Resources 13 Plaintiffs cite Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), to support 14 finding Ms. Wing’s family members have associational standing. There, the United States 15 Supreme Court held “a diversion-of-resources injury is sufficient to establish 16 organizational standing for the purposes of Article III.” E. Bay Sanctuary Covenant v. 17 Trump, 932 F.3d 742, 765 (9th Cir. 2018) (quoting Nat’l Council of La Raza v. Cegavske, 18 800 F.3d 1032, 1042 (9th Cir. 2015) (citation modified). Plaintiffs did not present this 19 argument during summary judgment briefing. Their motion for reconsideration also does 20 not explain how organizational standing allows Ms. Wing’s family members—who are 21 individuals—to pursue relief under Section 504. Indeed, the motion completely ignores 22 this aspect of Havens Realty Corp. 23 2. Independent, Non-Derivative Injuries 24 Plaintiffs argue associational standing is shown through family members having to 25 interpret for Ms. Wing in the hospital. (See Doc. 79 at 7.) They explain interpreting caused 26 a separate and distinct injury because family members could not remain in their supportive 27 family roles, were forced to perform tasks they were unqualified for, faced a conflict of 28 interest and liability risks, and were treated differently than the family members of 1 non-deaf patients. (See id.) 2 The Court principally relied on George and Glass to conclude Ms. Wing’s family 3 members lacked standing to pursue relief under Section 504. (Doc. 76 at 6.) George held 4 associational standing requires a non-disabled individual have a “specific, direct, and 5 separate” injury, which is shown through them having an individual right to a defendant’s 6 services. 961 F. Supp. 2d at 975. Glass further explained that, within the context of medical 7 services, an individual right arises when a non-disabled person is separately entitled to the 8 medical care at issue. 142 F. Supp. 2d at 1292. 9 The family members did not seek treatment from Dignity Health and were only there 10 because of Ms. Wing. This means they were not separately entitled to Dignity Health’s 11 interpretive services. See id. Without a separate entitlement, the family members did not 12 have a “specific, direct, and separate injury” and lacked associational standing. See George, 13 961 F. Supp. 2d at 974. Any discrimination they experienced was entirely derivative or 14 ancillary to the discrimination experienced by Ms. Wing. See id. 15 Plaintiffs argue generalized theories of harm are enough to confer associational 16 standing. (Doc. 79 at 7.) The Court’s prior order already explained one of these 17 theories—family members remaining in a supportive family role—was insufficient 18 because Plaintiffs did not show it created a separate entitlement or individual right to 19 Dignity Health’s services. (Doc. 76 at 5.) Plaintiffs’ motion for reconsideration still cites 20 no legal authority. (Doc. 79 at 7.) It also does not explain how its theories contradict the 21 Court’s reasoning under Glass and George. See Waesche v. Embry-Riddle Aeronautical 22 Univ., No. CV-21-08020-PCT-DLR, 2023 WL 6847138, at *1 (D. Ariz. Oct. 17, 2023) 23 (explaining a motion for reconsideration requires more than a party stating manifest error). 24 3. Federal Regulations 25 Plaintiffs cite 28 C.F.R. § 36.303(c)(2) and 28 C.F.R. § 35.160(c)(2)(ii) to support 26 their argument that Ms. Wing’s family members have associational standing. (Doc. 79 at 27 8.) Both regulations state a hospital “shall not require an individual with a disability to 28 bring another individual to interpret for him or her,” unless “the accompanying adult 1 agrees” and reliance is “appropriate under the circumstances.” This standard is relevant in 2 determining whether a hospital provided effective communication under the Rehabilitation 3 Act. See Bustos v. Dignity Health, No. CV-17-02882-PHX-DGC, 2019 WL 3532158, at 4 *2 (D. Ariz. Aug. 2, 2019). But it does not create an independent basis for standing. Ms. 5 Wing’s family members still must have a “personal stake” in Dignity Health’s supposed 6 failure to communicate with Ms. Wing. See TransUnion LLC v. Ramirez, 594 U.S. 413, 7 423 (2021). The Court’s previous analysis explains why they lack such a stake. 8 Therefore, the Court did not err in holding Ms. Wing’s family members lacked 9 standing to pursue claims under Section 504. 10 C. Liability Under Section 504 and Affordable Care Act 11 The Court’s prior order held this case could proceed to trial because there was a 12 genuine dispute of material fact as to the Section 504 and Affordable Care Act claims 13 brought by Ms. Wing’s estate. (Doc. 76 at 9.) Plaintiffs argue this holding was erroneous 14 because 28 C.F.R. § 36.303(c)(2) and 28 C.F.R. 35.160(c)(2)(ii) are dispositive of liability. 15 (Doc. 79 at 7-8.) Why Plaintiffs would seek reconsideration of a ruling in their favor 16 remains unclear. Regardless, Plaintiffs never filed a motion for summary judgment, and 17 their failure to do so waived any arguments related to liability being dispositive. Motorola, 18 Inc., 215 F.R.D. at 582 (“Motions for reconsideration . . . are not the place for parties to 19 make new arguments not raised in their original briefs.”). 20 Therefore, the Court did not err in allowing the Section 504 and Affordable Care 21 Act claims brought by Ms. Wing’s estate to proceed to trial. 22 D. Damages Quantification 23 The Court’s prior order granted summary judgment on the issue of expectation 24 damages because Ms. Wing’s estate did not present evidence indicating its damages could 25 be established with reasonable certainty. (Doc. 76 at 15.) Plaintiffs argue this conclusion 26 was erroneous because summary judgment does not require a damages quantification. 27 (Doc. 79 at 9.) 28 . . . . 1 As the party with the burden of proof at trial, Ms. Wing’s estate needed to make a 2 sufficient showing of every element of its Section 504 claim. Celotex Corp. v. Catrett, 477 3 U.S. 317, 324 (1986). Part of this burden included providing evidence showing the estate’s 4 entitlement to monetary damages. See Bax, 52 F.4th at 866. The Ninth Circuit Court of 5 Appeals has not explained the showing needed to demonstrate an entitlement to expectation 6 damages post-Cummings. But other courts addressing the issue have held a plaintiff must 7 demonstrate their expectation damages are capable of being calculated with reasonable 8 certainty. See Luke v. Lee Cnty., 1:20-CV-388-RP, 2023 WL 6141594, at *2 (W.D. Tex. 9 Sept. 20, 2023). And when a plaintiff “has not offered sufficient evidence such that a 10 factfinder could determine [] expectation damages with reasonable certainty,” their request 11 cannot proceed to trial. Fantasia v. Montefiore New Rochelle, 19 CV 11054 (VB), 2022 12 WL 20540940, at *3 (S.D.N.Y. June 16, 2022). 13 The Court’s prior order follows this reasoning. It held the estate’s naked assertion it 14 could recover expectation damages based on the costs Dignity Health “saved by 15 conscripting Plaintiffs to interpret” and “hospital bills because Plaintiffs did not receive the 16 full value of services in the way a hearing patient would” was not enough to show their 17 damages could be calculated with reasonable certainty at trial. (Doc. 76 at 14-15.) The 18 order did not require the estate to quantify its damages, as Plaintiffs suggest. Rather, it 19 required the estate to point to some evidence supporting its entitlement to expectation 20 damages. See Bax, 52 F.4th at 866. 21 Therefore, the Court did not err in granting summary judgment on the issue of 22 expectation damages. 23 E. Arizonans with Disabilities Act 24 The Court’s prior order held Plaintiffs lacked standing to pursue relief under the 25 Arizonans with Disabilities Act. (Doc. 76 at 4 n.3, 5.) Plaintiffs argue the Court erred by 26 not considering the Act during its damages analysis. (See Doc. 79 at 9-10.) 27 The Court did not need to consider the Arizonans with Disabilities Act because it 28 found Plaintiffs lacked standing to pursue this claim. See TransUnion LLC, 594 U.S. at 1 423. To the extent Plaintiffs argue the Court’s holding on standing was erroneous, the 2 Arizonans with Disabilities Act “mirror[s] Title III of the ADA.” See Tauscher v. Phx. Bd. 3 of Realtors, Inc., 931 F.3d 959, 962 n.3 (9th Cir. 2019). And the Arizona Legislature 4 intended for the act to be consistent with its federal counterpart. See Strojnik v. Hyatt Hotels 5 Corp., No, CV-21-00741-PHX-DWL, 2022 WL 504480, at *9 (D. Ariz. Feb. 18, 2022). 6 The Court found Ms. Wing’s family members lacked standing under Title III because they 7 did not have a separate and distinct injury. (Doc. 76 at 5.) It further found Ms. Wing’s 8 estate lacked standing because its claims were moot. (Id.) A consistent application requires 9 similar findings under the Arizonans with Disabilities Act. 10 Therefore, the Court did not err in finding Plaintiffs lacked standing to pursue relief 11 under the Arizonans with Disabilities Act. With there being no basis for reconsideration, 12 the Court will deny Plaintiffs’ motion (Doc. 79). 13 III. 14 Plaintiffs alternatively ask the Court to “certify these issues for interlocutory appeal 15 under 28 U.S.C. § 1292(b).” (Doc. 79 at 11.) 16 A district court can certify an interlocutory appeal when (1) there is a controlling 17 question of law; (2) there is substantial grounds for difference of opinion; and (3) “an 18 immediate appeal may materially advance the ultimate termination of the litigation.” In re 19 Cement Antitrust Litig. (MDL No. 296), 673 F.2d 1020, 1026 (9th Cir. 1981). Interlocutory 20 appeals are “applied sparingly and only in exceptional circumstances.” United States v. 21 Woodbury, 263 F.2d 784, 788 n.11 (9th Cir. 1959). The decision to certify an “interlocutory 22 appeal is committed to the sound discretion of the district court,” and “district court judges 23 have unfettered discretion to deny certification.” Salazar v. Driver Provider, Phx. LLC, 24 No. CV-19-05760-PHX-SMB, 2023 WL 2308372, at *2 (D. Ariz. Mar. 1, 2023) (citations 25 modified). 26 . . . . 27 . . . . 28 . . . . 1 The Court finds there are no exceptional circumstances warranting an interlocutory appeal. It further finds this case is set for trial, and certifying an interlocutory appeal would 3 || not advance the termination of this litigation. 4 IT IS THEREFORE ORDERED denying Plaintiffs’ Motion for Reconsideration 5|| of Order on Defendant’s Motion for Summary Judgment (Doc. 79). 6 IT IS FURTHER ORDERED denying Plaintiffs’ Motion for Leave to File a Reply to Defendant’s Response to Motion for Reconsideration (Doc. 83). 8 Dated this 20th day of August, 2025. 9 . . 10 WM clack T. dh urgl Michael T. Liburdi I! United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

-9-