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Univ. of South Carolina School of Law

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Thursday, December 6, 2007

Article Of Interest: Professor Deirdre Smith Addresses The Role Of Medical Evidence In The ADA Definition of Disability

Professor Deirdre Smith of the University of Maine School of Law has written a fascinating forthcoming article for the Tulane Law Review.  The article, "Who Says You're Disabled: The Role of Medical Evidence in the ADA Definition of Disability," argues that many courts are improperly and perniciously requiring that plaintiffs bringing claims under the Americans with Disabilities Act produce expert medical evidence to establish that they meet the statute's definition of an individual with a disability lest they have their claims dismissed at the summary judgment stage.

Part of the article addresses the legal improprietary of such a requirement.  Professor Smith notes, for instance, that requiring ADA plaintiffs to produce such expert medical evidence to "corroborate" their claims that they have disabilities runs contrary to the general rule that, at the summary judgment stage, the court should not resolve issues of credibility.

The article also delves into a rich and detailed analysis of how the "medical corroboration" requirement runs contrary to the very aims of the ADA.  Before the ADA, a disability was viewed as something "wrong" with the disabled person, a condition that a doctor could conclude rendered him or her powerless to deal with the world.  In passing the ADA, there was an attempt to shift from this "medical model" of disability to a broader and more empowering conceptualization of the term. 

Judges' continued insistence on corroborating medical evidence as the sine non qua of an ADA claim stunts any such re-conceptualization and makes the "medical model" sacrosanct.  Furthermore, as Professor Smith notes in analysis with both legal and social implications, not only do judges requiring corroboration medical evidence reinforce the "medical model;" they also express a judicial skepticism of disability claims, under which judges signal that we should be wary that those claiming disabilities are engaging in malingering.    

After reading the article, I e-mailed Professor Smith to ask her what led to write the article, and she responded,

"In terms of what led to writing the article, it was really several factors.  Most ADA scholars have spent much time scratching their heads about the incredibly lopsided pro-defendant results on summary judgment motions and trying to identify the specific reasons why the numbers seem so skewed.  My own interest has long been about the intersection of medicine (especially psychiatry) and law, and the ADA case law provides a great laboratory in which to examine it.  I've been stumbling around the mental illness cases for awhile looking at the role of experts & psychiatry (my earlier piece on personality & the ADA came out of that).  Then I came across one of the fibromyalgia cases in which the D got summary judgment because the only evidence in the record was the plaintiff's description of her significant pain and limitations, and that led me to doing a broader examination of this pattern.  I was stunned to find the large number of cases that seemed to turn on this, and the rationales were surprising as well.  I was also surprised to see a number of plaintiffs lose because their doctors had said something at a deposition that was at variance with the plaintiff's own description of her disability. As I mentioned this research to some colleagues and friends the response was nearly universallly something to the effect of "Well, how do we know whether they are faking the disability?  Shouldn't they have to show some medical proof to win?"  That inspired me to look at some of the potential cultural (legal and nonlegal) underpinnings of the trend in the cases.  Finally, I think I had in the back of my mind the experience of representing the deaf couple mentioned in the footnote towards the end of the piece whose privacy and dignity were nearly disregarded during the discovery process by the focus on whether they were "really disabled" (although they attended deaf schools and used ASL) and therefore really needed an ASL interpreter at the doctor.  I sent them for audiological exams (which, of course, they hadn't undergone in years) and the defendants sought in discovery their complete educational records (one of my clients was 50 years old), their medical records, their marital counseling records, and recordings of when they had called 911.  (The jury found both of the clients to be disabled but found discrimination only against one of them... a strange result and a long story)

I had a lot of fun writing the piece.  I too hope that judges read it, and that plaintiffs lawyers read it as well and raise some of the points in their oppositions to summary judgment motions.  Unfortunately, some of the bad case law is due to poor lawyering by plaintiffs' counsel at times but then the precedent is set for everyone.  I also think that judicial notice has been under-used in this context."

As I wrote to Professor Smith, I feel that this is an extremely compelling article, and I sincerely hope that the readers of this site and judges across the country have the opportunity to read it.

-CM

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