Lasko v. Mobile Hyperbaric Ctrs., LLC

ANNA LASKO, Plaintiff, v. MOBILE HYPERBARIC CENTERS, LLC, et al., Defendants.

Case No. 1:19-cv-542

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

February 25, 2021

MAGISTRATE JUDGE THOMAS M. PARKER

MEMORANDUM OPINION AND ORDER

Plaintiff Anna Lasko has Complex Regional Pain Syndrome ("CRPS"), which caused her to have foot pain and hypersensitivity to sound. From January through February 2017, Lasko received hyperbaric oxygen therapy for her CRPS-related foot pain at Mobile Hyperbaric Centers, LLC ("Mobile Hyperbaric"). On February 12, 2019, plaintiff Anne Lasko sued Mobile Hyperbaric, Dr. Michael Huber (the "Defendants"), and several yet unnamed parties in Cuyahoga County Court of Common Pleas. ECF Doc. 1-1. In her complaint, Lasko alleged that the Defendants discriminated against her in violation of Ohio Revised Code § 4112.02(G) and the Americans with Disabilities Act, 42 U.S.C. § 12128(b)(1)(A)(i), when: (1) staff at Mobile Hyperbaric refused to reduce the volume of a treatment room television ("TV"), change its channel, or turn it off to accommodate her hypersensitivity to sound; and (2) Dr. Huber cancelled her remaining treatments. ECF Doc. 1-1. On March 13, 2019, the Defendants removed the case to this court, invoking this court's diversity jurisdiction under 28 U.S.C. § 1332(a). ECF Doc. 1. On April 24, 2019, the parties consented to magistrate judge jurisdiction under 28 U.S.C. § 636(c). ECF Doc. 7.

Now pending before the court are: (1) Lasko's motion to dismiss this case without prejudice (ECF Doc. 24); (2) the Defendants' motion for summary judgment (ECF Doc. 28); (3) two motions to strike (ECF Doc. 33; ECF Doc. 37); and (4) a motion for reconsideration of an order denying a motion to extend the time to respond to a motion to strike (ECF Doc. 46). For the reasons discussed below, Lasko's motion to dismiss this case without prejudice (ECF Doc. 24) must be DENIED. The Defendants' motion to strike (ECF Doc. 33) must be GRANTED in part and DENIED in part. Lasko's motion to strike (ECF Doc. 37) must be DENIED. The Defendants' motion for summary judgment (ECF Doc. 28) must be GRANTED. Lasko's motion for reconsideration (ECF Doc. 46) must be DENIED AS MOOT. And the court sua sponte will DISMISS all claims against the yet unnamed fictitious parties (John Does 1-5 and ABC Companies 1-5).

I. Motion to Dismiss Without Prejudice

Lasko asks that the court dismiss this case without prejudice under Fed. R. Civ. P. 41(a)(2) because the twice-extended discovery period has closed, and she still wishes to conduct discovery. ECF Doc. 24 at 1. Lasko also asserts that, at the time of her motion, counsel had not received the client file from her previous counsel. ECF Doc. 24 at 1. Lasko contends that dismissal of this case without prejudice would not prejudice the defendants because they conducted only paper discovery, took only a single deposition, and had not yet filed dispositive motions at the time her motion was filed. ECF Doc. 24 at 1.

The Defendants respond that that dismissal without prejudice would be improper in this case because they already incurred significant expenses in discovery, they prepared a motion forsummary judgment (which was due on the day after the deadline to respond to Lasko's Rule 41 motion), and Lasko's wish to circumvent the court's scheduling order is not an appropriate use of Rule 41. ECF Doc. 26 at 5-9. Further, the Defendants argue that any complications with Lasko's change of counsel - changing counsel just over one week before the discovery deadline and switching back to original counsel after the discovery deadline had passed - were of her own making and do not justify dismissal without prejudice on the eve of summary judgment. ECF Doc. 26 at 7.

Under Rule 41(a)(2), "an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper. . . . Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice." Fed. R. Civ. P. 41(a)(2). District courts have wide discretion in determining whether a motion to dismiss under Rule 41(a)(2) should be granted, whether such dismissal should be with or without prejudice, and whether any conditions should be imposed. See Bridgeport Music, Inc. v. Universal-MCA Music Publ'g, Inc., 583 F.3d 948, 954 (6th Cir. 2009) ("A Rule 41(a)(2) dismissal may be conditioned on whatever terms the district court deems necessary to offset the prejudice the defendant may suffer from a dismissal without prejudice."); Wellfount, Corp. v. Hennis Care Ctr. of Bolivia, Inc., 951 F.3d 769, 774 (6th Cir. Mar. 3, 2020) ("The district court may deny the motion, require that a dismissal be with prejudice, or impose any other conditions that it 'deems necessary.'"). In determining whether a Rule 41(a)(2) motion should be granted and whether conditions should be imposed, courts typically consider: (1) the defendant's efforts and expenses in litigating the case; (2) the plaintiff's delay or diligence in prosecuting the action; (3) whether the plaintiff has provided a sufficient explanation for the need to dismiss the action; and (4) whether the action has already progressed to dispositive motions. See Bridgeport Music, Inc., 583 F.3d at 953.

The court agrees that dismissal of this case without prejudice would be improper. Lasko delayed filing her motion until the eve of the summary judgment filing deadline, at which time the Defendants had incurred the expenses of discovery, twice agreed to discovery extensions to allow Lasko to conduct the discovery that she had neglected, and prepared a motion for summary judgment. Further, dismissal of this case without prejudice would prejudice the Defendants when, as discussed in more detail below, the Defendants are entitled to summary judgment on the grounds that: (1) Lasko lacks standing under Title III of the ADA; and (2) abstinence from loud noise due to sound sensitivity is not a "substantial limitation" on a "major life activity" under Ohio law.

Accordingly, Lasko's motion to dismiss this case without prejudice (ECF Doc. 24) must be DENIED.

II. Motions to Strike

Before proceeding to consider the Defendants' motion for summary judgment, this court must resolve: (1) the Defendants' motion to strike certain evidence appended to Lasko's opposition brief (ECF Doc. 33); and (2) Lasko's motion to strike Dr. Huber's affidavit and Exhibit B to that affidavit, which were appended to the Defendants' motion for summary judgment (ECF Doc. 37).

A. Motion to Strike Standard of Review

Because resolution of a motion to strike affects the scope of evidence that might be considered at the summary judgment stage, the court must rule upon any such motions before resolving a motion for summary judgment. See Zerman v. City of Strongsville, No. 1:04-cv-2493, -2006 U.S. Dist. LEXIS 70503, at *20-21- (N.D. Ohio, Sept. 28, 2006) (O'Malley, J.); Morrison v. Bd. of Trs., 529 F. Supp. 2d 807, 818 (S.D. Ohio 2007). Suchmotions may argue that evidence relied upon in support of or opposition to a motion for summary judgment is inadmissible. Fed. R. Civ. P. 56(c)(2); see, e.g., Cary v. Cordish Co., 31 F. App'x 401, 405-06 (6th Cir. 2018) (a district court may refuse to consider inadmissible hearsay); Aerel, S.R.L. v. PCC Airfoils, L.L.C., 448 F.3d 899, 908 (6th Cir. 2006) (sham affidavits contradicting prior sworn testimony may be inadmissible at the summary judgment stage).

A district court may also "impose appropriate sanctions" for evidence submitted in support or opposition to a motion for summary judgment if the proponent of that evidence failed to comply with Fed. R. Civ. P. 26(a) (initial disclosures) or Fed. R. Civ. P. 26(e) (supplemental disclosures and responses to interrogatories, requests for production, and requests for admission). Fed. R. Civ. P. 37(c)(1); Emanuel v. Cty. of Wayne, 652 F. App'x 417, 424-25 (6th Cir. 2016). Such sanctions could include, among other things, exclusion of the evidence from consideration, prohibiting the non-disclosing party from using the evidence to support or oppose claims or defenses, and striking the evidence. Fed. R. Civ. P. 37(b)(2)(A)(ii); Emanuel, 652 F. App'x at 424. A proponent of evidence subject to exclusion under Fed. R. Civ. P. 37(c)(1) may overcome exclusion only if she can show that her failure to comply with the discovery rules was harmless or substantially justified. Dickenson v. Cardiac & Thoracic Surgery of E. Tenn., 388 F.3d 976, 983 (6th Cir. 2004). Whether a failure to disclose evidence was harmless or substantially justified, courts in this circuit look to five factors:

(1) the surprise to the party against whom the evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the importance of the evidence; and (5) the nondisclosing party's explanation for its failure to disclose the evidence.

Howe v. City of Akron, 801 F.3d 718, 748 (6th Cir. 2015) (quoting Russell v. Absolute Collection Servs. Inc., 763 F.3d 385, 396-97 (4th Cir. 2014)).

B. Defendants' Motion to Strike

1. The Parties' Arguments

The Defendants argue that the court should strike from the record the following documents:

ECF Doc. No.

Description

30-1 at 1-4

Harvard Health Publishing CPRS Article (Page ID# 756-59)

30-1 at 5

Pennsylvania Disability Parking Placard No. P959187 (Page ID# 760)

30-1 at 6

Medical Infirmity Certificate dated April 25, 2014 (Page ID# 761)

30-1 at 7

Medical Notes from Thomas M. Sisk, MD (Page ID# 762)

30-1 at 8-12

Medical Notes from Yaaqov M. Abrams, MD (Page ID# 763-67)

30-1 at 12-16

Medical Notes from Terence W. Starz, MD (Page ID# 768-71)

30-1 at 17-21

Medical Notes from Jennifer L. Nichols, MD (Page ID# 772-76)

30-1 at 23-26

Medical Notes from Nicole Vogini, DPT (Page ID# 778-81)

30-1 at 27

June 26, 2020 Letter from Karl E. Bushman, MD (Page ID# 782)

30-1 at 57-60

ComForcare Flowsheet, Scooter Packing

...