Nicholas Knapp from playing intercollegiate basketball violate the Rehabilitation Act.
Turning to the issue of reasonable accommodation, the parties debate the efficacy of having an external defibrillator at Knapp's side during practice, games and for a period of time afterwards and the frequency in which the internal cardiac defibrillator ought to be interrogated to insure it is working properly. Northwestern appears to argue, by use of Dr. Zipes' testimony, that there is no accommodation that would be reasonable. Dr. Zipes testified that an external defibrillator may actually do great harm in the presence of an internal defibrillator when used outside the environs of a medical office or hospital. Dr. Zipes noted that, in any event, the degree to which Knapp's risk would be reduced by the presence of an external defibrillator is unknown. On behalf of Nicholas Knapp, Drs. McAnulty and Olshansky testified that having an external defibrillator at courtside during games would reduce the risk of death to Knapp by some small margin. However, considering the testimony of all present regarding the high reliability of the internal defibrillator and the opinions that there is a small increased benefit, or an unknown benefit or a detriment of using an external defibrillator, it appears to me that Knapp has offered the courtside defibrillator option more as a comfort factor to the Court and perhaps to the University than as an accommodation he believes to be necessary. Considering the credible testimony of all the experts, I am persuaded that the reasonable accommodation is the one that has already been made, that is the implantable defibrillator. I find that an external defibrillator cannot be required as a reasonable accommodation and thus the issue of its cost and reasonableness is moot.
The question of accommodation then shifts to how often the internal defibrillator should be interrogated. Dr. Zipes testified that it should be interrogated after every game, while Dr. Olshansky testified, out of an abundance of caution, that it should be interrogated every two weeks. I accept Dr. Olshansky's opinion here because of Knapp's recent experience of months of physical activity including playing basketball. Thus, the only reasonable accommodation is for Knapp to have his internal defibrillator interrogated bi-weekly. Since the cost of interrogation has been assumed by Knapp, at least for purposes of injunctive relief, I need not now consider the reasonableness of cost to Northwestern.
In closing I note that if, as a matter of law and fact, all that is required, as Pahulu v. University of Kansas, 897 F. Supp. 1387, 1394 (D. Kan. 1995) holds, is that Northwestern make a rational decision that Knapp's risk is substantial based on reasonable evidence to which courts must defer, then I find Northwestern has done this.
This decision does not state an opinion on whether Northwestern can require Knapp or potential survivors to sign a waiver of liability. It may well have a right to insist on waiver, a right arising from other sources of law. Ordinarily, a plaintiff neither increases nor decreases rights under the Rehabilitation Act by signing or refusing a waiver although waivers may be relevant to reasonableness of accommodation. Nor does this opinion decide whether Northwestern may require a current showing on Knapp's fitness to play on grounds other than the suitability of his cardiac condition. I have only concluded that Northwestern's basis for determining Knapp ineligible to play thus far is insufficient and in violation of the Rehabilitation Act.
Having found that Knapp has succeeded on the merits, I turn to the remaining elements of the injunction analysis. It is clear that there is no adequate remedy at law for Knapp in this case. Damages for his injury cannot restore what he has lost, the inability to play with his team and compete. The only remedy for his injury is to insure that Northwestern does not continue to exclude him from playing on the Men's Division I Basketball Team. It is also clear that Knapp will suffer irreparable harm if injunctive relief is not granted since he will lose his chance of ever playing Division I basketball.
Next, I balance the harms. If Knapp is able to play basketball the harm to Northwestern would be substantial, but quite contingent. It is the extremely slight risk that Knapp may harm another player if he receives a shock from his implantable defibrillator and the harm that Northwestern would suffer as an institution if a student wearing a Northwestern jersey were to collapse and die on the basketball court. The harm could include not only the general harm to its university reputation but also to its ability to recruit good student athletes. The harm to Knapp if he is unable to play is substantial and certain. Playing intercollegiate basketball is a major life activity for him and his inability to play would curtail his ability to live his life fully and end his chances, however speculative, of a professional basketball career. Knapp does not consider the risk of death to himself to constitute a harm as he is willing to assume that risk. I therefore find that the balance of harms weighs in favor of Nicholas Knapp.
Finally, I find there are arguments for the public interest of equal weight on both sides. Thus, the public interest does not preclude issuance of the injunction.
The permanent injunction is granted. The motion for summary judgment is also denied.
James B. Zagel
United States District Judge
Date: OCT - 7 1996