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Janice Larosa, On Behalf of Noel Larosa, A Minor v. Walgreen Co. and Take Care Health

June 29, 2012

JANICE LAROSA, ON BEHALF OF NOEL LAROSA, A MINOR, PLAINTIFF,
v.
WALGREEN CO. AND TAKE CARE HEALTH SYSTEMS, INC., DEFENDANTS.



The opinion of the court was delivered by: Hon. Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER

Before the Court is Defendants' Motion to Dismiss Plaintiff's Amended Complaint. For the reasons stated herein, the Motion is granted in part and denied in part.

I. BACKGROUND

Plaintiff Janice LaRosa ("Janice") sues Defendants Walgreen Co. ("Walgreens") and its wholly-owned subsidiary Take Care Health Systems ("Take Care") on behalf of her minor son, Noel. Plaintiff alleges violations of the Americans with Disabilities Act (the "ADA") and the Rehabilitation Act (the "RA"). (This Motion was originally brought by four defendants, but two have since been dismissed by agreement from the case.) Take Care Health Systems runs the Take Care Clinics found inside some Walgreens stores, which provide retail medical care to consumers on a walk-in or appointment basis.

Plaintiff's allegations are accepted as true for the purposes of this Motion to Dismiss. Noel is sixteen years old, and was adopted by the LaRosas at the age of seven. Among other challenges, Noel has Amniotic Band Syndrome, and as a result (among other things) is missing digits on his right hand and foot, and has webbed digits on his left hand and foot. (There is no dispute that Noel is disabled under the ADA and RA.)

Noel wished to try out for his high school soccer team in the fall of 2011, but needed to get a physical examination that cleared him to play. Janice could not schedule an appointment with Noel's pediatrician in time. Instead, she contacted the Take Care Clinic located inside the Walgreens at 1825 Willow Road in Northfield, Illinois, and was told that they could see Noel for a sports physical without an appointment.

A physician's assistant ("PA") instructed Janice to fill out a "Preparticipation Physical Examination form" for Noel. The form listed 51 questions regarding Noel's medical history, and stated that the parent should "[c]ircle questions you don't know the answer to." Because Noel is adopted, Janice could not answer certain questions, and explained as much to the PA who reviewed the form.

The PA began examining Noel by taking his blood pressure, asking him to jump up and down, and listening to his heart, among other things. When Noel took off his shoes so that he could be weighed, the PA stopped the examination and asked Noel and Jan to step outside the office. Shortly thereafter, she took them to see Leigh Harmon ("Harmon"), a nurse practitioner. Harmon asked why there were incomplete answers in Noel's paperwork. After Janice explained Noel's adoptive status, Harmon stated that the examination was over because Walgreens had a policy against examining adopted children.

Both Harmon's supervisor and the Walgreens store manager, when consulted, confirmed that Walgreens would not examine Noel. Janice and Noel could not find someone to perform the physical in time, and Noel was not able to try out for the soccer team.

Janice later communicated with Sandra Ryan ("Ryan"), Take Care's Chief Nurse Practitioner Officer. Ryan stressed the importance of obtaining a family history, when feasible, to ascertain medical risks, but also emphasized that Take Care clinics will see and evaluate all children consistent with their policies and procedures. Janice also learned that nurse practitioners have absolute discretion over whom to see at the clinics, and can turn anyone away for any reason.

Plaintiff alleges that Defendants turned Noel away because of his disability, violating Title III of the ADA, 42 U.S.C. § 12182, and Section 504 of the RA, 29 U.S.C. § 794. Alternatively, Plaintiff alleges that Defendants' policy of absolute discretion resulted in a disparate impact on Noel, similarly violating those statutes. Defendants have moved to dismiss under FED. R. CIV. P. 12(b)(6) for failure to state a claim upon which relief can be granted.

II. LEGAL STANDARD

On a motion to dismiss under Rule 12(b)(6), the Court accepts as true all well-pleaded facts in Plaintiffs' Complaint and draws all inferences in her favor. Cole v. Milwaukee Area Tech. Coll. Dist., 634 F.3d 901, 903 (7th Cir. 2011). A complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2). Plaintiffs need not allege "detailed factual allegations," but must offer more than conclusions or "a formulaic recitation of the elements of the cause of action[.]" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Naked assertion[s] devoid of further factual enhancement" will not suffice -- a ...


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