Argued September 21, 2015.
As Corrected December 11, 2015.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 12 C 7274 -- Amy J. St. Eve, Judge.
For Linda Reed, Plaintiff - Appellant: Paul W. Mollica, Attorney, Outten & Golden LLP, Chicago, IL.
For STATE OF ILLINOIS, official and individual capacity, SIDNEY A. JONES, III, in his Official Capacity as Circuit Judge of the Cook County Circuit Court, Circuit Court of Cook County, Illinois, TIMOTHY C. EVANS, in his Official Capacity as Chief Judge of the Cook County Circuit Court, Defendants - Appellees: Mary Ellen Welsh, Attorney, Office of The Attorney General, Civil Appeals Division, Chicago, IL.
For MELISSA PACELLI, in her official capacity as Court Disability Coordinator for the Cook County Circuit Court, Defendant - Appellee: Paul A. Castiglione, Attorney, Patricia M. Fallon, Attorney, Office of The Cook County State's Attorney, Chicago, IL.
Before POSNER, WILLIAMS, and SYKES, Circuit Judges. SYKES, Circuit Judge, dissenting.
Posner, Circuit Judge.
The plaintiff was diagnosed with a rare neurological disorder called tardive dyskinesia in April 2011. According to the National Alliance on Mental Illness,
Tardive dyskinesia (TD) is one of the most disturbing potential side effects of antipsychotic medications. Tardive (late) dyskinesia (bad movement) is a movement disorder that occurs over months, years and even decades. TD is a principle [ sic --should be principal] concern of first generation antipsychotic medication but has been reported in second generation antipsychotic medication and needs to be monitored for all people who take these medications. TD is one of a group of side effects called 'extrapyramidal symptoms' that includes akathesia (restlessness), dystonia (sudden and painful muscle stiffness) and Parkinsonism (tremors and slowing down of all body muscles). TD is perhaps the most severe of these side effects and does not occur until after many months or years of taking antipsychotic drugs. TD is primarily characterized by random movements of different muscles within the body and can occur in the tongue, lips or jaw (e.g., facial grimacing), or consist of purposeless movements of arms, legs, fingers and toes. In some severe cases, TD can include swaying movements of the trunk or hips or affect the muscles associated with breathing. TD can be quite embarrassing and--depending on its severity--can be disabling as well. National Alliance on Mental Illness, " Tardive Dyskinesia," www2.nami.org/Content/Navigation Menu/Inform_Yourself/About_Mental_Illness/By_Illness/Tardive_Dyskinesia.htm
(visited October 29, 2015).
It is not a conventional speech impediment, such as stammering, or speaking hoarsely or with a lisp.
The plaintiff's complaint confirms that she experiences the typical symptoms of tardive dyskinesia, and we take the allegations in her complaint to be true because she's appealing from the district court's grant of the defendants' motion to dismiss her suit. Her involuntary movements include tongue thrusting, pursing of the lips, choking, and side-to-side chewing of the jaw. She becomes mute, screams or makes non-verbal sounds, particularly under stress. She often cannot use a telephone without assistive technology. She has also been diagnosed with post-traumatic stress disorder and bipolar disorder, which can cause her severe anxiety. The impairments we've listed (all drawn from as yet unchallenged allegations) substantially limit her in the major life activities of concentrating, thinking, communicating, speaking, interacting with others, mobility, and work. The state acknowledges in its brief that " with stress, Plaintiff's condition worsens and she may become mute, scream, or make non-verbal sounds." It notes that her " involuntary movements include tongue-thrusting, lip-pursing, choking, side-to-side chewing and (especially when under stress) head movements and finger-tapping."
Shortly after the plaintiff was diagnosed with tardive dyskinesia, a personal injury suit that she had filed in the Circuit Court of Cook County, Illinois-- Reed v. Moore, No. 09 M1 301249--went to trial. She had no lawyer. Before the trial began she asked the court's disability coordinator for accommodations of her medical problems, and in response to her request she was permitted to have a friend and a family member take notes for her, was given a podium to stand at, and was allowed to take occasional recesses. But she was denied other help that she requested--a microphone (to enable her to project her voice so that it would be audible even when her ability to vocalize was impaired by her tardive dyskinesia), an interpreter (to articulate her thoughts when she could not express them clearly herself), and a jury instruction explaining her disorder, lest the jurors think she was just acting up. Her difficulty in speaking was likely to be amplified by her having to speak to an entire courtroom. We don't know the size of the courtroom, but even if it was small a person has to " speak up" when speaking to an entire room, rather than to another person face to face. Without the microphone and the interpreter, she sometimes had to resort to hand signals, grunts, and other non-verbal attempts at communication that were difficult to understand. The need for an interpreter, a " mouthpiece" in almost a literal sense, was related to the need for a microphone. She could have whispered inarticulately to an interpreter, who if experienced in helping persons with a speech disability to express themselves could articulate the plaintiff's words in normal speech that the judge and jury would understand without strain.
Apart from being denied these aids, she was hectored by the judge, who may not have understood the gravity of her disorder. The judge told the jury that the plaintiff has a " speech impediment," but that made it sound as if she stammers or has a lisp, and thus understated the gravity of her disability. The judge knew or should have known that it was her condition, rather than willful defiance of courtroom proprieties, that was responsible for the long, involuntary pauses in her statements; yet he kept telling her to " hurry up," to move on to the " next question," and to wrap up her examination of witnesses. He permitted her only 10 minutes to examine
a particular witness. At one point during the plaintiff's cross-examination by the defendant's lawyer the judge said " I have been waiting ten seconds for you to answer and am moving on to the next thing." He also at times yelled at her, glared at her, smacked his bench, leaned forward, and otherwise expressed annoyance with her--all in front of the jury.
She suffered other embarrassments in front of the jury. For example, a piece of gum that she was chewing to control her involuntary movements fell out of her mouth, an accident for which the judge scolded her, precipitating a convulsive state in her.
The judge's treatment of her at the trial is surprising in light of his statement made after the trial in denying her motion for a new trial that " almost immediately before the actual trial, the plaintiff began to experience a rapid and noticeable diminishment [ sic --he meant 'diminution'] of speech ability so that her speaking was interrupted by uncontrollable pauses on account of an apparent nervous disorder that forced her into involuntary contortions of the mouth and unintended utterances, most of which consisted of unintelligible sounds. However, she at all times presented as having been fully mentally capable and alert, physically able except for the speech condition, and clearly frustrated whenever she experienced such interruptions" (emphasis added). We've italicized the most puzzling phrase in the quoted passage. ...