United States District Court, N.D. Illinois, Eastern Division
Patrick W. Morrissey Thomas G. Morrissey, Ltd. an attorney
PLAINTIFF'S POST-TRIAL MOTION PURSUANT TO RULES
50(b) AND 59
Marque Bowers, by counsel, moves the Court for relief under
Rules 50(b) and 59 of the Federal Rules of Civil Procedure.
Grounds for this motion are as follows:
Plaintiff Marque Bowers alleges defendant Dart violated his
rights under the Americans with Disabilities Act (ADA) by
assigning him to various living units at the jail that did
not comply with federal accessibility standards from January
6, 2013 to August 21, 2014.
After a four day trial, a jury returned a verdict for
defendant on October 3, 2019. ECF No. 219, Jury Verdict. The
Court reserved ruling on plaintiff's motion for a
directed verdict pursuant to Rule 50(a). ECF No. 217, Minute
the reasons below stated, the Court should grant
plaintiff's motion pursuant to Rule 50(b) or Rule 59 and
reset this case for a jury to determine damages, if any, to
award Bowers. In the alternative, the plaintiff requests a
new trial on liability and damages.
4. On a
motion for judgment as a matter of law under Rule 50,
“the question is not whether the jury believed the
right people, but only whether it was presented with a
legally sufficient amount of evidence from which it could
reasonably derive its verdict.” Massey v. Blue
Cross-Blue Shield of Ill., 226 F.3d 922, 924 (7th Cir.
2000). A court must determine whether the evidence presented
at trial, when viewed in the light most favorable to the
non-moving party is sufficient to support the verdict.
Id. A “mere scintilla” of evidence is
not sufficient to sustain a verdict, id., but judges
are not to substitute their view of the contested evidence in
place of the jury's determination. Kapelanski v.
Johnson, 390 F.3d 525, 530 (7th Cir. 2004). In other
words, the test is whether “no rational juror could
have found for the prevailing party.” Turner v.
Miller, 301 F.3d 599, 602 (7th Cir. 2002).
Under Rule 59, a new trial may be granted after a jury trial
“for any reason for which a new trial has heretofore
been granted in an action at law in federal court.”
Fed.R.Civ.P. 59(a)(1)(A). “A new trial is appropriate
if the jury's verdict is against the manifest weight of
the evidence or if the trial was in some way unfair to the
moving party.” Venson v. Altamirano, 749 F.3d
641, 656 (7th Cir. 2014) (citing Willis v. Lepine,
687 F.3d 826, 836 (7th Cir. 2012)).
Qualified individual with a disability
prevail on his ADA claim, Bowers must prove by a
preponderance of the evidence he is a qualified individual
with a disability. See ECF No. 216, Jury
Instructions at 19. The Court reviewed this standard when
considering plaintiff's motion for summary judgment:
Under the ADA, an individual has a “disability”
if he can show one of the following: (1) he has a physical or
mental impairment that substantially limits one or more of
his major life activities, (2) he has a record of such an
impairment, or (3) he is regarded as having such impairment.
42 U.S.C. § 12102; see also 28 C.F.R. §
35.101 (“The primary object[ive] . . . should be
whether entities covered under the ADA have complied with
their obligations and whether discrimination has occurred,
not whether the individual meets the definition of
‘disability.' The question of whether an individual
meets the definition of ‘disability' […]
should not demand extensive analy-sis.”).
Bowers v. Dart, 2017 WL 4339799, at *4 (N.D.Ill.
Bowers testified that he has been unable to walk following an
attack at the jail on December 31, 2012. ECF No. 222, V3
Bowers at 111:6-112:17, 113:25-117:17 (explaining functional
capacity following injury).
Andrew DeFuniak, a primary care provider, treated Bowers
approximately 25 times from January 2013 to August 2014. ECF
No. 222, V3 DeFuniak 19:12-15, 80:1-11. Dr. DeFuniak said
lower extremity muscle power is necessary to walk, ECF No.
222, V3 DeFuniak at 86:15-21, and that a person with
Bower's lower extremity strength would not be able to
walk. ECF No. 222, V3 DeFuniak at 95:19-23. Based on
Bowers's lower extremity strength, Dr. DeFuniak
prescribed a wheelchair for Bowers to ambulate. ECF No. 222,
V3 DeFuniak at 95:24-96:4. And in response to a question
whether he considered Bowers to be disabled, Dr. DeFuniak
said “I considered him to have, you know, some
condition that, you know, required a wheelchair, yes.
That's what he told me, yes.” ECF No. 222, V3
DeFuniak at 70:12-15. Because of this assessment, Dr.
DeFuniak entered an “alert” for Bowers to be
permitted to use a wheelchair at all times to ambulate. ECF
No. 222, V3 DeFuniak at 77:1-12.
Daniel Moreci, a Sheriff's employee, was the first
assistant to the executive director at the jail from 2013 and
2014 and testified the Sheriff relies on doctors to determine
whether an inmate needs a wheelchair. ECF No. 221, V1 Moreci
at 4:8-18, 12:22-24. Moreci stated an inmate with a
wheelchair alert would be regarded by the Sheriff as needing
a wheelchair. ECF No. 221, V1 Moreci at 36:23-37:1. And while
Bowers was detained at the jail with a wheelchair alert,
Moreci agreed, based on his knowledge, the Sheriff's
staff regarded Bowers as disabled. ECF No. 221, V1 Moreci at
12:25-13:3. Matthew Burke, another high ranking Sheriff
employee, stated the Sheriff relies on the medical staff to
determine whether an inmate is disabled and that from January
2013 until August 2014, the Sheriff treated Bowers as a
wheelchair dependent inmate. ECF No. 221, V1 Burke at
DeFuniak unequivocally said Bowers's legs were too weak
to walk. Based on Dr. DeFuniak's testimony, no reasonable
finder of fact could determine Bowers did not have a
substantial limitation walking. See 42 U.S.C. §
12102(2)(A). This is so because some “types of
impairments, as a factual matter, virtually always [will] be
found to impose a substantial limitation on a major life
activity.” 28 C.F.R. § 35.108(d)(2)(ii). This
includes “mobility limitations requiring the use of a
wheelchair.” Id. § 35.108(d)(2)(iii)(D).
there can be no question that defendant regarded Bowers as
disabled. The Sheriff relied exclusively on the medical staff
to identify disabled in- mates and to enter appropriate
“alerts” to provide notice about certain
impairments. Indeed, both Moreci and Burke stated that Bowers
was regarded a dependent on a wheelchair to move ...