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Case number 13-7123.

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Tanya Coleman Lee, as personal representative of the estate of Joseph Lee, appellant, versus government of the District of Columbia.

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Ms.

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Ehrenberg for the appellant.

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Mr. Schifferle for the appellee.

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Good morning.

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May it please the court, Jason Ehrenberg, on behalf of the appellant.

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The Supreme Court noted in Murchin's mutual view bearing that the tendency of an instruction not supported by evidence often is to mislead the jury by withdrawing their attention from the legitimate points involved in the issue.

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This is precisely what happened in this case.

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During closing arguments, the District of Columbia read the requested Sutton instruction to the jury.

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The district then argued to the jury that Mr. Lee's condition is corrected by medication and meals.

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Three meals a day plus snacks.

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Thus, the district proclaimed, in assessing whether Mr. Lee had a disability within the meaning of the ADA, the jury should answer no, because Mr. Lee's diabetes was in control, was controllable, and therefore did not substantially limit his major life activity.

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He has been able to carry out the duties as a correction officer.

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Based on that instruction and the district's argument, the jury found that Mr. Lee was not disabled within the meaning of the ADA.

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Sir, I'm not reading.

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I just have some notes.

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So based upon that, the jury found that Mr. Lee was not substantially limited in a major life activity.

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But the major life activity that the district pointed them to and the major life activity was working.

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But that was not the issue before the jury.

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The major life activity that was presented to the jury, to the court, was the major life activity of eating.

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And this court's decision... I'm curious about that.

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I know that's how the case was argued, but why isn't the major life activity his ability to stay awake and not eating?

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Because eating seems a little strange here, because that's also the limitation, right?

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The way to address the impairment is through his diet.

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So I was kind of confused by that.

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I agree that there could have been several different major life activities that were argued, such as working, staying awake, but the evidence in this case and the argument focused on eating.

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And in that regard, I think this Court's decision in Capge is very instructive.

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Here, as in Capge, the plaintiff's treatment regimen allowed him to control his diabetes.

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And generally, that involved medication, exercise, and a pretty regimented eating.

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Meals five to six hours apart, snacks two hours after a meal.

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Is that your fundamental argument?

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Right.

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There was no evidence that the eating was mitigated.

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There was evidence that his ability to work was mitigated if he ate.

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What do you mean that the eating was mitigated?

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The problem with the Sutton instruction was that it tended to, or not tended to, it said that if the major life activity can be mitigated with certain measures,

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then there's no disability.

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And here the major life activity that was at issue was eating.

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And to say that eating was mitigated by eating, it's circular, it doesn't make sense.

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Mr. Lee needed to eat at certain times in addition to other things.

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And the problem here is that

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The district terminated him for allegedly falling asleep on the job on a day when it was established that he did not have the opportunity to eat.

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And so I think what the jury, the jury's determination was that Mr. Lee was able to do his job if he ate.

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And if he could do his job, if he ate, then he's not disabled.

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But what Capshie notes is that... If he just skipped a meal, would he be disabled?

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If he skipped a meal on his own?

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If Mr. Lee did not eat meals, the evidence in the record is... The answer is yes.

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If for some reason he just forgot to eat at one time, would he be disabled?

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Yes, the evidence in the record established that he would be woozy, he would fall asleep, or he could slip into a diabetic coma.

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And that's the kind of dire consequence.

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Is that consistent, in your view, consistent with Sutton or not?

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I believe so, and I believe that, again, Kapsche is instructive because Kapsche interpreted Sutton, interpreted a person with a substantial limitation on the eating, and found that where the

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the treatment regimen itself can be what substantially limits a major life activity.

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So, what the court in Kaftschie found, based upon an analysis of Sutton, was that although the plaintiff's treatment regimen allowed him to control the diabetes, the regimen itself substantially limited the major life activity.

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Well, you have switched your argument.

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You switched your argument from trial to the Court of Appeals.

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I wanted to listen to make sure I was getting

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At the district court, you objected to the jury instruction because there's no evidence that Lee got all of his meals.

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On appeal, you are arguing that regardless of whether he had all of his meals, the requirements of a meal schedule were themselves substantial limitations.

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They're entirely different theories.

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You've completely changed your theory and you can't do that on appeal.

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Well, and I think the evidence and the record establish that he did not have all of his meals on the day in question.

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That's a jury question.

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And you're climbing a really steep hill to try and convince us to overturn the jury's decision on whether or not there was substantial evidence that he got the meals, which is what the fight was.

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about the jury instruction below and what your theory was below.

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That is, he really wasn't getting the meals that he needed.

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Supreme Court has said that can be a mitigating factor, so the fight was whether he actually got the meals.

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On appeal, you switch.

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You say regardless of whether he had the meals, the requirement of having a meal schedule is itself a substantial limitation.

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That's a completely different theory.

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I respectfully disagree.

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I believe that.

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Well wait, I'm reading what's in your brief.

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I'm looking at it.

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I'm not making this up.

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I don't think they're different theories.

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All right, fine.

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You don't think they're different?

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Well, there's one judge up here who can't put them together.

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If you start the second one by saying whether or not he got the meals is not the question, they're completely different.

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And that's what you did.

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Regardless of whether he had his regular meals, the requirement of his meal schedule was itself the substantial limitation.

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That's completely different than the theory below.

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And what the jury had was a very typical jury question.

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They decided it, whether you and I would agree, whether they were right or wrong, they decided it.

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They could listen to the evidence and say he was able to eat his meals and no one stopped him.

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Yeah, I think that the instruction was misleading in that, and I don't think it's a different argument.

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I apologize, but I... You don't have to apologize.

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I just want you to, I'm giving you a shot at me so I can clear my head, but they look very different to me.

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I think the sudden instruction that said that he could be mitigated, there was no evidence in the record to suggest that

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that the meals were provided on the night in question.

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Wasn't it your obligation to put evidence in the record?

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The evidence in the record was that he did not have a meal on the night in question.

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And so the instruction misled the jury.

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He did not have a meal or did not have a snack.

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a meal or a snack.

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It's an eight hour shift.

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I thought the testimony was that he had had meals, as he always did, but he didn't have meals during work.

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He had arranged his schedule so there were no meals during work, but that he would bring a snack, but on this night he forgot the snack.

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Right.

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And on this night, the snack, whether it's a meal or a snack, he still needed to eat.

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In between meals, two hours.

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It does make a bit of a difference, doesn't it?

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Because I don't think you put on evidence that missing a snack would have dire consequences to him.

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this case I thought was about missing the snack.

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But actually isn't this case really about what Judge Silberman started?

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This is actually a very discreet issue here.

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And that is, is there a factual, in the record, is there a factual basis to support the jury instruction?

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And the jury instruction is simply following Sutton, right?

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There's nothing odd about the jury instruction.

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You may disagree with Sutton.

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Congress didn't like Sutton, so they had their way with it.

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But under Sutton, the question we have to ask

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in answering whether there's a disability is, can the impairment be addressed?

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And as I understand it, the only question on appeal, whether it's been forfeited or not, it's a different issue, the only question on appeal is whether there was sufficient factual basis in the record to justify that instruction.

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And so let me ask you, was there anything in the record dealing with the mitigation of the impairment?

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Anything at all?

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I don't believe there was.

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I believe that if the impairment was his ability to work, and you're arguing the mitigating measure would be if he ate at regular times he could work, then yes, there would be evidence in the record.

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But here, the limitation is the ability to eat.

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And the regimen itself is what

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was the substantial limitation.

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Yeah, that's just switch theory.

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Yeah, I understand that.

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Well, it's a different theory.

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That's not the case we prepared.

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A limitation when eating would come about, let's suppose if you had something in your mouth that prevented you from eating.

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I don't understand the limitation in eating in this case at all.

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I'm very puzzled about it.

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Many courts, including this court in Kapsche, have found that there can be a substantial limitation on the ability to eat.

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Yes, of course.

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I can see it.

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But I don't see this as a case of whether there's a substantial limitation on the ability to eat.

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And it's not whether you can put food in your mouth, but it's whether if you do not eat according to a certain regimen, you will suffer dire consequences.

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And what makes this case different from the cases relied upon by the government

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Actually, there was evidence in the record that he fell asleep independently of any eating question.

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And the jury could have concluded that, couldn't they?

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But that's not the issue that they reached.

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Or that he forgot his snack.

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Or he forgot his snack, right?

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But he forgot the snack and then called to ask for relief so he could get a snack and eat.

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And the district would argue that he fell asleep.

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There's a difference of... What is it, not a jury question?

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that whether or not he fell asleep or whether or not he was woozy, yes, that's a jury question, but whether or not there was no evidence to suggest that if Mr. Lee did not eat his snacks or did not have a meal, he would not suffer dire consequence.

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And that's what the... But the question, there's a threshold question we're dealing with here, right, is that is whether he's covered by the Act, whether he's disabled, right?

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Right.

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And Sutton tells us, at least at that period of time, how we answer that question.

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Correct?

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Correct.

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And that question is, if there are ways to mitigate the impairment, Sutton tells us, you're not disabled.

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Correct.

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And as I understand, that was the question, that was what framed the jury instruction.

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Correct.

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Now what's wrong with that?

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That's a statement of law.

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Even if the statement of law is correct, as we note in our papers, even if it's correct, if there's no evidence to support an aspect of it.

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But wasn't there lots of testimony that he had this impairment that could be controlled with diet and exercise, right?

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With diet and exercise?

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That cuts right to the core of the question of whether he's disabled or not.

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I don't see how a jury would be misled by that.

[00:13:18] Speaker 01:
Well, and I think because it implies that the treatment regimen itself, that the meal plans, having to eat at certain times and spacing things apart, having to take medication and the exercise, it's implying that that in of itself is not a substantial limitation on his eating.

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It's saying just by eating, he's OK.

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But it's not just by eating, it's by eating at certain times.

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What did you suggest as the proper instruction to the judge?

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I think the instruction... What did you suggest is the proper instruction?

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You objected to the instruction in a peculiar way.

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You said we thought that issue came up before.

[00:14:03] Speaker 01:
I must admit I don't know what there was a prior instruction and then the district asked for this instruction after the close of trial for the first time.

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I must admit I don't know the answer that I wasn't the attorney arguing the case.

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So I don't know what I'm sure it's in the record and I can look for that but I don't I don't know the answer to that question.

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Okay, if there are no further questions, we'll give you back a couple of minutes.

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Thank you.

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We'll hear from the District of Columbia now.

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Good morning, and may it please the court, Paul Scherfield for the District of Columbia.

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The plaintiff fails to show error, let alone reversible error in the court's instruction on mitigating measures.

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I think it is conceded here today, as well as in the plaintiff's reply brief, that this was a jury question, whether the plaintiff was disabled, and that the plaintiff had the burden of proof on this issue, and that in order for the jury to apply the evidence that it had heard regarding mitigating measures,

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Is that a correct statement of law?

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Everybody seems to agree to that, but I'm not sure.

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Is that a correct statement of law?

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What the district judge said in the instruction?

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Well, on the sudden, at that time.

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Didn't Justice O'Connor point out that there was a balancing test as to whether the mitigating factors were of such a nature as to still constitute a disability?

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Well, the instruction that the court... I don't recall the particulars of Justice Conner's... You don't recall the opinion of Sutton?

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I didn't think that would be relevant to the case, since that's your argument.

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Well, but Your Honor, it is conceded that the instruction that the court gave was a correct statement.

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I understand that.

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I'm asking a separate question.

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Notwithstanding the fact that it's conceded, I'm puzzled.

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Was it a correct instruction?

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Yes, Your Honor, it was a correct instruction.

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But doesn't Sutton say it's a balancing test?

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that the mitigating measures can be so significant that the disability remains.

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And I don't think that that is inconsistent at all with the instruction that the court gave.

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It's conceded that the instruction was a correct statement of law.

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There was no alternative.

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I agree, I agree, I agree.

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Frankly, I don't think it was.

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It isn't before.

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It puzzles me because I don't think it was a correct instruction.

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In other words, that at least was a good argument.

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As I read Sutton, it's up to the jury to determine whether the mitigating factors have such great significance themselves that the disability remains.

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Well, this is the instruction that was agreed upon.

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I agree with Judge Griffith.

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whatever argument he's making here, he didn't write down below, and he didn't even suggest a different instruction.

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Yes, Your Honor, and those are my points as well.

[00:17:24] Speaker 04:
There is no alternative that was proposed, it was conceded this instruction was a correct statement of law.

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The argument has evolved from the time that it was made in the District Court to even

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to the appeal brief even now.

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So I think it's been forfeited as well as just being wrong on the merits.

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It was a correct statement of law.

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There was evidentiary support for the instruction.

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The testimony was that if Mr. Lee ate his regular meals, that his diabetes would be under control.

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There was also testimony that he did eat his regular meals on the day in question.

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The jury, this is a classic jury question, the jury was not required to credit Mr. Lee's testimony or the testimony of his wife.

[00:18:07] Speaker 04:
His own doctor's testimony, in our view, did not even support Mr. Lee's position and the jury's reasonable jury could so find.

[00:18:18] Speaker 04:
There was certainly evidence in the record, just to address something that plaintiff's counsel said, there certainly was evidence in the record that he did have the meals, the three meals that he was advised to have that day preceding the shift.

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The Capshie case, which plaintiff's counsel also referred to, is clearly distinguishable there.

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The court merely found the evidence sufficient to reach the jury that it was a jury question.

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resolved the issue and in fact the evidence in Capsule was much stronger than the evidence here.

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The evidence in the plaintiff's case was quite weak as we explained in our brief and again for all those reasons a reasonable jury could find the way it did.

[00:19:03] Speaker 04:
The instruction was proper, it was a correct statement of the law.

[00:19:08] Speaker 04:
It assisted the jury.

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I mean, the jury has heard evidence of mitigating measures.

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And so it needs to know how to apply that evidence.

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And the instructions serve that purpose.

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And it's not erroneous in any respect, and certainly not reversible error.

[00:19:25] Speaker 04:
If the court has further questions, I'd be happy to take them.

[00:19:28] Speaker 02:
So your argument is that the jury was properly finding that food mitigates his

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his ailment and that he was not foreclosed from having food on the schedule which was required in order to mitigate.

[00:19:47] Speaker 04:
That's correct, Your Honor.

[00:19:49] Speaker 04:
In fact, the jury could have found that diabetes had nothing to do with Mr. Lee being asleep or allegedly asleep at the night in question.

[00:20:00] Speaker 04:
That is, Mr. Lee claimed that he wasn't asleep at all.

[00:20:06] Speaker 04:
His supervisor said he did find him asleep.

[00:20:08] Speaker 04:
So there you have that conflict in the evidence that the jury resolves.

[00:20:13] Speaker 04:
And the jury could have concluded that

[00:20:15] Speaker 04:
his supervisor was correct, that he was asleep, and that Mr. Lee was falsely testifying that he was not asleep.

[00:20:22] Speaker 02:
Well, that's a different question, the one I'm raising.

[00:20:24] Speaker 04:
Oh, I just meant that the jury could infer from that that Mr. Lee was exhibiting consciousness appeal, knew himself that his diabetes had no relation to the fact of what happened that night.

[00:20:37] Speaker 04:
And so the jury, for a variety of reasons, weighing the evidence, could reach the result that it did.

[00:20:45] Speaker 04:
The instruction was proper.

[00:20:49] Speaker 04:
I've got no further questions.

[00:20:51] Speaker 04:
Thank you very much.

[00:20:56] Speaker 03:
We give you two minutes for rebuttal, not for new argument, but for rebuttal.

[00:21:01] Speaker 01:
Just with regard to the argument that the instruction was agreed upon

[00:21:06] Speaker 01:
was an accurate statement.

[00:21:09] Speaker 01:
The district court found on page 831 of the appendix, the joint appendix, that the district could give the Sutton instruction, but it was near to frivolous.

[00:21:20] Speaker 01:
And the essence of the objection going...

[00:21:26] Speaker 01:
The court said alternatively you can give up your Sutton instruction which I think is near to frivolous and we could take out regarded as so the district court my point is the district court itself the gatekeeper allowed the instruction over the objection of of trial counsel.

[00:21:43] Speaker 05:
What was the objection?

[00:21:45] Speaker 01:
The objection as noted in our brief on page 3 of the reply brief was that

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was that the evidence in the record did not support the instruction.

[00:21:58] Speaker 05:
I don't understand that objection.

[00:22:00] Speaker 05:
I just simply do not understand that objection.

[00:22:03] Speaker 05:
And you certainly, and counsel certainly didn't suggest any alternative instruction.

[00:22:08] Speaker 01:
Well, if I can just clarify that one point, the district's proposed instruction was improper because the district court had previously found in the evidence in this case.

[00:22:18] Speaker 01:
No, I read that.

[00:22:19] Speaker 05:
Right.

[00:22:24] Speaker 05:
There's no suggestion of an alternative instruction, saying this is wrong for this reason, this reason, this would be the right instruction.

[00:22:33] Speaker 01:
Well, there were instructions that were already in place, and then this came in at the last minute.

[00:22:40] Speaker 01:
So there were alternative instructions in place, and this one was objected to and allowed in.

[00:22:46] Speaker 05:
It's not your fault, Counselor.

[00:22:47] Speaker 05:
You weren't trial counsel, but it was pretty screwed up.

[00:22:51] Speaker 01:
I'm trying to do my best, sir.

[00:22:53] Speaker 01:
Um, and I guess the one other point, uh, Council mentioned CAPCI, um, again, the whole point here is that the regimen itself is what, uh, substantially limited the eating, and to say that it could be mitigated by the regimen, this Court, I would think, uh, to find other, to find that

[00:23:17] Speaker 01:
there's no limitation on eating and that it has to be work or something of that nature that's limited I think would be at odds with this court's prior decision in CAPTCHY.

[00:23:26] Speaker 01:
Thank you.

[00:23:27] Speaker 03:
Thank you very much.

[00:23:27] Speaker 03:
The case is submitted.