holding that it was improper to permit the expert to testify as to whether the plaintiff had been discriminated against because “[t]he expert‟s actual testimony constituted a legal conclusion for two reasons: it tracked the language of the statute, and the term „discrimination‟ has a specialized legal meaning that is more precise than the lay understanding of the term”
How later courts described this case
- holding that it was improper to permit the expert to testify as to whether the plaintiff had been discriminated against because “[t]he expert‟s actual testimony constituted a legal conclusion for two reasons: it tracked the language of the statute, and the term „discrimination‟ has a specialized legal meaning that is more precise than the lay understanding of the term”
- stating that although consideration should be given to the individual’s choice, “[n]othing in the ADA itself or its implementing regulations dictates that a disabled individual must be provided with the type of auxiliary aid or service he requests” and that deference to the requests is “by no means required”
- explaining that training and supervision claims are barred by the discretionary function exception because documents showed that the transit authority has discretion in hiring and training and the parties cited no guidelines for training, hiring, or supervision
- stating that the “supervision choices” faced by an employer were “susceptible to policy judgment” because they “involve a complex balancing of budgetary considerations, employee privacy rights, and the need to ensure public safety”
Written by the judges who cited it.
The opinion
HARRY T. EDWARDS, Chief Judge,
concurring:
I agree with the majority that plaintiffs claim of negligent hiring, supervision, and training by the Washington Metropolitan Area Transit Authority (“WMATA”) should never have been submitted to the jury..
*1218 On the principal point in issue, I am satisfied that the jury was fully justified in returning a verdict against WMATA on plaintiff’s claim that WMATA violated the Americans With Disabilities Act and the Rehabilitation Act of 1973. There is substantial evidence to support the verdict on this claim, even absent the disputed testimony of plaintiffs expert witness. The record establishes that, after boarding the bus and attempting to pay his fare, the plaintiff was slapped in the face by a WMATA bus operator, who apparently had become frustrated when the plaintiff, who is deaf, did not understand his oral commands. See Transcript at 75, 135, reprinted in Joint Appendix Volume II (“J.A. II”). Further, the record demonstrates that, after the plaintiff left the bus and located a transit officer so that he could report that the bus driver had struck him, the officer refused the plaintiffs request for a sign-language interpreter and, instead, compelled him to write notes in English. See id. at 80-82, 95, 171-76, reprinted in J.A. II. Written English is the third most comfortable language for the plaintiff, behind American Sign Language and written Spanish. See id. at 194, reprinted in J.A. II. This and other similar evidence offered by the plaintiff make it clear that there was sufficient evidence to support the jury’s verdict. Thus, I believe that, without the erroneous admission of the expert’s testimony, the plaintiff would prevail on his principal claim.
I agree, however, that the error in this case was not harmless. As I understand the “harmless error” doctrine, it is not within the province of an appellate judge to usurp the role of a jury by speculating on what a jury might have done in the absence of significant error. See Harry T. Edwards, To Err Is Human, But Not Always Harmless: When Should Legal Error Be Tolerated?, 70 N.Y.U. L. Rev. 1167 ,1193-94,1205 (1995). Our role is to assess “whether the error ‘had substantial and injurious effect or influence in determining the jury’s verdict,’ not whether the record evidence is sufficient absent the error to warrant a verdict.” Id. at 1202 (footnote omitted) (quoting O’Neal v. McAninch, 513 U.S. 432, 434-36 , 115 S.Ct. 992, 994 , 130 L.Ed.2d 947 (1995)). In this case, it cannot be said that the error did not have a substantial and injurious effect on the verdict.