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In a verdict that is sure to grab the health care industry’s attention, a federal jury found that a nurse’s allergy to latex does not qualify as a disability for purposes of the Americans with Disabilities Act because her symptoms can be completely controlled by simply avoiding latex and taking prescribed medications. The Dec. 6 verdict in Scanlon v. Temple University was a victory for defense attorneys Neil J. Hamburg and JuHwon Lee of Philadelphia’s Hamburg & Golden who argued that Jennifer Scanlon could easily return to work as a nurse in a non-latex environment. In fact, during the trial, Hamburg offered Scanlon a job during his cross-examination. Although she didn’t accept on the spot, Scanlon is now exploring whether the job is one she wants, according to her lawyer, William T. Wilson of Legg & Wilson in West Chester, Pa. Just before the trial, U.S. Magistrate Judge Jacob P. Hart of the U.S. District Court for the Eastern District of Pennsylvania issued a five-page opinion in which he denied a defense motion for summary judgment. In the motion, Hamburg argued that the U.S. Supreme Court’s 1999 decision in Sutton v. United Air Lines Inc. was fatal to Scanlon’s claim because her alleged disability is completely curable. QUESTION FOR JURY But Judge Hart found that the case was not so easy and that the Sutton defense actually included several factual issues that should be decided by a jury. “The problem with the application of Sutton to the situation presented here is that the pilots in Sutton could control whether they wore glasses while flying planes. Mrs. Scanlon has presented evidence that she has no such control over her environment if she leaves her house,” Hart wrote. “We believe that the plaintiff’s control over the corrective measure is a proper consideration in conducting the inquiry. Hence, we do not believe Sutton is dispositive,” Hart wrote. Hart said the jury would decide “whether the limitations that Mrs. Scanlon’s allergy imposes substantially limit any major life activity.” If the jury sided with Scanlon on that issue, Hart ruled that it would then go on to decide “whether latex is used in the health care profession to a sufficient degree that it substantially limits Mrs. Scanlon’s ability to work in her chosen profession.” In the suit, Scanlon claimed that her latex allergy substantially limits the major life activities of breathing, sleeping, eating, working and interacting with others. In response to the summary judgment motion, Wilson submitted testimony from Scanlon’s treating doctor, who described her latex allergy as “life threatening” because of the breathing difficulty that exposure to latex causes her. The doctor also said Scanlon’s allergic reaction extended to foods that are “cross-reactive” in latex-sensitive patients, such as bananas, avocados, kiwi and chestnuts. Scanlon’s own description of her physical reaction to latex matched her doctor’s. She described wheezing and struggling for breath when she comes into contact with latex, which can progress to a tightness in her chest and an anaphylactic reaction. But Temple Hospital’s lawyers argued that Scanlon’s ADA claim was fatally flawed because she had no evidence that she suffers from any limitation caused by her allergy when she is in a latex-free environment. As a result, the defense lawyers said, if Scanlon simply avoided latex, there would be no limitation on any of her “major life activities” with the possible exception of working. As for working, the defense argued that Scanlon failed to show that her latex allergy precludes her from working in the “field” of nursing or any “class” of nursing jobs. CREDIBILITY QUESTION In the trial, Hamburg set out to attack Scanlon’s credibility by showing that she had significantly understated her income in a 1998 bankruptcy filing. Hamburg showed the jury that Scanlon was collecting workers’ compensation benefits from Temple and was therefore earning much more than she told the bankruptcy court. Scanlon was forced to admit on the witness stand that her bankruptcy filings had understated her income. In an interview Wednesday, Scanlon’s lawyer, Wilson, said that Hamburg “certainly did challenge her credibility at trial,” but that he thinks the issue did not affect the jury’s verdict. Instead, Wilson said, jurors told the lawyers after the verdict that Scanlon’s credibility issues didn’t enter into their deliberations on the question of whether she suffered from a substantial impairment of a major life activity. Hamburg said the jury’s verdict was clearly an acceptance of the defense argument that Scanlon’s latex allergy cannot be considered a disability since it can be completely cured by taking medication and avoiding contact with latex.

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