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A federal judge has refused to overturn a jury’s $159,000 verdict in an Americans with Disabilities Act suit brought by a man who said he was denied the right to return to work for 20 months after suffering two seizures brought on by taking creatine, a nutrition supplement, because his employer mistakenly believed he had a “serious epileptic condition.” In his 10-page opinion in Taylor v. USF-Red Star Express Inc. (I), Senior U.S. District Judge Clarence C. Newcomer for the Eastern District of Pennsylvaniafound “there was ample evidence to allow a reasonable jury to conclude that defendant acted in exactly the prejudiced and uninformed manner that the ADA was designed to prevent.” In a second 15-page opinion, captioned Taylor v. USF-Red Star Express Inc. (II), Newcomer awarded more than $283,000 in attorney fees and costs to the team of plaintiffs lawyers who secured the verdict for Edwin Taylor. Newcomer found that the litigation “was extremely hard-fought and contentious, mostly due to defendant’s apparent strategy of fighting plaintiff at every turn, through the extensive pre-trial motions practice to post-trial motions.” Defense lawyers argued that the 1,340 hours claimed by the plaintiff’s team was excessive, but Newcomer concluded that “the lion’s share of counsel’s time was reasonable.” In his order, Newcomer awarded more than $137,000 in fees to attorney Lorrie McKinley of McKinley & Ryan; more than $73,000 in fees to attorney Robert W. Meek of the Disabilities Law Project; and more than $57,000 in fees to attorney Ralph E. Lamar IV of Collegeville, Pa.; as well as more than $14,000 in costs. According to court papers, Taylor had been working for Red Star for 12 years as a truck driver and dockworker when he suffered two nocturnal seizures in March 2001. Under the company’s collective bargaining agreement, Taylor had the choice to bid either on driving assignments or dock work, and, after his seizures, he exercised his seniority rights to bid on dock work, recognizing that he could not drive a truck until the cause of his seizures was determined. But the suit alleged that Taylor’s boss sent him home based on an erroneous perception that he had a “serious epileptic condition” and that he was subject to “sudden, unanticipated losses of consciousness.” In fact, the suit alleged, Taylor’s seizures were an isolated occurrence that stemmed from his taking creatine, a nutrition supplement used to enhance muscle growth. But Taylor said his boss ignored “the mounting medical evidence” that pointed to creatine as the cause of the seizures and refused to allow him to return to work for 20 months. A jury sided with Taylor and awarded him $39,796 in back pay; $19,000 for lost pension benefits; and $100,000 in compensatory damages. In post-trial motions, Red Star’s lawyers — Edward S. Mazurek and Christopher M. Scalia of Morgan Lewis & Bockius — argued that the jury’s verdict should be set aside because the company properly insisted after Taylor’s seizures that he return to work only after a doctor “unequivocally stated that it was safe.” The defense motion noted that Taylor was employed to drive 80,000-pound tractor-trailers and 8,000-pound forklifts. The seizures, the defense team said, rendered Taylor “unconscious and unable to move or do anything else. In fact, after the seizures had passed, plaintiff could not even recognize his wife, nor could he work for an entire week thereafter.” If Taylor had suffered such a seizure while driving a forklift, the brief said, “the consequences could have been catastrophic.” The defense team argued that Taylor failed to prove his ADA claim — which was premised on a theory that he was falsely perceived as disabled — because he presented no evidence establishing that Red Star believed that his seizures prevented him from doing anything other than drive a forklift or a truck. But even if Red Star improperly regarded him as an epileptic, the defense argued, it was Taylor who “created and promoted that alleged misperception.” Plaintiffs lawyers disputed the defense characterization of the trial, arguing in a response brief that “numerous witnesses and the defendant’s own documents � support the jury’s finding that Red Star refused to permit him to return to work for 20 months on the basis of those misperceptions.” The evidence, they said, showed that Red Star’s managers “misclassified Mr. Taylor as an epileptic who was ‘seizure prone’ and subject to ‘sudden and unpredictable losses of consciousness,’” even though “not one doctor ever told the company that Mr. Taylor had epilepsy.” Newcomer sided with the plaintiff’s team, finding that “there was extensive testimony, presented by both sides, as to defendant’s perception of plaintiff, and the cause of that perception.” If the jury believed testimony that Red Star managers thought that Taylor was seizure prone and a danger to the public, Newcomer found that “they could easily have believed that defendant regarded plaintiff as being substantially limited in one or more major life activities, such as walking or talking.” Newcomer found that the defense motion was “disingenuous” because the company was arguing that the decision to send Taylor home was justified by a concern that he could have a seizure while at the same time arguing that Red Star did not perceive Taylor to be disabled. “It is flatly frivolous to argue, on one hand, that defendant did not view plaintiff as disabled in a major life activity, while with the other claiming that defendant correctly viewed plaintiff as so disabled that he could lose the ability to walk, talk or do anything else,” Newcomer wrote.

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