                  UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF COLUMBIA


JEFFREY KAPCHE,                  :
                                 :
          Plaintiff,             :
                                 :
     v.                          : Civil Action No. 07-2093 (JR)
                                 :
ERIC HOLDER, Attorney General of :
the United States,               :
                                 :
          Defendant.             :

                          MEMORANDUM ORDER

          Jeffrey Kapche is a Type 1 diabetic.     In 2002, he

applied for a special agent position with the FBI.     He received a

conditional offer in 2004, but it was later revoked because the

FBI determined that he did not have sufficient control over his

diabetes, and that he would be unable to take on certain

responsibilities of the position.     Kapche sued under the

Rehabilitation Act.    Earlier this year, a jury awarded him

$100,000 in damages.    Dkt. 101.   The defendant now renews his

motions for judgment as a matter of law and for a new trial.       The

motions will be denied.

     A. Judgment as a matter of law

          Judgment as a matter of law should be granted only if

“the evidence and all reasonable inferences that can be drawn

therefrom are so one-sided that reasonable men and women could

not disagree on the verdict.”    Duncan v. Wash. Metro. Area

Transit Auth., 240 F.3d 1110, 1113 (D.C. Cir. 2001).
          To find for Kapche, the jury had to conclude that he:

(1) was disabled; (2) was qualified to perform the essential

functions of the position to which he applied; and (3) suffered

an adverse employment action because of his disability.   Desmond

v. Mukasey, 530 F.3d 944, 952 (D.C. Cir. 2008).   The defendant

contends that there was not enough evidence to support the jury’s

determination that Kapche was disabled.

          As I explained in my jury instructions:

          The term “disability” means a physical or
          mental impairment that substantially limits
          one or more [] major life activities. Type 1
          diabetes is not a disability unless, in the
          individual case, it substantially limits one
          or more of a person’s major life activities.
          Mr. Kapche contends that, in his individual
          case, his Type 1 insulin-dependent diabetes
          substantially limits the manner in which he
          performs the major life activities of eating
          and caring for himself when compared to an
          average person in the general population.

          In determining whether a limitation is
          substantial, you must take into account the
          effects of any mitigating or corrective
          measures, both positive and negative, on
          Mr. Kapche’s performance of the major life
          activities of eating and caring for himself.1


     1
       The standard set forth in this paragraph is derived from
Sutton v. United Air Lines, 527 U.S. 471 (1999), which addressed
the term “disabled” in the Americans with Disabilities Act (ADA).
Congress recently amended the ADA to “reject the requirement
enunciated by the Supreme Court in [Sutton] and its companion
cases that whether an impairment substantially limits a major
life activity is to be determined with reference to the
ameliorative effects of mitigating measures.” Pub. L. No. 110-
325, § 2(b)(2), 122 Stat. 3553, 3554 (2008). But because the FBI
terminated Kapche’s application before this amendment took
effect, Sutton is the controlling law of this case.

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            You may also consider these factors: The
            nature and severity of the restriction, the
            duration or expected duration of the
            restriction, and the permanent or long-term
            impact or expected long-term [] impact of or
            resulting from the restriction.

Tr. 1022:21-1023:14.

            Kapche adduced evidence and argued that, while his

diabetes was well-controlled, the measures he took to maintain

that control imposed substantial limitations on the way he ate

and cared for himself.    The defendant submits that Kapche failed

to make that showing because he did not prove that his diabetes

control regimen differed from that of a typical Type 1 diabetic,

and that, in Sutton v. United Air Lines, 527 U.S. 471 (1999), the

Supreme Court found that the standard Type 1 diabetes treatment

regimen did not impose substantial limitations on any major life

activity.    See Dkt. 112, at 4.

            The defendant’s reading of Sutton turns the opinion on

its head.    Under Sutton, to determine whether a plaintiff is

disabled, the fact finder must conduct an “individualized

inquiry” into whether the plaintiff’s condition -- or the

measures he takes to address that condition -- place substantial

limitations on his performance of major life activities.    Sutton,

527 U.S. at 483.    In dicta, to illustrate why the fact finder

should evaluate the plaintiff in his corrected state, the Court

notes:



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          [C]ourts would almost certainly find all
          diabetics to be disabled, because if they
          failed to monitor their blood sugar levels
          and administer insulin, they would almost
          certainly be substantially limited in one or
          more major like activities. A diabetic whose
          illness does not impair his or her daily
          activities would therefore be considered
          disabled simply because he or she has
          diabetes. Thus, [this] approach would create
          a system in which persons often must be
          treated as members of a group of people with
          similar impairments, rather than as
          individuals. This is contrary to both the
          letter and spirit of the ADA.

Id. at 483-84.   Mysteriously, the defendant reads this passage as

a holding that “the act of treating diabetes with insulin cannot,

by itself, constitute a disability absent some evidence of

difficulty or complications.”    Dkt. 112, at 4.   But this

paragraph is not a holding at all, much less a holding that

certain types of treatments can never constitute a disability

under federal law.    The defendant’s interpretation would treat

diabetic plaintiffs “as members of a group of people with similar

impairments, rather than as individuals,” subverting Sutton’s

fundamental ruling.

          In this individual case, there was enough evidence in

the record to support the jury’s finding that Kapche’s “Type 1

insulin-dependent diabetes substantially limit[ed] the manner in

which he perform[ed] the major life activities of eating and

caring for himself when compared to an average person in the

general population.”    Kapche described his regimen as “a constant


                                - 4 -
battle every day,” one where “the minute you don’t do [it] is

when you can have problems or complications.”   Tr. 540:7-9.   In

part, his regimen consisted of: testing his blood sugar several

times a day, Tr. 538: 18-19; closely monitoring the quality and

quantity of food he ate, Tr. 539:8-17; adjusting his food intake

and insulin levels before exercising or long days of work, Tr.

539:14-25; and recalculating his target insulin levels and food

intake when ill, Tr. 542: 23-543:7.   One of Kapche’s expert

witnesses, Dr. James Gavin, stated that Kapche was “subject to a

number of severe limitations in terms of his eating and the way

he care[d] for himself,” and highlighted the severe consequences

Kapche would face if he did not maintain constant vigilance.    Tr.

465:15-467:4.

          At trial, through cross-examination and the

presentation of his own witnesses, the defendant made the same

argument that he makes now: that Kapche’s diabetes management

regimen is simply a hassle, and involves the same kinds of

monitoring and planning that one would do when on a diet.    But

the jury determined that Kapche’s limitations were more

substantial -- a reasonable conclusion given the evidence before

them.

     B. New trial

          The defendant seeks a new trial on three grounds:

first, that I should not have allowed Dr. Gavin to present his


                              - 5 -
opinion on whether Kapche was disabled; second, that I should not

have permitted Dr. Gavin to testify that Kapche was medically

qualified to perform the essential functions of an FBI special

agent; and third, that I should have allowed the defendant to

cross-examine Dr. Gavin on the differences between two insulin-

delivery mechanisms.   None of these rulings was a “clear

miscarriage of justice,” necessitating a new trial.     McNeal v.

Hi-Lo Powered Scaffolding, Inc., 836 F.2d 637, 646 (D.C. Cir.

1988).

          The defendant contends that Dr. Gavin did not have a

factual basis for his opinion that Kapche was disabled because he

was not familiar with Kapche’s “specific management of his

diabetes.”   Dkt. 112, at 18.   The defendant is right that

Dr. Gavin did not personally conduct an examination of Kapche,

but he did review a host of records that documented Kapche’s

treatment regimen, including the FBI’s medical examination of

Kapche and depositions of the FBI’s doctors and Kapche’s treating

physician.   Tr. 461:17-462:14.    I allowed cross-examination of

Dr. Gavin on the basis of his conclusions, and the cross was

extensive, eliciting the points defendant makes on this motion:

that Dr. Gavin had never met Kapche, let alone examined him, Tr.

486:19-487:1; that he only had a limited set of medical records

to assess Kapche’s treatment regimen, Tr. 487:2-490:9; and that

he was unaware of certain aspects of Kapche’s regimen, Tr.


                                  - 6 -
490:16-491:19.   The jury was free to discount Dr. Gavin’s

testimony accordingly, but the gaps the defendant has identified

in Dr. Gavin’s account are not so large as to render his opinion

inadmissible.

          Similarly, the defendant argues that there was no

factual basis for Dr. Gavin’s testimony that Kapche was medically

qualified to be an FBI special agent.    That is not the case.   On

direct examination, Dr. Gavin stated, “since I was asked to

comment on the issue of whether or not [Kapche] was qualified to

be an agent, and I assume that to be medically qualified, I had

to depend on the input from the [FBI’s] examining physician.     And

in this case I relied on the fairly extensive physical

examination and historical record that had been obtained by the

examining physician on behalf of the FBI.”    Tr. 462:9-14.   Based

on his review of that examination, Dr. Gavin said that he

“agree[d] with the FBI’s examining physician . . . that [Kapche]

appears to have been fully qualified to assume the

responsibilities that they were vetting him for.”    Tr. 462:18-21.

          On cross-examination, Dr. Gavin reiterated that his

opinion was based on the findings of the FBI’s examining

physician, Dr. Burpeau, and that neither he nor Dr. Burpeau had a

background in occupational medicine.    Tr. 493:8-497:2.   He also

admitted that he did not know what the essential functions of an

FBI special agent were.   Tr. 497:13-19.   Again, the jury could


                               - 7 -
discount or ignore Dr. Gavin’s testimony accordingly, but

Dr. Gavin’s review of Dr. Burpeau’s medical findings, and his

background of treating diabetics with physically demanding jobs,

provided an adequate basis for his opinion that Kapche was

medically qualified to be an FBI special agent.

           Finally, the defendant seeks a new trial because I

would not allow him to cross-examine Dr. Gavin on whether the

FBI’s preferred diabetes treatment method (the “pump”) was

superior to Kapche’s treatment method (the “pen”) given the

demands of the special agent position.      Kapche attacked the

medical basis for the FBI’s pump requirement through the expert

testimony of Dr. Desmond Schatz, and I allowed the defendant to

cross-examine Dr. Schatz at length about the features of both the

pump and the pen.   See Tr. 221-66.     But I foreclosed a similar

cross-examination of Dr. Gavin because he simply stated that

Kapche could perform the duties of a special agent while using

the pen.   Dr. Gavin did not hold himself out as an expert on the

relative virtues of the pump and the pen, and he did not

criticize the FBI for its pump requirement.      Thus, the cross-

examination the defendant sought was beyond the scope of

Dr. Gavin’s direct testimony.

                         *       *          *

           The defendant’s motions [# 104] for judgment as a

matter of law and for a new trial are denied.


                                - 8 -
It is SO ORDERED.




                          JAMES ROBERTSON
                    United States District Judge




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