                                                             NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               _____________

                              Nos. 10-1919, 12-1361
                                _____________


                  THERESA M. ELLIS; SCOTT A. ZUKOWSKI

                                         v.

                ETHICON, INC.; JOHNSON & JOHNSON, INC.;
              JOHN DOES, jointly, severally, and/or in the alternative,

                                              Ethicon, Inc.,
                                                Appellant in 10-1919

                                            Theresa Ellis,
                                              Appellant in 12-1361
                                  _____________

                   On Appeal from the United States District Court
                            for the District of New Jersey
                           (D.C. Civil No. 3-05-cv-00726)
      District Judges: Honorable Freda L. Wolfson, Honorable Peter G. Sheridan
                                    _____________

                               Argued June 25, 2103

           Before: FUENTES, FISHER and CHAGARES, Circuit Judges.

                           (Opinion Filed: July 09, 2013)
                                 _____________



Francis X. Dee (ARGUED)
McElroy, Deutsch, Mulvaney & Carpenter, LLP
Three Gateway Center
100 Mulberry Street


                                         1
Newark, New Jersey 07102-4079

       Counsel for Ethicon, Inc., Appellant in No. 10-1919


Michael L. Foreman (ARGUED)
The Pennsylvania State University, The Dickinson School of Law
Civil Rights Appellate Clinic
329 Innovation Boulevard, Suite 118
State College, PA 16803

       Amicus Counsel on behalf of Theresa M. Ellis, Appellant in No. 12-1361

                                     _____________

                               OPINION OF THE COURT
                                   _____________

FUENTES, Circuit Judge:

       These consolidated appeals arose from a complaint that Theresa M. Ellis (“Ellis”)

and her husband, Scott A. Zukowski, filed against Ethicon, Inc. (“Ethicon”) in 2005,

claiming that Ethicon had violated the Americans with Disabilities Act (“ADA”) by

failing to provide Ellis with reasonable accommodations for her disability of mild

traumatic brain injury (“MTBI”). In No. 10-1919, Ethicon, Ellis’s former employer,

appeals the decision of Judge Freda L. Wolfson of the United States District Court for the

District of New Jersey denying its motion for judgment as a matter of law or for a new

trial. In No. 12-1361, Ellis appeals the ruling of Judge Peter G. Sheridan to deny her

application for emergency relief in connection with her request for front pay until

reinstatement.

       Ellis was involved in a serious car accident in January of 1999, causing her to take

a short-term disability leave from Ethicon. Ellis returned to her job as an engineer at


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Ethicon from September 1999 to April 2001, at which time she complained of increased

pain, dizziness, and difficulty concentrating. She was treated by a neurologist who

diagnosed Ellis with MTBI resulting from the car accident. Ellis began a second period

of short-term disability leave. In preparation for her return to full-time work, Ellis’s

doctors recommended to Ethicon that Ellis work from home three days a week and obtain

a job coach. Ethicon communicated that it could not accept these accommodations.

When Ellis’s second short-term disability leave ended on October 21, 2001, Ethicon

rolled Ellis into a long-term disability program, which effectively terminated her. Ellis

then obtained a job at Aventis, a company similar to Ethicon, where she worked until

August of 2004.

       At the jury trial, both parties disputed their respective participation in the

interactive process to provide Ellis with reasonable accommodations under the ADA.

The jury returned a verdict for Ellis, finding that she was disabled and qualified for relief

under the ADA, and that Ethicon had failed to provide Ellis reasonable accommodations.

The jury recommended an award of back pay and front pay. The District Court awarded

Ellis back pay and ordered Ethicon to reinstate her as a quality engineer or to a

comparable position but denied Ellis front pay because she had failed to mitigate her

damages by not making any reasonable effort to secure employment after she left

Aventis.

       After these proceedings, Ethicon offered Ellis reinstatement on two separate

occasions, but both times Ellis refused the offers. On September 30, 2011, Ellis filed an




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application for emergency relief seeking front pay until her reinstatement. The case was

reassigned to Judge Sheridan who denied Ellis’s application.

       We have jurisdiction over these appeals pursuant to 28 U.S.C. § 1291. We

exercise plenary review over a district court’s denial of judgment as a matter of law.

Eshelman v. Agere Sys., Inc., 554 F.3d 426, 433 (3d Cir. 2009). “In reviewing the grant

of a judgment as a matter of law . . . following a jury verdict, we must view the evidence

in the light most favorable to the non-moving party, and determine whether the record

contains the minimum quantum of evidence from which a jury might reasonably afford

relief.” Buczek v. Cont’l Cas. Ins. Co., 378 F.3d 284, 288 (3d Cir. 2004) (quotations

omitted). We review a district court’s denial of a request for injunctive relief for an

abuse of discretion, Pappan Enters., Inc. v. Hardee’s Food Sys., Inc., 143 F.3d 800, 803

(3d Cir. 1998), and we recognize that a preliminary injunction “is an extraordinary

remedy.” NutraSweet Co. v. Vit-Mar Enters., Inc., 176 F.3d 151, 153 (3d Cir. 1999).

       On appeal, Ethicon argues that the District Court erred by denying its motion for

judgment as a matter of law or, alternatively, a new trial. Ethicon claims that the District

Court wrongly limited its cross examination on the basis of attorney-client privilege, that

the evidence reveals that Ethicon complied with its ADA obligations by engaging in the

interactive process to provide Ellis reasonable accommodations, that Ellis failed to prove

that she was disabled or qualified under the ADA, and that reinstatement was an

improper remedy.

       After a careful review of the record and the arguments on appeal, we find no basis

to disturb either Judge Wolfson’s opinion denying Ethicon’s motion for judgment as a


                                              4
matter of law or for a new trial, or Judge Sheridan’s ruling denying Ellis’s application for

emergency relief. We agree that there was sufficient evidence that Ellis is eligible for

relief under the ADA as a disabled and a qualified individual, that Ethicon violated the

ADA by failing to engage in the interactive process and to provide Ellis reasonable

accommodations, and that reinstatement is a proper remedy. We, therefore, decline to

disturb the jury’s verdict. We also conclude that the District Court did not abuse its

discretion in limiting Ethicon’s cross examination on the basis of attorney-client

privilege. Finally, we hold that the extraordinary remedy of granting Ellis’s application

for emergency relief is not warranted in these circumstances and that Judge Sheridan’s

decision to deny this application was proper. Accordingly, we hereby affirm

substantially for the reasons stated by the District Court.




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