Maine Human Rights Commission v. Sunbury Primary Care, P.A. (770 F. Supp. 2d 370, 2011)

ORDER ON MOTIONS IN LIMINE, TO STRIKE, TO DISMISS AND FOR SUMMARY JUDGMENT

JOHN A. WOODCOCK, JR., Chief Judge.

This ease involves a disability discrimination claim by a deaf patient and the Maine Human Rights Commission (MHRC) against a medical provider. After resolving some preliminary controversies regarding expert witnesses, the Court grants in part and denies in part the provider’s dispositive motions. The Court concludes that even if the patient no longer has standing to demand injunctive relief, the MHRC maintains standing to demand it, that the patient has raised genuine issues of material fact as to whether the provider violated the Maine Human Rights Act (MHRA), that the Plaintiffs complied with the conciliation provision of the MHRA, and that the patient has raised genuine issues of material fact as to whether the provider violated the Rehabilitation Act of 1973(RA). Finally, the Court grants conceded portions of the Plaintiffs’ claims.

I.STATEMENT OF FACTS

A. Procedural History

On July 29, 2009, the MHRC and Shirley Carney filed suit in the Superior Court of Maine, Penobscot County, because Sun-bury Primary Care, P.A. (Sunbury) refused to provide her with an American Sign Language (ASL) interpreter during an August 16, 2007 office visit. Notice of Removal (Docket # 1) at 1; Aff. of Robert C. Brooks (Docket # 3) Attach. 1 ¶ ¶ 1, 2 (Compl.). In the Complaint, the MHRC and Ms. Carney assert violations of the MHRA, 5 M.R.S. § 4551 et seq., and seek compensatory damages and injunctive relief. Notice of Removal ¶ 1. Ms. Carney separately alleges violations of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and the RA, 29 U.S.C. § 701 et seq., and seeks damages and injunctive relief. Id. ¶ 1. Finally, she claims Sunbury made billing errors and seeks money “had and received.” Compl. ¶¶ 35-41. Sunbury removed the case to federal court on September 23, 2009. Notice of Removal at 1.

1. The Plaintiffs’ Motion to Exclude Expert Testimony

On July 1, 2010, the MHRC moved to exclude testimony by Sunbury’s expert, John W. “Dutch” Stephens, P.A. PI. MHRCs Mot. in Limine to Exclude Test. By Def.’s Expert Witness (Docket #31) (PL’s Mot. in Limine). Sunbury responded on July 23, 2010, and the MHRC replied on August 11, 2010. Sunbury’s Opp’n to PL MHRCs Mot. in Limine to Exclude Sunbury’s Expert Witness Test. (Docket # 54) (Def.’s Opp’n to PL’s Mot. in Limine); Pl. MHRC’s Reply Regarding Mot. in Limine to Exclude Def.’s Expert Witness (Docket #71) (PL’s Mot. in Li-mine Reply).

2.Sunbury’s Motion to Exclude Expert Testimony

On July 2, 2010, Sunbury moved to exclude the expert testimony of the Plaintiffs’ expert, Judy Shepard-Kegl, Ph.D. Def. Sunbury’s Mot. to Exclude Expert Test. Under Federal Rules of Evidence 702 (Docket #46) (Def.’s Mot to Exclude). The Plaintiffs responded in opposition on August 11, 2010. PL’s Opp’n to Sunbury’s Mot. to Exclude Expert Test. (Docket # 68) (PI. ’s Opp’n to Mot. in Limine). Sunbury replied on September 1, 2010. Def. Sunbury’s Reply to PL’s Opp’n to Mot. to Exclude Expert Test, of Judith Shepard-Kegl (Docket #80) (Def.’s Reply to PL’s Opp’n to Mot. in Limine).

3.Sunbury’s Motion to Strike the Plaintiffs’ Supplemental Expert Witness Disclosure

On September 1, 2010, Sunbury moved to strike the Plaintiffs’ supplemental expert witness disclosure relating to Dr. Shepard-Kegl’s testimony as to the effectiveness of Ms. Carney’s communication with Mr. Stephens on August 16, 2007. Def. Sunbury’s Mot. to Strike PLs.’ Supplemental Expert Witness Disclosure (Docket # 81) (Def.’s Mot. to Strike). On September 22, 2010, the Plaintiffs filed their opposition to the motion and on October 6, 2010, Sunbury filed its reply. Pis. ’ Opp’n to Sunbury’s Mot. to Strike Pis.’ Supplemental Expert Witness Disclosure (Docket #84) (Pis.’ Opp’n to Mot. to Strike); Def. Sunbury’s Reply to Pis.’ Opp’n to Def.’s Mot. to Strike Pis.’Supplemental Expert Witness Disclosure (Docket # 85) (Def.’s Mot. to Strike Reply).

4. Sunbury’s Motions to Dismiss and for Summary Judgment

On July 2, 2010, Sunbury moved to dismiss the Complaint under Rule 12(b)(1) and (6) and, separately, for summary judgment under Rule 56. Def. Sunbury’s Partial Mot. to Dismiss (Docket #47) (Def.’s Mot. to Dismiss); Def.’s Mot. for Summ. J. (Docket #48) (Def.’s Summ. J. Mot.). On August 11, 2010, Ms. Carney and the MHRC separately responded in opposition. PI. Shirley Carney’s Opp’n to Def.’s Partial Mot. to Dismiss (Docket # 60) (Carney Opp’n to Dismiss); PL MHRC’s Opp’n to Sunbury’s Mot. to Dismiss (Docket # 67) (MHRC Opp’n to Dismiss); PL Shirley Carney’s Objection to Def.’s Mot. for Summ. J. (Docket # 59) (Carney Opp’n to Summ. J.); PI. MHRC’s Opp’n to Sunbury’s Mot. for Summ. J. (Docket # 66) (MHRC’s Opp’n to Summ. J.). On September 1, 2010, Sunbury separately replied. Def.’s Reply to PI. Shirley Carney’s Opp’n to its Partial Mot. to Dismiss. (Docket #75) (Def.’s Reply to Carney Opp’n to Dismiss); Def.’s Reply to PL MHRC’s Opp’n to Sunbury’s Mot. to Dismiss (Docket #77) (Def.’s Reply to MHRC Opp’n to Dismiss); Sunbury’s Reply to PI. Shirley Carney’s Objection to its Mot. for Summ. J. (Docket #76) (Def.’s Reply to Carney Opp’n to Summ. J.); Def.’s Reply to PI. MHRC’s Opp’n to Sun-bury’s Mot. for Summ. J. (Docket # 78) (Def.’s Reply to MHRC’s Opp’n to Summ. J.).

B. Facts,

1. Shirley Carney’s Auditory and Communicative Abilities

Shirley Carney, a resident of Etna, Maine, is hearing-impaired. DSMF ¶ ¶ 20-3; POSMF ¶¶ 2-3. She has been deaf since approximately the age of three. DSMF ¶ 4; POSMF ¶4; PSAMF ¶149; DRPSAMF ¶ 149. She cannot recall ever being able to hear anything other than loud sounds and has never been able to hear voices. PSAMF ¶ 149; DRPSAMF ¶ 149.

When she was eight years old, Ms. Carney enrolled in the Baxter School for the Deaf, which she attended until she was age seventeen. DSMF ¶6; POSMF ¶6; PSAMF ¶ 150; DRPSAMF ¶ 150. She did fine academically and could have received her high school diploma if she had stayed in school a few more months. DSMF ¶ 7; POSMF ¶ 7. Ms. Carney’s parents and her eight siblings are not deaf. DSMF ¶ 5; POSMF ¶ 5. Ms. Carney communicated with her second husband by sign language. PSAMF ¶ 151; DRPSAMF ¶ 151.

To communicate with people by phone, Ms. Carney has used a video phone and Video Relay Service for the past four years. PSAMF ¶ 152; DRPSAMF ¶ 152. The Video Relay Service allows Ms. Carney to have video contact with a sign language interpreter, who then communicates in spoken English with the person Ms. Carney is calling. PSAMF ¶ 152; DRPSAMF ¶ 152. Ms. Carney’s native language is American Sign Language (ASL). PSAMF ¶ 153. ASL and English are very different languages, and while Ms. Carney is able to read and write some English, it is difficult or impossible for her to understand much of what she reads and it is often difficult or impossible for her to write in English what she wishes to say. PSAMF ¶ 153.

According to the Plaintiffs, Ms. Carney’s speech is insufficient for communication, especially in a medical context. PSAMF ¶ 155; DRPSAMF ¶155. Ms. Carney’s lip reading is limited; as calculated by Dr. Shepard-Kegl, Ms. Carney can successfully lip read 48 percent of material presented, and can recognize 35 percent of individually presented words and 53 percent of phrases. PSAMF ¶ 162. Overall, without an ASL interpreter, Ms. Carney cannot reliably access content-rich communication situations — those that involve the exchange of detailed information that is outside of a person’s everyday familiar experience. PSAMF ¶ 164. According to the Plaintiffs’ expert, an appointment with a primary care provider is the type of situation likely to involve content-rich communication and it is unlikely she could reliably understand information in such a setting. PSAMF ¶ 165.

2. Sunbury and the Hearing-Impaired

Before 2007, Sunbury did not maintain a written policy concerning the accommodation of hearing impaired. DSMF ¶ 13; POSMF ¶ 13. At the beginning of 2007, Sunbury adopted a written policy providing in part that it would “work cooperatively with hearing-impaired persons to determine whether and what auxiliary aids and services are appropriate to ensure effective communication between [Sunbury] and hearing impaired persons.” DSMF ¶ ¶ 17-18; POSMF ¶ ¶ 17-18. The policy allowed Sunbury to “select and use whatever auxiliary aid or service that it needs to ensure effective communication with hearing impaired persons.” DSMF ¶ 18; POSMF ¶ 18. When there were several options available, the provider could choose among various alternatives “as long as the result is effective communication.” DSMF ¶ 18; POSMF ¶ 18. Specifically, as regards lip reading, the Sunbury policy stated that “the provider, after consultation with the hearing impaired person will determine whether the medical information is too complex for accurate lipreading to occur.” DSMF ¶ 18; POSMF ¶ 18. As regards the use of written notes, the policy provided that “[w]hether or not a provider may rely on written notes (including a computer screen) will depend on the reading level of the hearing-impaired person, along with other considerations.” DSMF ¶ 18; POSMF ¶ 18.

3. David Saveli

Sunbury’s CEO is David Saveli. DSMF ¶ 1; POSMF ¶ 1. He is responsible for the day-to-day implementation of the policy but does not make the final determination as to whether Sunbury provides an interpreter to a hearing-impaired patient. DSMF ¶ 20; POSMF ¶ 20. The Plaintiffs deny that Mr. Saveli defers to the provider’s decision as to whether to provide an interpreter, pointing to Sunbury’s statement to Laurel Kelly, another deaf patient, when denying her an interpreter: “Any questions please call David Saveli.” According to the Plaintiffs, this suggests that the final decision was Mr. Saveli’s. POSMF ¶ 21.

Under Sunbury’s policy, it is the healthcare provider’s responsibility to determine whether the provider can achieve effective communication with the patient. DSMF ¶ 22; POSMF ¶ 22. In making this determination, the provider would consider whether they have been able to ascertain the patient’s chief complaint, whether they would be able to create a treatment plan, and whether the patient would understand their responsibility under the treatment plan. DSMF ¶ 23; POSMF ¶ 23.

4. Shirley Carney’s Prior Treatment at Sunbury and Requests for an Interpreter

Sunbury operates Corinth Family Medicine in Corinth, Maine. DSMF ¶ 1; POSMF ¶ 1. Ms. Carney was a patient as Sunbury’s Corinth Family Medicine facility from 1992 to August 16, 2007. POSMF ¶2. She first sought treatment there on May 28, 1992. DSMF ¶ 33; POSMF ¶ 33; PSAMF ¶ 166; DRPSAMF ¶166. Between May 28,1992, and July 11, 2000, Ms. Carney visited Sunbury approximately twenty-two times. DSMF ¶ 43; POSMF ¶43. During twenty of these visits — the first on November 1, 1995 — she was treated by John “Dutch” Stephens, a Certified Physician’s Assistant, who treated her for high cholesterol, various short-term illnesses, occasional physical pains, prescription of antidepressant medication, heart disease, hypertension, anxiety, depression, fibromyalgia, and tobacco smoking. DSMF ¶ ¶ 34, 43; POSMF ¶¶34, 43; PSAMF ¶ 167; DRPSAMF ¶ 167. Mr. Stephens was Ms. Carney’s primary health care provider for the next twelve years, and as of 2007, he knew more about Ms. Carney’s medical history than any other medical provider. DSMF ¶ ¶ 37, 39; POSMF ¶ ¶ 37, 39. Mr. Stephens received training on Sunbury’s policy of accommodating the hearing-impaired during March 2007. DSMF ¶ 77; POSMF ¶ 77.

When Ms. Carney first started her treatment with Mr. Stephens, there was no interpreter present and Ms. Carney felt that communication was very cumbersome and basic. PSAMF ¶ 168; DRPSAMF ¶ 168. Soon after her first appointment, Ms. Carney wrote to Mr. Stephens that she was not quite “getting it” and needed an interpreter. PSAMF ¶ 169; DRPSAMF ¶ 169. She repeated her request on three to five different occasions. PSAMF ¶ 169; DRPSAMF ¶169. She made the request for an interpreter so that she would be able to understand more of what Mr. Stephens was saying and would be able to express herself more clearly. PSAMF ¶ 171; DRPSAMF ¶ 171. Ms. Carney thought that without an interpreter, there were sometimes important things that she could not understand, that she was misunderstood, or that she could not express everything she wanted to say. PSAMF ¶ 171; DRPSAMF ¶ 171.

On January 17, 2001, Sunbury provided Ms. Carney an interpreter for the first time. DSMF ¶ 81; POSMF ¶ 81; DRPSAMF ¶ 169. Between January 17, 2001, and August 16, 2007, Ms. Carney had approximately twenty-six office visits with Mr. Stephens. DSMF ¶ 82; POSMF ¶ 82. Sunbury provided an ASL interpreter for seventeen of those visits. DSMF ¶ 82; POSMF ¶ 82. Sunbury never charged Ms. Carney for the ASL interpreter. DSMF ¶ 110; POSMF ¶ 110.

The times when an interpreter was not present were when Ms. Carney scheduled a last-minute appointment or only needed blood drawn. PSAMF ¶ 170; DRPSAMF ¶ 170. When no interpreter was present, there was much less communication between Mr. Stephens and Ms. Carney, and the writing was very limited. PSAMF ¶ 172; DRPSAMF ¶ 172. Conversely, when an interpreter was present, the communication was better and Ms. Carney felt that she learned and understood more about her medical conditions and was better able to take care of herself. PSAMF ¶ ¶ 172, 173. Ms. Carney says that without an interpreter, it was hard for her to think of how to write what she desired to communicate, and that she felt bad that it took her so long to communicate with Mr. Stephens, and consequently, she would sometimes withhold things she wanted to say and wait for the next appointment when an interpreter was present. PSAMF ¶ 174. Ms. Carney felt that she could communicate adequately with Mr. Stephens with an interpreter but could not do so without one. PSAMF ¶ 178.

On one occasion, December 15, 2006, Ms. Carney spoke with Melissa White in Sunbury’s billing department and Ms. White informed her that Sunbury no longer provided interpreter services. DSMF ¶ 25; POSMF ¶25. Ms. White told Ms. Carney that Sunbury could no longer afford an interpreter until Ms. Carney paid the money she owed. As a result, Ms. Carney filed a complaint with the MHRC. PSAMF ¶ 190; DRPSAMF ¶ 190. On October 16, 2008, the MHRC issued a Right to Sue letter as to Ms. Carney’s charge against Sunbury arising out of the alleged 2006 discrimination. DSMF ¶ 134; POSMF ¶ 134. Sunbury answered the complaint saying that they would provide an interpreter for Ms. Carney’s office visit as soon as she took steps to bring her account up to date. PSAMF ¶ 191; DRPSAMF ¶ 191. Mr. Saveli later spoke to Ms. White and corrected her misunderstanding of Sunbury’s policy. DSMF ¶ 26; POSMF ¶ 26. Ms. Carney has never commenced any litigation against Sunbury relating to the alleged 2006 discrimination. DSMF ¶ 134; POSMF ¶ 134.

Ms. Carney often wrote letters to Mr. Stephens asking about medical issues, which she would fax to him, rather than make an office appointment. DSMF ¶ 41; POSMF ¶ 41. The Plaintiffs attribute this practice to the comfort Ms. Carney felt in being able to remain at home and have the time to consider what she would write and Mr. Stephens’ responses. POSMF ¶ ¶ 41, 73. Mr. Stephens or someone from his office would typically fax his response back to Ms. Carney, occasionally asking followup questions. DSMF ¶ 42; POSMF ¶ 42. The written correspondence exists in Ms. Carney’s medical chart and most was generated outside of an office visit. DSMF ¶ 73; POSMF ¶ 73. During Ms. Carney’s twelve year professional relationship with Mr. Stephens, she was able to successfully communicate through written correspondence on a number of medical topics. DSMF ¶ 78; POSMF ¶ 78.

Mr. Stephens admits that he could communicate effectively with Ms. Carney when an interpreter was present. PSAMF ¶ 179; DRPSAMF ¶ 179. When no interpreter was present, Mr. Stephens and Ms. Carney communicated through hand-written notes, gestures, and lip reading. PSAMF ¶ 180; DRPSAMF ¶ 180. Without an interpreter, Mr. Stephens acknowledged that communication with Ms. Carney would not be as fluent or fluid. PSAMF ¶ 181; DRPSAMF ¶ 181. Once Sunbury started providing an interpreter, Ms. Carney told Mr. Stephens that it was much easier to understand him with an interpreter present, and Mr. Stephens responded that he also understood what she was communicating much better when an interpreter was present. PSAMF ¶ 183. Sunbury says that Mr. Stephens was able to use objective measures such as blood tests and physical examinations to ensure that his communication was effective. PSMF ¶ 80; POSMF ¶ 80. However, not all of Ms. Carney’s medical conditions involved physical examinations or blood tests. POSMF ¶ 80.

5. Shirley Carney’s Requests for an Interpreter for her August 16, 2007 Office Visit

On July 31, 2007, after a series of faxes between Ms. Carney and Mr. Stephens or his medical assistant, Kathleen Francis, regarding blood work, a check-up, prescription renewal and chest pain, Ms. Carney received a fax from Ms. Francis saying that Ms. Carney should schedule an appointment with Mr. Stephens, but that Ms. Carney first needed to contact Sun-bury’s billing department. DSMF ¶ ¶ 44-49, 54; POSMF ¶ ¶ 44-49, 54; PSAMF ¶ 184; DRPSAMF ¶ 184. Ms. Carney responded, asking why she should call the billing department “Cause I do still payment every month to the billing Dept since about 8 mos. ago.” PSMF ¶ 49; POSMF ¶ 49. Ms. Francis wrote back that an appointment had been set up with Mr. Stephens for August 16, 2007. PSMF ¶49; POSMF ¶ 49.

On August 1, 2007, Ms. Francis received a fax from Ms. Carney asking whether an appointment was available before August 16, 2007, because her chest pain persisted, and stating her need for an interpreter— preferably Suzette Carter. DSMF ¶ 50; POSMF ¶ 50; PSAMF ¶ 185; DRPSAMF ¶ 185. Ms. Francis forwarded Ms. Carney’s request to the Office Manager, Gloria Martin, who called Mr. Saveli concerning the request. DSMF ¶ ¶ 51, 105; POSMF ¶ ¶ 51, 105. Mr. Saveli asked Ms. Martin to check with Mr. Stephens to determine whether an interpreter would be required for effective communication to develop a treatment plan and to ensure Ms. Carney’s involvement with the plan. DSMF ¶ 106; POSMF ¶ 106. Mr. Saveli later spoke to Ms. Martin to confirm that she had spoken to Mr. Stephens. DSMF ¶ 107; POSMF ¶ 107.

Ms. Martin reported to Mr. Saveli that Mr. Stephens told her that he could communicate effectively with Ms. Carney. DSMF ¶ 107; POSMF ¶107. Mr. Stephens cannot remember being told on August 1, 2007 that Ms. Carney specifically requested an interpreter for her next office visit, but he does remember being asked if he thought he needed an interpreter to effectively communicate with Ms. Carney. DSMF ¶ 109; POSMF ¶109. Mr. Stephens says that he answered “no,” that he did not think he needed an interpreter to effectively communicate with her. DSMF ¶ 109; POSMF ¶ 109. Mr. Saveli told Ms. Martin that if Mr. Stephens feels that communication can occur, then Sun-bury’s policy indicates that the provider is the ultimate decision-maker as to whether an interpreter would be provided. DSMF ¶ 107; POSMF ¶ 107. Mr. Saveli did not tell anyone whether an interpreter should be provided for Ms. Carney’s August 16th visit. DSMF ¶ 107; POSMF ¶ 107. He understood that Ms. Carney was requesting an interpreter for only a single appointment as Sunbury’s policy takes an appointment-by-appointment approach. DSMF ¶ 108; POSMF ¶ 108. Ms. Francis responded to Ms. Carney’s interpreter request on August 1 by fax, saying that August 16 was the first available appointment, that Ms. Carney should go to the emergency room if her chest pain was getting worse, and that “[a]n interpreter will not be provided by this office but you may bring one on your own if you desire.” DSMF ¶ 52; POSMF ¶52; PSAMF ¶ 188; DRPSAMF ¶ 188.

The parties dispute the reason Ms. Carney requested an interpreter. Sunbury says it was because she wanted to set a precedent to make sure there were interpreters for all future deaf patients. DSMF ¶ 63. Pointing to Ms. Carney’s deposition, Sunbury also says that Ms. Carney felt only that she “should” have an interpreter, not that she “must” have one. DSMF ¶ 64. The Plaintiffs respond that this portion of Ms. Carney’s deposition recites only part of the reason Ms. Carney is proceeding against Sunbury. POSMF ¶ 63. The Court accepts Ms. Carney’s testimony as self-explanatory — Ms. Carney requested an interpreter both to set a precedent, Deposition of Shirley Carney 75:9-23 (Docket # 37) (Carney Dep.), and because she felt she needed one to communicate with Mr. Stephens. Id. 75:9-23, 76:11-16.

6. Shirley Carney’s August 16, 2007 Office Visit

The last time that Ms. Carney had been seen at Sunbury prior to her August 16, 2007 visit was in June 2006. PSAMF ¶ 202; DRPSAMF ¶ 202. The parties dispute the precise reason for Ms. Carney’s August 16 visit. Sunbury says that Ms. Carney requested it “for the purpose of having him check on the same conditions that he had been seeing her for previously”: high cholesterol, high blood pressure, and prescription renewal. DSMF ¶ 54. The Plaintiffs agree, but add that she was seeking to have all of her medical conditions checked, including her heart disease, hypertension, high cholesterol, high blood pressure, prescription renewal, tobacco smoking, anxiety, depression, fibromyalgia, chest pain and blood work. POSMF ¶ 54; PSAMF ¶186. DRPSAMF ¶ 186. Mr. Stephens noted in his office notes for Ms. Carney’s August 16, 2007 visit that Ms. Carney needed to refill her medications as they had run out three months before her visit, that her depression was worse without the medications, that Ms. Carney had been complaining of chest pain, and that she had been seen in the emergency room but was too anxious to undergo a stress test. DSMF ¶ 57; POSMF ¶ 57. Sunbury also points to Ms. Carney’s deposition testimony that she only wanted to get her medication refilled and says that Ms. Carney’s affidavit contradicts her deposition testimony. DSMF ¶ 62; DRPSAMF ¶ 186. The Plaintiffs say that her deposition testimony does not support the conclusion that she only kept her appointment with Mr. Stephens to get her medications refilled, but that she also had questions relating to her other medical issues, including her stress test. POSMF ¶ 62. The Plaintiffs say that Mr. Stephens regarded the visit as an “acute” one. POSMF ¶ 54; PASMF ¶204. For purposes of Sunbury’s motion for summary judgment, the Court accepts Ms. Carney’s statements that she saw Mr. Stephens on August 16, 2007 to address a variety of ailments and to get her prescriptions refilled.

Before the office visit, Mr. Stephens “very likely” reviewed a fax from Ms. Carney addressed to him dated June 11, 2007 that stated: “Dr. Stephens[:] I think I need to see you for Blood work + check up. Also need medicines too[.] Monday till now I have left chest pain. I need to see you as soon as possible. Thank youl/s/] Shirley Carney.” PSAMF ¶ 194 (brackets in PSAMF); DRPSAMF ¶ 194. He also very likely saw a reply to Ms. Carney’s fax stating “Shirley, Dutch is on vacation this week. You need to go to the ER for your chest pain! Sheila.” PSAMF ¶ 195; DRPSAMF ¶ 195. On July 23, 2007, Mr. Stephens received a fax stating “Dr. Stephens, I was in E.R. last week And they put me Nuclear Cardiology. I did one last Friday but I was scared of that maehine[.] I couldn’t go I have phobia. So they want me to ask you for medication for relax, you have to call Dr. Oxley at EMC. Let me know. ok. Thank you[/s/] Shirley Carney.” PSAMF ¶ 196 (brackets in PSAM); DRPSAMF 1Í196. Mr. Stephens wrote a prescription on the bottom of this July 23rd fax and Ms. Carney received notice of the prescription by fax on July 24, 2007. PSAMF ¶ 197; DRPSAMF ¶ 197. Before the August 16th visit, Mr. Stephens likely reviewed a number of other documents relating to Ms. Carney’s need for an office visit and containing a written dialogue with Ms. Carney discussing the nature of her visit to the emergency room. PSAMF ¶ ¶ 198-200; DRPSAMF ¶ ¶ 198-200.

There was no interpreter present during the August 16, 2007 office visit, which made Ms. Carney very angry. PSAMF ¶ 206; DRPSAMF ¶ 206. During this visit, as with previous office visits when no interpreter was present, she and Mr. Stephens communicated using a combination of lip reading, gestures and writing — similar to the methods that Ms. Carney used to communicate with her first husband during their ten-year marriage. DSMF ¶ ¶ 66, 87; POSMF ¶¶66, 87; PSAMF ¶ 207; DRPSAMF ¶207. Ms. Carney cannot remember what she told Mr. Stephens about her health during the August 16, 2007 visit. DSMF ¶58; POSMF ¶ 58; PSAMF ¶ 222; DRPSAMF ¶222. Ms. Carney also cannot recall whether she left the office visit with any unanswered questions. DSMF ¶ 69; POSMF ¶ 69. However, she does remember that she did not ask Mr. Stephens all that she wanted to ask him because of the difficulties of communicating without an interpreter. POSMF ¶ 69; PASMF ¶¶ 223-24; DRPSAMF ¶¶ 223-24. Although Ms. Carney cannot remember any specific miscommunication with Mr. Stephens, she experienced the same general difficulties communicating with Mr. Stephens that were present in her earlier visits in which an interpreter was not present. DSMF ¶ 70; POSMF ¶ 70. Mr. Stephens stated that “if [Ms.] Carney had scheduled an appointment to go over a new constellation of symptoms or issues and she informed me that she might have a difficult time communicating these symptoms to me, as she did on January 7, 2001, then I would very likely conclude that I would need an ASL interpreter to ensure that we communicated effectively about her medical condition. PSAMF ¶203; DRPSAMF ¶203. According to Dr. Shepard-Kegl, Ms. Carney could not have effectively communicated during her August 16, 2007 visit without the assistance of an ASL interpreter. PSAMF ¶ 187; DRPSAMF ¶ 187.

Many of the conditions for which Ms. Carney was treated did not require extensive or complicated verbal communication; however, nearly all of them required, at a minimum, that Mr. Stephens ask about her medical history. DSMF ¶ 68; POSMF ¶ 68. During the office visit, Mr. Stephens performed a routine physical examination during which he evaluated Ms. Carney’s respiratory and cardiovascular systems and examined her extremities. DSMF ¶ 97; POSMF ¶ 97. None of the actions he performed during this physical examination required any material interaction with, or cooperation by, Ms. Carney. DSMF ¶ 97; POSMF ¶ 97. Mr. Stephens developed a treatment plan for Ms. Carney that included (1) refilling prescriptions, (2) referral to Northeast Cardiology Associates for further testing for chest pain, and (3) ordering blood tests to monitor her high cholesterol. DSMF ¶ ¶ 95, 99; POSMF ¶ ¶ 95, 99. Ms. Carney successfully followed through on the treatment plan, and her follow-through may have been as good as or better than any hearing-enabled patient of Mr. Stephens. DSMF ¶ 100; POSMF ¶ 100.

Ms. Carney’s August 16, 2007 office visit lasted between thirty and sixty minutes. DSMF ¶ 67; POSMF ¶ 67. This is consistent with the usual length of her office visits; however, if an interpreter was present, the visits were shorter. DSMF ¶ 67; POSMF ¶ 67. Visits without an interpreter lasted about twice as long as visits for a comparable hearing-enabled patient. DSMF ¶ 72; POSMF ¶ 72.

Ms. Carney decided upon leaving her August 16, 2007 visit with Mr. Stephens that she would not see him again. DSMF ¶ 60; POSMF ¶60; PSAMF ¶225. She was never told by anyone at Sunbury that she should find another doctor. DSMF ¶ 103; POSMF ¶ 103. On December 5, 2008, Ms. Carney began seeing Dr. Julie Hicks at Sebasticook Regional Family Care in Carmel, Maine. DSMF ¶ 101; POSMF ¶ 101. Dr. Hicks’ office is five minutes away from Ms. Carney’s home. DSMF ¶ 102; POSMF ¶ 102. Ms. Carney has no plans to transfer her care from Dr. Hicks. DSMF ¶ 104; POSMF ¶ 104.

7. The Commission’s Action Against Sunbury

Attorney Michael Duddy previously represented Sunbury before the MHRC in connection with a charge filed by Sunbury patient, Ms. Kelly, on November 17, 2006. DSMF ¶ 132; POSMF ¶ 132. Attorney Duddy also represented Sunbury in connection with the charge filed by Ms. Carney on January 30, 2007. DSMF ¶ 133; POSMF ¶ 133. Both Ms. Kelly and Ms. Carney were represented by Attorney Elizabeth Gallie before the MHRC. DSMF ¶ 135; POSMF ¶ 135. On several occasions, Attorney Gallie informed Attorney Duddy that Sunbury’s formal written policy regarding accommodation of hearing-impaired patients satisfied applicable law and was therefore “fine.” DSMF ¶ 135; POSMF ¶ 135.

On April 4, 2008, Attorney Duddy served Sunbury’s response to Ms. Carney’s charge of discrimination relating to the August 1, 2007 events. DSMF ¶ 136; POSMF ¶ 136. There was virtually no activity in the case until May 20, 2009, when Attorney Duddy received an e-mail from MHRC investigator, Angela Tizón, notifying him that the case was “running close to the statute of limitations.” DSMF ¶ 136; POSMF ¶ 136. Investigator Tizón said that she was attempting to gather additional information to make a finding and asked him a number of questions related to Sunbury’s position. DSMF ¶ 136; POSMF ¶ 136. Attorney Duddy responded on June 2, 2009. DSMF ¶ 136; POSMF ¶ 136.

On June 5, 2009, the MHRC mailed Attorney Duddy the Investigator’s Report summarizing her preliminary investigation and recommended results. DSMF ¶ 137; POSMF ¶ 137. The report recommended that the MHRC find reasonable grounds to believe that Sunbury discriminated against Ms. Carney on the basis of disability by denying her a qualified interpreter on August 16, 2007, and further recommended that conciliation should be attempted pursuant to 5 M.R.S. § 4612(3). DSMF ¶ 137; POSMF ¶ 137. On June 29, 2009, the MHRC voted to accept the Investigator’s recommendation and determined that there were “reasonable grounds to believe an unlawful discrimination has occurred.” DSMF ¶ 138; POSMF ¶ 138.

On July 1, 2009, the MHRC’s Compliance Officer, Fran Davis, wrote to Attorney Gallie requesting a settlement demand as soon as possible in light of the August 1, 2009 statute of limitations. PSAMF ¶ 234; DRPSAMF ¶ 234. The following day, Attorney Gallie wrote back that, “because of the personalities involved,” she doubted that a settlement would be reached before the statute of limitations, and that she had previously made an offer to settle to Mr. Duddy, but he did not respond. PSAMF ¶ 235; DRPSAMF ¶ 235. Also that day, Ms. Davis, sent Attorney Duddy a letter incorporating Ms. Carney’s previous settlement demand, requesting conciliation, and stating that “[s]ince the statute of limitations runs in less than one month, please respond to this letter no later than July 17, 2009.” DSMF ¶ 139; POSMF ¶ 139; PSAMF ¶ 236 (emphasis in original); DRPSAMF ¶ 236. At this time, only money — not an injunction — was requested. DSMF ¶ ¶ 139, 146; POSMF ¶ ¶ 139, 146. The MHRC did not suggest that it was either considering or had decided to commenee litigation against Sunbury based upon Ms. Carney’s allegations. DSMF ¶ 139; POSMF ¶ 139.

Ms. Davis did not hear from Attorney Duddy until July 17th, when she received a telephone message from him stating that he could not respond to her July 2 letter until July 27, 2009. PSAMF ¶ 237. Attorney Duddy informed Ms. Davis that an agreement was unlikely so long as Ms. Carney persisted in her demands, but that Sunbury was willing to continue negotiating and could probably agree to settle for a lesser amount. DSMF ¶ 139; POSMF ¶ 139; DRPSAMF ¶ 237.

On July 22, MHRC’s Counsel, John Gause, told Ms. Davis that he would be out of the office the following week and that the complaint must be mailed by July 27 to meet the August 1 statute of limitations. PSAMF ¶ 238. Ms. Davis determined that conciliation of the complaints would not be possible before the expiration of the statute of limitations and, on July 22, she sent Sunbury’s counsel a letter stating, “Please be advised that, because of the pending statute of limitations deadline of August 1, 2009, the Commission has little choice but to consider conciliation efforts to be unsuccessful at this time.” DSMF ¶ 141; POSMF ¶ 141; PSAMF ¶¶239, 240; DRPSAMF ¶ ¶ 239, 240. As of July 22, settlement negotiations had been ongoing for less than twenty days. DSMF ¶ 142; POSMF ¶ 142.

Between July 22 and August 4, 2009, Attorney Duddy does not recall receiving any communication from either the MHRC or Ms. Carney’s attorney regarding the settlement. DSMF ¶ 143; POSMF ¶ 143. On August 4, Sunbury’s counsel received an email from Mr. Gause with an attached copy of the complaint, which had been filed on July 29, 2009. DSMF ¶ 144; POSMF ¶ 144. Attorney Gallie signed the Complaint on July 23rd and Attorney Gause did so on July 27th. DSMF ¶ 144; POSMF ¶ 144. This email was the first time Attorney Duddy learned that MHRC intended to sue in its own capacity based upon Ms. Carney’s allegations. DSMF ¶ 146; POSMF ¶ 146. The Complaint demanded injunctive relief, which had not previously been part of Ms. Carney’s demand. DSMF ¶ 145; POSMF ¶ 145.

II. DISCUSSION

A. Intersection of State and Federal Law

Counts I, II and III allege violations of state and federal human rights laws. Because the state laws closely track their federal counterparts, the Court applies the judicial analysis of the federal laws to the state laws. See, e.g., Forrest v. Brinker Intern. Payroll Co., 511 F.3d 225, 228 n. 1 (1st Cir.2007) (applying a litigant’s “MHRA claim and Title VII claim concurrently”); Dudley v. Hannaford Bros. Co., 333 F.3d 299, 312 (1st Cir.2003) (“It is settled law that the MHRA should be construed and applied along the same contours as the ADA.”); Kropp v. Me. Sch. Admin. Union # 44, Civil No. 06-81-P-S, 2007 WL 551516, at *14 (D.Me. Feb. 16, 2007) (“[T]he Maine Law Court has held that, with respect to a plaintiffs entitlement to damages under the Maine Human Rights Act in a case concerning public accommodation, the standard to be applied to a claim for damages is to be guided by federal precedent concerning the ADA”); French v. Bath Iron Works Corp., 45 F.Supp.2d 69, 74 (D.Me.1999) (“When interpreting the MHRA, it is, in fact, appropriate to refer to federal law interpreting the ADEA”); Winston v. Me. Technical Coll. Sys., 631 A.2d 70, 74-75 (Me.1993) (“[Bjecause the MHRA generally tracks federal anti-discrimination statutes, it is appropriate to look to federal precedent for guidance in interpreting the MHRA”); Lerman v. Mt. Sinai Cemetery Ass’n, Inc., No. CIV.A. 99-613, 2001 WL 1711516, at *4 (Me.Super. Feb. 28, 2001) (“The use of Title VII case law is appropriate as an aid in interpreting this antidiscrimination provision of the Maine Human Rights Act”).

B. Motion to Strike

On August 16, 2010 — after discovery closed on May 28, 2010, and during briefing on Sunbury’s dispositive motions — the Plaintiffs supplemented their expert disclosure for Judy Shepard-Kegl, Ph.D. Def’s Mot. to Strike Attach. 1 (Pis.’ Supplemental Expert Witness Disclosure):

In addition to the opinions identified in Plaintiffs’ original Designation, Plaintiffs expect Judy Shepard-Kegl, Ph.D. to offer at trial the opinions expressed in her Affidavit, dated August 3, 2010, and submitted as an attachment to Plaintiffs’ Opposing Statement of Material Facts in this case. The bases for Dr. ShepardKegl’s opinions are identified in her report, attached to Plaintiffs’ original Designation, her deposition testimony, and in her Affidavit. In addition, with respect to her opinion concerning Shirley Carney’s ability to communicate effectively without an interpreter with John “Dutch” Stephens on August 16, 2007, Dr. Shepard-Kegl will be presented during her testimony with facts or data from the evidence submitted at trial concerning the circumstances of that office visit.

Id. at 1.

On September 1, 2010, Sunbury moved to strike the Plaintiffs’ supplemental expert witness disclosure. Def.’s Mot. to Strike. The gravamen of Sunbury’s motion is that the Plaintiffs’ Supplemental Expert Witness Disclosure, more than six months after the deadline for expert witness disclosure and more than three months after the close of discovery, was not based on a change in the Plaintiffs’ condition or the discovery of new information and thus violates Rule 26(a)(2). Id. at 2-3. Specifically, Sunbury says on May 28, 2010, when it deposed Dr. ShepardKegl, she testified that she “admitted to not having an opinion about that office visit specifically, but only about Ms. Carney’s ability to communicate generally.” Id. at 3. Sunbury asserts that Dr. Shepard-Kegl’s report was equally silent. Id. at 4. Sunbury complains that now that “the central legal issue to be decided at trial is whether Ms. Carney could communicate effectively without an ASL interpreter with her medical provider ... on August 16, 2007,” Ms. Shepard-Kegl has volunteered an opinion on the matter. Id. at 3-4, 6. Sunbury protests that it has been “blindsided” by this “after-the-fact bait and switch of its expert’s opinion” and urges the Court to strike the supplemental disclosure. Id. at 7.

The Plaintiffs dispute Sunbury’s characterization of the supplemental disclosure, viewing it as “a permissible refinement of Dr. Shepard-Kegl’s previously disclosed opinions,” and rejecting Sunbury’s claims of prejudice. Pis.’ Opp’n to Mot. to Strike at 2.

It is correct that if a supplemental expert disclosure presents a new theory of the case, the district court has the discretion to exclude it and if it represents a refinement, the expert should be allowed to testify. Compare Global NAPs, Inc. v. Verizon New England Inc., 603 F.3d 71, 91-92 (1st Cir.2010) (affirming a district court’s exclusion of a supplemental expert declaration filed one week before trial that “presented a new theory that differed from the expert’s earlier affidavit”), with Martinez-Serrano v. Quality Health Servs. Of P.R., Inc., 568 F.3d 278, 283 (1st Cir.2009) (excluding testimony where newly offered expert testimony “amounted to the propagation of a brand-new theory, not merely a refinement of an existing theory”). However, here the supplemental designation states only that the expert may adjust her testimony to the evidence presented at trial. This is neither unusual nor unexpected, and is a variation of the proponent’s obligation to make continuing expert disclosures. In other words, even if the Plaintiffs did not file this supplemental designation, once at trial, their expert (and Sunbury’s) will be expected to react to duly admitted testimony to the extent it affects their expert opinions. During trial, experts are frequently asked to apply their general opinions to evolving fact patterns. If the trial testimony itself violates a party’s disclosure obligations, it is another matter and it may be subject to exclusion. But the Court rejects Sunbury’s attempt to exclude expert testimony on the assumption that trial evidence will so substantially differ from what has been previously disclosed that the evidence and the expert opinion based on that evidence must be excluded.

The Court denies Sunbury’s motion to strike the supplemental designation.

C. Motions in Limine

The Plaintiffs and Defendant submitted dueling motions in limine seeking exclusion of the other’s expert witness. Specifically, the MHRC moves to exclude Sun-bury’s expert witness, John W. “Dutch” Stephens — the physician’s assistant who oversaw Ms. Carney’s medical care — because he is not qualified to offer expert opinion on Ms. Carney’s ability to communicate effectively with and without an ASL interpreter. Pl.’s Mot. in Limine at 1, 3. Sunbury, meanwhile, moves to exclude the Plaintiffs’ expert witness, Dr. ShepardKegl, “on the grounds that her testimony will not reliably assist the trier of fact to determine a fact in issue” and that her opinions “are not the result of reliable principles and methods.” Def.’s Mot to Exclude at 1. Because the outcome of these motions impacts the Court’s consideration of certain statements of material fact and, thus, the outcome of Sunbury’s motions for summary judgment, the Court addresses the motions in limine first. See Hall v. Home Depot U.S.A., Inc., Civil No. 09-277-P-H, 2010 U.S. Dist. LEXIS 111272, at *9-10 (D.Me. Sept. 14, 2010) (“Because both Home Depot and the plaintiff cite Mr. Flynn’s testimony in connection with the motion for summary judgment, I address that motion [to exclude expert testimony] first.”).

1. Legal Standard

Under the Federal Rules of Evidence:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Fed.R.Evid. 702. Under this Rule, “it is the responsibility of the trial judge to ensure that an expert is sufficiently qualified to provide expert testimony that is relevant to the task at hand and to ensure that the testimony rests on a reliable basis.” Beaudette v. Louisville Ladder, Inc., 462 F.3d 22, 25 (1st Cir.2006) (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)). The Supreme Court has instructed that, in assessing the expert testimony’s reliability and relevancy, “[t]he inquiry ... is a flexible one,” and “[t]he focus must be solely on principles and methodology, not on the conclusions that they generate.” Daubert, 509 U.S. at 594-95, 113 S.Ct. 2786.

Evaluation of an expert’s reliability is guided by the four non-exclusive Daubert factors:

(1) whether the theory or technique in question can be (and has been) tested;

(2) whether the theory or technique has been subjected to peer review and publication;

(3) the theory or technique’s known or potential rate of error;

(4) the level of the theory or technique’s acceptance within a relevant scientific community.

Id. at 593-94, 113 S.Ct. 2786. The relevancy of an expert’s testimony must not only be in accord with Rule 402, but must “assist the trier of fact to understand or determine a fact in issue.” Ruiz-Troche v. Pepsi Cola of P.R. Bottling Co., 161 F.3d 77, 81 (1st Cir.1998). That is, to be relevant, expert testimony “requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility.” Daubert, 509 U.S. at 591-92, 113 S.Ct. 2786.

2. Defendant’s Motion in Limine to Exclude Dr. Shepard-Kegl’s Testimony Regarding Ms. Carney’s General Auditory and Communicative Abilities

Sunbury directs this Court to two rulings which, according to Sunbury, stand for the proposition that “[a]n expert who expresses a general opinion but fails to apply that opinion to the relevant facts of the case cannot reliably assist the trier of facts to understand the evidence or to determine a fact in issue.” Def.’s Mot to Exclude at 2. First, in Chadwick v. Wellpoint, Inc., 550 F.Supp.2d 140 (D.Me.2008), rev’d in part on other grounds, 561 F.3d 38 (1st Cir.2009), in connection with a case involving sexual discrimination in the workplace, this Court considered the admissibility of expert testimony on sex-based stereotyping and the meaning of certain words. The Court excluded the testimony, concluding that “it would be improper to allow the plaintiffs expert, who is not familiar with [the employer-supervisor], her background, or her semantic usage, and who has not even read [the] deposition, to testify what [the person] meant.” Id. at 145. Second, in Piche v. Nugent, 436 F.Supp.2d 193 (D.Me.2006), this Court excluded expert testimony that the decedent’s use of a motorcycle helmet would more likely than not have prevented his death. The expert cited general trends in motorcycle accident data but could not determine the facts relating to the decedent’s impact and so could not connect the studies to the specific facts of the case. Id. at 209-10. The Court concluded that the studies and the accident reconstruction “are not a reliable foundation from which to predict through the benefit of hindsight that a helmet would more likely than not have prevented [the decedent] from experiencing [death or brain injury],” Id. at 210.

Sunbury’s reliance upon both cases is misplaced. In Chadwick and Piche, the Court excluded the expert testimony because the experts had failed to connect their general knowledge to the facts in the case. Here, however, there is no such disconnect. Unlike Chadwick and Piche, Dr. Shepard-Kegl’s opinion is based upon her extensive examination of Ms. Carney. Aff. of Judy A. Shepard-Kegl, PhD. ¶ 2-58 (Docket #64) {Shepard-Kegl Aff.). Moreover, the Plaintiffs have now filed a supplemental disclosure that addresses Sunbury’s objection and relates Dr. Shepard-Kegl’s generalized expertise to the office visit of August 16, 2007. Therefore, Sunbury’s motion to exclude Dr. ShepardKegl’s testimony regarding Ms. Carney’s General Auditory and Communicative Abilities is denied.

3. Defendant’s Motion in Limine to Exclude Dr. Shepard-Kegl’s Testimony Regarding Ms. Carney’s Reading Level

In addition to objecting to Dr. ShepardKegl’s testimony generally, Sunbury objects to the specific portion of Dr. Shepard-Kegl’s testimony addressing Ms. Carney’s reading level. Def.’s Mot to Exclude at 7-10. According to Sunbury, Dr. Shepard-Kegl’s opinion that Ms. Carney reads at a sub-fourth-grade level is not based on reliable methods. Id.

The Plaintiffs respond that Dr. Shepard-Kegl has explained how she arrived at her conclusions about Ms. Carney’s reading level. PL’s Opp’n to Mot. in Limine at 5-9. She presented Ms. Carney with three reading passages: at a twelfth grade level, at a fifth grade level, and an article from a Deaf newspaper. Id. at 5-6. She stated that she followed “a standard procedure used by linguists, psycholinguists, as well as writers for determining the grade level of the first two passages, which was to feed them through a word processor, in this ease Microsoft Word, which determined the grade level of the passage.” Id. at 6. Ms. Carney circled the words she did not know. Id. Dr. Shepard-Kegl said she has used the same methodology in testing 60 to 80 people over the past ten years. Id. She concluded that Ms. Carney could not read the twelve grade level passage and could get words but not the gist of the fifth-grade passage. Id. Dr. ShepardKegl also presented Ms. Carney with a series of sentences at various grade levels from the FlynWCooter Reading Inventory and she concluded based on the results that “there is no question that she is below the 4th grade reading level.” Id. at 7.

The purpose of the reliability requirement is to “ensure, as a condition of admissibility, that proffered expert testimony rests on a sufficiently trustworthy foundation.” First Marblehead Corp. v. House, 541 F.3d 36, 41 (1st Cir.2008) (quoting Crowe v. Marchand, 506 F.3d 13, 17 (1st Cir.2007)). The First Circuit has explained:

nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.

United States v. 33.92356 Acres Of Land, 585 F.3d 1, 7 (1st Cir.2009) (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997)). “[T]rial judges may evaluate the data offered to support an expert’s bottom-line opinions to determine if that data provides adequate support to mark the expert’s testimony as reliable.” Id. (quoting Ruiz-Troche v. Pepsi Cola of P.R. Bottling Co., 161 F.3d 77, 81 (1st Cir.1998)).

The state of the record on the question of the reliability of Dr. Shepard-Kegl’s opinions about Ms. Carney’s reading level is unsatisfactory. Turning to the Daubert factors, see Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (“[A] trial court should consider the specific factors identified in Daubert where they are reasonable measures of the reliability of expert testimony.”), there is no indication that the techniques Dr. Shepard-Kegl used to assess Ms. Carney’s reading level are verifiable by testing, that they have been subjected to peer review, that the error rates have been calculated or are even ascertainable, and that they are used or accepted by others within the relevant scientific community. See Daubert, 509 U.S. at 594-95, 113 S.Ct. 2786.

Dr. Shepard-Kegl references her use of the test previously, stating that “I have consistently used the same passages and procedures for the past ten years on the approximately 60 to 80 people on whom I have conducted communication assessments during that time.” Pl.’s Opp’n to Mot. in Limine at 6. This is not decisive. Dr. Shepard-Kegl does not provide evidence demonstrating that her previous testing was reliable, but brings the Court back to where it began. See Kumho Tire Co., 526 U.S. at 157, 119 S.Ct. 1167 (ex-eluding expert testimony where the Court “found no indication in the record that other experts in the industry use Carlson’s two-factor test or that tire experts such as Carlson normally make the very fine distinctions ... to support his conclusions”). At this point, the Court is left with the circular justification that, because Dr. Shepard-Kegl has used the method before — with unknown results — it is appropriate for its use again. The Court cannot determine the reliability of Dr. ShepardKegl’s methodology based on Dr. Shepard-Kegl’s prior use.

At the same time, Dr. Shepard-Kegl’s explanations carry the indicia of greater scientific reliability than the Plaintiffs have demonstrated. She is a Professor of Linguistics at the University of Southern Maine, holds a Ph.D. in Linguistics, and is the director of the Signed Language Research Laboratory at USM. ShepardKegl Aff. ¶ 2. During her career, she has evaluated approximately 125 individuals to determine their need for and ability to use ASL/English interpreting. Id. ¶ 4. When she evaluated Ms. Carney on May 20, 2008, she performed testing to assess her ability to communicate in written and spoken English as well as American Sign Language. Id. ¶ 7. Among the tests were reading level assessment tests, including the use of a Microsoft Word program and the Flynt-Cooter Reading Inventory. Id. ¶ ¶ 38-41.

It is true that Dr. Shepard-Kegl has not demonstrated the scientific reliability of these methodologies for assessing reading level, but the Court will not assume that she pulled them out of thin air and arbitrarily tested Ms. Carney using novel and untested personal theories. The Court suspects that, given another opportunity, Dr. Shepard-Kegl would be able to justify the scientific reliability of her reading level testing procedures.

Accordingly, the Court dismisses Sun-bury’s motion in limine without prejudice. The Court “concludes that it would benefit from a greater understanding of the foundation for the expert[]’s opinions.” See Samaan v. St. Joseph Hosp., 744 F.Supp.2d 367, 372 (D.Me.2010). The Court alerts the Plaintiffs, however, that unless, they are prepared to present a more convincing case for the reliability of Dr. Shepard-Kegl’s reading level testing, her expert testimony on this subject may be excluded at trial.

4. Plaintiffs’ Motion in Limine to Exclude John W. Stephens’ Expert Testimony

The Plaintiffs oppose Sunbury’s designation of John Stephens as an expert in this case. Pi’s Mot. in Limine at 1. Specifically, they challenge Mr. Stephens’ testimony as to “Ms. Carney’s ability to communicate effectively with him using a combination of lip reading, gestures, and writing,” and to the “types of and effectiveness of the auxiliary aids provided to Shirley Carney at her appointments.” Id. According to the Plaintiffs, Mr. Stephens is not qualified to opine on such points, and his opinions are not based upon sufficient facts or data and are not reliable. Id. at 2-3.

Sunbury contests the Plaintiffs’ contention, arguing first that, in ruling upon the Plaintiffs’ Motion to Strike Defendant’s Expert Witness Designation, the Court already considered Mr. Stephens’ testimony regarding Ms. Carney’s ability to communicate effectively with Mr. Stephens. Def.’s Opp’n to Pi’s Mot. in Limine at 2. Second, Sunbury says that “Mr. Stephens has the education, training and twenty-four years of experience employing both subjective and medically objective means to evaluate the effectiveness of communications with patients,” that his opinion is based upon the twelve .years he spent as Ms. Carney’s health provider, and that his methods are based upon his “extensive medical experience and best practices in family medicine.” Id. at 3, 6-7.

Before addressing the Rule 702 issues that the Plaintiffs raise, the Court addresses Sunbury’s argument that the Court has already considered and allowed Mr. Stephens’ testimony regarding Ms. Carney’s ability to communicate with him effectively. See Pis.’ Mot to StHke Def.’s Expert Witness Designation (Docket # 19) (Pis. ’ Mot. to StHke)-, Order on PI. MHRC’s Mot. to StHke Def’s Expert Designation (Docket #28) (Order on Pis.’ Mot. to StHke). The Court agrees with the Plaintiffs that their “prior challenge was to the manner in which Mr. Stephens was designated, not whether he was qualified.” PI. ’s Mot in Limine Reply at 1. The Motion to Strike stated explicitly that “[although Plaintiffs expect to challenge whether Mr. Stephens is qualified to testify as an expert on [the effectiveness of Mr. Stephens’ communications with Ms. Carney], the [MHRC] does not seek to strike the designation or this testimony based on the nature of the original designation.” Pis.’ Mot. to StHke at 3

Furthermore, in ruling on the motion to strike, the Court never considered whether Mr. Stephens’ designation as an expert was appropriate. Rather, the Court’s focus was entirely upon the timing and scope of the disclosure, not on what those opinions would be, or their basis. Order on Pis. ’ Mot. to StHke at 3 (“At this late date Sunbury should be able to provide further information concerning the various opinions Stephens holds regarding auxiliary aids. They have not done so, not even in response to the motion to strike.”). The Court rejects Sunbury’s contention that it already ruled on the question of Mr. Stephen’s Rule 702 expertise.

Turning to the substance of the Plaintiffs’ Rule 702 Motion, the Court first assesses Mr. Stephen’s qualifications to testify as to the effectiveness of the communications between him and Ms. Carney. In so doing, the Court looks to his “knowledge, skill, experience, training, or education.” See Pages-Ramirez v. Ramirez-Gonzalez, 605 F.3d 109, 114 (1st Cir.2010) (quoting Mitchell v. United States, 141 F.3d 8, 14 (1st Cir.1998)); Santos v. Posadas De P.R. Assocs., Inc., 452 F.3d 59, 64 (1st Cir.2006) (“The test is whether, under the totality of the circumstances, the witness can be said to be qualified as an expert in a particular field through any one or more of the five bases enumerated in Rule 702— knowledge, skill, experience, training, or education.”). The Court’s “gatekeeping function requires [it] to determine, given the proffered expert’s background, whether the scientific, technical, or other specialized knowledge he offers ‘will assist the trier better to understand a fact in issue.’ ” Gaydar v. Sociedad Instituto Gineco-Quirurgico y Planificacion Familiar, 345 F.3d 15, 24 (1st Cir.2003) (quoting United States v. Alzanki, 54 F.3d 994, 1005 (1st Cir.1995)).

The First Circuit has made clear that testifying experts need not “be ‘blue-ribbon practitioners’ with optimal qualifications.” United States v. Vargas, 471 F.3d 255, 262 (1st Cir.2006) (quoting United States v. Mahone, 453 F.3d 68, 71 (1st Cir.2006)); Levin v. Dalva Bros., Inc., 459 F.3d 68, 78 (1st Cir.2006) (“[E]xpert witnesses need not have overly specialized knowledge to offer opinions.”); Santos v. Posadas De P.R. Assocs., Inc., 452 F.3d 59, 63 (1st Cir.2006) (“[E]xperts come in various shapes and sizes; there is no mechanical checklist for measuring whether an expert is qualified to offer opinion evidence in a particular field.”). Within the medical context in particular, the First Circuit has held that “[t]he proffered expert physician need not be a specialist in a particular medical discipline to render expert testimony relating to that discipline.” Gaydar, 345 F.3d at 24. “Indeed ... it would be an abuse of discretion to exclude testimony that would otherwise ‘assist the trier better to understand a fact in issue,’ simply because the expert does not have the specialization that the court considers most appropriate.” Pages-Ramirez, 605 F.3d at 114 (quoting Gaydar, 345 F.3d at 24-25).

The Court concludes that, as a Physician’s Assistant, Mr. Stephens has the expertise to express the opinions for which he has been designated. See Adams v. N. New Eng. Tel. Operations, L.L.C., No. 08-296-B-W, 2009 WL 2712970 *13, 2009 U.S. Dist. LEXIS 80473 *42 (D.Me. Aug. 27, 2009) (“There is nothing inherently unacceptable or unreliable about letting a nurse practitioner or a physician assistant articulate and discuss psychiatric conditions that they encounter and treat in the course of their practice.”); Akerson v. Falcon Transp. Co., No. CV-06-36-B-W, 2006 WL 3377940, at *5, 2006 U.S. Dist. LEXIS 84870, at *16-17 (D.Me. Nov. 21, 2006) (allowing a Physician’s Assistant to testify about the cause and treatment of a cervical strain). In addition to his training and expertise, Mr. Stephens was the primary medical caregiver for Ms. Carney for twelve years and the Court concludes his expert understanding of her ability to communicate would be helpful to the factfinder. At the same time, Mr. Stephens does not claim to be an expert in deafness. Def.’s Opp’n to Pl’s Mot. in Limine at 5. The Plaintiffs are, of course, free to object at trial if Mr. Stephens’ testimony veers into areas beyond his designated expertise and they may explore on cross-examination any limits to Mr. Stephens’ more specific training and expertise in the assessment of the ability of deaf persons, including Ms. Carney, to communicate.

D. Dispositive Motions 1. Rule 12(b)(6) and Summary Judgment Standards

“In ruling on a motion to dismiss, a court must accept as true all the factual allegations in the complaint and construe all reasonable inferences in favor of the plaintiffs.” Alt. Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33 (1st Cir.2001). Sunbury is entitled to dismissal under Rule 12(b)(6) “only if it ‘appears to a certainty that the [Plaintiffs] would be unable to recover under any set of facts.’ ” State St. Bank and Trust Co. v. Denman Tire Corp., 240 F.3d 83, 87 (1st Cir.2001) (quoting Roma Constr. Co. v. aRusso, 96 F.3d 566, 569 (1st Cir.1996)).

Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a), For summary judgment purposes, “ ‘genuine’ means that the evidence is such that a reasonable jury could return a verdict for the nonmoving party, and a ‘material fact’ is one which might affect the outcome of the suit under the governing law.” Buchanan v. Maine, 469 F.3d 158, 166 (1st Cir.2006) (quoting Seaboard Sur. Co. v. Town of Greenfield, 370 F.3d 215, 218-19 (1st Cir.2004)) (internal quotation marks omitted). “Neither conclusory allegations [nor] improbable inferences are sufficient to defeat su