1

 Plaintiffs have dropped their Rehabilitation Act claims against all Defendants except Dr.

Norwood, DuPont, and the Nemours Foundation. (Pls.’ Daddio Summ. J. Resp. Br. at 2.)

Because Defendants’ motions and Plaintiffs’ responses are identical for purposes of deciding the

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

HOLLY FARRELL, et al. : CIVIL ACTION

v. : NO. 04-3877

:

PAUL SVINDLAND, et al. : CIVIL ACTION

v. : NO. 05-417

:

ROBERT DADDIO, et al. : CIVIL ACTION

v. : NO. 05-441

:

KATHLEEN REGER, et al. : CIVIL ACTION

v. : NO. 05-661

:

THE A.I. DUPONT HOSPITAL FOR :

CHILDREN OF THE NEMOURS :

FOUNDATION, et al. :

MEMORANDUM AND ORDER

Schiller, J. May 5, 2006

Plaintiffs are the parents and natural guardians of infants born with serious heart conditions.

Sadly, all the infants who are the subject of the above-captioned cases have died. Plaintiffs filed

numerous lawsuits in this District, four of which are currently on this Court’s docket. Defendants

include the A.I. DuPont Hospital for Children (“DuPont”), where the children were treated, the

Nemours Foundation, as well as the infants’ medical providers. The Complaints include numerous

claims, including fraud, conspiracy, wrongful death, and negligence. Each Plaintiff also includes

a claim under the Rehabilitation Act, 29 U.S.C. § 794 (2005). The parties have engaged in extensive

discovery, and the Court has conducted numerous conferences to aid the process. Defendants now

move for partial summary judgment, seeking to eliminate Plaintiffs’ Rehabilitation Act claims.1 For

Case 2:05-cv-00661-BMS Document 35 Filed 05/05/06 Page 1 of 16
summary judgment motions, the Court will treat the motions in all four cases in one

Memorandum and Order. 

2

the reasons below, the Court grants the motions.

I. BACKGROUND

The majority of the facts pertaining to Plaintiffs’ claims will need to be determined by a jury.

Nonetheless, the facts surrounding the Rehabilitation Act claim are relatively few and not in dispute.

These cases arise from the tragic deaths of four infants: Ashley McCardle, Ian Svindland,

Michael Daddio, and Nicholas Reger. All four were afflicted with serious congenital heart defects

requiring surgery. Plaintiffs sought treatment for their children, and the four infants were treated at

the Nemours Cardiac Center (“the Cardiac Center”). Dr. William Norwood was the primary surgeon

who operated on all four babies. (Farrell Second Am. Compl. ¶ 6; Svindland Compl. ¶ 5; Daddio

Compl. ¶ 5; Reger Compl. ¶ 6.) 

The Nemours Foundation was established by Alfred I. DuPont in 1935. (Pls.’ Daddio Summ.

J. Resp. Ex. 15 [Document entitled “The Deal” describing purpose and organization of the Cardiac

Center].) Its purpose was to provide health care to children in Delaware. (Id.) To further that goal,

the Nemours Foundation built the A.I. DuPont Hospital for Children in the early 1980s. (Id.) The

Cardiac Center was set up in 1997 as a separate operating entity of the Nemours Foundation, apart

from DuPont and answerable to the vice-president for physician practices. (Pls.’ Daddio Summ. J.

Resp. Ex. 4 [Ferry Dep.] at 26-27, 86.) The Cardiac Center adopted some policies distinct from

those of DuPont, such as utilizing different pay scales than DuPont. (Ferry Dep. at 67-68.) 

Dr. Norwood is a well-known cardiac surgeon. (Pls.’ Daddio Summ. J. Resp. Ex. 3 [Walsh

Case 2:05-cv-00661-BMS Document 35 Filed 05/05/06 Page 2 of 16
3

Dep.] at 44-45 & Ex. 9 [Doughty Dep.] at 35-36.) Prior to performing surgery at the Cardiac Center,

Dr. Norwood operated a heart surgery clinic in Switzerland, but, in the late 1990s, he sought an

opportunity that would allow him to return to the United States. (Walsh Dep. at 22-26, 65; Doughty

Dep. at 70.) Meanwhile, DuPont was searching for a cardiac surgeon to develop “a premier national

and international congenital cardiac program for The [Nemours] Foundation, and to do good works.”

(Pls.’ Daddio Summ. J. Resp. Ex. 15.) John Thomas Walsh, who helped start the heart hospital in

Switzerland where Dr. Norwood worked, contacted Dr. Robert Kettrick, the chief executive of the

Nemours Children’s Clinic in Jacksonville, Florida, about opportunities for Dr. Norwood in Florida

because Dr. Norwood wished to be closer to his son. (Walsh Dep. at 68-69; Pls.’ Daddio Summ. J.

Resp. Ex. 8 [Kettrick Dep.] at 28-29.) Dr. Kettrick reported that the Nemours Foundation was not

looking to start a program in Florida but might be interested in starting one in Wilmington,

Delaware. (Kettrick Dep. at 29.) Dr. Kettrick then initiated discussions with Dr. Robert Doughty

from DuPont about Dr. Norwood’s interest in returning to the United States. (Id.) Walsh informed

Dr. Kettrick that Dr. Norwood would be interested in working in Wilmington with the understanding

that a program in Florida was planned for the future. (Id. at 29-30.) Dr. Kettrick then traveled to

Switzerland to watch Dr. Norwood operate. (Id. at 30-31.) Convinced of his skill, Dr. Kettrick

reported back to Dr. Doughty on Dr. Norwood’s surgical ability and desire to return to the United

States. (Id. at 31.)

Discussions among Dr. Norwood and representatives for the Nemours Foundation and

DuPont commenced and an agreement was reached. (Doughty Dep. at 75-76; Kettrick Dep. at 39-

40.) Dr. Norwood was named Director of the Cardiac Center and was responsible only to W. Jeff

Wadsworth, the general manager (and later president) of the Nemours Foundation, and to Dr.

Case 2:05-cv-00661-BMS Document 35 Filed 05/05/06 Page 3 of 16
2

 Dr. Norwood later reported to Dr. David Bailey after Dr. Bailey succeeded Dr. Doughty

as vice-president of physician practices. (Ferry Dep. at 26-27.)

4

Doughty, the vice-president of physician practices.2 (Pls.’ Daddio Summ. J. Resp. Ex. 15; Pls.’

Daddio Summ. J. Resp. Ex. 19 [Proujansky Dep.] at 22; Doughty Dep. at 115.) Dr. Norwood was

granted “complete and independent authority and responsibility to hire, fire, organize and direct all

personnel of the [Nemours Cardiac Center] in Delaware and Florida including but not exclusive of

all physicians, nurses, technicians, researchers and administrators.” (Pls.’ Daddio Summ. J. Resp.

Ex. 15.) Dr. Norwood was allowed to establish policies for the Cardiac Center provided they were

consistent with significant policies that affected DuPont or the practice, as determined in

collaboration with Dr. Doughty, and Thomas Ferry, the CEO of DuPont and vice-president for

Hospital Operations of Nemours. (Doughty Dep. at 90-91; Ferry Dep. at 13.) 

Dr. Norwood demanded autonomy and oversight of the Cardiac Center to avoid bureaucratic

hassles. (Doughty Dep. at 78.) Dr. Norwood also insisted on meeting directly with the CEO of

DuPont “so that if there were problems at [DuPont] of getting something done, he had the CEO’s

ear and the CEO could get whichever one of the chief executives was not doing the things he needed

to get out of the way.” (Id. at 79.) Furthermore, according to Plaintiffs, the Nemours Foundation

employed special credentialing standards when staffing the Cardiac Center. (Pls.’ Daddio Summ.

J. Resp. Br. at 20.) These unique standards helped Dr. Norwood evade oversight from DuPont and

avoid federal regulations regarding the care of disabled patients. (Id.) The standards were also a step

towards segregating children with heart defects from those without heart defects. (Id.) 

Case 2:05-cv-00661-BMS Document 35 Filed 05/05/06 Page 4 of 16
5

II. STANDARD OF REVIEW

Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a judgment as a matter of law.” FED. R.

CIV. P. 56(c). The moving party bears the initial burden of identifying those portions of the record

that it believes illustrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett,

477 U.S. 317, 322 (1986). If the moving party makes such a demonstration, then the burden shifts

to the nonmovant, who must offer evidence that establishes a genuine issue of material fact that

should proceed to trial. Id. at 324; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574 (1986). “Such affirmative evidence – regardless of whether it is direct or circumstantial

– must amount to more than a scintilla, but may amount to less (in the evaluation of the court) than

a preponderance.” Williams v. Borough of West Chester, 891 F.2d 458, 460-61 (3d Cir. 1989).

When evaluating a motion brought under Rule 56(c), a court must view the evidence in the

light most favorable to the nonmovant and draw all reasonable inferences in the nonmovant’s favor.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); see also Pollock v. Am. Tel. & Tel. Long

Lines, 794 F.2d 860, 864 (3d Cir. 1986). A court must, however, avoid making credibility

determinations or weighing the evidence. Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150

(2000); see also Goodman v. Pa. Tpk. Comm’n, 293 F.3d 655, 665 (3d Cir. 2002).

III. DISCUSSION

Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, forbids federally-funded state

programs from discriminating against disabled individuals based solely on their disability. In

Case 2:05-cv-00661-BMS Document 35 Filed 05/05/06 Page 5 of 16
3

 Plaintiffs drop a footnote contending that recent amendments to the Rehabilitation Act

have incorporated the liability standards from the Americans with Disabilities Act and therefore

they need not prove that the discrimination was solely the result of the handicap but merely

“because of” the handicap. (Pls.’ Daddio Summ. J. Resp. at 42 n.12.) Even a cursory reading of

the statute upon which Plaintiffs rely for this contention, 29 U.S.C. § 794(d), reveals that their

argument is valid only “in a complaint alleging employment discrimination under this section.” 

29 U.S.C. § 794(d). As Plaintiffs’ Rehabilitation Act claim does not allege employment

discrimination, Plaintiffs must establish that the disability was the sole reason for the

discrimination. See, e.g., 29 U.S.C. § 794(a); Strathie v. DOT, 716 F.2d 227, 230 (3d Cir. 1983);

New Directions Treatment Servs. v. City of Reading, 415 F. Supp. 2d 501, 513-14 (E.D. Pa.

2005). 

6

relevant part, the statute states that “[n]o otherwise qualified individual with a disability in the

United States . . . shall, solely by reason of her or his disability, be excluded from participation in,

be denied the benefits of or be subjected to discrimination under any program or activity receiving

Federal assistance . . . .” 29 U.S.C. § 794(a). To establish a claim under the Rehabilitation Act, a

plaintiff must prove: (1) that he or she is a disabled individual under the Rehabilitation Act; (2) that

he or she is “otherwise qualified” for the position sought; (3) that he or she was excluded from the

position sought, denied the benefits of, or subjected to discrimination under the program or activity

“solely by reason of his [or her] [disability];” and (4) that the program or activity in question receives

federal financial assistance.3See Wagner v. Fair Acres, 49 F.3d 1002, 1009 (3d Cir. 1995); see also

Nathanson v. Med. College of Pa., 926 F.2d 1368, 1380 (3d Cir. 1991). 

The parties have widely divergent views of the basis for the Rehabilitation Act claims.

Defendants, relying largely on the allegations contained in Plaintiffs’ Complaints, believe that the

Rehabilitation Act claims center around the differenttreatment infants at the Cardiac Center received

compared to the treatment received by those infants treated outside the Cardiac Center because they

did not have heart defects. (Defs.’ Daddio Summ. J. Br. at 3.) 

Plaintiffs counter that the Defendants violated the Rehabilitation Act because the “scheme

Case 2:05-cv-00661-BMS Document 35 Filed 05/05/06 Page 6 of 16
4

 Defendants do not contest that Ashley, Ian, Michael and Nicholas qualify as disabled

under the Rehabilitation Act. The status of the children as disabled is beyond question. See 29

U.S.C. § 705(20) (defining “individual with a disability” as one who: (1) has a physical or mental

impairment which substantially limits one or more of such person’s major life activities; (2) has a

record of such impairment; or (3) is regarded as having such an impairment); see also Bowen v.

Am. Hosp. Ass’n, 476 U.S. 610, 624 (1986) (definition of handicapped individual includes an

infant born with a congenital defect).

7

of care and management” that existed at the Cardiac Center did not exist elsewhere at DuPont. (Pls.’

Summ. J. Resp. at 3.) This scheme, created to accommodate the Cardiac Center and Dr. Norwood,

permitted a pervasive sense of autonomy, lack of oversight and absence of control that violated the

Rehabilitation Act. (Id.) The Nemours Foundation’s efforts to lure and retain Dr. Norwood resulted

in an environment devoid of “essential protections” for those children admitted to the Cardiac

Center. (Id. at 43.) To bolster their claims, Plaintiffs contend that Dr. Norwood demonstrated great

disdain for the concepts of informed consent and government regulations in the healthcare industry.

(Id. at 7-8.) 

Defendants positthree reasons why Plaintiffs’ Rehabilitation Act claims must fail. First, they

argue that none of the children were denied access to any treatment. (Defs.’ Farrell Summ. J. Br. at

7-8; Defs.’ Svindland Summ. J. Br. at 7-8; Defs.’ Daddio Summ. J. Br. at 4-5; Defs.’ Reger Summ.

J. Br. at 7-8.) Second, Defendants argue that the Rehabilitation Act does not apply to the medical

decisions of health care providers. (Defs.’ Farrell Summ. J. Br. at 10-13; Defs.’ Svindland Summ.

J. Br. at 10-13; Defs.’ Daddio Summ. J. Br. at 7-10; Defs.’ Reger Summ. J. Br. at 10-13.) Third,

Defendants argue that none of the children were excluded from any program for which they were

“otherwise qualified.” (Defs.’ Farrell Summ. J. Br. at 8-10; Defs.’ Svindland Summ. J. Br. at 8-10;

Defs.’ Daddio Summ. J. Br. at 5-7; Defs.’ Reger Summ. J. Br. at 8-10.) The Court addresses each

of these arguments in turn.4

Case 2:05-cv-00661-BMS Document 35 Filed 05/05/06 Page 7 of 16
8

A. Plaintiffs Have Presented No Evidence of Exclusion, Denial, or Discrimination

To establish a claim under the Rehabilitation Act, Plaintiffs must prove that their disabled

children were excluded from the position sought, denied the benefits of, or subjected to

discrimination under a program or activity solely because of the disability. See Wagner, 49 F.3d at

1009. The Court is at a loss as to exactly what program or activity the Plaintiffs’ children were

excluded from, denied access to or discriminated under, regardless of whose theory of the case is

credited. The facts make clear that these infants suffered from serious heart defects. These children

were all treated at the Cardiac Center by a doctor trained to perform heart surgery on infants.

Plaintiffs have not put forth any alternative place of treatment and offer no possible explanation why

treating children with serious heart issues at a cardiac center constitutes any type of denial, exclusion,

or discrimination. According to Plaintiffs’ Complaints, their children were discriminated against

because the procedures for cooling and anesthetizing children with heart defects differed from those

used to cool and anesthetize other children with non heart-related medical issues. (Farrell Second

Am. Compl. ¶ 145; Svindland Compl. ¶ 148; Daddio Compl. ¶ 166; Reger Compl. ¶ 147.)

Furthermore, Plaintiffs assert, the doctors in the Cardiac Center were granted such autonomy that

children treated in the Cardiac Center were in essence segregated and subjected to a lesser standard

of care solely because these children had heart defects. (Farrell Second Am. Compl. ¶ 148;

Svindland Compl. ¶ 152; Daddio Compl. ¶ 172; Reger Compl. 151.) 

 But Plaintiffs’ children were all placed under anesthesia prior to surgery by qualified

anesthesiologists and remained in the care of medical providers with the skills and qualifications

necessary to perform pediatric heart surgeries. In essence, Plaintiffs’ Rehabilitation Act allegations

simply reiterate their medical malpractice claims. Plaintiffs’ children were not discriminated against

Case 2:05-cv-00661-BMS Document 35 Filed 05/05/06 Page 8 of 16
9

based on their heart conditions; rather they were admitted to the Cardiac Center because of their need

for specialized care. Plaintiffs have failed to present any evidence that the medical professionals at

the Cardiac Center were unqualified to perform the procedures undertaken on Plaintiffs’ children or

that the standard of care at the Cardiac Center fell below some minimal standard because of the

children’s disability.

While Plaintiffs tailor bits and pieces of deposition testimony to weave a story of deceit and

conspiracy involving an autonomous heart hospital run amok, conspicuously absent from the

evidence is a single word or utterance that could possibly give rise to an inference that any of these

infants were discriminated against because they had congenital heart defects. It should come as no

surprise that the operation and functionality of the Cardiac Center would affect those with heart

troubles as opposed to those suffering from other ailments. But that by no means establishes

discriminatory conduct based upon the patients’ heart troubles. Regardless of the negative outcomes

of individual surgeries and treatments – matters best left to a jury – the Cardiac Center was

conceived to help those infants with severe heart problems. In fact, deposition testimony cited by

Plaintiffs asserts that Dr. Norwood sought to be personally responsible and accountable for the entire

program because it “tended to promote a higher quality.” (Pls.’ Daddio Summ. J. Resp. Ex. 17

[Wadsworth Dep.] at 40.) The Court declines to apply the label of discrimination to any potential

mistakes made in setting up the Cardiac Center. 

Plaintiffs also refer to a litany of governmental findings that cite numerous deficiencies with

policies and procedures in place at the Cardiac Center. (Id. at 21-31.) At this stage, the Court need

not address the probative value these findings may have on other claims Plaintiffs assert against the

Nemours Foundation, DuPont and Dr. Norwood. For purposes of resolving the present motions, the

Case 2:05-cv-00661-BMS Document 35 Filed 05/05/06 Page 9 of 16
10

Court is satisfied that these findings have no relevance to Plaintiffs’ Rehabilitation Act claims and

contain no evidence of discrimination. 

B. The Rehabilitation Act Does Not Apply to Medical Decisions

In United States v. University Hospital, the Second Circuit considered whether § 504 of the

Rehabilitation Act authorized the Department of Health and Human Services (HHS) to obtain access

to a hospital’s medical records regarding a deformed newborn whose parents refused to consent to

surgical procedures that could have prolonged the infant’s life. 729 F.2d 144, 146 (2d Cir. 1984).

The Second Circuit conducted a thorough review of the legislative history of § 504 and concluded

that HHS was not entitled to the records because Congress did not intend § 504 to reach medical

decisions related to the treatment of handicapped persons. Id. at 161. The Second Circuit found no

evidence that Congress intended § 504 apply to medical treatment decisions concerning disabled

newborns; rather congressional policy supported the notion that federal personnel were best left out

of such medical treatment decisions. Id. at 157-161. In other words, § 504 was never aimed at

medical treatment decisions. See Toney v. U.S. Healthcare Inc., 838 F. Supp. 201, 203-204 (E.D.

Pa. 1993); see also Lesley v. Chie, 81 F. Supp. 2d 217, 224 (D. Mass. 2000).

The complexity of pediatric heart surgery is not in dispute. (Defs.’ Daddio Summ. J. Mot.

Ex. A [Norwood Dep.] at 46 (describing complex nature of congenital heart disease at issue in this

litigation).) These infants faced life-threatening heart conditions that required medical providers to

make complicated decisions regarding their treatment. (Id. at 44.) Nor do the parties dispute that

the surgical team at the Cardiac Center operated on and treated the infants, although Plaintiffs allege

that such treatment fell below the required standard of care.

Plaintiffs contend that the Rehabilitation Act claims stem not from the medical decisions

Case 2:05-cv-00661-BMS Document 35 Filed 05/05/06 Page 10 of 16
5

 Defendants correctly point out that the Rehabilitation Act claims in Plaintiffs’

Complaints rely on allegations that the Cardiac Center employed different medical techniques

and treatments than those used at DuPont. (Defs.’ Daddio Summ. J. Br. at 3.) 

11

regarding these children, but instead from the administrative decisions to set up the Cardiac Center

in a way that evaded oversight and control by DuPont.5 By asserting that their claims are based upon

administrative decisions, Plaintiffs aver that this case is similar to Wagner v. Fair Acres. (Pls.’

Summ. J. Resp. at 42-43.) The Court disagrees. Wagner involved a decision on whether a particular

nursing home could provide certain services and care required by a patient suffering from

Alzheimer’s disease. Wagner, 49 F.3d at 1012. Plaintiffs’ cases involve the proper techniques and

methods for operating a pediatric cardiac center, not whether these infants were appropriately placed

in the Cardiac Center, a fact Plaintiffs concede. (Pls.’ Summ. J. Resp. at 3 (“No one has alleged that

Plaintiffs’ children should have been treated outside a specialized care center such as the cardiac

center . . . .”).) Decisions regarding the proper techniques and methods for operating a pediatric

cardiac center are best left to experts in the field, not courts. Plaintiffs’ contention is not merely that

the Cardiac Center was established in such a way as to avoid oversight, but that its structure created

an environment whereby experimental medical procedures and dangerous cooling and anesthesia

techniques were used on infants. Obviously, decisions regarding anesthesia and cooling techniques

are medical decisions related to patient treatment. See Wagner, 49 F.3d at 1012. While an

examination of complex medical decisions is commonly made with respect to negligence claims,

such medical decisions are removed from the purview of the Rehabilitation Act. 

Additionally, to the extent that there is any overlap between medical decisions and

administrative decisions regarding the operation of the Cardiac Center, Plaintiffs’ Rehabilitation Act

claims still must fail. Plaintiffs have cited to nothing that shows any discrimination, let alone

Case 2:05-cv-00661-BMS Document 35 Filed 05/05/06 Page 11 of 16
12

discrimination based upon the heart defects from which these infants suffered. Plaintiffs suggest that

the Cardiac Center was set up to avoid oversight and control by DuPont for the primary purpose of

attracting a well-known pediatric cardiologist who would bring patients to the Cardiac Center and

revenue to DuPont. Of course, these objectives have nothing to do with the affliction from which

these infants suffered. Nothing in the record demonstrates that these infants were discriminated

against because of their heart conditions. Rather, only children with heart problems were affected

by decisions regarding the Cardiac Center because the Cardiac Center only treated those children

with heart troubles. Plaintiffs’ claim, taken to its logical conclusion, would create a Rehabilitation

Act claim for any decision regarding speciality practices because that decision would necessarily

affect only individuals suffering from a particular disease or medical condition. The Court finds no

basis to stretch the Rehabilitation Act to such lengths.

Finally, the Court finds Plaintiffs’ argument that the Cardiac Center was set up to avoid

oversight to be unsupported by the record. Without question, Dr. Norwood was given great

autonomy to run the Cardiac Center. The Nemours Foundation spent considerable resources in

wooing Dr. Norwood, whom they viewed as a world-class cardiac surgeon, to their new facility in

an effort to get the program off the ground. Despite affording Dr. Norwood great authority over the

Cardiac Center, it was understood that the Cardiac Center could not “operate in a total vacuum. It

has to be part of a hospital. It has to comply with certain regulations. . . . And so it had to be

cooperative, even though it was a relatively autonomous team.” (Doughty Dep. at 81; see also id.

at 85.)

Dr. Norwood operated the Cardiac Center in what has been termed a “programmatic

approach.” (Walsh Dep. at 52-53.) Walsh described the approach as follows:

Case 2:05-cv-00661-BMS Document 35 Filed 05/05/06 Page 12 of 16
13

A programmatic approach is just putting a team together that concentrates on solely

the care of kids with congenital heart disease and trying to make sure that nothing –

it’s – it’s an effort to make quality of care better because nothing falls through the

cracks. . . . I mean the anesthesiologist, the cardiologist, even the technicians, nurses,

they’re all – like 20 people going on rounds, so that everybody knows everything

about every child that’s being taken care of at every level and that’s sort of the

programmatic approach.

(Id. at 53-54.) Again, the set up and operation of the Cardiac Center as well as Dr. Norwood’s

approach to treating infants with congenital heart defects is not evidence of discrimination.

Accordingly, Plaintiffs’ Rehabilitation Act claims must fail.

C. The “Otherwise Qualified” Requirement 

The Third Circuit has addressed the meaning of “otherwise qualified” under the

Rehabilitation Act. Wagner, 49 F.3d at 1009-12. An “otherwise qualified” disabled person “is one

who can meet all of a program’s requirements in spite of his [or her] handicap.” Id. at 1009. As one

court has noted, “[t]he ‘otherwise qualified’ language, when considered in conjunction with the

‘solely’ language of the third condition, poses a formidable obstacle for anyone alleging

discrimination [under the Rehabilitation Act] based upon the failure to receive medical treatment for

a birth defect.” Johnson v. Thompson, 971 F.2d 1487, 1493 (10th Cir. 1992). This is because,

ordinarily, one seeking medical treatment as a result of a disability would not need the treatment but

for the disability. Id. Therefore, “[w]here the handicapping condition is related to the (conditions)

to be treated, it will rarely, if ever, be possible to say with certainty that a particular decision was

‘discriminatory.’” Univ. Hosp., 729 F.2d at 157. Nonetheless, in Wagner, the Third Circuit directed

that the appropriate focus is not on the reason for seeking access to an institution, but rather on the

reason an individual was denied access to the institution. Id. at 1010. 

Plaintiffs argue that their Rehabilitation Act claims are not related to any failure to receive

Case 2:05-cv-00661-BMS Document 35 Filed 05/05/06 Page 13 of 16
14

medical treatment but rather on the Cardiac Center’s structure. However, while Wagner might

suggest that a disabled individual is not foreclosed from being considered “otherwise qualified”

because the handicap is related to the condition for which treatment is sought, the Third Circuit also

recognized that it was not faced with “medical treatment cases involving handicapped infants which

necessitate complex assessments of the medical needs, benefits and risks of providing invasive

medical care . . . .” Id. at 1012. That is precisely the issue faced by this Court here. However,

because Plaintiffs have failed to raise a genuine issue of material fact that their children were

discriminated against, the Court leaves the issue of the applicability of the “otherwise qualified”

requirement for another day .

IV. CONCLUSION

While the death of these infants was tragic, Plaintiffs’ Rehabilitation Act claims are not

viable. Therefore, the Court grants to Defendants summary judgment on Plaintiffs’ Rehabilitation

Act claims and dismisses those claims. An appropriate Order follows.

Case 2:05-cv-00661-BMS Document 35 Filed 05/05/06 Page 14 of 16
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

HOLLY FARRELL, et al. : CIVIL ACTION

v. : NO. 04-3877

:

:

PAUL SVINDLAND, et al. : CIVIL ACTION

v. : NO. 05-417

:

:

ROBERT DADDIO, et al. : CIVIL ACTION

v. : NO. 05-441

:

:

KATHLEEN REGER, et al. : CIVIL ACTION

v. : NO. 05-661

:

THE A.I. DUPONT HOSPITAL FOR :

CHILDREN OF THE NEMOURS :

FOUNDATION, et al. :

ORDER

AND NOW, this 5

th day of May, 2006, upon consideration of Defendants’ motions for

partial summary judgment, Plaintiffs’ responses thereto, Defendants’ replies thereon, and for the

foregoing reasons, it is hereby ORDERED that:

1. Defendants’ Motions to File a Reply Brief (Farrell Document No. 82; Svindland

Document No. 33; Daddio Document No. 37; Reger Document No. 32) are

GRANTED.

2. Defendants’ partial motions for summary judgment (Farrell Document No. 77;

Svindland Document No. 27; Daddio Document No. 30; Reger Document No. 26)

are GRANTED.

Case 2:05-cv-00661-BMS Document 35 Filed 05/05/06 Page 15 of 16
6

 Jurisdiction in the Svindland and Daddio litigations is premised solely on the federal

question presented by the Rehabilitation Act. Anticipating that the Rehabilitation Act claim

might not survive, the Court ordered briefing on whether dismissal of that claim would require

dismissal of the Svindland and Daddio cases. The parties briefed the issue and, in accordance

with this Court’s earlier pronouncement to the parties, the Court can and will retain jurisdiction

over the Svindland and Daddio cases.

3. All Rehabilitation Act claims against all Defendants are DISMISSED.

6

BY THE COURT:

Berle M. Schiller, J.

Case 2:05-cv-00661-BMS Document 35 Filed 05/05/06 Page 16 of 16