UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

GEORGE SHOUN, )

)

Plaintiff )

)

vs. ) CAUSE NO. 3:14-CV-463 RLM

)

BEST FORMED PLASTICS, INC., )

)

Defendant )

OPINION AND ORDER

Best Formed Plastics, Inc. has filed a motion to reconsider the court’s June

23, 2014 denial of its motion to dismiss George Shoun’s amended complaint. Mr.

Shoun has filed his objection to the motion, and Best Formed Plastics filed its

reply. For the reasons that follow, the court denies the motion.

Federal Rule of Civil Procedure 54(b) allows a court to reconsider a non-final

order “at any time before the entry of a judgment adjudicating all the claims and

all the parties’ rights and liabilities.” See Moses H. Cone Mem. Hosp. v. Mercury

Constr. Corp., 460 U.S. 1, 12 (1983) (“[E]very order short of a final decree is

subject to reopening at the discretion of the district judge.”); Sandifer v. U.S. Steel

Corp., No. 2:07-CV-443, 2010 WL 61971, at *1 (N.D. Ind. Jan. 5, 2010) (“[A]

motion to reconsider an interlocutory order may be entertained and granted as

justice requires.”). Reconsideration of an order might be proper “when there has

been a significant change in the law or facts since the parties presented the issue

to the court, when the court misunderstands a party’s arguments, or when the
court overreaches by deciding an issue not properly before it.” United States v.

Ligas, 549 F.3d 497, 501 (7th Cir. 2008). A party seeking reconsideration bears

a heavy burden. Caine v. Burge, 897 F. Supp. 2d 714, 717 (N.D. Ill. 2012).

Best Formed Plastics contends the court erred in not granting its motion to

dismiss Mr. Shoun’s amended complaint. According to the company, the court

patently misunderstood and failed to address its argument that Mr. Shoun waived

the confidentiality of his medical information when he filed his state court

complaint. Best Formed Plastics says the undisputed facts show that Mr. Shoun

disclosed his medical condition in his state court complaint, and because he filed

that complaint five days before Ms. Stewart posted information about his medical

condition on Facebook, Mr. Shoun waived his right to claim that his medical

information was confidential. 

The court disagrees with the premise of Best Formed Plastic’s argument:

that to state an actionable claim under 42 U.S.C. § 12112(d)(3)(B), Mr. Shoun

must allege facts showing that at the time of the defendant’s alleged disclosure,

the medical information he provided to the company was “confidential” in the

sense of being secret or unknown to the world at large. Such a reading would

ignore the plain language of the statute. See Sebelius v. Cloer, U.S. , , 133

S. Ct. 1886, 1896 (2013) (“[W]hen [a] statute’s language is plain, the sole function

of the courts – at least where the disposition required by the text is not absurd –

is to enforce it according to its terms.”). 42 U.S.C. § 12112(d)(3)(B) requires that

medical information obtained by an employer from an employee via “medical

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examinations and inquiries” be collected and maintained on separate forms in

separate medical files, be treated as a “confidential medical record,” and be

disclosed only in limited circumstances (that aren’t applicable here). In

guaranteeing the confidentiality of medical information gathered by an employer

and restricting the use of that information, the ADA requires the employer to keep

as “confidential” (meaning that the employer can’t disclose it) any medical

information it acquired through a medical examination or inquiry; the statute

doesn’t require that the information provided by the employee be “confidential” in

the sense that no one other than the employee and the employer know about it.

See 42 U.S.C. §§ 12112(3)(B), 12112(3)(C), 12112(4)(C). 

Mr. Shoun alleges that Best Formed Plastics, through Ms. Stewart, gathered

medical information from him and monitored his medical treatment between

March and August 2012 in connection with his worker’s compensation claim.

Under the statute’s plain language, all medical information gathered by Best

Formed Plastics and Ms. Stewart in that context was required to be treated as a

“confidential medical record.” 42 U.S.C. §§ 12112(d)(3)(B), 12112(d)(4)(C); see also

Franklin v. City of Slidell, 936 F. Supp. 2d 691, 711 (E.D. La. 2013) (“[T]he

employer is required to treat any information regarding the medical condition or

history of an employee that the employer obtains from a medical examination or

inquiry authorized under Section 12112(d) as a confidential medical record,

subject to certain limited exceptions.”); EEOC v. Thrivent Financial for Lutherans,

795 F. Supp. 2d 840, 843 (E.D. Wis. 2011) (“Employers may make inquiries into

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the ability of an employee to perform job-related functions, but medical

information obtained from such inquiries is subject to specified confidentiality

requirements.”); Flamberg v. Israel, No. 13-62698, 2014 WL 1600313, at *4 (S.D.

Fla. Apr. 21, 2014) (“Flamberg alleges that a supervisor ordered him to see a

mental-health professional in relation to concerns that Flamberg was ‘mentally

unstable.’ Information arising from such inquiries must be treated as

confidential.”). That information was “confidential” in the sense that the law

prohibited Best Plastics from disclosing it. 

Mr. Shoun’s complaint alleges that Ms. Stewart wrongfully disclosed his

medical information, i.e., information she obtained through the company’s

inquiries about his medical treatment for a work-related injury. Whether Ms.

Stewart learned of Mr. Shoun’s medical condition solely through Best Formed

Plastics’ employment-related medical inquiries or learned that information outside

the context of those inquiries presents a question of fact not appropriate for

resolution in a motion to dismiss. See EEOC v. C.R. England, Inc., 644 F.3d 1028,

1046-1047 (10th Cir. 2011) (“Disclosure of confidential information obtained

through an authorized medical or inquiry would constitute a violation of § 102(d)

and could give rise to a claim under the ADA.”); Franklin v. City of Slidell, 936 F.

Supp. 2d 691, 711 (E.D. La. 2013) (“A plaintiff cannot succeed on a claim under

Section 12112(d) unless the employer obtained the medical information that was

disclosed through an entrance exam or disability-related inquiry.”); see also EEOC

v. Thrivent Financial for Lutherans, 700 F.3d 1044, 1046 (7th Cir. 2012) (“The

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district court found that Thrivent learned of Messier’s migraine condition outside

the context of a medical examination or inquiry. Therefore, the confidentiality

provisions of 42 U.S.C. § 12112(d)(3) did not apply, and the district court granted

summary judgment. . . .[W]e agree that Thrivent did not learn about Messier’s

migraine condition as the result of 42 U.S.C. § 12112(d) ‘medical examinations

and inquiries.’ Consequently, Thrivent had no duty to treat its knowledge of

Messier’s migraine condition as a confidential medical record, and we affirm the

judgment of the district court.”).

Ms. Stewart allegedly posted Mr. Shoun’s medical information on a social

media site. If Ms. Stewart took that information from Best Plastics’ confidential

records, Best Plastics could be liable to Mr. Shoun. Maybe Best Plastics won’t be

liable because Ms. Stewart took the information from the complaint Mr. Shoun

filed in court — but that’s not what the complaint alleges. 

A review of the June 23 opinion and order convinces the court that it

considered the company’s waiver argument and that questions of fact exist as to

whether Mr. Shoun waived his ability to prevail on his confidentiality claim. See

Cortes-Devito v. Village of Stone Park, 390 F. Supp. 2d 706, 712 (N.D. Ill. 2005)

(“[I]n a motion to dismiss we do not weigh the strength of the evidence, rather we

test the sufficiency of the allegations. See Pickrel v. City of Springfield, 45 F.3d

1115, 1118 (7th Cir. 1995) (stating it “is not whether a plaintiff will ultimately

prevail but whether the claimant is entitled to offer evidence to support its

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claims”)). Because denial of the company’s motion to dismiss was proper, the

court DENIES the motion to reconsider [docket # 19]. 

SO ORDERED.

ENTERED: August 26, 2014 

 /s/ Robert L. Miller, Jr. 

Judge, United States District Court

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