Opinion
8:22-cv-00194-JFB-MDN
01-12-2024
Re Florek v. Creighton University,
Dear Magistrate Judge Nelson, Pursuant to this court's order on January 8, 2024, Plaintiff submits this statement in anticipation of the telephone conference set in this case for January 12, 2024.
Plaintiff, Kelli Florek, brought the instant case against Creighton University on June 1, 2022, primarily alleging violations of the Americans with Disabilities Act, Section 504 of the Rehabilitation Act of 1973, and breach of contract. Ms. Florek suffers from disabilities related to a traumatic brain injury she suffered in 2019. Since the time that the Complaint was filed in this case, Ms. Florek's symptoms have become more severe and disabling.
Ms. Florek is a resident of the Big Island of Hawaii. She enrolled in Creighton University's Doctor of Pharmacy program through distance learning from her home in Hawaii. This distance learning program was developed by Creighton, in part, to allow students in rural areas to become pharmacists who serve rural populations. This was Ms. Florek's intention.
In the spring 2023, the parties began discussing the Defendant taking Ms. Florek's deposition. Since the COVID pandemic, virtual depositions have become common place, especially for deponents in far away places. As such, Plaintiff's counsel requested that Ms. Florek's deposition be conducted virtually. Defendant declined and requested to take Ms. Florek's deposition in person in Omaha. It was at this time that Plaintiff's counsel learned that Ms. Florek's symptoms had progressed, and she did not believe she was capable of physically completing the lengthy trip from the Big Island to Omaha.
On May 5, 2023, Plaintiff provided Defendant with a letter from one of Ms. Florek's medical providers, Sharon A. Bachman, APRN-RX, stating that Ms. Florek “is unable to travel at this time due to sequela from an injury.” After a reevaluation by Ms. Bachman, on July 7, 2023, Plaintiff provided Defendant with an updated letter from Ms. Bachman stating that Ms. Florek “is undergoing a workup with specialists for sequela from this injury. She is unable to travel at this time due to her current medical condition.”
On October 6, 2023, Defendants took the virtual deposition of Sharon Bachman. During that deposition, Ms. Bachman explained the various reasons she had recommended that Ms. Florek not travel, especially such a long distance to Omaha. Bachman Deposition, pp. 28-31. She stated that Ms. Florek's diagnosis of anxiety, aphasia, fatigue, and migraine were her concern. Ms. Bachman stated, “Travel increases stress, and plus she would be coming from Hawaii time zone and returning to central time, jet lag - all those things - disrupted sleep - all those things can increase stress and increase the frequency, duration, and intensity of migraine headaches.” Id. at p. 29, ll.10-15.
At her deposition, Ms. Bachman explained that Ms. Florek had developed ophthalmologic symptoms where her pupil was not constricting and not accommodating for light. Id. at 43, ll. 610. In addition, Ms. Florek had worsening anxiety and fatigue symptoms. Id. at 46, ll. 2-3. It remained Ms. Bachman's opinion that Ms. Florek was unable to travel to Nebraska for her deposition. Id. at 47, ll. 13-20.
At this time, Ms. Florek is reporting that she has not seen any significant improvement of her symptoms. She endures severe post-traumatic migraines, a neurologic condition that causes debilitating pain, nausea, vomiting, extreme photophobia, sensitivity to smell and noise, nosebleeds, ocular/vision impairments, and dizziness. The triggers that instigate the debilitating migraines are barometric pressure (flying/airplane travel), environment changes, changes in weather (HI to NE is an extreme change in weather), noise/loud noise, scents/smells, light, stress, long travel, jet lag, and lack of sleep. Thus, she is still unable to travel to Omaha for an in-person deposition, which could increase her risk factor for developing further complications and worsening her disability.
Plaintiff requests that the Court allow Ms. Florek to attend her deposition virtually from her home in Hawaii. It should be noted that all other depositions in this case are being taken virtually without any difficulty. Plaintiff does not believe that Defendant would be prejudiced by also taking Ms. Florek's deposition virtually.
Sincerely,
Jason J. Bach, J.