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December 14, 2001
Latex Allergy: Not an ADA Disability
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ederal jury in Philadelphia has found that a nurse's allergy to latex does not qualify as a disability under the Americans with Disabilities Act, since her symptoms can be completely controlled by simply avoiding latex and taking prescribed medications.

The Legal Intelligencer says the Dec. 6 verdict in Scanlon v. Temple University is sure to grab the health-care industry's attention.

The verdict came after the defense, Temple University, sought a summary judgment, arguing that the U.S. Supreme Court's 1999 decision in Sutton v. United Air Lines Inc. was fatal to nurse Jennifer Scanlon's claim because her alleged disability is completely curable.

But U.S. Magistrate Judge Jacob P. Hart of the U.S. District Court for the Eastern District of Pennsylvania replied in a five-page opinion that such a comparison wasn't that easy.

"The problem with the application of Sutton to the situation presented here is that the pilots in Sutton could control whether they wore glasses while flying planes. Mrs. Scanlon has presented evidence that she has no such control over her environment if she leaves her house," Hart wrote.

"We believe that the plaintiff's control over the corrective measure is a proper consideration in conducting the inquiry. Hence, we do not believe Sutton is dispositive," Hart wrote.

Hart said the jury would decide "whether the limitations that Mrs. Scanlon's allergy imposes substantially limit any major life activity."

If the jury sided with Scanlon on that issue, Hart ruled, it would then go on to decide "whether latex is used in the health care profession to a sufficient degree that it substantially limits Mrs. Scanlon's ability to work in her chosen profession."

According to the Intelligencer, Scanlon claimed that her latex allergy substantially limits the major life activities of breathing, sleeping, eating, working and interacting with others.

In response to the summary judgment motion, Scanlon's lawyer submitted testimony from her treating doctor, who described her latex allergy as "life threatening" because of the breathing difficulty that exposure to latex causes her.

The doctor also said Scanlon's allergic reaction extended to foods that are "cross-reactive" in latex-sensitive patients, such as bananas, avocados, kiwi and chestnuts.

Scanlon's own description of her physical reaction to latex matched her doctor's, the Intelligencer reported. She described wheezing and struggling for breath when she comes into contact with latex, which can progress to a tightness in her chest and an anaphylactic reaction.

But Temple Hospital's lawyers argued that Scanlon's ADA claim was fatally flawed because she had no evidence that she suffers from any limitation caused by her allergy when she is in a latex-free environment.

As a result, the defense lawyers said, if Scanlon simply avoided latex, there would be no limitation on any of her "major life activities" with the possible exception of working.

And as for working, the defense argued that Scanlon failed to show that her latex allergy precludes her from working in the "field" of nursing or any "class" of nursing jobs.

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