July 8, 2005

Jury gets case accusing McDonald's of HIV bias

by Eric Resnick

Cleveland--The second trial of a gay Akron man suing McDonald�s over alleged discrimination was sent to the jury July 6.

The case is the second attempt of Russell Rich, 42, who says the fast-food chain forced him out of a managerial position when they learned he has AIDS. He is trying to get his employer since age 13 to pay for his prescription drugs. Rich says he can�t get insurance for those because of the way McDonald�s handled his benefits package.

The first trial, in October, 2001, produced a unanimous $5 million verdict against McDonald�s after four hours of jury deliberation. McDonald�s was granted a new trial in 2003 after convincing the Eighth Ohio District Court of Appeals that it did not have a fair trial or an opportunity to have its evidence heard during the nine days it ran.

The current trial began June 20 in the court of Judge John T. Patton, a retired judge designated to hear the case in the Cuyahoga County Common Pleas Court. The trial lasted eleven days, during which the jury heard from former and current McDonald�s employees, expert witnesses on medicine and economics, and Rich himself.

Most of the witnesses referred to the 2001 trial, but not to the verdict.

During opening statements, Rich�s attorney Paige Martin of Columbus spent nearly an hour telling the jury that after McDonald�s found out Rich was HIV positive, the work environment became hostile. Martin told the jury that Rich had no prescription drug coverage and no way to get coverage on AIDS medication due to a pre-existing condition exclusion McDonald�s permanently gave him. Federal laws prohibiting such exemptions went into effect after he left the company.

McDonald�s attorney Steve Catlett of the firm Jones, Day took forty minutes of opening statement time to tell the jury that there were �two critical points� to his client�s case. First that Rich, who was a highly recognized and awarded manager of a store owned by a franchisee, actually worked only 59 days for McDonald�s corporation itself, and may not have been a great manager there because their system is different, and that Rich quit the job and was not fired.

The first witness called was Linda Vance, who was Rich�s general manager when he was assigned to the Minerva, Ohio corporate store.

Vance visited Rich in the hospital during an illness in the summer of 1997. While there, she testified that she asked the nurses about his condition, and remembered that he had �something ending in -itis.�

Vance knew there were some illnesses ending in -itis that deemed people unfit to handle food, so she reported her findings to corporate investigators, who demanded that Rich sign a consent form giving them access to his medical records before he could return to work. By that time, McDonald�s, which is self-insured, had already denied covering a hormone prescription commonly given to people with AIDS, so there was suspicion.

Then human resources officer O�Dell Jones, who hired Rich, testified that �it was a big surprise to both of us that [Rich] had no health insurance.� Jones testified that he didn�t know why Rich wasn�t enrolled in the plan, even though they were deducting premiums from his paychecks, and never found out why.

Rich found out he was not covered on a trip to Florida during his employment, when he had a gall bladder attack and needed emergency surgery.

�When I woke up, the hospital administrator was standing there telling me I had no coverage,� Rich testified.

Benefits planner Dawn Chuck testified that insurance investigators were looking for HIV, and had in fact found the diagnosis and the HIV drug prescriptions days before the insurance denial.

During Chuck�s testimony, a spreadsheet which McDonald�s attorneys claimed proved that McDonald�s paid for Rich�s drugs during his employ and after termination for a total of 21 months surfaced. The spreadsheet, which allegedly showed $108,758.95 of payments to pharmacists, was not part of the original trial.

Chuck said during cross examination that she asked for the spreadsheet from the third party payer �to help me prepare for testimony� in the trial. Asked by Martin if McDonald�s has corresponding records to show the claims were processed, Chuck answered, �Not on my system, no.�

Cleveland economist John F. Burke, Jr., explained to the jury that it would take $4.8 million payment today to be invested conservatively so that the $135,000 cost of Rich�s medication adjusted for inflation could be withdrawn every year for the rest of his expected lifespan to age 71.

McDonald�s attorney Michael Gray, also of Jones Day, cross-examined Burke, nearly shouting at him.

�He has AIDS. He�s not going to live that long,� said Gray.

�That�s the average lifespan of a white male currently 42,� said Burke, �and people with AIDS are counted in that group.�

Gray continued, �And he�s only paying $17 a month for his drugs,� referring to Rich�s co-payment to the state drug assistance program.

�That�s what he�s paying now,� said Burke, �but I�m talking about the cost of the medication, and somebody is paying it.�

Rich testified on his decision to �better himself� by moving his employment from store franchisees to corporate McDonald�s. He also testified that upon returning from an illness, Jones wanted to know the kind of doctor who signed his work release.

�Infectious disease. I have AIDS,� Rich answered him.

Rich said when he returned, his working conditions changed. Specifically, his hours increased, putting his health at risk, his supervisor became �cold� toward him, and he was written up for �job abandonment,� an offense for which one is usually terminated.

O�Dell, Vance and Ken Moyer, another McDonald�s employee, all testified that the write-up was wrong, yet it remains in Rich�s personnel file uncorrected.

Judge Patton sustained nearly all of McDonald�s objections during Rich�s testimony, and at two points would not allow Rich to testify to conversations he was part of, calling it �hearsay.�

Catlett cross-examined Rich, attempting to portray him as unsympathetic to the jury. Catlett made reference to Rich�s employment after McDonald�s as �so many jobs,� inferring that he couldn�t hold one.

Catlett also grilled Rich on what he was paying for his medications through the state assistance program, and that one of his medications was paid for by the manufacturer in exchange for Rich�s participation in a drug study.

Chuck�s spreadsheet was given to Rich.

�Didn�t you hear Dawn Chuck say that you were getting these medications and that McDonald�s was paying for them?� asked Catlett.

�I heard it, but it�s not true,� said Rich.

McDonald�s also called forensic psychiatrist Andrea Stolar of Case Western Reserve University as a witness.

Stolar testified on July 1, her first day on the university�s payroll. She said that she was a �fellow,� a student, during her four-hour meeting with Rich and when she combed through his medical and psychiatric records on McDonald�s behalf to try to discredit Rich�s treatment providers.

Stolar�s letter of engagement with McDonald�s and Jones Day was put into evidence by Martin. In the letter, Stolar agreed to �engage in no adverse action to McDonald�s during the course of the litigation.� McDonald�s paid $300 an hour for her services.

Stolar testified that losing one�s HIV medication for a period of time due to lack of funds was �not trauma.� She said that Applebee�s, not McDonald�s caused the stressors that led to Rich�s attempted suicide, dismissing Rich�s stress over not being able to obtain AIDS medication due to McDonalds� actions because he happened to have a bad experience working at Applebee�s at the time.

Stolar testified that Rich�s lack of insurance did not contribute to his depression.

The jury heard closing arguments in the case July 6 after press time. A verdict is expected within the week.

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