Cleveland--The second trial of an Akron gay man�s claim that McDonald�s illegally fired him for having AIDS is underway.
The suit is a retrial of a case that led to one of the largest jury verdicts for an individual against an American corporation. In the first trial four years ago, a jury awarded $5 million to Russell Rich, a former manager with the fast-food chain who was fired after supervisors learned his HIV status in 1997.
McDonald�s appealed the verdict, claiming Rich is not disabled, and thus not entitled to the claim under the Americans with Disabilities Act.
The company relied on a 1998 U.S. Supreme Court ruling that a woman was covered by ADA because her HIV status made her unable to reproduce. They said that since Rich is a gay man, he isn�t going to reproduce anyway, so he has no claim under ADA.
The Eighth Ohio District Court of Appeals in Cleveland agreed in 2003, set aside the $5 million award and gave McDonald�s a new trial, which began June 20.
Last month Rich�s attorney, Paige Martin of Columbus, discovered that McDonald�s had unlawfully concealed three of its company manuals that clearly state Rich is covered by ADA and it was illegal to force him out.
Martin moved that Cuyahoga County Common Pleas Judge Ronald Suster to sanction McDonald�s by ordering immediate payment of the original $5 million verdict instead of a new trial.
Suster denied the motion without comment June 13. Four days later he removed himself from the case, leaving it to visiting judge John T. Patton.
Patton is a retired Cuyahoga County Common Pleas and Eighth District Court of Appeals judge who has, on occasion, sat on the Ohio Supreme Court by designation.
Suster had also removed himself from the first trial in 2001, which was ultimately heard by visiting judge John J. Angelotta.
Patton put a gag order on the litigants until after the trial, but has allowed press coverage.
By press time, nine pre-trial motions had been filed by McDonald�s attorney Steve Catlett of the firm Jones Day, but not yet ruled on by Patton.
The jury has been seated, and includes four men and four women, all white. The two alternates are a black woman and a white man.
During jury selection, which lasted six hours, Catlett questioned prospective jurors if they were McDonald�s customers, and if it would bother them if they found out McDonald�s allowed people with HIV to handle food, even though the law and company policy allow it.
Martin asked the prospective panel if they knew gay people, if they knew anyone with AIDS, and if the idea of gay people becoming parents bothered them in any way. She also inquired as to their relationships with their own employers.
The case, which has been in the national media since the 2001 verdict, became fodder for local talk radio personality Mike Trivisonno.
Trivisonno, who is heard on the 50,000-watt WTAM 1100, said on the air that he would never eat a restaurant if he knew an employee had HIV.
That remark drew a response from the AIDS Taskforce of Greater Cleveland, which pointed out that it has been long established that HIV is not spread through food preparation. The agency sponsored a June 22 lunch partially prepared and served by people with AIDS as a protest. About 80 people attended.
The first trial took nine days. The current trial is expected to take at least that long.
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