in  a recent decision, the Fifth Circuit found in favor of the plaintiff, actually overruling a judgment for the employer.  Even more surprising is that in its decision, the Fifth Circuit appears to be construing the available facts in favor of the non-movant, as they should be doing.  See Carmona v. Southwest Airlines.  

In this ADA case decided under the old ADA, the plaintiff claimed a condition known as psoriatic arthritis, which can be quite delibitating.  This particular plaintiff, for example,w as often reduced to crawling at times, because walking was far too painful.  

The court noted that the employer’s attorney omitted from a quotation a key clarification: "most of the time."  That is, the plaintiff testified that he could drive, walk, read, take care of himself.  When pressed further, he added,  "most of the time."   That is, he could walk, drive, read, take care of himself most of the time.  The defense attorney omitted the latter response, as many defense attorneys do.  But, this time, the employer’s attorney was called on this glaring omission.  As noted above, the defense attorney is supposed to construe the available facts in favor of the non-movant, or plaintiff, when seeking a judgment as matter of law.  All too often, they do just the opposite.  They usually construe the available facts in favor of the movant, or defendant.  So, the Fifth Circuit construed all the available information in favor of the non-movant and found there was enough evidence to allow a jury to hear the case. 

Judgment as a matter of law is a motion where one party claims the other party has no case.  The entire purpose of judgment as a matter of law is to dispense with cases that have no merit.  Why waste the jury’s time with obviously flawed cases?  But, when flaws are not obvious, then the jury should hear such cases.  This time, the Fifth Circuit agreed.