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SAWHORSE
Local attorney helps clarify standard for ADA lawsuits
Decision could be a benefit for businesses
By DOUG SHERWIN, The Daily Transcript
Wednesday, August 24, 2011
Plaintiffs suing over access for disabled persons must indicate all of the alleged barriers in their initial complaint, according to a recent ruling by the Ninth Circuit Court of Appeals.
In Oliver v. Ralphs Grocery Company, the three-judge panel ruled that any evidence added after the complaint is amended doesn't allow the defendant fair notice to investigate or fix the alleged infractions.
"It's just not fair to add new allegations by way of an expert report," said San Diego attorney Spencer Skeen, who successfully represented a defendant in the case. "The court said that their litigation strategy of hiding the ball and waiting until after discovery isn't proper."
In Americans with Disabilities Act (ADA) cases, plaintiffs can only seek injunctive relief for the removal of the alleged barriers. If a defendant fixes the noncompliant features in question, it can render the case moot, and most will be dismissed by a judge.
Plaintiffs can request moving the case to a state court, which, in California, allows for the recovery of damages.
A lower court declined to exercise supplemental jurisdiction in the Oliver case, and the appellate court affirmed that decision.
The case involved A.J. Oliver, a disabled individual who requires the use of a motorized wheelchair to get around. In 2007, he filed a lawsuit alleging that a Food 4 Less grocery store in Chula Vista did not comply with ADA regulations.
The complaint listed 18 architectural features that interfered with his ability to access the goods and services at the store.
Four months after the deadline to file an amended complaint, Oliver filed an expert report that listed additional barriers not mentioned in the initial complaint. The trial court ruled that it would not consider the additional barriers, and the Ninth Circuit agreed.
"A plaintiff must identify the barriers that constitute the grounds for a claim of discrimination under the ADA in the complaint itself; a defendant is not deemed to have fair notice of barriers identified elsewhere," Circuit Judge Sandra S. Ikuta wrote in her opinion.
Skeen, a partner with Fisher & Phillips LLP who represented property owner Cypress Creek Co., said the only effect of hiding evidence until late in the litigation process is it prevents the defendant from correcting the problem.
"What is this case about?" Skeen said. "Are we trying to get access by getting the barriers removed or are we trying to keep the case going?
"It's unfortunately common practice because plaintiffs' attorneys don’t want to get the case dismissed."
In a footnote to the opinion, Ikuta wrote that Oliver's counsel said it was his strategy to delay the identification of the additional barriers.
"He purposely 'forces the defense to wait until expert disclosures (or discovery) before revealing a complete list of barriers,' because otherwise a defendant could remove all the barriers prior to trial and moot the entire case," Ikuta wrote.
Skeen said the decision could be a huge benefit for businesses that are facing ADA lawsuits by giving them time to investigate and correct any possible violations.
"It's going to limit some of the claims being asserted," he said, "and it's going to force plaintiffs to do more work up front and identify their claims for relief conspicuously in the complaint.
"It really helps the defendant figure out if they want to settle the case or plan for defense of the case."
Decision could be a benefit for businesses
By DOUG SHERWIN, The Daily Transcript
Wednesday, August 24, 2011
Plaintiffs suing over access for disabled persons must indicate all of the alleged barriers in their initial complaint, according to a recent ruling by the Ninth Circuit Court of Appeals.
In Oliver v. Ralphs Grocery Company, the three-judge panel ruled that any evidence added after the complaint is amended doesn't allow the defendant fair notice to investigate or fix the alleged infractions.
"It's just not fair to add new allegations by way of an expert report," said San Diego attorney Spencer Skeen, who successfully represented a defendant in the case. "The court said that their litigation strategy of hiding the ball and waiting until after discovery isn't proper."
In Americans with Disabilities Act (ADA) cases, plaintiffs can only seek injunctive relief for the removal of the alleged barriers. If a defendant fixes the noncompliant features in question, it can render the case moot, and most will be dismissed by a judge.
Plaintiffs can request moving the case to a state court, which, in California, allows for the recovery of damages.
A lower court declined to exercise supplemental jurisdiction in the Oliver case, and the appellate court affirmed that decision.
The case involved A.J. Oliver, a disabled individual who requires the use of a motorized wheelchair to get around. In 2007, he filed a lawsuit alleging that a Food 4 Less grocery store in Chula Vista did not comply with ADA regulations.
The complaint listed 18 architectural features that interfered with his ability to access the goods and services at the store.
Four months after the deadline to file an amended complaint, Oliver filed an expert report that listed additional barriers not mentioned in the initial complaint. The trial court ruled that it would not consider the additional barriers, and the Ninth Circuit agreed.
"A plaintiff must identify the barriers that constitute the grounds for a claim of discrimination under the ADA in the complaint itself; a defendant is not deemed to have fair notice of barriers identified elsewhere," Circuit Judge Sandra S. Ikuta wrote in her opinion.
Skeen, a partner with Fisher & Phillips LLP who represented property owner Cypress Creek Co., said the only effect of hiding evidence until late in the litigation process is it prevents the defendant from correcting the problem.
"What is this case about?" Skeen said. "Are we trying to get access by getting the barriers removed or are we trying to keep the case going?
"It's unfortunately common practice because plaintiffs' attorneys don’t want to get the case dismissed."
In a footnote to the opinion, Ikuta wrote that Oliver's counsel said it was his strategy to delay the identification of the additional barriers.
"He purposely 'forces the defense to wait until expert disclosures (or discovery) before revealing a complete list of barriers,' because otherwise a defendant could remove all the barriers prior to trial and moot the entire case," Ikuta wrote.
Skeen said the decision could be a huge benefit for businesses that are facing ADA lawsuits by giving them time to investigate and correct any possible violations.
"It's going to limit some of the claims being asserted," he said, "and it's going to force plaintiffs to do more work up front and identify their claims for relief conspicuously in the complaint.
"It really helps the defendant figure out if they want to settle the case or plan for defense of the case."
