No Expert Needed To Survive Summary Judgment in ADA Case - U.S. Ninth Circuit
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No Expert Needed To Survive Summary Judgment in ADA Case

Could you tell the difference between a parking lot with a 2 percent grade and one with 2.1 to 2.7 percent grade?

Matt Strong is a C-5 quadriplegic, and a regular customer of Peter Piper Pizza. Based on his experiences with the restaurant, he found a number of Americans with Disabilities Act violations, including a parking lot and ramps with greater than 2 percent slopes, improperly marked and sized accessibility areas next to handicapped parking spots, and improper bathroom stalls.

It seems, factually, that he is correct. He had an expert take measurements of all of the areas, and indeed, they fail to meet ADA standards. However, procedurally, he made a bit of a mistake:

He missed the deadline for disclosing his expert.

Instead of presenting expert testimony in his case-in-chief, he instead desired to testify himself about the measurements and failings of the premises, as he was present when the measurements were taken (he was physically unable to take the measurements himself).

Per the majority here, that suffices. The dissent, however, feels that the measurements are hearsay. After all, he didn't take the measurements and instead reviewed the expert's report. Now, he seeks to sneak in the measurements after missing the deadline, and if needed, bring the expert in on rebuttal.

The majority feels that his personal observations, as well as being present during the measurements, suffices. After all, his personal experiences could allow him to testify that, based on his experience and estimates, that the bathroom stall was too small, or that the lock was not placed in the proper location, or that the handicapped spot was too small.

The majority, overall, makes a good point. Lay people are entitled to testify about their reasonable estimates regarding measurements, such as speed or distance. Any issues of accuracy go to credibility, not admissibility. Plus, he did swear that he was there when the measurements were taken and memorized them using his "photographic memory."

Kozinski quips that "Perhaps we've become too expert-prone."

Is personal experience enough to tell a 0.7 percent difference in grading? Maybe to someone in a wheelchair, who deals with these ramps daily, such a difference is noticeable. Again, it's a matter of credibility and factual determination -- an issue sufficient for trial.

The majority also reversed the lower court's finding that Strong would have to show that "the removal of the barriers is readily achievable." Such a showing is only required of pre-1993 construction. (42 U.S.C. § 12182(b)(2)(A)(iv)). "New construction" has a different standard - structural impossibility. (42 U.S.C. § 12183 (a)(1)).

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