Today's practitioner tip from the Ninth Circuit Court of Appeals: If your client has been collecting ADA settlements from businesses because they weren't wheelchair-accessible, she can't argue in a lawsuit that she has to use a Segway because wheelchairs are impractical.
That'll just earn you a judicial estoppel ruling.
Tina Baughman has muscular dystrophy; it is difficult for her to walk or stand from a seated position, so she prefers to use a Segway. When Baughman's daughter wanted to go to Disneyland for her eighth birthday, Baughman contacted the happiest place on earth to explain her physical limitations and request permission to use a Segway in the park. Disney, however, refused to make an exception to its two-wheeled vehicle ban.
Baughman sued Disney under the Americans with Disabilities Act (ADA), claiming that Disney denied her full and equal access to Disneyland. The district court held that Baughman was judicially estopped from claiming she can't use a motorized wheelchair, so there was no genuine issue of material fact as to whether it was "necessary" for Baughman to use a Segway to visit Disneyland. It granted summary judgment for Disney.
Baughman is not unfamiliar with the ways of the legal system. In three prior lawsuits, Baughman claimed that "she has a physical impairment which causes her to rely upon a power scooter or wheelchair for her mobility." Now she claims that she must use a Segway because using a wheelchair is "impractical, painful, and difficult."
The Ninth Circuit Court of Appeals concluded that Baughman's assertions in her current complaint that she has "never used" and doesn't need a wheelchair clearly can't be reconciled with her previous claims based on judicial estoppel.
Judicial estoppel prohibits litigants from deliberately changing their positions from case to case just so they can win a lawsuit. In New Hampshire v. Maine, the Supreme Court held that "where a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position."
Here, Baughman offered no evidence that her condition had changed or that she no longer could use a wheelchair or scooter.
Instead, she argued that she wasn't bound by her previous statements because she didn't make them under oath.
The Ninth Circuit disagreed, concluding that judicial estoppel barred Baughman from making her anti-wheelchair argument, but the lawsuit nonetheless survived.
Want to know how? Check back next week, as we detail how the Ninth Circuit schooled Disney on the ADA.