In Strong v. Valdez Fine Foods, — F.3d —, 2013 WL 3746097 (9th Cir. July 18, 2013), the Ninth Circuit held that a person with a disability who is suing to challenge architectural barriers at a pizza joint did not need an expert to testify that the place was inaccessible.
Inaccessible facilities are always experienced in the first place without a tape measure. You try to patronize them, but there’s no ramp or the queue line is too narrow or the restroom too small. This is obvious to a person using a wheelchair because you can’t get in here or out there or from here to there. Ultimately, it’s not a legal violation unless the inaccessible dimensions actually run afoul of the legal standards, for example, the DOJ Standards for Accessible Design, but in most cases, that’s a matter of reading a tape measure.
All that said, in litigation, in an abundance of caution, we generally retain an expert to read the tape measure and the [only slightly] more complex digital level
and door-force measuring device.
Our experts (love you guys!) are experienced architects and access analysts who bring their expertise in code interpretation, and that experience and analysis is invaluable. But if you really just want to know the height of a service counter or the width of a parking space, pretty much any one over the age of 10 could do it.
Which brings me to Strong v. Valdez, which held that a person with a disability doesn’t need an expert to testify to basic measurements. Judge Kosinski sets the tone with his first sentence: “Perhaps we’ve become too expert-prone.” Id. at *1. Indeed.
Mr. Strong brought this question before the Ninth Circuit because — how can I put this gently? — his attorney blew the deadline for expert reports. Finding himself in this pickle, Mr. Strong submitted a declaration that was based both on his own direct experience of inaccessibility and his observations while his expert took measurements. The district court rejected this evidence as lacking personal knowledge. The Ninth Circuit reversed:
That another person holds the ruler does not deprive an observer of personal knowledge of the measurement, and Strong says he was present as the measurements were taken. . . . Even without precise measurements, Strong could support his case based on his own personal experience with the barriers. He states in a sworn declaration that, on five separate occasions, he encountered parking spaces, access aisles and sidewalks with slopes exceeding 2.0%. It was only after he experienced these obstacles that Strong sought assistance in measuring them, which he did to “document and verify those barriers.” These measurements confirmed what Strong had already discovered through his personal observations. . . . He would no doubt present a more powerful case at trial if he could proffer evidence of precise measurements, but his personal observations, based on his prolonged experience with ADA-compliant (and non-compliant) access ramps, are enough to propel him past summary judgment.
Id. at *2 (emphasis added). This not only makes a great deal of sense — and could have the effect of simplifying and reducing the cost of access litigation — it also represents a heartening recognition that people with disabilities are active and knowledgeable reporters of their own experiences.
The ADA was enacted as a boon to disabled people, not expert witnesses. Specialized or technical knowledge is not required to understand Strong’s straightforward assertions.
Id. at *4.
I would still retain an expert where there are questions of code interpretation or the need for an extensive survey project, but this is a very encouraging endorsement of the ability of people with disabilities to testify to basic lack of access. In other words,
You don’t need a weatherman
To know which way the wind blows
Bob Dylan, “Subterranean Homesick Blues.”