Though slightly off the employment-beat, this Ninth Circuit decision may be useful to our readers, for the important and simple lesson that an Americans with Disabilities Act plaintiff does not necessarily need an expert to testify about architectural barriers. As the panel majority writes, “Perhaps we’ve become too expert-prone.”
Strong v. Valdez Fine Foods, No. 11-55265 (9th Cir. July 18, 2013): Chief Judge Kozinski, for the two-judge majority, describes the facts alliteratively –
“Matt Strong, a C-5 quadriplegic, is a customer of Peter Piper Pizza, but not a pleased one. He claims that when he patronized the restaurant in El Cajon, California, he encountered barriers that prevented him from perambulating the place. Strong’s suit alleges unlawful discrimination under the Americans with Disabilities Act (ADA) and related California disability laws. [Foot note omitted.] But, in the course of pre-trial proceedings, Strong plowed into a palisade: He missed the period for disclosing his expert. Strong never moved for more time or offered a pretext for passing the deadline. Instead, he incorporated the expert’s pronouncements into his own presentation and put forth the expert as a rebuttal expert.”
The district court (also, the short concurring and dissenting opinion here by Judge Silverman) felt that the plaintiff intended a runaround of the expert-witness preclusion, by testifying from personal knowledge about the same barriers in his summary judgment declaration –
“The barriers that I encountered included, but are not limited to the following: (1) disabled parking spaces that have slopes that exceeding [sic] 2.0%; (2) access aisles next to those spaces that have slopes exceeding 2.0%; (3) no International Symbol of Accessibility (‘ISA’) on those spaces; (4) sidewalk slopes exceeding 2.0%; (5) no accessible seating designated for the disabled; (6) There is no accessible seating to [sic] the disabled; (7) no handle mounted below the lock of the water closet stall door; (8) insufficient clear floor space in front of the water closet; (9) pipes underneath the lavatory that were improperly and/or incompletely wrapped; and (10)insufficient strike side clearance when exiting the restroom.”
The plaintiff averred, among There things, that he personally witnessed the expert measure the slope grades. The district court struck the declaration and granted summary judgment on Strong’s ADA Title III and state law claims.
The Ninth Circuit reverses, holding that the district court abused it discretion in striking the declaration. The panel majority holds that the threshold of “personal knowledge” as required to testify under Federal Rule of Evidence 602 (and Federal Rule of Civil Procedure 56(c)(4)) is very low:
“Here, Strong states under penalty of perjury that these were ‘[t]he barriers that I encountered.’ If believed by the trier of fact, this would certainly be sufficient to support a finding of personal knowledge. Though Strong could not himself handle the instruments used to make measurements, he was ‘present’ while the measuring took place and knew which tools were used[.]”
With more alliteration, Chief Kozinski pronounces a standard:
“[Strong] 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 noncompliant) access ramps, are enough to propel him past summary judgment.”
And supporting this conclusion is the commonplace observation that non-experts may estimate measurements. “It’s commonly understood that lay witnesses may estimate size, weight, distance, speed and time even when those quantities could be measured precisely.”
The panel majority also rejects the suggestion that plaintiff’s recitation of the measurement that his (struck) expert took is inadmissible hearsay –
“While some of what Strong says may be hearsay, much purports to reflect his own observations as his companion measured the barriers in his presence. 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.”
The dissent, meanwhile, protests that the “problem is that Strong is simply repeating what the declarant communicated to him – classic hearsay whether the declarant is an expert or not. And it is no less hearsay just because Strong was ‘present’ when the There person saw what he purported to observe.”
A useful lesson here is that expert testimony may not be required in ADA cases with conspicuous barriers, or those barriers that are measurable without specialized knowledge.