Disney wins First DAS ADA Discrimination Lawsuit

Lilsia

DIS Veteran
Joined
Feb 17, 2018
If the "plaintiffs" were honest they would just say they only want FOTL access and the ability to just loop a ride over and over, neither of which are anywhere close to "reasonable",and nothing short of that will do.

This is a good first step.
That is pretty much what they started out saying, that the "child" could not go to WDW without having instant, repeated access to whatever ride they wanted throughout the whole day. Can we all imagine if anyone that qualifies for DAS was allowed to do that with how busy it is now. You would have hundreds, if not thousands of people just going on any ride, over and over again with no wait while the rest of the schmucks, who did not ask for a DAS, are waiting in 3+ hour lines.
 

GreatLakes

DIS Veteran
Joined
Aug 6, 2015
That is pretty much what they started out saying, that the "child" could not go to WDW without having instant, repeated access to whatever ride they wanted throughout the whole day. Can we all imagine if anyone that qualifies for DAS was allowed to do that with how busy it is now. You would have hundreds, if not thousands of people just going on any ride, over and over again with no wait while the rest of the schmucks, who did not ask for a DAS, are waiting in 3+ hour lines.
Not just that but the entire idea behind the ADA is equal access and reasonable accommodation. Under no circumstances should a DAS give better access than a standard guest.
 

Boopuff

DIS Veteran
Joined
Feb 27, 2015
I read the entire thing. Very interesting. I do think the "mom" sorta shot herself in the foot by discussing the trial on the internet. I've always thought the GAC wasn't fair from the get-go, but to see the actual numbers and how we non DAS holders get screwed by over use is amazing. Those numbers really do make for a great argument!
 

SueM in MN

combining the teacups with a roller coaster
Moderator
Joined
Aug 23, 1999
The Mom shot herself in the foot in many ways, especially when she didn’t even give DAS a try.
This interview the mom did was similar to what she posted on social media.
 

SueM in MN

combining the teacups with a roller coaster
Moderator
Joined
Aug 23, 1999
If the "plaintiffs" were honest they would just say they only want FOTL access and the ability to just loop a ride over and over, neither of which are anywhere close to "reasonable",and nothing short of that will do.

This is a good first step.
They actually did....one of their motions requested the judge:
“To enter summary judgment and injunctive relief in his favor, requiring on future visits that Disney permit him access to Disney’s rides and attractions through Disney’s Fastpass lines”
 

Dulcee

Mouseketeer
Joined
May 19, 2020
Well, I read the whole thing. The amount of times that the plaintiff made life harder on themselves is remarkable. It very much looks like she is not willing to do anything to help her child out and work with the DAS system. Very sad.
The first time we took our oldest to disney and discussed how we'd tackled the parks with his therapist the first thing his therapist said was there is no better reward than a disney ride for navigating a challenging situation. Waiting, change in routine, lack of control are still hard for our son but there is no where he does it better than disney because the reward is just that good. Now if we could just get our health insurance to cover the trips as a therapy appointments :rotfl:
 
  • jcb

    always emerging from hibernation
    Joined
    Apr 28, 2007
    To echo what others have said, this lawsuit has been a fascinating example of molding the message.

    When you file a lawsuit, or, for that matter, any motion asking a judge to grant you relief, you need to clearly specify the relief you want. Similarly, when you defend a lawsuit, you want to (re)characterize what the lawsuit wants to be able to best defend it. Here is where I think the original complaint made a tactical mistake. One paragraph quoted a statement about DAS:

    The Disability Access Service is designed for Guests who are unable to tolerate extended waits due to disability. This service allows Guests to schedule a return time that is comparable to the current queue wait for the given attraction.​
    This service does not provide immediate or priority attraction access.​
    The complaint then attacked the last sentence, saying "Disney acknowledges the difference between immediate access and priority access; that is, immediate access is not necessarily preferential or superior treatment in comparison to the access afforded other guests. Even if Plaintiffs have a special need for near-immediate access, they have never sought, and do not seek, “priority” access." (The court's decision calls the latter assertion into question, of course.)

    Disney seized on the phrase "near-immediate access" even though the only time the complaint used this phrase was where I quoted it above and that was a pretty equivocal assertion (e.g., "even if"). I'm not saying this was improper or even underhanded. It didn't help the plaintiffs that the complaint also alleged: "With the Guest Assistance Card, though guests were not always expressly promised immediate access to the attractions, immediate access was precisely what Disney, through its employees, routinely delivered." (My emphasis.) Then, on appeal, the court of appeals said "Plaintiffs therefore contend that access to all of Disney’s rides must be both nearly immediate."

    Disney repeatedly used this phrase in its briefs, arguing (for example) "plaintiffs here do not have any right to near-immediate, repeated and rigidly executed access to all rides at WDW." It's no surprise that the first page of the latest decision states: "Disney’s general position is that unlimited, near-immediate access to every ride at its parks,
    the proposed accommodation for A.L.’s autism, is not required by the ADA. . . ." It didn't help that the plaintiffs couldn't better define what they wanted: "unlimited access to Disney’s theme park attractions via Disney’s expedited “FastPass” lines, or similar relief through at least ten “readmission passes." Even worse, A.L.'s guardian said she wanted a readmission pass for each of of the 19 Magic Kingdom rides on A.L.'s preferred list for everyone in their party. Just ten readmission passes, the court found, would "essentially be like returning to the unlimited access to FastPass lines similar to the GAC system."
     
    Last edited:

    SueM in MN

    combining the teacups with a roller coaster
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    Aug 23, 1999
    It was mentioned during the trial that Disney had produced a booklet with helpful information for guests with cognitive disabilities to help them prepare for a park visit.
    I thought people might be interested in seeing it.

    These are links to the WDW and Disneyland current versions of the booklet. It has had a few minor changes, but is pretty similar to the version that was available at the time DAS was introduced.

     

    jcb

    always emerging from hibernation
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    Apr 28, 2007
    It looks like the plaintiff is also responsible for Disney's legal fees - is that usual?
    Disney filed its Bill of Costs yesterday, asking the court to "tax" costs in the amount of $23,104.32. As I said, "costs" are a term of art in litigation. Some "costs," such as statutory fees paid to witnesses who testify at the trial, are presumptively "taxable." Disney's total witness fees were $779.00.

    Most deposition costs are taxable, though some courts limit how much of the court reporter costs can be taxed (I don't know what the precedent is in the Middle District of Florida, where the case was tried). Here, Disney is asking for a little short of $6,800 for deposition costs. Court reporters are not cheap, nor should they be. If you have ever tried to transcribe what someone said word for word over the course of a full day, you'll understand why. Still, some courts don't permit certain add-ons some court reporters charge for an electronic copy of the transcript or delivery fees.

    Disney also asks for $6,362.45 in costs for obtaining a copy of the three-day trial transcript. It asked for expedited transcripts. Trial transcripts costs are routinely allowed but precedent will determine whether or not the fees for a rush job in transcribing the trial testimony was necessary. That precedent states that "costs associated with expedited trial transcripts should [not] be allowed as a matter of course" Maris Distrib. Co. v. Anheuser-Busch, Inc., 302 F.3d 1207, 1226 (11th Cir. 2002), but permitted it where the trial was lengthy and complex. I found two Middle District decisions refusing to tax expedited transcript costs this but, again, the issue is whether they were necessary (ironically) or simply prepared for the convenience of counsel.

    Whether the remaining$10k in costs are taxable also depends on precedent. $4,200 for copies and printing costs seems high but I know of at least one decision that has approved a similar amount in copying costs. (Courts and attorneys waste a lot of time arguing over what constitutes "making copies.")

    Disney paid (at least) $3,761.18 to a vendor to help it manage electronic discovery. Federal courts don't agree on whether electronic discovery costs are taxable (with some saying electronic documents are not really "copies") but the real issue is whether Disney necessarily obtained its copies for use in the case. It appears Disney (smartly) isn't trying to recover all of its electronic discovery costs but whether it gets any will depend on what the relevant courts have decided in prior cases. I looked (briefly) and found a few decisions on the issue but none that were relevant enough to mention here.
     
  • jcb

    always emerging from hibernation
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    Apr 28, 2007
    The plaintiff (A.L. and his Mom) appealed the judge's ruling to the federal court of appeals in Atlanta. Review of factual findings is highly deferential and the Judge's legal conclusions are hardly unusual. They may complain about the judge limiting their proof (such as wanting to substitute an expert at the last minute and striking a number of exhibits as irrelevant) but these rulings are reviewed for an abuse of discretion and Judge Conway gave sound reasons for them.

    Appeals take roughly a year (a little less) so, we'll have another year or so with this case.
     

    OKW Lover

    Retired and living 2 miles from The Castle.
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    Apr 29, 2004
    Does the appeal have any specificity as to what points they are appealing?
     

    jcb

    always emerging from hibernation
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    Apr 28, 2007
    Does the appeal have any specificity as to what points they are appealing?
    Not really, they list the final decision and various pretrial rulings limiting their discovery and presentation of evidence, which is usually not a good idea to do when you appeal, but they don't say the points they want to appeal.

    I probably should stop at that comment.
     

    jcb

    always emerging from hibernation
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    Apr 28, 2007
    So a while back I said:

    So, in theory, the necessary and reasonable holdings might change depending on the facts. What will likely sink the remaining plaintiffs is the ruling that the requested modification would "fundamentally alter" the Disney Park experience. While this was based on the impact of A.L.'s request for 10 readmission passes, Disney persuaded Judge Conway this would increase standby wait times, reduce Disney's return business and essentially return to the abuses of GAC. Again, in theory, a different case could lead to a different result but practically, that would be threading a small needle with a large thread.
    Disney is thinking along the same lines, filing a motion asking the court to decide whether a second plaintiff can prevail given the court's ruling on the "fundamentally alter" issue. It is an interesting motion. The doctrine used to be called "collateral estoppel" but now is referred to as "issue preclusion." It essentially prevents a party from trying to get different decisions in different cases on the same issue. The problem for Disney is that they want to preclude a different party from litigating this issue. Issue preclusion is a lot rarer in that setting. Disney acknowledges this and cited Supreme Court decisions saying "in certain circumstances" a non-party can be bound by a judgment.

    Disney's motion, however, does not ask the court to dismiss the other lawsuit outright. Instead, it asks the court to consider dismissal, the difference being admittedly subtle, but the latter being more of a request for guidance from the court on how it wants the parties to proceed. It has, in fact, been odd that the court hasn't said anything (so far as I know) about the other pending DAS lawsuits. So, in a practical sense, this appears to be Disney's attempt to move at least one other matter along now that they have a ruling from the district court. I look for Disney to file similar motions in the other pending DAS lawsuits. One thing Disney does not address is the impact of the appeal on an issue preclusion argument. I don't know if that makes a difference or not.

    On Disney's effort to recover costs, the plaintiff has responded opposing about $20k in Disney's motion. They make some of the same points I alluded to earlier. They oppose the $7k in trial transcript costs but is pretty cheeky to file an appeal from a trial and oppose the costs of obtaining a trial transcript. They also accuse Disney of double (or more) dipping asking this plaintiff to pay Disney's full cost of the deposition of Disney witnesses when it should be divided up among each of the plaintiffs. There is superficial appeal to this but I didn't read Disney's motion to say they would ask every lawsuit to pay the full cost of these depositions. I know Pete thinks Disney will try to make up the $30m a day losses from the coronavirus shutdown at some point but it won't get very far by seeking windfalls in litigation costs.
     

    jcb

    always emerging from hibernation
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    Apr 28, 2007
    No further update about the prior post.

    The magistrate judge decided to postpone a ruling on Disney's bill of costs until the court of appeals issues a decision. That's pretty common in my experience.

    A litigation practice is a lot of hurry up and file this and wait, and wait, and wait. It's sort of like getting to Epcot for rope drop so you can be part of the "running of the bulls" to Norway to ride Frozen Ever After.
     

    DisneyLover1217

    DIS Veteran
    Joined
    Jan 4, 2010
    And I wonder if this has some merit?

    I feel bad his daughter has such terrible issues wearing a mask but then why take her to Disney when you know they require it. Just because you have a medical exemption doesn't mean Disney has to allow you in and if they did why would you expose your daughter to a lot of people when she cannot wear a mask.
     

    jcb

    always emerging from hibernation
    Joined
    Apr 28, 2007
    And I wonder if this has some merit?

    Not if I were the judge. I watched the video on someone's twitter feed a little bit ago. I need to question the child's diagnosis or that she can't wear a mask. Assuming that is true, the father is still wrong in saying Disney is violating the ADA. I would defend any private business who refused entry to a guest who refused or asserted they cannot wear a mask. Under the present circumstances, I believe most courts would agree that the person poses a direct threat to employees and other guests. I truly hope that changes at some point. It's just sad the father put the child in the situation without first investigating Disney's rules.
     

    hertamaniac

    WDW Local
    Joined
    Feb 9, 2017
    Not if I were the judge. I watched the video on someone's twitter feed a little bit ago. I need to question the child's diagnosis or that she can't wear a mask. Assuming that is true, the father is still wrong in saying Disney is violating the ADA. I would defend any private business who refused entry to a guest who refused or asserted they cannot wear a mask. Under the present circumstances, I believe most courts would agree that the person poses a direct threat to employees and other guests. I truly hope that changes at some point. It's just sad the father put the child in the situation without first investigating Disney's rules.
    Do you think this would still apply if the guest was able to wear a face shield in lieu of the mask (with medical documentation)? As far as I know, Disney is clear on the mask policy.
     

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