Thoughts on Disability Access Service Lawsuit - Update on Florida

[jcb]

For those not familiar with the several lawsuits against Disney brought by parents of children with autism or other disabilities, I suggest you first read these blog posts:

Post when the lawsuit was filed:
http://blog.wdwinfo.com/2014/04/04/new-lawsuit-attacks-disneys-new-disability-access-service/

Post when Disney moved to dismiss the lead lawsuit after it was transferred from California to Florida
http://blog.wdwinfo.com/2015/11/02/disney-asks-court-to-dismiss-autismdas-lawsuit/

Florida court dismissal of lead autism discrimination lawsuit.
http://www.wdwinfo.com/news-stories/federal-court-rules-for-disney-in-lead-dasautism-lawsuit/

I realize these links look like a shameless plug for old posts, so here is a brief update. Several parents filed a lawsuit in California when Disney changed from the Guest Assistance Card to the Disability Access System. The California court transferred the lawsuits to Florida, where the court initially dismissed most of the claims on grounds that let the parents refile the lawsuits elsewhere. The court ultimately dismissed the only remaining claim (under the ADA), upholding Disney's change to DAS and holding the parents didn't give DAS enough of a chance to allege it wouldn't work for their child. That dismissal is on appeal.

Meanwhile, several parents filed (or refiled, doesn't matter) lawsuits in California, alleging Disneyland's adoption of DAS violates California law. (This isn't surprising, most folks feel California courts are more receptive to claims such as this.) Disney recently asked the California court to dismiss the lead lawsuit there.

By this point, I've said all I need to say about the merits of the claims and Disney's arguments in its motion to dismiss are the same it made in Florida. What interests me now are Disney's explanations (supported by sworn testimony or statements) for changing to DAS and the problems it had with GAC. For example, Disney brief asserts:

Most commonly, some guests fabricated their need for a pass at all. More egregiously, some guests created counterfeit GACs, posted Craigslist ads offering the use of GACs -- at the cost of thousands of dollars -- for unauthorized “tours” of Disneyland, and used the internet to sell unexpired GACs. Id. This misuse became notorious; in May 2013, the New York Post, NBC News, Fox News and other media outlets ran stories documenting accounts of wealthy mothers from New York City paying disabled tour guides to lead them through Disney’s theme parks so they could skip lines.

This exaggeration or fabrication of need for GAC reached a point where a ride sometimes had more guests in the GAC line than in the standby line. Id. For example, at Disneyland, guests would ask for a GAC card to bypass the GAC line because the GAC line was too long and at times it exceeded the regular wait for the attraction. Id.​

Disney also conducted studies when it implemented DAS (though it doesn't say when it did the studies). Disney explained:

guests with DAS can experience significantly more rides in a day than guests without DAS. DSUF ¶ 31. This point was confirmed by a study Disney conducted in which testers used the ride passes available to them (i.e., DAS, FastPasses, or re-ads) to experience as many attractions as possible during two days. In other words, DAS guests, if they so choose, can experience significantly more attractions and spend much less time waiting in queues. Id. As Disney’s industrial engineering expert Bruce Laval concluded, “DAS not only reasonably accommodates and provides equal access to guests with disabilities, for whom it may be difficult to wait in a traditional queue,” but it provides more than equal access to such guests overall “because they can experience the most popular attractions faster and, if they desire, in greater number than what [redaacted] of guests [i.e., non-DAS guests] at Disneyland can do without DAS.”
​

Finally, Disney emphasized that DAS is consistent with how professionals work with people who have
Autism Spectrum Disorder (ASD), quoting testimony from its autism expert (Dr. Kelderman):

Dr. Kelderman explained that “the accommodations under DAS mirror strategies utilized by parents, educators, and clinicians working with people with ASD, which are outlined in the literature.” This uncontroverted expert evidence demonstrates that the accommodations provided to plaintiffs -- which allowed them to experience many attractions -- are “clearly not intolerable in a civilized community; rather, they are consistent with the accepted treatments for challenging behaviors associated with ASD and the current research.” Indeed, it is “obvious to anyone familiar with the field that Disney incorporated behavior principles consistent with best practices” in its DAS system and guidebooks, and that it is indicative of “a conscious effort to maximize the positive experiences” of guests with disabilities visiting Disney. It is therefore not surprising that tens of thousands of individuals have been using DAS each month at Disneyland since its inception, and DAS has been “extremely popular among persons with cognitive disabilities.” (quoting Disney's industrial engineering expert).​

As i said, I haven't gone into the merits of this specific claim but it appears Disney has moved to dismiss one of the weakest of the California claims - Disney argues the child does not in fact has autism but a respiratory distress syndrome which is not caused or aggravated by DAS and which has flared up only once in 16 visits to Disneyland, all of which occurred after Disney implements DAS in October 2013.

 

[SorcererHeidi]

As always, thank you @jcb

 

[jcb]

As always, thank you @jcb

thanks for reading.....

 

[disneyland_is_magic]

Very, very good read, thank you very much.
I was reading last night reports about how Walt's apt is no longer included in ABD, because of ADA.
As much as I hate to say it, I'd rather they preserve it's integrity and leave it closed for now, then gut it to make it legal.
Such complicated and delicate issues, thanks for the update.

 

[OKW Lover]

Appreciate the summary Jack. I'll be interested to hear what the court decides.

 

[jcb]

This afternoon, the federal court in Florida handed Disney a huge win, issuing 11 decisions granting Disney World's summary judgment motions in each of the DAS ADA lawsuits.

The decisions uniformly reasoned :

courts have interpreted the “full and equal enjoyment” clause, in the context of the necessary requirement, to mean that Congress intended for all individuals to have an opportunity to experience an equal benefit from public accommodations to the extent it is feasible. Argenyi v. Creighton Univ., 703 F.3d 441, 450-51 (8th Cir. 2013) (“Congress requires public accommodations . . . to furnish reasonable . . . services so that all individuals have an equal opportunity to gain ‘a like’ or ‘equal’ benefit.”); Baughman v. Walt Disney World Co., 685 F.3d 1131, 1135 (9th Cir. 2012) (“Public accommodations must start by considering how their facilities are used by nondisabled guests and then take reasonable steps to provide disabled guests with a like experience.”); Liese v. Indian River Cty. Hosp. Dist., 701 F.3d 334, 343 (11th Cir. 2012) (“the proper inquiry [in determining if an accommodation was provided where necessary] is whether the auxiliary aid that a hospital provided to its hearing-impaired patient gave that patient an equal opportunity to benefit from the hospital’s treatment.”). In sum, a key inquiry in determining that a requested accommodation is necessary is whether a disabled individual requires it to receive a benefit like that of a nondisabled person.

* * *
Comparing this to Plaintiffs’ experience, DAS and readmission passes allow Plaintiffs to access those same rides in a fraction of the time. (Id. at p. 20). The plaintiff in Baughman had difficulty standing and walking; Plaintiffs here allege primarily that they cannot wait to access attractions. Having trouble walking or standing could create a different experience from nondisabled guests when viewing certain attractions or transitioning on and off of rides. However, nondisabled guests will inevitably have to wait to experience the attractions at Defendant’s parks regardless of the order they choose to visit them. Not only will nondisabled guests have to wait, most of them will have to stand in line. Furthermore, they will not exit a ride with the ability to ride it again instantly. Plaintiffs can wait for attractions from anywhere in Defendant’s parks from the time they arrive until whenever they decide to leave. While doing so, Plaintiffs can visit other attractions with shorter waits until their return times for attractions with longer waits. Thus, DAS and readmission passes afford Plaintiffs a similar, or better, experience as those not needing accommodation.

 

[disneyland_is_magic]

Thank you for spending the time to summarize this.

 

[OKW Lover]

Sounds perfectly reasonable to me.

 

[pjweaver]

Here is my question about ADA that perhaps @jcb can help with. There are certain attractions that are either grandfathered or fall outside of the ADA scope such as Mammoth Caves, Yellowstone, or the Statue of Liberty where elevators or ramps can not be used without significant alterations. How does that compare with Walt's apartment?

 

[jcb]

Here is my question about ADA that perhaps @jcb can help with. There are certain attractions that are either grandfathered or fall outside of the ADA scope such as Mammoth Caves, Yellowstone, or the Statue of Liberty where elevators or ramps can not be used without significant alterations. How does that compare with Walt's apartment?

Well, all I have heard are reports that the ADA is the reason for this change. It wouldn't be beyond belief that the ADA provides a good cover for ceasing a practice someone wanted to stop. Insurance is used this way all the time.

But if we were to assume the ADA is a legitimate reason, my best guess is that there is a difference between having to make fundamental physical alterations to a building and offering a service (ABD). You don't have to make major building modifications (unless you are making other changes) but if you offer a service, then you have to make reasonable modifications (eliminating inaccessible areas) when individuals with disabilities can't enjoy a like experience. I'm not sure but this is my best guess.

 

[jcb]

Updating with links to two articles on these lawsuits (thanks to @Sue M for reminding me of them).

https://topclassactions.com/lawsuit...es-judge-end-autism-ada-class-action-lawsuit/

http://www.orlandosentinel.com/busi...os-disney-autism-lawsuits-20160926-story.html

I take no responsibility for the accuracy of these articles. The first (which is more of a promotional website than a journalistic one) is flat out wrong in describing these lawsuits as a "class action" it is not and never has been a class action nor was it filed as a putative class action. The OS article is better - quoting from the briefs in the court of appeals - which from the quotes appears to quite overstating the contentions.

 

[TheMaxRebo]

Great update Jack - thank you

Seems like a reasonable response and always feels like Disney tries to do what they can but never can make everyone happy

 

[SorcererHeidi]

Thanx, as always, @jcb!!

 

[wilkeliza]

Thanks for the updates. It is interesting to hear that Disney actually did studies to show it makes the accommodation above and beyond.

 

[jcb]

The California court has now dismissed several of the claims the DAS parents refiled there. The judge explained that with the dismissal of the ADA claims in Florida, the families were bound by that ruling and could not relitigate the Florida court's decisions by couching their claims as if Disney breached a duty arising under California law. The decision states that the families did not file any opposition to Disney's motion (technically a motion for summary judgment).

 

[pjweaver]

I am bit amazed you can even do that. I assumed that if one state had ruled that would be it unless taken to a federal court. Not to mention the violations that these people claim take place in Florida so I assumed Florida law would govern it.

Another example of why I could never be a lawyer, to much of that there book learning. Thanks for the update and Cliffs notes version for us laymen Jack. You must do a lot of that book reading.

 

[TheMaxRebo]

Thanks again for these updates Jack and appreciated seeing you and your take on the IT workers claim on the Podcast on Tuesday

 

[jcb]

Pete,

Multi-jurisdictional questions are surprisingly complex. Here, the complexity was simplified because all the lawsuits are in federal court where, in theory, one set of procedural rules applies. So, we don't have to worry too much as to whether Florida or California courts must respect each others judgments (they do, but only to a certain extent).

Still, I think your point is that you are surprised that different claims could be brought in different courts. With the Internet, it has become easier than ever to file multiple claims in different courts ("forum shopping"). Also, you need to remember, that the families first filed their claims in one lawsuit in California federal court. On Disney's motion, the California court transferred the lawsuit to Florida. The Florida federal court then (1) split up the claims by family and required each family to file a separate lawsuit (done at Disney's request), and (2) dismissed (on its own without request from Disney) all claims not alleging a violation of the ADA (or the Florida/California equivalent). The dismissal of these other claims (referred to below as "common law" claims) let the families refile them in federal court. Disney could not (and did not) complain about the claims being split. The court explained its decision and the type of claims that had been brought in California:

Plaintiffs' common-law claims at issue here are as follows: (1) Negligent Infliction of Emotional Distress (all Plaintiffs); (2) Intentional Infliction of Emotional Distress (all Plaintiffs); and (3) Breach of Contract (S.P. and D.L.W.). Central to all of these claims is the issue of whether Defendant's existing disability accommodations violated the ADA or Unruh Act. This is plainly evident by the language Plaintiffs themselves used in defining their claims--e.g.: "This is an action seeking damages pursuant to common law claims based, in part, upon [Defendant's] violations of the [ADA] and [Unruh Act];"

"Plaintiffs will show that in failing to conduct an individual assessment of Plaintiffs' needs and properly accommodate Plaintiffs' disability, [Defendant] violated the ADA and the Unruh Act. These violations of law constitute evidence of [Defendant's] . . . negligence." (defining Plaintiffs' claim for Negligent Infliction of Emotional Distress); "Plaintiff will show that in failing to conduct an individual assessment of Plaintiffs' needs and properly accommodate Plaintiffs' disability, [Defendant] violated the ADA and the Unruh Act. These violations of law constitute evidence of [Defendant's] intentional conduct [and] its recklessness." (defining Plaintiffs' claim for Intentional Infliction of Emotional Distress); "[Defendant] agreed [in contract] to provide each of them with a . . . theme park experience which complied with applicable laws, including the ADA and the Unruh Act." (defining Plaintiffs S.P. and D.L.W.'s claim for Breach of Contract). No matter how Plaintiffs wish to construe these claims, it is clear to this Court that the central basis for each of Plaintiffs' remaining common-law claims is that Defendant's existing disability program failed to accommodate Plaintiffs T.P. and A.M.W. in violation of the ADA and Unruh Act. As explained above, this issue was already resolved in Defendant's favor in the prior actions before the Florida Court and collateral estoppel precludes Plaintiffs from relitigating that issue here. Accordingly, because Plaintiffs' common-law claims are predicated on their contention that Defendant violated the ADA and Unruh Act--an issue already decided against them--there is no basis for Plaintiffs to succeed on those claims. As such, these claims fail as a matter of law.​

 

[SorcererHeidi]

@jcb - I'll agree with all that @TheMaxRebo said above. Always so great to have you "break stuff down" for us, and you looked great on the computer on the show - kinda Max Heedroomish!

 

[jcb]

Thanks. To be honest, I haven't watched yesterday's podcast (just listened to it to make sure I wasn't too incomprehensible). I feel I must apologize for the Max Headroom appearance. I set my iPad on my camera bag and breifcase which were on the concourse bench seating so every time someone plopped down on another seat, I'm sure my head bobbed all which way.