One Enchilada Short of a Discrimination Complaint

In March, reporting on California state appellate Justice Sills takedown  of Proposition 65 "Bounty Hunters", I remarked that the opinion provided "an illustration of how well-intentioned (if overreaching) legislation can be put to less than laudable use in the wrong hands."   Here is another example, this time involving the Americans With Disabilities Act (ADA):

Jerry Doran is disabled, confined to a wheelchair since a 1985 automobile accident left him paralyzed and unable to walk.  Since then, he has become, by his own admission, "a litigious advocate," filing more than 200 lawsuits in state and federal court against restaurants and other public establishments throughout California, alleging insufficient disability access.  He has filed so many suits, in fact, that he has begun to lose track.  That inability to recall the details of each occasion on which he has been wronged by one fast food emporium or another came back to haunt Mr. Doran when he went to trial before U.S. District Court Judge Cormac J. Carney earlier this month on a claim that he had suffered from discrimination based on his disability at Del Taco restaurant #415 in Mission Viejo -- conveniently located a mere 500 miles from his home.

Judge Carney returned judgment in favor of the defendant restaurant, on the ground that Doran had no standing to bring the action.  Although there was no question that Mr. Doran is disabled, Judge Carney was ultimately unable to persuade himself that there was evidence sufficient to prove that Doran had actually sustained any harm at, or had ever actually been to, the Mission Viejo Del Taco.

After describing and praising the purposes of the ADA, Judge Carney's Memorandum Decision [PDF] notes that it is a tool prone to misuse:

Despite the important mission of the ADA, there are those individuals who would abuse its private cause of action provision by filing lawsuits solely with the intent to profit financially.  This potential for abuse of the ADA has been well documented in the Central District of California . . . .  Courts have referred to this proliferation of ADA lawsuits as a 'cottage industry' and have labeled plaintiffs who file these lawsuits 'professional plaintiffs,' 'serial plaintiffs,' and 'professional pawns.'

* * *

The consequences of this abuse of the ADA are severe: businesses and insurers are harmed, the integrity of the bar is called into question, and the public's confidence in the courts is impaired. . . .  Simply put, this litigation abuse of the ADA results in the exact harmful consequences that Congress sought to eradicate by passing the ADA.  As more than one court has observed, the result of this abusive litigation is that 'the means for enforcing the ADA (attorney's fees) have become more important and more desirable than the end (accessibility for disabled individuals).'

Most of the remainder of the opinion focuses on the discrepancies in Doran's responses to interrogatories, his responses to questions in deposition three weeks later, and his testimony at trial, in which key details -- such as how often and when he had actually visited the Mission Viejo Del Taco -- slipped and slid uncontrollably.  Highlights:

• Doran first went to Del Taco #415 in Spring of 2002 or in Spring of 2003, unless his first visit was in 1988.

• Prior to filing suit, he went to the location twice, or perhaps three times, or possibly just once, although he may have gone there on as many as five or six occasions.

• "Mr. Doran's complaint refers to objects -- display racks and vending machines -- which do not even exist at Del Taco restaurant #415."

• "When Mr. Doran stated that he ordered an enchilada to eat during his alleged visit, he must have been testifying about a trip to a Taco Bell restaurant since Taco Bell -- and not Del Taco -- serves enchiladas."

• "When describing the barriers he encountered at Del Taco restaurant #415, Mr. Doran stated that the hand dryers in the restroom were located too high. . . .  Because Del Taco restaurant #415 does not have hand dryers in its restrooms, it is clear that Mr. Doran was testifying about a visit to another restaurant, or place of public accommodation, when asked to identify the barriers he encountered."

• "When asked if there were any fast food chains that Mr. Doran frequented that he had not sued, he replied that he had not sued Kentucky Fried Chicken.  In fact, Mr. Doran has sued Kentucky Fried Chicken.  When asked to try again, Mr. Doran replied that he had not sued Jack in the Box.  Although apparently unbeknownst to him, Mr. Doran has sued Jack in the Box also."

At least Mr. Doran resisted the temptation to respond that "they all look alike to me."

Comments

[Danny]

The problem that I see with these ADA and Prop 65 shakedowns is that they all provide for 'citizen enforcement' or 'bounty hunting' (tame terms for what it actually is). In theory, 'citizen enforcement' sounds quite benign but in practice is it a means which unscrupulous scammers and their(use the adjective of your choice) attorneys abuse so that they can go after people or entities who are basically unaware of the 'laws' or 'infractions' or in most cases... really, the "enforcer's interpretation of the law". Then they take some of the outrageous 'per violation' amounts (which were probably designed to attack people who break a law on purpose) and multiply it by some huge number of 'violations' and say something like do you want to litigate over that or pay us this smaller amount.

Gee, maybe I'm old-fashioned but I kind of like to believe that when I give money to someone I should be receiving goods and/or services which to me are equal or exceeding in value to what I have paid. Without that occurring thoughts of the Mafia, terms like extortion, etc come to mind.

I am really amazed that in this country, the United States Of America... that something like this can exist with the blessing of our various lawmakers regardless of their party affiliations etc. This is just plain reprehensible and it causes innocent people to be ripped off and in some cases, irreparably financially harmed. For every "Justice Sills" there are way too many who lack Justice Sills' common sense. I can only assume that there are financial or other reasons that could sway otherwise competent lawmakers from facing the reality of this 'citizen enforcement racket'. We pay taxes, we entrust these people to see that justice prevails... but yet we have to list a decision like that of Justice Sills as being newsworthy due to its rarity. Someone described his action on the Prop 65 reversal as "common sense" when it is in fact... "rare sense". Sadly so, for every shakedown that is 'caught' so many others get away with it... which just attracts more and more scammers like these ADA scammers who cannot even distinguish one victim from another because they sue so many it's all a blur. As bad as that is... it's only worse that our Attorney General, our Senators, our Governor.... see that and rubber stamp it as OK. In fact our Senators actually fight to block national legislation which could help to clean up some of this (S. 3128 for example).

My recommendation to everyone who is not knowingly or intentionally doing anything wrong who gets targeted by so-called "citizen enforcers" is that you fight them and let it go to trial. The term 'trial lawyer' is also a curious term; most so-called 'trial lawyers' are in fact 'settlement lawyers' and in some cases some of them probably go to a 7-11 store more often than they go to trial. If they take these flimsy claims to a court with a jury... the chances a jury would vote in favor of shakedown plaintiffs is very very slim.

The message to 'citizen enforcers' and their attorneys who prey on the unaware and corner them into settlements while claiming to be doing so 'in the public interest' is quite simple: If your motivation comes from a deep-down desire to get a lot of money, why not find something that the public WANTS, make it available, make people happy, and make your fortune that way instead. Apologize to those who have been harmed by your actions and refund them their settlement money and their attorney's fees. If you really care about the public as you claim you do... post your findings on the internet, write out the exact text that warnings should contain, and send a mass-mailer to retailers, distributors, manufacturers, and parent companies with all of your explanations, parameters, and how the law relates to them. Do it free of charge; fund it with past earnings or with donations from environmental and health organizations and private parties. Make it so that people who want to be in compliance have the right to do so... and you'll be surprised what a world of good you'll do. You just won't get rich doing it but at least you can have some self-respect!

[General Contractor Insurance]

It is a sad day when "professional plaintiffs" ruin the good intentions of the ADA.