Perhaps the courts have become too “expert-prone,” or so says Chief Judge Alex Kozinski to open this 9th U.S. Circuit Court of Appeals decision reinstating a disabilities discrimination suit, despite a missing expert.
Quadriplegic, Matt Strong, had his disabled access claims against Peter Piper Pizza reinstated Thursday even though he missed a deadline for supplying an expert report on the barriers he encountered.
The 9th Circuit, with a partial dissent, held that expert testimony was not necessary because no specialized or technical knowledge was required to understand Strong’s straightforward assertions.
In addition, the majority said the trial judge erred by requiring Strong to prove the removal of barriers would be easily achieved.
In dissent, Judge Barry Silverman said that Strong sought to get around his missed deadline to produce an expert by providing a declaration of his own and stating that he reviewed the expert report and cited its findings.
Silverman called this “inadmissible hearsay” saying he would allow Strong’s claims to go forward, but without the help of the absent expert’s findings.
Strong claimed he could maneuver in the El Cajon pizza parlor and sued under the Americans with Disabilities Act and California disability law.
The trial judge dismissed the case because Strong lacked personal knowledge of the barriers and his statements were insufficient because he failed to provide an ADA expert to testify about the conditions.
Kozinski said that although Strong couldn’t handle the instruments for measurements of the access, he was “present” while measuring took place.
“Even without precise measurements, Strong could support his case based on his own personal experience with the barriers,” Kozinski said. Judge Andrew Kleinfeld joined Kozinski in the majority.
Case: Strong v. Valdez Fine Foods, No. 11-55265