On Wednesday, the Ninth Circuit Court of Appeals in California issued a ruling in a case called Baughman v. Walt Disney World ordering Disney to study the use of Segways at Disneyland. The opinion is rather glib from start to finish. Its opening line: “Segways at Disneyland? Could happen.” Its ending line: a quote from Walt Disney himself, “Disneyland will never be completed as long as there is imagination left in the world.” While I seriously doubt that Walt was talking about the possibility of never-ending accessibility modifications under federal regulations, the bottom line is that the Court ordered Disney to determine whether “Segways can’t be operated safely in its parks.” Whether Disney, the industry, or I agree with the Court’s legal analysis of the ADA or not is, at this point, largely irrelevant – in all likelihood, it is not going to change. However, I did want to address a genuine and disturbing issue that this case raises; one that I have seen no coverage about or commentary on in any of the media reporting on this story: the fact that, in issuing this decision, the Ninth Circuit essentially condoned the practice of abusive ADA litigation brought by plaintiffs who may, or may not, actually have the disability they claim.
Earlier this week, I wrote a piece on another ADA case that is just ramping up in California against Universal Studios Hollywood that, in my opinion, has real potential to be an exceptionally important case in our industry because it squarely challenges, for the first time, the applicability of the ADA to ride access. In that article, I also noted the problem, largely focused in California, of serial ADA litigation brought by plaintiffs that have been known to file sometimes dozens of lawsuits claiming accessibility violations. The practice is so well-documented and so troubling that the California legislature recently introduced a bill designed to curb the practice by requiring potential plaintiffs to give notice to businesses before filing suit,so that the business can fix the problem without incurring litigation expenses.
Baughman v. Walt Disney World seems to be a particularly egregious example of just this sort of litigation, and the Ninth Circuit should have done something about it. See, the problem is that Tina Baughman, the plaintiff in this case, can’t seem to make up her mind about her own disability. I know that sounds a bit harsh, but I think the evidence speaks for itself. In this case, she claimed that she had to use a Segway because she had a “degenerative muscular disease that makes it difficult for her to walk or rise from a seated position.” In fact, “Ms Baughman testified under oath that she never used a wheelchair.” At all. Ever. Given that, it sounds like she’s the perfect candidate to bring a lawsuit about whether Disney has to allow Segways, right? Except there’s this:
In a lawsuit against Sav-On Drugs filed on September 21, 2005, in Los Angeles County Superior Court, Ms. Baughman asserted in her complaint that she "has a physical impairment which causes her to rely upon a power scooter or wheelchair for her mobility." In another lawsuit brought against Santa Monica Ford on June 13, 2006, in Los Angeles County Superior Court Ms. Baughman asserted that she "has a physical impairment which causes her to rely upon a power scooter or wheelchair for her mobility." Additionally, the expert report submitted by Ms. Baughman in the Santa Monica Ford case outlined modifications that were necessary for wheelchairs to enter and maneuver in the dealership's restrooms. On November 16, 2006, Ms. Baughman sued the California Department of Motor Vehicle in Los Angeles County Superior Court, again claiming that she "has a physical impairment which causes her to rely upon a power scooter or wheelchair for her mobility." In her prior cases, she also alleged that her disability substantially limits her ability to stand and that the faucets and fixtures in the restrooms were too high off the floor. In response to Ms. Baughman's lawsuits, all of the defendants agreed to modify their premises. Ms. Baughman also received monetary settlements in the DMV and Santa Monica Ford cases.
Ms. Baughman apparently has succeeded in compelling at least three other businesses into making substantial modifications to their premises based on her allegations that she could not use those facilities because she was confined to a wheelchair. She received monetary settlements from at least two, one of which was funded by the taxpayers of the State of California. And now she claims, under oath, that she has never used a wheelchair and demands more modifications and more money from Disneyland. Outrageous.
The District Court judge in this case ruled that Ms. Baughman was legally precluded from making the argument that she couldn’t use a wheelchair for mobility because of her prior successful lawsuits. The Court “simply will not allow Ms. Baughman to play fast and loose with the facts.” Indeed, that Court openly wondered “whether Ms. Baughman was dishonest when she asserted that she relies on a wheelchair in the prior cases or whether she is now being dishonest when she says she cannot use and has never used a wheelchair.” Kudos to Judge Cormac J. Carney for seeing abuse of the system and doing something about it.
The Ninth Circuit acknowledged all of this. It recognized that Ms. Baughman had a history of completely contradictory positions and that she had almost certainly misled the federal courts. However, it found that this didn’t really matter because, under its interpretation of the ADA, even if she could use a wheelchair, she shouldn’t have to if she prefers a Segway. The Court then launched into its legal analysis and ordered Disney to undertake a feasibility study on Segway use (which it seems to have already done – more on that soon).
And just like that, the Ninth Circuit encouraged future abusive ADA litigation. The Court’s focus on whether or not she could use a wheelchair was only half the issue. The Court’s opinion basically says that it is going to hold Ms. Baughman to her prior allegations of wheelchair use, but that it doesn’t matter because she has alleged here that she uses a Segway. But in focusing on the wheelchair allegations, the Ninth Circuit totally ignored the fact that Ms. Baughman had also told those previous courts that not only did she use a wheelchair, she did so because “her disability substantially limits her ability to stand.” This would seem to make it impossible, or at least very impracticable, to use a Segway. So why wasn’t Ms. Baughman bound by this prior claim as well? If she had been, she would have had no case. One of the first things you learn in law school is that you have to have standing to sue. If she can’t use a Segway, Ms. Baughman has no right to drag Disneyland into court to challenge its policy against using one.
Instead, the Ninth Circuit’s decision ignores Ms. Baughman’s apparent lack of candor with the Court and proceeds to issue a ruling that is inconsistent with other court rulings and that may impose substantial burdens on amusement operators large and small – a discussion for an upcoming article. I don’t know whether Ms. Baughman’s disability requires her to use a wheelchair and precludes her from standing, or whether it requires her to stand and precludes the use of a wheelchair. What I do know is that it cannot be both. The ADA requires equal treatment of the disabled. That should extend to the use of the courts as well. A disabled crook is still a crook, and the courts should not permit the kind of crooked behavior Ms. Baughman seems to have undertaken during her litigation career. There is a real problem in the United States with vexatious litigation, unscrupulous plaintiffs, and lawyers willing to take any case regardless of its merit or good faith. This case does nothing to offer a solution.