Two weeks ago I wrote about Diaz v. Lobels,* a case I think exemplifies some of the confusion concerning just what an accessible website should be. Today I want to take a harder look at the Court’s exclusion of testimony from the plaintiff’s expert to ask the question: Just what should an ADA expert testify about? The issue has come up in only three reported cases, each of which has its own take on the matter.
The exclusion of the plaintiff’s expert testimony in Diaz v. Lobels was based on two failings. The Court found the expert, Michael McCaffrey, failed to sufficiently describe his methodology and process, and failed to establish the methods were widely accepted or standard in the field. The Court did not reject the assumption underlying the report because the plaintiff and defendant stipulated that compliance with WCAG 2.0 or 2.1 would make the website accessible for ADA purposes and that non-compliance would make it inaccessible. Instead the Court focused on the “high level” description of the methods used by the team of individuals working for the expert, which the Court found insufficient when combined with a lack of testimony concerning the standards used. More
Yes, I’m briefly tooting my own horn because James Herrera of the Monterey Herald interviewed and quoted me in his article “
I’ve been posting a lot of blogs in the last few days in an effort to catch up with a backlog of important or at least interesting cases. Just as I was wrapping up this Quick Hits blog the Sixth Circuit handed down its decision in Brintley v. Aeroquip Credit Union, precipitating the blog’s publication. Subscribers who feel they are being spammed can rest assured the pace of posts will slacken – assuming the pace of ADA and FHA accessibility developments slackens, of course. 
Several colleagues shared Judge Paul C. Huck’s August 23, 2019 sanctions order in Johnson v. Ocaris Management Group, Inc., Case No. 1:18-cv-24586 (S.D. Fla. August 23, 2019), and it provides a good counterpoint to the cases discussed in my last Sea to Shining Sea blog. The short sweet news is that Scott Dinan, Florida attorney, and his partner in the ADA business, Alexander Johnson were sanctioned by the court and required to disgorge certain fees (amounting to $59,900) and to pay a penalty in the same amount as well as notify other courts of the sanction. However, it is worth taking a closer look at the legal grounds on which the sanction rests because those grounds may apply to other serial litigants even if their conduct is not quite as outrageous as that of Dinan and Johnson. 
Nobody knows. The August 19, 2020 decision in Landis v. Washington State Major League Baseball Stadium Pub. Facilities Dist., 2019 WL 3891566 (W.D. Wash. Aug. 19, 2019) is thoughtful, thorough, and from the standpoint of those looking for certainty concerning the stadium sightlines argument inconclusive. The Court denied the plaintiffs’ request for a ruling that as a matter of law the T-Mobile Stadium at which the Seattle Mariners play failed to meet ADA requirements, but the Court found it could not do so without a trial. This is the inevitable result of the complexity of stadium design and impossibility of promulgating regulations concerning the location of wheelchair accessible seating that are both specific and cover every possibility. At trial the Court will hear more evidence and make fact findings about just what comparable sightlines means in this particular stadium, but that result will likely cover only the single stadium at issue, leaving other courts and other cases to determine on a stadium by stadium basis what is good enough.