WDW Litigation Update December 4, 2019 - burying the lede

SorcererHeidi

Sorcerer please cast forever love spell for me
Joined
Jul 16, 2007
Duffy Sues Disney
Sorry, couldn't resist. Michelle Duffy filed a lawsuit claiming that she visited the MK on November 2, 2015, rode the Tomorrowland Speedway, but was injured when "the dangerous and defective car on the Tomorrowland Speedway ride malfunctioned and caused the steering ardor hydraulics to fail, causing the wheels on the car to bounce against the center guide rail repeated and in a violent manner." She "incurred loss of ability lead and enjoy a normal life."

Silly me, I thought that was the point of the attraction.
Somewhere there's a Lalma bashing his head against the wall after seeing this tittle. Really hard. Repeatedly. :rotfl2:
 
  • jjb1974

    Earning My Ears
    Joined
    Apr 25, 2018
    I have attached here the Space Mountain complaint from California, which asks for $3M for Traumatic Brain Injury and loss of consortium (which, that's always fun to go through at deposition).

    Choosing a Federal jury is an.... interesting... tactical decision for a claim that sounds wholly in State civil law.
     

    Attachments

    jcb

    always emerging from hibernation
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    Apr 28, 2007
    Thanks. The problem with using out of state lawyers is that they don't know the right party to sue. TWDC doesn't operate the parks and is frequently dismissed as a party. Disney's lawyers typically just tell the other lawyers they need to amend the complaint and serve Disney Parks. There will still be diversity.

    Picking a court / jury is an art. A lot of attorneys think a federal court jury will award greater damages, even on a state law claim. That might be true in some jurisdictions. I'm not sure if it applies in Southern California. Here, I suspect one reason the Alaska lawyers filed in federal court was because the Federal Rules are more familiar to them than the California rules.
     

    jjb1974

    Earning My Ears
    Joined
    Apr 25, 2018
    I suspect one reason the Alaska lawyers filed in federal court was because the Federal Rules are more familiar to them than the California rules.
    That might be a reason, I have slightly more cynical beliefs as to why you wouldn't get local counsel.

    But the problem with relying on Federal rules familiarity is that you don't know the local rules, and those can jump up and bite you: I can tell you from the PACER record that such an issue has already occurred and this lawsuit isn't a week old.
     
  • jcb

    always emerging from hibernation
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    Apr 28, 2007
    But the problem with relying on Federal rules familiarity is that you don't know the local rules, and those can jump up and bite you: I can tell you from the PACER record that such an issue has already occurred and this lawsuit isn't a week old.
    I'm not surprised. To be honest, it is rare to see a docket sheet that doesn't include a notation instructing the lawyers to comply with the local rules. The federal judges I know most frequently complain that few lawyers t read (1) the court's local rules or (2) the scheduling order. The issues isn't limited to California courts. The Middle District of Florida has several local rules that lawyers ignore and the Orlando federal judges won't hesitate to strike unauthorized filings.
     

    shocker

    It's a WDW realty that not every moment is magical
    Joined
    Mar 18, 2008
    ...and loss of consortium (which, that's always fun to go through at deposition).

    Ok, this made me bite! I Googled this term...it caused me to have to Google "tortfeasor"...then I had to Google "tort." Blasted legalese! I'm so glad I don't have to touch this stuff for a living.
     

    jjb1974

    Earning My Ears
    Joined
    Apr 25, 2018
    Attaching the complaint - with photos! - in the Poly Concierge lettuce bug lawsuit. Looks to me like the bugs are aphids but I have two degrees in music so I am hardly a bug expert.
    Filial consortium! It’s an all-you-can-allege lawsuit about an all you can eat buffet!

    90 pages and they couldn’t identify what caused everyone to be sick requiring multiple ambulance trips? Amazing that a hospital saw multiple people come in and didn’t do a stool sample of any of them to find the cause.
     
  • jcb

    always emerging from hibernation
    Joined
    Apr 28, 2007
    Filial consortium! It’s an all-you-can-allege lawsuit about an all you can eat buffet!

    90 pages and they couldn’t identify what caused everyone to be sick requiring multiple ambulance trips? Amazing that a hospital saw multiple people come in and didn’t do a stool sample of any of them to find the cause.
    You can bet Disney's personal injury attorneys will obtain every medical record available on these plaintiffs. They always do.
     

    suemom2kay

    DIS Veteran
    DVC Gold
    Joined
    Feb 26, 2008
    Well if they are in fact aphids.... according to the mighty internet, they don't make you sick.
     

    jcb

    always emerging from hibernation
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    Apr 28, 2007
    One of the occupational hazards of being a lawyer is (being charitable) less than precise journalism. Take today's (10/2/2019) Orlando Sentinel article entitled: "Disney World: Man with autism who sued theme park gets Feb. 18 trial date." (https://www.orlandosentinel.com/business/tourism/os-cfb-disney-autism-lawsuits-20191002-lycjqnolyfgjfi4vg6rsnqr3fy-story.html). I think highly of the OS reporters but this article portrays Judge Conway's decision to set a trial date as a victory for the plaintiff. It is anything but.

    The history of this litigation is too complex to describe here but here are links to past articles on the litigation

    Suffice it to say that Judge Conway dismissed the lawsuit (my article) but the Court of Appeals reversed that decision (Charles Boda's article) and denied Disney's petition for rehearing (Steve Porter's article). For the legal nerds, the court of appeals reversed the grant of summary judgment in favor of Disney on the necessary-modification inquiry. A.L. by & through D.L. v. Walt Disney Parks & Resorts US, Inc., 900 F.3d 1270, 1298 (11th Cir. 2018). (The ADA only required Disney to modify its policies if "necessary" to permit an individual with a disability equal enjoyment of the theme parks.) Disney had also asked the court of appeals to affirm Judge Conway's dismissal on the ground that the "plaintiffs' requested modification—unlimited near-immediate access to all rides—is not reasonable and would fundamentally alter the park experience" but the court declined to do so while making it clear that Judge Conway should revisit this issue. Id.

    Since the August 17, 2018, court of appeals decision, I've been wondering what has been happening in the Florida litigation (remember there are similar claims pending in California federal court). The answer, until late August 2019, is nothing. Neither the plaintiffs nor Disney tried to push the case along.

    That changed in late August, however, when plaintiffs filed a motion asking the Florida district court to "stay" the litigation. A "stay" puts the litigation on hold, usually pending some other event which will affect the outcome of the litigation. Federal courts rarely grant stays unless there is a parallel state court proceeding, administrative proceeding or arbitration between the same parties. Essentially, the plaintiffs wanted to stay the Florida litigation while other plaintiffs litigated against Disney in California. Disney vigorously opposed this motion, accusing plaintiffs of "transparent forum-shopping" because "plaintiffs have made it clear they would prefer to litigate the DAS cases in California due to a perceived tactical advantage."

    By order dated September 16, 2019, Judge Conway sided with Disney, denied Plaintiffs' stay request, and reopened three pending motions filed but not decided before the appeal (two of Disney's, one of the Plaintiffs) and set those motions for a hearing on October 18, 2019. The Order also scheduled a bench (non-jury) trial for February 18, 2020.

    So while the Plaintiffs "get[] Feb. 18 trial date" that isn't what they wanted.
     

    jcb

    always emerging from hibernation
    Joined
    Apr 28, 2007
    This is a bit on the wonky side but Judge Conway has issued another order in the DAS lawsuit. The point of the order is to have the parties address whether the motion hearing set for October 13, 2019, is necessary. This is an evidence question. The plaintiffs and Disney both want to put on expert testimony - mainly about the disabled plaintiffs abilities. Several Supreme Court decisions have addressed when scientific evidence may be admitted. They all contemplate that courts need to act as "gatekeepers" to prevent "junk science" from being presented to the jury.

    ADA Title III claims, however, are not tried to a jury. Judge Conway will hear the case and make a decision on the merits. So, her question to the parties is whether she needs to act as her own "gatekeeper." Several decisions have, in fact, held that without a jury, there is less of a need for a separate ruling on the admissibility of expert evidence - trusting that district judges (unlike juries, so the reasoning goes) are smart enough to figure out when expert testimony is based on junk science. The order also describes the reasons why Disney and the plaintiffs want to exclude the others' expert testimony so I'll attach the order for my fellow legal nerds. (I think it kind of cool that one of Disney's proposed experts is the long-term Disney employee who "invented the fastpass system").

    Evidentiary issues aside, Judge Conway's order is of interest because it summarizes the issues she believes she will need to resolve at the trial:

    According to the Eleventh Circuit’s instructions in remand of these cases, this Court must determine what is “necessary” in a bench trial by making multiple fact findings regarding the two disputed behavioral characteristics, as applied to A.L.’s case:​
    (1) whether he has “no concept of time, cannot defer gratification, and cannot wait for rides”; and​
    (2) whether he “must adhere to routine, visit the same ride repeatedly, and visit rides in the same order as in prior park visits” in light of Plaintiffs’ evidence indicating “that prompt and pre-set access to rides is ‘necessary’ to prevent meltdowns and afford [him] an equal experience at and enjoyment of Disney’s parks.”​
    In addition, the Court must further decide at the bench trial—to the extent modification is “necessary”—whether the Plaintiffs’ requested modification would be “reasonable” and/or would “fundamentally alter” the park experience. “[T]he district court will need to​
    determine whether material issues of fact, if any, exist as to these two inquiries.”​
     

    Attachments

    jcb

    always emerging from hibernation
    Joined
    Apr 28, 2007

    jcb

    always emerging from hibernation
    Joined
    Apr 28, 2007
    The bed bugs lawsuit has also seen a little movement. This is the one transferred from Louisiana to Florida. Florida federal courts strongly encourage mediation so it has ordered the parties to a court conducted mediation scheduled for the beginning of October 2019. I don't expect much more activity from this lawsuit until then.
    Today was the day of the judicial settlement conference, aka "court conducted mediation." Mediation, to remind you, is a non-binding attempt to resolve the case by agreement. The court minutes reflect that the parties reached "impasse" which, of course, means the case didn't settle.

    And speaking of bugs, you remember the lawsuit over bugs in the lettuce at Poly Concierge (and if you don't, here is a link to the post: https://www.disboards.com/threads/wdw-litigation-update-october-2-2019-das-lawsuit.3754820/post-61042611). Disney has moved to dismiss the lawsuit on the ground that the lengthy complaint doesn't allege any plaintiff "ingested" any of the bugs. Disney's motion is rather short but I looked at the complaint with this in mind (and considering that definition of "ingest" means to "take (food, drink, or another substance) into the body by swallowing or absorbing it"), and the complaint does not allege any plaintiff swallowed the bugs. It does allege that after plaintiffs had eaten "multiple lettuce wraps" each plaintiff "felt something crawling inside of her mouth and removed what appeared to be a small green object that had legs and was moving."

    Disney doesn't address the allegation that "Plaintiff’s injury of food poisoning and subsequent illnesses diagnosed by the Plaintiff’s treating physicians" implies they ingested something. You would think "food poisoning" implies some kind of ingestion (I'm not speaking medically, of course, and I've watched too many Midsomer Murder episodes to think poisoning always requires ingestion). But "food poisoning" isn't typically blamed on bugs (bugs you can see, that is) even if they are ingested. While some states permit lawsuits by people who are not actually injured but who are exposed to harmful substances (think potentially contaminated needles), it isn't clear that type of claim is asserted in the complaint or whether Florida law requires some type of ingestion even for it.

    I'm not saying Disney will win the motion, Florida courts seem reluctant to grant motions to dismiss, but it was an unexpected move by Disney.
     

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