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Experts Not Needed - 9th Cir. Revives ADA Suit Against Eddie Bauer

By Casey C. Sullivan, Esq. on March 25, 2015 | Last updated on March 21, 2019

Eddie Bauer, the struggling outdoor retailer, got some more bad news last Friday, when the Ninth Circuit ruled that a consumer's ADA lawsuit against the company had been wrongly dismissed. Chris Kohler, a disabled man who relies upon a wheelchair for mobility, had sued Eddie Bauer for violations of the ADA.

The district court had concluded that Kohler needed expert opinions to determine whether conditions constituted ADA barriers. That's wrong, the Ninth Circuit ruled, emphasizing that non-expert estimations are perfectly acceptable in ADA suits.

Measure Twice, Sue Once?

In his complaint, Kohler accused the retailer of having, amongst other violations, checkout counters above the permitted height. Under the ADA, counters must be 36 inches high. Kohler had attempted to prove that the checkout counters were not ADA compliant by approximating the distance between his lap and the counter top at the store.

The district court ruled that Kohler had not met his evidentiary burden, since, under Strong v. Valdez Fine Foods, a plaintiff who is not an ADA expert or otherwise qualified to determine whether conditions constitute barriers cannot sufficiently demonstrate the existence of those barriers. Luckily for Kohler, Strong had been reversed by the Ninth Circuit just four months after he lost in district court. Plaintiffs are not, the Ninth Circuit ruled, required to provide specialized or technical knowledge in order to prove a violation. Lay witness estimates, like the kind Kohler offered, are sufficient.

Architectural Barriers and Temporary Measures

Under the ADA, a public accommodation discriminates against the disabled when it fails to remove "architectural barriers" when such removal is easily accomplished. The Act imposes certain height, width and other limits which constitute compliance. Were Kohler's estimations of the counter top heights correct, Eddie Bauer would be in violation of the Act and required to modify their store design.

The retailer had argued that, by providing a clipboard for transactions it had rendered the counters accessible, and thus ADA compliant. Such use of clipboards is only allowable as a temporary measure, the Ninth Circuit ruled, and cannot be used to avoid more permanent changes.

Kohler's case should remind retailers and public accommodations of how easy it can to be to find a violation of the ADA if businesses are not vigilant about compliance. After all, Kohler didn't just sue Eddie Bauer after that day of shopping -- just last month he brought four more ADA suits against Los Angeles businesses, according to the Courthouse News Service.

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