Pro Se Plaintiff Gives a New Meaning to “Creating a Federal Case” in West Virginia

/in /by Pro Se Plaintiff Gives a New Meaning to “Creating a Federal Case” in West Virginia

Throughout our day to day activities in our professional lives, we have all heard of the mythical set of operative facts wherein someone seeks to take a simple proposition and turn it into a federal case.  Such factual scenario existed in West Virginia for a Franklin & Prokopik client.  The factual background of the matter dealt with the client who owned, operated, and maintained a rather large residential complex which catered to residents who were retired, disabled, or beneficiaries under several federal government entitlement programs.  The tenant/plaintiff in this matter was a retiree who represented that he had been a building inspector in the “city” prior to his retirement.

The plaintiff ’s tenancy at the client’s property began like many tenants, in that the plaintiff became involved in several of the activities and groups maintained at the facility and began to inform management of certain deficiencies within the building and site layout, including parking areas.  One day, the plaintiff complained because a service contractor’s vehicle was parked in a handicapped spot temporarily, and the plaintiff had to park in another space.  The plaintiff demanded that the client vigorously enforce handicap parking so that this would not happen again.  Ironically, several days later, the plaintiff parked in a handicapped space and failed to properly display his handicap placard, and his vehicle was towed from the site.  As a result of the citation and fine, the plaintiff began to argue and make complaints to local, state, and federal government agencies regarding his perceived deficiencies in the client’s facilities.  Ultimately, the plaintiff, in a pro se capacity, filed suit against F&P’s client in the United States District Court for the Northern District of West Virginia and alleged violations of the Fair Housing Amendments Act and the Americans with Disability Act, which included a reasonable accommodation claim and a design and construction claim.  As one can imagine, upon receipt of the Complaint, a motion to dismiss was filed with the District Court, which requested that the District Court dismiss the plaintiff ’s complaint for failure to state a claim upon which relief can be granted under Rule 12(b)(6).

After substantive briefing on these matters, which included multiple unpermitted supplementations by the plaintiff wherein he alleged numerous violations beyond the scope of the complaint as initially pled, which included allegations of intentional pest infestation and surreptitious surveillance of the plaintiff by the client, the District Court granted the Motion to Dismiss.  Specifically, the District Court found that the plaintiff ’s complaint failed to detail a request for an accommodation, or that the proposed accommodation was reasonable for the requisite link necessary between his alleged disability and the proposed accommodation.  Moreover, the District Court dismissed the design and construction claim by finding that the plaintiff made no allegations that invoked the time requirement and the occupancy requirement necessary under the applicable federal statute.  Despite the thorough analysis and dismissal of the plaintiff ’s claims by the District Court, the plaintiff, who could be characterized as persistent, decided that he would appeal the Memorandum Opinion and Order, granting the Motion to Dismiss to the United States Court of Appeals for the Fourth Circuit.  To the astonishment of everyone, except probably the plaintiff, the United States Court of Appeals for the Fourth Circuit granted the plaintiff ’s appeal of the District Court’s Order, and fortunately determined that the nature of this matter was better served by the court’s informal briefing process.  Thus, the matter was fully briefed to the United States Court of Appeals for the Fourth Circuit, and by unpublished per curium opinion, the United States Court of Appeals for the Fourth Circuit affirmed the District Court’s ruling, and held that oral argument would not aid in the decisional process of the matter based on the facts and legal contentions presented in the materials.

Interestingly, the litigation process in the federal court system took such a lengthy time, that the plaintiff decided on his own accord, to vacate the client’s facility, and move to another location.  The plaintiff ’s decision to move to another facility seemed to be the end of a rather lengthy and costly appeal to the Fourth Circuit.  However, several months after the Fourth Circuit’s Order became final, the plaintiff decided to bring an action in state court against not only the client, but the property manager in their individual capacity.  As one could foresee, this action was definitely an action that was brought on a personal level and was one that needed to be contained and dealt with as quickly as possible.  To that end, another motion to dismiss was drafted and a hearing on the same was held in state court.  The State Court, having given an appropriate amount of deference to the plaintiff as a pro se party, finally made rulings regarding the credibility of all witnesses, and under the doctrines of res judicata and collateral estoppel dismissed the plaintiff ’s claims and awarded judgment in favor of F&P’s client.  The state court further deplored the plaintiff regarding any future actions on these matters whether it be in state court or federal court.  The take away from this experience is two-fold.  First, the claims and defenses associated with this client resonates with all who try to manage claims, and the risks associated therewith.  Second, it underscores the fact that all claims, and specifically pro se claims, however far reaching one may believe they are, should be dealt with in a timely and appropriate fashion so that they do not become litigation that takes on a considerable life of its own.

For more information about this article please contact Gregory E. Kennedy at 304.596.2277 or gkennedy@fandpnet.com.

Delaware Attorneys Prevail at Jury Trial

/in /by Delaware Attorneys Prevail at Jury Trial

William (“Skip”) Crawford and Krista Shevlin were involved in litigation which ultimately proceeded to jury trial.  Liability was admitted but the nature and extent of the plaintiff ’s injuries were vehemently denied.  The jury returned a verdict in favor of the defendant.

A negligence claim was filed by the plaintiff, arising out of a three vehicle rear end automobile accident.  There was no dispute that the plaintiff was stopped in traffic with a vehicle stopped directly behind her.  It was further undisputed that the driver of the client’s tractor-trailer was unable to stop before striking the middle vehicle, forcing it into the rear of the plaintiff ’s stopped vehicle.

It was argued extensively both pre-trial and during trial that the force of the middle vehicle striking the plaintiff was miniscule with virtually no damage to the rear of the plaintiff ’s vehicle, and the injuries alleged by the plaintiff could not have been a result of the minor impact.

Specifically, the plaintiff, through expert medical testimony, alleged extensive damages, including two spine surgeries to address a herniated disc at C6-C7 and radiculopathy.  The plaintiff alleged $162,000.00 in special damages as well as ongoing pain and suffering and permanent disability.

These allegations were countered with the testimony of a defense medical expert. The medical expert conceded the plaintiff sustained a cervical sprain/strain in the accident and causally related approximately $14,000.00 of the plaintiff ’s medical bills to injuries resulting from the accident.   The medical expert further testified that the spinal surgeries and extensive treatment were not related to the accident.  F&P’s defense medical expert’s opinions were supported by that of a biomechanical expert who testified that the  minor damage to the plaintiff ’s vehicle and the injuries alleged by the plaintiff could not have been a result of the minor impact.

The plaintiff sued both F&P’s client driver and the driver of the middle vehicle.  The driver of the middle vehicle was dismissed on a motion for summary judgment based on the undisputed testimony of all parties and witnesses that the middle vehicle stopped short of the plaintiff and was forced into the plaintiff after being struck by our client.   The client conceded responsibility for the incident. The sole issues for the jury were causation of the claimed injuries and the nature and extent of the plaintiff ’s damages.

Prior to trial, the plaintiff filed a motion in limine to exclude the testimony of the defense biomechanical expert on the basis that her evidence did not meet the Daubert standard.  According to the plaintiff ’s counsel and the trial court, no Delaware court had ever before allowed the testimony of a biomechanical engineer at trial.   The court held a hearing on the motion and heard testimony from the biomechanical engineer regarding the investigation and methods utilized to formulate her opinions. After the hearing, the court issued an order permitting the defense expert to testify at trial to her opinions as to the force of impact and likelihood of this causing the alleged injuries.

Before the court’s ruling, the plaintiff ’s settlement demand was $400,000.00  and she refused to negotiate below that number. Subsequent to the court’s ruling, the plaintiff lowered her demand to $160,000.00. The defendants countered with an Offer of Judgment of $85,000.00. The offer was rejected.

Following a three day trial, the jury returned its verdict in less than four hours and only awarded the plaintiff $48,000.00 in damages.  Because the verdict was below the Offer of Judgment, Defendants were entitled to the litigation costs incurred subsequent to the Offer of Judgment.

For more information about this article please contact Krista E. Shelvin at 302.594.9780 or kshevlin@fandpnet.com.

A Trip to the Virginia Supreme Court

/in /by A Trip to the Virginia Supreme Court

Earlier this year, attorney Joshua Hoffman of the Herndon office presented oral argument before the Virginia Supreme Court in the case of Tejada v. Harris Teeter, LLC.

The case arose out of a premises liability incident in which the plaintiff alleged that she slipped and fell on a wet floor at one of Harris Teeter’s northern Virginia store locations.  In the lower court, Joshua and Principal, Andrew Stephenson, prevailed in obtaining a jury verdict for the defendant following a trial on the merits.  The plaintiff appealed the verdict to the Virginia Supreme Court, arguing the trial court was incorrect in ruling to keep out a portion of the surveillance video of the incident showing post-slip clean up in and around the area of the fall during the plaintiff ’s case-in-chief.  F & P attorneys opposed the appeal by arguing the evidence was cumulative; it would not have changed the verdict; the plaintiff failed to use the video in rebuttal and thus waived her right to appeal the issue; and regardless, it was harmless error to exclude it.

Having filed detailed written briefs in advance, counsel for both parties appeared at the Virginia Supreme Court in Richmond on a cold and snowy day to make their final arguments on the issues in the case.  The plaintiff ’s counsel argued the surveillance video gave “context” to the testimony of other witnesses, and that the jury should have been entitled to judge the employee’s “demeanor and conduct” against their claims that the floor was dry.  The justices questioned what the video could have added to the case, as the plaintiff made no claim that the video showed a wet floor or debris.

The justices were also extremely interested in the plaintiff ’s explanation for why the video was not used in rebuttal as directed by the trial court.  The plaintiff ’s counsel offered various explanations that did not seem to sway the court, before returning to the basic argument that a trial attorney should be entitled to use relevant evidence where he believes it will be the most effective.

On the other side, Joshua urged the court to uphold the jury verdict in this case, as the video would not have added to the evidence the jury already considered.  Joshua noted that live testimony is preferred above all else, to which the chief justice responded, “Well, then who said a picture is worth a thousand words?”  Joshua’s quick-witted answer, “The same guy who said possession is 9/10ths of the law,” drew laughs from the justices and gallery alike.

The Court has recently issued a decision which upheld the verdict securing the win for the client.

For more information about this article, please contact Joshua M. Hoffman at 571.612.5938 or jhoffman@fandpnet.com.

 

Recent Successes in Maryland

/in /by Recent Successes in Maryland

Principal, Tamara B. Goorevitz and Associate, Carrie V. O’Brien, recently received a defense verdict for their client after a five day jury trial in the Circuit Court for Montgomery County. The plaintiff allegedly sustained a third degree chemical burn which required multiple surgeries. It was the plaintiff ’s theory, that an application of hair color by F&P’s hair salon client, had caused the plaintiff ’s injuries. The jury found that their client was not the cause of the plaintiff ’s injuries and, therefore, a verdict in favor of the defendants was entered.

Recently in a damages only trial in the Circuit Court for Baltimore County, Principal Andrew T. Stephenson and Associate, Renee L. Bowen, secured a favorable judgment for their client. The plaintiff sought economic damages in the amount of $1,421,443.72 (consisting of $1,134,076.00 in lost pension benefits, $271,000.00 in lost household services, and $16,317.72 in past medical expenses). The plaintiff claimed that soft tissue injuries he sustained in a rear-end motor vehicle collision cost him numerous promotions and, as a result, he was forced into early retirement which caused the pension he actually received to be significantly lower than had he retired after being promoted. Andrew and Renee were successful in showing that the plaintiff ’s ongoing complaints of pain to the alleged injured areas were not causally related to the motor vehicle accident and that the plaintiff ’s failure to be promoted was due to circumstances other than the soft tissue injuries sustained in the motor vehicle accident. As a result, the judge found that only a portion of the medical expenses claimed by the plaintiff were causally related to the accident and entered a judgment in his favor in the amount of $38,622.50 ($8,622.50 in economic damage and $30,000 pain and suffering).

The Circuit Court for Baltimore County is typically where summary judgment motions face an uphill battle. Breaking the trend, Principal, Stephen J. Marshall, was successful in obtaining summary judgment in a products liability action for a manufacturer of vertical reciprocating conveyors where the plaintiff had sustained a traumatic brain injury. Steve drafted and successfully argued a motion for summary judgment seeking to exclude the plaintiff ’s expert. After a hearing, the court adopted Steve’s arguments on the record as the basis for holding that the plaintiff ’s expert was not qualified to testify as an expert, and lacked a sufficient factual basis to offer his opinions. Summary judgment was entered in favor of F&P’s product manufacturer client.

Two of F&P’s associates were recently successful at trial in District Court (maximum exposure $30,000, bench trials only) where liability was considerably unfavorable to their clients.  Jessica J. Ayd, received a verdict of $1.00 in the District Court for Baltimore City. The lawsuit stemmed from a motor vehicle accident in which liability was unfavorable to the transportation client and its driver. Jessica located a public Instagram account for the plaintiff and showed the judge three videos of the plaintiff dancing which posted in the days and weeks after the accident. While the plaintiff claimed that the videos, which were posted after the accident, were taken before the accident. The judge simply did not believe her (and even referenced the lack of #tbt “Throw Back Thursday” or #latergram hashtag in the posting). The trial judge awarded damages in the amount of $1.00 to the plaintiff.

In an exceedingly plaintiff-friendly venue, Ryan M. Walburn, recently tried a case involving claims by two plaintiffs, stemming from a motor vehicle collision in which the plaintiffs’ vehicle was struck in the rear.  The plaintiff-passenger claimed that she sought emergency treatment shortly after the accident due to blurry vision and other concussion-like symptoms.  Ryan was able to establish that, despite these serious “symptoms,” the plaintiff did not seek treatment until the following day.  Ryan also introduced  into evidence the plaintiff-driver’s long history of similar rear-end collisions.  Even though liability was unfavorable to the client, as the collision was rear-end in nature, Ryan was able to impeach the plaintffs which resulted in the court finding the plaintiffs’ claimed injuries, medical expenses, pain and suffering were not causally related to the collision. Therefore, a verdict for the defense was entered.

 

Successive Carrier Liability

/in /by Successive Carrier Liability

It is not uncommon in a workers’ compensation claim for an injured worker to sustain a second work injury to the same body part.  When the subsequent injury involves a new employer, or the original employer has changed workers’ compensation insurers, issues of liability may arise.  More specifically, under what circumstances does liability for the claimant’s compensation shift to the successive insurer?

In Delaware, the Industrial Accident Board (“Board”) employs a two-prong test to determine liability.  The first factor is whether or not the claimant sustained a new injury or aggravation as opposed to a mere recurrence of symptoms.  An increase of symptomatology is not sufficient to shift liability onto a successive insurer.  The second factor is whether or not the claimant was involved in an “untoward event.”  An untoward event is defined as an accident or incident beyond routine work activities (i.e., a lifting incident versus a slip and fall).  In the event the original accident is barred by the statute of limitations, this standard of review will not apply and the Board will consider the original injury to be a preexisting condition.

In Greenville Country Club v. Greenville Country Club, 150 A.3d 1194 (2016), the Supreme Court of Delaware considered whether the Board correctly applied the rule for determining the liability of an initial versus successive workers’ compensation insurer.  The claimant, Jordan Rash, suffered two lumbar spine injuries in the course of his employment with Greenville County Club.  Mr. Rash’s first injury occurred in 2009, while his employer was insured by Guard Insurance Group (“Guard”).  Mr. Rash’s second lumbar injury occurred in 2012, at which point his employer was insured by Technology Insurance (“Technology”).  Both injuries, which were each the result of slip and fall accidents, were accepted by the respective insurance carrier at the time.

In 2014, Mr. Rash filed petitions with the Board against both insurers for payment of a lumbar spine surgery and total disability benefits.  Mr. Rash contended his medical condition was caused by the 2009 injury, the 2012 injury, or both.  Following a hearing, the Board determined that Mr. Rash had suffered a recurrence of his 2009 injury as opposed to an aggravation of his 2012 injury.  As such, the Board found Guard, the initial insurer, wholly responsible for Mr. Rash’s medical treatment and additional compensation even after the 2012 accident.

On appeal, Guard alleged the Board had erroneously applied the successive carrier standard of review.  Guard argued that the burden of liability for Claimant’s lumbar spine condition, shifted wholly to Technology, when Technology accepted the 2012 injury as a new injury.  The Court rejected Guard’s argument, holding that a successive insurer is not strictly liable for a claimant’s condition that comes about after a second accident.  R ather, the successive carrier’s liability depends upon whether or not a subsequent work accident is causally related to a claimant’s condition.  Where Guard’s argument fell short, according to the Court, was failing to take into account the requirement to prove the causal relationship between Mr. Rash’s 2012 accident and his later condition.  The Court affirmed the Board’s decision, finding there was substantial evidence to support that Mr. Rash’s condition was caused by the 2009 injury and that Guard had failed to meet its burden of proving that it was caused by the 2012 accident.

As Greenville County Club makes clear, a successive insurance carrier’s acceptance of a second injury does not necessarily impute liability upon that insurer where there is an initial insurer responsible for a first injury.

“Zone of Danger” Does Not Apply to Longshore Claims

/in /by “Zone of Danger” Does Not Apply to Longshore Claims

In Ceres Marine Terminals v. Jackson, No. 15-1041 (4th Cir. Jan. 27, 2017), the Fourth Circuit declined to extend the “zone of danger” concept to claims arising under the Longshore and Harbor Workers’ Compensation Act (“LHWCA”).

The claimant was operating a forklift on a pier in Virginia when he accidentally struck and killed a co-worker.  He filed concurrent claims under LHWCA and the Virginia workers’ compensation statutory scheme, alleging psychological injury from the occurrence.

With respect to the LHWCA claim, the employer took the position that the claim should be denied because the claimant was not in the “zone of danger,” first stated in Consolidated Rail Corp. v. Gottshall, 512 U.S. 532 (1994).  The “zone of danger” theory holds that the claimant could only recover for emotional injury caused by fear of physical injury to himself.  As the claimant was unlikely to be injured by the forklift, the employer alleged the claim should be barred.  The Administrative Law Judge and the Benefits Review Board both rejected this theory, in turn, and held that the claimant had a viable claim under the LHWCA.

The Fourth Circuit agreed with the Benefits Review Board and held that the Longshore statute, on its face, only spoke to an “injury,” and did not differentiate between psychological and physical injuries.  As such, the court indicated that it could not construe the statute to limit recovery for psychological injuries when there was no imminent physical harm.  The court also rejected the applicability of Consolidated Rail to Longshore cases, as Consolidated Rail involved interpretation of the Federal Employers Liability Act (“FELA”).  FELA is, by definition, a negligence statute rather than a workers’ compensation statute, and the court was unwilling to engraft the negligence concept of a “zone of danger” on a no-fault workers’ compensation statute.

Of note, the Virginia Court of Appeals also rejected the “zone of danger” concept under the Virginia state workers’ compensation scheme and has remanded the case for further proceedings to the Virginia Workers’ Compensation Commission.  The injury in this case occurred before July 1, 2012, which was the date upon which the Virginia legislature adopted a statute denying concurrent jurisdiction for Longshore workers.  For injuries arising prior to that date, workers, like the claimant here, could avail themselves of both the Longshore and Virginia workers’ compensation systems.

For more information about this article, please contact Angela Garcia Kozlowski at 410.230.1084 or akozlowski@fandpnet.com.

Virginia to Implement Medical Fee Schedules Commencing January 1, 2018

/in /by Virginia to Implement Medical Fee Schedules Commencing January 1, 2018

The 2016 regular session of the Virginia General Assembly delivered a major change for the future of medical payments under the Workers’ Compensation Act.  On March 7, 2016, Governor McAuliffe signed a bill to implement a medical fee schedule to commence on January 1, 2018.  This law is not retroactive; therefore, only dates of medical service after January 1, 2018 will be subject to the fee schedule.

Currently, there are no medical fee schedules for workers’ compensation treatment in Virginia, which creates uncertainty because different health providers charge different amounts for the same service. If a provider challenges the amount paid for treatment by the carrier, it will initiate a “medical provider application” with the Virginia Workers’ Compensation Commission (“Commission”).

A medical provider application initiates litigation regarding the billed charges, and these claims are often costly to defend. Generally, defenses to medical provider applications include (1) the “prevailing rate” in the community or (2) the contract. If the defense raised is the “prevailing rate” in the community, litigation expenses can include hiring an expert witness, obtaining CPT code data, and attorney’s fees. As such, the legislature sought to streamline medical billing as it relates to workers’ compensation.

Pursuant to the new legislation, there will be seven categories for payment by provider types and rates will vary depending on geographic communities.  These provider type categories include: physicians, surgeons, type one teaching hospitals, other hospitals, ambulatory surgical centers, other outpatient medical service providers, and purveyors of miscellaneous items and any other providers. Additionally, employers and insurers continue to be able to enter into contracts, which allow them to pay more than or less than the amounts set by the fee schedule.  Notably, special provisions of the law apply to traumatic injuries or serious burn injuries.  “Traumatic injury” has a specific definition, which includes medically necessary treatment at a Level I or Level II trauma center.

According to the Commission’s website, from April 10 to May 10, 2017, the public may review and provide comments to the Medical Fee Schedule Regulatory Advisory Panel regarding the proposed fee schedules and rules.  A public hearing is scheduled for May 23, 2017.  After implementation, the Commission is required to review the fee schedules following the first year, and biennially thereafter.  The Commission is also required to provide public access to information regarding the fee schedules by provider type and geographic communities.

s the law is not retroactive, expect that the service providers will continue to utilize medical provider applications that are filed with the Commission for fee disputes for dates of service prior to January 1, 2018.  The specific code sections affected by the bill include Va. Code §§ 2.2-4006, 65.2-605, 65.2-605.1, and 65.2-714.  For more information and a timeline of the project, please visit http://vwc.state.va.us.

F&P Case Victory

/in /by F&P Case Victory

Franklin & Prokopik’s April Kerns recently defended against a claimant’s appeal in the Prince George’s County Circuit Court.  The claimant appealed a decision of the Maryland Workers’ Compensation Commission which found he had not sustained any increase in his permanent partial disability since a prior award.

After a 2003 accident, the claimant had undergone spinal surgery and implantation of a spinal cord stimulator for which he was awarded 65% permanent partial disability in 2010.  The claimant went on to receive injections, radiofrequency ablations, and medication management following the 2010 award.  This complex claim also involved questions of opioid abuse, illicit drug use, and international travel.

During the two-day jury trial, the claimant introduced expert testimony which suggested his permanent partial disability had increased.  The claimant himself testified, over objection, that he was now permanently totally disabled, although there was no medical opinion provided to support this contention.  Relying upon testimony from the employer and insurer’s medical expert, the jury agreed the claimant was not only not permanently and totally disabled, but also that his permanent disability had not at all worsened since the Commission’s prior permanency award.

For more information about this article, please contact Melissa A. McGaunn at 410.230.3062 or mmcgaunn@fandpnet.com.

DON’T Show Me the Money: New Delaware Law Forbids Asking About Compensation History

/in /by DON’T Show Me the Money: New Delaware Law Forbids Asking About Compensation History

Delaware, striving for the salutary goal of eliminating pay disparities between male and female employees, has enacted a broad new prohibition on pre-employment questions about an employee’s compensation history.  Under the law, which went into effect on December 14, 2017, an employer cannot screen applicants based on past monetary wages, benefits or other forms of compensation.  Inquiring into the compensation history of a prospective employee from that applicant or current or former employer is likewise prohibited.

 The sponsors of the law noted that the practice of inquiring into a prospective employee’s compensation history “perpetuates disparities in pay based on gender from one job to another.”  By effectively banning this practice, Delaware seeks to reduce or eliminate future gender-based disparity by eliminating the perpetuation of past disparity.

The prohibition on inquiries regarding past compensation is not limited to questions directed to the prospective employee, but extends to previous employers as well.  Additionally, the law goes beyond forbidding questions related to past salary and wages, and likely extends to questions regarding the applicant’s “fringe benefits” history, such as vacation time, health insurance, life insurance, retirement contributions and the like.

 The law also establishes particularly onerous penalties.  A first offense is punishable by a fine of anywhere from $1,000 to $5,000, and each subsequent offense carries a fine of at least $5,000 and no more than $10,000.  Also, there is only a narrow, limited exception to the penalties provided for in the statute.  A non-employee agent, such as a recruiter or staffing company, that works for an employer and asks an impermissible question will not subject the employer to the statute.  However, an employee agent will.  So, if a company uses its own personnel and those personnel ask impermissible questions, the employer and the personnel asking the questions can be penalized under the statute.  Also, discriminatory motive is irrelevant; an employer who asks an impermissible question will be fined, regardless of discriminatory intent or animus.

 It is important to note, however, that employers are permitted to discuss “compensation expectations” so long as no inquiry is made into the prospective employee’s compensation history.  Furthermore, the law allows an employer to obtain this information after an offer of employment has been extended and accepted by the applicant “for the sole purpose of confirming the applicant’s compensation history.”

In light of the new law, Delaware employers would be wise to omit from their hiring processes any reference to an employee’s compensation history.  The penalties are potentially significant, and the statutory scheme is entirely unforgiving.

Nanni v. Aberdeen Marketplace, Inc.: Even Occasional Customers Can Sue Under the ADA

/in /by Nanni v. Aberdeen Marketplace, Inc.: Even Occasional Customers Can Sue Under the ADA

The United States Court of Appeals for the Fourth Circuit has recently confirmed the extremely wide reach of the Americans with Disabilities Act of 1990 (the “ADA”), confirming that even an occasional customer, or one who visits a business for the purpose of testing ADA compliance, can have standing to sue for violations of the ADA.

In Nanni v. Aberdeen Marketplace, Inc., a Delaware resident, John Nanni, sued a shopping center in Maryland, Aberdeen Marketplace, for hindering access to its goods and services, and thus discriminating against him in violation of the ADA.  Nanni claimed that he would visit the Marketplace several times each year on trips from his home in Delaware to sporting events in Baltimore and Washington, D.C.  He claimed to intend to return to the Marketplace in the future, both as a customer and for the sole purpose of testing its ADA compliance.  The alleged ADA violations consisted of various architectural barriers — inaccessible curb ramps, sidewalk ramps, and parking, and impassable aisles. As a result of the shopping center’s failure to comply with the ADA’s accessibility requirements, the plaintiff argued that Aberdeen deprived him of his right to be free from disability discrimination.

The trial court dismissed Nanni’s claim because, it held, he had no standing to sue.  The trial court determined that he had not shown any specific prior injury, or any specific harm that he would likely suffer without relief from the court.  The court decided that his connection with the Marketplace was “tenuous at best,” and that he could stop at many other places between his home and his destination.

The appellate court determined that Nanni had clearly pled specific past injuries in the form of non-compliant curb cuts and parking spaces, and other architectural barriers.  That court also determined that he had adequately pled a threat of future injury by demonstrating a plausible intention to return.  The appellate court expressly rejected the suggestion that Nanni’s history of extensive ADA litigation or his stated intent to test the Marketplace’s compliance with the ADA deprived him of standing to sue.

This case is significant because it demonstrates the breadth of standing under the ADA.  Any injury or harm that resulted to a customer will likely confer standing, as long as the injury is one that could be fixed by a successful suit.  The court expressly rejected claims that a customer had to establish a specific intent to visit a specific store or buy specific goods or services; the inability to safely access the business was sufficient.  The court also correctly rejected the notion that Nanni lacked standing to sue because he could have obtained the same services from any number of other businesses along his route.

As an action guide, the opinion is quite instructive; it stands as a cautionary tale for small business owners.  While the costs of ADA compliance are often significant, both architecturally and in terms of business interruption, they likely pale in comparison to the costs of defending a lawsuit such as this one.