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Doctors: An ADA Claim Could be Coming Your Way!

by admin on January 12, 2018 No comments

By: Randy Goldberg

Title III of the American with Disabilities Act (“ADA”) prohibits discrimination on the basis of disability in the activities of places of public accommodations (businesses that are generally open to the public and that fall into one of 12 categories listed in the ADA, such as restaurants, movie theaters, schools, day care facilities, recreation facilities, and doctors’ offices) and requires newly constructed or altered places of public accommodation—as well as commercial facilities (privately owned, nonresidential facilities such as factories, warehouses, or office buildings)—to comply with the ADA Standards.  The ADA “is a testament to this country’s effort to protect some of its most vulnerable citizens” – the disabled.[1]  I don’t believe that anyone would disagree with the ADA’s intent and purpose.  However, once you bring attorneys into the mix, what was intended to provide access to all citizens has become a cottage industry of generating frivolous lawsuits in order to generate income for unscrupulous attorneys and professional plaintiffs.  The ADA permits courts to award attorneys’ fees to a prevailing party.

A New York federal judge has stated in Costello v. Flatman, LLC that enough is enough!  Those who take on the honorable cause of representing disabled individuals must recognize that they not only represent their fellow lawyers of the bar, but also the legal giants who paved the way for passage of crucial civil rights legislation like the ADA. One such legal giant, Charles Hamilton Houston, famously said that “a lawyer is either a social engineer or he’s a parasite on society.” The conduct of counsel is indicative of a parasite disguised as a social engineer. It must stop.  Accordingly, Plaintiff’s motion is denied with prejudice.[2]

In Costello, the plaintiff alleged an ADA violation because he was wheelchair-bound and unable to access a Subway restaurant.  After awarding the plaintiff a default judgment in the sum of merely $14.31, Eastern District Judge Sterling Johnson refused to award attorneys’ fees.  But the court did not stop there.  In a sharply worded opinion, the court put the plaintiff’s attorneys on notice that it would “not be shy about informing appropriate state bar authorities and chief judges across the country,” if the attorneys continue the same pattern of litigation.  On the same day, Plaintiff commenced seven (7) other identical actions against small businesses within a two-block radius of Subway.[3]

Another compelling factor was the amount of fees counsel requested for the time spent drafting the court papers. In this context, Judge Johnson made the observation that since 2009, the two attorneys representing the plaintiff had individually or together been listed as plaintiff’s counsel in 213 ADA cases in the Southern and Eastern Districts of New York.  After finding that the papers were “practically identical” to the pleadings filed by these attorneys in other federal cases in New York and Florida, the judge characterized the request for fees for “drafting” as “disingenuous at best.”[4]

On October 26, 2017, a New Mexico District Court Judge Karen Molzen, dismissed 99 ADA lawsuits as frivolous and malicious.[5]  A self-proclaimed advocate used Craigslist, Indeed.com and other online media to find and engage disabled plaintiffs to file ADA lawsuits, and lawyers to represent them.  The online advertisements resulted in hundreds of ADA lawsuits filed against businesses in New Mexico, Nevada, Colorado and Utah.[6]

The scheme worked like this: (i) each plaintiff was paid $50.00 per lawsuit filed; (ii) the plaintiff’s attorney received $100 per filing for serving as counsel of record for each lawsuit filed; (iii) the advocate drafted all pleadings and defended any motion practice in exchange for the lion’s share of any settlements that resulted from the lawsuits; (iv) and the advocate also arranged for a driver to take the plaintiff to the businesses that were sued, for a photo-op.[7]

In addition to dismissing the lawsuits the Court ordered the in forma pauperis plaintiff to pay filing fees of $38,300.  The Court also authorized the defendants to file motions for fees and sanctions against the plaintiff and their attorneys, as well as third-party complaints perhaps against the advocate.[8]

Florida has its own professional ADA plaintiff, although he calls himself an “ADA Tester.”  This gentleman is a disabled physician who resides in Palm Beach County and carries his mission throughout the state of Florida, where he was the plaintiff in over 1000 ADA cases over the past three years.[9]  Even though in a recent St. Petersburg Federal case, the ADA Tester dismissed his action, the defendant, a St. Petersburg hotel attempted to prove that the actions of the ADA Tester and his attorneys filed in the case were in bad faith.  However, Federal District Judge James Whittmore of the Middle District of Florida, differed in opinion from New York District Judge Johnson and North Mexico District Judge Karen Molzen, and sided with the ADA Tester.  Specifically, Judge Whittmore stated while the defense raised doubt over the ADA Tester’s credibility and that his excessive lawsuits can be viewed as “opportunistic,” federal law gives him the right to be a serial-suer.[10]

The most common ADA barriers relate to: parking, curb ramps, doorways, signage, sidewalks, access routes, stairways, guardrails, restrooms, dressing rooms, locker rooms, showers, counter and work spaces.[11]  Simply because your office may be leased, do not believe that any ADA claims will fall upon the shoulders of your landlord.  I bet your lease says otherwise or is silent to these issues.

I believe this fiasco of professional plaintiffs and their attorney counter-parts targeting small businesses with ADA claims can best be summed up by citing to a California Federal case.  The scheme is simple: an unscrupulous law firm sends a disabled individual to as many businesses as possible, in order to have him aggressively seek out any and all violations of the ADA. Then, rather than simply informing a business of the violations, and attempting to remedy the matter through “conciliation and voluntary compliance,” … a lawsuit is filed, requesting damage awards that would put many of the targeted establishments out of business. Faced with the specter of costly litigation and a potentially fatal judgment against them, most businesses quickly settle the matter.[12]

The Florida Healthcare Law Firm team can help coordinate a plan to evaluate and address your needs in assuring your compliance with the ADA.

[1] New York Eastern District Judge Sterling Johnson in Costello v. Flatman, LLC, No. 11-CV-287 (SJ)(VVP), (March 28, 2013)

[2] Id.

[3] Id.

[4] Id.

[5] Martin H. Orlick, Chair, JMBM’s ADA Compliance & Defense Group; Jim Butler and the Global Hospitality Group, 20 November 2017.

[6] Id.

[7] Id.

[8] Marty Orlick, Chairman, ADA Defense Team.

[9] Katie LaGrone, ABC Action News, Tampa, 1/17/17.

[10] Id.

[11] Kristin Rueber of the EMG Blog, 3/27/17.

[12] Molski v. Mandarin Touch Rest., 347 F.Supp.2d 860 (C.D. Cal. 2004).

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