In my last post, I jumped right in to talking about how cases like Daubert and the Diaz affect expert witness testimony in web accessibility cases. This week, I'm going to step back a bit and talk a little more generally about what you want (and don't want) your expert witness to testify about.
A Little Background on Standing to Sue
In order to bring a case in Federal court, Article III of the Constitution requires that the plaintiff must met the minimal requirement of standing to sue. In its broadest sense, this requires that (1) the plaintiff suffer an actual or perceived injury, (2) the injury can be fairly traced to the defendant's illegal conduct, and that (3) this injury can be redressed by the court if the relief is granted. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472 (1982).
That sounds pretty abstract so let's make it a little more tangible. Say a blind plaintiff is suing a retailer for its inaccessible website. If he goes to the website and can't order a product because the product page is inaccessible to their screen reader, he may be able to meet the requirements of having standing to sue the retailer. Why? Well, he would allege that he has suffered an injury in not being able to purchase goods online like a non-disabled person. This meets the first requirement of standing. Then, to meet the second requirement for standing, he would allege that the defendant created or controlled the (inaccessible) website so his injury could be traced to the defendant's conduct. To meet the last requirement, he would note that the Title III of the ADA (and possibly Unruh, if he was a California resident) prohibit this conduct and that a court can award injunctive relief and, in the case of Unruh, monetary damages to compensate him for his injury.
I think that the requirement for the plaintiff to suffer an injury takes an interesting turn in web accessibility cases because it really hinges on the nature of the plaintiff's disabilities. And this affects a lot of the issues that a plaintiff can allege in their complaint-- and what their expert witness can testify about. To take an obvious example, a blind plaintiff who does not have a hearing disability cannot bring a claim because a company did not include captioning on its videos. Why? Because lack of captioning would not affect the experience of a blind visitor to a website. Sure, there may be problems with the videos that would affect him-- such as lack of audio descriptions or the use of a video player that lacked keyboard accessibility. But lack of captioning alone should not affect a blind plaintiff so this should not be something that they can allege in his complaint. No harm, no foul.
But a less obvious example would be something that I see all the time in web accessibility complaints by blind plaintiffs-- allegations of low contrast or other deficiencies that affect low-vision users. Blindness and low-vision are, of course, related disabilities and, in the physical world, many of the issues that confront low-vision users also affect blind users. When we move to digital accessibility, however, this connection breaks down as the features that affect low vision users can be very different than blind users. For instance, low-contrast (WCAG Success Criteria 1.4.3), reflow (WCAG Success Criteria 1.4.10), or text spacing (WCAG Success Criteria 1.4.12) all have a big impact on low vision users with particular vision impairments or who rely on screen magnification, but these issues would likely not affect a screen reader user. So, again, a blind plaintiff would have trouble alleging that they suffered harm because a web page affected low-vision users. As an aside, I'd go so far as to say that the differences between the needs of blind users and low-vision users are sufficiently large that I think a good argument could be made against any class certifications between blind and low-vision users in a typical web accessibility cases-- but that's the subject of a future blog.
Effect on Expert Witness Testimony
So what the heck does standing have to do with expert witness testimony? The answer is, "just about everything." A common mistake I've noticed in a lot of expert witness reports are when the report goes well beyond the scope of the plaintiff's allegations. But this depends both on what the plaintiff alleges and what the plaintiff is likely to encounter.
If you're an expert witness for the plaintiff, your report is supposed to be limited to the barriers that the plaintiff encountered or would likely encounter on a website. Again, this ties back to the plaintiff's disabilities, so anything that affects other disabilities really shouldn't be considered. There are a few cases in which the courts (and likely defense counsel) overlooked this basic issue (e.g. Gomez v. General Nutrition Corp., 323 F. Supp. 3d 1368 (S.D. Fla. 2018)) but a good expert witness report really should focus on the facts in issues. For accessibility consultants, this can be a challenge because we're used to developing reports that describe all WCAG issues that we come across-- regardless of the disabilities involved.
If you're an expert witness for the defense, the same logic holds true but even more tightly. I believe that your job is to focus only on the plaintiff's allegations-- and possibly the plaintiff's expert witness's findings (although even here, this is something that a good defense counsel should think twice about). The last thing a defense attorney wants is to have her expert witness help build the plaintiff's case. And a good plaintiff's attorney will likely ask if the expert witness found any accessibility issues in generally reviewing the site, so it's really important to constrain the scope of the review. Resist the impulse to get curious-- at least until after the litigation is over!
Thanks for reading! In upcoming blogs, I’ll talk about some other issues that come up with web accessibility experts, such as the when experts offer legal opinions or why it's usually better to have two experts than one.
Nothing in this post should be interpreted as legal advice or as forming an attorney-client relationship. It is offered for educational purposes only. You should always contact a qualified attorney in your area to discuss your legal rights and responsibilities.
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