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.”