Thursday, May 24, 2012
The Americans With Disabilities Act (ADA) Supported by Federal Courts as the Court Scolds Eric Harrison Attorney for Moorestown, New Jersey for blatant misrepresentation
In brief the Federal Judge was concerned with Eric Harrison's representation of Moorestown, New Jersey. The following are the opening remarks from United States Magistrate Judge Joel Schneider taken directly from the transcript. Eric L.Harrison a partner at Methfessel & Werbel of Edison, New Jersey
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
- - -
LASKY et al, : CIVIL ACTION NO. 09-5624
Plaintiffs :
J :
v. : Camden, New Jersey
: March 16, 2012
MOORESTOWN TOWNSHIP, : 2:17 o'clock p.m.
Defendants :
. . . . . . . . . . . . . . . :
SETTLEMENT CONFERENCE
BEFORE THE HONORABLE JOEL SCHNEIDER
UNITED STATES MAGISTRATE JUDGE
- - -
APPEARANCES:
For the Plaintiffs: ANTHONY J. BRADY, JR., ESQUIRE
1 Rose Avenue
P.O. Box 129
Maple Shade, NJ 08052
For the Defendants: ERIC L. HARRISON, ESQUIRE
Methfessel & Werbel, PC
3 Ethel Road
Suite 300
P.O. Box 3012
Edison, NJ 08818-3012
- - -
Audio Operator/ESR: Taryn Franchetti
Transcribed by: Paula L. Curran, CET
(Proceeding recorded by Liberty Court Player digital
sound recording; transcript produced by AAERT certified
transcriber.)
Laws Transcription Service
48 W. LaCrosse Avenue
Lansdowne, PA 19050
(610)623-4178
" We're on the record. This is the matter
of Lasky versus Moorestown Township, 09-5624. Can we have the entries of appearance, starting with the plaintiff? MR. BRADY: Good afternoon, your Honor. If it please the Court, Anthony Brady for plaintiff.
MR. HARRISON: Eric Harrison, Methfessel & Werbel
for the defendant as directed, with Town Manager Scott Carew
(ph) and with Town Solicitor, Thomas Coleman.
THE COURT: Mr. Carew, let me tell you why we're on
the record in this court. This Court is concerned and its
starting to have questions about the credibility of the
representation it's getting from Moorestown and its lawyers.
This case was filed in November, 2009. For two years, more
or less, Moorestown represented in writing and orally to this
Court, that it had no responsibility for the curb cuts. Only
because of Mr. Brady's diligence, was Moorestown finally
forced to admit that it had responsibility for these curb
cuts. That's a very serious oversight on Moorestown's part.
Moorestown comes to this Court and admits and
acknowledges that it doesn't comply with ADA requirements.
Moorestown blatantly refuses to make the corrections that the
ADA requires. Five minutes ago, we were sitting in the
conference room and your attorney said that Moorestown
refuses to change a valve on a bathroom, because the
bathroom's going to be destroyed in four months. One or two
questions from Mr. Coleman, it turns out it may not be
destroyed for 18 months.
That indicates to this Court that counsel does not
take their responsibilities seriously when they can
cavalierly make such inaccurate representations to this
Court. So that's why we're on the record. There are going
to be consequences if we don't get the true and full story
from Moorestown Township. That's why we are here. You can
take that back to your manager, to your mayor.
Mr. Carew, we had a case here not too long ago, with
the Moorestown Township Board of Education. I know it's not
Moorestown Township, it's a different client. They, too,
didn't take their responsibilities seriously. They, too,
flouted the law. They, too, presented frivolous positions to
this Court. I handled that case. I know exactly what
happened. They could have settled that case for peanuts.
They filed frivolous motions, they litigated frivolously and
the District Judge was compelled to issue an opinion that
lambasted and embarrassed the Moorestown Board of Education.
And I think you know what I'm talking about because of all
the press that opinion got.
But for the arrogance of the client and the
attorney, that case should have been settled. And to add
insult to injury, Moorestown appealed that case and of
course, they wound up settling that case for probably five
times as much money as they could have paid to settle the
case at the beginning. And I have a feeling the same thing's
going to happen in this case. So let's get back to where we
are.
The Court wants to find out what the issues in
dispute are. We'll put aside the one-hour notice for the
moment. Mr. Brady has asked for what the Court considers
trivial repairs to be made to the bathroom. Let's find out
if there's going to be a problem with that. A, reverse the
valve to the wide side of the stall. Does Moorestown refuse
to do that?
MR. HARRISON: No, it does not. What I said to this
Court, in chambers, is that in view of the imminent
replacement of the library, I would not recommend to my
client any substantial facility changes that have not been
shown to pose a real impediment.
THE COURT: Let's make the record clear, Mr.
Harrison.
MR. HARRISON: Yes, sir.
THE COURT: That's not what you said to the Court.
That's a blatant misrepresentation about what you said
downstairs. You said to the Court that the building's going
to be destroyed in four months and Moorestown would not do
it.
MR. HARRISON: Incorrect, sir. I said I would not
recommend it to my client in view of the fact that this
facility, the library, is going to be replaced. The work on
the library, while it may be beginning in four months, I
don't know when this building will be closed or destroyed.
The word destroyed did not come out of my mouth, sir.
THE COURT: When will this building be closed to the
public?
MR. HARRISON: I do not know, sir.
THE COURT: The outside date is when?
MR. HARRISON: I do not know, sir.
THE COURT: What is your best estimate, Mr. Coleman,
can you help us here?
MR. COLEMAN: Your Honor, respectfully, I would
defer to the township manager, Mr. Carew, who's here, who is
intrically (ph) involved in which buildings will be
demolished first, if that's correct.
THE COURT: Mr. Carew, do you have a guesstimate?
MR. CAREW: Yes, your Honor. The time frame for the
construction of the new library is 18 months roughly, give or
take a few months, to be completed. Once that building is
completed and we move the old library into the new library,
the current library building will be shut down and eventually
demolished.
THE COURT: Mr. Carew, what is your best estimate of
when this bathroom, that we're talking about, is going to be
closed to the public?
MR. CAREW: Give or take a few months, 18 months.
THE COURT: A year and a half?
MR. CAREW: Yes, sir.
THE COURT: Do you acknowledge that the bathroom
does not comply with ADA regulations?
MR. CAREW: I -- if that's what you're telling me,
then yes.
THE COURT: I don't know. I don't know.
MR. HARRISON: May I speak?
THE COURT: I'm not litigating this case.
MR. CAREW: If I could just point one thing out.
THE COURT: Ask your lawyer.
MR. HARRISON: May I speak? ADA AG guidelines are
those which apply to newly constructed facilities, defined as
those constructed after January of 1992. This building
predates said effective date. Therefore, while the
regulations may be used as evidence of an accessibility
difficulty, if the plaintiff testifies to it, the mere fact
that it does not match with the regulations applying to new
construction, does not a fortiori, render it violative of the
ADA.
THE COURT: Mr. Carew, how much will it cost to
reverse the valve to the wide side of the stall?
MR. CAREW: Sir, I don't know that answer off the
top of my head.
THE COURT: Mr. Brady?
MR. BRADY: I believe it is under $1,000.
THE COURT: Okay. You acknowledge that, at least,
under current guidelines, the bathroom that was built before
1992 doesn't meet the guideline, right?
MR. HARRISON: That is correct.
THE COURT: Mr. Carew, we have a bathroom that
doesn't comply with the current ADA guidelines. It may be
open more or less for 18 months. It's going to cost less
than $1,000 to fix it. You're saying that Moorestown doesn't
want to fix it? That you'd rather litigate this case and go
to trial? Is that what you think your taxpayers want?
MR. CAREW: I did not say that.
THE COURT: That's what your lawyer said.
MR. HARRISON: Incorrect, sir. We were looking at
the first item in a very lengthy list presented by Mr. Brady
and I said that I would not recommend to my client
significant expenditures in a building which is going to be
replaced. Especially in view of the fact, your Honor, that
Mr. Lasky, a resident of Florida has not even claimed to have
experienced a difficulty with it.
THE COURT: It's incredulous to me that you're
taking this position. It's just incredulous. You're acting
as though Mr. Lasky is the only handicapped person who's
going to use this library bathroom.
MR. HARRISON: I certainly am not, sir.
THE COURT: Mr. Carew, your lawyer doesn't want to
recommend that you spend less than $1,000 to repair a non-
compliant bathroom and it's going to be open 18 months to the
public. Ultimately, the decision is yours or your client's.
What is your client going to do? Is it going to litigate
this case, this issue for less than $1,000 or is it going to
it to settle this case?
MR. CAREW: Under the parameter that you just put
forth and first let me point out I am the client. I don't
have a client. But under the parameters you just set forth,
then of course, I would not choose to litigate something over
a fix that is less than $1,000. I do not know that it's less
than $1,000.
THE COURT: Mr. Carew, that's not surprising to me
that you take that position, because any logical, rational
public figure would take that position. No rational public
servant can believe that the public wants them to waste money
on litigation time and expenses to repair an item that's
going to cost less than $1,000. It makes no sense. But yet,
your lawyer says they're not recommending that to you because
in 18 months, plus or minus, this building is going to be
demolished. That is an utterly, to this Court, irrational
and well, I can't even use the words, position. And that's
why you're here. So we could make sure the client
understands what's going on in this case and you don't just
get it filtered through the lawyer. Because I can't believe,
cannot believe that any public entity in 2012, would rather
be spending money on litigating whether a valve should be
switched for less than $1,000. It's just incomprehensible to
this Court, incomprehensible.
The second issue, replace the hinges on the stall
door with gravity-closing hinges. Mr. Brady, how much is
that going to cost?
MR. BRADY: I didn't bring the price tag, but I
think it's $20 or something, if I recall.
THE COURT: Mr. Carew?
MR. CAREW: I would be even less inclined to want to
litigate that.
THE COURT: Place the handle with a proper u-shaped
handle on inside of the door or the problem will be solved
when the new hinges are installed. Mr. Brady?
MR. BRADY: Same thing, it's a very trivial expense.
THE COURT: And I assume it's the same position, Mr.
Carew?
MR. CAREW: Yes, your Honor.
THE COURT: Adjust and maintain so the speed and
weight are properly adjusted pursuant to ANSI, Mr. Brady?
MR. BRADY: That's actually maintenance which costs
nothing, but --
THE COURT: And I assume, Mr. Carew, there's no
problem with that?
MR. CAREW: Yes, your Honor.
THE COURT: If similar conditions exist in the
woman's room, will they also be addressed? That's not part
of this case. You're not insisting on that as part of
settlement, are you?
MR. BRADY: Yes, your Honor, we don't have standing,
obviously.
THE COURT: But I don't know, Mr. Brady, it would
seem incomprehensible to me that if they make these changes
for the men's bathroom, they wouldn't also make them to the
woman's room?
MR. BRADY: Of course, the premise is liability,
number one.
THE COURT: How long have you been making these
demands, Mr. Brady?
MR. BRADY: Well, this letter was actually October,
23, 2011, but I always offer to show a person what's wrong and
try to fix it and that's how most cases are resolved.
THE COURT: This October, 2011 letter, is that the
first time that you let Moorestown know that these are
trivial items you wanted fixed in their bathroom?
MR. BRADY: Well, first of all, your Honor, we
disagree with the term trivial, easily fixed, yes.
THE COURT: I call it trivial because of the amount
of money involved.
MR. BRADY: Yes.
THE COURT: Personally, I think they're very
important to a handicapped person, because if I was a
handicapped person and I had a relative, a mother, a father,
a son or a daughter who is handicapped person, I would want
these fixed. And I think the law says they have to be fixed.
But how long did Moorestown know that these items were at
issue in the case?
MR. BRADY: Well, your Honor, there is an expert
report that's prepared and that's sent and then there's items
we think may be too costly, but with all due respect, the
municipalities that are represented by a JIF, now only seem
to like to litigate. So --
THE COURT: Mr. Brady, these items in the bathroom,
were they in your expert's report?
MR. BRADY: Yes, your Honor.
THE COURT: When was your expert report produced?
MR. BRADY: I can -- I don't want to speculate, your
Honor.
THE COURT: Do you have a guesstimate? A month, two
months, six months ago?
MR. BRADY: Much longer than that, because you have
the discovery period. It was probably, I would think, last
spring.
THE COURT: Did you have to or did defendant have to
incur costs and transactions costs to litigate these bathroom
issues over the past nine months or so or 12 months or so?
MR. BRADY: Of course not.
MR. HARRISON: May I respond to that, please?
THE COURT: Yes, Counsel.
MR. HARRISON: The defendant incurred zero in costs
litigating the bathroom issues. What the Court, I
respectfully submit, is failing to appreciate is that the
expert report of plaintiff's counsel, as in all of his cases,
has at least 50 bullet points, which canvas the township. Of
course, if Mr. Brady had stated, at the outset of this
litigation or at any time, here's what will settle this case.
This item, that item and that item and those things were
trivial, as the Court has defined them, then of course, we
would be engaging in that discussion. That is not how this
litigation goes or a litigation with Mr. Brady and his expert
go generally. In fact, what we learned at deposition is that
neither the plaintiff nor to our knowledge, any other
disabled individual has ever encountered difficulty with the
majority of the architectural barriers that are discussed in
these reports. Therefore, to say that we should have known
that these three items would have been the ones that could
settle the case is, respectfully, blatantly unfair.
MR. BRADY: If I may address that, your Honor?
Counsel's indicated many times he won't agree to the easily
fixable things, because he's frightened that I will become --
plaintiff will become the prevailing party for fee-shifting
and that's why they don't agree.
THE COURT: That doesn't surprise me, Mr. Brady.
MR. HARRISON: I'm sorry to hear the Court say that.
THE COURT: Excuse me, Counsel. I'll tell you what
a lot of lawyers do in these cases. The lawyers, who I think
are looking out for their clients' best interest, we've had
many, many cases with Mr. Brady. They get the expert report.
They get their own expert report and they sit down and they
go over it and they resolve the issues. These issues could
have been resolved months ago, except for the curb cuts.
That's the only material issue in this case. No one's going
to tell me that if Moorestown had an interest in resolving
this case, which it has never expressed an interest of doing,
because it wants to litigate the standing issue. As if Mr.
Lasky is the only handicapped person who ever visits
Moorestown, that these trivial issues could not have been
resolved months ago. No one's going to tell me that.
Let's talk about the curbside notice issue. What is
it you want, Mr. Brady and is this going to hold up
settlement?
MR. BRADY: I don't think so, your Honor.
Basically, the City Hall -- temporary City Hall has a very
bad illegal curb cut. They could fix it. If they don't want
to fix it, they could bring documents out to a disabled
person and that's called curbside service, which is allowable
under the code. I agree that curb cut is pre-existing. So,
therefore, that would be allowed. It's much easier just to
fix it.
THE COURT: What alternative is there?
MR. BRADY: Alternative is, for instance, let's say
if a person wants to look at the tax records or a transition
plan, a government employee could come out and show it to
them in their car, it's called curbside service. It's not
good for integration, obviously and it's a lot easier to put
a curb cut than put responsibility on some government
official.
THE COURT: Is this because of what alleged
deficiency?
MR. BRADY: It's a curb cut that has a very
dangerous slope at the top, which would be dangerous for a
wheelchair user to try to use it by themself.
THE COURT: Okay, this is at the library in Township
Hall? Not this --
MR. BRADY: Correct, the Township Hall is much
easier fixed than the library.
THE COURT: So this sounds like something that may
cost more than a trivial amount of money to fix, am I right?
MR. BRADY: Actually, I think the City Hall would be
trivial or small and I think the library is probably
substantial.
THE COURT: So what happens if you have a person
who's in a wheelchair, who wants to go to the library now?
What barriers are they facing?
MR. BRADY: Acute slopes that go from the parking
into the library itself.
THE COURT: And how about the Township Hall?
MR. BRADY: Township Hall is just a curb cut that's
illegal, just really fixed, easily fixed.
THE COURT: And how does this impede say, a
wheelchair person from having access to the Township Hall and
library?
MR. BRADY: It would make it dangerous, because when
you go up a curb cut that's illegal, you could fall, et
cetera, not get into the building.
THE COURT: What if someone has a can or a walker?
MR. BRADY: That can actually affect them, too,
because of the slopes, when you have those situations.
THE COURT: Now, defendant says no one's ever
complained about that, is that right?
MR. BRADY: I wouldn't know that.
THE COURT: Do you know how many people don't go to
the library or Township Hall because they're afraid they're
going to fall and break their hip? Do you have any way of
knowing that?
MR. BRADY: No, but I know Congress made findings,
so it's very common. Not in Moorestown, but throughout the
United States.
THE COURT: In your experience, is that something
that the disabled people you represent face, that they don't
go to a place, a public accommodation because they're afraid
that they're going to face barriers?
MR. BRADY: Oh, often. I mean, my best friend broke
his neck in high school and it was always a struggle to get
him to go to Veteran's Stadium, because the curb cuts and
ramps were so bad. Now he goes seven, eight times a year
because the new stadiums are perfect.
THE COURT: Does that mean because they never
receive complaints that that's had no impact on handicap
people or disabled people?
MR. BRADY: Of course not, it's the same as racial
discrimination in the south. People wouldn't complain and
they just put up with it."...................................................................................................................................................."
THE COURT: Mr. Harrison, you stood before this
Court for over two years and continually represented to this
Court, that Moorestown had no responsibility for the curb
cuts.
MR. HARRISON: Right.
THE COURT: It would have taken an ounce of effort
to get the answer to that question. You didn't take that
ounce of effort. Your client didn't take that ounce of
effort. And now, after two years, on the eve of trial,
you're saying because you blew it and because you made
misrepresentations to the Court, you're going to go to
somebody else to pay for it?
MR. HARRISON: No, I made no misrepresentation to
this Court. What I was in the process of saying to the Court
is that if there were to be a settlement involving repairs to
curb cuts, there would need to be involvement of the county
and that this Court may need to assist in that process. At
no time, in the history of this case, have I made a
misrepresentation of anything.
THE COURT: Gentlemen, it wasn't until a few weeks
ago that Moorestown finally stood up and acknowledged it had
responsibilities for these curb cuts. You ought to know
that, if you don't already know that.
MR. HARRISON: They have the transcript.
THE COURT: Every single conference we had,
Moorestown stood up and said we had no responsibility. The
only reason, the only reason this information came out, is
because of Mr. Brady. Your client, Mr. Harrison, did not
disclose that information. The issue of sanctions is still
viable. Mr. Brady never waived his right to pursue
sanctions. When a client and a lawyer make continual
representations to a Court that they have no responsibility
and by making a simple check of the map, they can prove --
shown to be proved to be wrong, they didn't even do that.
They didn't even do that simple step of checking a map. It's
outrageous. It's outrageous.
Mr. Brady, can you write on that map what curb cuts
are at issue?
MR. BRADY: Your Honor, it's actually because
there's size of steps. But I have another proposal. I'm
from Maple Shade and on the way back, Moorestown is the next
one over. The two gentlemen work in Moorestown and Exit 4
right near Moorestown. We could drive out there now and I
could show it.
THE COURT: You work it out with them, Mr. Brady.
We're going to adjourn this conference. I thought I could
settle the case. I'm hearing today that I think you're going
to work out your access issues to the library and the
building. You're going to work out your issues, these
trivial issues about the bathroom. Moorestown's not saying
they're going to fix these curb cuts, well, I didn't ask Mr.
Carew if -- I mean -- why is Moorestown going to go to trial
on curb cuts that it doesn't contest violate the regulations?
MR. HARRISON: Because those which violate the
regulations do so in a de minimis fashion and an expenditure
of taxpayer funds to correct a de minimis problem would not
be fiscally responsible. Nor would it improve access for any
disabled individual.
THE COURT: I have a feeling, Mr. Coleman, I just
got to have confidence that Moorestown thinks more of its
citizens and the public interest than to ultimately take that
position. And something tells me things are going to change
in this case, because you two gentlemen now know what the
issues are. I'm not sure if you knew how many times Mr.
Harrison stood before this Court and denied responsibility
and made representations in writing to the Court, that
Moorestown had no responsibility for these curb cuts.
And I'm not sure if you knew that it was only a few
weeks ago that Mr. Brady made a simple FOIA or OPRA request
and found out that that wasn't true, even though it would
have taken a simple ounce of effort to verify if that
representation to the Court was correct. I'm not sure if you
knew that until today. And I'm not sure if you knew until
today, the trivial nature of some of these issues we're
talking about that have been going on for a year. And I'm
not sure if you knew that Moorestown acknowledges that these
curb cuts or at least, some of them, don't comply with the
regs, but they're going to take the position that because
it's a de minimis violation of the law, we don't have to fix
it. Like if someone comes into your Traffic Court and says,
I went 66 miles an hour or 70 miles an hour and that's a de
minimis violation, so I shouldn't pay my speeding ticket.
Thank you, Counsel, we're adjourned.
THE CLERK: All rise.
13 (Proceeding adjourned 3:20 o'clock p.m.)
14 * * *
So in summary Judge Schneider blasted Attorney Eric Harrison of Methfessel & Werbel for blatant misrepresentation, of a case that should have been settled more then a year ago. The case recently settled with settlement in favor of the Plaintiffs another victory for the Americans with Disabilties Act (ADA)
Wednesday, May 2, 2012
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