Disabled Man's Suits Restricted

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From The Los Angeles Times/California

http://www.latimes.com/news/local/la-me-litigant11dec11,1,7455076.story

December 11, 2004

Disabled Man's Suits Restricted

Judge says 34-year-old who has filed 400 actions over disability act violations

is extorting businesses and limits his ability to litigate.

By Henry Weinstein, Times Staff Writer

Most people never file a single suit in federal court. Jarek Molski of Woodland

Hills has filed 400.

Now, a federal judge, accusing Molski of a " scheme of systematic extortion, "

wants to shut him down.

Since 1998, a decade after a motorcycle accident left him in a wheelchair,

Molski, now 34, has made something of a career of suing restaurants, wineries,

bowling alleys, banks and other businesses throughout the state, accusing them

of violating his rights under the Americans with Disabilities Act.

In three separate suits filed last year, for example, Molski, a law school

graduate, claimed to have suffered identical injuries at three restaurants, all

on May 20, 2003 — " highly unusual, to say the least, " U.S. District Judge

Rafeedie wrote in a decision issued Thursday.

Molski routinely asks for damages of $4,000 per day for each day a facility is

not brought into compliance with the disabilities law, then agrees to a cash

settlement, the judge said, adding that " Molski's M.O. is clear: sue, settle and

move on to the next suit. "

This year though, the Mandarin Touch restaurant in Solvang fought back after

being sued by Molski. The restaurant's lawyer, H. Appert of San ,

accused Molski of abusing the disabilities law.

The judge agreed, saying Molski was " misusing a noble law " and trying to " harass

and intimidate business owners. "

With that, Rafeedie issued an order labeling Molski a " vexatious litigant " —

someone who files lawsuits " maliciously and without good cause. "

The order means Molski can no longer file suits under the disabilities act

without seeking permission from a judge, who has to be informed of Rafeedie's

order when the suit is lodged.

It is highly unusual for a federal judge to declare someone a vexatious

litigant, according to legal experts, and some praised the ruling by Rafeedie,

who was appointed to the bench by President Reagan.

Stanford University law professor Pamela Karlan said the ruling, though rare,

made " perfect sense, " adding, " you don't want to create a backlash against " the

disabilities law by allowing litigants to misuse it.

But not all legal experts were applauding.

Eve L. Hill, a visiting professor of law at Loyola Law School, called the

decision " outrageous. "

" To label someone a vexatious litigant because he has a disability, and these

restaurants are out of compliance, really discourages someone from enforcing

their rights, " said Hill, who also is executive director of the Western Law

Center for Disability Rights.

Molski's suits are about enabling disabled people to gain access to restaurants

and other facilities, Hill said, adding that " whether he is doing it right does

not justify barring him from the courts " and making him " hang a 'kick me' sign

around his neck. "

In at least one case, she said, Molski obtained a settlement from a hamburger

chain that resulted in significant changes to the company's facilities that

brought them into compliance with the disabilities law.

R. Bagenstos, a law professor at Washington University in St. Louis, also

expressed reservations about the decision.

" Judge Rafeedie's frustration is understandable, but I think it's a bit

misdirected, " Bagenstos said. " Why do you think this plaintiff was able to

obtain so many quick settlements? Because, even today, over 14 years after the

ADA first went on the books, violations of the statute are widespread. "

Rafeedie acknowledged in his order that " it is possible, even likely, that many

of the businesses [Molski] sued were not in full compliance with the ADA. "

But, he said, the volume of suits that Molski filed, many of them identical,

coupled with his pattern of seeking quick monetary settlements in most cases and

failing to pursue others, " calls into question Molski's good faith expectation

of prevailing on the merits of his claim. "

The judge emphasized that his ruling " does not limit the right of a legitimately

aggrieved disabled individual to seek relief under the ADA; it only prevents

abuse of the law by professional plaintiffs, like Molski and their lawyers …

whose priority is their own financial gain, and not 'the elimination of

discrimination against individuals with disabilities' " — the purpose of the

disabilities law.

Rafeedie focused in particular on the three suits Molski filed stemming from

incidents on May 20, 2003, at El 7 Mares restaurant in Gilroy, Casa Medina in

Hollister and Rapazzini Winery in Gilroy.

In each suit, Molski asserted that the restaurant lacked adequate parking and

the food counter was too high.

And in each case, according to the judge, the suit alleged that " after the meal,

Molski attempted to use the restroom, but because the toilet's grab bars were

improperly installed, he injured his shoulder in the process of transferring

himself from his wheelchair to the toilet. Thereafter, he was unable to wash his

hands because of the lavatory's design. "

The claims " appear credible " standing on their own, the judge said. But laid

side by side, their validity " is undermined. "

" It would be highly unusual — to say the least — for anyone to sustain two

injuries, let alone three, in a single day, each of which necessitated a

separate federal lawsuit. But in Molski's case, May 20, 2003, was simply

business as usual. "

E. ovich, a lawyer from San Francisco who represented Molski in many

of his suits, responded that it was common for people who use wheelchairs to

suffer injuries to their " upper extremities " when a restroom does not have grab

bars.

ovich called the decision " a miscarriage of justice " and said he would ask

Rafeedie to reconsider the ruling. If that does not succeed, he will try to get

the ruling reversed by the U.S. 9th Circuit Court of Appeals, he said.

Rafeedie had harsh words for ovich and his law firm, as well as Molski,

saying the lawyers had " aided and abetted " Molski's " abusive litigation

practices. "

As a result, the judge said he was issuing an order that ovich's firm and

an organization affiliated with Molski called Disability Rights Enforcement

Education Services had to come to court and show why they also should not be

sanctioned.

ovich said he and his firm had " done everything correctly and should be

commended, not condemned. "

His office, he said, files more individual suits under the disabilities law than

any other law firm in California. The judge is " taking a very disparaging

approach against our firm " without investigating, he said.