A recent decision out of the Southern District of Florida highlights the importance of hiring an experienced accessibility expert in web accessibility cases under Title III of the Americans with Disabilities Act (ADA)—and the risks if you don’t.
The case, Gomez v. General Nutrition Corp., arose last year after the plaintiff, Andres Gomez, who is legally blind and accesses the internet with screen reader software, visited GNC’s website and discovered he was unable to use several features, including the ability to add items to his shopping cart, search for store locations, or access information about current promotions. Gomez subsequently filed suit in the Southern District of Florida, one of several dozen cases he has brought against businesses over inaccessible websites.
Recently, United States District Judge Marcia C. Cooke granted Gomez’s motion for summary judgment in part, making it one of a small number of web accessibility cases to reach the merits. Judge Cooke denied Gomez’s motion on the question of remedy, however, finding that further proceedings were necessary.
In addition to granting Gomez’s motion for summary judgment, Judge Cooke also granted in part a motion to exclude the opinions and testimony of GNC’s expert on questions of web accessibility. While bad news for GNC, this portion of the decision offers important lessons for other organizations facing potential web accessibility suits.
Conflicting Expert Reports
Rather than hire an external expert, GNC submitted an expert report drafted by its internal e-commerce and IT executive, Paul Dolegowski. According to his report, Dolegowski tested the GNC website with two automated accessibility checkers, both of which are available free online. When the test results returned no errors on the website, Dolegowski concluded there were no known accessibility issues.
Gomez, on the other hand, retained a third-party digital accessibility consulting firm, which concluded after an audit of the GNC website that it contained accessibility issues that would prevent individuals using a screen reader from adding products to their shopping cart and completing a purchase.
GNC’s Expert Was Not Qualified and Used an Unreliable Methodology
In considering Gomez’s motion to exclude, the court evaluated Dolegowski’s expert report under the test laid out in Daubert v. Merrell Dow Pharmaceuticals, Inc. Under Daubert, the court may admit expert testimony after first determining that:
- The expert is qualified to testify competently about the subject matter,
- The expert used a “sufficiently reliable” methodology to reach his conclusions, and
- The testimony or report helps the judge or jury understand the evidence or determine a factual question.
In her decision, Judge Cooke found that while Dolegowski met the third prong—evidence about web accessibility generally and the accessibility of GNC’s website specifically would help answer important questions in the case—he failed to meet the first two.
Although courts generally interpret the first prong liberally, treating questions of level of expertise as an issue of credibility and weight, rather than admissibility so long as the expert is minimally qualified, the court held that Dolegowski failed to meet even this standard because he lacked specialized experience in web accessibility, rather than e-commerce.
“Dolegowski lacks specialized knowledge or experience on web accessibility, and his professional training an experience is in e-commerce, which is at best tangentially related to web accessibility. Dolegowski does not know the success criteria of the accessibility checking software relied on by GNC. Nor does he usually run these tests personally. Because he is not at least minimally qualified to opine on web accessibility, Dolegowski does not satisfy the first prong of the Daubert analysis,” Judge Cooke wrote.
The court also found that Dolegowski’s testimony failed to meet the reliableness prong, which requires the court to consider whether the expert’s theory can be tested, whether it has been subjected to peer review, the potential rate of error of the technique, and whether it is generally accepted in the scientific community.
Dolegowski, however, stated in a deposition that he based his report on “the input that he’s received from people over 20 plus years of just interaction,” rather than a clearly-established methodology. Judge Cooke found this insufficient: “Dolegowski’s network-based ‘expertise’ cannot be tested or peer-reviewed, has no known rate of error, and GNC has put forth no evidence that this technique is accepted in the relevant scientific community.”
Gomez v. GNC’s Lessons for Selecting a Digital Accessibility Expert
The GNC decision reinforces the importance of selecting a digital accessibility expert with experience, who understands the ins-and-outs of web accessibility. Selecting an expert whose business is digital accessibility (like Level Access) means major problems won’t slip through the cracks of automated testing, and you won’t be caught by surprise at trial.
“Digital accessibility is a lot like information security. Using a computer with a password doesn’t qualify you as an information security expert. In the same vein digital accessibility requires substantive and deep knowledge in a highly specialized domain,” said Tim Springer, co-founder and CEO of Level Access.
GNC’s expert, who lacked specialized knowledge in web accessibility, relied exclusively on automated testing to identify barriers to accessibility with the company’s website. While automated testing software can identify many accessibility barriers, it’s rarely enough to catch all potential issues—or stay in compliance with accessibility laws like the ADA.
Instead, automated testing must be supplemented with robust user testing by individuals trained to know what issues are likely to make a website or digital application inaccessible to individuals with a wide range of disabilities. Without special expertise, combined with real life experience using the web as an individual with a disability, it may not be obvious just how much relatively simple problems like missing alternative text or unnamed form fields can make a site impossible to navigate.
Choosing an expert specialized in digital accessibility also saves you from the nightmare scenario GNC faced when its expert was disqualified by the district court. Without an expert of their own, GNC was left without a chance to rebut the testimony of Gomez’s expert. While the outcome of the GNC case may well have been the same regardless, the court’s decision not to admit Dolegowski’s expert report effectively left GNC unable to contest Gomez’s expert’s claims regarding accessibility issues on its website—an unenviable situation, to say the least.
Finally, a firm specialized in digital accessibility can do a lot more than just help prepare defendants for trial. They can work with organizations to make sure their digital assets are accessible to everyone, helping them avoid not only the next lawsuit, but also sales lost from potential customers with disabilities who were forced to turn elsewhere.
The Bottom Line
Retaining a qualified digital accessibility expert like Level Access could make the difference between presenting your strongest case for the court—and getting a jump start on fixing any problems in the meantime—and getting caught by surprise. As the GNC decision shows, relying on automated testing or someone with general IT experience is not enough, as they are likely to miss major problems a web accessibility firm would identify, even if they aren’t disqualified by the court for lack of expertise.
This blog post is for informational purposes only and does not constitute legal advice.