The 9th U.S. Circuit Court of Appeals has injected new life into the legal crusade of a notorious disability-rights plaintiff, ordering a new trial in his case against a restaurant that allegedly denied him reasonable access to its men's room.

Jarek Molski, a paraplegic confined to a wheelchair, moved for a new trial after a jury in November 2004 found that Cable's, a Woodland Hills, Calif., coffee shop, had complied with the Americans with Disabilities Act. Its men's room allegedly violated the law by, among other things, having a toilet seat that was not between 17 and 19 inches high.

The testimony of Molski and his ADA-compliance expert “established a laundry list of architectural barriers” to disabled access, the 9th Circuit ruled in sending the case back to the trial court, and

The jury’s determination ... that Cable’s had not failed to identify and remove barriers was against the clear weight of the evidence.

The decision boosts Molski's hopes of further success at the 9th Circuit, where he is also appealing the dismissal of a case in which he was declared a “vexatious litigant.” Oral arguments in that case, which will be heard by a different three-judge panel, are scheduled for April 17.

In denying the new trial motion in Molski v. M.J. Cable, U.S. District Judge Dickran M. Tevrizian said the jury could have reasonably concluded that Molski was a “business” and not an “individual” entitled to the ADA's protections because of his long history of litigiousness.

Since 2003, he has filed more than 350 lawsuits against restaurants and other businesses in California, most of which have been settled for an average of $4,000. Cable's was the first defendant to take him to trial in Los Angeles.

The defense strategy was “to discredit Molski by exposing an ulterior motive for bringing the suit,” the 9th Circuit noted, going on to list evidence that the plaintiff and his lawyer were “in the business of tracking down public accommodations with ADA violations and extorting settlements out of them.”

But Judge Warren J. Ferguson, writing for the court, said in a footnote that the “narrow issue in the case was whether Cable’s failed to identify and remove architectural barriers. Although some of the [ulterior motive] facts may be admissible witness impeachment evidence, most appear to be irrelevant or at least far more prejudicial than probative.”

The footnote directly contradicts Tevrizian, who ruled that the “jury was properly provided such evidence” and Molski “could have been viewed as an extremely active litigant abusing the court.”

In December 2004, moreover, another judge declared Molski a “vexatious litigant” and ordered him to seek the permission of the court before filing any new suits. Molski v. Mandarin Touch Restaurant, 347 F. Supp. 2d 860 (2004)

With the Cable precedent behind him, Molski's appeal in that case looks stronger. Any hopes that California restaurants may have of ridding themselves of Molski may rest on whether the new panel follows Ferguson's footnote or considers it merely dicta.

By Matthew Heller
3/24/07