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CDR Loses Mervyn's Access Case; DRA Considering Appeal
CDR's access lawsuit against Mervyn's California, Inc. went to trial on August 12, 2003 and closing arguments were heard on September 11, 2003. Eighteen witnesses testified about the problems they had experienced during years of shopping at Mervyn's, including narrow pathways in merchandise display areas, display racks and clothing catching on their mobility aids and racks tipping over, and unhelpful or unavailable customer service.
An access expert also testified that based on his 20 inspections of 16 Mervyn's stores, the stores are only about 50% accessible to people with disabilities. Mervyn's chief defense at trial was that providing increased access to people with disabilities would cause it to go out of business.
Alameda County Superior Court Judge Henry E. Needham, Jr. ruled for Mervyn's in a tentative decision on November 4, 2003. The court's decision stated in part, "A chain-wide prospective injunction would be financially and administratively unworkable. It would be disastrous, resulting in lost sales to Mervyn's of tens of millions of dollars."
The court will hold a hearing on the tentative decision, which has not yet been scheduled, and issue its final decision sometime after the hearing.
CDR's counsel, Disability Rights Advocates, is currently evaluating the strength of an appeal. "The decision is extremely disappointing, especially since plaintiff presented ample evidence that Mervyn's can feasibly improve access at its stores. However, the case presented several novel issues of law that may well have to be decided by a court of appeal," said Sid Wolinsky, DRA's Director of Litigation and lead counsel for plaintiff.
On a more positive note, the parties in CDR v. Macy's are making progress toward resolution of the same issue that was litigated in Mervyn's: accessibility through pathways of merchandise display areas.
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