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Law360 (June 10, 2020, 4:46 PM EDT) -- Two wheelchair users who claim the Milwaukee Brewers maintain a "wheelchair ghetto" at Miller Park have urged a Wisconsin federal court not to toss the case because of delays, arguing their responses have been hindered in part because their lead attorney must home-school his three children amid the COVID-19 pandemic.
Julie Withers and Dawn Green's responses in the Americans with Disabilities Act case have been delayed in part because attorney Thomas Napierala's wife is a "cardiovascular caregiver" who works with patients diagnosed with the novel coronavirus, leaving the lawyer the task of supervising his children as they learn from home, according to a response brief filed Tuesday.
The staff of Paul Strouse, the other lawyer working for Withers and Green, has been "decimated," too, with his office manager on "prolonged medical leave." Green was also in the hospital for months and just released last week, according to the response brief.
Coupled with their expert not being able to observe a Brewers game at their home field of Miller Park while the 2020 season has been suspended because of COVID-19, it would be a "harsh sanction" for the court to toss the case in light of the extenuating circumstances, according to the brief.
"Plaintiffs' counsel understand that there is a price to pay for delay," according to the brief. "However, it is a drastic sanction indeed to dismiss plaintiffs' entire case after plaintiffs' expert has identified numerous barriers under the ADA."
Withers and Green in January 2019 initiated the case against the Brewers and Southeast Wisconsin Professional Baseball Park District, a government entity composed of five counties that's responsible for constructing, operating and maintaining Miller Park.
In an amended complaint filed in July 2019, Withers and Green claim the Brewers and the park district violate the ADA by designating wheelchair users and their companions to sit in a "wheelchair ghetto" in Miller Park, where lines of sight to the game are not equitably comparable to other sections of the viewing stands. Withers and Green also claim that wheelchair users have limited access to complimentary shuttles, to see pitchers warming up in the bullpen, and to use certain ramps in the stadium, according to the amended complaint.
After Withers and Green in May asked the court for more time to turn in an expert report, the Brewers and the park district argued that the request for more time was late, and came after months of examples in which the plaintiffs' attorneys did not timely respond to emails or acted to advance the case.
Withers and Green failed to submit a partial expert report that would have covered aspects of their claims that did not require a game to actually be played, did not attempt to schedule an in-game inspection by their expert before the impact of the COVID-19 pandemic became clear, did not meet or talk with the Brewers and the park district about the delays they were purportedly facing, and have "repeatedly ignored deadlines and rules," according to the May filing.
"Plaintiffs' cavalier approach has imposed significant burden and needless expense on defendants," the Brewers and park district argued in May. "The facts — which plaintiffs have not shared with the court — demonstrate that their neglect has been continuous, egregious and inexcusable."
During a status conference on Tuesday to discuss the matter, U.S. District Judge Lynn Adelman suggested that because there may not be live baseball games in the near future, the case should be temporarily closed for administrative purposes, according to a minute entry of the proceedings.
"The case would not be dismissed without prejudice; instead, the case would be statistically closed and the plaintiffs could pick up where they left off once baseball resumes," according to the minute entry. "Court adjourns the conference so that plaintiffs' counsel may discuss this option with the plaintiffs."
Andrew J. Wronski, an attorney representing the Brewers and the park district, declined to comment on Wednesday.
Counsel for Withers and Green could not be reached for comment on Wednesday.
The Brewers and the park district are represented by Andrew J. Wronski and Ryan N. Parsons of Foley & Lardner LLP.
The case is Withers et al. v. Milwaukee Brewers Baseball Club Inc. et al., case number 2:19-cv-00115, in the U.S. District Court for the Eastern District of Wisconsin.
--Editing by Amy Rowe.
For a reprint of this article, please contact reprints@law360.com.
