Braille Monitor                                                                  January 1985

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Michael Hingson Wins the Right to Plead his Case: New Trial Ordered by the Ninth Circuit Court of Appeals

by Marc Maurer

In the spring of 1983, Mike Hingson, who is blind, brought Pacific Southwest Airlines to trial for discriminating against him. Mike Hingson demanded the right to sit in any seat he chose on the PSA plane. He was ejected from the plane because he would not sit where he was told. He would not give up his right to full equality and first-class citizenship. He would not knuckle under to airline officials when they told him that he was second-rate. In 1980 the airline told Mike Hingson that there was a government regulation which required the airline to segregate him from the rest of the passengers. Mike Hingson (with his dog guide Holland) must sit in the first row (the bulkhead row) of seats.

In 1983 the airline changed its story and said that it had insisted that Mike Hingson sit in the front seat because it would be safer. After all, they said, Mike would be closer to the door of the plane. It would be easier for airline personnel to help him get off if he were in the front seat. The National Federation of the Blind filed a lawsuit in 1981 (see Braille Monitor, September, 1981) to protest this discriminatory treatment. Shortly thereafter, an airline official for the defendant, Pacific Southwest Airlines, said that the airline had made a mistake. This official testified under oath that the airline had violated its own policies in enforcing this segregation.

Nevertheless, a federal court would not permit us to present this evidence. The court ruled in favor of the airline. The judge said that if airline officials had safety matters in the back of their minds, they could present their concerns to the court. With such a ruling in hand, airline officials (as one would expect) remembered thinking of hundreds of ways in which the blind could be injured--caught in a burning flame, maimed in the break-up of the aircraft, or otherwise dismembered or done in.

Between 1980 and 1983 the airline had three years to remember all of the circumstances which could cause personal injury. Although the airline had never mentioned all of this to Mike Hingson, the memories of airline officials were graphic when called upon to describe air crashes. The fear of blindness was evident in the testimony of these officials. Because they did not know what they would do if they were blind, because they were afraid they would be helpless as blind people, because they were sure that they would be second class if they became blind, they insisted that we are second-class.

The appeal was filed in May of 1983. We argued the case in May of 1984. The court issued its order on October 2nd, and our efforts to secure the rights of the blind have borne fruit once more. The ruling of the lower court is reversed. Mike Hingson will have the opportunity to present his case fully. With this opportunity, we may expect the decision to be based on the evidence and not on prejudice.

The Ninth Circuit Court of Appeals issued a unanimous decision upholding the right of a blind person to contest discriminatory treatment. In part, the Court said:

"The district court refused to allow Waters (Director for Planning and Control for Flight Operations of Pacific Southwest Airlines) to testify as an expert for Hingson because Waters worked for PSA. The Federal Rules of Evidence clearly indicate the desirability of testimony by a qualified expert if it 'will assist the trier of fact to understand the evidence or to determine a fact in issue.' Federal Rule of Evidence 702. If the testimony is otherwise admissible under Rule 702, the fact that Waters worked for PSA does not preclude his appearance as an expert witness for Hingson. CF. Dunn v. Sears, Roebuck & Co, 639 F.2d 1171, modified on other grounds, 645 F.2d 511 (5th Cir. 1981) (products liability defendant may offer employee as expert witness). The district court could use an appropriate instruction to prevent the jury from drawing any improper inferences from PSA's employment of Waters (footnote 4). . .

"The testimony of Claessens (The Pacific Southwest Airlines pilot who directed that Mike Hingson be ejected from the plane) strengthens our conviction that the offered testimony by Waters would have assisted the jury. The parties agree that the basic issue in this case is whether PSA acted unreasonably in demanding that Hingson take a bulkhead seat. Captain Claessens testified at length that safety concerns justified his actions. He also testified that under federal regulations the pilot in command has the ultimate responsibility to make decisions for the safe operation of the aircraft (footnote 5). When asked how he regarded the policy manuals, he stated that the provisions were intended only as a guide. Waters, according to the offer of proof, would have testified that the safety concerns expressed by Captain Claessens were already reflected in the policy manuals and that such concerns did not require that Hingson sit in a bulkhead seat. We doubt not that the testimony of Waters could have assisted the jury in determining if PSA's actions were unreasonable (footnote 6).

"The offer of proof also indicates that Waters was qualified to testify as an expert witness. Rule 702 states that an expert witness is qualified by his 'knowledge, skill, experience, training, or education.' Waters worked for PSA for eight years and served as the airline's Director for Planning and Control for Flight Operations. In this capacity, he studied the problem of accommodating handicapped passengers and drafted the PSA policies stating that blind passengers should not be restricted to the bulkhead seats. It is difficult to imagine a person better qualified to comment on the preparation of the PSA policy manuals or to offer an opinion whether the circumstances justified a departure from the airline's own policies.

"Because the exclusion of the testimony of Waters was manifestly erroneous and affected a substantial right of Hingson, see Federal Rule of Evidence 103(a), we reverse the district court on this issue and remand the case for a new trial on Hingson's claims under Section 404(b)."


"4. The District Court initially excluded the testimony on the grounds that Waters was not authorized to make binding admissions on behalf of PSA. This ruling confuses the criteria for admissibility of testimony with that for determining if a corporation is legally bound by the acts of its employees. The district court did not rule, and PSA has not argued, that Waters' testimony should be excluded pursuant to Federal Rule of Evidence 403 because its probative value was substantially outweighed by the danger of unfair prejudice.

"5. Although Claessens did not refer to the specific regulation, 14 C.F.R. Section 91.3 (1983) provides that the pilot in command of an aircraft is directly responsible for, and is the final authority as to, the operation of that aircraft. The trial judge included the language from this regulation in his instructions to the jury.

"6. We note that neither Claessens' good faith nor the responsibility and authority given a pilot by federal regulations precludes a find that PSA violated Section 404(b) by requiring Hingson to occupy a bulkhead seat. CF. Cordero v. Cia Mexicana de Aviacion, 681 F.2d 669, 671-72 (9th Circuit 1982) A (statutory provision in 49 U.S.C. Section 1511(a) allowing carrier to exclude passengers for safety concerns does not limit protections afforded by 49 U.S.C. Section 1374(b)). Instead the test is whether the airline acted reasonably based on the information available when the decision was made. See id. at 672."